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Justices militaires et guerres mondiales

Jean-Marc Berlière
Jonas Campion
Luigi Lacchè
et al.

The Last Word on the Capital Court Martial Controversy in Britain?

Towards a History of British Military Law in World War I

Gerry Rubin

Texte intégral

  • 1 The recent background of the granting of posthumous pardons in 2006 may be traced to legal pressur (...)

1With the enactment by the British parliament of a statute entitled the Armed Forces Act 2006, it seems that the controversy surrounding the executions of over 300 British and Commonwealth soldiers in the First World War, following their convictions by courts martial for military offences, has now been laid to rest.1 The statute authorised posthumous pardons, which were then formally granted, to those shot at dawn for offences such as desertion, cowardice, sleeping on post, and casting away arms in the presence of the enemy. As such, whether one is persuaded that the gross injustice of executing soldiers under such conditions has at last been rectified 90 years after the events, or whether one believes that a ‘politically correct’ symbolic gesture has made a mockery of respecting the uniqueness of historical circumstances, it is perhaps time to make some final observations on a debate which has generated both emotion and scholarship in equal measure.

2Indeed, a shift of focus in respect of the study of British military discipline in the First World War would be timely. It may be observed that a general study of wartime British military law has yet to be written. Such a study would cover a broader range of issues than that encompassed in the executions controversy, as it would extend to an analysis of the use of informal sanctions, summary disciplinary procedures, and those courts martial which were held in the United Kingdom (UK) itself, where around one million soldiers served in the later years of the war. Indeed, a broader study of UK military law would also embrace a study of soldier morale and the relations between officers and the men they led.

3One possible explanation for the fact that the history of the British military justice system as a whole during the war has yet to be written is that the vast majority of court martial records containing transcripts of proceedings, or even decent summaries of how individual proceedings unfolded, no longer survive. The documents were themselves victims of war; in this case they were destroyed in Hitler’s Blitz on London in 1940. Thus the only trial records of British courts martial in the First World War are those of the 346 cases that resulted in the executions of the convicted men. There are indeed other court martial sources in the British National Archives, such as court martial registers, letter books, correspondence, war diary entries, departmental policy documents, military law manuals, etc. (Roper 1998: 81-85; Fowler et al. 1997: 20-22), as well, of course, as memoirs, soldiers’ letters, and private papers. However, no comprehensive general survey of World War One military law in Britain has yet been attempted.

  • 2 The figures may be calculated from HMSO, 1921. General Annual Reports on the British Army, etc., f (...)

4The debate over issuance of pardons for the executed soldiers reached an acute level of intensity, in terms of books and articles, academic conferences, parliamentary consideration, and television and radio programmes, in the period from 1988 until the enactment of the 2006 Act. This is notwithstanding that the capital courts martial cases represented only an infinitesimal fraction of courts martial held during the war. Estimates suggest that there were some 250,000 courts martial during the war itself (and 287,049 hearings between 1914 and 1920), excluding the tribunals of local units, i. e., regimental courts martial. As for the numbers of servicemen themselves, approximately 300,000 British soldiers were convicted by the wartime courts martial, though only 346 soldiers (a number which includes those shot for ‘civilian’ offences, such as murder) were executed by firing squad.2

  • 3 The Darling Committee (see note 2, HMSO, 1919) stated in par. 107 that ‘no fewer than 89 per cent (...)

5Indeed, it is well known that 3,000 soldiers had been sentenced to death, but that in 89% of such cases the sentences were not carried out.3 Furthermore, since the case papers of those 89% were destroyed in 1940 we can only guess at the possible reasons (compassion, favourable reports of the convicted man’s fighting qualities, or legal grounds) why the sentences, and possibly the findings in some cases, were not confirmed by the commander-in-chief, Field Marshal Haig or by his predecessor, Sir John French.

6Thus while judgments might be formed regarding the fairness or unfairness of the executions actually carried out, it would be unwise to draw more general conclusions regarding the wartime British military justice system as a whole. It might be added that within the debate on capital courts martial, it might be thought that some of the parties involved were not so much addressing one another’s arguments as talking past each other. Indeed, the language on one side of the debate tended to emphasise the concept of military justice or, more accurately, the absence of military justice, while the other side focused on the importance of courts martial in seeking to maintain military discipline on the Western Front.

