Hubert Smith

Hubert Smith was shot during an Army platoon ambush exercise at Woodbury Common, Woodbury near Exmouth on 27 May 1952.

A 20-year-old private in the Wiltshire Regiment was tried for his murder at the Devon Assizes in Exeter on Tuesday 4 November 1952 but acquitted.

Hubert Smith had been a corporal in the Royal Hampshire Regiment.

It was said that the private had used a live round during the ambush and shot Hubert Smith about whom he had complained of 'unfair treatment'.

The private said that he had had no live ammunition during the ambush exercise and said that it would have been impossible for him to have fired a live round accidently.

The private had denied shooting Hubert Smith, however, he shortly after deserted the army and went to Ireland where he got work as a butler under a false name.

However, he was later arrested and brought back to England for trial. It was said that the forensic evidence showed that that a live round had been fired from his gun. However, his defence said that that round might not have been the only round that was fired and that any one of the other soldiers could also have fired a live round and that the casings had not been found.

It was also noted that the private, after returning to England and being sent to Exeter Prison, had made a statement that might have further implicated himself and which the prosecution wanted to use against him in evidence, but it was said that the way his statement was taken broken certain Judges' Rules and the judge disallowed it from being used in evidence at the trial.

They had been out on Woodbury Common, Woodbury on the morning of 27 May 1952 with a party of Army Recruits under training in an ambushing exercise, their party consisting of 36 soldiers under the charge of a platoon commander.

The platoon had been based at Topsham Barracks in Exeter and on the morning of 27 May 1952 had travelled from their barracks by truck, about ten miles, to Woodbury Common.

It was said that during their ambushing operation that only blank ammunition was issued.

Enquiries revealed that although members of the platoon had previously used live ammunition on six different occasions since their arrival at Topsham Barracks in April 1951, no live ammunition had been issued to them since 14 May 1952 and that none of the soldiers would have been legitimately in possession of live ammunition at the time of Hubert Smith's shooting.

It was further noted that no live ammunition had ever been used on the site of the exercise.

It was noted that during the ambushing operation that a considerable amount of noise would have been made by the participants through the discharge of blank ammunition and the use of 'thunder flashes'.

It was said that one part of the platoon under the charge of Hubert Smith was attacking the ambushing party which had taken up a position at the top of a steep slope near to Four Firs Cross, and it was in the course of that attack that Hubert Smith was seen to fall. It was said that Hubert Smith was seen to spin round and fall.

It was eventually discovered that he had been seriously injured and was taken to the Devon and Exeter Hospital where he was found to be dead on arrival.

His post mortem revealed that his death was the result of a bullet wound and that portions of a .303 bullet were recovered from his body. It was then concluded that his death had resulted from the discharge of a live round of .303 ammunition, despite the fact that only blank ammunition had been issued to all concerned in the exercise.

It was noted that unfortunately, after Hubert Smith was found injured, that it was not immediately appreciated that he had been shot, and following his conveyance to the hospital, the rest of the party followed the usual military instructions and each rifle was cleaned before being return to Topsham Barracks.

However, after the cause of Hubert Smith's death was determined, a search of the locality was made and the cartridge case of a live .303 round was found and together with that, all the weapons that had been used in the course of the exercise where sent off to the Forensic Science Laboratory at Bristol for examination. It was then determined that the round had been fired from the rifle that the private, who had been a member of the ambushing party which Hubert Smith's party were attacking, had used.

It was also found that the cartridge case had been found in the vicinity of the position that the private had been occupying at the time and that Hubert Smith's injury was consistent with him having been shot from that direction.

When the police interviewed each member of the platoon and statements were taken from them, every man denied that they had been in possession of live ammunition and each was emphatic that had they discharged a live round from their rifle that they would have readily been aware of it as the recoil was entirely absent in the discharge of blank ammunition and that as such they would have noticed the dramatic and unexpected recoil of a live round, had they fired one.

It was further noted that the blank ammunition was issued in paper packets made up by markers and that in view of the difference in length between the live and blank ammunition, that it would have been impossible for a live round to have been contained in one of the packets.

