Shameful Conduct

Lt-Col JF Elkington and Lt-Col AE Mainwaring were both charged under Part 1 Section 4 of the Army Act which dealth with soldiers who shamefully delivered up 'any garrison, place, or post or guard' which it was their duty to defend.The maximum penalty for such a crime was death, but the court-martial sentenced both men to be cashiered

S. 11. Neglect to obey garrison or other orders

Every person subject to military law who commits the following offence ; that is to say, neglects to obey any general or garrison or other orders, shall, on conviction by court-martial, be liable, if an officer, to be cashiered, or to suffer such less punishment as is in this Act mentioned, and, if a soldier, to suffer imprisonment, or such less punishment as is in this Act mentioned. Provided that the expression "general orders " in this section shall not include His Majesty's regulations and orders for the army or any similar order in the nature of a regulation published for the general information and guidance of the army.

S.16. Scandalous conduct of officer

Every officer who, being subject to military law, commits the following offence ; that is to say, behaves in a scandalous manner, unbecoming the character of a officer and a gentleman, shall on conviction by court-martial be cashiered.

1. An act of neglect which amounts to any of the offences specified in the Act or which is to the prejudice of good order and military discipline, ought not, as a rule, to be tried under this section. Scandalous conduct may be either of a military or social character. But a charge of a social character is not to be preferred under this section, unless it is of so grave a nature as to render the officer deserving of being cashiered, and therefore scandalous in respect of his military character. Social misconduct which is not so grave as to bring scandal on the service, should not be made a ground of charge against an officer, but may well form the subject of reproof and advice on the part of his commanding officer or some other superior officer.

2. It will be noticed that there is no power to award any other punishment than cashiering on conviction for this offence.

Every person subject to military law who commits the following offence ; that is to say, knowingly makes or is privy to the making of any false or fraudelent statement shall on conviction by court-martial, be liable to suffer imprisonment, or such less punishment as is in this Act mentioned

S. 40. Conduct to the prejudice of military discipline

Every person subject to military law who commits the following offences ; that is to say,  is guilty of any act, conduct, disorder, or neglect, to the prejudice of good order and military discipline, shall on conviction by court-martial be liable, if an officer, to be cashiered, or to suffer such less punishment as is in this Act mentioned, and if a soldier, to suffer imprisonment, or such less punishment as is in this Act mentioned. Provided that no person shall be charged under this section in respect of any offence for which special provision is made in any other part of this Act, and which is not a civil offence ; nevertheless the conviction of a person so charged shall not be invalid by reason only of the charge being in contravention of this proviso, unless it appears that injustice has been done to the person charged, by reason of such contravention; but the responsibility of any officer for that contravention shall not be removed by the validity of the conviction.

Subject to such regulations for the purpose of preventing interference with the jurisdiction of the civil courts as are in this Act after mentioned, every person who, whilst he is subject law of to military law, shall commit any of the offences in this section mentioned, shall he deemed to he guilty of an offence against military law, and, if charged under this section with any such offence (in this Act referred to as a civil offence), shall he liable to be tried by court-martial, and on conviction to be punished as follows; that is to say,
(1.) If he is convicted of treason, he liable to suffer death, or such less punishment as is in this Act mentioned; and
(2.) If he is convicted of murder, be liable to suffer death; and
(3.) If he is convicted of manslaughter or treason-felony, be liable to suffer penal servitude, or such less punishment as is in this Act mentioned; and
(4.) If he is convicted of rape, be liable to suffer penal servitude or such less punishment as is in this Act mentioned; and
(5.) If he is convicted of any offence not before in this section particularly specified, which when committed in England is punishable by the law of England, be liable whether the offence is committed in England or elsewhere, either to suffer such punishment as might he awarded to him in pursuance of this Act in respect of an act to the prejudice of good order and military discipline, or to suffer any punishment assigned for such offence by the law of England

Soldiers

Part 1 of the Army Act, which was devoted to 'Discipline' with the sub-title 'Crime and Punishment' made it quite clear that all offenders would be dealt with swiftly and rigorously.The first seven offences listed carried the death penalty ('or such less punishment as is in this Act mentioned'). They applied to soldiers who:

General Orders affecting the conduct of Courtsmartial 1914-18

On the 19th of September 1914  the C in C of the B.E.F, Sir John French issued instructions to courts-martial that while their duty was to consider the weight of evidence, they were also to consider the effect of the offence on the discipline of the Army. He went on to state "that in the interest of discipline no matter how severe the sentence, no feeling of commiseration for the individual must deter them from their duty". French's instruction was an overt interference into the judicial discretion of a courts-martial and as a consequence his requirement inter alia as the ultimate confirming authority undermined from the outset  the entire military legal process during world war one.

General Routine Orders issued to the British Expeditionary Force from the 13th January 1915 - 27th January 1915  instructed courts-martial that  in cases of desertion the presumption of innocence was to be removed and the burden of proof reversed. This derogation from an established principle in English law required inter alia that an accused inarticulate soldier (without legal representation or an understanding of military law) had to prove beyond a reasonable doubt that the assumptions of his court-martial officers were incorrect. Soldiers subject to a death sentence would not have been aware or advised that they had a legal right enshrined in the English Bill of Rights (1689) and successor Acts to petition his Majesty the King. The abrogation of a soldier's right to a presumption of innocence and the failure to vindicate his inalienable right to petition the King was unlawful. Mr Justice Babington QC an acclaimed expert and the first to gain access to official records in the early eighties observed "that the courts hadn't the foggiest idea how to sentence and that their decisions were arbitrary, inconsistant and irregular". On the 30th November 2000 his honor publicly urged the British Government to look again at these cases. On the 18th of July 2002 in Regina V Boyd etc [2002] UKHL 31 the eminent Lord Bingham of Cornhill referring to disciplinary rules and procedures stated "whatever the practice in former times, a modern code of military discipline cannot depend on arbitrary decision-making or the infliction of savage punishments nor can it depend on inherited habits of deference or gradations of class distinction". His Lordship's criticism of past courts-martial practice is judicious, authoritative and noteworthy.

Presumption of innocence and reverse burdens of proof

Vicount Sankey LC in Woolmington v Director of Public Prosecutions [1935] AC at p 462 stated "throughout the web of English criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner's guilt". In R v Whyte (1988) 51 DLR (4th) 481,  Dickson CJC observed, at p 493: "The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterisation of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision of the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused".

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