Thursday, 28 November 2019

And may the Lord have mercy on your soul — The Trial of Sir Roger Casement for High Treason


Before we begin, this is not about the facts of the case. Others have written about those at length. This article is about the procedure. Partly because the procedure in trials of that era was exceptionally florid; and partly because one aspect of the trial of Sir Roger [1] was unusual, viz. where it was held.

I am also not going to be talking about commas. Again, something for another day.

But first, a small amount of background.

Background

Sir Roger Casement was born in Dublin in 1864. After a fairly successful career in the Colonial and Foreign Offices, including writing an important and explosive report on abuses in the Belgian Congo, he left the public service in 1913. 

He then became involved in Irish nationalism. In 1914, he travelled to Germany to negotiate, as he saw it, on behalf of the Irish state with the German government. For the next couple of years he 'worked with' [2] the Germans to cause all sorts of nuisances. This isn't what got him on a High Treason charge, however.

In 1916, Germany offered (and the Crown averred that this was at Sir Roger's instigation) 20,000 guns for the Irish nationalists to use. It is disputed exactly how and why what happens next occurred, but something like it did. 

Sir Roger returned to Ireland in a submarine, probably ahead of the guns. In any event, the Royal Navy intercepted them. He was then captured in Ireland on or about 21st April 1916, and after various things, transferred to London to stand trial. 

And that's where we will pick up. The Wikipedia article on him is good if you want more details, though a bit thin on the ground. There are, however, a lot of biographies to choose from.

A Trial at Bar

At the time in England, a person accused of a felony, or of treason [3] was normally to be tried at the local Assizes, which were broadly speaking organised on a county-by-county basis [4]. Specifically, the offence was to be tried in the same county [5] as it was committed, the intention being that the jury of one's peers would then be a local jury too, which was seen as a necessity. The Central Criminal Court Act 1856 [6] muddies this somewhat by allowing the Court of Queen's Bench [7] to remove a trial from any Assize to the Central Criminal Court at the Old Bailey. As we will see, this does not avail us here, though.

Where, therefore, should an offence committed outside of any county be tried? Now, this could naturally only apply to the extraterritorial offences, the classic of which in English law is murder [8]. Whether or not High Treason was extraterritorial was in issue in the trial, but we can park that for now.

As an alternative to the Assizes, it was possible for a defendant to be tried before the Court of King's Bench itself. By the time of Sir Roger's trial, this had been amalgamated with the other Common Law courts and the High Court of Chancery to form the High Court of Justice; but aside from a change in name to the King's Bench Division, little of importance changed. This was required in the case of an extraterritorial offence [9] [10], either by virtue of the Common Law, or the statute 35° Hen. VIII cap. 2 [11], or both.

A Trial at Bar looks, broadly, rather like a trial at the Assize. There is a jury, there are judges in their wigs, etc. The only notable procedural difference is that rather than a sole judge sitting to determine questions of law (the jury are the sole triers of fact as in any other criminal cause) there is a divisional court of three judges.

In Sir Roger's trial the three judges were The Right Honourable the Viscount Reading [12], the Lord Chief Justice of England [13], Mr. Justice Avory [14], and Mr. Justice Horridge [15]. The Lord Chief Justice was obviously senior, but both Avory and Horridge were among the most senior King's Bench Division justices of the day too.

For completeness I note that Sir Roger was committed for trial by Bow Street Police Court after three days of examination in May [16].

So, we come to the start of the trial.

Oyez! Oyez!

The morning of Monday, 26th June 1916, at the Royal Courts of Justice. 
An Usher of the Court: 
Oyez. 
My Lords the King's Justices do strictly charge and command all manner of persons to keep silence, for they will now proceed to the pleas of the Crown and arraignment of prisoners upon their lives and deaths, and all those that are bound by recognisance to give evidence against any of the prisoner which shall be at the bar, let them come forth and give their evidence, or they will forfeit their recognisance. 
God save the King. [17]
Well that is quite an opening, isn't it. Not dissimilar from the standard opening for an Assize, although referring to the Bar, justices plural, and so on.