When the private was interviewed with the other men of the platoon, he was equally adamant that he had not been in possession of any live ammunition on the morning of the operation, and said that he would have immediately appreciated the fact that he had discharged a live round, had he done so, by virtue of the recoil.

After the preliminary enquiries were completed on the afternoon of 30 May 1952, the unit proceeded on leave for the Whitsun weekend, however, the private failed to return and it was initially thought that he had gone to Eire where his mother resided in County Cork, although it was thought that after that that he had gone elsewhere. He was later traced to Naas in County Kildare.

Following further investigations, it was found that there was undoubtedly some animosity between the private and Hubert Smith as Hubert Smith was said to have been a strict disciplinarian and had on numerous occasion taken the private to task for breaches of military discipline, one such instance having occurred on the evening prior to the ambushing operation.

However, it was also noted that it was fair to say that Hubert Smith was equally strict with all members of the platoon.

As such, it was stated that the general circumstances of the shooting certainly suggested that the private had deliberately discharged a live round of ammunition at Hubert Smith at a time when he was rankling under Hubert Smith's repeated complaints over his unsoldierly conduct.

It was noted that the fact that the live round which had been fired from the privates rifle had not been found until after the private had absented himself from his unit and that as such, at that time, the matter had not been put to him.

It was noted that a warrant was issued by the military authorities for the privates arrest as an absentee but it was stated that it was thought extremely doubtful that the Eire authorities would take any action to facilitate the privates return to his unit.

However, he was later arrested in Naas, County Kildare, Eire on 7 July 1952 and was charged with Hubert Smith's murder on Wednesday 9 July 1952 and committed for trial at the Devon Assizes on Friday 25 July 1952.

He had been traced by members of the Naas Gardai whilst he was working as a butler at Furness Naas under a false name.

When he was asked why he had not returned to barracks after his leave, he said, 'I planned to desert from the Army before I went on leave. I stayed in Ireland to avoid arrest as a deserter, and when I left the barracks, I had no idea I might be suspected of murder'.

The private made an initial statement on 29 May 1952, before he deserted.

In the private's initial statement he said that he joined the army on 12 February 1952 on a three year engagement and that since 16 April 1952 he had been attached to No. 28 Platoon at Topsham Barracks and that Hubert Smith  was in the same platoon and that he was billeted in his hut with sixteen other privates.

He said that Hubert Smith was rather unpopular with the men in their platoon because he was strict, not very sociable and did not mix with them like the other NCO's and said that he personally didn't like him noting that on one occasion Hubert Smith had put him on a charge for having a dirty razor for which he was confined to barracks for four days. However, he added that Hubert Smith didn't treat him any differently than he did to any other privates. He added that although he was generally disliked, he did not know of any man in the platoon who hated him sufficiently to want to kill or injure him.

He said that since he had been at Topsham Barracks that he had always had the same .303 rifle, the number of which was HC27915A.

He said that since he first joined the army he had been on various ranges firing live ammunition and said that he had also fired blank ammunition whilst taking part in military exercises, and said that he had sufficient experience to know the difference between live and blank .303 ammunition as they varied in both appearance and use, noting that when live rounds were fired that there was a recoil in the rifle and a fairly loud and sharp report, whereas when blanks were fired that there was no recoil and that the report was not so loud. He added that he was fairly certain that he would know the difference between live and blank rounds of ammunition if he were to fire them from his rifle.

He then said that the last time that he fired live ammunition from his rifle was about three weeks earlier on a range at Starcross and said that since then that he had cleaned his rifle five or six times each week.

He said that he had never possessed any live rounds of ammunition except when he had been on the ranges and that at no time had he ever seen any other member of his platoon in possession of any live rounds of ammunition except when they had been on the ranges.

He said that on the morning of Tuesday 27 May 1952, that he had left Topsham Barracks with a number of other men to take part in a military exercise on Woodbury Common, saying that he took his own rifle with him, but that when he left he did not have either any live or blank rounds of ammunition with him.

He said that when they arrived at Woodbury Common, they were lectured for a while on ambushes after which there followed a small-scale demonstration.

