PUBLIC RECORD OFFICE
C.O.8
Reference :-
-885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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imprisonment in any part of His Majesty's dominions at the expense of the Imperial Government.
The attention of the Law Officers and of Mr. Rowlatt is called to the question of the imposition of fines on prisoners of war, having regard to Articles 4 and 6 of the Hague Convention of 1907. Except in the case of officers who are to receive the pay of their rank, in which case the fine could be deducted from their pay, it is not seen how a fine could be enforced.
The matter is referred for the consideration of the Law Officers, and Mr. Rowlatt generally, but it is suggested that the following questions in particular arise without prejudice to any other questions that may occur to Counsel, viz. :—
1. Is it desirable that the proposed military courts should have jurisdiction over all offences as proposed, leaving it to the discretion of the military authorities whether offences capable of being tried by civil courts should be tried by civil courts or by the military courts?
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2. Is it desirable that the sentences imposed by military courts should be capable of being continued after the cessation of the war, and, if so, is any and what legislation necessary for the purpose of producing that result?
3. Is the constitution of military courts for the various purposes suggested within the prerogative powers of the Crown, apart from the question suggested in Question 2?
4. Is it desirable that the civil courts should have power to deal with offences of a quasi-military nature being not otherwise offences according to civil law, and, if so, is any and what legislation necessary for that object?
5. Is it desirable that the jurisdiction of the civil courts over offences com- mitted by or in relation to prisoners of war should be to any extent excluded, and, if so, is any and what legislation necessary for that purpose?
6. Whether the Law Officers recommend Imperial legislation for the purpose of giving effect to the proposed Code, or for other purposes connected with the custody of prisoners of war in His Majesty's dominions outside the United Kingdom?
7. Whether the Law Officers approve the provisions of Article 9 of the Code with regard to dealing with offences in the civil courts of British possessions outside the United Kingdom?
8. Whether any and what legislation is necessary for the purpose of giving effect to sentences of military courts during the continuance of the war in so far as they impose penal servitude or imprisonment in the ordinary civil prisons?
9. Whether the proposed imposition of fines upon prisoners of war is in accordance with international usage, and capable of being effectively enforced and generally, whether it is desirable or not?
The Law Officers and Mr. Rowlatt are requested to advise on the above questions, and generally on the proposed Code.
A copy of this Case has been submitted by the War Department to the Foreign Office and the Colonial Office. Copies of the Departmental Minutes and Corres- pondence relating thereto are sent herewith for the information of the Law Officers and Mr. Rowlatt.
OPINION.
1. We think it is desirable that military courts should have jurisdiction over all offences, though they would exercise such jurisdiction not technically as courts, but as wielding the disciplinary power of the State over prisoners of war, which according to the municipal law of this country is absolute.
2. We do not think this is desirable. Legislation would be necessary.
3. Yes.
4. We do not think it is desirable that civil courts should have power to deal with quasi-military offences not being offences according to the ordinary law. Legis- lation would be necessary to give any such power.
5. We do not think it is desirable to exclude the jurisdiction of the civil courts. Legislation would be necessary to do so.
6. No. 7. No.
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8. We do not think legislation would be necessary for the purpose in question. It is not necessary in order to prevent successful objection by the prisoner, and, so far as the prison authorities are concerned, we apprehend they would not decline to act on the ground that there was no statutory provision applicable to the case.
9. We do not think that fines should ever be imposed on prisoners of war. Generally. We think the maintenance of discipline among prisoners of war, including their punishment for offences which they may commit, ought to be kept under the prerogative of the Crown untrammelled by legislation, Order in Council, or other instrument of that precise character. We think that the officers in charge of prisoners of war might well receive instructions for their guidance in the trial and punishment of offences, including provisions for the assembling of a sufficient number of officers to deal with serious cases and the reporting for confirmation of serious punishments. But any such instructions ought, we think, to make it clear that it is not intended either to limit the power of the Crown to deal with prisoners of war, or to do more than guide the discretion of the officers in the exercise of that power for the Crown. We do not think it would be difficult to make it clear that, while the instructions are put forward as a guide to the officers to be followed as a general rule, there is no limitation of a legal character rigidly and literally applicable so as to prevent them, in case of need, dealing with any matter as circumstances may require.
Law Officers Department,
31st December, 1910.
RUFUS D. ISAACS.
JOHN SIMON.
S. A. T. ROWLATT.