LEGAL REVIEW – NOT REWRITING HISTORY!
Natural justice and trial by due process, independent of Parliament and Government is an essential aspect of a democratic society. This was the case in 1902 as it is in 2010.
My legal work and the petition lodged with the British Crown is not about altering historical facts. However, it is about due process, legal review and the investigation of claims that Morant, Handcock and Witton were not investigated, tried and sentenced according to the law of 1902.
The facts of this case, including their admission to shooting Boers are that the accused’s actions must be judged against the following:
- They were volunteers, recruited by and served under British military command. The war against the Boers was ruthless and had to adapt to tactics of an enemy which did not respect conventional military tactics, not a signatory to any protocols of war and the treatment of prisoners of war, including the Hague Convention. Customary law of the time recognised retaliation as a means of fighting a ruthless enemy that used guerrilla tactics.
- The accused believed they and other units fighting under British military command were given instructions to “give no quarter” and to shoot prisoners caught wearing British uniforms or who fought while displaying the ‘white’ flag of surrender.
- The accused were aware of reprisals by other British units, particularly irregular units and acted according to the orders that they believed in good faith they had been given and were under an obligation to obey.
- The accused were aware of atrocities by the enemy against British soldiers.
- Given no caution by military command of harsh actions taken and reported (condonation – excusing the offence should have been applied at their trials).
- Operated under a chain of command that gave contradictory instructions on fighting Boers.
- Morant given a dangerous mission to perform after being suspected of a serious offence, again condonation should have been applied).
- The accused, once arrested were kept in solitary confinement for three months, denied contact with each other, and denied visits from other personnel, including the military chaplain.
- Denied details of the investigation conducted at times in the absence of the accused.
- The accused given no opportunity to seek legal advice and be represented, to conduct their own inquiries and arrange defence witnesses, or to cross examine those who gave evidence.
- The accused given no time to consult legal counsel and prepare a defence from the time of their arrest in October 1901.
- Not permitted to contact their relatives and / or representatives of the Australian Government who might seek clemency on their behalf.
- Denied access to a key witness to condonation (excusing the offence) in Col. Hall, their superior officer.
- Not pardoned for condonation by Major Lenehan and Colonel Hall.
- Placed on duty under arms twice during the trial, but not pardoned for condonation (performing a duty of honour while facing a serious charge)
- Not provided with a trial member drawn from the accused’s unit or another auxiliary unit.
- Denied a proper direction of the court by the judge advocate on issues including obedience to superior orders, evidence of provocation, evidence of the accused’s limited military service, their status as volunteers, their ignorance of military law, sentencing principles, admissibility and relevance of evidence of reprisals by other soldiers and the law of reprisal / retribution as a defence, the significance of a recommendation for mercy, mitigating circumstances and character evidence, and issues including sufficient time and resources to prepare a defence.
- Restricted in their rights to a fair trial according to Military law and trial procedures of 1902.
- Only one penalty should have been applied to multiple charges of murder, thereby creating a prejudice against a fair trial.
- Not advised that they, the accused could be tried separately if so wished.
- Denied the provision of a complete and detailed record of the trial proceedings to the Secretary for State for review by the Judge Advocate General.
- Denied mitigation of their sentences in accordance with the pleas for mercy made by the courts martial.
- Not informed of the verdicts and sentences within a reasonable time so they could seek legal advice about an appeal for clemency to the King.
- The accused and their counsel, Major Thomas denied access to Lord Kitchener to seek a ‘stay’ in carrying out the sentences so they could construct appeal against the convictions and sentences.
- Denied the opportunity to exhaust all lawful avenues of appeal for mercy, including seeking the assistance of the Australian Government and their relatives to petition the King for clemency.
- The apparent bias of Lord Kitchener in alleging that Morant and Handcock has been involved in the killing of more than 20 Boers. This allegation was false and reflected Kitchener’s partiality in favour of confirming death sentences while not giving sufficient weight to the courts recommendations for mercy
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Jim Unkles
Copyright © James Unkles 2010