He said that after that, that they were re-grouped and then split up into three sections and that they were then all issued with ten rounds of blank ammunition that was contained in blue paper packets by two men who he didn't know who were detailed to issue them.

He said that he was quite certain that there were no live rounds in his issue of ammunition and said that when he received his rounds he opened the packet and put them into his ammunition pouch, noting that he was quite sure that there were no other rounds of ammunition in his pouch at the time.

He said that their section then marched off and they were placed in an ambush position at the top of a slope on the common by a small copse, noting that he was in a position that was about five yards from the left of the copse looking down over the slope, noting that there was another private about three or four yards to his right and slightly behind him and another private some distance off to his left.

He said that he then lay down flat and loaded his rifle with nine rounds of blank ammunition, noting that he later found one other round in his pouch which he handed in when he got back to the barracks.

He said that after they had been in their position for some ten to fifteen minutes that he saw the remainder of his party advancing in single file along the track that ran from the bottom of the slope. He said that he kept down and out of sight and said that the 'stop' gun, a Bren gun, started firing and he knew that that was the signal for the rest of them to fire and said that he then started firing off his blank rounds of ammunition, holding his rifle to his side and firing down the slope straight in front of him, noting that he didn't count how many times he fired, but said that he thought that it was about six rounds.

He said that during that time the attacking party were advancing up the slope and that from the position that he was in that he had a fairly clear view of all the slope. However, he said that he did not recognise any of the attacking party and that he did not remember seeing Hubert Smith advancing up the slope.

He added that when he fired off his rounds that he did not aim at any man.

He said that when the actual assault was in progress, the attacking party was shouting and that there was quite a noise from the shouts, the firing and from the explosions of thunder flashes. However, he said that he did not hear any report that led him to believe that a live round of ammunition had been fired and said that if one had been discharged that he thought that it was highly possible that no one would have heard it.

He said that when he was firing off his rounds that he did not feel any recoil from his rifle and that he thought that he would have if he had fired a live round.

He said that when the attacking party reached the top of the slope they were given the order to retire and said that he went back to the main road with the other men and said that after they had been there for about five minutes that they were told that Hubert Smith had met with an accident.

He said that before they all left that he handed the three unused rounds of blank ammunition that he had to a lance corporal, noting that he didn't know at the time that he had the other blank round still in his pouch, which, after later finding, he said he also handed in.

The lieutenant that had been in charge of No. 28 platoon said that sometime before the Woodbury Common exercise, about two weeks, that the private approached him about Hubert Smith and told him that someone else in the barracks room was being made by Hubert Smith to do various jobs for him, such as making his bed, and said that if that was true that it was not in order and so told the private that he would speak to Hubert Smith about it.

The lieutenant said that on 26 May 1952 that rifle training took place at the barracks and blank ammunition was used in the afternoon, and said that on that occasion he inspected all the rifles during the first period, including the privates rifle, and said that they were all clean and empty. He said that that was the last time prior to the Woodbury Common exercise that his platoon fired live ammunition was on 14 May 1952, LMG classification at Rippon Tor. He said that on that occasion he also inspected all the man's rifles and equipment and found no live rounds of ammunition. He also noted that the private had been on the firing exercise at Rippon Tor.

The lieutenant said that on the 27 May 1952 that he left with his platoon for Woodbury Common at about 9am where they stopped near to Four Firs Cross where he gave a lecture on ambushing.

He said that a demonstration was then given by two NCO's, one of who was Hubert Smith, noting that they used blank ammunition for the demonstration.

He said that he then split the platoon up for the purpose of the exercise into three parties, one party of 17 under him, a party of 6 under another sergeant and a party of 10 under Hubert Smith, noting that the private was in his party and that it was his party that were to ambush the two other parties.

He said that the men were armed with rifles with the exception of one man in Hubert Smith section who had an LMG, although he noted that the LMG could not be fired and was incapable of being fired.

He said that he then issued his men with some blank ammunition which was all done up in small packages of ten, noting that it would have been impossible for a live round to be in one of the packages because it was longer and would stick out.

The lieutenant noted that when a rifle was fired with a live round that there was a great difference from when a blank round was fired.

