Alice Wheeldon and the attorney-general
John Jackson
April 2007

What are the proper boundaries between law and politics in a democratic society, especially in time of war or national emergency? Who champions the rule of law? And where does law enforcement fit in? These questions are frequently posed in modern Britain amid fears about the power and accountability of the state, and against the background of war in Iraq and the "war on terror". But they are not new. John Jackson excavates a little-known case from 1917 - a tragedy of political might dominating justice – to illustrate a dilemma that exposes the very foundations of democracy.

In March 1917 the British attorney-general, FE Smith, led the prosecution of Alice Wheeldon (a seller of second-hand clothes), two of her daughters (both schoolteachers) and her son-in-law (a lecturer in chemistry) for conspiracy to murder the prime minister, David Lloyd George. Allegedly a dart tipped with curare was to be fired at him from an airgun whilst he played golf.

Smith, determined to secure a conviction, described the defendants to the magistrates in the town of Derby, in England's east midlands, as "a gang of desperate persons poisoned by revolutionary doctrines and possessed of complete and unreasonable contempt for their country". After a show trial in London presided over by an openly hostile judge reflecting patriotic fervour the jury retired for a half hour and found Alice, one daughter and the son-in-law guilty. They were all sentenced to long terms of penal servitude.

There was silent scepticism in many quarters at the time and it emerged from the release of MI5 records eighty years later that the main evidence against the accused had resulted from entrapment and false statements by an agent with a record of both crime and diagnosed criminal insanity employed by the secret service. Alice and her family were not guilty of conspiracy to hurt, let alone kill, anyone.

Why was Smith so ruthless in his conduct of the prosecution - to the point of deliberately ignoring, even concealing (with the connivance of the director of public prosecutions) the suspect nature of the evidence? Alice and her daughters were politically active. They were militant suffragettes, outspoken feminist socialists, pacifists (angry about British rejection of peace overtures by Germany), friendly with Sinn Féiners and syndicalist shop-stewards and actively involved in networks helping conscientious objectors escape to Ireland and the United States. The son-in-law was similarly inclined. To a government worried by growing opposition to the war against Germany and the implications of revolutionary developments in Russia, they were "the enemy within" - unpatriotic, subversive dissidents with dangerous connections.

Their fate was a shocking example of what can happen when a government, determined to pursue "proper" policies in the national interest, gives its intelligence agencies free rein and tramples on the rights of individuals, particularly the rights to dissent, to freedom of expression and association and to fair trial. To Smith and his ministerial colleagues (and, sadly, the judiciary) what happened to Alice and her family was the consequence of dissent at a time of national emergency. They "deserved" what happened to them. There was no champion for the rule of law: its defeat was "collateral damage".

The black hole of justice
Writing of the case nine years later Smith, in a shamelessly partial (and in places untruthful) account, said that "it served to emphasise the unanimity of the nation to prosecute the war with the utmost vigour to its successful conclusion". Some of Smith's standpoint was echoed in recent remarks by another attorney-general, Philip Ruddock of Australia. With the horrors of the Bali bombing clearly in his mind he said "This is not war as conventionally understood. It's something worse. If people are waging war by using unconventional weapons to target civilian populations, you tie your hands behind your back by saying you must treat this as a normal breach of the law. We have an obligation to protect the safety and security of our populations. Law enforcement in its traditional sense does not protect our community."

Both attorneys-general were talking of law-enforcement as if it could, and should, be used as an instrument of government policy. They were on the same tack as a former British home secretary who suggested that the government and the judiciary should discuss how the law should be applied in the fight against terror.

The government of any country threatened by an attack, particularly covert attack, from within or without, on its integrity and security is faced with an appalling dilemma. To what do they give priority-collective security or individual rights? Where does the rule of law come in? It is a classic example of incompatibility between the interests of the collective "we" and the individual "I". An accommodation has to be reached. That requires judgment of where to "draw the line" and it is in the nature of every accommodation that something "gives" on both sides.

Ninety years on from the Wheeldon case those judgments are still being made by ministers, particularly the law officers, the home secretary and to some extent the lord chancellor, whose constitutional positions are much as they were. The Human Rights Act (1998) and the Constitutional Reform Act (2005) have given the judges greater independence from both government and parliament, and judicial bias resulting from government pressure is now less likely. But nothing structural is in place defining the constitutional position of ministers (no separation of powers, no check and balance), which makes a similar horror story less likely. In plain terms, what is to prevent the attorney-general (as a member of the government) in collusion with the prosecuting authorities and with the tacit support of the home secretary from deciding to suppress evidence in order to give the best chance of securing conviction of members of the "awkward squad"?

The public questions
The British constitution relied in 1917 on the decency of those in public office - ministers and officials, a free press and a watchful parliament. It still does. Then, as now, there are huge pressures to give absolute priority to national security. Failure to do so may result in electoral defeat. Objection to the Iraq war did not stem solely from protest against a policy which appeared inherently wrong: it stemmed also from a perception of a fear of the risk of terrorism.

Is it wise, or even fair, to leave ministers in that position? The argument that thought should be given to change so that additional judgement may be exercised by a body that respects inherently the culture of human rights and, therefore, admits of openness and accountability, and the needs of the rule of law is, to my mind, unanswerable.

How to achieve that in the light of recent events in the United Kingdom (which include publication of the present attorney-general's own views) invites consideration of many questions. These include:

• should the attorney-general and the solicitor-general be members of the government? Should their duty to give legal advice to government be transferred to the lord chancellor and his staff? Would it be better if, although nominated by government, their appointments were approved by parliament to which they would report, give legal advice and be accountable directly as "officers" of parliament?
• if the law officers continue to be members of the government, should the Crown Prosecution Service report to them?
• does the role of the judiciary in relation to constitutional matters need clarifying? Should that clarification include the creation of a separate constitutional court, which could include lay members, to deal with all constitutional disputes including alleged breaches by the state of rights secured by the Human Rights Act (or a separate bill of rights if we ever have one)?
• who should control the intelligence agencies and the special branch? Who should judge the limits of their methods and the sensitivity of their sources and the information they acquire? Should these matters be considered also by some body outside government?
• can respect for the rule of law be left simply as a matter of accepted culture or is something more necessary? Who is the ultimate custodian of the rule of law?
• could the answer to some of these questions involve a statutory body similar to the new Commission for Equality and Human Rights?

Pleas to limit change to small adjustments to a longstanding status quo understood by the political and academic establishments will be made. But, unless we are certain that our present arrangements do not admit the possibility of something going disastrously and irretrievably wrong, we should address these questions. And, contrary to present practice, we should address them in a way which exposes them to wide, informed, public opinion and comment. That is something Alice Wheeldon, her family and friends would have approved of.

From Open Democracy