Over and Out

by Michael Gilbert

  The prosecutor had paused, briefly, at the close of each sentence in his speech, to allow the stenographer time to get it down. Now, after a rather longer pause, he said, ‘I will not trouble you, at this point, with further argument. I propose to reserve for my closing submission any points by way of defence or mitigation that may be raised by my learned friend.’

  He resumed his seat, with the look on his unpleasing face of someone who has performed a task to his own satisfaction; also, thought Luke looking at them, to the satisfaction of the three members of the tribunal.

  Luke said, ‘I have to correct you on one point. Whether or not I am your friend is for you to say, but learned I am not. I am a simple soldier who has been asked to speak in defence of a fellow soldier.’

  Colonel Trett, to whom the last few words had been directed, grunted and waved a hand, which Luke interpreted as meaning, Get on with it, then.

  He said, ‘I will now call my first witness, Captain Raven.’

  Whilst the adjutant was being extracted from his office and brought over to the Hôtel Voyageurs, he said, ‘I should make it plain, on behalf of this witness, that he is not giving evidence voluntarily. He has been served with a subpoena.’

  ‘We can appreciate his reluctance to appear as a volunteer,’ said Colonel Trett. ‘Well, here he is at last. So what can he tell us?’

  ‘Captain Raven,’ said Luke, looking down hurriedly at the crib that Tom had supplied him with. ‘You are the Adjutant of the Third Bedfords?’

  ‘I am.’

  ‘And the defendant is a member of that regiment?’

  ‘He is.’

  ‘How long have you known him?’

  ‘Since the beginning of the war. We joined up on the same day.’

  ‘Thank you. Now will you give the court your opinion of the prisoner as a soldier.’

  Byrd was on his feet.

  ‘Does Captain Raven appear as an expert witness? Because if not, he cannot be asked for his opinion. He must confine himself to a statement of facts. It is for the court to judge what those facts show to be the character of the accused.’

  He looked at the president, who nodded approvingly, and said, ‘Just so.’

  ‘All right, you’ve asked for it,’ said Luke, under his breath. ‘You shall have it. Full measure, pressed down and running over.’ And aloud, to Raven, ‘Perhaps, then, you will run through the more salient actions and activities of the accused, with particular reference to his conduct in the front line.’

  The witness was only too glad to comply. When he had been speaking, almost without drawing breath, for ten minutes, the president, who had been showing increasing signs of irritation, said, ‘I think the witness has made his point.’ This was accompanied by a glare that would have stopped a runaway horse.

  ‘In that case,’ said Luke, ‘I will ask him no further questions, but must reserve the right,’ he squinted down at his paper, ‘of re-examination, should it prove necessary.’

  Byrd rose slowly to his feet and said, ‘It would seem, Captain Raven, that most of the examples you have given us relate to the first three years of the war.’

  ‘Yes, sir.’

  ‘Then let me put it to you that the passage of time might have effected a change in the accused’s outlook.’

  ‘I’m afraid I don’t follow that.’

  ‘I will put it in another way. However devoted and courageous the prisoner may have been during the early period of his service, does it not seem that he was a different man altogether during the latter period?’

  Luke needed no prompting this time. He was on his feet before Raven could speak.

  He said, ‘Since it has been established that Captain Raven does not appear as an expert witness, he cannot be permitted to give us his opinion.’

  Byrd, unruffled, said, ‘I was not asking him for his opinion. I was drawing his attention to certain facts which, in my view, speak for themselves.’ He looked at the president who said, ‘I think that your question was in order, but comment would, perhaps, be better reserved for your final submission.’

  ‘I am obliged to you,’ said Byrd. ‘I have one further question for this witness. If the accused did, in fact, exhibit such consistent bravery, is it not curious that he does not appear to have received any of the traditional rewards of courage. I mean, of course, one or more medals?’

  Now you’ve put your foot in it, thought Luke.

  The adjutant drew himself up, and said, ‘On two separate occasions the accused was put forward for the award of the MM—the Military Medal. On both occasions he indicated that he was unwilling for his name to go forward.’

  On this, young Lieutenant Banner opened his mouth for the first time. Rising from his seat he said, in tones of total incredulity, ‘Are you telling us that he was offered a medal and refused it?’ He would have sold his soul for a medal of any sort and was looking at Britain as though he could scarcely believe that such a man existed.

  He was about to say something further, when the AAG, who had realised his mistake, waved him down. He said, ‘I have no further questions for this witness.’

  ‘By way of re-examination,’ said Luke, ‘I will ask him one question only. Was there anything in the conduct of the accused during the last few months of his service to suggest to you that he was no longer a brave and reliable soldier?’

  ‘Nothing at all,’ said the adjutant, and departed thankfully.

  Luke was aware that he was swimming against the tide, but was feeling increasingly confident as time went on. Advocacy did not seem to be as difficult as people made out. He said, ‘I have made it clear that the defence objects to the manner in which the defendant’s alleged utterances have been brought—at second hand—before the court. I shall have more to say about that when I call my second witness.’

