Wednesday,
HONGKONG TELEGRAPH
March 29, 1939.
CHIEF PETTY OFFICER'S ALLEGATION TEOFANI CIGARETTES
OF FALSE IMPRISONMENT
Jenkins v. Shelley And Another
MR.
[R. JUSTICE HALLETT recently gave judgment in the High Court of Judgment for the defendants in the action, in which Mr. Eric John Arnold Jenkins, un engine-room artificer, 4th class, with rating as a chief potty officer in the Royal Navy, of H.M.S. Curucon, claimed damages for alleged false imprisonment from Captain Richard Shelley, commanding the Curacoa, and the. Earl of Cork and Orrery. Commander-in-Chief at Portsmouth,
Mr. Jenkins complained that one, or behave with contempt to his January 22, 1938, Captain Shelley, superlor oficer, shall be punished with the knowledge of and by the with dismissal with duúrrace. from authority of Lord Cork and Orrity, his Majesty's revvice, or suffer such enused him, without lawful justine-other punishment as is hereinafter tion, to be assistilled and falsely im-mentioned,
and odium.
prisoned for a period of 30 days in Under that Act an offence under the naval detention quarters al section 17 could be punished by 42 Portsmouth and that as a result he days detention, and might, subject had been brought into public scandal to the regulations issued by the Admiralty from the to time, be By their defence the defendants summarily dealt with and punished sald that Captain Shelley, with the hy
regulations captain. The
certain restrictions with approval of Lord Cork and Orrery, contained sentenced Mr. Jenkins to 12 days regard to summary dealing with of detention because he had been guilty fences.
the
of highly insubordinate conduct in Chapter XII of the King's Rezula- disobeying the lawful command
ortions
Admiralty and
V of that
tain Shelley had the necessary juris-) diellon in point of inw to sentence the plaintiff summarily to detention; and, secondly, if he had not, what damages ought to be awarded.
1 Lordship referred to section 58 (2) of the Naval Discipline Act, 1006, and cald that none of the limitations there imposed on the general power of summary trial and purichment in respect of offences Triable under the Act was oppiica- ble to the present case. It was con-† ceded for the defendants that, since: the King's Regulations and Admir-i alty Instructions were, to quote the Order enjoining their observance, "established by his Majesty's Order In Chunell," any further limitation of the jurisdiction of the first defendant which appeared from the Regula- tions could be relied on by the plain- tlf, and did not merely expose the defendants to disciplinary action for disregarding the limitation.
His Lordship then reviewed the relevant provisions of the King'si fegulations, and sak that It resulted that, according to article 551, the plaintiff was not to be sentenced summarily to detention except for one of the offences specified in the article. The short point for decision. was whether he was sentenced for "highly insubordiante conduct."
Counsel for the plaintiff pointed to In which the plaintiff's the terms offence was specified on both the charge sheet und the warrant, and contended munishment Instructions
that It appeared from those terms that the pinistint was neither charged with, adjudged guilty of, nor sen- ghly insubordinate tenced for conduct." He (his Lordship) agreed with counsel for the plaintiff that.) whether the plaintiff could have been so charged, adjudged, and sentenced, having regard to the admitted par-
immaterial if that was not in fact done. Counsel further contended that whether Captain Shelley com- sidered the plaintiff to be guilty of really irrelevant. He this *Lord. ship) agreed that that was so it.
his superior officer. The defendants leall with "Discipline." and section denied that in ao detaining the plain-
chapter with "Summary * Punishments,
leies and comprised articles they acted without lawful justi-
1535 to 506. fication, and they relied on the pro-
Table 1 of article 540 yisions of the Naval Discipline Act, was headed "Index of Offences sun- 1870, and the King's
age Regulations and ging he hum maximum sue Admiralty Instructions.
punishment that may
shority before 8,15 4.13., Chief Engine/Table I prescribed detention is the ticulars of his conduct, was wholly
It was stated that in January, 1838,warded for each." Section (d) of for "I. Wilful dis- Room Artificer Mauger, the plaintifs manishment superior officer, entered the engine-bedience of orders.""
Article 532 provided that chief powe room artificers' mess and gave the petty officers who could not be is usual order to begin work, using rated in category which included the some such words as "Come along platatif) might be sentenced sun-ly insubordinate, conduct lads, turn to." A few minutes later] Mauger found that every one had arity to detention only for certain lefl the mess except a sloker and/flences, which inchided highly in- but only it, the defendants were pre-i
the
subordinate conduct.
JUDGMENT
was!
cluded by the documents from esta- blishing that that
was the offence for which the plaintiff was in fact taentenced.
UFS
This is the coat of arms of Insurgent Spain, which will become the official coat of arms for all Spain, when General Francisco Franco is declared completely victorians, Figures are the three types of men fighting for Franco-Legionnaire. Phalangist and
Navarese.
should follow as closely as possible mom purichment which could inwe the wording of the appropriate sec-Yully be imposed for that offense. tion of the Naval Discipline Act. Counsel for the plaintiff had further
the plainur. Maurer said to
Sir Stafford 'Cripps. K.C., Mr. plaintiff, Turn to. Jenkins. The plaintiff then got up and said in the Peter Pain, and Mr. Anthony Cripps appeared for the plaintiff; the At- presence of the stoker some such torney-General (Sir Donald Somer- words us "Well, it has got to come vell, K.C.) and Mr. H. 1. Parker for
THE FIRST DIFFICULTY at last, chief. I am not going to do the defendants.