1. Military Law Procedure

7In pre-trial procedures before a court martial sat, a preliminary investigation would be conducted by the commanding officer (CO), including questioning of the accused and witnesses (War Office 1914: Chapt. V).

8If the CO considered that the matter should then go to trial, he would request his divisional commander (a major-general) to convene a court martial, and to send him both the summary of evidence taken at the preliminary investigation and the charge sheet. If the divisional commander, usually advised by his deputy judge advocate general (DJAG) in the theatre, agreed with the CO’s request, then a court martial would be convened in due course and a president of the court and members of the court martial appointed.

9It should, of course, be stressed that a court martial was usually a disciplinary proceeding of last resort. In the absence of a commander simply turning a blind eye to the offence, military justice procedures were more likely to entail a reprimand or a fierce dressing down by a sergeant, the informal infliction of some minor physical punishment or possibly a summary hearing. Indeed, military law as a social phenomenon was likely to be situation-dependent in the light of varying factors.

10These might include whether the offence occurred before a major offensive or after such an attack, during a period of leave, in the support or rear trenches, after the appointment of a new commanding officer concerned for the disciplinary record of his unit, after receipt of a circular from the commander-in-chief bemoaning lax discipline in his army or complaining of light punishments awarded by courts martial, the qualities (or lack thereof) of commanders to inspire or maintain a high standard of morale and discipline in their unit, and no doubt many other factors. In other words, military discipline procedures were not automatically triggered by the commission of an offence. They were ‘negotiable’.

11The vast majority of capital courts martial were called field general courts martial (FGCMs) and comprised a minimum of three officers (but occasionally two would suffice so long as the death sentence was not imposed). Service as a commissioned officer for a minimum of one year was the qualification required in order to sit on an FGCM. Such a court would be convened when the exigencies of the conflict made it impracticable to establish more formal general courts martial (GCMs) or district courts martial (DCMs) whose members had to have held commissions as officers for at least three years and two years, respectively. Of course, the availability of officers with qualifications to serve on the latter courts lessened during the war as battle casualties took their toll (Hussey 1997: 246-259).

  • 4 Darling Committee (see note 2, HMSO, 1919, par. 1).

12Given that there were an average of 160 courts martial a day during the Great War,4 resort to FGCMs may be understandable.

13FGCM hearings were expected to be more informal than those of the other courts, but the controversy is, of course, whether informality meant that they were kangaroo courts that disregarded the most basic principles of justice. Indeed, while the Rules of Procedure for GCMs and DCMs, issued under the authority of an Act of Parliament, the Army Act 1881, were quite detailed regarding the right of the accused soldier to appoint legal counsel, the rules for FGCMs, issued under the same legal authority, were silent on this issue. It was therefore possible to infer that civilian lawyers were not permitted outside the United Kingdom under the rules unless, suggested one authority, the Army Council gave permission (Babington 1985: 15).

14I do not think the point was ever tested in the higher courts. Few soldiers were therefore defended by officers possessing court room skills.

15Once soldiers had been convicted and sentenced by court martial, the trial papers were passed up the chain of command to ascertain whether there were legal or, more usually, operational or personal reasons why the decision (finding) and sentence should not be confirmed by the confirming officer. In the case of death sentences, as mentioned previously, the confirming officer was the commander-in-chief, Sir John French and then Sir Douglas Haig.

16Many critics of the death sentences have suggested that confirmation was dependant on whether or not the accused were considered by their commanders to be worthless soldiers who possessed no fighting qualities and who would contribute nothing to the campaign. The comments were attached to the court martial papers after the trial in such a way that neither the condemned man nor his defending officer, if he had had one, was able to have sight of the remarks in order to challenge them.

  • 5 (Bowman 2003: 117-8). While Rifleman Crozier was shot for desertion, Second Lieutenant Annandale, (...)

17Other criticisms are that officers might be more leniently treated than other ranks for the same offence.5

18The perusal of wartime officers’ personal files in the National Archives might enable some conclusions to be reached on this issue in the case of officers who had faced courts martial, once more extensive research has been conducted. However, the destruction of all the proceedings of wartime courts martial except for the 346 cases mentioned previously would obviously present difficulties in comparing outcomes. A further claim is that particular racial groups such as the Irish or native labour corps were more likely to be discriminated against when it came to the confirmation process than were other condemned soldiers. But it is suggested that the evidence is indecisive given the limited numbers involved (Oram 1988: 122-123).

