R v Allen

CourtKing's Bench Division (Ireland)
Judgment Date24 February 1921
Date24 February 1921
Rex v. Allen.

K. B. Div.

Martial Law - Rebellion - Warfare of a guerilla character - Offence not punishable capitally under ordinary law - Sentence of death by military Court - No jurisdiction in Civil Courts to intervene.

The Civil Courts have no jurisdiction durante bello to interfere with the decision of a military Court sitting in a martial law area, even where a capital sentence has been pronounced, and is about to be executed, for an offence not punishable capitally under the ordinary criminal law.

Motions on Notice.

In pursuance of leave granted by the Divisional Court to the defendant to serve Notice of Motion on the President of the Military Court, and the Confirming Authority, and upon General Sir Nevil Macready, General Officer Commanding-in-Chief in Ireland, for an order to set aside, quash, and prohibit the proceedings and sentence of the Military Court passed on John Allen, the following notices, dated the 9th and 10th February, 1921, respectively, were served by the solicitor for the said John Allen on the Chief Crown Solicitor for Ireland, the Commander-in-Chief of His Majesty's Forces in Ireland, and on the President and Members of the Military Court before which the said John Allen was tried, and the Confirming Authority of the said Court:—

"Take notice that by leave of the Court Counsel on behalf of John Allen, a prisoner in Victoria Barracks, Cork, will, at 11 a.m., on Friday next, the 11th day of February, 1921, apply to the Court for an order to quash the proceedings at the trial of the said John Allen, at Victoria Barracks, Cork, on the 7th day of February, 1921, and the order made at the said trial on the said date, whereby a sentence of death was imposed on the said John Allen, on the ground that the said proceedings and order were illegal, and made without and in excess of jurisdiction, and on the ground that the tribunal had no authority to impose a death sentence, or order the said John Allen to be sentenced to death, for the offences for which he was tried, which application will be grounded on the affidavit of Denis Boudren, solicitor for the said John Allen, filed this day, the documents in the said affidavit referred to, the nature of the case, and the reasons to be offered."

"Take notice that upon the hearing of the application of which notice has been served upon you for a writ of certiorari on behalf of John Allen, an application will also be made to this honourable Court for a writ of prohibition, to be directed to Sir Nevil Macready, the Commander of the Forces in Ireland, Confirming Military Authority in this case, prohibiting him from confirming or permitting the sentence in this case being carried out, and for a writ of habeas corpus to be directed to the Governor of the Military Detention Camp, Victoria Barracks, Cork, or such other person in whose custody the said John Allen now is, to bring up the body of the said John Allen, to be dealt with in due form of law as to the Court may seem meet and just, which application will be made upon the same grounds as the application for a writ of certiorari, and on the ground that the said sentence is contrary to law, and the detention of the said John Allen under said sentence is unlawful, and the said application will be grounded upon the affidavit already filed herein, the documents in said affidavit referred to, the nature of the case, and the reasons to be offered."

The following facts and matters were set forth in an affidavit of Mr. Denis Boudren, solicitor for the accused, who deposed that—

"1. On the 19th day of January, 1921, the said John Allen was arrested near the town of Tipperary by military for being in possession of a revolver, some ammunition, and a book entitled 'Night Fighting.' Some time later the said John Allen was removed to Victoria Barracks, Cork, in military custody, where he is still detained.

2. I beg to refer to the charge sheet and summary of evidence, and to Army Form W. 3996, served on the accused, and to a copy of the legal submission of Counsel for the accused, on which documents, respectively marked with the letters 'A,' 'B,' 'C,' and 'D,' I have endorsed my name previous to swearing this affidavit.

3. On the 7th February inst., the said John Allen was charged before a Field General Court-martial at Victoria Barracks, Cork, with the following offences: (a) committing an offence in that he near Tipperary, in the County of Tipperary, in Ireland, on the 19th January, 1921, was improperly in possession of arms, viz., one revolver; (b) committing an offence in that he near Tipperary, in the County of Tipperary, In Ireland, on the 19th January, 1921, was improperly in possession of ammunition, viz., sixteen rounds of revolver ammunition; (c) committing an offence in that he near Tipperary, in the County of Tipperary, in Ireland, on the 19th January, 1921, was improperly in possession of a document prejudicial to the restoration of order in Ireland, viz., a book purporting to be an official publication of the Irish Republican Army entitled 'Night Fighting.'