The King's Coroner [18] then put the indictment (not the Clerk of Assize as would be normal), thusly:
The King's Coroner: 
Sir Roger Casement, you stand indicted and charged on the presentment  of the grand jury with the following offence:— 
High Treason, by adhering to the King's enemies elsewhere than in the King's realm—to wit, in the Empire of Germany—contrary to the Treason Act, 1351, 25 Edward III., statute 5, chapter 2. 
The particulars of offence alleged in the indictment are that you, Sir Roger David Casement otherwise known as Sir Roger Casement, Knight, on the 1st day of December, 1914, and on divers other days thereafter, and between that day and the 21st April, 1916, being then—to wit, on the said several days—a British subject  and whilst on the said several an days open and public war was being prosecuted and carried on by the German Emperor and his subjects against our Lord the King and his subjects, then and on the said several days traitorously contriving and intending to aid and assist the said enemies of our Lord the King against our Lord the King and his subjects, did traitorously adhere to and aid and comfort the said enemies in parts beyond the seas without this realm of England—to wit, in the Empire of Germany. 
The overt acts of the said treason are as follows [...] [19]
[C1] I have omitted the six overt acts, at the time High Treason still had the peculiar requirement that at least two witnesses to each overt act be called, since they are very long and prolix.

King's Coroner

So, who is this "King's Coroner"? The full, modern, title is Registrar of Criminal Appeals [20], Master of the Crown Office [21], and Queen's Coroner and Attorney. At the time of Sir Roger's trial the office of Registrar of the Court of Criminal Appeal [22] was also held by the same person, as it happens.

The title coroner here has exactly nothing to do with coroners as we normally know them. Instead it simply means someone acting on behalf of the Crown. The office of coroner as we now know it descends from the Norman office of custos placitorum coronæ, an official charged in each county with protecting the Crown's revenues in criminal causes. Over time this morphed into inquests into deaths (and into Treasure Trove) and lost its other criminal purposes.

Not so in the Court of King's Bench; where the King's Coroner maintained responsibility for the 'Crown Side' of the Court together with the Master of the Crown Office [23]. The two offices were merged in 1892 (not by any legislative enactment, it seems, and certainly not by the Coroners Act 1892 passed that same year). 

The Crown Office element of things seems to have been originally concerned with criminal causes in King's Bench (mostly these concerned the county of Middlesex, which had no 'normal' Assize), whereas the Coroner bit seems to be more related to prerogative writs. Either way, at a trial at bar, the charges were put to Sir Roger by the King's Coroner.

During the trial, the incumbent King's Coroner was Leonard William Kershaw, later knighted in 1921.

(I appreciate this is a very unsatisfactory answer, but it is what it is)

How do you plead?

It is a standard moment in all trials, ever popularised by television, for the Clerk to ask the defendant to plead. And the King's Coroner did thusly,
Sir Roger David Casement, how saith you, do you plead  guilty or not guilty to the charge of High Treason?
And plea there did not follow. Instead Alexander Martin Sullivan, K.C. [24] rose to quash the indictment.

It was decided by their Lordships, however, that they would consider Mr. Sullivan's request after they had heard the evidence for the Crown [25]. Thus
The King's Coroner: 
Sir Roger David Casement, how saith you, do you plead  guilty or not guilty to the charge of High Treason? 
Sir Roger Casement: 
Not guilty. 
The King's Coroner: 
Sir Roger Casement, have you been served ten days at least since with a copy of the indictment, a list of the witnesses, and copies of the panel of the jury? 
Sir Roger Casement: 
I have. [26]
This question was made necessary by the Treason Act 1695 [27]. The sections in question have since been repealed, but it was provided by section 1 that the defendant should have a copy of the indictment and by section 7 a copy of the jury panel, ten days before the trial commenced. Hence this.

Impanelling the Jury

Sir Roger was then asked by the Chief Clerk [28] if he challenged any of the panel, 
The Chief Clerk of the Crown Office:
Prisoner at the bar, these good men that you shall now hear called and personally appear are the jurors who are to pass between our Sovereign Lord the King and you upon your trial of life and death; if therefore you will challenge them or any of them you must challenge them as they come to the book to be sworn, and before they are sworn, and you shall be heard.  
"pass between our Sovereign Lord the King and you upon your trial of life and death" has a certain gravitas to it, in my opinion.

