"SCANDALOUS TRAVESTY OF JUDICIAL PROCEDURE"

Maoriland Worker, Volume 12, Issue 294, 18 October 1922, Page 13

"SCANDALOUS TRAVESTY OF JUDICIAL PROCEDURE"

Bernard SSiaw ©itthe Silencing of O'SiiOiyan and Dunn

Mr. George Bernard Shaw made an emphatic public pretest against the judicial refusal t o Joseph O'SulUvan and Reginald Dunn to make their appeal to the jury when clu&rged with the assassination of Field-Mar-shal Sir Henry Wilson.

The Judge refused to allow the prisoners to make their appeal on the ground that their appeal would be a political address justifying assassination, and he did not desire that appeal to gvt publicity. But it got publicity nevertheless —it has since been widely published in. Ireland. Mi*. Shaw's protest, however, is directed against this arbitrary and dangerous limitation >n the rights of accused persons. He srjys (the ."Manchester Guard-lan," 8/8/22, published his statement in full):

"It is impossible to allow Ike scandalous travesty oC judicial procedure by which Jospeh O'Suilivan and Reginald Dunn w-11 be hanged on Thursday morning .t o pjass without, a vehement protest. ' *

It would'be hard to cite an occasion on which it was more important for the education, of public op'nion that the case for constitutional methods as against direct action in its extreme ferm of political iassiassinaticn should be fully and impressively argued to ita inevitable conclusion.. -We have had enough of government by quixotic young men with revolvers versus hot-headed old men inflamed by "Morning Post. journalism.

Further, it was important that the constitutional party in Ireland should not be harassed and compromised by any violation of the strictest judicial spirit in dealing with, a capital case of Irish political crime. In the absence of a supernatural tribunal there was no practical escape from the scandal of a trial in which England was plaintiff, prosecuting counsel, judge, -and jury; but it was all fcht> more urgent that the legalities and constitutionalities should have been scrupulously observed. Otherwise it would, have been far better had the-accused been Idlled red-hand-ed by the spectators.

I do not thinic any responsible Eng-lish-mail-who understands the terms of thase propositions "will demur to ■them. They could have been applied all the more readily because there was not the slightest risk of a miscarriage of justice through any defect in the law or any technical loophole through wireh an-inpnious barrister could extricate his? clients.

Wliat actually happened? At the trial the judge lost his head so completely that he denied the prisoners their right—a right fundamental in trial by jury—to plead for a verdict of not guilty by justifying their action. The accused (to whom, by the way, lie alluded as "these people") at once very properly refused ito proceed with their defence, and depended on the Court of Appeal to" rescue them. They were accordingly found guilty by the jury and sentenced to death. The judge then said that he desired to siay a few words:- the usual prelude to a political speech. In the course of /.he few words he described the conduct of the prisoners as cowardly. As the prisoners had sacrificed the?r lives, given an extraordinary exIvrbitioa of military courage in resisting arrest, and showed remarkable dignity and self-possession in court, Clie state of raind which provoked so absurdly inappropriate an epistle can hardly te called judicial.

The Court of Appqal might have *et all that right without altering the final result. But the Court of Appeal vrent from bad to v/orso. Mr. Justice Shearman, at least, cannot be accused of levity. But what' are we to ;?ay t o Mr. Justice Branson, who said hat if a prisoner were allowed to -peak he offer the jurymeTi £1000; each not to convict him? Or to Mr ; " Justice Darling, who added that "the man might threaten the jury so that they might be afraid to convict hint"? If we take those frivolities seriously these two judges km v less about the law than the crudest J.P. But, of course, they know as well as I do that the*, legal remedy for the very serious* crime of. to corrupt or intimidate a jury is to commit the offender and punish him very severely after due trial-, not to gag men quite innocent of it lest they should commit It successfully. The Lord Cirief Justice might and should have rebuked these sallies, and restored judicial decorum. Unfortunately ho countenanced them. He took the view of Mr. Justice Shearman. He assumed the point at issue. The prisoners were guilty. Therefore to allow 'hem to justify their conduct was to allow them to justify guilt. The justification <,t gnUt acts as a propaganda of crime. To allow a court of law to be used for such a purpose would: be "subversive to all the found-

