Richard.clark32.btinternet.co.uk

Background

James McNicol was hanged in December 1945 in what must have appeared at the time, especially to the authorities, to be an "open and shut" case.  Nobody including James disputed the basic facts of the killing and at no time did he try to deny responsibility for his actions. 

Like so many cases it would have quickly faded from the memory and into history but for the efforts of his niece, Elaine Merrilees, who became fascinated by the fate of her uncle.  The more she discovered the more she came to the conclusion that James was really only guilty of manslaughter rather than murder.  Elaine asked me to help write and publish this article so that the case might become more widely known and also to give a personal insight into how the crime and execution affected her family.

The details of the case are taken from the official papers obtained from the Public Records Office in early 2001 and are set out below. Where quotation marks are used in my part of the article, they contain the words given in statements or evidence and are not merely my interpretation of what people might have said.

Elaine’s summation of the effects on the family is to be found at the end.

Early days

James was born in Motherwell in Scotland in 1918. He was a child of a typical working class family who grew up like so many of his contemporaries with a life first blighted by the poverty of the Depression in the 1930's and then by the Second World War which started when he was only 21.  James joined up right at the beginning, in July 1939, and served with some distinction in the Royal Artillery. He was quickly promoted and reached the rank of sergeant by August 1944. 

He fought for his King and Country in Africa and the Middle East and while in Africa he contracted malaria for which he was prescribed quinine - one of the standard medications at the time for this disease. 

He was a normal young man who had a girlfriend, called Alice, with whom he corresponded regularly.  He was known to have something of a temper and got into trouble with the police after a slight altercation with Alice's father who didn't approve of their relationship when he tried to start seeing Alice again later in the war.

The days leading up to the crime

By early 1945, James was serving at a heavy anti-aircraft battery, called NAN1, at Thorpe Bay near Southend in Essex and shared a hut with fellow sergeants Leonard William Cox and Donald Alfred Richard Kirkaldie.  He and 26 year old Don Kirkaldie became firm friends and it seems he got along well with Len Cox too. 

During the summer of 1945, James had a brief relationship with Pte. Jean Neale and went out with her 4 times during the week prior to the murder.  They had a slight tiff the night before the shooting when, according to Jean, James wanted to stay talking outside her hut and she didn't.  After this, she considered the "relationship" over.” 

James spoke to her again the next night when she was with another girl at the bonfire celebrating VJ day and asked her if she was going to the dance later on.  She replied that, "she didn't know" and James left.

The night of Thursday the 16th August 1945- VJ night plus 1.

(Taken from Sgt. Len Cox's police statement of the tragic events of that night.)

After the Allies victory over Japan (VJ Day) the previous day, there were, not surprisingly, many parties and dances all over Britain and it was decided to hold a dance at Thorpe Bay camp on the following evening (16th August) with the permission of the Commanding Officer, Captain Edmund Roxby. 

James had been drinking in a pub called the Halfway House during that afternoon and had in fact drank a very large amount of beer, perhaps as much as 14-16 pints altogether during the afternoon and evening. 

On the afternoon of the 16th, James went with Sgt. Cox, another Sergeant, and two gunners to the Halfway House and they each consumed 5 pints of mild and bitter - presumably they each bought a round.  They then clubbed together and gave James some money to purchase 6 quarts of beer (12 pints) and then made their way back to the camp around 10.00 p.m. They took the beer to the Sergeants Mess.  Sgt. Cox, according to his statement, then met up with Leading Aircraftsman (LAC) Jerald A McKay of the RAF and had a drink with him. 

Around 11.00 p.m., he and Jerry went into the NAFFI and met up with Pte. Jean Neale and another ATS girl.  Jerry had a dance with Jean, while Sgt. Cox danced with her friend.

Some sort of altercation ensued between James and Jerry McKay, presumably over Jerry dancing with Jean.  James had apparently thrown a glass of beer over him and there had been heated words.  Sgt. Cox was told about this by Jean and came out of the NAFFI to see what was going on.  He and James had words and Sgt. Cox told James that, "if I wasn't frightened of losing my chevrons (sergeant's stripes) - I would do something about it."  Other men intervened and prevented an actual fight at this point.  (see “Albert's” recollections below).  Sgt. Cox told the court that during the last dance, James spoke to him again and said that if Sgt. Cox still wanted to make something out of the incident he would see him outside.

