Through a statute of Edward I in 1279, it was enacted that, by virtue of the royal prerogative, the sovereign of England had the right to command all the military forces of the nation.
| AUSTRALIAN SOLDIERS EXECUTED 1914-1918 |
| CANADIAN SOLDIERS EXECUTED 1914-18 |
| NEW ZEALAND SOLDIERS EXECUTED 1914-18 |
| UK SOLDIERS EXECUTED 1914-1918 |
The royal prerogative also accorded the Crown the power to regulate and discipline the army. The Crown’s jurisdiction over military offences was exclusive, but its jurisdiction over civil offences committed by soldiers was co-ordinated with that of the civil courts.
Military law was administered in the Court of the Constable and Marshal. The constable was the commander, and the marshal was the second-in-command of the king’s armies. A list of Rules and Ordinances of War was issued by the king, usually on the advice of the constable and marshal, at the beginning of every expedition or campaign; this formed the basis of a code of military law.
At a later period the Rules and Ordinances became known as Articles of War. These set out a number of purely military offences, such as disobedience, cowardice, and desertion. The principal punishments prescribed were death, mutilation, flogging, and the forfeiture of possessions. The power of the Court of the Constable and Marshal was already in decline during the Tudor period, and it received a mortal blow in 1521 when the Lord High Constable was attainted for treason and beheaded following a quarrel with Henry VIII.
The office of constable was then declared to be forfeited to the Crown and was never again bestowed on a permanent basis. The marshal continued to convene the Court of the Constable and Marshal on his own authority. However, the court continued to sit with less and less frequency, and gradually the right to try military offences was usurped by ad hoc committees of officers, known first as Marshal Courts and subsequently as Courts Marshal.
During the 17th century, military courts began to adopt a set form of procedure. The administration of internal order within the army was of very little concern to the general public, as soldiers were still regarded as the personal retainers of the sovereign, and consequently military justice was considered as emanating from the king rather than from parliament. Military courts were then of two kinds—general or high, and regimental or low. The General Court had a wide authority and could try officers and soldiers of any rank. It was advised on matters of law by a Judge-Advocate, a civilian who was usually a professional lawyer. The Regimental Court was of lesser standing. It received no legal guidance and could not try an officer above the rank of captain.
DEVELOPMENT OF MILITARY COURTS
In 1689 the first Mutiny Act recognised the legality of the military courts and gave parliamentary approval to the exercise of their jurisdiction. The opinion of most army officers was that the civil legal process had little in common with the enforcement of military discipline. They infinitely preferred the Regimental to the General courts-martial because of its ease of assembly, the informality of its conduct, and the conclusiveness of its decisions. Regimental courts were convened by commanding officers and were usually composed of a captain and four lieutenants; their proceedings were brief, and their sentences were implemented immediately. Until 1805 they kept no written record of their proceedings, and neither the witnesses nor the members of the court took any forms of oath.
A General courts-martial was conducted with much greater formality. It could only be convened by an army commander and it consisted of at least 13 officers. Both the members of the court and the witnesses were sworn, and a full transcript was made of the evidence. Before its findings were promulgated, the record of the trial was submitted to the sovereign or to the commander-in-chief, either of whom had power to reverse or to vary the decisions, and to the judge-advocate-general who had to check the legal propriety of the proceedings.
Although Regimental courts-martial were intended for the trials of lesser disciplinary offences, the extent of their jurisdiction was undefined, and commanding officers made frequent use of deliberately vague charges, such as “neglect of duty”, to conceal the fact that their men were being tried for serious military crimes. The judge-advocate-general complained of this practice to the Secretary at War in 1723. A few years later, he made a further complaint that Regimental Courts were imposing unnecessarily severe sentences of corporal punishment on convicted men.
During the 18th and the early part of the 19th centuries the judge-advocate fulfilled a somewhat anomalous function at a General courts-martial. He acted as prosecuting counsel, he determined points of law, and he assisted the prisoner to present his defence. At the end of the trial he delivered a judicial summing-up and then retired with the members of the court while they were considering their findings. Gradually, however, the conduct of the proceedings at a General courts-martial started to be modelled more closely on those of a civil criminal trial.
