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PUBLIC RECORD OFFICE

121

C.O.885

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16 PUBLIC RECORD OFFICE, LONDON

No. 133A.

(GENERAL.)

CASE SUBMITTED BY THE WAR OFFICE FOR THE OPINION OF THE LAW OFFICERS OF THE CROWN AND MR. ROWLATT.

Custody of Prisoners of War.

The Law Officers and Mr. Rowlatt are referred to the Case laid before the Law Officers in June, 1906, and their Opinion thereon of August 18th, 1906, together with the documents accompanying that Case, copies of which are herewith.

Certain proposed general rules with regard to the internment of prisoners of war in the United Kingdom were then laid before the Law Officers, but were not considered in detail; the Law Officers advised that these Rules could be adopted both in the United Kingdom and elsewhere in British dominions without the necessity of legislation.

On receipt of the Law Officers' Opinion the proposed rules were laid by the War Office before various Government Departments, e.g., the General Post Office and the Customs, with regard to postal and customs facilities to be granted to prisoners of war-which resulted in the amendment and division into two rules of the original Rule 21; at the instance of the Foreign Office, and to give effect to paragraph 1 of the Law Officers' Opinion, an amendment was made in Rule 3 (as to application of Army Act).

Paragraph 27-as to the division of charges between War Office and Admiralty Votes-was also omitted by arrangement between the two Departments, for purposes of administrative convenience.

The copies of the rules before the Law Officers show in red ink the amendments made; and the Rules, as so amended, were formally approved by the Army Council in July, 1907. Instructions were conveyed by the Colonial Office to the Governors of Crown Colonies that such legislation (if any) should be passed as might be necessary to give effect to the Rules in any Crown Colony, but it was not thought necessary at the present time to communicate with the Governments of the self- governing Dominions.

The Government of India made the following criticism on the proposed Rules :-

(2) With reference to Rule 3 of the "General Rules for prisoners of war interned in the United Kingdom," it is thought that the expression military law" used in that rule might lead to misunderstanding. Strictly speaking, the only persons subject to military law seem to be those persons specified in various Sections to Part V. of the Army Act, and in Part 1 (d) of the Indian Articles of War.

Prisoners of war are not specified. If they are definitely held to be subject to military law (i.e., to the Army Act) the power of military courts over them would be limited to that given by the Army Act, whereas it is constantly necessary to declare that certain acts committed by such prisoners are offences, even though they are not made so by the Army Act.

in the

"

(3) For this reason we recommend that the expression "military law

above rule be substituted for the words "Military discipline enforced by courts-martial which will ordinarily follow as a guide the provisions of the Army Act and Rules of Procedure for courts-martial under that Act."

The Treasury Solicitor, having been, asked to lay the matter again before the Law Officers to consider this question and the change that had been made in Rule 3 since the Rules had been before them, addressed the following minute to the War Office:-

ภ.

(C. 2.)

I feel some difficulty in dealing with this question, which is really matter rather for soldiers than for a lawyer. I think, however, that before I go to the Law Officers the matter must be discussed, and certain difficulties occur to me which it may be worth while to bring to your attention.

(30851-2.) Wt. 183-722. 25. 7/13. D & 8,