Page:EB1911 - Volume 18.djvu/471

 allowing him to escape, being concerned in the unreasonable detention of a person awaiting trial, escaping or attempting to escape from lawful custody, conniving at exorbitant exactions, making away with, losing by neglect, or wilfully injuring military clothing or equipments, ill-treating a horse used in the service, making false or fraudulent representations in public documents, making a wilfully false accusation against an officer or soldier, making a false confession of desertion or fraudulent enlistment, or a false statement in respect of the prolongation of furlough, misconduct as a witness before a court martial or contempt of such court, giving false evidence on oath, any offence specified in relation to billeting or the impressment of carriages, making a false answer to a question put upon attestation, being concerned in unlawful enlistment, using traitorous or disloyal words regarding the sovereign, disclosing any circumstance relating to the numbers, position, movements or other circumstances of any part of His Majesty’s forces so as to produce effects injurious to His Majesty’s service, fighting or being concerned in or conniving at a duel, attempting suicide, obstructing the civil authorities in the apprehension of any officer or soldier accused of an offence, any conduct, disorder or neglect to the prejudice of good order and military discipline, any offence which if committed in England would be punishable by the law of England. There is another offence which can be committed by officers only, namely “scandalous conduct unbecoming the character of an officer and a gentleman.” It necessitates cashiering, a punishment which in the case of an officer may be awarded as an alternative to imprisonment in several other instances. There is also an offence peculiar to officers and non-commissioned officers, that of striking or ill-treating a soldier or unlawfully detaining his pay. A sentence of cashiering as distinguished from that of dismissal in the case of an officer involves an incapacity to serve the crown again. An officer may be also sentenced to forfeiture of seniority of rank and to reprimand or severe reprimand. A non-commissioned officer may be sentenced to be reduced to a lower grade or to the ranks, and where sentenced to penal servitude or imprisonment the tribunal also has power to deprive him of his seniority. The Army Council in England, or the commander-in-chief in India or in either of the presidencies, may also cause a non-commissioned officer to be reduced to a lower grade or to the ranks. An acting non-commissioned officer may be ordered by his commanding officer for an offence or for inefficiency or otherwise to revert to his permanent grade—in other Words, to forfeit his acting rank.

It will have been observed that persons subject to military law are liable to be tried by court martial for offences which if committed in England would be punishable by the ordinary law, and to suffer either the punishment prescribed by the ordinary criminal law or that authorized for soldiers who commit offences to the prejudice of 'good order and military discipline. The effect of the latter alternative is that for many minor offences for which a civilian is liable to a short term of imprisonment, or perhaps only to a fine, a soldier may be awarded two years’ imprisonment or detention. A court martial, however, cannot take cognizance of the crimes of treason, murder, manslaughter, treason-felony or rape if committed in the United Kingdom. If one of these offences be committed in any place within His Majesty’s dominions other than the United Kingdom or Gibraltar, a court martial can deal with it only if it be committed on active service or in a place more than 100 miles from a civil court having jurisdiction to try the offence. With regard to all civil offences the military law, it is to be understood, is subordinate to the ordinary law, and a civilian aggrieved by a soldier in respect of a criminal offence against his property or person does not forfeit his right to prosecute the soldier as if he were a civilian.

The crimes for which soldiers are most usually tried are desertion, absence without leave, loss of necessaries, violence or insubordination to superiors, drunkenness, and various forms of conduct to the prejudice of discipline. The punishments are, generally speaking, gauged as much with regard to the character and antecedents of the prisoner as to the particular offence. For a first offence of an ordinary kind a district court martial would give as a rule fifty-six days’ imprisonment with hard labour, for a second or graver crime eighty-four days. There are not many instances in which the period of imprisonment exceeds six months. Corporal punishment, which had been practically limited to offences committed upon active service, and in 1879 to crimes punishable with death, was finally abolished in 1881, and a summary punishment substituted. The practice of marking a soldier with the letters “D” (deserter) or “BC” (bad character), in order to prevent his re-enlistment, was abolished in 1879 in deference to public opinion, which erroneously adopted the idea that the “marking” was effected by red-hot irons or in some other manner involving torture. Many military men regretted its abolition, and maintained that if the practice were still in force the army would not be tainted by the presence of many bad characters who find means of eluding the vigilance of the authorities and enlisting after previous discharge.