The authority of military courts had derived from the successive Mutiny Acts passed between 1689 and 1878; subsequently, the principal provisions of the Mutiny Acts were replaced by the Army Act of 1881, which has been renewed annually ever since.
20TH CENTURY MILITARY COURTS
At the outbreak of World War I in 1914 there were four different types of courts-martial in the British Army. The Regimental Court had the least powers of punishment and could not try an officer or a warrant officer. It consisted of a minimum of three members, who usually belonged to the same unit as the accused. A District courts-martial had wider powers, but could not try a commissioned officer. It also consisted of a minimum of three members, at least one of whom must have been serving in a different unit to that of the accused, unless no other officers were available.
The General courts-martial had the widest powers of punishment, extending to the death sentence, and could try an officer or a soldier of any rank. The minimum number of members was either five or nine, according to the geographical area in which the court was sitting, and there was a legal requirement that no member should be serving in the same unit as the accused unless there were no other officers available.
Lastly, there was the Field General courts-martial, which could only be convened if the accused was on active service or was stationed overseas and it was therefore not practicable to try him in any other military court. It had the full powers of a General courts-martial, although it could sit with a minimum of only three members, and even with two if no more officers were available. Field General courts-martial were used almost universally for trials on the Western Front during the four years of the war, and they imposed a total of over 3,000 death sentences—around 11 per cent of which were actually confirmed. (An acquittal by a courts-martial on any charge is final and absolute, whereas a conviction and a sentence are not valid until they have been confirmed by a superior authority.)
Apart from the fact that Regimental courts-martial were abolished in 1920, the basic structure of military courts has remained unaltered during recent years. The procedure during trials is now identical to that of a civil criminal court. Formerly, there was no right of appeal against conviction by a courts-martial, or against the sentence it had imposed. Since 1951, the accused has been enabled to appeal against conviction on a point of law. Since the 1996 Armed Forces Act, a convicted soldier can appeal against sentence. The appeal is heard by the courts-martial Appeal Court, which is composed of judges of the civil Court of Appeal.
FIELD PUNISHMENT
Field Punishment was introduced in 1881 following the abolition of flogging. It was a common punishment during World War I. A commanding officer could award field punishment for up to 28 days, while a court martial could award it for up to 90 days, either as Field Punishment Number One or Field Punishment Number Two.
Field Punishment Number One consisted of the convicted man being placed in fetters and handcuffs or similar restraints and attached to a fixed object, such as a gun wheel or a fence post, for up to two hours per day.
In Field Punishment Number Two, the prisoner was placed in fetters and handcuffs but was not attached to a fixed object and was still able to march with his unit.
ABOLISHTION OF MILITARY CAPITAL PUNISHMENT
During the 1920’s, punishment under military law usually received consideration during the annual debates concerning the Army and Air Force Acts.
On 1 April 1925, the report of the Interdepartmental Committee on Proposed Amendments to the Army and Air Force Acts was published. The committee maintained that no miscarriages of justice could be attributed to unreasonable treatment of defendants during trials. The committee’s proposals to abolish capital sentences for some crimes was rejected by Parliament.
The leader of the parliamentary campaign to abolish capital punishment for military crimes was the Labour M.P, Ernest Thurtle. Thurtle was the son-in-law of George Lansbury, M.P, and had been wounded while serving with the 7th Londons. After his discharge in 1919, he campaigned on several issues affecting former servicemen.
In 1923, Thurtle succeeded in becoming a Member of Parliament. In 1925, with Labour support, Thurtle’s motion abolishing capital punishment for military offences was narrowly defeated. Thurtle demanded to know why the War Office felt it necessary to retain the death sentence for British and Canadian troops, but not for Australian troops.
In 1928, the Government abolished the death penalty for eight offences, including striking superior officers, disobedience and sleeping on posts. The two offences which had caused most of the executions during World War One retained the death penalty: desertion and cowardice.
In 1929, the General Election brought the Ramsey MacDonald Labour Government to power. Thurtle’s bill to abolish military capital punishment was initially restricted to offences involving cowardice and quitting of posts, but Thurtle lobbied his colleagues to include desertion.
