Mud, Blood and Poppycock: Britain and the Great War (Cassel Military)

by Gordon Corrigan

  A General Court Martial had at least nine members if held in the UK, India, Malta or Gibraltar, and a minimum of five if held elsewhere. The president had to be a lieutenant colonel or above (he was usually a brigadier general) and each member had to have held a commission for at least three years. This court could try an officer, and could impose the death penalty or any other sentence prescribed by military law. If the court passed a death sentence, at least two-thirds of the members had to agree. In all other cases a majority verdict sufficed, arrived at by asking members for their opinion individually and in ascending order of seniority. If the court was equally divided (possible where its numbers were more than the legal minimum), the accused had to be acquitted.

  District and General Courts Martial were well suited to the administration of justice in peacetime, but were not always practical on active service, where it was often impossible to assemble the required number of officers of the prescribed rank. Military justice had to be swift, and to cater for this there was the Field General Court Martial, only convened in time of war and in the field, where it was not possible for the normal rules to be followed. A Field General Court Martial had to consist of three officers with a field officer as president. It could try any case and award the same punishments as could a General Court Martial, but if it imposed the death penalty then all the members had to agree. In very special circumstances the membership of a Field General Court Martial could be reduced to two officers, but in this case the court could not impose the death penalty and was limited to sentences of two years’ imprisonment or three months’ field punishment.

  In all cases there were strict rules to prevent anyone having a personal interest in the case, or anyone involved with the prosecution of the accused, from sitting on the court. All members of the court swore an oath on the Bible:

  I do swear that I will well and truly try the accused person before the court according to the evidence, and that I will duly administer justice according to the Army Act now in force, without partiality, favour or affection, and I do further swear that I will not divulge the sentence of the court until it is duly confirmed, and I do further swear that I will not, on any account, at any time whatsoever, disclose or discover the vote or opinion of any particular member of this court martial, unless thereunto required in due course of law. So help me God.5

  There was no appeal from the finding or sentence of a court martial, but there were checks and balances to ensure against a perverse verdict. No sentence of a court martial could be carried out until it had been confirmed. The confirming officer was usually the divisional commander, but for death sentences was the Commander-in-Chief (French and then Haig for the BEF). The confirming officer was required to review the sentence and could send it back to the court for reconsideration, but only a downward revision was allowed – the court could not increase the sentence, whatever the confirming officer thought. In the case of a death sentence the court could make a recommendation for mercy, as could all levels of command – brigade, division, corps and army – on the way to the Commander-in-Chief. The members of the court were themselves liable to sanctions under both military and civilian law if they behaved unlawfully in the trial of an accused.

  In a serious case a court martial often had a civilian judge – the Judge Advocate– sitting not as a member but to advise the members as to the law. On active service this was not always possible, but military law is deliberately uncomplicated, and the lack of legal qualifications did not impede a fair hearing. As long as the court followed the established rules of procedure, and likewise the rules of evidence – and if they did not, the confirming officer would quash the finding – then the trial would proceed fairly. Members had to weigh the evidence that was presented, and decide what weight to give to each portion, before arriving at a decision.

  The procedure at trial was straightforward. The accused was informed of the charges he faced and was then asked if he objected to any member of the court. If the objection was reasonable (such as the accused having had a run-in with one of the officers in the past), then that member would be replaced. The prosecution then presented its case, calling witnesses on oath, who could be questioned by the accused or by his defending officer or, if necessary, by the court itself. Defending officers were not required to be legally qualified, although if such an officer was available he might well defend. The accused had the right to ask for any officer he wished as his defender, and if that officer was available and not disbarred (by, for example, being the accused’s commanding officer and thus involved in the prosecution), then he had to undertake the defence.

  After the prosecution case the defence called its witnesses, if any, and made its own case. Then the two sides summed up, the accused or his defending officer having the last word. The court adjourned to consider its finding, and when it had arrived at a decision, this was announced. If the finding was ‘not guilty’, that was the end of the matter. If the finding was ‘guilty’, the court heard the accused’s record read out, and any plea in mitigation of punishment, and any statement that the accused wished to make. The court adjourned again and decided upon sentence, which was duly announced in open court.6

  Something open to the confirming officer, which was not to be available in civilian trials for many years to come, was the power to suspend a sentence ‘for such period that seems expedient’. This was a useful instrument which meant that the sentence was not put into effect provided the man behaved, and it was often used.

  The public perception of military justice in the Great War is of an oppressive and cruel system hauling young men before hastily set-up courts which sentenced them to death without thought or sympathy for the reasons for their behaviour. Much of the criticism comes from those who simply fail to understand how an army works and what the military imperatives are and were; some is simply founded in ignorance of the facts. Altogether, throughout all the theatres of war, there were 286,185 courts martial of all types and for all offences in the British and Indian armies, and in Dominion and Colonial forces under British command, between 4 August 1914 and 11 November 1918. This means that, in an average year, about one man in every 200 was brought before a court martial of some sort. As a number of men were tried more than once, the impingement of military justice on the average soldier is less than this, but compares favourably with the averages brought before civilian magistrates and courts in the United Kingdom in peacetime. Of these courts martial eighty-nine per cent resulted in guilty verdicts, the rest being either acquittals or cases where the finding was quashed by superior authority.

