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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.


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.


Conspiracy law, class and society Part 3

The second half of the nineteenth-century saw the struggle for Irish independence manifested in Fenianism, a movement which originated with the Irish Republican Brotherhood, a secret society formed by Irish emigres in the United States. Membership of the Brotherhood involved taking an oath to overthrow the English government of Ireland by violent means. It thus amounted, in itself, to a criminal conspiracy without any action being taken in furtherance of the oath. Not surprisingly, the judges held that ‘the Fenian conspiracy’ was itself a criminal association, and often the only question for juries was whether the accused had expressed support for the movement’s aims. By 1867, there were estimated to be 80,000 Fenians supported by numbers of Irish American officers who had fought in the American Civil War.
In March 1867, the Fenian-inspired Dublin rebellion led to twelve deaths and a number of conspiracy trials, including that of McCafferty which marked a clear extension of the law. McCafferty was charged with treason, and in particular with levying war and attempting to depose the queen. It was proved that he had been a member of the Directory of the Fenian conspiracy which had organised the rebellion during February 1867. McCafferty was arrested 23 February. Two weeks later the Fenians rose up in Dublin, allegedly as a direct result of the Directory’s plans. Mr Justice George held that McCafferty’s responsibility for the acts of the rebels did not cease on his arrest, since the Dublin insurrection was a substantive act done in furtherance of the conspiracy, in pursuance of commands given by the accused or by others for whom he was responsible. Evidence of the events of 5 March (the date of the uprising) was admissible against him. The case is stated by the 1979 edition of Archbold to be an example of the rule that the acts and declarations of any of the alleged conspirators done in furtherance of their common design may be given in evidence against any other conspirator.
The international nature of Fenianism was illustrated by the trial of Meany who was charged with treason felony. Some of the allegedly treasonable acts supporting the indictment were conspiracies against the king. Although the venue of the offence was Dublin, where the trial took place, no act of conspiracy was alleged within the venue: the Crown accepted that Meany had been in the United States at all relevant times. Evidence was given of the Fenian uprising in Dublin and of Meany’s supportive activities in America. Mr Justice Fitzgerald held that Meany was responsible for the acts of his co-conspirators – their acts were his, because they were in law his agents, and this satisfied the common law rule that an offence must be proved where the venue is laid.
The acts of conspiracy in the county and city of Dublin [said his lordship] are to be treated as the acts of the defendants; though his imagining was abroad, yet when he acts by his brother conspirators in the county, the moment he becomes amenable he may be tried, and I cannot think the defendant’s presence in the county necessary.
In legal terms, perhaps the most significant of the Fenian cases is Mulcahy, still cited by Archbold as a leading authority on the definition of conspiracy. Mulcahy and nineteen others were convicted of treason felony, having compassed to depose the queen by conspiring to make war and to aid the objects of the Fenian conspiracy. Mr Justice Willes confirmed that a conspiracy was an overt act of treason, explaining that the numbers of persons involved caused danger to the state:
…it seems a reduction to absurdity that procuring a single stand of arms should be a sufficient overt act to make the disloyal design indictable, and that conspiring with a thousand men to enlist should not.
Further:
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act or to do a lawful act by unlawful means. When two agree to carry it into effect, the very plot is an act in itself, and the acts f each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or the use of criminal means. And so far as proof goes, conspiracy is generally a matter of inference…
This definition, based on the Hawkins doctrine, helped to give authenticity to Hawkins’ views and remains essentially accurate as a statement of the law despite the limited reforms of the Criminal Law Act 1977. Cases like Mulcahy, concerned with treason felony rather than conspiracy, in which members of political organisations were prosecuted against a background of violent revolution, gave substance to vague common law doctrines which were eventually to gain acceptance and citation in successive editions of criminal law textbooks.
The Treason Felony Act was taken a stage further in Davitt and Wilson where it was held that supplying arms to the Fenians was a sufficient overt act of conspiracy for liability under the Act. Davitt was sentenced to fifteen years of imprisonment: after his release he founded the Irish National Land League, of which Parnell was to become President.
The last of the great Fenian trials was that of Deasy who, with five others, was charged with conspiracy to levy war against the Queen, to subvert and destroy the constitution and government of the United Kingdom, and to blow up ‘divers public buildings unknown’. The basis of the case against Deasy was that he had been found in possession of bomb-making materials and letters which linked him with two of the co-accused. A search of their lodgings unearthed firearms and explosive substances. Dalton, the fourth accused, had been seen taking notes outside the Houses of Parliament and had been in possession of documents linking him with the Fenians. All were convicted and imprisoned for life. The four-fold nature of the prosecution’s case – evidence of political beliefs, association, literature and explosive substances – reveals a pattern which has been repeated in a number of modern conspiracy trials with political overtones, most notably that of the Angry Brigade.
Later in the nineteenth-century, Charles Parnell MP assumed the leadership of the nationalist movement through the Irish National Land League, which aimed to improve the condition of rural tenants by reforming the land tenure system. In 1881 Parnell and four other leaders of the League were charged with conspiracy for their activities in persuading tenants to refuse to pay rent and to retake possession of their land by force if they were evicted. The jury refused to convict, but during the trial certain statements were made by the Bench which are still referred to by Archbold. Mr Justice Barry pointed out that there must be in conspiracy ‘considerable vagueness and uncertainty, which in many respects is contrary to our law, and I agree that it should be administered with very great care.’
Mr Justice Fitzgerald, having accepted the political nature of the trial and the function of conspiracy as a ‘catch-all’ offence, said that conspiracy was divisible into three heads. First, an agreement to obtain an end criminal in itself; second, to obtain a lawful object by unlawful means; and, third, a plot to injure some third party or class, although the wrong if inflicted by a single individual would not be a crime. His lordship also recalled
…a remarkable case at Cork, as singular and remarkable case as I ever met with. It was a case in which two persons had been connected with the American service in the late (civil war0. One was a captain of cavalry in the southern side, and the other a captain on the northern side. One was a native of this country, the other a native born of America. They had been opposed to each other during the war: they had never seen each other. They had been arrested when they arrived at Queenstown. The one had come to take command of a brigade of Fenian cavalry, and had brought with him as his whole equipment a saddle, a pair of spurs and two long pistols. The other was returning to Ireland but he was alleged to be a party to the Fenian conspiracy. They were put upon trial in the same dock, upon the same indictment, and the first time they saw each other was when they stood face to face in the dock. I mention this case as illustrating that the charge of conspiracy may be well-founded even though the parties never saw each other.