19What is clear is that there was no formal court of appeal against a decision of a court martial. Soldiers could submit a petition which effectively asked for mercy or, if their defending officer had access to legal advice, a petition which raised possible legal errors. There was also the confirmation process itself that could be viewed as an automatic petitioning process. Finally, in the case of soldiers who had not been shot at dawn, the top civilian overseeing military law, that is, the judge advocate general (JAG) in London could, some months or even years afterwards, review convictions which had already been confirmed and advise the quashing of convictions if he spotted legal errors which had not been picked up by the theatre judge advocate during the confirmation process; not much help, of course, to those already executed.

20This then is an outline of the wartime court martial procedure. With regard to the vast majority of the 250,000 courts martial held during the war, it is simply not possible to know whether they were all fairly conducted, whether abuses were rare, whether they were common, or whether injustice was systematic (it may have been systemic given that there was no automatic legal representation). As to variations over time, or in respect of different theatres or different Army commanders, slight hints at most might be detected, but certainly not any clear patterns. Yet the lack of a clear overview of the system as a whole has not deterred the expression of strong and divergent views regarding the fairness of the proceedings which resulted in the executions of the 306 British soldiers shot for military offences. Let us turn now to that controversy.

2. The Capital Courts Martial Controversy

21In simple terms, the following are the different perspectives. First, there is the argument that since the principal purpose of courts martial was to underpin or enforce military discipline, the requirements of military justice were secondary, and one should not expect them to be a priority. A variant of this is that although courts martial were instruments of military discipline, they were nonetheless conducted fairly, so that military justice was, to some extent, accommodated.

22The third perspective rejects both these propositions. Military justice, according to this view, should be fully met at courts martial, especially when soldiers were on trial for their lives; according to this approach, military justice was callously cast aside as military leaders used the death penalty to rid the Army of worthless soldiers whose execution would be a useful example to others not to step out of line.

3. The Military Discipline Standpoint

23On the first point, there was no shortage of support for the proposition that military tribunals existed simply to enforce military discipline. Indeed, it would be wilful blindness to deny that, even if courts martial did have subordinate aims of reinforcing military values or, in earlier times, of providing an outlet for the vindication of military honour, the core business of courts martial nonetheless remained military discipline. Let me identify a few of the voices. For example, the civilian Legal Adviser to the War Office in the late nineteenth century noted that:

It must never be lost sight of that the only legitimate object of Military Tribunals is to aid the Crown to maintain the Discipline and Government of the Army, and that this is to be accomplished by upholding, so far as it can be with justice, the authority of every Command. (Clode 1869, II: 361)

24Note, of course, his phrase, ‘so far as it [discipline] can be [upheld] with justice’. Clearly in his view justice had to be subordinate to enforcing discipline.

25Indeed, it is hardly surprising to observe that many outstanding British Army commanders through the ages have considered that lawyers and lawyers’ criteria were an inappropriate presence at military tribunals. Military courts were perceived by such generals as a tool for upholding military discipline in order to secure, as they saw it, the more efficient working of the Army.

  • 6 Terms used by Viscount Wolseley, Adjutant-General. For archive citation see Rubin 1997.

26Thus the concepts of the rule of law, fair trials, no detention without charge, preciseness of charges, the right to defend oneself and to be represented in doing so, proper rules on admissibility of evidence and on the burden and standard of proof, the right of appeal against a judgment, trial by an independent and impartial tribunal, and so on were, according to the late nineteenth century military leader Viscount Wolseley, only ‘lawyers’ fiddle-faddle’ which had no place in a so-called ‘rude’ tribunal for ensuring military discipline among the men.6 Indeed, 50 years earlier, another famous general, Sir Charles Napier, appeared to suggest that lawyers representing soldiers at their courts martial only made matters worse for those whom they were representing (Rubin 1997).

27It is indeed significant that at least one academic lawyer holding a commission during the First World War expressed the view that fellow lawyer-officers, qualified to sit on courts martial, will ‘have learned little in the Army if they have not learned to subordinate legal ability to military discipline’. According to this writer, Percy Winfield, who became a celebrated Oxford law professor, any officer appointed as a prosecutor at a wartime court martial, ‘must understand that the spirit in which a court martial is conducted makes it resemble an inquiry more than a trial’ (Winfield 1918: 149).