  The president and Colonel Byrd exchanged looks. They knew that the adjutant was to be called, but had not heard about a further witness.

  ‘But first, allow me to deal with a more vital point. How is it sought to be made out that those utterances constitute treason? We are told that any action or utterance which encourages the enemy is tantamount to affording him aid and comfort, and that a Statute of 1351—not the freshest of our laws—turns such matters into treason. But, as the war has dragged on, people from every walk of life have begun to suggest that it is time it was stopped. To ignore such public utterances and to concentrate on a few sentences alleged to have been spoken by the accused in strict privacy, and which may not have been reported correctly, seems to me to be an example of one sauce for the goose and another for the gander.’

  The president said, ‘To the best of my knowledge—no doubt our note-taker can correct me if I am wrong—there has been no mention on either side of geese or ganders.’

  ‘I was using the expression metaphorically,’ said Luke crossly. He nearly added, ‘as you must be perfectly well aware,’ but refrained, just in time.

  ‘Then perhaps you will be good enough to explain them.’

  ‘I meant, of course, that one set of rules seems to apply to the defendant and a very different set of rules to the world at large.’

  ‘In deference to our feeble intellects, we would be obliged if you would refrain from metaphorical extravagances, and adhere to a plain statement, in the King’s English.’

  ‘I’ll do my best,’ said Luke, ‘and will endeavour to make good what I have said.’

  He produced four sheets of paper, walked round the table and handed one each to the three members of the tribunal. When Byrd reached out his hand for the fourth copy Luke ignored him, retained it, and went back with it to his seat.

  He said, ‘I will ask you to read it carefully. It is quite short.’

  For five minutes there was silence broken only by the rustling of paper as the members of the tribunal read what was in front of them. The younger members read it twice.

  When they had finished, Luke said, ‘As I believe it to be the correct procedure in these cases to ask the junior me
mber of the court to speak first, would you please tell us, Mr Banner, do you not think that the enemy, reading the passage I have shown you, would have been encouraged by it?’

  Banner who, according to the records was twenty-one years old, but hardly looked to be out of his teens, blushed and said, ‘I suppose it would have given him a certain amount of pleasure.’

  ‘Would, in fact, have afforded him comfort?’

  ‘Don’t give the witness’s evidence for him,’ said Byrd, his magpie beak closing with a snap.

  ‘Most improper,’ agreed the president.

  This interruption had given young Mr Banner time to think.

  ‘What I meant to say, sir, was that it would have shown him that some people on the other side were considering whether common ground for an armistice might be discovered.’

  ‘Thank you. Mr Rankin?’

  ‘I think the same.’

  ‘And you, sir?’

  The president said, in tones so incisive that they were clearly intended to terminate what he regarded as an improper departure from accepted procedure, ‘In all my experience I have never known the members of a court martial to be cross-examined by the defence. I think it improper for such questions to have been asked, and I direct that both the questions and the answers to them be expunged from the record and form no part of it.’

  ‘In that case,’ said Luke, as cheerfully as he could, ‘you will be spared having to deal with my second question, which was to ask why the Marquis of Lansdowne, who wrote the words which are in front of you, and caused them to be published in the Daily Telegraph is not in the dock alongside the defendant. But I suppose that you would have held such a question to be improper.’

  ‘Highly improper.’

  ‘I had hoped that at least my questions, if not the answers to them, might have been recorded. Together with your view, sir, that the questions were improper.’

  ‘Certainly not.’ The president looked at his watch. ‘I believe you intend to call another witness. Please do so, and I can only hope that he will not waste the time of the court.’

  ‘No time will be wasted,’ said Luke. ‘My witness is ready and waiting. Inspector Routley.’

  The inspector marched into the room, took the oath and waited impassively.

  ‘Your name is Richard Bernard Routley?’

  ‘It is.’

  ‘You are an inspector in the Intelligence Police, having been seconded to them, on a temporary basis, from the Special Branch of the Metropolitan Police?’

  ‘I am.’

  ‘And you hold, at present, the office of assistant provost marshal on the headquarters staff of the 42nd Division?’

  ‘That is correct. I am attached to, but not under command of the Military Police of that division.’

  ‘Quite so. Now tell us, Inspector, you have been shown the affidavits which record statements made by the defendant.’

  ‘I have.’

  ‘And the authors of those affidavits, Baskerville, Totten and Frere are all members of the Special Branch, and therefore are well known to you.’

  ‘Very well,’ said Routley, allowing himself, for the first time, a small smile.

  ‘In your view, would it have been a matter of great difficulty to have secured the attendance here of these three men?’

  ‘No great difficulty, no sir.’

  ‘I would like that to be recorded. One final point, then. Can you, of your own knowledge, say whether any of them had been trained in the art of shorthand writing?’

  Routley thought about this, and said, ‘Possibly, at some stage. But shorthand was certainly not one of the required accomplishments for members of the Special Branch.’

