Executed at Dawn (18 page)

It is debatable whether such a response would have satisfied many people in the immediate aftermath of the war, let alone in more recent times. It certainly did not satisfy an embittered and frustrated John Hipkin, who wrote to David Lewis, a fellow campaigner, regarding the court martial and execution of Private Joseph Byers of the 1st Royal Scots Fusiliers, who had been found guilty of attempting to desert on 8 January 1915. Byers had been arrested on 18 January 1915 and brought before a court martial, where he was found guilty and subsequently executed on 6 February 1915:

Dear David,

Now that the 79 day air war against Yugoslavia has ended, perhaps Mr Blair can turn compassionately to the 79 day war of Fusilier Joseph Byers, the first Kitchener volunteer to be shot at dawn – a patriotic boy aged 16 years and 4 months on 6/2/1915, and his court martial papers kept secret for 75 years.

Fusilier Byers lied about his age to enlist on Nov. 20th, 1914, was shipped to France on Dec. 5th.1914, after only 2 weeks basic training, was later charged with desertion, (a military capital offence abolished by Parliament in 1929) and as an under aged soldier was illegally executed, drugged or drunk, by a reluctant firing squad made up of his own comrades.

The Officers of his court martial received a letter from Gen. Sir Horace Smith-Dorrien commander of 2nd Army dated 2/1/1915 (Public Records Office WO71/397), stating [
sic
] would urge that discipline in the 1st. Batt. Royal Scots Fusiliers had been very bad for some time past and that a severe example is very much wanted. Byers after 79 days in the army was shot at dawn 6/2/1915.

Fusilier Byers like most soldiers was undefended, and like all defendants was not allowed to see what had been written about him. Most court martial officers were without any legal training, and were in fact Judge and Jury. No appeals were allowed.

Pardons for these boys and 303 adolescent and adult soldiers were blocked in parliament in 1996, 1998, and 1999 by both Lab. and Con. Governments.

There are a number of disturbing aspects to this case. Firstly, at his court martial, Private Byers entered a plea of ‘guilty' and therefore according to military law the court could not consider any evidence or mitigation – it was in effect a one-word suicide note. Why did Private Byers plead guilty? It was probably a combination of poor or non-existent legal representation, and ignorance (although on the same day, before the same court martial, Private Andrew Evans of the same regiment had already been sentenced to death for desertion).

Some people might say that Private Byers pleaded guilty to perhaps incomprehensibly hide his age because it was for many years believed that he was under 17 years of age when he was executed – when in fact this was not the case (Linklater, 2014).

Private Byers had been wrongly identified by Putkowski and Sykes in their book
Shot at Dawn
as the youngest soldier to be executed. This was the second mistake referred to earlier: an embarrassment that provided further ammunition to those who opposed the Shot at Dawn campaign for pardons, and argued that it highlighted the problems of attempting to rewrite the history books.

This development was a potentially devastating body blow for the campaign. Immediately, John Hipkin had no alternative but to destroy some 3,000 leaflets that had featured a photograph of Private Byers and prominently featured the fact that he had been shot whilst only 16 years of age. Embarrassingly, his face was also on campaign placards, on in-memoriam notices in newspapers, on wreaths laid at the Cenotaph, and in lobbying material sent to Members of Parliament, making him literally the poster boy of the campaign (Linklater). Fortunately, this did not derail the campaign and it continued to ‘argue general principle of the injustice of the executions is more important than individual cases'.

The Shot at Dawn campaign continued to make progress, gaining the support of the Royal British Legion. There had been just a solitary dissenting vote when the Royal British Legion supported a call for a pardon for all officers and men sentenced to death for desertion and cowardice in the First World War, believing that a general amnesty or exoneration to mark the new millennium would remove the burden of shame, guilt, and resentment from the families of those executed. In November 2000, an important psychological threshold was crossed when the relatives of those executed were allowed to participate in the Remembrance Day ceremonies at the Cenotaph. The Shot at Dawn campaign was initially only offered five tickets for the march, though this was increased to fifty after some lengthy telephone calls to the Royal British Legion. For the 2001 ceremony the ticket allocation rose to 110 and remained at that level until the pardons were granted.

As the families of those executed took their place in the November 2000 procession, they would have been struck by the irony (some would say insensitivity) of being told to assemble alongside the statue of Field Marshal Sir Douglas Haig (later Earl Haig), the man who had confirmed the death sentences for many of their relatives. At the end of the ceremony the families were informed by reporters that Secretary of Defence Geoff Hoon had announced that it would not be appropriate retrospectively to pardon those executed. The news reduced many to tears.

The British government's opposition to the granting of pardons was undermined when, in 1999, the New Zealand Labour Party was elected into office and the new prime minister, Helen Clark, announced in April 2000 that: ‘our conscience wouldn't rest if we didn't do something to retrospectively pardon those soldiers … It's just so pitiful that men who were sick, drunk, epileptic, shellshocked ended up being executed.'

In 2000, the New Zealand Parliament considered the Peck Bill, as it was known; the bill proceeded through Parliament (the vote was 112 in favour with 8 against) and received royal assent as the Pardon for Soldiers of the Great War Act on 14 September 2000. Five New Zealand soldiers who had been executed were granted an unconditional retrospective pardon. In July 2005, the New Zealand prime minister presented the relatives of those soldiers with any outstanding medals, decorations and certificates. Interestingly, in December 2001, the Canadian government issued a formal apology to the families of the twenty-three Canadians who had been executed, but stopped short of granting statutory pardons ‘because there is no mechanism for granting them' – despite the actions of New Zealand.