No jurors were challenged (jury challenges in English law at the time are a topic well outwith this humble blog; though I suspect a contemporaneous Archbold will satisfy any curiosity), therefore the Chief Clerk swore the jury in, viz.
You shall well and truly try and true deliverance make between our Sovereign Lord the King and the prisoner at the bar whom shall have in charge, and a true verdict give according to the evidence. So help you God.
The Usher then again made the formal call for any witnesses to present themselves. This wasn't 'real' in the sense that the witnesses didn't have to answer immediately at this moment, but was a relic of centuries past when trials were reasonably short, and witnesses had to offer a recognisance to appear, and not appearing when called forfeiting their bond.
An Usher of the Court: 
If any one can inform my lords the King's Justices, or the King's Attorney-General, ere this inquest be now taken between our Sovereign Lord the King and the prisoner at the bar, of any treason, murder, felony, or misdemeanour committed or done by him, let them come .forth and shall be heard; for the prisoner stands at the bar upon his deliverance; and all others that are bound by recognisances to give evidence against the prisoner at the bar, come forth and give evidence, or else forfeit you your recognisances.
And, finally, the King's Coroner put the indictment to the jury, viz.
The King's Coroner: 
Gentlemen of the jury the prisoner stands indicted by the name of Sir Roger David Casement, and is charged with the following office:— 
[there follows the first part of the indictment as recounted above] 
The indictment sets out the overt acts that are alleged of that treason. Upon that indictment the prisoner hath been arraigned, and upon his arraignment he has pleaded that he is not guilty. Your charge therefore is to inquire whether he be guilty or not guilty upon that indictment and to hearken to the evidence. [29]
His Majesty's Attorney-General for England [30] then opened for the Crown.

The Trial

The trial then proceeded, which I will not bore you with. Once the Crown had concluded, Mr. Sullivan addressed the Court on the quashing of the indictment [31] at considerable length. An analysis of his arguments is a matter for another day.

The Lord Chief Justice [32] gave the principal judgement holding the indictment good, joined by Mr. Justice Avory [33] and Mr. Justice Horridge [34].

The Defence Case

Sir Roger did call any witnesses in his defence. He and Mr. Sullivan (and Mr. Sullivan's junior, Artemis Jones when Mr. Sullivan was indisposed [35] ) made statements to the jury.

Then the Attorney-General closed for the Crown. Now, why was he last?

At the time, the general rule was that if a defendant called witnesses and put in evidence, the Crown's attorney spoke last; but if the defendant did not his counsel had the last word. The idea being that there is a slight supposed advantage to speaking last. However, there was a now abolished privilege of His Majesty's Attorney-General [36] to speak last in either case. Which was exercised here.

His final words to the jury being:
My learned friend, Mr. Sullivan, said in the early period of his observations that he hoped this case would be heard by you with a fair and impartial mind. The Crown hopes nothing else. You have a duty to discharge as serious and in many ways as testing as the duties which are discharged by any other men serving the State in these bloody and critical days. 
If you should come to the conclusion that the Crown has proved its case, however painful the duty, it is one from which you cannot, and you dare not, shrink. I have discharged my responsibility in this case; do you discharge yours. [37] 
The Lord Chief Justice then opened his summing-up, the first part of which I think bears repeating, viz.
The Lord Chief Justice:
Gentlemen of the jury, this is a trial of supreme importance. 
The charge against the prisoner is the gravest known to the law. You have had the advantage, shared by us with you, of hearing the case presented to you by the Attorney-General, assisted by the Solicitor-General and other counsel, on behalf of the Crown. You have had the advantage also of hearing the defence in this case conducted by Mr. Sullivan until this morning [38] with the assistance of his juniors. There are some persons who, perhaps a little thoughtlessly, are inclined to rebel against the notion that a member of the English bar, or members of it, should be found to defend a prisoner on a charge of treason against the British State. 
I need not tell you I am sure, gentlemen, that if  any one has those thoughts in his mind he has but a poor conception of the high obligation and responsibility of the bar of England. It is the proud privilege of the bar of England that it is ready to come into Court and to defend a person accused, however grave the charge may be. In this case,  speaking for my learned brothers and myself, we are indebted to counsel for the defence for the assistance they have given us in the trial of this case; and I have no doubt you must feel equally indebted.
 His Lordship concluded [39]
Gentlemen, that really concludes the whole of the evidence in this case. I have already said to you all that I think it necessary to say upon the law.  I shall not repeat it.  I will conclude only by impressing upon you that if you have a reasonable doubt in the matter after considering the evidence it is your duty to acquit the prisoner. 
But if, after viewing all the facts and circumstances, the conviction is borne in upon you that this prisoner has committed the offence with which he is charged, then, gentlemen, it is your duty to return a verdict to that effect, and to take no regard of the consequences which must follow. 
Will you consider your verdict? 
Mr. Justice Avory: 
Gentlemen, if you want any of the exhibits that have been referred to you can have them by asking.
The jury retired at 2.53 p.m.