He said that he set off with his 17 men to take up an ambush position, which was just to the left of the road leading from Four Firs to Woodbury Common and that his 17 men then lay down in ambush.

He said that the two sections that were going to be ambushed then advanced to within a short distance of the stop gun along the track which then opened fire, which he said was the signal for the remainder to fire. He said then that the men that were under ambush under Hubert Smith then turned to their right, deployed and then charged up the hill.

He said that both sides were firing and thunder flashes were being let off, and that the assaulting section advanced to within about five yards of his position on the edge of the copse and that he then gave the order of the rendezvous and the ambushing party turned around and doubled away.

The lieutenant said that he turned around to follow them and that someone shouted and said that when he turned and looked down the hill that he saw a man laying on the ground there on his back. He said that when he went down towards him saw that he was lying there still on the ground about 35 yards from the top. He said that he was lying across the slope with his head downwards and was unconscious and that there was a small mark on the side of his right cheek and that blood coming from his mouth and that the foliage around him had blood on it.

He said that Hubert Smith was then taken away in a lorry to a hospital and that later at 4.30pm he identified his dead body in the mortuary to the police.

A platoon sergeant with No. 28 platoon who had held the post since 17 April 1952, said that both the private and Hubert Smith were in the platoon. He said that Hubert Smith was a very good NCO and was a strict disciplinarian, noting that he knew that he had ordered some men to remain in barracks for disciplinary reasons.

He said that on the evening before the Woodbury Exercise that he had been having a bath in the barracks when the private came to see him and told him that Hubert Smith had ordered him to stay in barracks for disciplinary reasons and asked him whether Hubert Smith, a corporal, could do that and said that he told him that if Hubert Smith had given him the order then he had to stay in camp.

The sergeant said that he took part in training with the platoon and that the men had a little exercise in the barracks on 26 May 1952.

He said that during the Monday there was a weapon training period and that the rifles of his squad were inspected by him but noted that the private was not in his squad.

He said that the following day, 27 May 1952, that he travelled with the troops on the exercise to Woodbury common where they listened to a lecture by the lieutenant on the subject of ambushing and said that he gave a demonstration of ambushing and hat the lieutenant then went off with a party of men to lay an ambush for them.

He said that he was in command of a leading section of two sections who were marching along Rushmoor Lane and that his men had blank ammunition but said that he didn't know how many rounds they had. He said that as they walked along Rushmoor Lane in single file they got to a point below the copse when they were fired at by the Lieutenants party. He said that his whole squad then immediately did a right turn and charged up the hill. He said that he and another private made for the Bren gun, which he noted was also known as the stop gun to silence it and that the other troops charged up the hill to deal with the ambushing men. He noted that there was firing on both sides and thunder flashes were used and that there was a lot of noise.

He said that the whole squad was almost on to the ambush position when the order to withdraw was given to the people in the ambush, noting that when they ran away that it was obvious that it was futile to continue the chase.

He said that another private then shouted out something and that when he went over to him, he saw Hubert Smith lying down apparently injured. He said that he was lying on his back and was lying sideways on the hill. He said that he had a small clot of blood on his right cheek and that there was blood coming from his mouth and nose.

He said that Hubert Smith was then taken to hospital and that he then went back to Woodbury Common. However, he said that when he got back, he found that the men had cleaned their rifles.

He said that he then called them around him, including the private, and asked if anyone had felt the shock of recoil whilst firing their blanks, noting that there was no recoil with blanks and noticeably more recoil with a live round, but said that the men did not reply.

He said that he then went up to the lieutenant’s position and collected some empty cases, noting that they were all blank empty cases.

He noted that an expanded blank case differed from an expanded live case as the live case did not have the marks of a crimped edge whilst the blank cases did.

Another private in No. 28 platoon said that he came to Topsham Barracks on 16 April 1952 and was billeted with the private that was tried for murder, and with Hubert Smith as the NCO in charge of their hut.

He said that it was part of a soldier’s duty to keep the room clean and said that Hubert Smith wanted it very tidy. He said that if one failed to keep it tidy very often that you were given fatigues and said that several people had fatigues occasionally. He added that on one occasion he heard Hubert Smith tell the private that he must be more tidy. He also added that he didn't remember the private saying anything to him about Hubert Smith.