  In the theatres of war a total of 2,229 officers were brought to trial by General Court Martial during the same period. Of these trials seventy-five per cent resulted in a conviction. Offences varied from drunkenness (thirty-seven per cent, and by far the most prevalent) to absence without leave (thirteen per cent) and cowardice (nine cases, or 0.3 per cent), and included quitting a post, ill-treating a civilian, fraud, desertion (eighteen cases), neglect, lying, disobedience, insubordination, indecency and escaping from confinement. Twenty-three per cent of trials were for ‘miscellaneous military offences’, which covered everything from conduct unbecoming an officer and a gentleman to driving without a licence. The most common sentence handed out after conviction of officers by General Court Martial was a reprimand, a rather more serious punishment in the military than in the civilian context, as it was nearly always a bar to further promotion. Of the 2,347 convictions of officers by General Court Martial 1,437, or sixty per cent, resulted in a reprimand. Five sentences of death were awarded, of which three were carried out. Thirty per cent of convictions resulted in cashiering or dismissal from the service, while twenty-one per cent involved loss of seniority. The difference between cashiering and dismissal is that the former not only carries a greater stigma, being the equivalent of discharge with ignominy for other ranks, but also forfeiture of pension and a bar on any further employment under the Crown (with one exception), including employment by a local
authority. Thirty convictions resulted in imprisonment, which automatically included cashiering. Lest it be thought that cashiering or dismissal allowed the offender to escape the horrors of war, once out of the service the ex-officer immediately became liable, after February 1916, to conscription as a private soldier.

  There were 252 officers brought before Field General Courts Martial. Seventy-six per cent resulted in convictions, and once again the most common offence was drunkenness (fifty-two per cent). Other charges included cowardice (one case) and most of the offences enumerated above. Sentences included 192 reprimands, forty-four forfeitures of seniority, ninety cashierings or dismissals, and two sentences of imprisonment.

  As only a General or Field General Court Martial could deal with an officer, offences which, if committed by a private, would be dealt with at company or battalion level theoretically led to an officer’s appearing before a court martial. To balance this, however, was the reluctance to wash regimental dirty linen in public, and there was (and still is) a well-established – and totally illegal – system of punishing officers for relatively minor offences without their having to appear in public. These long-accepted penalties included stoppage of leave, extra tours as orderly officer, and invitations to contribute financially to battalion welfare funds.

  District Courts Martial in war theatres saw 4,132 other ranks appear before them, with an eighty-two-per-cent conviction rate. The major single offence was drunkenness, at seventeen per cent of all charges, followed by absence without leave at fifteen per cent. The three offences of disobedience, insubordination and using violence to a superior together accounted for twenty-seven per cent of cases, quitting a post for five per cent, and desertion for three per cent. The most common sentence awarded (fifty-seven per cent) was one of imprisonment or detention, usually for three months, followed by reduction in rank, fines or stoppages of pay (twenty-two per cent). Other punishments included field punishment and discharge with ignominy, but the latter was used sparingly (fewer than one per cent of sentences) as the man was then no longer liable for conscription.

  General Courts Martial dealt with 144 other ranks, usually offenders in base areas where such a court could be convened, and charges were obviously more serious than those dealt with by District courts. Forty-seven per cent of trials were for mutiny, sixteen per cent for offences involving violence or disobedience, and twenty-one per cent for miscellaneous military and civilian offences. Drunkenness was alleged in only three cases, each of which must have been the result of a monumental beano, or very serious and persistent offending, as most cases of inebriation were perfectly capable of being handled by the company or battalion commander, or at worst by a District court. Sentences handed down to soldiers by General Courts Martial ranged from death to penal servitude, imprisonment or detention (fifty-eight per cent of all sentences), one third of them for a period of two years, field punishment (seventeen per cent), discharge with ignominy (seven per cent), and fines, stoppages of pay or reduction in rank (seven per cent).

  The Field General Court Martial was the main judicial instrument that dealt with other ranks facing serious charges. There were 123,383 of these courts and twenty-three per cent concerned absence, closely followed by our old friend drunkenness at twenty-one per cent, violence, disobedience and insubordination at eighteen per cent, desertion at five per cent, and one per cent each for ill-treatment of civilians (around 1,200 cases) and mutiny. Cowardice was alleged in 0.4 per cent of cases.

  Sentences handed down by Field General Courts Martial to other ranks and actually implemented included the death penalty in 337 cases. Sixty-four per cent of sentences took the form of field punishment, twenty-eight per cent of penal servitude, imprisonment or detention, and twenty-two per cent of fines, stoppages or reduction in rank.