Jerry and Sgt. Cox saw Jean and her friend back to her hut and Sgt. Cox went back to the sergeant's sleeping hut.  In the hut when Sgt. Cox arrived were fellow sergeants, Kirkaldie, Dixon and Thompson who were all in their beds.  Sgt. Cox found that his bed had been overturned and his blankets strewn around.  Sgt. Cox told the court that after he and Sgt. Thompson had got his bed back up, James came into the hut (where he also slept) and that Sgt. Cox asked James if overturning his bed was his (James') idea of a joke.  According to Sgt. Cox, James said it was and asked Sgt. Cox what he was going to do about it.  Again, Sgt. Cox wanted to fight and James suggested they use the boxing ring outside which Cox declined as it was "pitch dark out there."  James now left the sergeant's hut and may have waited outside for Sgt. Cox.

Sgt. Cox now prepared to retire and got into bed and switched off the lights.  He had only been in bed a minute or so when one Bombardier Abley came in and spoke to him, as a result of which he and Sgt. Kirkaldie got up and dressed again and went to Bombardier Abley's hut.

They then went to the Sergeant's Mess and found James who offered Len Cox a drink.  Sgt. Cox told James he would see him in the morning.  Cox and Kirkaldie then returned to their hut and Kirkaldie tied the door handle to the bedsteads with some rope.  Kirkaldie made sure the door could not be opened (by James) and they turned off the lights and again went to bed.

A little later the occupants of the hut were woken by the sound of the door being rattled, followed by the sound of a window pane being broken.  Sgt. Cox recalled seeing the light being switched on from outside and saw a hand withdrawing back through the broken window.

He then heard a shot and felt "something hit his chest".  He heard a second shot a few seconds later.  He remained conscious and was given medical treatment for his injuries.

It is thought that the second shot was the one that fatally injured Sgt. Kirkaldie, striking him in the throat and passing right through his neck from one side to the other.  According to the army Medical Officer who examined both sergeants at the scene, Sgt. Kirkaldie died instantly from this wound due to shock.

In his statement, Sgt. Cox agreed that he was normally on good terms with James as was Sgt. Kirkaldie and also stated that neither of them had a relationship with Jean Neale.

James' version of the events differs slightly from Sgt. Cox's.  In his statement he told the police that he had some more beer when he got back to the dance and was upset to find Jean Neale dancing with another man.  He followed Jean and Jerry into the dance and threw a pint of beer over Jerry. 

Sgt. Cox intervened and told James that he didn't like him and never had.  Sgt. Cox tried to fight James but James wasn't prepared to fight in the dancehall.  James found Sgt. Cox later who, according to James, told him that if it wasn't for only having another 3 weeks to do in the army, he would kill him (James).  James went into another hut to get some matches and noticed Bombardier Abley and Sgt. Cox and was called a "mad bastard" and was otherwise verbally abused.

James again went off and sat on his own and had a smoke when Sgt's. Cox and Kirkaldie came in and Sgt. Cox continued the barrage of verbal abuse.  James decided the best thing he could do was to have a "good hit at him" otherwise the others would think he was afraid of Sgt. Cox.  He was also thinking about Sgt. Cox's threat to kill him and expected to be beaten up by Sgt. Cox in the morning.  James wandered around for a while and found himself in the Command Post and saw the rifles.  He took up one of them and made his way towards the camp. 

According to his statement, "I had no intentions of killing Cox but I wanted to wound him." He went back to the sergeant's hut, broke the window and switched the light on.  He tried to shoot Sgt. Cox in the leg.  He fired another shot and then in a dazed state, knowing he had done something seriously wrong, ran away.  At this stage, he was completely unaware that he had killed his best mate Sgt. Kirkaldie. 

A little later he found himself in a field and decided to bury the rifle there.  Unsure of what to do next he went to the Rochford gun site and went to bed.  He fell asleep fully clothed and remained there until he was woken by the police later on that morning.

James offered no resistance when he was arrested and cooperated fully with the police giving an open truthful statement.  When he was charged with murder, James told the police immediately where he had buried the army Lee Enfield rifle. It was found on August 23rd in a field behind the Coastguard Station at Thorpe Bay.

