1939-03-29 — Page 15

Wednesday,

HONGKONG TELEGRAPH

March 29, 1939.

CHIEF PETTY OFFICER'S ALLEGATION

· MR.

OF FALSE IMPRISONMENT

Jenkins v. Shelley And Another

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, an engine-room artificer, 4th class, with rating as a chief petty officer in the Royal Navy, of H.M.S. Curacoa, claimed damages for alleged false imprisonment from Captain Richard Shelley, commanding the Curicon, and the Earl of Cork and Orrery, Commander-in-Chief at Portsmouth,

Mr. Jenkins complained that on age, or behave with contempt to his January 22, 1938, Captain Shelley. superior officer, shall be punished with the knowledge of and by the with dismissal with diggrace from authority of Lord Cork and Orrery, his Majesty's service, or suffer such as is hereinafter caused him, without lawful justifica-other punishment flon, to be assaulted and falsely im-mentioned. prisoned for a period of 30 days in Under that Act an offence under

from time

tain Sholley find the necessary juris-j diction in point of law to sentence the plaintiff summarily to detention; and, secondly, it he had not, what damages ought to be awarded.

I Lordship referred to section 56 (2) of the Naval Discipline Act, 1800, and wald that none of the limitations there Imposed on the general power of summary trini and punishment in respect of offences trlable under the Act was applien-{ ble to the present case, It was con- eeded for the defendants that, since the King's Regulations and Admir- aily Instructions were, to quote the Order enjoining their observance, "established by his Majesty's Order in Creil any further limitation of the jurisdiction of the first defendant Regule- Appeared from the which tions could be relied on by the plain- tiff, and did not merely expose the defendants to disciplinary action for disregarding the limitation.

o

His Lordship then reviewed the relevant provisions of the King's Regulations, and said that it resulted to article 551, the that, nerording

not to be sentenced plaintiff was

except for summarily to detention one of the offences specified in the article. The short point for decision

"highly insubordinate conduct." was whether he was sentenced for Counsel for the plaintiff pointed to the terms in which the plaintiff's offence was specified

the charge both

sheet and the Chapter XII of the King's Regula-

and Admiralty Instructions punishment warrant, and contended

that it appeared from those terms:

on

the naval detention quarters. ut section 17 could be punished by 42 Portsmouth and that as a result he days detention, and might, subject Issued by the had been brought into public scandal to the regulations

Adiniralty

to time, be and adium.

By their defence the defendants summarily dealt with and punished

the by

xegulations captain. The with the sald that Captain Shelley, v

verlain restrictions with approval of Lord Cork and Orrery, contained sentenced Mr. Jenkins to 12 days regard to summary dealing with of-

fences. detention because he had been guilty of highly insubordinate conduct in disobeying the lawful command of tions his superior officer. The defendants dealt with "Discipline," and section that the plaintiff was neither charged denied that in so detaining the plain of that chapter with "Summary tiff they acted without lawful Jus-Punishments," and comprised articles with

535 to 680. Table I of article 540 Beatlon, and they rolled on the pra- visions of the Naval Diccipline Act, was headed "Index. of Offences sug

that may 1070, and the King's Regulations and esting the normal maximum sum-

mary Admiralty Instructions.

awarded for

be

with, adjudged ulify of, nor sen- tenced for highly insubordinate conduct." He (his Lordship) agreed with cuunsel for the plaintiff that. whether the plaintiff could have been so charged, adjudged, and sentenced, It was stated that in January, 1035 Table i prescribed detention in the ticulars of his conduct, was wholly shortly before 8.15 a.m., Chief Engine punishment for "I. Wilful. dis-

immaterial if

if that was not in tact Room Artificer, Mauger, the plaintiff's abedience of orders."

done. Counsel further contender! superior officer, entered the engine

Article 552 provided that chief

that whether Cuplain Shelley con- room artificers' mess and gave the

officers who could not be dix- sidered the plaintiff to be guilty of usual order to begin work, using ruled in category which included the side raled

highly Insubordinate conduct some such words as "Come along. plaintiff) might be sentenced un-really Irrelevant. Ile (his Lord- tads, turn to." A few minutes later marily to detention only for certain ship) agreed that that was so t Mauger found that every one had offences, which included highly in- but only if, the defendants were pre- left the mess except a stoker and subordinate conduct.

cluded by the documents from esta- the plaintiff. Mauger said to the Sir Stafford Cripps, KC., Mr.blishing that that was the offence plaininy, "Turn to, Jenkins." The plaintiff then got up and sald in the Peter Pal, and Mr. Anthony Cripps for which the plaintiff was in fact presence of the stoker, some such peared for the plaintiff; the At- torney-General (Sir Donald Somer- words na "Well, it has got to come vell, K.C.) and Mr. H., L. Parker, far

do at last, chief. I am not going to

ny more work for the Admiralty. the defendants, Will you tell the Bentor engineer when you go along?"

pun." Section (d) ofving regard to the admitted par-

JUDGMENT `.

the 'decision

kentenced.

terms

to

Was

UFS

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Navarese.

for that offence. the wording of the appropriate sec-ully be imposed should fellow as closely as possible mum punishment which could_law- tion of the Naval Discipline Act. Counsel for the plaintiff had further THE FIRST DIFFICULTY

