The Monocled Mutineer

by John Fairley

  Still without uttering, and now shooting blindly in the dark, Toplis aimed a third shot at where the gamekeeper had been standing. But he missed Mackenzie, who had thrown himself flat on his face on the floor. Toplis rushed out into the blackness, leaped on his cycle and, as he pedalled furiously down the mountain track, the prone Mackenzie could hear him loudly singing the popular wartime song:

  ‘Good-byee.

  Don’t sigh-ee,

  Wipe the tear, baby dear, from your eye-ee.’

  Toplis had known for some time, as he noted in his diary, that he was doomed and would face the gallows if he was ever caught – knowledge which perhaps had finally unhinged his mind.

  Mackenzie waited until the sound of the singing had stopped echoing between the mountain peaks, saw that his friends were both unconscious and bleeding badly, got up and started running madly to Tomintoul for assistance. After he had gone, Greig and Grant both regained consciousness, one lying half across the other, the blood of each staining the floor. They dragged themselves to their feet and, holding each other up, stumbled through the darkness down the stony, one-and-a-half-mile pathway to the village of Blairnamarrow. On the doorstep of Dr Black they collapsed again, unconscious.

  Next day, Greig and Grant reached the Royal Infirmary, Aberdeen, and the start of a slow recovery, just as Toplis was being given a lift into the same city in a local minister’s car. He had sold the bicycle at Strathdon for £1 and hitch-hiked the rest of the way to Aberdeen. The parson remembered his passenger as a man with little to say, a man who carried a kitbag and wore a monocle.

  16

  Toplis was broke, but he knew that if he could get to Carlisle he would be assured of free board and lodging at the regimental depot. At Aberdeen station he bought a cup of tea and a platform ticket, two essentials to sustain him on the long journey away from the centre of the manhunt. The train for Carlisle had separate compartments, and Toplis decided it was safer to hide himself away behind the boxes of kippers in the guard’s van. The cover was poor, and the train had hardly moved out of the station before the guard detected him. For the last time in his life, Toplis’s luck held. The guard, Mr James Murray of Southport, felt sorry for him, took out some sandwiches from his snap box and shared them out. Through the long night-run down to the Borders, they drank tea and reminisced about the war years. Two days later, Mr Murray realized who his companion had been when he saw the account of Toplis’s death and his picture in the newspapers. But he felt unable until now to tell the story of the man for whom he had breached railway regulations.

  The net was about to close in on the mutineer, and this time there would be no scope for wriggling free. As Toplis walked down that road to Plumpton and the fatal ambush, the authorities in London were determined that he would ridicule and threaten them no longer. Consultations at the highest level had approved the issuing of firearms. Only an inquest could inquire whether the authorities had also approved orders to kill. Certainly when he reached Plumpton church on the evening of 6 June 1920, Toplis was given no chance and no quarter. The police made no attempt to question him or arrest him, even though they had the advantage of surprise. He was simply shot at once.

  Two hundred yards away from the spot where Percy Toplis slumped, bleeding to death in Inspector Ritchie’s arms, there is a roadside memorial. The sign reads:

  Do or Die. Here Constable Joseph Byrnes fell on the night of October 29, 1885, shot by three burglars whom he single-handedly endeavoured to arrest.

  Constable Byrnes had been the uncle of Constable Fulton, one of the three officers who ambushed Toplis, and the one whose life Toplis had spared in the confrontation in High Hesket churchyard earlier in the day. Maybe when the Cumberland police opted to take no chances on an evening thirty-five years later, they remembered the homily. Perhaps it provided the personal justification for ruthlessly carrying out orders which had come from higher authority than their own chief constable. For although Toplis’s record was considered dark and deplorable, it seems unlikely that the Cumberland police would have shot him down quite so callously unless they had been encouraged not to exercise too much care over bringing him in alive. The chief constable, de Courcy Parry, whose second son had been killed in the war, was a compassionate police officer and the shooting was completely out of character.

  Mr de Courcy Parry was, of course, unaware that the outlaw might have shot his son, but he presumably did know that he had refrained from shooting Constable Fulton. And it is hard to believe that it mattered not at all to the police on the spot that the man with the monocle should have twice that day refrained from killing one of their associates in circumstances in which he might well have been expected to be remorseless.

  As the gentlemen of the nation’s Press rolled northwards in the hospitable care of the London, Midland and Scottish Railway, some of their editors, notably C. P. Scott of the Manchester Guardian, were already formulating misgivings and raising questions about this unprecedented outburst of frontier justice.

  Was it necessary to kill a man who had never been charged with violent crime, and who had shown restraint that very day?

  Were the police officers entitled to disguise themselves and to come out, guns blazing, without warning ?

  Could they not have shot merely to incapacitate?

  On whose orders were they operating?

  Who actually fired the fatal shot?

  Where had the guns come from?

  What was young de Courcy Parry’s role?

  The Cumberland police did not need the newspapers to remind them that these could be somewhat awkward questions. On the Monday afternoon after the shooting they had very prudently set up a Press conference – an unprecedented event for its time – with the three policemen involved. Their version of events – that they had wanted to capture Toplis alive, that he had shot first, and that it was his life or theirs – brought forth boundless praise for the police action in most national and local newspapers published the following day, the Tuesday of the inquest.