28Of course, there is no way of knowing whether most of the almost 2,000 lawyers who had volunteered to serve in the Army by the end of 1914 would have shared his opinion.

29Arguably, one who did not was the DJAG at Fourth Division HQ in early December 1914, whose criticisms of carelessness on the part of brigade staff in respect of military discipline procedures and of a court martial held within the division prompted staff and regimental officers in the division to express exasperation at the intervention of the JAG’s staff in disciplinary matters. It was obvious, the staff complained, that the DJAG did not realise the difficult conditions under which courts martial were being conducted at that time (Winfield 1918:148-149).

30While the nature of the brigade’s legal shortcoming is not clear, the tension between military lawyers and other officers resentful of this legal interference with disciplinary matters is nonetheless an echo of earlier controversies in the 1870s and 1880s, on which I have previously written (Rubin 1997).

31Perhaps the DJAG was complaining that the court martial was too much of a ‘rude tribunal’. Indeed, according to Babington (1985: 17-18), discussing The Secret Battle (1919), a fictional account of proceedings written by novelist A. P. Herbert and based on the latter’s wartime experiences, a defending officer might be treated with hostility as an interloper by the court when he attempted to raise a point of legal principle at the trial, for example on admissibility of a statement or testimony. More often, however, the prisoner’s friend, as he was formally described, was ignorant of the basic principles of the rules of evidence and procedure. This was certainly the case after the virtual destruction, by the end of 1914, of the regular Army that had lost many officers with experience in court martial duties. It was also likely to have been the case before the issuing of instruction pamphlets to defending officers on how to conduct a defence of those they were representing in court, essentially a crash course in criminal law, legal reasoning and the law of evidence and procedure; a rather tall order, one would have thought.

4. ‘The System Was Basically Fair’

  • 7 Darling Committee (see note 2, HMSO, 1919, par. 3).

32Turning now to those who claimed that the wartime court martial system was basically fair, such proponents identified what they saw as many safeguards in the system. There was the requirement for the CO to conduct a preliminary investigation, and there were various stages of post-trial review: the confirmation process and possible petitions by the convicted soldier against the verdict and sentence. There was also post-confirmation review by the JAG in London, which admittedly would be rather useless to an already executed soldier. Despite this last limitation on the review procedure, a cross-party committee of inquiry set up by the Army Council and chaired by a High Court judge, Lord Darling, reported in 1919 that7

The results of our investigations into a limited number of cases put before us as typical lead us to the conclusion that, having regard to all the circumstances, the work of courts martial during the war has been well done. We are satisfied not only that members of courts martial intend to be absolutely fair to those who come before them, but also that the rank and file have confidence in their fairness.

33One could, for example, point to the legal obligations to be met by courts martial. Indeed, the Manual of Military Law issued by the War Office advised that at FGCMs, ‘Speaking generally, the rules which govern the procedure of ordinary courts martial should be observed as far as practicable’ (War Office 1914: 632).

34And since GCMs and DCMs were required by section 127 of the Army Act 1881 to obey the rules of evidence and procedure applicable in civilian criminal courts, it followed that FGCMs were also normally bound by English law rules on evidential matters such as corroboration, oppressive questioning, and so on.

  • 8 They included Field General Courts Martial: Notes for Guidance of Presidents (S. S. 391, March 191 (...)

35In an effort to try to ensure this legal compliance, the authorities made available to those participating in courts martial, whether as members of the court, prosecutors, or defending officers, guidance as to best court practices. Thus various pamphlets were regularly issued in many theatres and contained instructions on procedure and recommendations on how to ensure fairness to the accused.8

  • 9 WO154/116, DJAG, Middle East Forces, War Diary, October 31, 1915.

36Improvements in the efficient performance of courts martial that might be recognisable to lawyers were, however, slow in emerging. As one DJAG in October 1915 noted9:

The general standard of efficiency in Courts Martial is not high but shows some improvement. The majority of officers composing courts show an almost complete lack of acquaintance with the elements of the laws of evidence and with the procedure of Courts Martial. On the other hand, an unnecessary degree of formality is often demanded by Brigade and Divisional Staffs, whereas the essentials of proof of a charge are neglected and overlooked.

  • 10 On shell shock in the Great War see, for example, Babington 1997; Holden 1998; Shephard 2000; Barr (...)
  • 11 See Donnan 1999 and Scottish Sunday Express, July 21, 2002. Reference might also be made to the le (...)

