Note VI
DUTY OF SOLDIERS CALLED UPON
TO DISPERSE AN UNLAWFUL ASSEMBLY
On 7th September 1893 Captain Barker and a small number of soldiers were placed in the Ackton Colliery, in order to defend it from the attack of a mob. A body of rioters armed with sticks and cudgels entered the colliery yard, and with threats demanded the withdrawal of the soldiers. The mob gradually increased, and broke the windows of the building in which the troops were stationed and threw stones at them. Attempts were made to burn the building, and timber was actually set on fire. The soldiers retreated, but were at last surrounded by a mob of 2000 persons. The crowd was called upon to disperse, and the Riot Act read. More stones were hurled at the troops, and it was necessary to protect the colliery. At last, before an hour from the reading of the Riot Act, and on the crowd refusing to disperse, Captain Barker gave orders to fire. The mob dispersed, but one or two bystanders were killed who were not taking an active part in the riot. Commissioners, including Lord Justice Bowen, afterwards Lord Bowen, were appointed to report on the conduct of the troops. The following passage from the report is an almost judicial statement of the law as to the duty of soldiers when called upon to disperse a mob:
We pass next to the consideration of the all-important question whether the conduct of the troops in firing on the crowd was justifiable; and it becomes essential, for the sake of dearness, to state succinctly what the law is which bears upon the subject. By the law of this country every one is bound to aid in the suppression of riotous assemblages. The degree of force, however, which may lawfully be used in their suppression depends on the nature of each riot, for the force used must always be moderated and proportioned to the circumstances of the case and to the end to be attained.
The taking of life can only be justified by the necessity for protecting persons or property against various forms of violent crime, or by the necessity of dispersing a riotous crowd which is dangerous unless dispersed, or in the case of persons whose conduct has become felonious through disobedience to the provisions of the Riot Act, and who resist the attempt to disperse or apprehend them. The riotous crowd at the Ackton Hall Colliery was one whose danger consisted in its manifest design violently to set fire and do serious damage to the colliery property, and in pursuit of that object to assault those upon the colliery premises. It was a crowd accordingly which threatened serious outrage, amounting to felony, to property and persons, and it became the duty of all peaceable subjects to assist in preventing this. The necessary prevention of such outrage on person and property justifies the guardians of the peace in the employment against a riotous crowd of even deadly weapons.
Officers and soldiers are under no special privileges and subject to no special responsibilities as regards this principle of the law. A soldier for the purpose of establishing civil order is only a citizen armed in a particular manner. He cannot because he is a soldier excuse himself if without necessity he takes human life. The duty of magistrates and peace officers to summon or to abstain from summoning the assistance of the military depends in like manner on the necessities of the case. A soldier can only act by using his arms. The weapons he carries are deadly. They cannot be employed at all without danger to life and limb, and in these days of improved rifles and perfected ammunition, without some risk of injuring distant and possibly innocent bystanders. To call for assistance against rioters from those who can only interpose under such grave conditions ought, of course, to be the last expedient of the civil authorities. But when the call for help is made, and a necessity for assistance from the military has arisen, to refuse such assistance is in law a misdemeanour.
The whole action of the military when once called in ought, from first to last, to be based on the principle of doing, and doing without fear, that which is absolutely necessary to prevent serious crime, and of exercising all care and skill with regard to what is done. No set of rules exists which governs every instance or defines beforehand every contingency that may arise. One salutary practice is that a magistrate should accompany the troops. The presence of a magistrate on such occasions, although not a legal obligation, is a matter of the highest importance. The military come, it may be, from a distance. They know nothing, probably, of the locality, or of the special circumstances. They find themselves introduced suddenly on a field of action, and they need the counsel of the local justice, who is presumably familiar with the details of the case. But, although the magistrate's presence is of the highest value and moment, his absence does not alter the duty of the soldier, nor ought it to paralyse his conduct, but only to render him doubly careful as to the proper steps to be taken. No officer is justified by English law in standing by and allowing felonious outrage to be committed merely because of a magistrate's absence.
