Martial law in Great Britain

‘Martial law’ is one of those expressions that we hear in the media but perhaps don’t often think about. It is associated with civil disorder and the attempts of ‘the authorities’ to impose control by transferring powers to the military. Nowadays we might associate it with countries like Iraq, Afghanistan, or Syria, against a backdrop of insurgency, invasion and war. But could it ever happen in this country?

The definition of martial law has changed over time. At the time of the Great War it was influenced by colonial experience. The legal treatment of the enemy of the state was reasonably clear, as was that of civilians acting in the interests of the enemy. But the British experience in South Africa during the Boer War raised some interesting questions: the state had the right to exercise exceptional legal powers to defend the state and the people, but how – and who – should deal with civilian offenders? 

Martial law, as then understood, granted the military authorities the power to arrest, try, convict and sentence transgressors in zones of conflict, but what about the areas behind the lines, where the normal civil courts were working? Should the military deal with these offenders, or should they be prosecuted through the usual civilian channels?

By the outbreak of the First World War the British Government realised that this was no longer a trivial colonial question, and confronted with an apparently genuine invasion threat it was obvious that no thought had been given to the legal problems that might ensue. The result was the hastily drafted Defence of the Realm Act and the first batch of regulations issued in August 1914. 

These were very clearly aimed at the control of the civilian population in the face of military conflict in this country, and the ‘competent naval and military authorities’ were given powers of arrest, trial, conviction and sentence by courts-martial, of civilians contravening the regulations. Crucially there was no means of appeal to the civilian courts, even if these courts were still sitting. 

The issue of offences relating to aiding or assisting the enemy was uncontroversial and these were dealt with by general courts-martial, but many of the offences were of a much lesser seriousness and heard at district courts-martial, a lower tribunal, akin to the magistrates’ court.

Between August 1914 and March 1915 thirty five civilians were tried at court martial in this country. Nine were found not guilty, and of those convicted nineteen either had their sentences quashed or remitted.

Within months it was realised that the Defence of the Realm regulations were unfit for purpose and by December 1914 the first regulations were repealed. But at the same time the Law Lords and others were giving close scrutiny to the legality of the system of military tribunals for civilians, with the result that in March 1915 the Defence of the Realm Act was once more amended to allow civilians to elect trial by jury and to give them the right of appeal to the civil courts.

For a brief period, August 1914 to March 1915, in a country that was at war but where there were no warlike operations in the face of the enemy and the civil courts were functioning normally, civilians could be arrested, tried and convicted by the military authorities, with no means for appeal. During this period Britain was under martial law.