Law and War - progress

My unique insight into the First World War from the perspective of the magistrates' courts is only weeks away from publication.

With a preface by His Honour Richard Seymour QC, the book covers the following:

1. Summary Justice 1914: the criminal justice system and the magistracy
   
2. Fourteen Days, with Hard Labour: crime and sentencing
   
3. Transition to War: emergency legislation
   
4. Civil, Military, and Martial Law: the relationship of the legal systems
   
5. Dear old DoRA: 'for public safety and the defence of the Realm'
   
6. The Enemy Within: the question of alien enemies and friends
   
7. Down at the Old Bush and Bush: liquor control
   
8. How Bright is 'Bright'?: air raids and lighting restrictions
   
9. What did you do in the Great War, Daddy?: military service and conscription
   
10. And what did you do, Mummy?: women, families and children
    
11. Is Tea a Food?: food control and rationing
    
12. Business as Usual: the criminal justice system and the magistrates at war
    
13. Lessons Learned: emergency legislation in the Second World War and today

'Law and War' is available from Amazon Law and War: Magistrates in the Great War

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.

Delegated legislation: Brexit and the Defence of the Realm Act

The reaction of the public to the decisions of the High Court and Supreme Court to confirm the right of Parliament to debate the proposals for Brexit has revealed how little many people know, or understand, of the constitutional procedures which govern the development of law in this country. 

The resulting ‘Brexit Bill’ is a mere 133 words in length, and confers powers on the Prime Minister to invoke Article 50, whatever that may mean. 

This has happened before: the first Defence of the Realm Act, of August 1914, was similarly brief and in just over two hundred words opened the gates to a flood of secondary legislation that was to pervade every aspect of life for the duration of the war and beyond. 

Secondary legislation – rules, orders and regulations – were issued by the Privy Council and by government departments, and in many cases by the military authorities. 

Parliament failed, or was not permitted, to perform its duty of oversight and scrutiny of draft legislation and for over four years we suffered from poorly worded and rushed laws, many of which were repealed at the end of hostilities. 

The lesson from the Great War is that Parliament – not government – must be involved in the process of legislative development if we are to have good law.

The Upwey Mutiny

Upwey is a small village to the north of the seaside town of Weymouth. In November 1914 it was home to a detachment of the 3^rd Dorset Regiment, tasked with guarding the reservoir that supplied water to the naval base at Portland. Relatively isolated, the men lived in huts and had a cookhouse and a mess. 

Sunday 29^th November was a wet and windy night, and the off-duty men enjoyed the comforts of the canteen. An argument broke out and a fight ensued, and the young Corporal Alfred Wilson took his rifle from his hut and started shooting wildly. 

As the officers and NCOs withdrew to safety, Private Wallace Williams was shot dead and another man seriously injured. Eventually reinforcements arrived from Weymouth and order was restored. Wilson and a number of other men were arrested and placed in military custody.

The following week an inquest was held by the town coroner, Mr Gustavus Symes, and in giving evidence Wilson admitted shooting Williams. Symes and the jury felt some sympathy for the young man and he was remanded until the January Assizes in Dorchester, charged with manslaughter.

But at the Assizes something remarkable happened. The prosecutor announced that Wilson had been court-martialled on a charge of mutiny and had been sentenced to six months’ hard labour, and on that basis he was offering no evidence for the manslaughter charge. 

To the dismay of Symes, Wilson was released back to the army. Mutiny is one of the most serious offences under military law and carried the death penalty; manslaughter however is a criminal offence but carried life imprisonment. But the military offence and conviction appeared to carry greater weight than that of manslaughter. 

This unusual case brought attention to the differences between civil and military law, and raised the question: which has precedence?

Is Tea a Food?

As the First World War dragged on, food supplies became a problem, particularly after the German U-boat campaign took effect. Local and sporadic shortages became common, until eventually it was recognised that some form of centralised food control was required. 

There were concerns that some people might be obtaining more than their fair share, and so the Food Controller introduced the Food Hoarding Order on 5^th April 1917. The intention was to stop people building up stocks of food and a number of cases were successfully prosecuted. 

Mr Oscar Harmer was a prominent member of the community in Coventry, where he was the manager of Messrs Albert Herbert Ltd, a machine tool maker. Acting on a tip-off, the chief of police and an officer from the local food control committee interviewed him in his office in January 1918 and then escorted him to his house, where they discovered a hoard of groceries including 400lbs of tea. 