On the said 7th day of February instant the said John Allen was tried by four military officers at Victoria Barracks, Cork, with being guilty of the said offences. At the said trial counsel for the accused submitted that the proclamation relied on by the prosecution in the case was invalid in so far as it purported to give the Court power to impose any sentence on the accused other than a sentence authorized by the Common or Statute Law for the offence charged. And that the Crown had no power to create by a mere proclamation a tribunal which should have power to impose a sentence not so authorized, and that accused was not a person subject to Military Law. Counsel for the accused handed to the President of the Court his submission in writing, and same was attached to the record of the proceedings.

At the termination of the said proceedings an orderly of the Court handed to the accused Army Form W. 3996, signed by the President of the Court. The said Army Form notified the accused he had been found guilty of the aforesaid charges, and that the Court had passed a sentence of death upon him, subject to the findings being confirmed by the proper authority. I am informed and believe that said sentence of death is to be carried out on Tuesday next, the 15th instant.

The charge sheet set out the three offences as above, was signed by the Major-General Commanding the 6th Division, and stated that the accused was "to be tried by Military Court."

The death sentence was in the following form—Army Form W. 3996:—

A. F. W. 3996.

Instructions for the Guidance of Courts-martial where a Sentence of Death has been passed.

To John Allen, Bank Place, Tipperary.

The Court have found you guilty of the following charges:—Being in improper possession of a revolver and sixteen rounds of ammunition, being in improper possession of a book entitled "Night Fighting"; but not guilty of the following charges:

The Court have passed a sentence of death upon you.

The Court have made no recommendation to mercy.

You should clearly understand:—

(i) That the finding or findings and sentence are not valid until confirmed by the proper authority.

(ii) That the authority having power to confirm the finding or findings and sentence may withhold confirmation of the finding or findings; or may withhold confirmation of the sentence; or may mitigate, commute, or remit the sentence; or may send the finding or findings and sentence back to the Court for revision.

If you do not clearly understand the foregoing, you should request to see an officer, who will fully explain the matter to you.

Cork. Place.

7th February, 1921. Date.

The following affidavit, sworn by the Right Honourable Sir Cecil Frederick Nevil Macready, g.c.m.g., k.c.b., General Headquarters, Irish Command, Parkgate Street, Dublin, General Commanding-in-Chief the Forces in Ireland, was, filed on behalf of the Crown:—

1. I am the General Commanding-in-Chief His Majesty's Forces in Ireland, and the facts hereinafter stated are within my own knowledge, save as where herein otherwise it appears.

2. On and prior to the 1st day of July, 1920, and since said date to the present time a state of open rebellion has been and is in existence in, amongst other places, the County of Tipperary, North Riding, and the County of Tipperary, South Riding, the City and County of Cork and adjoining districts, such state of rebellion amounting to actual warfare of a guerilla character.

3. Most of the police barracks in the districts referred to have been destroyed or attacked, and in some cases attacked and injured more than once; many of the police have been killed or wounded in these attacks; ambushes have been prepared by night and day against His Majesty's soldiers and police, and in carrying out these attacks and ambushes the members of the rebel organizations have used bombs, rifles, shot guns, and revolvers, and large supplies of petrol for purposes of arson. Numbers of His Majesty's soldiers and police have been attacked, and have sustained many casualties, entailing loss of lives and serious injuries. His Majesty's mails have been continually raided, trains have been repeatedly held up, and Government offices have been attacked throughout the country.

4. The aforesaid acts, and many others of a similar nature, have been done by a force known as the Irish Republican Army or Irish Volunteers, who have been continuously engaged in armed rebellion. The said rebel forces are organized as a trained and disciplined military force, under a general scheme modelled on the former organization of the British Army, divided up into brigades, battalions, and companies. The chiefs of the said rebel organization issue military orders, have a general headquarters, and are continuously engaged in levyings guerilla warfare against the forces of the Crown. The scheme of the said...

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