James had taken the rifle from the Command Post which begs the question whether the guns were adequately secured.  The camp commander, Captain Roxby, had given verbal instructions to the site commanders, including Captain Owen who was in charge of NAN1, regarding the security of the rifle stores.  As a result of these, the 45 rifles on the NAN1 camp were collected up and put into the armoury which was then locked.  However, this room was totally insecure and the means of entry to it was a widely known "secret."  James had had a clip of ammunition in his kit bag, for some time, although this was against the rules.

“Albert” - an eyewitness to the events of the night of the 16th

“Albert” was a fellow soldier at Thorpe Park with James and knew him well.  Now an elderly gentleman, he was interviewed recently by Elaine and was willing and able to give her a clear insight into the events of the fateful night.  This is her transcript of the interview :

"For several weeks before the VJ Day celebrations James had been seen with a young local lass (Jean Neale) and he escorted her to the party that evening. James seemed happy to stand near the bar drinking and his young lady accepted a dance from a RAF Officer (who was a friend of sergeant Cox.)  James threw a drink in the guy's face and told him to back off as the girl was with him.  At that point, Len Cox involved himself in the argument.  To avoid trouble the airman left the dance but there was a notable atmosphere between James and Cox for the rest of the evening."

"For almost 30 minutes I watched James trying to evade another confrontation with Cox, this was proving difficult so he decided to leave but just before James left I and others heard Len Cox say, "You had better let your family know that you won't be coming home, and sleep with one eye open as I intend to finish this later."

”This remark infuriated James and provoked the fight which followed, but myself and Kirkaldie managed to separate them before things got out of hand. To this day I wonder if Kirkaldie's death could have been avoided by letting James and Cox fight out their anger then and there.

When James stormed off in a rage I went after him, I found him some time later in the Sergeant's Mess in an agitated state. I managed to calm him down a bit and we were having a drink in the Mess when Len Cox came barging in accusing James of up-turning his bunk."

"Your Uncle was not one to shy away from confrontation so he stood his ground inviting Cox outside to finish things once and for all. Len Cox told James that this was not the time or place for settling the score, he also threatened to file a complaint against him in the morning.  Cox left slamming the Mess door behind him. (I remember this clearly because the door actually came off its hinge.)  Kirkaldie and myself stayed with James after Cox left, half an hour later Kirkaldie retired to bed and at about 2am I also went to my bunk leaving James alone, two hours later Donald was dead and Len Cox wounded.
James was a genuine nice chap and his actions that night were hard to believe.  I did give statements to the police and my senior officers but I was not called to give evidence during the trial at Chelmsford court."

Trial

The trial opened at the Essex Assizes in Chelmsford before Mr. Justice Lewis on November 13th, 1945 and lasted for only two days, which was quite normal at that time. (nowadays murder trials last typically for several weeks.)  The jury was comprised of 10 men and 2 women.

Mr Cecil Havers KC appeared for the prosecution while Mr Tristram Beresford KC was defending James.  James was charged with murder and attempted murder and pleaded not guilty to both charges. 

The prosecution called various witnesses including Sgt. Cox and Private Jean Neale and they all seemed to give a fair version of what had happened on that night.  Sgt. Cox denied, however, that he had threatened to kill James. 

In the witness box, James asserted that he had never intended to kill Sgt. Kirkaldie and explained that when he went back to the sergeant's hut to go to bed, he found the door locked and became angry.  He told the court that this is what made him break the window and fire a shot.  He then stepped back and fired a second shot generally at the hut. James claimed that Cox had threatened to kill him, which made him “irritated" and he got a rifle from the Command Post and went to the hut with the intention of confronting Cox.  "Having got so far I fired the rifle twice. He told the court that he didn't aim but just fired wildly."  “I had not the smallest intention of killing anyone. I only wanted to frighten Cox.  I was dazed.  I knew I had done wrong. I ran away from the camp and buried the rifle."  Under cross examination though, James agreed that he had intended to shoot Cox in the legs if he (Cox) got nasty but had no intention of killing him.

Mr. Tristram Beresford, for James, invited the jury to bring in a verdict of manslaughter on the grounds that James was too drunk to form any intention of killing anyone.  This was rejected by the jury.

