War Pardons
Julian Putkowski
Soldiers serving in the British army and Imperial forces during the First World War were subject to the disciplinary provisions of the Army Act, and military law, which was reviewed and approved annually by the Houses of Parliament.
As with most armies, minor breaches of discipline were dealt with summarily by the commanding officer of a man's unit but more serious offences, including desertion, involved men being tried by courts martial.
There were four kinds of courts martial: Regimental, District, General and Field General.
The Regimental Courts Martial dealt with minor offences and were very rarely convened during the war. District Courts Martial could only impose a maximum punishment of two years' imprisonment. General Courts Martial composed of a minimum of five officers, sentenced only three officers and a handful of men to death during the war. However, the overwhelming majority of the three thousand death sentences passed on British soldiers were awarded by Field General Courts Martial (FGCM) convened overseas.
The System
The FGCM, customarily sanctioned by a brigade commander, involved three officers (including the president, usually a major) passing judgment and award punishments. The officer's legal training was minimal and during the early months of the fighting they relied almost exclusively on their own interpretation of the army's Manual of Military Law. She system permitted officers from the accused man's unit to serve as members or the president of FGCM, as happened in 83 of the wartime cases which ended with the defendant being executed. The prosecution was customarily conducted by the adjutant of the accused's own unit but by 1917 legally qualified Courts Martial Officers (CMO), attached to Divisions and Corps attended most capital cases to ensure that legal advice was available for the court marital panel.
Before 1917, defendants were rarely assisted by a defending officer of "Prisoner's Friend" and even thereafter they were permitted at most a couple of hours to prepare their case for trial. In only 50 of the wartime cases which ended in executions were defendants assisted by a defending officer.
Given that the majority of the accused were working class men, usually inarticulate, ill-experienced in self advocacy and sometimes suffering from battle trauma ("Shellshock") it is perhaps unsurprising that 90% were found guilty.
There was no system of appeal after being sentenced but a hierarchy of senior officers, commencing with the condemned man's own unit and brigade commanders, were invited to express opinions about the punishment passed by the FGCM. All death sentences had to be checked for legal technicalities by the Judge Advocate General (attached to the Adjutant General's command) and approved personally by the commander-in-chief.
Statistics
Between August 1914 and the end of the war, this system led to the execution by firing squad (only one man was hanged) of three officers and 343 soldiers and military labourers serving in overseas theatres of operations. In the United Kingdom some soldiers were hanged after being found guilty of capital offences by civilian courts but otherwise no military personnel were executed.
Of 121 Australians (117 in France) sentenced to death while serving with the Australian Imperial Force none were executed but three who had joined British or New Zealand formations were executed. This apparent anomaly persisted and was because the execution of Australians had also to be sanctioned by the Australian Premier (Governor General). However, deep divisions which fractured war-time Australia made assent politically too dangerous for him to grant approval.
Controversy
There has been little controversy for those executed for murder or mutiny but for the remaining 306 who were shot at dawn for other military offences, great public disquiet has persisted for eighty years. Even during the was, protests emerged in Parliament and the war-censored press about the execution of shell-shocked men and soldiers who were too young for overseas service.
Official secrecy about individual capital cases was sustained after the war ended, consequently post-war campaigns about the issue focused on the abolition of the use of the death sentence for military offences.
The use of execution by the army as a punishment for military offences (other than treason and mutiny) was finally abolished in 1930 after a sustained campaign in the House of Commons led by Ernest Thurtle, a Labour MP and war veteran.
Soldiers convicted of murder continued to be executed until Britain abolished capital punishment altogether in the 1960's. Only during the Second War have British soldiers been executed for offences other than murder. August 1943 witnessed the hanging of three Indian mutineers and in January 1946 a British soldier was executed after being convicted of war treason.
The use of capital punishment by the British Army was only wholly abandoned in 1998, when Tony Blair's assent to the European Community's Amsterdam Accords outlawed the death penalty.