The question whether, on any occasion, the moment has come for firing upon a mob of rioters, depends, as we have said, on the necessities of the case. Such firing, to be lawful, must, in the case of a riot like the present, be necessary to stop or prevent such serious and violent crime as we have alluded to; and it must be conducted without recklessness or negligence. When the need is clear, the soldier's duty is to fire with all reasonable caution, so as to produce no further injury than what is absolutely wanted for the purpose of protecting person and property. An order from the magistrate who is present is required by military regulations, and wisdom and discretion are entirely in favour of the observance of such a practice. But the order of the magistrate has at law no legal effect. Its presence does not justify the firing if the magistrate is wrong. Its absence does not excuse the officer for declining to fire when the necessity exists.
With the above doctrines of English law the Riot Act does not interfere. Its effect is only to make the failure of a crowd to disperse for a whole hour after the proclamation has been read a felony; and on this ground to afford a statutory justification for dispersing a felonious assemblage, even at the risk of taking life. In the case of the Ackton Hall Colliery, an hour had not elapsed after what is popularly called the reading of the Riot Act, before the military fired. No justification for their firing can therefore be rested on the provisions of the Riot Act itself, the further consideration of which may indeed be here dismissed from the case. But the fact that an hour had not expired since its reading did not incapacitate the troops from acting when outrage had to be prevented. All their common law duty as citizens and soldiers remained in full force. The justification of Captain Barker and his men must stand or fall entirely by the common law. Was what they did necessary, and no more than was necessary, to put a stop to or prevent felonious crime? In doing it, did they exercise all ordinary skill and caution, so as to do no more harm than could be reasonably avoided?
If these two conditions are made out, the fact that innocent people have suffered does not involve the troops in legal responsibility. A guilty ringleader who under such conditions is shot dead, dies by justifiable homicide. An innocent person killed under such conditions, where no negligence has occurred, dies by an accidental death. The legal reason is not that the innocent person has to thank himself for what has happened, for it is conceivable (though not often likely) that he may have been unconscious of any danger and innocent of all imprudence. The reason is that the soldier who fired has done nothing except what was his strict legal duty.
In measuring with the aid of subsequent evidence the exact necessities of the case as they existed at the time at Ackton Hall Colliery, we have formed a clear view that the troops were in a position of great embarrassment. The withdrawal of half their original force to Nostell Colliery had reduced them to so small a number as to render it difficult for them to defend the colliery premises effectively at nighttime. The crowd for some hours had been familiarised with their presence, and had grown defiant. All efforts at conciliation had failed. Darkness had meanwhile supervened, and it was difficult for Captain Barker to estimate the exact number of his assailants, or to what extent he was being surrounded and outflanked. Six or seven appeals had been made by the magistrate to the crowd. The Riot Act had been read without result. A charge had been made without avail. Much valuable colliery property was already blazing, and the troops were with difficulty keeping at bay a mob armed with sticks and bludgeons, which was refusing to disperse, pressing where it could into the colliery premises, stoning the fire-engine on its arrival, and keeping up volleys of missiles. To prevent the colliery from being overrun and themselves surrounded, it was essential for them to remain as close as possible to the Green Lane entrance. Otherwise, the rioters would, under cover of the darkness, have been able to enter in force. To withdraw from their position was, as we have already intimated, to abandon the colliery offices in the rear to arson and violence. To hold the position was not possible, except at the risk of the men being seriously hurt and their force crippled. Assaulted by missiles on all sides, we think that, in the events which had happened, Captain Barker and his troops had no alternative left but to fire, and it seems to us that Mr. Hartley was bound to require them to do so.
It cannot be expected that this view should be adopted by many of the crowd in Green Lane who were taking no active part in the riotous proceedings. Such persons had not, at the time, the means of judging of the danger in which the troops and the colliery stood. But no sympathy felt by us for the injured bystanders, no sense which we entertain of regret that, owing to the smallness of the military force at Featherstone and the prolonged absence of a magistrate, matters had drifted to such a pass, can blind us to the fact that, as things stood at the supreme moment when the soldiers fired, their action was necessary. We feel it right to express our sense of the steadiness and discipline of the soldiers in the circumstances. We can find no ground for any suggestion that the firing, if it was in fact necessary, was conducted with other than reasonable skill and care. The darkness rendered it impossible to take more precaution than had been already employed to discriminate between the lawless and the peaceable, and it is to be observed that even the first shots fired produced little or no effect upon the crowd in inducing them to withdraw. If our confusions on these points be, as we believe them to be, correct, it follows that the action of the troops was justified in law.
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