Their Deliberations 

The Lord Chief Justice: 
There is some request about a map. There is no map of Ireland that has been proved in the case except the one to which Colonel Gordon deposed. 
Mr. Bodkin: [40]
Except the one which is in pieces. 
The Lord Chief Justice:
The jury would like to see the original code found and an authentic specimen of the initials and signature of the prisoner. None such has been proved. The original code, of course, they can have. That we will send in to them. They also ask for an original copy of the circular posted at Limburg Camp, but I understand that was not proved.

Mr. Artemus Jones: 
No. 
The Attorney-General: 
I think there is a specimen of the signature and handwriting of the prisoner, the letter written when he received his knighthood, exhibit 32. 
The Lord Chief Justice: 
That is true. I think it is better not to put it in.  I think what they really want is the initials.  One sees why they may have been asking for it.  I think it better to treat it that there is no evidence of it and leave it there.  The original code, exhibit 18, shall be sent in, and also the map.
I include this exchange simply as an example of the care, despite the political issues in play, the jury and court were taking with the cause. Indeed,
At a later stage,
The Lord Chief Justice:
The jury have asked for a copy of the indictment, which we will send them, and they also ask for a copy of the evidence, but we do not propose to send that. 
The Attorney-General:
If your lordship pleases. 

The Verdict

The jury returned into Court at 3.48 p.m.
They had deliberated for fifty-five minutes. The King's Coroner then asked for their decision, viz.
The King's Coroner: 
Gentlemen of the jury will, you answer to your names? 
The names of the jury were called over. [41]
The King's Coroner:
Are you agreed upon your verdict?
The Foreman of the Jury:
We are.
The King's Coroner:
How say you; do you find the prisoner, Sir Roger David Casement, guilty or not guilty of the high treason where of he stands indicted? [42]
The Foreman of the Jury:
Guilty.
The King's Coroner:
You find Sir Roger David Casement guilty of high treason, and is that the verdict of you all?
The Foreman of the Jury:
Yes.
Convicted. It was the practice at the day — indeed the modern practice of presenting evidence in mitigation is simply an example of this — for the prisoner to be allowed to address the court before sentence was passed. Remember, there was only one sentence for High Treason.
The King's Coroner: 

Sir Roger David Casement, you stand convicted of high treason. What have you to say for yourself why the Court should not pass sentence and judgment [43] upon you to die according to law?
Sir Roger proceeded to read a statement [44]

Sentence

The judges will now have put on their black caps.

An Usher of the Court:  
Oyez. My lords, the King's Justices do strictly charge and command all manner of persons to keep silence whilst sentence of death is passing upon the prisoner at the bar, upon pain of imprisonment. 
The Lord Chief Justice: 
Sir Roger David Casement, you have been found guilty of treason, the gravest crime known to the law, and upon evidence which in our opinion is conclusive of guilt. 
Your crime was that of assisting the King's enemies, that is the Empire of Germany, during the terrible war in which we are engaged. 
The duty now devolves upon me of passing sentence upon you, and it is that you be taken hence to a lawful prison, and thence to a place of execution, and that you be there hanged by the neck until you be dead. And the Sheriffs of the Counties of London and Middlesex are, and each of them is, hereby charged with the execution of this judgment, and may the Lord have mercy on your soul. 
Mr. Justice Avory: 
Amen.
The reference to both the Sheriffs of London and Middlesex needs a short comment. For seven hundred years, between 1189 and 1889 (yes, exactly 700!), the two elected Sheriffs of London also had shrieval jurisdiction over Middlesex. In 1889, a High Sheriff of Middlesex began to be appointed. However, while the Royal Courts of Justice are in the City of Westminster; not London. Hence the dual reference. As it happens, Pentonville Prison where Sir Roger was ultimately executed was itself in Middlesex so the Sheriffs of London had very little involement here.