The other private said that he had been one of the party that had gone to Woodbury Common on 27 May 1952 for ambush training, saying that he was one of the party led by Hubert Smith. He said that on the exercise that they advanced along a little lane and that he had two rounds of blank ammunition with him. He said that he remembered a little copse just up the hill and said that they went straight on through. He said that during the ambush that blank ammunition was being fired at them from the copse and that they were returning fire with blank ammunition whilst advancing up the hill.

He said that as they advanced up the hill he was slightly in front of Hubert Smith and that as they started running up the hill they got out of formation and were firing blank ammunition and said that Hubert Smith was shouting at them. He said that he happened to turn around and saw Hubert Smith fall, saying that he fell to his right. However, he said that he didn't take any particular notice of him falling down and carried on up the slope.

He said that he fired his blank rounds and that after he got to the top of the slope that the lieutenant and the sergeant went down to where Hubert Smith was.

He said that after the exercise that he cleaned his rifle.

The doctor that carried out the post mortem on Hubert Smith said that his cause of death was shooting by a rifle bullet.

He said that the track of the bullet started with an entry wound in the centre of his right cheek where there was a slightly lacerated circular wound 3/16th of an inch in diameter. He said that the track then led downwards and inwards from that wound to the lower jaw, noting that his lower right jaw showed extensive comminuted fractures. He said that the bullet had then travelled downwards and from right to left completely severing the lower cervical apins, fracturing the first rib on the left side going through the upper lobe of the lung and then finally fracturing the 7th, 5th and 9th left ribs in the posterior azillary line.

He said that from the tissues around the fractured left ribs he took six small pieces of copper casing and one piece of metal 7/10th of an inch by 5/10th inch which had the appearance of a battered bullet which he then handed to a police detective.

The director of the South Western Forensic Science Laboratory at Crete Hill in Westbury-on-Trys, Bristol said that on 30 May 1952 that he received 7 pieces of a bullet, an expended cartridge case, 35 rifles, amongst which was No. HC27915A and a hundred rounds of live .303 ammunition and 10 rounds of blank ammunition.

He said that he then carried out tests on each of the rifles, firing two rounds of live ammunition from each rifle and collecting the bullets and cartridge cases and placing them in a glass tube which was then marked prior to firing the next rifle.

He said that he then examined all of the cartridge cases and compared them with the items found at the scene and found that the striker pin marks on the case found at the scene, ie the bullet case that was thought to have been the one used to killed Hubert Smith, were identical with the striker pin marks on the two bullet casings that he had fired from the privates rifle, No. HC27915A.

He said that he then examined the extractor marks on the side of the case towards the base of the cartridge and found that the striations, that being the minute scratches on the case, entirely agreed with the extractor marks on the two cases that he had fired from rifle No. HC27915A.

He said that he also examined all the rifles and bolts and found that in every case the numbers of the rifles and bolts agreed.

A detective sergeant who had been involved with the enquiry into Hubert Smith's death said that on 27 May 1952 they paraded all of the men of No. 28 Platoon in a hut and that the private tried was one of them.

He said that the detective superintendent told them that they were investigating the death of corporal Hubert Smith who had been fatally shot with a .303 bullet whilst engaged with them in a military exercise on Woodbury Common the previous day and that it was felt that the man who fired the bullet must have known it because of the kick or recoil that would have been felt from the rifle.

He said that the detective superintendent stressed on them that if it was an accident that he was quite prepared to listen to any explanation any man had to give but he told them that he could make no promises or offer any inducements as to what would happen because all the circumstances would have to be considered. He said that the detective superintendent further told them that any man could approach him there and then if they did not decide to do so that he would be available in the near vicinity so that they could approach him. However, he said that none of the men made any comment or came forward.

The detective sergeant said that he saw the private on 29 May 1952 at the Topsham Barracks and asked him if he had any objection to making a statement about the shooting incident and said that he said that he didn't and then made a statement.

