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A mistake no lawyer should have made

A mistake no lawyer should have made


The lessons of a case from 1917 are as relevant now as they were 100 years ago, writes David Hewitt

During the Great War, men who didn’t want to fight often went before special tribunals, asking to be made exempt from service. Some of those cases ended up in the Central Tribunal, but although that was the final authority on matters of this kind, it didn’t always do justice by the men concerned.

The Central Tribunal sat in Westminster and was chaired by the fourth Marquess of Salisbury, and I have seen a case in which it made a mistake. The result was that a man was put in harm’s way who shouldn’t have been.

Lord Salisbury held his judicial post between March 1916 and October 1917, and he was both preceded and succeeded by other peers of the realm. A distinguished statesman, he had been a soldier and a member of the cabinet. He was not, however, a lawyer.

In fact, only three of the Westminster tribunal’s 16 members were lawyers. They were Sir Francis Gore, and Evan Charteris and George Talbot, both of whom would be knighted subsequently. Sir Francis had been a recorder, and then, for many years, the solicitor to the board of Inland Revenue, while Mr Charteris had practised at the parliamentary Bar, served in the army, and been a writer. Mr Talbot had also been a barrister, as well as the chancellor of three Anglican dioceses and a member of a royal commission.

A hawker?

My case concerned a man named Joseph, who came from Thornton, a small town near Blackpool. Like many men there, Joseph worked on the land, and he told a committee of councillors in the town that he was a market gardener. They accepted what he said, and because his work was essential to the war effort, they gave him an exemption from military service.

Subsequently, however, there was an appeal by the military, and when Joseph’s case reached Westminster, his exemption was taken away. The Central Tribunal decided that, despite what he had said and the councillors had found, Joseph was not a market gardener at all, but merely a ‘hawker’ of fruit and veg.

The tribunal members who made that decision included Sir Francis and the future Sir George, and in no time at all, Joseph was on his way to the Western front. This caused anger in Thornton, where the councillors suspected the Westminster tribunal had been influenced by evidence they hadn’t seen.

The councillors decided they must assert themselves, and for close to three months during the summer of 1917, not a single appeal was heard in Thornton. They began to sit again only after they received a mysterious visitor.

William Pritchard Elias was of solid stock. The son of a successful brewer on Anglesey, he had been schooled in languages and the classics and had graduated from Oxford University. Having qualified as a solicitor, he practised on the North Wales coast before taking up a position with the Local Government Board, the body responsible for scrutinising the actions of local councils throughout the land. By 1917, Elias was the general inspector for the North Western Poor Law District, and it fell to him to deal with the Thornton strike.

A vote of thanks

The surviving records don’t tell us what happened when the government inspector met the angry councillors. All we know is that he received a vote of thanks and they promptly returned to their judicial duties. But that can’t absolve the Central Tribunal from blame.

For what it’s worth, I think the Thornton councillors were right. I think there was new evidence and that it came from a representative of the military. It was evidence Joseph never got to see and that he certainly wasn’t able to challenge.

A lawyer shouldn’t make a mistake like that. That is certainly true now, when the demands of disclosure are so much greater than they were, but it was also the case in 1917. It was even the case under rules the Central Tribunal had drawn up for itself. At one of its earliest meetings, the tribunal decided that where evidence about a man was insufficient, it had the power to ‘require opportunity to be given to [him] to make further representations’. In failing to tell Joseph what had been said about him, the tribunal breached its own procedures.

The Central Tribunal wasn’t blind to its mistake. The records show that in the light of the Thornton strike, and even if only privately, Lord Salisbury and his colleagues said again that men should be shown new evidence that was relevant to their appeals.

But despite that, despite the tribunal’s acknowledgement and the elegant memorandum in which it was recorded, nothing was done in Westminster to call Joseph home. He would die in action, scrambling across open ground close to the River Somme, during the last, frenzied weeks of the war intended to end them all.

David Hewitt is a tribunal judge and the author of a book about this case, Joseph, 1917