PUBLIC RECORD OFFICE
TELEC.O.885
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16 PUBLIC RECORD OFFICE, LONDON
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The questions, however, which will probably require the principal attention of the Law Officers are the relations of the proposed scheme as shown in the draft Code to the Municipal Laws of the United Kingdom, or of any other part of His Majesty's Dominions in which prisoners of war may be confined.
The attention of the Law Officers and of Mr. Rowlatt is especially called to paragraphs 2, 6, and 7 of the Report, and to Appendix 1. There are three kinds of tribunals constituted for dealing with offences; (1) the Camp Commandant, to deal with minor offences, but with powers not necessarily confined to minor offences, because it might be desirable in some cases, either from default of a proper civil court, or of the possibility of creating a military court, or for some other reason, (2) to deal with even offences of some degree of seriousness in a summary manner. The military courts which it is proposed to constitute under the Act on the lines of courts-martial (see paragraph 11 of the Code). Some consideration, of course, will be necessary in applying the provisions of the Army Act relating to courts-martial to these courts, but it is not anticipated that there will be any great difficulty in doing so. The power of military courts to deal with prisoners of war in accordance with their findings, during the war at all events, would seem to be inherent in the general prerogative of the Crown over prisoners of war, which was discussed in the Case lately laid before the Law Officers. It was thought desirable that certain classes of offences in particular, mutiny, escape, and breach of parole should be dealt with as quasi military offences by a military court rather than a civil court, notwithstanding the fact that in each case the prisoner might have been guilty of some offence against the ordinary civil law of the place where he was confined. The resort to military courts in these cases may be desirable both on grounds of the maintenance of discipline and of a proper respect for the authorities, and also in the interests of the prisoners themselves, who, in accordance with the spirit of Article 8 of the Hague Convention, as soldiers might well prefer to be tried by soldiers in cases where soldiers would best understand the feelings which had animated them in the action which had been taken. Similarly, it may be that in other offences constituting serious civil crimes it might be very undesirable to take the matter before a civil court, for instance, duelling, which, though a crime in British dominions, is not a crime according to the law of many countries, e.g., Germany. It might be considered unjust to two German officers who took part in a duel, being prisoners of war in this country, to subject them to the ordinary process of the courts, resulting, possibly, in a sentence of death. There are also serious crimes which, though involv- ing disgrace in some European countries, are not there treated as criminal offences, for instance, unnatural offences. In both of the instances which have been given it would seem to be unjust to subject prisoners of war to the laws of a country to which they have not come of their own free will, but to which they have been brought by force, and of the laws of which they are probably quite ignorant. Other cases of the same kind, for instance, gambling, might easily be conceived. There may also be cases in which, for reasons of policy, it may not be desirable to take the offenders before a civil court, with the publicity naturally involved in such a process. There will also often be cases in some parts of the British dominions where there is no suitable civil court available. In order that the authorities may have a free hand on this question it seems desirable that the military courts should have full juris- diction to try even offences committed by a prisoner of war, but this, of course, is a matter for consideration, and the Law Officers are referred to Section 41 of the Army Act, which, to some extent, limits the powers of courts-martial to deal with civil offences. The above observations are without prejudice to the general rule suggested (see paragraph 17 of the General Rules) that it will in most cases be desirable to bring ordinary civil offences before a civil court. (3) As regards offences to be tried before the ordinary civil courts, prisoners of war are, of course, amenable to the jurisdiction of the courts of the country in which they happen to be, unless that jurisdiction be expressly excluded by legislation. If legislation is thought desirable in the case of prisoners of war, it might be worthy of consideration whether the jurisdiction of the civil courts might not be excluded, except with the sanction of some high public authority, but perhaps it may be considered not practically pro- bable that any criminal prosecution would be instituted in the civil courts except at the instance of the military authorities. In this country, however, a Coroner's inquest might, in some cases, be undesirable; on the other hand, it might be regarded, perhaps, as a safeguard against the ill-treatment of prisoners of war, resulting in their death. This, however, as they will always be under the command of responsible
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officers acting in accordance with regulations, need not, perhaps, be regarded as a serious danger. In the case of a duol having a fatal result, a Coroner's inquest in this country might lead to awkward complications.
It will be observed that the Committee has drawn its report on the footing that legislation will be undertaken. It may well be, however, that this might be con- sidered undesirable. Legislation appears to be necessary for the purpose of enforcing the draft Code in the following respects, viz.: (1) in order to give the military courts the power of passing sentences which should take effect after the expiration of the war. It does not seem to be the case that there will be any power according to English law to pass such sentences. In 1901 (July 6th) the Law Officers advised that sentences inflicted by martial law courts could not legally be continued after the cessation of martial law. Internationally, it is understood that the matter is left in some uncertainty, but after the Franco-German war the Germans did continue to enforce sentences of imprisonment for ordinary offences passed against French prisoners of war during the war by military courts. The matter, therefore, is open to consideration as an element in the consideration of the question whether there should be legislation or not. (2) Legislation seems to be necessary in order to give the civil courts power to try the various offences of a quasi-military nature described in the draft Code. (3) If it were desired in any way to exclude the jurisdiction of civil courts, of course legislation would be necessary for that purpose. (4) It might be thought necessary to pass Imperial legislation, taking effect, at all events, in Crown Colonies, for the purpose of superseding any local legislation, or providing for the absence of any local legislation which might other- wise cause difficulties in carrying out the Code under the law of the particular British possession in question. The law relating to prisoners of war (like that of prize) might be considered to be a matter which is properly dealt with by general legislation running over the whole Empire, except, of course, that in the self- governing Dominions their assent would have to be procured. It is difficult, for instance, to be sure that a law as to the powers of the Crown over prisoners of war would be held to be in force (if disputed) in British possessions governed by the Roman-Dutch law, and, of course, there is also the question of Protectorates, such as Mombasa, where His Majesty has only jurisdiction under the Foreign Juris- diction Act.
This question would have to be considered by the Colonial Office, who might consider it better dealt with by local legislation in each Colony.
With regard to paragraph 9 of the Code and to Appendix 1, an attempt has been made to provide for the case of prisoners of war being confined in various parts of the British Empire. There is a precedent for defining the offence of which they were guilty as one which, when committed in England, is punishable by the civil law in England (see Army Act, Section 41 (5) ), and it was thought that, if the offence was a criminal offence under the law of the British possession or Protectorate in which they might be, that should also give the court jurisdiction. It was thought, however, very undesirable that jurisdiction should be given indiscriminately to British Colonial courts, which very often are in charge of comparatively subordi- nate officials, not really fit to be trusted with cases which might be of important moment. It was thought, therefore, desirable that it should be left for an Order in Council to lay down what courts should have the right to try offences committed by prisoners of war, but this precaution would hardly seem to be necessary in the case of the United Kingdom.
With regard to the nature of the sentences, in the case of a sentence inflicted by a military court, whether it is to run after the war is finished, or whether it is only to last during the continuance of the war, it must be for consideration whether some administrative difficulty might not arise with regard to the confinement of prisoners in penal servitude prisons or in ordinary prisons in the United Kingdom or elsewhere. In the United Kingdom it would not appear necessary that there should be legislation, provided there is sufficient warrant from the Crown in some shape or another to the Governor of the prison to take custody of the prisoner of war and treat him in such manner as may be prescribed. As to British possessions it is impossible to speak with any certainty, as it must depend on the law and adminis- trative provisions in the British possession in question.
It might be desirable to enact legislative provisions similar to those contained in the Army Act and the Navy Discipline Act for the execution of sentences of