37It did become more common to refer accused soldiers to medical boards before trial to assess their mental health in the light of cases of shell shock. We know, however, that the treatment of such casualties before courts martial was often unsympathetic.10 This is a criticism, incidentally, which can be made in respect of a number of servicemen affected by post-traumatic stress disorder following the Falklands and other conflicts, and convicted by British courts martial in the last 15-20 years.11

  • 12 See Solicitors’ Journal, Vol. 64, December 13, 1919: 126-127. For further discussion of court mart (...)

38But going back to the Great War, improvements in some aspects of legal procedure did occur from 1916 onwards with the appointment of advisory court martial officers to overseas commands. These officers appear to have been distinct from the military judge advocates under the JAG who might attend important courts martial to advise members on applicable law. According to Babington (1985: 153), court martial officers could be appointed as ordinary members of courts martial with the right to vote on finding and sentence. However most of their work seemed to involve advising commanders on legal questions in general, rather than perusing court martial proceedings, and in these tasks their advice was often ignored when it was not what their superiors wished to hear.12

5. The Critics of the Courts Martial

39Let me turn now to the critics of the wartime courts. As was remarked by the first historian to examine the government files on the executed men in the early 1980s (Babington 1985),

[…] the manner in which [the soldiers] were tried and their subsequent treatment have given rise to a profound uneasiness in the national conscience […] It can now be revealed that the general disquiet about these events has been more than justified. Viewed by the standards of today few of the executed men received the most [elementary] form of justice. They were tried and sentenced by courts which often regarded themselves as mere components of the penal process and which until the final year of the war, were asked to perform a complex judicial function without any sort of legal guidance. The cases for the accused were seldom presented adequately and sometimes were never presented at all. If crucial matters were raised which might have established their innocence they were rarely investigated by members of the court. Capital sentences were passed and were later sanctioned by senior officers with no proper enquiries being made into the backgrounds of those who were being condemned or into other factors which might have served to mitigate their punishment.

40The inference to be drawn from the comments by the above author, Anthony Babington (himself a judge who had been highly decorated during the Second World War and who had appeared at numerous courts martial during that war), is that such proceedings would be unacceptable in today’s courts martial and would justify setting aside convictions. I think it can also reasonably be claimed that a civilian on trial for his life during the Great War would not have found himself at such a disadvantage as those soldiers who eventually faced the firing squad.

41Indeed, a civilian trial would have been conducted in accordance with strict adherence to the law of evidence and procedure under the eagle eye of an experienced judge of Assize. Moreover, unlike the vast majority of soldiers tried for their life before a capital court martial – and surely ‘it is a point of some significance that such extreme punishments were not the normal court martial fare with which a soldier would be familiar and which he would expect to encounter during his service career’ – even the poorest civilian defendant in the civilian courts would have benefited from the forensic and advocacy skills of an experienced defence barrister payable under the ‘dock brief’ system or, later, under the Poor Prisoners Defence Acts.

  • 13 For the Australian prohibition on the use of the firing squad see Pedersen 2000. See also Ruggenbe (...)
  • 14 See Bet-El 2003: 154. She cites a signaller suffering from Spanish flu in 1918 who recorded, ‘I la (...)

42Thus those who have condemned the capital courts martial clearly reject the views of the revisionist historians, Corns and Hughes-Wilson, who suggested in 2001 that the executed men had been judged fairly according to well-understood standards of the day (Corns and Hughes-Wilson 2004: inter alia, 22, 37, 88, 449). So far as civilian standards were concerned, judicial executions were plainly no stranger to the first two decades of twentieth-century Britain. However, the only offences of significance were murder and treason. As for military standards, these were, of course, those of the British commanders-in-chief on the Western Front (and certainly not those of the Australians13). Yet it has to be conceded that even if the firing squad scarcely reflected the ‘well-understood standard’ of, say, pre-war (Spring) 1914, it is nonetheless a moot point whether the wartime Tommy in the trenches, be he regular, reservist, volunteer, or conscript, shared the view that the death penalty was the well-understood standard for desertion, for sleeping on post, and for striking an officer, or, if he did share it, whether he considered it fair and reasonable.14

  • 15 Aitchison 1920: 154. Craigie Aitchison (1882-1941) served in the Royal Artillery during the war, a (...)