  Despite the popular belief that most soldiers who were shot had been found guilty of cowardice, this charge was only levied at 551 trials, or 0.2 per cent of cases. Cowardice was dealt with under Section 4 of the Army Act, which stated:

  Every person subject to Military Law who commits any of the following offences, that is to say…

  (7) Misbehaves or induces others to misbehave before the enemy in such a manner as to show cowardice, …

  shall on conviction by court-martial be liable to suffer death, or such less punishment as is in this Act mentioned.7

  ‘Misbehaves’ was defined in the Act as meaning that the accused ‘from an unsoldierlike regard for his personal safety in the presence of the enemy, failed in respect of some distinct and feasible duty imposed upon him by a specified order or regulation, or by the well understood custom of the service, or by the requirements of the case, as applicable to the position in which he was placed at the time’.8 Key words in this section are ‘in the presence of the enemy’, which did not mean that the enemy had to be actually within touching distance, but had to be in the vicinity. Thus a man who, on a route march from a billet ten miles behind the lines, ran away when he heard a lorry backfiring could not be charged with cowardice, whereas a man who did the same when he was ordered to leave his trench and advance across no man’s land clearly could be. Despite the Act’s attempt to make the offence unambiguous, what did and what did not constitute cowardice were inevitably subjective, and very difficult to prove. The charge was therefore only preferred in cases where there could be no doubt whatsoever that the man had behaved in what the average soldier would consider to be a cowardly fashion. Cowardice was undoubtedly present on other occasions, but the offences of desertion, quitting a post or casting away arms were much more clear-cut and more likely to be cited.

  The figures given above refer to sentences actually carried out. In many cases courts handed down heavier sentences, which were reduced or suspended on their way up the chain of command. Altogether 3,080 death sentences were passed by courts martial on British, Dominion and Colonial officers and soldiers, and to members of native labour corps subject to military law, between the outbreak of war and 31 March 1920 when active service officially ceased. Of these the great majority were passed in France and Belgium, where the bulk of the British and Empire armies were. Death sentences had to be confirmed by the commander-in-chief of the theatre, who held a royal warrant authorising him to do so, and of the 3,080 men sentenced to death only 346 were actually executed: 322 in France and Belgium, five in East Africa, four in Mesopotamia, four in Constantinople, three in Gallipoli, three in Salonika, two in Egypt, one in Italy, one in Palestine and one in Serbia. Nearly ninety per cent of those ordered to be executed had their sentences commuted to penal servitude, imprisonment or field punishment, or suspended. Of the 346 men actually put to death, 291 were of the British army, twenty-five were members of the Canadian forces, five were New Zealanders, four were in the British West Indies Regiment, employed mainly on labouring duties on the Western Front, and the remaining twenty-one were civilians subject to military law, including the Chinese Labour Corps, who exhibited a remarkable tendency to murder one another.

  Indian army disciplinary records were kept separately, and no fully accurate breakdown now exists; but discipline in the Indian army, which remained an all-regular volunteer force throughout the war, was generally very good. Indian army courts martial also had a let-out denied to the British, which was the power to substitute flogging for a sentence of death or imprisonment. From battalion war diaries and personal accounts, there appear to have been very few soldiers of the Indian army executed, and only one definite case on the Western Front (a cavalryman convicted of murder).

  It will be noted that no Australians were executed, despite their having five divisions on the Western Front from 1916 onwards, and two cavalry divisions in Palestine. It is often alleged that ‘Australians could not be shot’. In fact Australian military law was virtually identical to that of the British, and 113 Australian soldiers were sentenced to death, three for cowardice, two for striking a superior, two for disobedience and the rest for desertion. No sentence of death on an Australian was ever ca
rried out as, alone amongst the Dominion forces, the Australian government had reserved the power to confirm a death sentence not to the commander-in-chief of the theatre but to the Governor General of Australia; this was Sir Ronald Munro Ferguson (who was himself British and not Australian), and he invariably commuted the sentence to imprisonment. There were occasions when the Australian generals would have dearly liked to shoot a few of their men, whose superb fighting record was counterbalanced by appalling discipline. With seven per cent of the strength of the BEF, the Australians provided twenty-five per cent of its deserters, and when they were out of the line drunkenness, fighting and theft were rife. Statistically an Australian soldier was nine times more liable to serve a term of imprisonment than was his British counterpart, and these were sentences handed down by Australian courts martial, composed of Australian officers. In March 1918 nine out of every thousand Australians on the Western Front were in prison, compared with one in every thousand British.9 In December 1918 there were 811 Australian soldiers serving sentences in military prisons, compared with 1,330 British and a combined total of 314 Canadians, New Zealanders and South Africans. Outwardly Australians laughed all this off, attributing it to the independent, happy-go-lucky attitudes of the freeborn Australian jackaroo (despite most Australian recruits coming from cities), but inwardly the Australian army absorbed the lessons, and discipline in the Second World War was much better.

  Men actually executed had been found guilty of the following offences:

  Mutiny

  3

  Cowardice

  18

  Desertion