Conspiracy law, class and society Part 2

Nineteenth-Century Cases
An early example is Forbes. This involved a plot, not to overthrow the government or to cause an insurrection, but to insult the Duke of Wellington. The defendants were charged with conspiring to riotously assemble at the Theatre Royal, Dublin, and to hiss, insult and assault the Marquis of Wellesley, Lord Lieutenant of Ireland. Allegedly, the accused did then and there ‘with force of arms throw, fling and cast at the said Lord Lieutenant…divers pieces of wood and copper and divers glass bottles.’ The Attorney-General, prosecuting, devoted most of his talents to keeping the case from being laughed out of court. He stressed that the case was vital to the political interests of Ireland: ‘I should blush for our country, were it necessary to state that a deliberate insult to the King’s representative…is no light or trivial offence.’ His argument did not convince the jury, who failed to agree on a verdict. The accused were discharged.
In 1800 the Act of Union, passed by the English Parliament, had unified the legislatures of Ireland and England by abolishing the Irish Parliament and providing for Irish parliamentary representation at Westminster. During the first half of the nineteenth-century, the central demand of Irish nationalists was the repeal of this statute. The Repeal Party was led by Daniel O’Connell, a middle-class lawyer who had, in 1835, been offered the post of Master of the Rolls in Ireland. By 1843, with the rapid growth of his party as economic conditions worsened, his public meetings were banned and he was charged with seditious conspiracy.
The indictment against O’Connell and five of his followers was written on a roll of paper one hundred yards long. It alleged a multitude of conspiracies to do seditious acts. The bulk of the Crown’s evidence consisted of extracts from meetings, speeches and newspaper articles – a pattern which was to occur throughout the nineteenth-century and right up to the present day. In summing up, Chief Justice Tindal told the jury that the accused need not have done any act – ‘…the gist of the offence is the bare engagement and association to break the law.’
In legal terms, the significance of O’Connell’s trial was that another authority was added to the list of precedents, still cited in Archbold, supporting the rule that liability for conspiracy may be founded merely on proof that the accused entered into an agreement, even though the object of the agreement was never carried out. In political terms, O’Connell’s conviction and imprisonment meant the end of the Repeal Party as an effective force.
During 1846 and 1847, the Irish potato crop failed. The resulting famine caused immense social and economic changes. Almost half a million people are estimated to have died of starvation and disease: two million emigrated and the number of agricultural smallholders decreased by fifty percent. Against this background, a new revolutionary group – the Young Ireland movement – organised Irish Nationalists into a system of ‘confederate clubs’. The Young Irelanders were essentially propagandists who developed a romantic view of Irish cultural nationalism through their newspapers. There is evidence that they cooperated with the Chartists on the English mainland, a phenomenon described by E.P. Thompson as ‘the confluence of sophisticated political radicalism with a more primitive and excitable revolutionism.’
The movement’s leaders travelled to revolutionary Paris where they prepared for the ‘cabbage-garden revolution’ – an abortive rising at Kilkenny where a provisional government was declared. The English government reacted by suspending habeas corpus and by passing the Treason Felony Act. O’Brien and Meagher, two leading Young Irelanders, were convicted and transported in the first treason felony trial. O’Doherty, proprietor of the Irish Tribune, was indicted for treason felony and tried three times for compassing to depose the queen through his newspaper. The first two juries disagreed: the third convicted and he was transported for ten years.


