Archive for October, 2019

Conspiracy law, class and society Part 6

 In November 1974 21 people were killed in the Birmingham bomb outrages. Following these murders, the Prevention of Terrorism (Temporary Provisions) Act was swiftly passed through Parliament. One aspect of this statute can be related directly to the situation in Ireland during the 1880s. The 1974 Statute in effect created a new statutory conspiracy by introducing the concept of ‘proscribed organisations’, defined as including associations or combinations of persons which had been declared unlawful by the Secretary of State. The only organisation to have been given this treatment is the Irish Republican Army. The situation is thus similar to that of the nineteenth-century when Fenianism itself was in illegal conspiracy at common law. Further, he have seen that bomb outrages in English cities led to the introduction of one of the first statutory conspiracies – to cause explosions – in the Explosive Substances Act 1883. Irish Republicanism continued to affect the development of English conspiracy law and English statutes.

The case of the Luton Three, documented by Robertson in Reluctant Judas, illustrates some of the more unsavoury aspects of the interrelation between conspiracy law and Northern Ireland. In the Law Reports, the case appears as R v Mealey and Sheridan. The appellants and another Irishman, Campbell, all members of Luton Sinn Fein and known as the Luton Three, had been convicted of conspiracy to rob with the object of furthering Irish Republican interests and sentenced to ten years’ imprisonment. They appealed on the ground that Kenneth Lennon, who had associated with them and helped to plan the robbery, was a paid police spy. The Court of Appeal held that this evidence was not such as to affect the outcome of the trial: the police were entitled to use infiltration as a weapon and common sense indicated that anyone who infiltrated a suspect society must show a certain enthusiasm for its activities if he were to maintain his cover. Even if Lennon had actually instigated the plot, this would not have helped Mealey and Sheridan because, in the words of Lord Chief Justice Widgery:

…it is our judgement quite clearly established that the so-called defence of entrapment, which finds some place in the law of the United States of America, finds on place in our law here…if a crime is brought about by the activities of someone who can be described as an agent provocateur, although they may be an important matter in regard to sentence, it does not affect the question of guilty or not guilty.

The second case involving Kenneth Lennon was that of O’Brien. He, Lennon, and persons unknown had been charged with conspiracy to effect the escape of Mealey and Sheridan from Winson Green Prison, Birmingham. The evidence against O’Brien was that he had been seen taking a photograph of the prison and that when his house was searched, the police found ‘a variety of literature of a kind which might be associated with those who have extremist views on the Irish problem’. Lennon was acquitted: O’Brien was convicted ad received a three-year sentence. In April 1974, while O’Brien was waiting for his appeal to be heard, Lennon made a statement to the National Council for Civil Liberties, alleging that the Special Branch had blackmailed him into becoming an agent provocateur, and that the O’Brien trial had been rigged to ensure his (Lennon’s) acquittal. Two days later, Lennon was shot dead by persons unknown. O’Brien’s appeal was allowed on the technical ground that Lennon’s acquittal on the conspiracy charge removed the only named party to the conspiracy, and there was insufficient evidence to justify O’Brien’s conviction. The Lord Chief Justice’s views on conspiracy, very different from those which he expressed in Mealey and Sheridan, were as follows:

…we have come to the conclusion that the evidence…was not enough to entitle the jury to draw the inference that not only had O’Brien made a plan himself, not only perhaps had he discussed this plan with others, but that he had agreed with others that the plan should be carried out if it proved practicable to do it. It is, we think, pertinent to point out that, although the crime of conspiracy is an extremely important crime in the English judicial system, care must be taken to see that it does not extend beyond its legitimate and fair objectives; and whereas in the present case the overt act of photographing the prison is not in itself a crime at all, the Courts must be astute to see that it is not turned into the crime of conspiracy by the inference of an agreement to do it with an unlawful purpose unless that agreement is properly established in accordance with the general principles upon which this court acts.

Conspiracy law, class and society Part 5

Irish Cases since 1969

A detailed examination of the relationship between criminal law and Northern Ireland is outside the scope of this work. If one accepts, however, that during the 1970s there was a resurgence in conspiracy law amounting, at one stage, almost to a prosecutorial obsession with conspiracy charges, such a resurgence must be seen, in part, in the context of Northern Ireland. Certainly, a number of cases involving Irish nationalists found their way into the Law Reports for the first time since the nineteenth-century. Apart from these narrowly ‘legal’ decisions, many conspiracy trials since 1969 have resulted in Irish Republicans serving long sentences in English prisons.

Northern Ireland is, legally, part of the United Kingdom. It has never been subject to the same laws as the mainland, and many of the generalisations applied to British institutions are falsified by the position in the six counties of Ulster. In 1922 the Civil Authorities (Special Powers) Act (Northern Ireland) provided for indefinite internment without trial and suspension of freedom of the press and habeus corpus. Other characteristics of the ‘special regime’ have included an armed police force, trial without jury, the acknowledgement of categories of political prisoners and a series of allegations of torture, assassination and the use of agents provocateurs. The breakdown of law and order in Northern Ireland has, from time to time, spilled over onto the mainland, resulting in a crop of conspiracy trials.

