As the granting of pardons for British and Commonwealth soldiers executed for various military offences during world war one is a


The Irish Shot at Dawn Campaign to secure pardons for Irish born British soldiers executed for military offences 1914 -18
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The New Zealand Pardons Act 2000

A Legal Prospective

In September 2000 the New Zealand parliament passed into law a Pardons Act allowing for pardons for 5 New Zealand soldiers executed for alleged military offences during WW1. The following legal prospective will hopefully be of assistance:

Does the NZ Pardons Act overturn the original verdicts of courtsmartial ?

The first point is that the Pardon for Soldiers of the Great War Act 2000 seems to have been deliberately equivocal on the question whether the original Courts-Martial verdicts were overturned. Section 4 of the Act states that its purpose is to pardon five soldiers of the New Zealand Expeditionary Force who served as volunteers in the Great War and who were executed in one case for mutiny and the other four for desertion. The second purpose is to remove, in so far as practicable, the dishonour that the execution of those five soldiers brought to the soldiers and their families. When the Act was at its Bill stage it appears there was a deliberate intention to avoid the possibility of civil proceedings by family members. So no compensation can be sought. To the extent that the Act differs in its terms from the previous report made by Sir Edward Somers, the Act takes precedence. It appears that the Act does not overturn the original verdicts but attempts, in a unique fashion, to redress the severity of punishment exacted and the disgrace felt by the soldiers and their families.

Does the Act create a conditional pardon ?

A conditional pardon generally substitutes one punishment for another, the latter a lesser sentence (see the granting of a conditional pardon by royal prerogative in Lt Tracey's Case 1923. Note: Lt Tracey's conditional pardon mitigated his sentence and did not vacate the original courtsmartial verdict. As a previous defendant and petitioner Lt Tracey was able to accept a lesser sentence as part of the conditions and consequently the King granted him a conditional pardon for the military offence of cowardice). The New Zealand Pardons Act cannot be construed as granting either an unconditional or a conditional pardon and has the effect as indicated. Whether, if the soldiers were still alive it would be necessary for them to disclose the Courts-Martial conviction is a moot point, but not one now likely to arise as all had been executed.

The ingenuity of the NZ parliamentary draftsman in constructing a simple and straightforward text which does not rewrite the history of the NZ Shot at Dawn is exemplified unambiguously in their Pardon for Soldiers of the Great War Act 2000 where it states in the Preamble:

In the Great War, 5 soldiers of the New Zealand Expeditionary force were executed, after trial by court martial, for certain offences:
They were all volunteers;
One was executed for the offence of mutiny;
The other 4 were executed for the offence of desertion;
Their execution was not a fate that they deserved but was one that resulted from‑(a) the harsh discipline that was believed at the time to be required; and (b) the application of the death penalty for military offences, being seen at that time as an essential part of maintaining military discipline;
The execution of those 5 soldiers brought dishonour to both the soldiers themselves and New Zealand;
It is now desired to remove, so far as practicable, the dishonour that the execution of those 5 soldiers brought to those soldiers and their families;

and set out the Purpose of the Act as:

The purpose of this Act is to pardon 5 soldiers of the New Zealand Expeditionary Force who served as volunteers in the Great War and who were executed in 1 case for mutiny and in the other 4 cases for desertion; and
to remove, so far as practicable, the dishonour that the execution of those 5 soldiers brought to those soldiers and their families.

This opinion inter alia corroborates the following re the New Zealand Pardon for Soldiers of the Great War Act 2000:

its purpose was not to overturn the original verdicts;
its scope and effect is only in so far as practicable and is limited to the soldiers and offences stated in the Act, thereby excluding the so called appalling vista scenario envisaged by the MOD and their support base, i.e that the introduction of pardons on the New Zealand model would open the flood gates. The Act also stipulated that NZ soldiers memory be restored. The restorative memory paragraph put what the New Zealand Government must do on a parliamentary footing. In Section (C) take such other steps as, in its opinion, are reasonable or desirable to restore the memory of the soldiers granted pardons by this Act. As there was New Zealand parliamentary approval for this measure, it was reasonable in the circumstances to present medals to the families.

(In contrast see Officers Pardoned where some officers had their convictions and punishments remitted, were subsequently pardoned and reinstated by Royal Perogative and were later presented with their medals).