Conspiracy law, class and society Part 1

Conspiracy Law, Class and Society Part 1
Treason, Treason Felony and Sedition
Nineteenth-century Irish conspiracy cases cannot be considered in isolation from treason, treason felony and sedition. These three offences, classified by current authors as ‘Offences against the State’ or ‘Offences against the Crown and Government’, form the kernel of English political law and, despite their lack of use during the twentieth-century, are the heavy artillery of the penal system. By their very nature they stand against the arguments of those who assert that England has no political offences. In the context of nineteenth-century Ireland, conspiracies against the State were held to amount to overt acts of treason or sedition, and the development of conspiracy law was closely connected with the changing role of these substantive crimes.
i. Treason
Treason, as breach of allegiance to the overlord, was the most serious crime known to the feudal system. In 1351 the Statute of Treasons provided that the common law of treason comprised, inter alia, compassing or imagining (i.e. planning) the death of the sovereign and being adherent to the king’s enemies within the realm. It was held by the courts at an early date that such compassing or imagining must be proved by some ‘overt act’ and that what sort of conduct amounted to an overt act was a question of law for the judges to decide. During the disturbances of the nineteenth-century, both in Ireland and on the mainland, the courts treated the activities of radical movements as treasonable conspiracies. Many of the conspiracy cases cited in Archbold, the leading criminal law and procedure textbook, were decided on the issue of whether the alleged combination was an overt act for the purposes of treason. The crucial significance of this, certainly from the prisoners’ point of view, was that the penalty for treason was, and remains, death. The offence is now almost obsolete – the last trial was that of Joyce – but it remains available to prosecutors who are from time to time urged by politicians to resurrect it.
ii. Treason Felony
Treason Felony originated in 1848 with the Treason Felony Act, passed because ‘the disturbances consequent upon the Continental revolutions of that year were considered to require new legislation.’ The Statute attempted to codify five hundred years of judicial interpretation of the Statute of Treasons. It did not set out to abolish treason itself, but it did provide an alternative to a charge which, if proved, inevitably led to a death sentence – a result which could make juries reluctant to convict. The 1848 Act made unlawful all deliberate expression, by overt act, of an intention to depose of the king, incite invasion of the realm, levy war against the king, or constrain either House of Parliament to change its policy. As with treason, conspiracy was held to be a sufficient ‘overt act’: a bare agreement to commit a treasonable act amounted to treason felony.
iii. Sedition
In 1883 Stephen wrote:
The application of conspiracy to political and especially seditious offences is comparatively modern…it is difficult to say precisely at what period the use of organised voluntary associations for the purpose of attaining political objects first became a marked feature of English life, it is certain that it received a great accession of importance, to say the least, when associations began to be formed for the purpose of procuring changes in the constitution of Parliament and other institutions of the country by constitutional means…in the present day the law as to seditious conspiracy is of greater practical importance than the law of seditious libel. Political combinations are so common, and may become so powerful, that it seems necessary that a serious counterpoise should be provided to the exorbitant influence which in particular circumstances they are capable of exercising.
Sedition is a common law misdemeanour which has never been defined. Essentially, the offence is the publication of words with a seditious intention. The courts have interpreted ‘seditious intention’ to include an intention to excite discontent or dissatisfaction, to excite ill-will between different classes of the sovereign’s subjects, to create public disturbance or civil war, to bring into hatred or contempt the sovereign or government, or the laws or constitution of the realm, to incite unlawful associations or assemblies, insurrections or breaches of the peace, or to use any for of physical force in any public matter connected with the state. The extreme vagueness, coupled with the elasticity of conspiracy charges, indeed provided a ‘serious counterpoise’, as Stephen states, to developing Irish nationalist groups.