43However, Corns and Hughes-Wilson further claimed that the accused soldiers had been ‘cross-examined carefully by courts desirous of getting at the root of the matter’ (2004: 96). Such a modern-day view might be contrasted with that of a contemporary author and future senior Scottish judge, Craigie Aitchison, acquainted with the wartime court martial system who wrote in 192015:

What matters are relevant to the issue, what questions can be competently asked and what are admissible, when and to what extent can surrounding circumstances be taken into account in judging of the fact or the quality of a crime… these are questions which can only be answered by those who have received a proper legal training and are well grounded in the principles of the criminal law.

44From those observations it may appear that Corns’ and Hughes-Wilson’s conclusion regarding ‘careful cross-examination’ might have been disputed on systemic grounds, i. e., that non-lawyers conducting courts martial simply did not possess the requisite skills to defend soldiers effectively on a capital charge. Indeed, for that particular contemporary observer, the standards of the ‘rude tribunal’ might have been more commonly in evidence.

45It is, after all, undoubtedly the case that cross-examining skill is learned with legal experience. Thus the absence of a decent standard during the conduct of FGCMs might well have condemned soldiers who might otherwise have been acquitted as a result of astute and incisive cross-examination which cast doubt on prosecution evidence. At the very least, an eloquent barrister’s plea in mitigation might have resulted in a non-capital sentence in some cases, although it is well known that in a couple of trials of officers, those of Sub-Lieutenant Dyett (Sellers 1995), tried then shot for desertion, and of Lieutenant Paterson (Corns, Hughes-Wilson 2004: Chapt. 30), tried and executed for murder, the performances of defending barristers were distinctly unimpressive. Of course, while the quality of defending counsel could well vary in civilian trials for capital offences, the very idea that a civilian accused on a capital charge would not be legally represented (and non-representation at trial was the experience of many soldiers shot by firing squad) was virtually impossible by 1914.

  • 16 Judge Anthony Babington, The Times, August 20, 1983, cited in Sellers 1995: 57.

46Particularly damning was Babington’s observation in a newspaper article, when he wrote that:16

The real fallacy of these cases was the sentencing. The court hadn’t the foggiest idea how to sentence. They were empowered to impose the death penalty or such lesser punishment as they deemed fit [that is, there was no mandatory death sentence as there would be in a murder conviction]. And again and again they imposed the death sentence and illogically again and again they recommended mercy. The reason was that a lot of junior officers or fairly junior officers thought we will impose the death sentence and then when the papers are passed to higher officers that they will put it right.

47While commutation of the death sentence in this manner by army commanders took place in the majority of such cases, clearly it did not occur in every one, most notably not in Sub-Lt Dyett’s case. In this case, the court’s recommendation of mercy on account of his youth and inexperience, among other factors (in a context, as noted above, where it possessed discretion not to impose the death sentence) was ignored by the chain of command. Here, surely, is an example of a system that was not so much ‘well-understood’, but misunderstood on the part of those officers serving on courts martial. Perhaps it was even worse. Perhaps there was a lack of nerve by the members of the court which might or might not be compared to that which had led some soldiers to the firing squad.

  • 17 Mellor was later a member of the Darling Committee. For a discussion of his wartime role see Child (...)

48As for safeguards for the accused, trumpeted in the Darling Report of 1919, in particular, the role of the DJAG in advising the confirming officer whether a finding and sentence should be confirmed, the fact is that in the capital court martial files, not many contain any observations on the legality of the proceedings, let alone a thorough scrutiny of such matters as the strength of the evidence, or its admissibility, or possible defences not raised by the accused or by his defending officer. Of course, a simple explanation might be that the senior DJAG on the Western Front, Brigadier Mellor17, found nothing legally amiss.

  • 18 WO71/630. For other cases where legal doubts existed, see Rubin 1998: 64. For an example of the qu (...)

49Some files did contain careful reviews by the theatre DJAG of the legality of the proceedings, though the legal or evidential issues in those cases were clearly more complicated than in other cases. For example the DJAG in Mesopotamia, Lieutenant Stanley Crawford, expressed grave concerns regarding the admissibility of evidence in the case of Private Richard Jones. Nonetheless, the soldier was still shot in February 191718. Whether this case was the exception that proved the rule, i. e., that generally speaking the proceedings in capital court martial cases were legally in order is, of course, a possible inference, but one presumably disputed both by contemporary lawyer Aitchison and by the judicial writer Babington in 1985 (above), albeit to some extent (but not in all respects) on speculative grounds.

