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presented to

library
ottbe

THni\>er0tt

of

Toronto

C-

NOTES ON MILITARY LAW

"<*s~

NOTES ON

MILITARY LAW
BY
i.J

k-

CAPTAIN J jfcrHARDING -NEWMAN
ttt

THE ESSEX REGIMENT

AUTHOR OF

4

WHAT TO KNOW FOR THE

C EXAMINATION

'

SECOND EDITION REVISED

HUGH
119

REES,
S.W.

LTD.

PALL MALL,
1908

NOTES ON MILITARY LAW.
THESE Notes
Law.
important points have been taken and stated more concisely than in the official books in
order that the reader
easily

are

not intended

as,

and do not

pretend to be, an exhaustive treatise on Military

The most

may

familiarise himself
facts

with

the

essential

more of the Law and

Regulations, and (by making use of the references which are given) with the official publications from which they are obtained.

Information on particular subjects which is more or less scattered in the official books has been

brought together, and, where possible, tabulated.
J.

C.

H. N.

Gozo, MALTA,
February
5,

1906.

NOTE TO SECOND
The

EDITION.

present edition has been brought up to date in accordance with the Manual of Military Law and

King's Regulations, 1908. An appendix has been added, giving concisely the subjects with which each section of the Army Act and Rules of Procedure deal.
J.

C. H. N.

CAMBERLEY,
April 1908.

CONTENTS.
CHAPTER
I.

ON THE METHOD OF ACQUIRING A KNOWLEDGE OF MILITARY LAW, AND OF USING THE INDEX OF THE MANUAL AND KING'S REGULATIONS
.

PAGE

i

CHAPTER
ARMY ANNUAL ACT ARMY ACT
KING'S

II.

THE MILITARY CODE.
RULES OF PROCEDURE REGULATIONS ROYAL WARRANTS ARMY ORDERS REGIMENTAL DEBTS ACT THE NATIONAL DEFENCE ACT, 1888 PERSONS SUBJECT TO MILITARY
5

LAW

CHAPTER

III.

CUSTODY, ETC. OFFICERS CLOSE ARREST OPEN ARREST ORDERING ARREST PRIVILEGE FROM THE MANNER OF INVESTIGATION OF A CHARGE AFTER ARREST AGAINST AN
OFFICER OR WARRANT OFFICER AGAINST A SOLDIER POWERS OF COMMANDING OFFICERS AS TO OFFENCES POWERS OF PUNISHMENT OF COMMANDING OFFICER MINOR PUNISHMENTS GENERAL RESTRICTIONS POWERS AS REGARDS N.-C. OFFICERS GENERAL

NOTES ON COMMANDING OFFICER'S POWERS POWERS OF COMPANY COMMANDERS PROFICIENCY PAY, ETC. CONDUCT SHEETS

n

CHAPTER IV. CLASSIFICATION OF ARMY
LIMITATION

ACT.

CRIMES.

CLAUSE DEFINITIONS OFFENCES FOR WHICH NO ALTERNATIVE AS REGARDS PUNISHMENT is ALLOWED OFFENCES EXCEPTIONALLY TREATED OFFENCES AGAINST ARMY ACT WHICH CAN BE DEALT WITH BY CIVIL COURTS

.27

VI

NOTES ON MILITARY LAW.

CHAPTER V. CHARGES AND WITNESSES.
CHARGE-SHEETS PRIVILEGE OF WITNESSES FROM ARREST COMPETENCY EXAMINATION OF WITNESSES
.

PAGE

37

CHAPTER

VI.

EVIDENCE.
DEFINITION OF EXCLUSION OF ORAL DOCUMENTARY DIRECT INDIRECT PRIMARY SECONDARY FACTS NOT REQUIRING PROOF BURDEN OF PROOF PRESUMPTIONS RULES OF EVIDENCE.

42

CHAPTER
ELIGIBILITY

VII.