In his summing up, Mr. Justice Lewis told the jury that although during the trial there had been references to James' jealousy over Pte. Jean Neale, there was no suggestion that James had any cause to be jealous insofar as Sgt. Kirkaldie was concerned.

Toward the end of the second day of the trial, the jury retired to consider their verdict and soon returned and declared James guilty on both charges. Mr. Justice Lewis then donned the black cap and sentenced James "to be taken back to the prison where he was last confined and from there to a place of execution, there to be hanged by the neck until dead and that thereafter his body be buried in the precincts of the prison.  He added the customary rider "May the Lord have mercy upon your soul."  James was now taken down from the dock and transferred back to prison. 

Appeal

The Appeal was heard on Wednesday, December 5th.  The defence submission was that James was under the influence of drink so as to be incapable of forming any intention to murder.

In his judgement, Justice Humphreys, one of the 3 Lords Justices of Appeal in Ordinary, accepted that everyone agreed that James was so drunk as to make himself a nuisance and his own evidence made it clear that he acted as he did because he had a quarrel with another man (Sgt. Cox) who was in the hut.  However, the appeal was dismissed as it was plain from the evidence that James had gone to the hut intending to do someone an injury and a man had died as a result.

A short article in the Motherwell Times reads as follows :

MURDER APPEAL DISMISSED

The Court of Criminal Appeal on Wednesday the 19th December 1945 dismissed an appeal by James McNicol (27), Royal Artillery sergeant, whose home is in Motherwell, and who was, at Chelmsford Assizes, sentenced to death for the murder of sergeant D A R Kirkaldie (28) of Ramsgate in a hut at a gun site at Thorpe Bay Essex.

Mr Tristram Beresford, K.C. for McNicol, said the crime was committed after a bonfire and dance on V. J. Day Plus One and the only question was whether it was a case which could properly have been reduced to manslaughter in view of the defence that McNicol was under the influence of drink so as to be incapable of forming any intention to commit murder.

Mr Justice Humphreys said there was no misdirection of the jury and no ground for the court interfering with the conviction. “Thank you, my lord," said McNicol as he left the dock.

After the appeal

There was very considerable efforts made on James' behalf to secure a reprieve, particularly in his local area.  James' defence had raised a petition of 20,700 signatures for mercy.

Mr. Alex Anderson MP for Motherwell and Wishaw and Mr W.E. Currie, Divisional officer of the Scottish union of ex-service men, took up James' plight. Mr. Anderson and Mr Currie made every effort to help James' defence team, they felt strongly that James should have been charged with manslaughter not murder and Alex Anderson met with the Home Secretary, Mr. Chuter Ede, pleading with him to urgently review the case. He also presented to the Home secretary a petition signed by half the adult population of Motherwell and Wishaw.

Mr. Anderson asked him to consider an appeal on the following grounds, which he had put in a letter :

1. McNicol was a young man of unassuming and blameless character prior to joining the forces.
2. While serving in the East he had a most severe attack of malaria and was invalided out.   "Malaria patients I am told are peculiarly susceptible to the effects of alcohol."
3. When the tragedy occurred he was so deeply under the effects of alcohol as to be scarcely responsible for his actions particularly if his physical condition is considered.
4. The man he killed was his best friend which shows that there was no premeditation.
5. He was a war hero and much loved and respected in his hometown and within the ranks of his regiment, his death would leave them with an abiding sorrow.

James' own petition for mercy is reproduced in full below.
Copy of a Petition written by 1322, James McNichol. Submitted to the Secretary of State 8.12.45.

Sir,
I respectfully request you to give this my petition for your most earnest and sympathetic consideration. I know I have been guilty of a terrible tragedy and must in some way be punished.  I am also fully aware of the fact that whatever I may say it will in no way alleviate the suffering that I have caused to those near and dear to the unfortunate victim of my terrible act.