ations of justice." The Attorne?General need not, reply on so obvious a situation. Away with <the prisoners to the gallows! There is no remedy for this sort of thing but vijrilant and fearless criticism in. the press. The two prisoners, being young men and soldiers, were quite helpless. Had they been experienced demagogues like Mr. Pernberton Billing they could have shouted down Mr. Justice Shearman and forced him t c - consider whether he cfered silence them fey actual vioiunca. Had they know n something cf ihe law, like Mr. Horatio Bottom! ey, they would' have made political appeals to the jurybox a-nd the gallery to the fast extremity of irrelevance- -without being interrupted. Being ov.ly what they were—"these people"—they could Dot defend themselves, and their counsel was not prepared to, handle the Bench as it deserved.

The legal position was s'mple enougli, though it was net the normal position. In 539 criminal cases- out of 1000 the issue is really one of fact only. The verdict follows the fact because neither the prisoner nor anyone else defends the alleged act. When a professional thief is tr'ed for. pieU* ing a pocket his only chance-of escape is io deny the fact; ho does not dream of admitf./ng that he picked the pocket, and contending that he is not guilty because pocket-picking Is bmocent and laudable. But in the G£.se now under consideration ther-e was no question of the fact at issue at all; the two men had.deliberately, openly shot Sir Henry Wilson as-cer-tainly as Baton Square is in the south-west postal district. Their only possible defence was a justification of their action. And neither the judgie nor anyone else had the right to call (he defence a justification of murder until the jury had found, in spite of the defence, that they were guilty of murder. Ik) rule out a cJofouce l>eeause It might possibly bo successful (an impossibility in this instance) Is simply to rule cut all defence, whatever.

THE MURDER OF JAURES

In France, just before the war, thti the Socialist leader Jaures was killed precisely as Sir Henry Wilson was. killed. The assassin's defence was an appeal to the political sympathies of the jury. He was acquitted. During ths war an officer frankly killed ai man of -whom he "was jealous. He>' appealed as an outraged husband ta the domestic sympathies of the jury. He was acquitted. In neither case was there any question about the fact or the' wilfulness. In both cases de-? liberate homicide was justified. If a; fanatical' English Unionist were tq shoot Mr. De Valera or Mr. Collins tomorrow on English ground ho would be fully entitled to exhaust all the ■resources of patriotic casuistry in- an af|eaj to a British jury to ihid hira not guilty; and nobody in Ireland 01 America believes that <any English' judge would attempt to s'ience him. It is quite likely that the next time a prison warder shoots a prisoner try-* ing to escape a coroner's jury may: return a verdict of wilful murder. Will the warder be forbiddoa to srguo his ple,a of not guilty on the ground that nothing can justify k'lling' and that lulling must not. be justified in » court of law where the. judge in his 'next breath sentences the prisonei?, to be killed? If Mr. Justice She-art- ; man's angry dict a were, good in law, ihe could logically be silenced in court and hanged for wilful murder every time he sends a murderer to the gailows. There is no' way as far as I know,-.. In which tliis unfortunate incident can be remedied now. Even if the; men were retried by a fair tribunal with the strictest regard to their, rights it is as certain as fvnything human can be that the upshot would be the same as far as they are concerned. But such a retrial woulcf have- a very salutary effect on the! judicial Bench. A judicial mind .Ts a very, rare gift; and in England it is so incomprehensible that it is difficult' for anyone with a vest%e of it to obtain promotion in a profession which , is becoming more and more entangle/ in party politics.

But this gives an overwhelming Importance to the constitutional and legal checks on any personal or political abuse Of the great power neces-., sarily confided to them; and the present Is an occasion calling for & very; emphatic reminder that :he "fourth. Estate is not so ignorant of these checks, nor "as apathetic fa insisting on their scrupulous observance', atf ; the man in the street, who is so »pti" to forget that" ne may one day the man in the dock"