  And just to make sure that everyone would know exactly where officialdom stood, the chief magistrate, Hamlet Riley, opened the normal, everyday proceedings of the local police court, just three hours short of the inquest, with this speech: ‘I should like, on behalf of the Bench, to congratulate the Chief Constable, the Deputy Chief Constable, Inspector Ritchie, Sergeant Bertram, P.C. Fulton and Mr Norman Parry upon the skill, smartness and courage displayed in their recent capture, and to express our thankfulness that they all escaped injury.’ ‘Capture’ was hardly an appropriate choice of word to describe Toplis’s fate. But then, so that no one could possibly gain the impression that his words might be misinterpreted as an attempt to influence a jury, Mr Riley added with the air of a man who wanted to explain why he had been so stinting in his praise, ‘I will not say more at the present time as the inquest is pending.’

  The police also had some prudent advice for the chief constable’s son. Rumours were already rife in Cumberland that it was he who had shot the outlaw. Accordingly, the following morning, young de Courcy Parry walked down the town and slipped his automatic pistol into the waters of the River Eamont It was his last memento of the trenches. Five other guns which he had brought home from the war had already been consigned to the depths of Ullswater by his father, in the same way that the whole affair was consigned to the depths of Parry’s own memory. Even when he wrote his autobiography, after he had become famous for hunting foxes, not men, as the celebrated Dalesman correspondent for Horse and Hound, he omitted the part he had played in the Toplis story.

  When the inquest opened in Penrith on the afternoon of Tuesday, 8 June, there was, as at the Shipton inquest on Spicer, a military man in the chair – Colonel F. W. Halton, coroner for East Cumberland. And although the full extent of Toplis’s record and reputation had been kept secret, it was still sufficiently notorious, and the manner of his death sufficiently sensational, to pack Penrith with Pressmen.

  From the surrounding countryside th
e public flocked into Penrith and small boys played truant to attend. At the last minute the hearing was switched from the police court to the town hall to accommodate those clamouring to get inside. When Toplis’s widowed, crippled mother, Elizabeth, arrived by train from Alfreton shortly before the inquest opened at 1 p.m., she had to be pushed in her wheel-chair by her daughter Winifred and an unknown male friend through hundreds of people jamming the pavements outside the town hall.

  Mother and daughter, showing more concern in Percy’s death than they ever had in his life, were photographed by thirty-six cameramen whose number included, for the first time in the history of the North of England courts, cinema newsreel operators. Although much larger than the police court, the council debating chamber inside the town hall was so crowded with officials, police and Press that only a handful of the waiting crowd was able to gain entry and see widow Toplis being carried out half-way through the proceedings after she had fainted twice.

  As a local newspaper reported, a ‘Penrith solicitor, appeared for the police, in view of certain possibilities’. Just what these ‘possibilities’ were, or who was going to pursue them, was not made clear. It would perhaps be uncharitable to assume that a relative of the lawyer on the inquest jury was a further precaution against these ‘possibilities’. Certainly it was an irregularity that a lawyer for the Toplis family might have seized upon. But the family had no legal representation at Penrith, just as Toplis had had no legal representation back at Shipton when the other inquest declared him to be a murderer. As it happened, legal representation on the police side was to prove an unnecessary public expense. Colonel Halton did a fine job without payment.

  The coroner was surprised at the start, but quickly recovered, when Superintendent Cox, who had travelled from Andover to give evidence about the Spicer murder, did not give a confidently expected reply to the first question.

  Halton asked, ‘Was it proved that the man Spicer was shot with a revolver?’

  Cox replied, ‘Not absolutely.’ And then, when he heard the court gasp, hastily added, ‘But a bullet found corresponded with that of a Webley 6. We had sworn evidence at the inquest that Toplis had a Webley 6 in his possession and that he said he was going to use it to get a car.’

  The police lawyer produced the revolver found on Toplis at his death. ‘Is this a Webley 6?’

  ‘Yes, sir,’ said Cox.

  Cox then went on quickly to say that the witness Fallows was present in court and could identify the revolver as the one which Toplis had in his possession in the car when going to Swansea.

  Halton stepped in to say that they were not at that time further concerned with the details of the Andover murder, leaving the impression that he might return to the matter later, which he did not. The coroner had rightly reasoned that one Webley 6 looked very much like another, and that it would not help the general image should the anxious-to-please Private Fallows attempt to say positively that this was the Swansea gun. He had already gone far enough in allowing one witness to testify to what a subsequent witness would testify if called. Mr Halton therefore turned to the question of the more local Cumberland armoury. Superintendent Oldcorn told him that he had issued the revolvers and ammunition to Inspector Ritchie and Sergeant Bertram.

  ‘Revolvers are not the ordinary weapons of policemen in England?’ queried the coroner.

  ‘No, sir.’

  ‘And this was out of the ordinary?’

  ‘Yes.’

  ‘Why?’

