Archive for November, 2019

Conspiracy law, class and society Part 9

The Hain Case

On 21 August 1972, Peter Hain, who six months earlier had attacked the use of ‘political’ conspiracy charges, was convicted of conspiring to disrupt a tennis match. The facts of the Hain affair may appear to fit into the framework of cases during the 1970s with a political overtone, but it is not really an example of the prosecutors’ obsession with conspiracy charges, because neither the police nor the Director of Public Prosecutions were interested in indicting Hain for his anti-apartheid activities. Hain is one of the few cases where the origins of the decision to use conspiracy can be traced: the prosecution was brought at the instigation of Freedom Under Law Limited, an organisation partly funded by white South Africans. It alleged that Hain had conspired with persons unknown to obtain a lawful object by unlawful means, that is, interfering with the lawful rights of persons to watch a Davis Cup tennis match against South Africa, by running onto the court and distributing leaflets. Hain was, in effect, subjected to a ‘blanket’ indictment in which lawyers could distinguish 147 different ‘unlawful activities’, including an allegation worded in almost exactly the same way as an offence under the Conspiracy and Protection of Property Act 1875, intended to deal with unruly trade unionists, as follows: ‘watching and besetting places where members of the team happened to be, and following members of the team from place to place’.

Hain was not, of course, the only person who had demonstrated against South African sports tours, nor was he the only identifiable one. His public image made him a suitable scapegoat and ensured maximum publicity for the political organisation which took him to court. Judge Gillis fulfilled the prosecutors’ expectations by refusing to accept defense submissions that tours by South African teams were not in the public interest because they would strain race relations in England. He held that the issue of ‘public interest’ meant ‘something of importance to citizens interested in the maintenance of law and order.’ Telling Hain that any conviction for conspiracy was a serious matter, Gillis fined him £200 and saved the South African subscribers their money by ordering that costs should be paid from public funds.

One significance of Hain’s case is its difference from another private prosecution brought in Bristol during 1975. David Southwell, a voluntary social worker, had been assaulted and unlawfully evicted from his flat by a group of men who included a prominent local lawyer. Neither the local authority nor the police would handle his complaint, so Southwell brought his own conspiracy prosecution, unaided by wealthy racists. He appeared in person at the committal hearings, where he established a prima facie case against the accused, but was represented by counsel at the Crown Court trial. The accused changed their plea to guilty at the last moment, possibly to avoid the embarrassing publicity which cross-examination might bring. Judge Ewart James fined them a total of £50 for five offences including conspiracy to evict, conspiracy to effect forcible entry and conspiracy to trespass. It is difficult to resist the conclusion that the seriousness of conspiracy charges seems to depend, at least so far as private prosecutions are concerned, on the public image of the accused and the influence of the prosecutor.

Conspiracy law, class and society Part 8: 20th Century dissidents

Twentieth-Century Dissidents

We do not put people on trial in this country for their political views

(Judge Alan King-Hamilton, Persons Unknown trial, December 1979)

In 1920 the Communist party of Great Britain was founded. Five years later, following a police raid on party headquarters in King Street, ten leading members of the party including Harry Pollitt and Wal Hannington were charged with seditious conspiracy and with conspiracy to incite breaches of the Incitement to Mutiny Act 1797 The Director of Public Prosecutions had authorised their prosecution, which was based on the contents of books, pamphlets and documents seized during the raid. The Crown placed particular emphasis on the Workers Weekly, which as an organ of the party had urged troops not to help the government in the event of a General Strike. The essence of the prosecution’s case was that communism was in itself a seditious conspiracy because it sought class war, the seduction of the forces of the Crown from their allegiance and the overthrow of the government by force.

Mr Justice Swift ruled that, as a matter of law, the Communist Party was an illegal organisation, upon which instructions from Moscow were binding, and that the sole question for the jury was whether the defendants had intended to foment civil war. All the accused were convicted after a jury retirement of twenty minutes. Before pronouncing sentence, Swift offered not to take away their liberty if they undertook to have no further association with the Communist Party and not to engage in political activities similar to those with which they had been charged. None accepted this offer: they were given twelve months in prison. The case had a number of unusual features. It is one of the very rare instances of a twentieth-century sedition trial. It took place at a time when ‘political’ conspiracy cases were not in fashion with prosecutors, despite the fact of an impending General Strike. Perhaps the trial may best be understood by its results, which were most useful for the government: the leadership of the Communist Party was removed from the political and industrial scene by means of the common law at a time which was crucial for the preparation of the climax of the struggle between trade unionists and employers, the general strike.