When the bill reached the House of Lords, they rejected the proposals after speeches from several retired military figures such as Lord Allenby. The House of Commons overrode the Lord’s rejection, and the Royal Assent was granted on 29 April 1930.
The only military offence which retained capital punishment was mutiny. Like civilian courts, courts-martials could also sentence people to death for High Treason, murder and acts covered by the Treachery Act 1940.
Following 1930, British military personnel could not be sentenced to death for offences such as desertion and cowardice. These offences still exist in military law, and are still viewed extremely seriously by the military establishment. Since 1930, they would, as they did during World War Two, involve terms of imprisonment.
Until 1998 mutiny, and the offence of failing to suppress or report a mutiny, were each punishable with death. Section 21(5) of the Human Rights Act 1998 completely abolished the death penalty in the United Kingdom. Prior to this, the death penalty had already been abolished for murder, but it had remained in force for certain military offences and treason.
POSTHUMOUS PARDONS
in August 2006 the then Defence Secretary, Des Browne, decided to issue a posthumous pardon for all the soldiers executed for purely military offences, but not those soldiers executed for murder. He stated that he did not want
to second guess the decisions made by commanders in the field, who were doing their best to apply the rules and standards of the time”
but that
it is better to acknowledge that injustices were clearly done in some cases, even if we cannot say which – and to acknowledge that all these men were victims of war
In 2007, the Armed Forces Act 2006 was passed allowing the soldiers to be pardoned posthumously, although section 359(4) of the act states that the pardon “does not affect any conviction or sentence.”
MILITARY EXECUTIONS 1941-53
During the period 1941 and 1953, a total of 47 soldiers were sentenced to death and executed by British courts-martials. The first executed person was Driver Shabani bin Salu of 1st (T) Field Ambulance. He was tried and sentenced to death by shooting, for murder, by a Field General courts-martial (FGCM) in East Africa, on 28 June 1941. His sentence was confirmed on 18 July 1941, and he was executed on 3 September 1941.
The last person was Private J.J. Itumo of 3rd (Kenya) KAR. He was tried by General courts-martial at Kuantan (in modern day Malaysia), on 5-7 August 1953 for murder. His sentence was confirmed on 5 September 1953, and he was hanged on 10 November 1953. The following table summarises the capital courts-martials during the period 1941 to 1953.
THE COCOS ISLANDS MUTINY
The Cocos Islands Mutiny was a failed mutiny by Ceylonese (Sri Lankan) soldiers against their British officers, on the Cocos (Keeling) Islands in May 1942.
The mutineers were to seize control of the islands, disable the British garrison and to transfer the islands to the Empire of Japan. However, the mutiny was defeated after the Ceylonese failed to seize control of the islands.
The men who were convicted of mutiny were:
- Bombardier Gratien Fernando – Death
- Gunner Carlo Augustus Gauder – Death
- Gunner G. Benny de Silva – Death
- Gunner R.S. Hamilton – Death (Commuted to penal servitude for three years)
- Lance Bombardier Kingsley W.J Diasz – Death (Commuted to penal servitude for four years)
- Gunner A. Joseph L. Peries – Death (Commuted to penal servitude for four years)
- Gunner Gerry D. Anandappa – Death (Commuted to penal servitude for three years)
- Gunner A. B. Edema – Imprisonment for one year without hard labour
- Gunner M. A. Hopman – Penal servitude for three years
- Gunner F. J. Daniels – Penal servitude for seven years
- Gunner Kenneth R. Porritt – Imprisonment for one year with hard labour
The 15 mutineers were court martialed on the Cocos Islands. Seven men were sentenced to death and four soldiers received terms of imprisonment.
Gunner Samaris Jayasekera who was killed during the mutiny, attending to a wounded friend, was buried with full military honours on Horsburgh Island on the evening of 10 May 1942 and later reburied in Singapore’s Kranji War Cemetery (Plot 46, Row C, Grave 13).
The condemned mutineers were transferred back to Ceylon and imprisoned at the military jail in Flagstaff Street and then at military detention barracks at Hulftsdorp.
Bomdadier G.H. Bernando was was executed on 5 August 1942, Gunner G.B. de Silva was executed on 7 August 1942 and Gunner. C.A. Gauder was executed on 8 August 1942.