The course of procedure in military trials is as follows. When a soldier is remanded by his commanding officer for trial by a district or general court martial, a copy of the charge, together with the statements of the witnesses for the prosecution (called the summary of evidence), is furnished to him, and he is given proper opportunity of preparing his defence, of communicating with his witnesses or legal adviser, and of procuring the attendance of his witnesses. Further, if he desires it, a list of the officers appointed to form the court shall be given him. Any officer is disqualified to sit as a member who has convened the court, who is the prosecutor or a witness for the prosecution, who has made the preliminary inquiry into the facts, who is the prisoner’s commanding officer, or who has a personal interest in the case. The prisoner may also object to any officer on the ground of bias or prejudice, similarly as a civilian might challenge a juror. Except as regards the delay caused by the writing out of the evidence, the procedure at a court martial is very much the same as that at an ordinary criminal trial—the examination and cross-examination of the witnesses, addresses of the prosecutor and prisoner, and the rules governing the admission or rejection of evidence being nearly identical. At a general court martial, and sometimes at a district court, a judge advocate representing the judge advocate general officiates, his functions being very much those of a legal assessor to the court. He advises upon all points of law, and sums up the evidence just as a judge charges a jury. When the prisoner pleads guilty the court finds a verdict accordingly, reads the summary of evidence, hears any statement in mitigation of punishment, and takes evidence as to character before proceeding to pass sentence. The sentence is that of the majority of the court, except where death is awarded, when two-thirds of the members in the case of a general court martial and the whole in that of a field general court martial must concur. When an acquittal upon all the charges takes place the verdict is announced in open court, and the prisoner is released without any further proceeding. When the finding is “guilty,” evidence as to character is taken, and the court deliberates in private upon the sentence, but the result is not made known until the proceedings are confirmed and promulgated. No conviction or sentence has any effect until it is thus confirmed by the proper authority. The confirming authority in the case of a regimental court is the commanding officer, in that of a district court martial an officer authorized to convene general courts martial or some officers deriving authority to confirm the findings and sentences of district courts martial, and in that of a general court, if held in the United Kingdom, His Majesty, and if abroad in most cases the general officer commanding. The confirming authority may order the reassembling of the court in order that any question or irregularity may be revised and corrected, but not for the purpose of increasing a sentence. He may, however, of his own discretion and without further reference to the court, refuse confirmation to the whole or any portion of the finding or sentence, and he may mitigate, commute or entirely remit the punishment. In the case of a general court martial the proceedings are sent to the judge advocate general, who submits to the sovereign his opinion as to the legality of the trial and sentence. If they are legal in all respects he sends the proceedings to the Army Council, upon whom rests the duty of advising the sovereign regarding the exercise of clemency. In addition to confirmation, however, every general or district court martial held out of India has another ordeal to go through. It is reviewed and examined in the office of the judge advocate general, and any illegality that may be disclosed is corrected and the prisoner is relieved of the consequences. To a certain extent a protection against illegality also exists in the case of regimental courts martial. A monthly return of those held in each regiment is laid before the general commanding, by whom any question that might appear to him doubtful would be referred to the adjutant general or the judge advocate general for decision. It is to be noted, however, that the judge advocate general, although fulfilling duties which are in their nature judicial, is only an adviser. He is not actually a judge in an executive sense, and has no authority directly to interfere with or correct an illegal conviction. In many cases the law thus provides no remedy for an officer or soldier who may have been wronged by the finding or sentence of a court martial—for instance, through a verdict not justified by the evidence or through a non-observance of the rules and practice prescribed for these tribunals. A person who has suffered injustice may appeal to the king’s bench division of the high court of justice. But, speaking generally, that tribunal would not interfere with a court martial exercising its jurisdiction within the law as regards the prisoner, the crime and the sentence. In most cases, therefore, the virtual protector of an accused person against illegality is the judge advocate general, who personally advises the sovereign and the military authorities that the law shall be complied with (see ).

The Army Act applies to European officers and soldiers serving in India in the same manner as to the rest of the army, but natives of India are governed by their own Articles of War, and in the case of civil offences they are dealt with according to the provisions of the Indian penal code. There are judge advocates general for each of the presidencies, and a deputy judge advocate at each of the more important military centres.

Important changes were made in the system of courts of inquiry by an Army Order of the 10th of February 1902. A court of inquiry is and has been an assembly of officers directed by a commanding officer to collect evidence and report with respect to a transaction into which he cannot conveniently