I was fully alive to the fact that drunkenness is no defence in law for what I did, but I do earnestly ask you to consider the incidents leading up to this tragedy.  I do assure you, Sir, that had I been my usual sober self nothing would have been further from my mind than to harm any living soul least of all this my great friend. It so happened that we were celebrating V. J. Day and I had taken more to drink than I was accustomed to. During the evening several incidents occurred in the camp which made me irritable and somewhat quarrelsome. Indeed, I must have been in a hopeless state prior to the incident and have little or no recollection of what happened. I must have been in a very fuddled state of mind, and quite irresponsible. In that abnormal state of mind I must have taken a rifle and fired it into the hut. The shouts and screams after the incident made me run away, and it was some time before I sobered up and realised that something was wrong. I eventually arrived back at the camp, and was informed of what had occurred.  I was shocked and could not realise my folly.  I do earnestly implore you, Sir, to believe me when I say I never had any real intention to harm anyone least of all the unfortunate victim with whom I had no quarrel, but was on the best of terms.  I have been a serving soldier for some six years, and have risen from the ranks to sergeant. My character has always been exemplary, and during my 4 ½ years abroad in France, West Africa, and India I have been conscious of my duty towards my fellow men and my country. I earnestly request that these facts coupled to the suggestion that the effect of strong drink on my brain would be greater after being out East.

I have stated already that I am fully conscious of the terrible crime committed by me, and realise that I must be punished, also that whatever I may do it will never be erased from my memory. I therefore implore you from the depth of my heart to grant me a reprieve, so that I can in some small way atone for the past, and bring some compensation to the innocent persons whom I have wronged. If this reprieve was forthcoming, I swear that during the years of my imprisonment I would do all in my power to rehabilitate myself, and thus to atone for the past.

I therefore fervently hope and pray that you will spare my life so that I can be given the opportunity to prove to all concerned that I can be a decent and law abiding citizen.  No one will ever know what I have suffered during these terrible weeks, and I feel that I have in some measure paid for my sins, years of imprisonment can never be as terrible as I have passed through these last few weeks.  God only knows how I have repented this great wrong. He knows also that what I am asking you to consider is true, and his Son was prepared to forgive those that crucified him, so I plead with you to grant this merciful act. I therefore fervently hope and pray that you Sir, will take a merciful view that during these very long hours in a condemned cell that I have made my peace with God, and will afford me the chance of one day resuming my responsibilities as a decent citizen and atoning for this terrible tragedy. 

I am your obedient Servant,
(signed James McNichol.)

All the grounds set forth by Mr. Anderson and the two petitions were rejected by Chuter- Ede and on Tuesday, the 18th of December 1945, he wrote to Mr Anderson informing him that although he had given great consideration to the case, he found insufficient grounds for advising the King to interfere with the due course of the law. Similarly the Permanent Secretary at the Home Office, Frank Newsome, wrote to the Governor of Wormwood Scrubs prison informing him of the decision.

In the condemned cell

James was now transferred to Pentonville prison, as Wormwood Scrubs did not have an execution facility and Chelmsford in the county of Essex had ceased having executions in 1914. Here he would have been watched round the clock by two warders who would have logged and reported anything of interest back to the governor and thence to the Home Office.  He would have been examined by a panel of (normally) 3 Home Office appointed psychiatrists to determine whether he was sane.  This was whether he was sane enough to be hanged not whether he was sane at the time of the crime.  They would pass their findings back to the Home Office and typically mid ranking officials would prepare a report for the Permanent Secretary who would then discuss it with the Home Secretary and come to a decision. 

James' family had been convinced that he would be reprieved, as was everybody else involved with the case.  But this was not to be and the governor informed James of the decision on the 18th and that he only had 3 days left to live.  It is impossible to imagine the mental torment that a person goes through having been told that they are to be hanged in 3 days time.

Execution

James was hanged by Albert Pierrepoint at 9.30 a.m. on Friday, the 21st of December 1945 within Pentonville.  Pierrepoint was assisted by Herbert Morris and Steve Wade.  His execution was unusual in that it was one of two that day - for completely unrelated crimes.  At 8.00 a.m., John Riley Young had been hanged for the murder of Frederick B. Lucas and his wife Cassie in June of 1945.  Young had also been tried at Chelmsford and had lost his appeal on the same day as James.  After Young’s execution, his body was left to hang for the usual hour.  It was then removed, the trapdoors reset and the gallows prepared for James.  By 1945, executions were carried out in complete secrecy and no details were released, other than the official notice posted on the outside of the prison’s main gates.

On Monday, the 31st of December 1945, 10 days after James was hanged, a journalist for the Motherwell Times, who had reported the trial and execution, allegedly got wind of a document which may have saved James from the gallows The document was said to contain a medical report on malaria, confirming that sufferers were known to have mental blackouts if they mixed too much alcohol with their medication - the alkaloid, quinine. This report had been commissioned by James' defence but arrived too late to be considered.