COURTS-MARTIAL.
COURT-MARTIAL

WARRANTS GENERAL CONVENING AUTHORITY COMPOSITION RANK OF PRESIDENT POWERS OF PUNISHMENT As TO OFFENDERS As TO OFFENCES CONAUTHORITY SPECIAL FIRMING CONFIRMATION DITTO DISTRICT COURT-MARTIAL DITTO REGIMENTAL COURT-MARTIAL FIELD GENERAL COURTMARTIAL
QUALIFICATION

CHAPTER VIII. THE SPECIAL DUTIES OF VARIOUS MEMBERS OF AND PERSONS PRESENT AT A COURTMARTIAL.
PRESIDENT PROSECUTOR COUNSEL
JUDGE- ADVOCATE
CIVILIAN
59

CHAPTER

IX.

PROCEDURE.
EXEMPTION FROM TRIAL DUTIES OF CONVENING OFFICER ASSEMBLY OF COURTS-MARTIAL PROCEDURE ON PLEA OF GUILTY DITTO NOT GUILTY GROUNDS FOR CHALLENGE INCIDENTS OF TRIAL SPECIAL PLEAS ON ARRAIGNMENT IN BAR OF TRIAL As TO CHARGE ADJOURNMENTS ARMY FORM A9
.

CONTENTS.

Vli

CHAPTER
SPECIAL

X.
PAGE

FINDING, REVISION, CONFIRMATION.
FINDINGS ALTERNATIVE CHARGES SENTENCE REVISION CONFIRMATION OF PROCEEDINGS DITTO AFTER PROMULGATION SPECIAL CONFIRMATION PRISONS

80

CHAPTER
TRANSFER
PAGES
AS

XI.

PUNISHMENTS.
PART
OF

FORFEITURES

FINES

STOP87

SUMMARY PUNISHMENT

COMBINED PUNISH-

MENTS

CHAPTER
LAW ON BOARD
ABSENCE

XII.

GENERAL.
SHIP COURTS OF INQUIRY MARTIAL LAW RIOT ACT

ON ILLEGAL

...

92
95

APPENDIX

.

REFERENCES.
M.
III.

98

.

.

Manual

Sec. 50 M.A. 5

.

.

Army

.

.

of Military Law, Chapter III. para. 98. Act, section 50. Militia Act, section 5.

R.F.A. 5 R.P. 10 K.R. 460 A.O. 10/05

.

.

.

.

Reserve Forces Act, section Rules of Procedure, rule 10.

5.

.

.

Army
.

King's Regulations, para. 460. Order, No. 10, 1905.

R.W.

10

.

Pay Warrant,
O'Dowd's
'

art. 10.
50.

O'D. 50 V.A. Sec. 17

. .

Hints to Courts-Martial,' page
17.

.

.

Volunteer Act, section

MILITARY LAW.
CHAPTER
I

ON THE METHOD OF ACQUIRING A KNOWLEDGE OF MILITARY LAW, AND OF USING THE INDEX OF THE MANUAL AND KING'S REGULATIONS.
FOR
all

examinations in this subject

officers are

now

allowed the use of the Manual and King's Regulations. It may, perhaps, be considered that under these
circumstances
failure
is

impossible.

Officers

may

be

inclined to trust to luck in their efforts to answer questions, with the aid of the official books.

Those who do so are running some risks. It is now not only necessary to have a knowledge of the general principles of Military Law, it is also necessary to be able to quote the paragraphs or sections wherein these principles are laid down. All the questions of a paper may be answered correctly, but unless the authority for each answer has been quoted, good marks will not be obtained.
of the present examinations is not so much to test the candidate's knowledge of a number of minute

The object

points of Law as to test his knowledge of the arrangement of the official books.

with a view to his being able to look up quickly and correctly the Law or the Regulations on a point which may come under discussion, and which he is not expected to be able to answer from memory.
This
is

B

2

NOTES ON MILITARY LAW.

Under these circumstances it seems necessary to remodel the system on which we try to learn the subject. The writer has found the system roughly outlined
below to be satisfactory
:

A. If the reader has no knowledge of Military Law, will be necessary to read through
:

it

(1)

The Manual

of Military Law, chapter commencing at section 8.