Workplace stress: the legal essentials; Part 10

Workplace Stress Part 10
Reasonable foreseeability
Reasonable conduct by employer
Ramwell v Tesco Stores plc (2000) HSB 289: 23, Manchester county court
R was employed by Tesco as a checkout controller. In 1992, as the result of a restructuring exercise, she was demoted and a new manager was appointed to supervise her. This caused her to suffer from nervous exhaustion and in 1994 she took early ill-health retirement. R had serious domestic and personal problems. Tesco was unaware of this. She claimed compensation from Tesco, alleging that:
• Tesco had been negligent
• It had breached her contract of employment by failing to provide her with a safe system of employment
• It should have provided her with better occupational healthcare
• The new manager had made her life a complete misery.
The decision of the county court was as follows:
• The claim should be dismissed
• The judge accepted Tesco’s evidence that R would have found fault with anyone who was appointed as a new manager
• Tesco had known of R’s grievances and had done everything which it could reasonably do to help
• Tesco could not have reasonably foreseen that R would develop a psychiatric illness as a result of her problems at work. It was unaware of her personal problems
• Tesco had displayed reasonable conduct in dealing with R over the restructuring. Its managers were reasonable, sympathetic and tolerant throughout.
Foreseeability
Excessive workload
Mather v British Telecommunications plc (2001) SLT 325, Scottish Outer House
M claimed that she had suffered injury to her mental health because of stress at work. She claimed that her employers were both directly liable and vicariously liable for the acts of her manager. M was unable to work after April 4, 1994, and resigned on September 23, 1994. She started proceedings on August 25, 1997. The claim included allegations that she had been subjected to substantial pressure at work relating to organisational changes. She and colleagues had repeatedly complained of an excessive workload, lack of training in a new administrative system and technology, and hostility and harassment by her manager. She had consulted the employers’ welfare officer early in 1994. Her employers ought to have known that setting impossible deadlines and failing to provide adequate training and support would lead to stress levels which could result in injury. They knew that she suffered from insomnia. She also claimed that the way in which she had been treated after April 5 had materially contributed to her injury.
On behalf of the employers it was argued that the action was time-barred.
The Scottish court ruled that it could not be said in advance of inquiry that M’s injuries had all been sustained by April 4. There was material which could found a foreseeable risk of injury of a psychiatric nature.
Foreseeability
Remote risk
Gillespie v The Commonwealth of Australia (1991) 105 FLR 196, Australian Federal Court
G, an administrative officer employed by an Australian government department, was posted to Venezuela. He contracted an anxiety state and resigned on grounds of ill-health.
G sought compensation from his employers for breach of contract and negligence. He claimed that his mental illness had been caused by the employers’ failure to warn him about conditions in Venezuela and failure to protect him from those conditions.
The question for the court was whether G’s illness should have been foreseen, and if so, whether reasonable steps were taken to minimise or avoid the risk of illness. The following factors were considered:
• G had requested a posting to Venezuela
• He had been assessed as in good health and with an ability to adjust
• The environment in Venezuela was aggressive, strange and hostile.
At first instance, the judge found as follows:
• G had not shown that there were steps which his employers should reasonably have taken to prevent risk of injury
• It had not been foreseeable that G was particularly vulnerable to psychiatric damage
• Although it was foreseeable that a person working in a strange and hostile environment was at risk of a mental breakdown, that risk was remote
• Additional information about conditions in Venezuela would not have deterred G from taking up the position or usefully prepared him
• His employers did not know that G was psychologically vulnerable
• G’s claim failed.
On appeal, the appeal was dismissed. The judge’s findings were upheld.