The purpose of the New Zealand Pardon for Soldiers of the Great War Act 2000 was not to overturn the original convictions of NZ Soldiers executed during WW1. In May 2005 Mr Justice Burnton declared in a Judicial Review Application on behalf of Private Harry Farr that although the family lacked the legal grounds for a free pardon he found that there was 'room for argument' that he (Private Farr) had been wrongly refused a conditional pardon. Both the New Zealand Pardon for Soldiers of the Great War Act September 2000 and the opinion of Mr Justice Burnton in the Farr case May 2005 together set the political and legal parameters for any future British action in resolving the pardons issue, consequently any proposed pardons amendment to the Armed Forces Bill 2006 will not overturn the original convictions of those WW1 executed. Ironically it is the Farr case which limits future British action by law in WW1 execution cases ie 'room for argument' for a conditional pardon only, no legal grounds for a free pardon and by implication no legal grounds for exoneration. This represents a British hybrid version of a conditional pardon with the added statement of clarification reflecting the Farr case opinion of Mr Justice Burnton and meets to some extent the New Zealand model ie its effect and scope is in so far practicable. Taking into account the current political situation within the UK, we believe Des Browne's pardons amendment satisfies the objectives of the Shot at Dawn Campaign Irl, in that his amendment is a political mechanism which allows for restrospective pardons in world war one execution cases with an extra safeguard (the amendment will not affect the Royal Prerogative of Mercy) giving families the right to petition for the Royal Prerogative of Mercy, if they so wish. That said, there is now a moral imperative on all concerned to construct an acceptable final resolution to the pardons issue by embracing the Spirit of the New Zealand Pardons Act set out below:

The Spirit of The New Zealand Pardons Act

The purpose of the New Zealand Pardons Act was not to overturn the original courts martial verdicts, but to remove in so far as practicable, the dishonour that the execution of her five soldiers brought to those soldiers and their families;
New Zealand now remembers their service and sacrifice with pride and sorrow whenever New Zealand commemorates those who died in war, and in the service of peace;
New Zealand has restored the memory of their 5 executed soldiers through noting in its official records and, in particular, on the personal file of the soldier, the pardon granted to each NZ soldier and its effect; and notified the Commonwealth War Graves Commission the pardon granted to the soldier by the Act;
The New Zealand Government has taken such other steps as, in its opinion, are reasonable or desirable to restore the memory of the soldiers granted pardons by this Act such as presenting WW1 medals to each soldier's relative.
This action by the New Zealand Parliament was welcomed by the families of the 5 NZ soldiers executed and has brought to them a final closure which heretofore had not been possible.

NZ Prime Minister Press Release (10 April 2000)
New Zealand Government announces pardons for Great War soldiers - Rt Hon Helen Clark

(12 Oct 2006): House of Lords Pronounce Agreement on Conditional Pardons Amendment

Peter Mulvany
Co-ordinator
Shot at Dawn Campaign Irl

Postscript

The Conclusion of the Shot at Dawn Campaign Irl Effort

The passing into British law of the PARDONS FOR SERVICEMEN EXECUTED FOR DISCIPLINARY OFFENCES: RECOGNITION AS VICTIMS OF FIRST WORLD WAR on Wednesday 8th November 2006 meets the objective of the Shot at Dawn Campaign Irl, in that, the amendment is a political mechanism which allows for restrospective pardons in world war one execution cases with an extra safeguard (the amendment will not affect the Royal Prerogative of Mercy) giving families the right to petition for the Royal Prerogative of Mercy, if they so wish. It should be noted that the NEW ZEALAND PARDON FOR SOLDIERS OF THE GREAT WAR ACT 2000 and Mr Justice Burnton’s opinion ¹ in the Farr case (May 2005), set both the political and legal parameters for future British action on the pardons issue. While this amendment is flawed, we believe, that it goes some way towards meeting the NZ pardons Act, which was primarily introduced to remove in so far as practible the stigma of dishonour attached to the executions of New Zealand soldiers and which also did not quash the conviction or sentence of their executed.

Despite the fact that this British pardon will not overturn the original verdicts or sentence we are satisfied taking into account DES BROWN'S STATEMENT OF CLARIFICATION ON THE 18TH SEPTEMBER 2006 together with the Minister’s concluding remarks during the COMMONS DEBATE - 7TH NOVEMBER 2006, that the intention of the pardon is to remove the dishonour of the execution and that it stands as a recognition that execution was not a fate that the servicemen deserved. This will conclude the Irish campaign effort. The SHOT AT DAWN CAMPAIGN IRL, would like to take this opportunity to commend the moral courage of DEFENCE SECRETARY, THE RT HON DES BROWN MP for his positive action on the WW1 pardons issue. We would also like to express our gratitude to the MINISTER FOR FOREIGN AFFAIRS MR DERMOT AHERN TD and his staff in Iveagh House for their enduring support for our efforts. There have been many organisations, politicians of different hues, councils, trades unions, THE MEDIA and particularly the ordinary man and woman in the street throughout Ireland and further afield who supported the Irish Shot at Dawn Campaign over the years and who are now entitled to share in the collective credit. On behalf of our families we thank you all.