The detective sergeant said that he then arrested the private in Eire at 11.30pm on 7 July 1952 at Nass Police Station in County Kildare, Eire and told him that he had an arrest warrant and that he was going to escort him back to Exmouth and said that he replied, 'I have nothing to say'.

It was noted that after the private was arrested on 7 July 1952 and brought back from Ireland and on 9 July 1952 taken to Exeter Prison, that he then went straightaway into the hospital there where he was seen on the evening of 9 July by the prison doctor who asked him whether he wanted to say anything about the case. It was said that the doctor then warned him that if he did say anything that it would be taken down in evidence and it was then said that the private said that he didn't want to say anything.

It was said that he remained in the Prison Hospital on the following day and that in the evening it was said that when a Hospital Officer visited him in the ordinary course of his duties that a conversation took place between them in his cell during which the private made some statement concerning the facts of the case which the prosecution sought to prove in evidence at the trial. However, there were certain issues with the way that the statement was taken which meant that it was not allowed.

It was said that the private made a statement, which in the ordinary practice was written down on hospital case paper by the Hospital Officer, and that it was that statement that the prosecution had wanted to use in the trial as evidence.

However, it was said that the Hospital Officer did not appear to be instructed about the Judges' Rules or the giving of cautions which led to the statement not being allowed. It was heard that the Hospital Officer whilst appearing to be generally familiar with the giving of a caution, if not in formal words, said that he would have interposed with some words of warning at any rate after the private began to talk about the case and say anything which he thought that the prosecution could materially rely upon. However, he said that in that instance he didn't as when the private began to talk about the case, he did not realise that what was he was saying to him would ever have been used in evidence. He also said that he did not report what he had written down on the hospital case paper specifically to anyone in authority because he thought that the information was given in strict confidence and said that it was not usual to read in Court what was said to him.

It was noted that the material that the Hospital Officer had written down was not brought to the notice of the Director of Public Prosecutions until considerably later, when it reached, first of all, the Governor of the prison, and by him was sent to the Prison Commissioners, and through the Prison Commissioners to the Home Office and then to the Director of Public Prosecutions

By that time the private had already been committed for trial and accordingly the statement was tendered then by way of notice of additional evidence.

However, the defence objected to the statement being used as evidence on a number of grounds.

First, it was submitted tat the statement was not made voluntarily but was induced by some express or implied promise or hope that was held out to the private. The judge noted that as a fact, that if that were made out, or rather he was not satisfied that the statement was not made voluntarily, that he would exclude it, not as a matter of discretion, but as a matter of law, because it would then, but law, become inadmissible.

It was also submitted by the defence, alternatively, that it was also a breach of the Judge's Rules and as such should also be excluded.

When the judge considered the first submission, he proposed to make no finding upon it, noting that it was not necessary that he should. He said that after hearing the Hospital Officer give his evidence, he said that he appeared to him to have acted with perfect propriety from the beginning to the end of the matter and said that he had no reason whatsoever to disbelieve his account and that it appeared to him that he was speaking the truth. However, he said that he did not have to make any finding about that, because, he said, that he felt that the matter in the first submission was a matter that fell, essentially, within the second part of the submission, in that it was a breach of the judges rules.

The judge then went on to say that the Judges' Rules were framed, no doubt for the guidance of Police Constables. He said that exhypothesi, a statement that fell within them was very often a voluntary statement, because if it were not a voluntary statement, that it would be excluded as a matter of law and that there would be no need to frame rules about it, noting that if a man made a voluntary statement, that it should be free and not induced by any form of promise or hope, stating that the interests of justice were applied not merely for the protection of the person making the statement but also the interests of justice which one had to consider were those of the prosecution who represented the community which demanded that the jury should have the benefit of what was freely said.

The judge went on to say that the fact was that, it was considered by the law of the country more important that a guilty man should be acquitted for lack of a vital piece of evidence than that evidence should be obtained by means which the law of the country, the practice of the judges and the practice of the courts, did not approve. The judge then stated that therefore, it happened that in cases that, in deference to that principle, evidence that might properly be used to convict a particular man was kept out so that there may be no infringement of that rule.