Comment

Obviously, we cannot be sure of the precise words used by Sgt. Cox to James and whether he really did threaten to kill James or whether James genuinely believed from Sgt. Cox's words and body language that his life was threatened.  Both men had had a lot to drink that night and both were most probably at the aggressive stage.  However, there was not the slightest motive to kill Sgt. Kirkaldie and James had had no disagreement with him that evening.

In my view, having carefully examined the evidence, there was no intent to kill anyone.  The proof of intent (the mens rea or guilty mind) is crucial to secure a conviction for murder.  Without it, there can only be a conviction for manslaughter.

Had James killed Sgt. Cox he would have been guilty of murder because he intended to frighten or harm Cox, which intention, if the subsequent act were to have caused the death of Cox, would have certainly constituted murder.

James was a young man who had the best years of his life blighted by the war. He contracted malaria serving his country, for which the army prescribed him quinine, the standard medication at that time.  Did they, however, make clear to James the dangers of mixing quinine with alcohol?  They had a clear duty of care to do so. 

Although much was made by the defence of James' drunken state on the night of the crime, it seems little weight was given at either the trial or the appeal to the combined effects of alcohol and quinine. The doctrine of diminished responsibility did not come in until 1957 with the Homicide Act of that year. 

James was clearly consumed with remorse at what he had done and it would seem, from his petition, genuinely repentant.  At no time did he try and deny responsibility for the crime.

Was his execution humane?  Where was James while John Riley Young was being hanged - could he hear the crash of the trap?  I cannot think of another case where two men were hanged on the same gallows an hour and a half apart.  Prisons were always very quiet during an execution and the crash of the trapdoors was often audible through the prison. 

The law on murder in 1945

In 1945, if a person was convicted of murder, the death sentence was mandatory (notice I say sentence, not penalty, as around 50% of condemned inmates were reprieved).  After the trial, the judge would send the case papers to the Home Office with his recommendation.  If he recommended mercy, the Home Office would almost always reprieve.  The jury's recommendation to mercy, where made, was often ignored however.

Did the crime really deserve death?  With so many being reprieved at this time, it is difficult to see that James deserved to hang.  There was no motive and no evidence, never mind proof, of "evil" intent in this case.  It is unlikely that he would have posed any continuing or significant danger to the public at large.

No explanation of how the decision to reprieve or not to reprieve was ever given by the Home Office.  Everything was decided in secret by the officials who advised the Home Secretary. Derek Bentley's case is the perfect example of this executive secrecy in action.
Even Parliament was not permitted to debate a capital case until after the execution and petitions on behalf of the condemned were routinely got up and equally routinely ignored by the Home Office.  Although the Home Office would have listened politely to Mr. Anderson, because he was an MP, they tended to the view that it was none of an MPs' business.

The application of the death penalty at the time

My perception of the justice system as it operated after the war in this country is that it couldn't really make up its mind what it wanted to achieve - should all murderers die or just the "worst" ones or just the expendable ones? One wonders whether had James been an officer, rather than an NCO, if the outcome would have been the same? Britain was much more class ridden in those days and he may well have been seen as expendable.

One of the things that I am sure counted against James was that he used a gun - this was something that the Home Office appeared to take a very poor view of at that time.  Like Ruth Ellis 10 years later, he also injured another person, however accidentally.  Was the fact that he was a single man another factor that counted against him? 

At no stretch of the imagination could what James did be termed an evil crime, but this didn't seem to matter to the Home Office.  He had been lawfully convicted and could therefore be hanged. And yet others were reprieved who had committed much worse crimes on the basis of their sanity in the condemned cell or because of a physical feature or injury that would have made hanging them difficult.  There appeared to be no consistency in the decision making process and the gravity of the crime didn't seem to be the important factor in deciding who should live and who should die.  Bear in mind that most of those who were reprieved spent no more than 12 years of their “life sentences” in prison (not the rest of their lives) so James would have been typically no more than 40 years old upon release, had he been reprieved.

Summation by Elaine Merrilees

There are no words that adequately describe what my family endured as a result of James’ crime and subsequent execution and when Richard Clark asked me to do just that for this article I discovered (some 60 years on) the subject is still an emotive one for his surviving siblings. 