The British Military and the majority of Conservative Party Politicians have always bitterly resisted any erosion of the Army's right to use of the death penalty. Though ultimately defeated, their influence and the policy of official secrecy has been successful in another important respect, relating to the families of the 306 men who were executed for military offences (other than mutiny and murder) during the First World War.
Families
Until 1916 the families of those who were "shot at dawn" were routinely informed precisely when and why their men folk had been executed and the War Office discontinued payment of the dependent's allowances. Often with insufficient money to pay rent or buy food, emotionally traumatised families wee evicted from their homes and in at least one case, the desperate wife of an executed soldier resorted to prostitution to feed their children.
Public protests and adverse publicity forced a change and by 1917 executed men's families were not financially punished by the War Office. However, for families the stigma of association with cowardice and deep sense of shame has persisted long after the men's children were abused as "cowards" and "bastards" by their schoolmates during the First World War. In 1920, an official enquiry into the conduct of wartime courts martial was presided over by Judge Darling.
Because the courts martial papers remained secret and few soldiers gave critical testimony, it was hardly surprising that this exercise concluded justice had been upheld, though with some dissent being expressed by a couple of members of the enquiry team.
Official secrecy, the focus of political attention on changing legislation and the executed men's families' shame combined to prevent effective independent appraisal until after the Second War World.
Disquiet
It was only when British military documentation about the First World War began to become available in the 1960's that journalists (e.g. William Moore) and university academics like Gloden Dallas and Douglas Gill again drew public attention to the immediate circumstances in which the executed soldiers had committed their offences.
Thereafter, a combination of two mutually independent research initiatives and a revision of government secrecy policy about the proceedings galvanised public demands for posthumous pardons for the 306 men executed for military offences during the First World War. The first initiative was by Julian Sykes, a Trading Standards Officer and amateur military historian, who began a decade-long hunt to identify the names of the executed men.
The second initiative involved Judge Anthony Babington, wounded veteran of World War 2 and recipient of the Croix de Guerre, who had published several books about legally-related subjects and was an active member of PEN. The judge wished to write about the capital courts marital of the First World Was and was permitted by the Ministry of Defence to read the secret courts martial proceedings, on condition that he maintained the anonymity of the executed men. Judge Babington agreed to their terms and his book "For the Sake of Example" (1083) became the first full length study on the executions. The book was a damning critique of the courts martial system and the unjust manner in which men had been treated.
In 1989, Julian Sykes project finally matured with the publication of "Shot at Dawn", for the first time naming all those who had been executed and chronicling the circumstance which had led to individuals being charged with capital offences. The information it contained effectively complemented Babington's work and generated a good deal of attention by the media.
The Campaign
With public disquiet being expressed and John Major's Conservative government stating that it objected to unnecessary secrecy the only argument which could be deployed to withhold the courts marital papers from public scrutiny was that their disclosure might cause embarrassment to the dead men's families. However, Sykes, remarkable detective work had not only identified the executed men but he also accumulated enough information to assist the families to challenge the government's motive for continuing to withhold the courts marital papers from public scrutiny. The government resolved the matter by rescinding the 100-year closure and authorising the gradual release of the courts marital papers on a 75 year basis. Open inspection of the papers amply confirmed Judge Babington's conclusions and stirred the public conscience.
Ex-service personnel, delegates at the British Legion Annual Conference in 1985 responded to Judge Babington's revelations by calling on the government to review the cases of those men who had been executed for cowardice. Their appeal was dismissed by the Minister of Defence but the demand continued to remain part of the policy of the British Legion.
Andrew Mackinlay MP, of the Labour Party, had a lifelong interest in the First World War. He then began the first of a succession of efforts in the House of Commons to enact legislation which would secure independent review of the executed men's courts martial and consideration of posthumous pardons. He was enthusiastically supported by the dead men's families but the Conservative government refused to consider his pleas. Then the dead men's families and a mass of enthusiastic supporters began extra-parliamentary action in support of posthumous pardons. Dozens of articles appeared in the national pres, TV and radio programmes about the domestic dimension of the executions and the sufferings of the men's families.
With the election of Tony Blair's New Labour administration it had been hoped that consistent parliamentary support for Mackinlay's proposals, for either a generic pardon or a case-by-case review, might have been successful.