But that isn't quite the end of matters. For centuries, appeals in criminal causes in England had been virtually impossible. But in 1907 Parliament had created the Court of Criminal Appeal to provide a standard and effective route for appeals.

Before this, there had been a Court of Crown Causes Reserved established in 1848 by 11° & 12° Vict. cap. 78, but this had been limited to considering points of law referred by the trial judge at the Assize. Otherwise, the only 'appeals' in criminal causes were to try and persuade Parliament to overturn the decision or to appeal to the Crown for clemency. Sir Roger's case was the first treason appeal to be heard by the Court.

The Appeal

Sir Roger's appeal was heard by a court of five High Court Judges, viz. Mr. Justices Darling [45], Bray [46], Lawrence [47], Scruton [48], and Atkin [49]. A strong panel.

The Court of Criminal Appeal being a very new invention, it had little in the way of ceremony like that of the King's Bench Division.

Mr. Sullivan presented his case [50]; and Mr. Justice Darling, after their Lordships had retired, noted that they did not need to hear from the Attorney-General,
Mr. Justice Darling: 
We  will let you know if we desire to hear you, Mr. Attorney. 
Their lordships retired. 
On resuming,
Mr. Justice Darling:
We have no occasion to trouble you Mr. Attorney.
Mr. Justice Darling then gave the judgement of the court [51]. It should surprise no one that the Court of Criminal Appeal did not find for Sir Roger. 

The End

Sir Roger was executed on 3rd August 1916.

I hope this little tour through the procedural aspects of Sir Roger Casement's trial was interesting. Elsewhere one can find ample discussions of the legal arguments themselves, which I have tried to avoid.

Corrigenda

[C1] (spotted by me!) this sentence originally, incorrectly, read "I have omitted the six overt acts, at the time High Treason still had it's peculiar requirement that at least two overt acts be alleged and proven, since they are very long and prolix." Clearly my brain went on a journey there...

Colophon

I am indebted to George H. Knott's "The Trial of Sir Roger Casement", which as well as containing a lucid summary of proceedings, includes a full transcript of both the trial and the appeal. I commend it to anyone who's interest has been piqued by this article.