1 In an application in May of 2005, Mr Justice Stanley Burnton found that there was 'room for argument' that he (Private Harry Farr) had been wrongly refused a conditional pardon. However Mr Justice Burnton also declared inter alia that the family of Private Farr lacked the legal grounds for a free pardon......thereby ruling out the *free pardon/full pardon option in a leading case which many observers believe to be one of the most deserving of a free pardon/full pardon. Significantly, Mr Justice Burnton's opinion effectively raised the legal bar by setting a precedent insofar as future applications for pardons in world war one execution cases would only be dealth with on the basis of the 'room for argument' principle via the conditional pardon route...legally capping future British political outcomes to the pardons issue. Consequently, the legal limitations of the 'room for argument' principle via the conditional pardon route first enunciated by Mr Justice Burnton in the Farr case in May 2005, are now reflected in the 2006 British Pardons Amendment. *A free pardon/full pardon is understood to mean a pardon not encumbered by any expressly stated constraint or weighted legal, parliamentary or royal impediment narrowing its scope or effect.

Re an Irish Pardon for Irish born British soldiers Shot at Dawn: On the pretext that such a measure would be persuasive in encouraging a British Government to look more sympathetically at the pardons issue it was suggested during the campaign particularly by Andrew MacKinlay MP and some individuals in the UK associated with the British Shot at Dawn Pardons Campaign, that the Irish Government should independently proceed and pardon all our Irish born executed British soldiers irrespective of any British determination on the matter, effectively calling for an Irish panacea to a British dilemma prior to any final adjudication in the Farr case and significantly without consulting with the Irish campaign effort ignoring our concerns. Those that mooted such a course of action should note the following. Constitutional obstacles and political sensitivities would have dictated that any pardon an Irish Government might have considered would only have effected those Irish born in the Republic of Ireland, would have excluded those who were born in Northern Ireland, would not have effected the soldiers courts martial file it being held by the Ministry of Defence outside Irish jurisdiction, and taking into account historical concerns would ultimately have been divisive. Such an Irish pardon is, and was, never worth a penny candle, and if introduced would have needlessly jeopardized the interests of our Irish families during a very sensitive time in the Irish Shot at Dawn Campaign. It is to their inestimable credit that the Irish Government took the advice of the Shot at Dawn Campaign Irl resisted that pressure and disregarded those UK representations on behalf of the British Shot at Dawn Pardons Campaign, a decision later vindicated by the introduction of the 2006 British Pardons Amendment.

Major Exhibition Dublin: Soldiers and Chiefs: The Irish at War at Home and Abroad, 1550-2001. SS Ardmore exhibit now on display

Note: Founded on the 27^th June 2002 The Shot at Dawn Campaign Irl co-ordinated by the Irish Seamen's Relatives Association (1939-46) is an independent Irish based group who successfully campaigned to persuade the British Government to grant pardons to 26 Irish born British soldiers in particular and 275 other ranks in the British Army who were executed during world war one for various military offences which ceased in 1929 to be punishable by death:

Since 2005, one individual from Northern Ireland located in the UK, has continually represented himself to the general media et al, as a relative of Private Bernard McGeehan, thereby adroitly attaching himself on the back of the British Shot at Dawn Pardons Campaign and by default attaching himself via the back door with the independent Shot at Dawn Campaign Ireland effort, to the detriment of our Irish based support. Despite conveying our concerns, todate, this person has not proved to our satisfaction his relationship to any of the 26 Irish Shot at Dawn. Consequently, we must advise caution in dealing with this source.

We wish to state that the Shot at Dawn Campaign Irl is not linked with any UK grouping styling itself as the Shot at Dawn Campaign, Shot at Dawn Pardons Campaign, Shot at Dawn Wales or Wales Shot at Dawn.

A book entitled Forgotten Soldiers: The Irishmen Shot at Dawn was launched in Belfast on Thursday the 25th October 2007. The Shot at Dawn Campaign Irl is not involved or linked in anyway with this publication. An extract from Walker's book reproduced in the Belfast Telegraph states inter alia that Peter Mulvany had recently established the Irish branch of the Shot at Dawn group. The Shot at Dawn Campaign Irl co-ordinated by the Irish Seamen's Relatives Association (1939-46) is an independent Irish based group and not part or an adjunct of the British Campaign. To link the Irish SAD group with the UK end in this way is perverse and untrue.

Webpages updated: Monday 25^thAugust 2008 :

Forgotten Soldiers/ Book Review