However, in 1998, after a twelve month's procrastination, John Reid (then Minister for the Armed Forces) affirmed his belief in military discipline and declared that he would not grant a generic pardon or permit an independent case-by-case review.
Reid argued that a long time had elapsed since the trials and that it would be wrong to use today's standards to judge the conduct of the courts martial. He added that because there was insufficient documentation, it was likely that the majority of the executed men would be effectively re-condemned by a review of their cases. Instead, Reid proposed that the executed men should be regarded as victims of war and their names be included on war memorials.
The disgusted, dismayed and angry families responded by conducting their own wreath lay ceremony at the Cenotaph on 11 November 1998 - declaring that the minister's rebuff was akin to that which they had been compelled to endure from the Conservatives.
Media coverage, other than in right-wing newspapers, broadly supported the families' continued demand for posthumous pardons. This Autumn saw the screening of an "Everyman" programme about John Hipkin and his personal campaign to draw attention to the plight of the under-age soldiers who were shot at dawn.
In the House of Lords, the pardons issue has again recently been raised by Lord Carlisle. Outside Parliament, Wear Valley District Council gathered support for a petition backed by over 140 elected local government administrations throughout Britain to solicit a change of policy by the Prime Minister. The Labour Party's Wirral Branch has also taken up the campaign, calling for a million-signature petition to be gather, calling for pardons.
As for the families, they continue to campaign, endlessly writing letter, pressing their case in the media and attending public meetings. In the absence of any change in official policy, they again repeated last year's wreath laying ceremony at the Cenotaph on Saturday 14 November, 1999.
Other Countries
Overseas, efforts to secure pardons in the Canadian Parliament have been hampered by the disappearance of the courts martial proceedings from official archives.
In New Zealand, greater success has attended the efforts made by Mark Peck, the NZ Labour Party MP for Invercargill. Prime Minister, Helen Clarke, backed a Pardons Bill which was enacted in September, 2000. This gave pardons to the five New Zealanders who were executed, including that of one man who was shot after being convicted of mutiny.
The execution of black soldiers from the Caribbean who were serving with British force during the First World War is also being raised by the forthcoming production of a TV documentary about the non-European contribution to the British war effort which is to be screened in Britain.
In Germany, the issue of pardons for thousands of German soldiers executed by the Nazis has commanded more public attention that the three dozen men who were executed for military offences during the First World War.
The destruction of German military records during the Second World War and the fact that the Kaiser's army courts martial were conducted by trained and professionally qualified legal officials suggest that the injustices which inflame British opinion will not stir great concern in today's Germany. The latest comparative research by Dr. Christoph Jahr recognises that the British Expeditionary Force operated a far more repressive regime than that which allied propaganda associated with their adversaries.
In Italy, public knowledge is constrained by secrecy laws which only now begin to permit research about approximately 700 individual soldiers who were officially executed during the First World War.
The fifteen executions which had taken place during the war in the Belgian army received some critical attention recently, after a TV documentary on the subject was screened last year. Though perhaps not as politically sensitive as the Second World War, the matter remains so delicate that the Belgian capital courts martial papers are still withheld from the men's families.
As far as Britain is concerned, until the principle of an independent review has been conceded, it remains an academic debate whether pardons should be generic or via a case-by-case review. Official objections to reviewing the capital courts martial cases have been robustly challenged by the New Labour leadership's pact with the metaphorical dinosaurs at the Ministry of Defence remains unimpressed.
Opposition
Vehement opposition to the granting of posthumous pardons continues to be exercised in Whitehall by senior politicians, civil servants and retired military officers. Rejection of any alteration in the status quo has also been aired by a handful of established military historians, including: Brigadier General Sir Anthony Farrar-Hockley; Correlli Barnett; Michael Moynihan and Peter Simkins.
Their arguments in favour of the status quo and the response war pardons campaigners are easily appreciated in a for-and-against format:
Point of View: For and Against
Objection: You should not use today's standards of justice to judge the past.