My uncle’s execution was the proverbial skeleton in our family closet.  Shame, guilt, and abiding grief kept it there for over half a century.

Pro death penalty campaigners claim a retributive execution can somehow bring ''closure'' to those who lose loved ones to murder, without indicating how the family of the prisoner should achieve the same after their relative is killed in the name of justice. An execution, of course, cannot guarantee any such emotional relief to the bereaved; ultimately the only thing achieved is one more dead body and more grieving relatives.  

My grandfather, Robert McNicol, was the eldest of the McNicol siblings and after his father died he was the one the others looked to for advice and guidance. He was a welding inspector with Motherwell Bridgework and when James left school he helped get him a labouring job with the company. When war broke out in 1939 my grandfather was exempt from conscription under the reserved occupation rule but his young brother wasn’t and within weeks James eagerly answered the call to arms.

For the duration of WWII my grandfather (and the rest of the family) prayed for James’ safe return and ‘ironically’ after celebrating VJ day they got the first good night’s sleep in years, James was in England and would be coming home shortly, or so they thought.

My grandfather seldom spoke of his brother or events which led to his execution but in one of his rare nostalgic moods he did tell me about the day (August 18th 1945) that he heard of James’ arrest.

“The day started like any other Saturday, I called in at the Bridgework then went down the Masonic club for a beer. I was only there five minutes when Willie Dyer pulled me aside and said he heard rumours that our James was in some sort of bother down in Southend. Willie was a retired policeman who kept his ear to the ground and earlier that day an old mate told him James had been lifted in a drink related incident. I wasn’t too worried at that stage; our James never could handle his drink and it wouldn’t be the first time he slept off a hangover in the cells.  Willie said he’d make some enquires and come to the house later if he felt it was something I needed to know. I hardly gave it a second thought for the rest of the day and when Willie turned up at our door at teatime my only concern was that I would have to offer him a cup of the precious tea rations. As it turned out Willie brought his own drink, a hip flask of whisky and that in itself told me it was bad news. After pouring me a large drink Willie sat down and said “There’s no easy way to say this Rab but your brother has been charged with murdering a fellow sergeant called Donald Kirkaldie.”

Compiled with help from James’ two surviving siblings.

The name Donald Kirkaldie was a familiar one, James spoke fondly of him many times in letters home so hearing that he’d been charged with his murder was hard to believe.
Willie Dyer didn’t know all the details just that James had been up in court that morning and remanded until the 28th of August, needless to say my grandfather didn’t get much sleep that night or the next.

The train to London left from Glasgow Central regularly but it was an expense my grandfather could ill afford, not to mention the cost of digs when he got there. However as it turned out others had already anticipated the family’s need, on Monday evening Willie Dyer came to the house with a train ticket to London and the name of an army official who’d be expecting him off the train. He didn’t ask questions as to who paid for the tickets, the Lodge looked after their own and at that time my grandfather was just grateful for his affiliation with them.   

The rest of the family had to be notified before they read about James’ arrest in the newspapers; a very brief story on the shooting appeared in one of the national Sundays but buried amid the victory headlines it seemed to have gone unnoticed. Things would be very different when the weekly issue of the Motherwell Times came out on the Thursday; “Local war hero charged with murder” would make front page news. So on Monday night he gathered the family round and tried to explain what was going on.

On Tuesday 21st August, my grandfather took the train to England, he was picked up from the station and taken to Southend where he was brought up to date with the entire details of the case. He couldn’t believe what he was hearing, James just wasn’t capable of such a thing even if he was drunk and he wouldn’t believe it until he heard from James himself. That was his next question “Can I see my brother today?” No was the answer but a visit was arranged the following afternoon.

During that visit James could barely contain his remorse for what he had done, for the shame he had brought upon his family, nor his own grief for Donald Kirkaldie, a man who for the past two years had been his loyal friend and confidant.  The mood was a sombre one, both men finding it hard to console each other. James told my grandfather what he could remember of the events that night and said he had no intention of seriously hurting anyone. Sgt Cox had shown him up in front of some men from his regiment and his intention was to scare him and in doing so be able to face the guys in the morning with his pride in tact.