  ‘Knowing the dangerous character of the man, whom the suspected man was supposed to be, and also knowing that he had threatened to shoot P.C. Fulton that afternoon I considered, from a common-sense point of view that these officers, who were charged with the duty of attempting to secure the arrest of the man, should be in a position to protect themselves.’

  ‘Just further to enlarge your grounds, did you know that the man was believed to be armed?’

  ‘Yes.’

  ‘Have you read in the newspapers that a man believed to be Toplis had shot a gamekeeper and policeman in Banffshire?’

  ‘Yes.’

  ‘You knew he was a fugitive from justice?’

  ‘Yes. I afterwards received the approval of the chief constable in the action I had taken.’

  At this point the faithful Oldcorn is beginning to stretch credulity. He had earlier said in evidence that when he first heard Toplis was on his way he had telephoned the chief constable at home and that he had been given ‘certain instructions’. Now Oldcorn was telling the court that these instructions had not included the issue of firearms, and that his chief was ignorant of the issue of guns until after the event.

  Yet, without a murmur of doubt being expressed, his story was accepted, and quite uninvited, Oldcorn went on to tell the court, ‘The guns were not of government issue, but I believe they were of an approved pattern.’

  By now Oldcorn was floundering in his attempt to keep the chief constable out of it. In an effort to extricate himself, he continued, ‘The guns were in the chief constable’s possession.’

  At this moment it would seem essential for Oldcorn to be asked why it was that he had so stealthily relieved his own chief of his private armoury. But, head down, Halton ignored the voluntary indiscretions. Now, just as he had urged and prodded Oldcorn to ‘enlarge his grounds’ for issuing weapons, so the coroner encouraged Ritchie by leading questions to declare that although there was nothing about them that could have indicated to Toplis that they were police officers, he, Ritchie, had shouted a warning before shooting at Toplis after the police had ‘sprung out right over him’ from their hiding place. Halton did not dwell on the points that Ritchie’s exclamation, uttered when he had ‘got well out into the road’, had simply been, ‘Stop, pull up’; and that at no stage had they indicated they were policemen.

  The rest of the evidence consisted of a reiteration of the Press conference account, namely, that the police had not wanted to shoot the outlaw, but that he had shot first; which is surprising enough in view of the fact that their method of disguise and concealment demonstrated clearly the extent to which the police were relying on the element of surprise. The coroner pressed on speedily to his address to the jury, and once he had dealt with the question of identity he made the following observations:

  There comes a more difficult question as to why he was killed by those police officers. The killing of a human being in England has always been treated as presumably unlawful, and amounting to wilful murder, but this presumption can be removed in certain cases. We can best get at an accurate verdict if we ask ourselves certain questions.

  Where the arrest is resisted by such force as to make killing necessary in self-defence, then it becomes justifiable homicide. It has for a great many years been the recognized law of the land that where an officer of justice is resisted in the legal execution of his duty he may repel force by force, and if in so doing, without disproportionate violence, he kills the party resisting, then it is justifiable homicide. But if an officer kills after resistance has ceased, or where there is no reasonable cause for the violence, the killing will be manslaughter at the least. Also in order to justify an officer or private person in killing it is necessary that at the time they were entitled to the protection of the law.

  To apply that to this case, all officers who do the killing must be officers of justice or persons in aid of them; they must be in the legal execution of their duty. That I think is apparent here. They were police officers who by their superintendent were ordered to arrest this man. In this case there was no disproportionate violence. They knew that the man was armed with a revolver. The man fired two shots at the police before they fired at him; that is the evidence of both Inspector Ritchie and Sergeant Bertram. At the moment he dropped, the man had his revolver aimed and covering the inspector.

  As regards what was in the officers’ minds, they knew he was Toplis, because Fulton had told them what had been said and that he was convinced of it. He had also said two hours p
reviously that he would not be taken. The deceased man had his revolver out from a few yards after he began to run. It might be said the police officers should have refrained from returning the man’s fire, got under cover, and watched for a convenient opportunity to arrest the man.

  If such a proceeding was insisted upon, no man at any time would submit to arrest when called upon, and the course of justice would be impossible.

  Coroner Halton then laid down the line:

  To my mind this case comes exactly within the definition of a case of justifiable homicide, and the police officers in what they did had both right and law on their side. They had no warrant in their possession certainly, but there was good ground for believing this man Toplis was wanted on a charge of murder, and the absence of a warrant made no difference whatsoever.

  Coroner Halton had been landed with some tricky problems, but in the main he handled them well. When he referred to ‘persons in aid of the police’ in his summing-up, he was justifying the presence of the chief constable’s son. But he erred when he said Toplis was wanted on a charge of murder. Toplis had been officially and irregularly decided to be a murderer without the opportunity of defending himself.

  As an ex-army colonel, Halton had necessarily been acquainted with some of the background. He was ready for his peroration.

  The purpose of these Courts – and we must not overlook it – is as much to protect individual subjects as it is to bring the right people to trial, and it is up to us, to you and to me, to see that justice is done in all these cases. It is for you to say whether these officers were, or were not, justified in the action they took.