In 1971 a canister of CS gas was thrown onto the floor of the House of Commons as a protest against the use of gas by law enforcement against agencies in Belfast. Roche, who was responsible, and Bowes Egan, an Irish political activist who was nowhere near the Commons at the time, were charged with conspiracy to effect a public mischief. They were acquitted.

In 1972 the Hackney Arms Trial, involving charges against Irishmen of conspiring to effect a public mischief, saw the spectacle of part-time Special Branch agents being cross-examined as to their role in the conspiracy, and the eventual withdrawal of all charges ‘to protect the identity of certain persons in the interests of their own personal safety’. The defendants were discharged after spending eight months in custody. Later in the same year, the Aldershot Bomb Trial revealed the absurdity which could result from inappropriate conspiracy charges. Following the deaths of seven people in an explosion at Aldershot, the accused were charged with murder, firearms and explosives offences, and conspiracy to effect a public mischief. The latter, presumably added in case the evidence on the substantive charges did not convince the jury, was thrown out. Its addition to the indictment had permitted the introduction of evidence of the accuseds’ political learnings – in particular, copies of Peking Review, Che Guevara’s Guerrilla Warfare, Connolly’s Labour in Irish History, the Selected Writings of Mao-Tse-Tung and Black Power by Stokely Carmichael were used to infer murderous intent. In the words of Robertson:

England does not have internment, but it does have a law of criminal conspiracy. Conspiracy charges subvert some of the most cherished precepts of English law and perhaps for that reason they are popular with police and prosecutors in trials with political overtones, because they make it easier to obtain a conviction through ‘guilt by association’. The prosecution can blacken a defendant’s character and arouse jury prejudice against him with evidence that would be inadmissible on all non-conspiracy charges.

Jacqueline Kaye, writing in 1973, reviewed four years of trials of persons for ‘crimes which arose from the disagreement with the British role in the six counties’. Of 30 such cases, more than half had involved conspiracy charges, ranging from conspiracies to purchase arms and to cause explosions, to agreements involving a breach of the peace. The conspiracy trials revealed a consistent pattern of massive security precautions, allegations of entrapment and provocation, and the use by the prosecution of political literature as evidence. The judicial attitude to this seems best summed up by Mr Justice Kilner-Brown:

Once one is involved in allegations of conspiracy, dealing with large quantities of arms, it seems to me to be highly relevant to that, evidence, if it is available, of membership of some organisation.

Conspiracy law, class and society Part 4

Twentieth-Century Cases

By 1916, Irish nationalism had declined to the same extent that Dublin was regarded as a provincial British city in the same way as Cardiff or Edinburgh. In April of that year, the main buildings in central Dublin were taken over by armed rebels under the command of James Connolly and Patrick Pearse. The rebels comprised elements of the Irish Citizen Army (a militant offshoot of the Irish Transport and General Workers’ Union) and the Irish Volunteers, descendants of the Fenian Irish Republican Brotherhood. During five days of fighting, over 1000 people were killed or seriously injured, After the rebellion had been crushed, fourteen of the leaders were summarily court-martialled and executed.

We have seen that the Irish conspiracy cases, developed as a reaction to waves of violent nationalism, made a permanent contribution to the English common law. Further, the common law itself displayed a flexibility beyond the limits acceptable in England when faced with nationalist movements which threatened English control over Ireland. This analysis stops short, however, at the 1916 Easter Rising, where the threat posed to the state was far more serious than by any of the abortive nineteenth-century risings. In the first place, England was at war, and the Irish rebels had collaborated with the Germans in return for the supply of arms. Second, a good part of the capital city of Ireland was in rebel hands. In these circumstances, it is irrelevant to refer to the flexibility of the common law or the function of the judiciary in controlling threats to the status quo. In effect, the rebels were simply eliminated with a minimum of legal formality. The façade of the liberal democratic state was dropped, and the imposition of criminal sanctions handed over to the military.

Paradoxically, it is now accepted by historians that this reaction to the rebellion (particularly the killing of James Connolly, who had been seriously wounded) so inflamed Irish opinion that the founding of the Free State in 1921 became inevitable. One might speculate that, if the English government had reacted with its traditional flexibility, using common law doctrines such as conspiracy to give a general aura of legitimacy to the punishment of the rebels, the independence of Southern Ireland might have been further postponed. In relation to events on the mainland, the analysis of the Easter Rising may provide a clue to the solution of one of the problems involved in setting out a coherent view of the history of conspiracy law – the fact that during the great emergencies of the twentieth-century, that law does not appear to have been employed.

The jurisdiction of English courts over Eire ended in 1933, when rights of appeal to the Judicial Committee of the Privy Council were removed from the Constitution. This did not mean that English judges would no longer concern themselves with Irish nationalism. The fact that the six counties of Ulster were excluded from the Home Rule Act of 1920, and remained part of the United Kingdom, meant that the history of conspiracy law and the history of Irish nationalism would continue to be linked.