6. Conclusions

50In summing up the debate, I thus suggest that both sides may have exaggerated their cases. There undoubtedly were some miscarriages of justice. But the incontrovertible evidence of offense in some cases suggests that there were also many proper convictions irrespective of the question of the appropriateness of the use of the firing squad. Indeed, the claim that tribunals fairly cross-examined witnesses and the accused might have some superficial attraction, but we may speculate that this might well ignore what skilled and experienced defence advocacy might have achieved both in respect of conviction and of sentence, in some cases at least.

51On the other hand, what of the point that military disciplinary proceedings could be perceived as rough and ready tribunals where only mitigation would be at issue and where, effectively, assumed guilt had to be disproved? It seems to me that this characterisation of courts martial as ‘rude tribunals’ might not be inappropriate in respect of soldiers accused of drunkenness, fighting, theft, insubordination, negligent performance of duty, going absent without leave, or displaying conduct to the prejudice of good order and service discipline. But when a soldier was on trial for his life, it was at that point, more than elsewhere during his military service, that a soldier was also a civilian. A rude tribunal, in those circumstances, would be a travesty.

  • 19 For more recent developments see Rubin 2002.

52As to the long-term legacy, we have seen a gradual erosion of the autonomy of courts martial from civilian judicial oversight. There is now a greater infusion of civilian legal norms into court martial procedure, hastened, of course, by the ECHR. But the first significant fruit had to await the post-Second World War period and the creation of the civilian Courts Martial Appeal Court in 195119.

53My final point is this: given that the controversy has surrounded just 346 court martial transcripts (306 if confined to ‘military’ offences) out of a caseload of 250,000 hearings, I have to say that I prefer to be cautious about passing judgment on the wartime military justice system as a whole. Any assessment of this question should not be confined to an analysis of formal disciplinary proceedings. Nor, of course, should it be restricted to exploring the regularity or otherwise of resort to the death penalty as a means of securing acceptable behaviour and obedience to commanders’ orders.

  • 20 Stimulating works within this genre include Bowman 2003 and Sheffield 2000. For a briefer version (...)

54A broader agenda should instead be welcomed, such as Oram’s research looking at later nineteenth-century military penal policy with a view to explaining why the British army in World War I relied on the death penalty much more than did other continental armies (Oram 2001), or the work of Gary Sheffield and Tim Bowman on discipline, morale, and man-management at the unit or larger formation level20. Given the destruction of the wartime court martial papers of those soldiers not shot at dawn, new directions in this persistent debate are, perhaps, overdue. To this end, wider use of unit records, officers’ files, the JAG’s correspondence, papers relating to the thousands of wartime courts martial held in the UK, pensions and medical records (especially for shell shock cases), and, if it were to be unearthed, the currently missing evidence presented to the Darling Committee in 1919, may yet yield exciting new insights on the wartime military justice system in the UK.



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1 The recent background of the granting of posthumous pardons in 2006 may be traced to legal pressure exerted by the family of one of the executed soldiers, which sought to challenge previous government refusals to grant pardons as unlawful under administrative law. For the legal proceedings see The Times, October 25, 2005; Observer, February 19, 2006; ‘New Hope of Pardon for WWI “Coward”’, Independent, March 28, 2006. For the press releases of the solicitors representing the family of the shot soldier, Harry Farr, see []. See also the ‘Shot at Dawn’ organisation at []. For earlier developments see Rubin, 1998; House of Commons Debates, 6th Series, Vol. 316, July 24, 1998, cols. 1372-5.

2 The figures may be calculated from HMSO, 1921. General Annual Reports on the British Army, etc., from 1st October 1913 to 30th September 1919, London, HMSO, Cmd. 1193: 82-83; HMSO, 1919. Report of the Committee Constituted by the Army Council to Enquire into the Law and Rules of Procedure Regulating Military Courts-Martial (Chairman, Lord Darling), London, HMSO, Cmd. 428, para. 1; War Office, 1922. Statistics of the Military Effort of the British Empire During the Great War, 1914-1920, London, HMSO: Part XXIII-Discipline.

3 The Darling Committee (see note 2, HMSO, 1919) stated in par. 107 that ‘no fewer than 89 per cent of the death sentences pronounced were commuted by the Commanderin-Chief…’ Modern writers refer to the approximate figure of 90%. See, for example Holmes 2005: 569 (Putkowski and Sykes 1992: 11).