The judge said that the rules that had been laid down by judges were designed to achieve the end that he had just stated and said that in his judgement, that they should be applied just as much to statements that were made in prison, to persons who were in the position of gaolers, as they should apply to persons who were in the position of police officers, which he said was the view that was taken in Archbold’s notes to the Judges Rules on page 396 of the 1949 Edition, noting that he also thought that that was the correct view.

He said that he thought that the Judges' Rules were not to prevent the use of threats, which he said was covered by ordinary law, but to prevent the possibility of an accused person being encouraged or beguiled in an unguarded moment into making statements so that he might then be convicted out of word of mouth, were just as much applicable to his position when in prison as when he happened to be in a police cell, stating that there was, in his view, no distinction between them at all.

The judge said that in the one case, he is arrested, waiting perhaps, to be brought before a Magistrate, and in the other case he is either waiting his trial or, having been committed for trial, he is still in custody in the same way. Accordingly, he said, if it was desired that statements made by an accused to the Prison Officer should be made against him, then it would be necessary to instruct Prison Officers, as they do not appear to be instructed, in the Judges' Rules, so that they might know how to act when any question of taking such a statement arose.

The judge noted however, that he had not had any experience of any statement being made to a Prison Officer being used in evidence against an accused man, and added that he had certainly had no experience of a statement having been made to a Hospital Officer and said that as such, therefore, that the circumstances were probably sufficiently rare to make it understandable why prison officers were not instructed in such matters. However, he said that the principle remained that in his view, the same, that if material of that sort was to be used in evidence then it had to conform to the Judges' Rules and that the only way of ensuring that would be, as he had inferred or said, to instruct the Prison Officers in the use of the Judges' Rules.

The judge then went on to consider the privates statement that he had made to the Hospital Officer whilst in Exeter Prison hospital and said that it appeared to him to breach, strictly, two of the Judges' Rules.

• First: Rule 9, 'Any statement made in accordance with the above rules should, whenever possible, be taken down in writing and signed by the person making it after it has been read to him and he had been invited to make any corrections he may wish'. The judge then noted that the statement that the private had made whilst taken down in writing, was not signed and that the private had not been asked whether he wanted to make any changes. However, the judge noted that he did not regard the first point with importance, stating that if there was any doubt about the words that the private had actually used, then it might have been of great importance, but said that on the material that he had seen, that there was no doubt about that.
• Second: Rule 6, 'A statement made by a Prisoner before there is time to caution him is not rendered inadmissible in evidence merely by reason of no caution having been given, but in such a case he should be cautioned as soon as possible'. The judge said that that rule appeared to him to be designed to meet exactly the circumstances of the current case, that of the private, where a person who was in prison or who was in custody, sometimes, in an unguarded moment, or because they have been worrying over their case, volunteered a statement, or wanted to volunteer a statement, and observed that the rules seemed to make it quite plain that what the Judges considered desirable, and what he believed public opinion would also consider desirable, in such circumstances, was that a man should be put on his guard again as soon as possible, and told quite clearly, in effect, 'Go on, if you like, but if you do go on it may be used in evidence against you'. However, the judge noted that the present case was the very antithesis of that, such that a statement had been made in what was thought to be strict confidence, and one that was believed to have been made in strictest confidence by the person that took it, and in which neither party, ever thought that it would be used in evidence at all.

As such, the judge said that he thought that there had been a clear breach of Rule 6. He noted that whilst that did not make the statement inadmissible as a matter of law, that it did give him discretion in the matter, and he said that having regard to the gravity of the charge, and having regard to the fact that the private had consistently maintained a silence in circumstances whenever he thought that anything he said might be used against him, the judge said that he thought that it would be wrong to allow the statement to be brought in evidence against him and accordingly ruled that it should be excluded from the tendered evidence.

The private was tried on Tuesday 4 November 1952 but acquitted.

When the private was tried at the Exeter Assizes, he said that he could not have fired the live round without knowing it, and said that he did not feel a recoil. 

It was further submitted by his defence that the probability, having regard to all that was known about the inspection of live ammunition, was that Hubert Smith could have been struck by any of the soldiers on the exercise and that the cartridge case that was found after Hubert Smith's death might not have been the only one there.

The private was then found not guilty and discharged.