More recently, activities in support of the Campaign for Nuclear Disarmament have been considered sufficiently serious for conspiracy charges to be brought. In December 1960 the Committee of One Hundred held a sit-down protest at the Royal Air Force Station, Wethersfield. Six of the Committee were later prosecuted for conspiring to incite others to commit a breach of the Official Secrets Act 1911, for a purpose prejudicial to the safety or interests of the state, to enter RAF Wethersfield. Section 1 of the Act, allegedly the object of the conspiracy, makes it an offence if a person ‘approaches, inspects, passes over, or is in the neighbourhood of, or enters any prohibited place’. The section is clearly aimed at espionage and was rushed through Parliament after a pre-First World War spy scare. Much of the evidence against the six was given by a Special Branch officer who had infiltrated the Committee’s headquarters and taken note of their plans for the demonstration.

The defendants sought to argue that, far from being prejudicial to the safety of the state, their actions in attempting to persuade the government to abandon nuclear weapons were beneficial to the national interest. The Attorney-General, appearing in person, convinced the court that it was for the government of the day to decide what was in the public interest: discussion of this topic was irrelevant. After their conviction the judge gave the six a choice between imprisonment an assuring his that they were completely misguided and that they would give up their campaign of civil disobedience. Just as the Communist accused had done 40 years earlier, all six chose the former: five of them received eighteen-month sentences and the sixth, Helen Allegranza, was given twelve months. Their appeals were later dismissed by the House of Lords on the ground that, ‘where the Secretary of State had declared places to be prohibited, or that interference therewith would be useful to an enemy, the accused was not entitled to say that his purpose was not prejudicial to the State- the Crown alone was entitled to decide the disposition and order of the armed forces.’ Once again common law conspiracy had successfully removed the leadership of a radical movement.

Conspiracy law, class and society

The most recent Irish republican cases to be cited as precedents for English purposes are those of Coughlan (Joseph) and Coughlan (Martin). In the first, both Coughlans had been convicted of conspiracy to cause explosions after the trial judge had directed the jury to acquit both or convict both, applying the common law rule that conspiracy can only be committed by two or more persons. On appeal it was held that this was a correct direction and that no injustice had been done. Second, in Coughlan (Martin), the ground of appeal was autrefois convict – Coughlan had been tried twice for separate sub-conspiracies which might have been part of the same main agreement, and he argued that he had been tried twice for the same offence. Dismissing his appeal, the Court of Appeal stated that the sub-conspiracies could, as a matter of law, be tried separately, and that an accused who pleads autrefois convict must prove that he has already been convicted of the offence with which he is charged. Thus the Irish trials continue to contribute to English law.

The Irish cases help to clear up another problem of analysis in relation to the historical development o conspiracy. This is the fact that, from an examination of Archbold, it appears that there is no chronological consistency in the growth of conspiracy law, but rather two distinct phases of intense judicial activity. Almost two-thirds of the cases currently cited in Archbold date from before 1920: the great majority of the remainder were decided after 1960. In an Irish context, the reasons for this are clear. By 1920, English courts had effectively ceased to have jurisdiction over Ireland, and one can hardly expect the Law Reports to be full of Irish cases. The second great phase of development started in the 1960s with DPP v Shaw, climbing to a peak of prosecutorial obsession in the 1970s, in parallel with the Ulster crisis.

As Boyle, Hadden and Hillyard comment:

In all cases…the main focus of the legal system is likely to change when the existing state is threatened either by external attack or internal subversion. In these new and usually temporary circumstances the legal system is likely to be openly used by those in power to suppress internal opposition, more or less regardless of the values which the legal system is thought to embody in more stable times.

We might comment that in Ireland, so far as conspiracy law is concerned, these ‘temporary circumstances’ have lasted for at least two centuries.