4 Darling Committee (see note 2, HMSO, 1919, par. 1).

5 (Bowman 2003: 117-8). While Rifleman Crozier was shot for desertion, Second Lieutenant Annandale, in the same battalion, was apparently awarded a free pardon after his conviction for the same offence.

6 Terms used by Viscount Wolseley, Adjutant-General. For archive citation see Rubin 1997.

7 Darling Committee (see note 2, HMSO, 1919, par. 3).

8 They included Field General Courts Martial: Notes for Guidance of Presidents (S. S. 391, March 1915; available in Ministry of Defence Library); Instructions for the Use of Officers in Connection with Field General Courts Martial (issued with General Routine Orders, May 11, 1915: see [National Archives, London] WO154/116); Circular for the Information of Officers Serving on Courts Martial… (Circular No. 396/14, Nairobi, January 11, 1916; see WO154/295); and Notes on Defence: For the Guidance of Officers Appointed to Act as Friends of the Accused (prepared by Major Thomas Balston, Deputy Assistant Adjutant-General, Third Division, July 23, 1918; available in Liddell-Hart Centre for Military Archives, King’s College, London).

9 WO154/116, DJAG, Middle East Forces, War Diary, October 31, 1915.

10 On shell shock in the Great War see, for example, Babington 1997; Holden 1998; Shephard 2000; Barrett 2003. See Corns and Hughes-Wilson 2004 (especially Chapt. 6, 7, 25 and 26) for discussion of the phenomenon and relevant courts martial.

11 See Donnan 1999 and Scottish Sunday Express, July 21, 2002. Reference might also be made to the leading European Court of Human Rights case that declared the UK court martial system prior to April 1997 incompatible with the European Convention on Human Rights (ECHR). See ‘Findlay v United Kingdom’ (1997) 24 EHRR 221. This case involved a soldier whose post-traumatic stress disorder, contracted as a result of his service in the Falklands conflict in 1982, had apparently not been taken into account when he had been awarded the maximum sentence by the court martial.

12 See Solicitors’ Journal, Vol. 64, December 13, 1919: 126-127. For further discussion of court martial officers and their links to post-war developments in military legal services, see Rubin 1994.

13 For the Australian prohibition on the use of the firing squad see Pedersen 2000. See also Ruggenberg. For an earlier discussion, see Moore 1999: Chapt. 13.

14 See Bet-El 2003: 154. She cites a signaller suffering from Spanish flu in 1918 who recorded, ‘I lay down on a mattress in the cellar of a ruined farmhouse, checked that all my telephone connections were in order and knew nothing more until I was rudely shaken by the company commander who asked me if I knew that, for a soldier on duty sleeping at his post, the sentence was death’.

15 Aitchison 1920: 154. Craigie Aitchison (1882-1941) served in the Royal Artillery during the war, after which he became a Labour member of parliament and Lord Advocate (the senior Scottish Law Officer of the Crown). He subsequently became the second most senior Scottish judge.

16 Judge Anthony Babington, The Times, August 20, 1983, cited in Sellers 1995: 57.

17 Mellor was later a member of the Darling Committee. For a discussion of his wartime role see Childs 1930.

18 WO71/630. For other cases where legal doubts existed, see Rubin 1998: 64. For an example of the quashing of a non-capital FGCM on legal grounds following post-confirmation legal advice from the JAG in London, see WO83/25:13, case of Corporal G W Yates, 8th (Support) Battalion, Royal Berkshire Regiment, Les Brebis, June 22, 1916.

19 For more recent developments see Rubin 2002.

20 Stimulating works within this genre include Bowman 2003 and Sheffield 2000. For a briefer version of the latter, see Sheffield 1996: Chapt. 30. Also insightful are Corrigan 2003: Chapt. 8; Bet-El 2003: Chapt. 7 and Holmes 2005: 515-613. For related issues see MacArthur 2008; Elsworth-Jones 2008.


Part-time Professor of Law at Kent University, UK. He has published, among various topics, on United Kingdom history of military law and labour law; history of policing, history of imprisonment for debt and 20th century marital coercion crimes. He is currently working on a social and cultural history of an inter-war British murder cause célèbre, “A. A. Rouse and the Blazing Car Murder (1930-31)”

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