This meant that in three countries, the United Kingdom, New Zealand and Canada, there were three different approaches to dealing with this issue, despite the men having been executed under the same British Army Act of 1914 and in the same war. In Britain there had been neither an apology nor a pardon, although there had been a motion of regret, which it could be argued was as near as possible to an apology; in New Zealand there had been a complete apology and a restitution of all civil rights, and the Canadian government had made an apology, but had not granted a statutory pardon.

† † †

The campaign for pardons continued, and on 17 January 2002, Robin Cook, the leader of the Commons, in response to a request to bring the issue back to the House once again said:

I am well aware of the strength of feeling of the relatives of those who were shot. I think everybody in the House would express great sympathy with their position and concern about the action that was taken at the start of the last century. It is plain now, in retrospect, that many of those who were sentenced and executed at the time would never have been sentenced or executed under modern law or standards. However, as the hon. Gentleman will know from previous exchanges, there is a bona fide issue as to whether it is credible to apply a legal pardon posthumously in very different circumstances – including the state of the law – from those that applied at the time. Nor would this be the only occasion when we might be invited to do so. Therefore, what I can say to the hon. Gentleman is that he should offer comfort to relatives by telling them of the very strong sympathy and regrets of all of us who are alive today about what happened. However, it is not really for us to make legal judgements by today's standards about what happened 100 years ago.

As Robin Cook made that response he might have had some inkling of what was happening in New Zealand where the proposed Act had received its second reading and been referred to the Foreign Affairs, Defence and Trade Committee.

In October 2004, the Irish government formally submitted to the United Kingdom government a report, ‘The Court Martial and Execution of Twenty Six Irish soldiers by the British Army during World War 1', seeking a pardon for the twenty-six men concerned.

In May 2005, a case was brought before the High Court by the family of Private Harry Farr, seeking a full posthumous pardon. It was brought in the name of his daughter, who was aged 92, but the case was adjourned while the Ministry of Defence considered further submissions by the family. Private Farr of the 1st West Yorkshire Regiment had been executed on 18 October 1916, having been found guilty of cowardice.

In November 2005, Andrew Mackinlay, MP, introduced a new version of his Private Member's Bill, which he had introduced in 1993, seeking a pardon for soldiers of the Great War, but this was again unsuccessful.

Keith Simpson, MP, in the Commons debate of 18 January 2006, raised a number of important questions: Had anything changed since 1998? Had the Ministry of Defence been able to find any official documents relating to the courts martial and execution of British soldiers? Had the government's legal opinion changed? Had any new evidence come to light? And had any of the files relating to those who had been sentenced to death but subsequently reprieved been found? This last point was important because those documents would have provided something against which to compare and contrast the documents in respect of those executed, and given valuable information for the grounds of the reprieves granted.

The government responded that no new documents had been found or been forthcoming from other sources, no files concerned with those who had been reprieved had been found, and that its legal position had not changed.

There were still many historians, amongst others, who continued to argue against the granting of pardons because it would effectively be changing history, as the above discussion of the case of Private Byers shows. Lord Ashdown summed up the concerns of those opposing pardons on 12 October 2006:

… could create precedents for the future and it cannot but have the effect of impugning the judgment of the people who made those very difficult decisions at the time. It cannot but have the effect of revisiting history, which is very dangerous, and putting the gloss and judgments of today on decisions made in conditions which we cannot in our time and at this distance make proper judgments about. (Official Report, House of Lords, 12 October 2006; Vol. 685, c. 430.)

The commander-in-chief, Field Marshal Sir Douglas Haig, will forever be associated with the prosecution of the war on the Western Front and the military executions, so it is perhaps no surprise that his son, George Haig, also opposed the granting of pardons. He claimed that many of those executed were rogues and criminals who deserved to be shot. His view was that history should not be tampered with and the decisions of the army commanders at the time should be respected as they knew best.

Nevertheless, in August 2006, the campaign finally achieved its objective when the Labour government changed its mind and the then Secretary of State for Defence, Des Browne, who had been more sympathetic to the arguments put forward, announced on 16 August that with Parliament's support there would be a general pardon for those executed in the First World War. His intentions were set out in a written ministerial statement on 18 September 2006, which is reproduced as Appendix 2. The written statement acknowledged the exceptional circumstances that had led to the executions and the ongoing stigma that had remained for the families of those concerned. As a result, the government was to seek a statutory pardon for those executed as a group because the variability of the records available made individual pardons difficult and could have left some individual cases failing to meet the criteria for a pardon due to a lack of evidence.

Subsequently, a new law was passed on 8 November 2006, which was included as part of the Armed Forces Act, pardoning the men of the British and Commonwealth armies who were executed in the First World War between 4 August 1914 and 11 November 1918, for all offences except murder and mutiny, thereby removing the stain of dishonour with regard to executions from their war records. However, it did not cancel the actual convictions.

The measure, when debated, still had its opponents in the House, and some were critical of the speed with which the new secretary of state had changed the government's opinion and questioned what precisely this change was based on. One MP reminded the House of Commons in the debate on 7 November 2006 what Dr John Reid had said back in 1998, ‘However frustrating, the passage of time means that the grounds for a blanket legal pardon on the basis of unsafe conviction just do not exist. We have therefore considered the cases individually.' (Official Report, 24 July 1998; Vol. 316, c. 1372.)

Others were critical of the decision being made by those they saw as having had no direct military experience themselves. Their concern was that this Labour government lacked direct experience of military life, which had not been the case with its predecessors over the previous fifty years. Some MPs, while supporting the principle of granting a pardon, took issue with the pardons being restricted to those executed rather than to all who had been sentenced to death as they felt that the problem was the conviction rather than the sentence. Their argument was that, as one MP put it:

If I were a member of one of the families concerned who thought that my ancestor had been wrongly convicted because, for example, he had had shell shock, it would not encourage me to know that his conviction stood and he was being pardoned only because of the severity of the sentence, not because of the injustice of the conviction.