Accordingly it was contended for urged that the officer in command 'The Arst dieulty was that, while the defendants that conduct render of the ship could not be the judge any more work for the Admiralty,
article 552, when read in conjuncing the offender guilty of any one of his own Jurisdiction, but he this Will you tell the senior enginçer when you go along?"
tion with auticle 551 which referred) of the three offences created by Lordship) thought that it was clearly Mr. Justice Hallett, giving judge to it, clearly contemplated that high-section 17 might amount to highly for such an officer to decide whether As a result of that occurrence ment. referred to the fact that Caply insubordinate conduct was an of insubordinate conduct, and that the the person charged with wilful dis charge was made against the plain-tain Shelley has been prepared to fence tribble under the Naval Disei- question whether it had been of the obedience was guilty of that offence. tif, alleging that he "did wilfully give evidence that, before arriving pline Act, the Act itself did not re-gravity described by those disobey the lawful command of
words and, if so, whether the quality of 31 the decision recorded on thefer in terms to his superior ofcer when ordered to punishment
any such offence, was one for determination by the his offence was, in all the circum- warrant, he had
ad-/The inclusion of "Insubordination" High Court. Counsel for the plain-stances, suficiently serious to uring turn to nt 8.15, and he was ordered dressed his mind to the question as the second offence in Section (3)¦ Um, on the by Captain Shelley to be kept in de- whether the plaintiff was guilty of at Table 2 in article 540 also seemed that wilfully disobeying the lawful subordinate conduct."
other hand, contended it within the description "highly in- teation in the Portsmouth Naval highly insubordinate conduct, and to contemplate that insubordination command of a superior officer could It was strongly contended for the Detention Quarters for 42 days, the had come to the conclusion that he was an offence triable under the not amount to highly insubordinate plaintiff that Table I under article punishment warrant being signed was. Sic Stafford Cripps had int- Act. Accordingly, counsel conceded conduct, wilful disobedience being 540 prevented the also by Lord Cork and Orrery as mated that he was prepared to treat that highly insubordinate conduct something merely passive, and in-garding wilful disobedience as Commander-in-Chief. The plain-hat evidence as having been given was an offence covered by section 17 subordination being something in kind of insubordination which might, tiff, in fact, served 36 days in deten- and not challenged, but he sub-of the Act, since it was common the nature of active defiance. He amount to "highly insubordinate con- tion, having received 21 rensiasion of nitted that it could be of no possi- ground that there was no other sec (his Lordship) was unable to take duct." because "wilful disobedience six days for good conduct.
ble relevance.
tlon which could cover it. A charge that view. In his opinion wilful dis-of orders" appeared as the first of The
question, it was said, was
It was contended for the plaintiff of highly insubordinate conduct in obedience to a lawful command of fence mentioned in section (d) of whather in the circumstances the that the first defendant had no juris- those terms in the charge-sheet a superior officer would commonly the Thole, which seelion was headed ellence with which the plaintiff was dietton, in the circumstances of the would have been a charge of an of- and correctly be described as a kind "Disobedience," charged was one which could be case, to sentence him summarily to fence not mentioned in the Act, and of insubordination, although not the dination and Disespect bie whereas "Insubor-
Court from re-
was the
dealt with summarily or one which retention on the punishment war-ne insertion of such a charge on only kind. must be tried by Court-martini. rant, and that that detention there- the punishment warrant would have It was not disputed that the quali- "insubordination" being the second Section 17 of the Naval Diselpline fore mounted to a false imprison failed to comply with the require-ty, as distinct from the nature, of offence mentioned in that section. In -Act, 1866,-provides-ns-follows:- ment-in paint of law, for which both mente-of-article-330,-which-provided-the-offence-committed-was a matter his opinion that Table could neither Every person to this Azt wim shalt | Sefendants were responsible and that when punishments were ordered for consideration by, and only by, create fresh offerees nor subdivide wilfully disobey any lawful cam-were liable to pay damages. The by warrunt, as in the present case, the persons entrusted with the duty existing ones except with regard mand of his superior officer, or shut only questions which it was neces- the charge as shown under the of deciding how fur the offender suggested normal maximum punish- use threatening or insulting Jangu sary to consider were whether Cap-heading "Particulars raf Offener" ought to suffer or escape the muxi-ments. Nor could the Table affect
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by such creation or subdivision the permissible mode of trying offences. Article 540 was only intended to deal with limitation of punishments, and ought not to be utilised so as to have the effect of dealing with jur- isdiction
try fences summarily. He came to the conclusion that the plaintiff was not sentenced without jurisdiction, and that his claim ac- cordingly failed.
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It was usual for the trial Judge! JUST
in such eleumstances to indicate the damages which he would have awarded to a plaintiff in case on ap- peal against his dcclsion should sue- ceed. In the present case, however. he (his Lordship was in no better position to assess the damages thar a higher Court would be. He there- I fore contented himself with saying that no suggestion had been made that the defendants were guilty of anything more than a bonn-fide mis- apprehension as to the extent of the powers conferred on Captain Shel- [Jey by provisions which, as sufficient- ly appeared from the judgment, were I not very easy to construe,
nad
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