Response: This assertion is invalid primarily because it is predicated on the assumption that public opinion about the execution of British soldiers during the First World War endorsed the decision to kill the men or was at odds with today's criticism. This is simply incorrect - a fact that was confidentially acknowledged by the Army.
Those who argue that public opinion during the First World War supported decisions to execute soldiers for military offences are advancing an officers' view - a perspective embraced by an unrepresentative minority of the population.
Given the confidential personal views of Brigadier General Sir Wyndham Childs, the Director of Personal Services it is also easy to understand why the War Office and latterly the Ministry of Defence have kept secret the courts martial proceedings. This is what he wrote on 12 March 1919:-
"Even during the continuance of hostilities there was very strong feeling both in the country and in the House of Commons against the infliction of the death penalty for military offences. Now that hostilities have ceased it can confidently be stated that the effect on this country of a death penalty might lead to an agitation which might be difficult to control and in all probability would jeopardise the prospects of maintaining the death penalty for military offences in time of peace when the Annual Army (Act) comes before the Houses of Parliament."
Objection: To pardon executed cowards and deserters would insult the memory of those who died "honourably" on the battlefield.
Response: Those advancing this argument appear to assume that the executed men had themselves never been in combat - which the proceedings reveal to have been demonstrably untrue. Some had been in combat for more than two years, a fact which was often recorded in proceedings.
Not only is the distinction spurious (the terminally drunk, suicides and those who were summarily executed all got campaign medals and were deemed by the authorities to have died "honourable" deaths, they were given medals and their families got pensions) but were combat service to be as cherished as critics insist then in many capital cases the courts-marital officers may reasonably be laid open to criticism for having ignored defendants' contribution to the war effort as a mitigating factor.
Objection: The documentation which survives is insufficient to review the cases.
Response: All the courts marital papers have been preserved and not sanitised or censored. The evidence used to condemn the men and the comments of all concerned with their deaths remains as it was when Field Marshals French and Haig ordered the men's deaths.
Furthermore, current academic research confirms that the Army's published figures relating to death sentences underestimated the extent to which they were inflicted.
Objection: The condemned men had a fair trail.
Response: The entire system was staffed and controlled by officers. In a minority of cases in which soldiers were defended by a Prisoner's Friend, regulations demanded that the latter was a commissioned officer.
A public school education or attendance at a university was virtually mandatory for British Army officer's, even for "temporary gentlemen" granted wartime commissions. The influence of public schools and consequently the perspectives of a narrow social elite dominated the wartime military hierarchy. The proliferation of officers from public schools may be exemplified by one of the most famous, Eton College:
Etonians who fought in the Great War.
Admirals - 2.
Field Marshals - 2.
Generals - 3.
Lieutenant Generals - 12.
Major Generals - 43.
Brigadier Generals - 151.
Lieutenant Colonels and Brevet Colonels - 90.
Lieutenant Colonels 666.
Official records suggest there were advantages for the officer-defendants
British Army Courts-Martial Conviction Rates.
Statistics of the Military Effort of the British Empire during the Great War (War Office 1922)
From the army's own figures, it is also apparent that officers were punished far less severely than the Other Ranks.
Punishments: British Army Courts Martial at Home and Abroad:
Objection: The executions happened a long time ago, it is ridiculous to raise the matter now.
Response: The matter is not being resurrected, since all the papers had been classified and kept secret by successive governments. Thus, effectively what was being debated is fresh minted or at least only a couple of so years old.
Objection: Re-opening cases because wartime medical evidence was not called to assess soldier's mental condition should be disregarded. Wartime medical understanding of battle trauma was imperfect.
Response: Documentary evidence proves that senior officers fully recognised the impact of combat on military personnel exemplified by written correspondence between General Hunter-Weston and Lord Stamforham in mid-1915. However, as the proceedings reveal, in case after case, the mental and physical state of defendants at the time of their offences were not appraised by medical opinion. Medical opinion was rarely sought or ignored by courts martial officers. In only two dozen cases which ended with the execution of the defendant did medical opinion feature in the proceedings.