  ‘Thank you, Inspector. No more questions.’

  Rising slowly to his feet, Byrd said, ‘I can think of no questions to ask this witness whose evidence seems to me to be totally irrelevant.’

  He then reseated himself.

  Nodding his approval of this comment, the president said, as Routley was departing, ‘Then perhaps you will now be good enough to let us have your final observations.’

  ‘If I might clear up one point first,’ said Luke, ‘I have, I hope, made it clear why I asked—indeed, pressed—for the attendance of Baskerville, Totten and Frere. I should have asked them to explain, convincingly, how a series of notes jotted down in their own handwriting in circumstances of considerable inconvenience, among a crowd who would, no doubt have wished to stop them if they had observed that they were taking notes—how such jottings could emerge as a single, well-considered draft common to all three of them, down to the last dot and comma. I should have suggested to them—and do suggest to you—that such a result was more than improbable. That it was, in fact, impossible. However, as I have not been allowed—by order of the president—to question these men, I can take this matter no further.’

  The president said, ‘Is that all?’

  ‘No, sir. It is not all. A much more important point concerns the words the accused is alleged to have spoken. If they, by affording comfort to the enemy, can be held to constitute treason how is it that the Marquis of Lansdowne, for one, has escaped prosecution? If you say that he is innocent, then the whole idea that the words of the 1351 Statute can be broadened and extended to cover any expression of the view that the war should be stopped becomes nonsensical.’

  He paused, drew a deep breath and added, ‘In summary, I would submit that we have no acceptable proof that the accused did in fact use the precise words he is charged with, and that even if he did, they do not amount to the offence of treason.’

  ‘Spitting into the wind,’ murmured Tom. Adding, ‘A very commendable piece of spitting, all the same.’

  Colonel Byrd rearranged his papers and rose to his feet. He said, ‘I shall not occupy the attention of the tribunal for any great length of time. I can promise you that.’

  He sounded, Luke thought, like a parent called on to deal with the minor tarradiddles of his children. ‘Sorry about that cricket ball through your window, but boys will be boys.’

  ‘The first part of my friend’s defence seems to be based on a feeling of surprise that three trained policemen should have recorded something that was said in their presence, in the same words. I should have been surprised if they had not done so.’

  ‘The second point he makes is that we cannot regard the prisoner’s utterances as treason unless we are prepared to line up with him in the dock all the distinguished persons who have said that, in their view, a point had been reached when the war could be terminated by agreement. There is so little similarity between the words the prisoner did use and the utterances of these gentlemen that I am surprised he dared to make the comparison. They were drawing attention, quite legally and properly, to the possibility that a position had been reached—or might shortly be reached—when agreed terms of armistice might be worked out’

  Here the AAG paused for a moment, to reach his climactic point and to secure due attention for it.

  ‘My friend would apparently arraign before you, on charges of treason, such distinguished persons as the imperial chancellor, the president of the United States and, as a third in this distinguished trio, the pope.’

  This produced the ripple of laughter he had been laying for.

  ‘What conceivable similarity is there between the published utterances of such people and a direct and totally illegal attempt to incite fellow soldiers to desert their colours? He talks about geese and ganders. I might retaliate by talking of chalk and cheese. But I will not do so. I will just say, in simple English, that I do not consider that any valid defence has been raised to the first charge. I will say nothing of the second charge because, if the first charge is held to be proved, the intention of the prisoner to slink off before he could be brought to justice, though indicative of his character, is of little probative value. If I can help the tribunal in any further way I shall be glad to do so.’

  Colonel Byrd resumed his seat.

  The president conferred,
briefly, with his juniors and said, ‘It is the unanimous decision of this court that the prisoner has been found guilty of treason.’

  The two youngsters nodded.

  ‘For that there can be only one sentence: to suffer death by being shot.’

  Luke was watching Sergeant Britain who seemed to be interested, but not upset.

  The president added, ‘Since it will be necessary for the decision of this court to be considered by the divisional and corps commanders before it can be referred to the commander-in-chief we have thought it right to lay down that, in the event of the sentence being confirmed, the execution will take place on the parade ground in Montreuil, in the presence of the assembled battalion, at dawn six days from today’

  ‘Why hang about?’ said the prisoner. ‘Why not tomorrow morning?’

  Chapter Fourteen

  ‘Do you mean to tell me,’ said Luke, in tones of outrage, ‘that a kangaroo court, made up of two schoolboys and headed by a president who had clearly discussed the case with the prosecution and arrived at an agreed conclusion before the proceedings even opened—do you mean they can sentence a man, who has done his bit and more than his bit, to be tied to a post with a white patch sewn over his heart, as a target for the bullets of his companions?’

  ‘If,’ said Tom calmly, ‘you are asking me whether such a tribunal has the power to recommend a death sentence—it is no more than a recommendation until the commander-in-chief has confirmed it—the answer is yes. The power derives from Defence of the Realm Acts passed in 1914 and 1915, and numerous Orders in Council made under those statutes.’