There was no time for long silences; arrangements had to be made for James’s defence if he was to avoid the gallows, so setting aside morbid emotion they talked in practicalities rather than pleasantries.

Back at his lodgings the first thing my grandfather did was write a letter to Donald Kirkaldie’s widow expressing his and the whole families remorse for her loss, as a result of his brother’s actions. (I have been told that Mrs Kirkaldie replied with a kind letter.) Most surprising, but welcome, was the support from James’ regiment; many of them approached my grandfather offering their heartfelt sympathies to the family and for the predicament James was in. One sergeant in particular described James as a decent chap and a “damn good soldier.”  My grandfather was moved to tears by this because he could see for himself that these guys were grieving the loss of Kirkaldie yet they found the courage to show compassion to the family of the man who had killed him.  

The next few weeks were difficult for the family; their brother was remanded in a prison hundreds of miles from home and this only added to the utter helplessness they already felt. “What happens in the family stays in the family” was the rule as far as my grandfather was concerned but as news of James’ plight hit the local and national newspapers he felt like the whole world knew his business. The pre-trial weeks were the worst; local people had read little more than the headlines and from those had all but tried, convicted and executed James. The family tried to get on with their daily lives with as semblance of normality, they met the stares and finger pointing head on because not doing so would only reinforce public opinion that they were in some way responsible for James’ crime. Their courage and relentless crusade to gather support for James eventually won over the majority of the town’s citizens.

Efforts to save James

The Motherwell Times seemed sympathetic to James’ plight and my grandfather quickly recognised they could be a powerful ally in his defence and used them to that effect.

After sentence was handed down the reporter from the Motherwell Times approached my grandfather to offer his condolences and said that he was stunned the jury had disregarded the judge’s summing up statement and based on that, believed James would be reprieved. This was also the feeling of James’ legal counsel but taking nothing for granted the McNicol clan mounted a campaign to save their brother’s life. James’ two sisters Mary and Annie took up position in Motherwell High Street stopping people and asking them to sign their petition, younger brothers Richard and Andrew took to the streets of Wishaw and surrounding area with the same petition, my grandfather and James’ oldest school friend went door to door the length and breadth of Lanarkshire every night after work.

Reactions from locals gave them encouragement to carry on, most people believed James should be punished for his crime but few thought he deserved to hang for it. At that time the Lanarkshire area was very much divided by religion and the family feared their fight to save James was reliant on just half the town’s population. As it turned out they were wrong, the general consensus was that (despite his terrible crime) James was a war hero and that fact alone got him the sympathy vote of both Catholics and Protestants alike.

My grandfather’s association with the Masonic order brought him into contact with ‘’all the right people” in the Lanarkshire/Glasgow area and all those right people lent their support to the campaign. Local MP Alex Anderson was just one such acquaintance who did all he could and more for James, (so much so that he and my grandfather remained firm friends until Mr. Anderson died in February 1954.) However at the end of the day it wasn’t a political issue and in the immediate aftermath of war the insignificant matter of James’ life was way down the priority list of those who could have intervened.

Despite all efforts to save James from the gallows an execution date was set for December 21st.  On the 18th of that month my grandfather once again travelled to London hoping and praying that an eleventh hour reprieve would be forthcoming. Unfortunately this wasn’t to be and on Thursday December 20th my grandfather visited his young brother for the last time. James seemed to have accepted his fate and said that he hoped his execution would bring some solace to Donald’s family. He again apologised for the shame he had brought upon the family and once again begged forgiveness, he had written letters to each of his brothers and sisters reconciling any and all disagreements they had had in the past.  

Execution day and its aftermath

At 9.30 on the morning of the 21st the McNicol family gathered in Motherwell to console each other. In London my grandfather waited outside the prison for official confirmation of his young brother’s death to be posted. When the announcement was made my grandfather requested a meeting with the prison chaplain who last spoke with James but his request was denied.

When someone was hanged in Britain their body was buried unceremoniously in the prison grounds and their families were given no further information. As far as my family were concerned James had given quite enough of himself to King and country and they were damn furious that this so called “GREAT” British justice system had not only punished James for his crime but were now punishing them by denying them the right to take their brother home to Scotland for religious burial next to his parents.  Had not King and country had their “pound of flesh?” James was dead and nothing they did to him thereafter had any further retributive effect on him personally, but only on his family and friends.