[1] Sir Roger Casement's titles were degraded by the King on 29th June 1916, but I will call him Sir Roger throughout because that's how he was referred to during the trial (plus I strongly object to titles of honour being forfeited for complicated moral reasons that are well outwith this article's scope)
[2] or was used by, or both, it doesn't really matter
[3] the traditional division of crimes into three types: treasons, felonies, and misdemeanours was still in effect at the time; and yes it was originally treasons plural since High and Petit Treason were originally distinguished; the latter being assimilated with the felony of murder in 1828 by 9° Geo. IV cap. 31
[4] with judges riding an organised circuit of counties, e.g. the 'Oxford Circuit' or the 'Chester Circuit'
[5] there are pages, and pages, and pages in old Archbolds on how to deal with cross-county crimes; which we shall ignore
[6] 19° & 20° Vict. cap. 16; sometimes the "Trial of Offences Act 1856" 
[7] by this time this was the King's Bench Division of the High Court of Justice
[8] It is still the case today that if a British Citizen commits murder abroad they may be tried in Her Majesty's courts in the United Kingdom notwithstanding the offence was not committed in any of Her Majesty's Dominions.
[9] It was also an option in the case of any felony, albeit at the discretion of the court, and was reserved for the most contentious and serious charges; and it is hinted in the authorities that the Attorney-General had the right to require a trial at bar in any High Treason cause. 
[10] There is a good discussion of this on about page xvi onwards of "The Trial of Sir Roger Casement" by George H. Knott; which I shall henceforth call Knott since we will be referring to it a lot. It's also very good and you should read it!
[11] "An Acte concerning the triall of Treasons committed out of the Kings Majestys Domnyons", which you will find on page 958 of volume 3 of Statutes of the Realm.
[12] As he then was. Lord Reading was later made Earl of Reading, and later still after a stint as Viceroy and Governor-General of India, Marquess of Reading.
[13] At the time, and this only recently changed with the Constitutional Reform Act 2005, the Lord Chief Justice was president of the King's Bench Division, having prior to amalgamation been Chief Justice of the Court of King's Bench.
[14] Sir Horace Edmund Avory, having received the customary knighthood on becoming a Justice of the High Court.
[15] Sir Thomas Gardner Horridge, on his retirement he was made a Privy Counsellor, normally the preserve of Pusine Justices of the Court of Appeal, and became the Right Honourable Sir Thomas Horridge.
[16] This not being quite the formality it is today, but nothing much turns on it.
[17] Knott, p. 1
[18] Nothing to do with those coroners, keep reading!
[19] ibid.
[20] They are also Registrar of the Court Martial Appeals Court
[21] No, not that Crown Office, nor that one either.
[22] Only merged with the Court of Appeal proper to form the Criminal Division thereof in 1966 by the Criminal Appeal Act 1966.
[23] Where there was also a Clerk of the Crown, distinct from the Clerk of the Crown in Chancery which still exists.
[24] at the time, Sullivan was also Second Sergeant-at-Law in Ireland; the Sergeants were an almost obsolete order of lawyers even more senior to the barristers and King's Counsel. In England they had already died out and the process was underway in Ireland, indeed, Sergeant Sullivan ended up being the final practising one, and thus the last member of the 'order of the coif'. I intent to blog about this in the future, so wait and see :-)
[25] nothing improper here, the quality of an indictment might be improved or harmed by the Crown's case and the judges wanted to see if it was
[26] Knott, p. 5
[27] 7° & 8° Will. III cap. 3; the original version can be found on page 6 of volume 7 of Statutes of the Realm.
[28] no relation to any other clerks of any other Crown Offices
[29] Knott, p. 6
[30] The Right Honourable Sir Frederick Edwin Smith, K.C., M.P., later made Earl of Birkenhead.
[31] Knott, p. 67.
[32] ibid., p. 127
[33] ibid., p. 130
[34] ibid., p. 133
[35] ibid., p. 156
[36] ibid., p. xxi
[37] ibid., p. 178
[38] This was the indisposition I alluded to above.
[39] ibid., p. 196
[40] This is Archibold Henry Bodkin, a Treasury Counsel and a Recorder at the time; in 1917 he was knighted, and in 1920 Sir Archibold was appointed Director of Public Prosecutions
[41] This, I believe was required to ensure the jury that heard the case and went out are the same jury that returned. As I understand it, it is no longer part of criminal procedure.
[42] Notice "of the High Treason"? Recall that we noted earlier that treason is a category, not a single offence.
[43] sic., any Americans reading this: you're wrong.
[44] Knott, p. 197 et seq.
[45] Sir Charles John Darling, senior pusine judge in the King's Bench Division at the time; he was made Privy Counsellor in 1917, and Lord Darling in 1924
[46] Sir Reginald More Bray
[47] Sir Alfred Tristram Lawrence, succeeded Lord Reading as Lord Chief Justice in 1921 and was made a Privy Counsellor and Lord Trevethin the same year
[48] The Right Honourable Sir Thomas Edward Scrutton; as he was a Lord Justice of Appeal in 1916 I think that Knott at p. 207 is incorrect to list him as Mr. Justice but absent evidence to the contrary I have kept it here
[49] Sir James Richard Atkin, FBA. Became a Lord Justice of Appeal and thus a Privy Counsellor in 1919; and a Lord of Appeal in Ordinary and thus the Lord Atkin in 1928.
[50] Knott, p. 208
[51] ibid., p. 280

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