Accordingly I was contended for urged that the officer in command The first dificulty was that, while the defendants that conduct render of the ship could not be the judge article 55%, when read in conjuncing the offender guilty of any one of his own jurisdiction, but he (his three offences created by Lordship) thought that it was clearly tion with article 551 which referred of the Mr. Justice Hallett, giving judg-to li, clearly contemplated that high-section 17 might amount to highly for such an officer to deelde whether As a result of that occurrence amint, referred in the fact that Cap-15 insubordinate conduct was an of-insubordinate conduct, and that the the person charged with wilful dis- charge was made against the plain-tain Shelley had been prepared to fence irlable under the Naval Disci- question whether it had been of the obedience was guilty of that offence, by those words and, if so, whether the quality of tiff. alleging that he "did wilfully give evidence that, before arriving pline Act, the Act itself did not re-gravity described

the

command of lawful com

recorded on thefer in disobey

any such offence. was one for determination by the his offence was, in all the circum- his superior officer when ordered to punishment wariant, he had ad-fhe inclusion of "Insubordination" High Court, Counsel for the plain stances, sumelently serious to bring other hand, contended it within the description "highly in turn to at 8.16, and he was ordered dressed bla mind to the question as the second offence in Section (1) tiff, on the by Captain Shelley to be kept in de-whether the plaintif was guilty of of Table 1 in article 540 also seemed that wilfully disobeying the lawful subordinate conduct."

It was strongly contended for the Insubordinate tention in the Portsmouth Naval highly

and conduct.

to contemplate that insubordination command of a superior officer could

offence triable Detention Quarters for 42 days, the had come to the conclusion that he was. an

under the not amount to highly insubordinate plaintiff that Table I under article Court from re- wilful disobedience being 540 prevented the punishment warrant being signed was. Sir Stafford Cripps hud intl- Act. Accordingly, counsel conceded conduct,

wilful disobedience garding also by Lord Cork and Orrery amated that he was prepared to trent that highly insubordinate conduct something merely paselve, nad in-

in kind of inaubordination which might Commander-in-Chief.

The

plain that evidence as having been given was an offence covered by section 17 subordination being something

sub- of the Act, since tiff, in fact, served 30 days in delen and not challenged, but he

wilful disobedience It was common the nature of netive deflonce, He amount to "highly insubordinate con- tlon, having received a remission of mitted that it could be of no possi-ground tant there was no other sce- (his Lordship) was unable to take duct," because

tion which could cover it. A charge that view. In his opinion wilful dis- of orders" appeared as the first of- ble relevance. six days for good conduct.

in section (d) of conduct in obedience to a lawful command of fence mentioned The question, it Wak satd, was It was contended for the plaintiff of highly insubordinate

In the

n superior officer charge-sheet o

would commonly the Table, which section was headed whether

terms circumstances the that the first defendant had no juris- those In the

"Insubor- "Disobedience," whereas

was the offence with which the plaintiff was diction, in the circumstances of the would have been a charge of an of- and correctly be described as a kind charged was one which could be case, to sentence him summarily to ferce not mentioned in the Act, and of insubordination, although not the dination and Disrespect

heading of section (1) in the Table, dealt with summarlly or one which detention on the punishment war-tu insertion of such-u-charge-on only kind..

It was not disputed that the quali "insubordination" being the second must be tried by Court-martial. rast, and that that detention there- the punishment warrant would have

Section 17 of the Naval Discipline fore amounted to a false imprison failed to comply with the require-ty, as distinct from the nature, of offence mentioned in that section. In Act, 1800, provides as follows:- ment in point of law, for which both ments of article 530, which provided the offence committed was a matter his opinion that Table could neither responsible and that when puoluhments were ordered for consideration by, and only by, create fresh offences nor subdivide Every person to this, Act who shall defendants

the persons entrusted with the duty existing ones except with regard to wilfully disobey

maximum punish- any lawful com- were able to pay damages. The by warrant, as in the present ease,

suggested norman! charge Rs shown under of deelding how far the offender mand of his superior officer, or shall only questions which it was neces- the

of Ofence" ought to suffer or escape the maxi-ments. Nor could the Table affect by such creation or subdivision the use threatening or insulting langu-sary to consider were whether Cap-heading "Particulars

permissible mode of trying offences. Article 540 was only intended to leal with limitation of punishments, and ought not to be utilised so as to have the effect of dealing with jur- Isdiction to try offences summarily.

He came to the conclusion that the i plaintiff was not sentenced without jurisdiction, and that his claim ac- cordingly failed.

were

His business might have failed due to NIGHT STARVATION

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It was usual for the trial Judge in such circumstances to Indicate the

which he would damages

have awarded to a plaintiff in case an ap peal against his decision should suc- ceed. In the present case, however. The this Lordship) was in no better position to assess the damages than a higher Court would be. He there- fore contented himself with saying that no suggestion had been made that the defendants were guilty of n bona-ide mis- anything more than apprehension as to the extent of the powers conferred on Captain Shel- Bey by provisions which, as sufficient- ly appeared from the judgment, were not very easy to construc.

The Solicitors were Messra.

Thorowgood Gower, Pollard, Tabor; the Treasury Solicitor.

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