The issue of how well Army doctors understood soldiers' mental distress was possibly relevant during the opening months of the war and it is also relevant in appreciating the unfairness with which defendant's pleas of nervous breakdown were dismissed as mitigating factors by courts. however, it should not be allowed to obscure the important fact that it was generals not doctors who determined which of the condemned men were to be shot.
Objection: At least half a dozen or so soldiers who were under 19, officially too young for overseas service, were executed. However, their cases should not be re-opened because when they enlisted they lied to the army about their true age and were by implication the agents of their own destruction. In any case, the contemporary age of criminal responsibility in the United Kingdom was fourteen.
Response: The army was repeatedly criticised for failing to curb under-age enlistments. It also broke its own rules by sending under-age soldiers overseas and knowingly executing those who deserted after being unable to withstand the rigours of war.
The age of criminal responsibility may have entitled civilian courts to hang teenagers but civil courts also permitted defendants to have an open trial, a defending counsel, a jury who would take account of the defendants' immaturity and the right to appeal to a higher court against the death sentence.
Objection: Where will this review process stop? Should we not also review the cases of the 90% who were sentenced to death but not executed?
Response: No, they weren't executed and nobody is asking for their cases to be re-opened.
Facts and Figures
Between 1914 and 1920, 3,080* death sentences were awarded. This included three officers, one of whom was a Naval Sub-Lieutenant.
[*This excludes locally recruited men executed by the British Army in Russia]
Three hundred and forty-six executions were carried out. This represents 11% of the total.
Three hundred and thirty-five death sentences were passed in Dominion Forces resulting in 31 executions in France and Flanders.
One hundred and twenty-one Australian soldiers were sentenced to death. No executions were approved by the Australian authorities.
Twenty-eight New Zealand soldiers were sentenced to death. This resulted in five executions.
Two hundred and sixteen Canadian soldiers were sentenced to death. Five soldiers from the 22nd. (French Canadian) Battalion, were executed.
The Judge Advocate General's Register records the following death sentences.
South Africa - 11.
West Indies - 8.
Nigerians - 2.
Ghanaians - 9.
West Africans - 2.
Only one Indian soldier is recorded as having been sentenced to death - all others were tried under the provisions of the Indian Army Act. Records were kept separately and have not survived.
The following locations is where the executions took place:-
France/Flanders - 322.
East Africa - 5.
Iraq - 4.
Constantinople - 4.
Gallipoli - 3.
Salonika - 3.
Egypt - 2.
Italy - 1.
Palestine - 1.
Serbia - 1.
References:
Anthony Babington, For the Sake of Example: Capital Courts Martial 1914-1920 Leo Cooper/Pen London 1983
Anthony Babington, The Devil to Pay Leo Cooper/Pen & Sword, Barnsley 1991
Nicholas Boyack, Behind the Lines Allen & Unwin, Wellington NZ 1989
Frank Crozier, The Men I Killed Michael Joseph, London 1937
Gloden Dallas and Douglas Gill, The Unknown Army Verso, London 1985
Andrew Godefroy, For Freedom and Honour? CEF Books, Ontario 1998
Christopher Jahr, Gewohnlliche Soldaten: Deutschen und Dserteuer im deutshen und britishcher heer 1914-1918 Vandenhoeck und Ruprecht, Gottingen 1998
William Moore, The Thin Yellow Line Leo Cooper, London 1974
Gerard Oram, Death Sentences passed by Military Courts of the British Army Francis Boutle, London 1998
Gerard Oram, Worthless Men: Race, Eugenics and the Death Penalty in the British Army during the First World War Francis Boutle, London 1998
Sylvia Pankhurst, The Home Front Hutchinson, London 1932
Julian Putkowski, British Army Mutineers 1914-1922 Frances Boutle, London 1998
Julian Putkowski and Julian Sykes, Shot at Dawn Leo Cooper/Pen & Sword, London 1989
Len Sellers, For God's Sake Shoot Straight! The Court Martial and Execution of Sub.Lt. Edwin Dyett Leo Cooper, London 1995
Ernest Thurtle, Discipline and Democracy C W Daniel, London 1920