He appeared in a crowded court room to face charges relating to each item of food. But his lawyer pulled a masterstroke – although the sugar, sardines, ham and butter were food, surely this could not be the case with the tea? The magistrates did not offer an opinion, but convicted him on the food offences and sentenced him to one month's imprisonment on each count. 

The matter went to appeal and the Warwickshire Quarter Sessions reduced to a total fine of £60. But the tea question went to the High Court – was tea a food? This engaged the finest legal brains in the land: coffee and cocoa were consumed, but tea leaves were of course discarded. 

Another case, of Mrs Ellen Hinde in Oxfordshire, also reached the High Court, which finally decided that tea was not a food within the meaning of the Food Hoarding Order, and the convictions were quashed. 

The wily Food Controller anticipated this unfavourable outcome, and two days before the decision was announced, in May, he changed the order to include ‘… every article which ordinarily enters into or is used in cothe mposition or preparation of food and shall include tea, coffee, and cocoa’.

Enemy civilians as prisoners of war

It might be a reasonable assumption that in times of war people from enemy countries should be rounded up and put in custody or detention. But there has to be a legal basis for this – it is a fundamental principle of English law that a subject cannot be held without just reason. 

At the outbreak of the First World War there were some 53,000 Germans and Austrians living in the country, with over half in London alone. Many of these were young men, economic migrants seeking employment opportunities. But these countries had a form of national service and such men had both undergone military training and were subject to recall to the army. And in the first days of the war many men did receive their call-up papers. 

The Geneva Conventions of 1906 and 1911 recognised such men as non-combatant enemy forces and gave them the right to be treated as prisoners of war. These de facto prisoners of war were then collected and sent to the great detention centres in the Isle of Man and Scotland. 

Absent without Leave

A soldier who failed to report to his place of duty at the required time might be classed as absent without leave. This was a military offence and was dealt with by the military authorities, usually with some minor punishment at the disposal of the man’s commanding officer. But in the First World War it caused immense problems to the civilian courts, particularly in London and the big cities. 

If a soldier overstayed his leave by a day or so, or missed his train, he was in default and liable to arrest. But instead of using common sense and providing the man with a revised travel warrant and sending him on his way, he would be detained in custody and taken to the magistrates’ court. The man’s unit would be notified and an NCO and one or two soldiers despatched to the court (if his unit was serving in France this escort would be sent from its UK headquarters). 

He would be brought from custody and the magistrates would then order him to be handed over to the military escort and to be detained until such time as they arrived. If the man was in the Territorial Forces or the reserves (as were all men of military age under the Military Service Act, 1916) he would also be fined, usually an amount such as 20 shillings (£1), which is the equivalent of twenty days’ pay. 

Ordinarily magistrates had the option of imposing a custodial sentence in default of a fine but this was discouraged as it delayed the man’s return to his unit; instead the fine was to be deducted from his army pay. 

With up to 30% of the cases listed each day comprising military absentees eventually the magistrates themselves protested at the absurdity of the system – even if the man gave himself up voluntarily he was still put in custody. In April 1917 the Army (Annual) Act was updated to give authority from the local police inspector to manage absentees, and the courts were freed from this annoying distraction.

The Norwich Blackout

The expression ‘blackout’ to describe the total extinction of lights was not used during the First World War. Regulation 11 of the Defence of the Realm Regulations gave the Home Secretary the power to make orders to reduce lighting, and in general lights were required to be obscured or dimmed, and only switched off completely in the event of an air raid. 

However, the Chief Constable of Norwich, Mr. E.F. Finch, had met some aviators in the early part of the war, and they had impressed him with accounts of what they could see while flying over Norfolk at night. Finch decided that the Home Office orders were insufficient for his fine city, and so a draconian regime was introduced requiring a full blackout. This included a prohibition on using torches and even on striking matches in the street. 

The conditions were so extreme that when the Home Secretary introduced the Lights (East Coast) Order in December 1915 Norwich was explicitly excluded from it!

Regulation 40D: this really happened

DoRA regulation 40D, the 'Prohibition on sexual intercourse by diseased women' and which made it an offence to infect a soldier with venereal disease. 

A policeman, on information from a soldier, could arrest a woman and take her to the police station, where she would be required to undergo an examination. If infected she would be sent to court and on conviction be fined up to £100 or be given up to six months' imprisonment. 

Between its introduction on 22 May 1918 and its repeal on 26 November 1918, 203 women, married and single, had been prosecuted under the regulation, and 101 were convicted. 

There was widespread outcry against this degrading and humiliating treatment of women, and it remains one of the more shocking aspects of the Defence of the Realm regulations.