I.,

page

3,

(2)
(3)

(4)

The Army Act. The Rules of Procedure. The King's Regulations.
is

Section VIII. Discipline.

necessary, as the notes in the succeeding chapters have been so much condensed that they may not be intelligible to those who have not some

This preliminary

knowledge of the subject. B. Read the succeeding chapters of this book. The reader should, by this time, have a knowledge
the
'

of

Military Law,' regards principles called the facts of Law, and also a general what may be idea of the arrangement of the books which he is allowed

general

of

as

to use.

But more than a general idea
is

of this

arrangement

of the official books

C.

When
'

ence

in

necessary. ' these notes, try to find the referreading the Manual or King's Regulations without

looking at the marginal notes or the index, from your knowledge of their general arrangement.
can, however, be certain of being able to without the index.

Nobody
The
D.

do

following remarks may, therefore, be of some use. Turn to the index of the Manual and notice these

points
(1)

That references to the Army Act are given
thick type. Those to Rules of Procedure in
italics.

in

(2) (3)

Those to the chapters in the early and of the book in ordinary type,

last part

ACQUIRING- A
(4)

KNOWLEDGE OF MILITARY LAW.
'

3

That there are various general headings such as Accused/
'

Charge/
c

Courts-Martial/

'

Desertion/

(5)

Evidence/ That the references in the book to the various points which come under this general heading
are arranged alphabetically.

'

An example
'

will

make
:

this clear.

Take this question The accused, on being

first

brought before a Court-

Martial, objects to the Court collectively. ' is the matter settled ?

How

'

This clearly will come under the general heading of Courts-Martial/

Under

this

heading look for the word
'

'

Objection/

remembering the sequence is alphabetical. On page 734 you find Objections to Members/ &c.
a question of procedure, therefore since references to the Rules of Procedure are given in
italics

You will realise it is

you will look up pages 468-70. The note to subrule A on page 469 will give you your answer. To do this you have merely inverted the question to its index form thus
:

Courts-Martial, Objections to Members, a Question
of Procedure.

Examples need not be multiplied. same in every case.

The system

is

the

Before leaving this part of the subject, it may be as well to remind readers of the existence of pages xv. to xxxii. at the beginning of the Manual. If the required reference

cannot be found in the index, it can often very easily be found here. It may, perhaps, be now said that so much reading

from other books has been suggested, that the necessity
B 2

4

NOTES ON MILITARY LAW.
is

for the succeeding chapters of these notes

not very

apparent.

hoped, however, that readers will see that the condensed information given has been collected, in regard to particular subjects, from all parts of the Manual. It should, therefore, be easier to obtain from these notes the general knowledge of Law necessary as a foundation
It is

for further reading,

and

it

will

be more easily committed

to

memory.

special reference to the index of King's Regulations appears to be necessary.
It is easy to decide

No

what

and what a question of Law Having done this, the same system of searching the
index

a question of Regulation or Procedure.
is

may

be pursued as in the case of the Manual.

CHAPTER
ARMY ANNUAL ACT

II

THE MILITARY CODE.
REGULATIONS MENTAL DEBTS ACT PERSONS SUBJECT TO MILITARY LAW.

ARMY ACT RULES OF PROCEDURE ROYAL WARRANTS ARMY ORDERS

KING'S REGITHE NATIONAL DEFENCE ACT, 1 888

Army Annual

Act.
year.

PASSED every

Continues the

Army Act
;

in force

:

M.

II. 35.

In the United

Kingdom
:

to April 30

Elsewhere to July 31. Preamble states
1.

A. A. A.
X9o8<

That the maintenance

of a standing

Army within

the

United Kingdom of Great Britain and Ireland in time of peace, without the consent of Parliament, is illegal. 2. That an Army (strength being stated each year) is
necessary for the safety of the Kingdom. 3. That discipline must be enforced by a special Military Code.

Body
1.

contains

:

M.
to the

II.

as

Any amendments

Army Act
all

necessary.

Prices to be paid for billetting. 3. States that Army Act applies to
2.

persons subject

to Military

Law.

Army
1.

Act.
five parts
:

Divided into
Discipline

:

M.

II. 34.

Sects. 4-75. Sects. 76-101. 2. Enlistment
:

o
3.

NOTES ON MILITARY^LAW.
Billetting

and impressment
:

of carriages

:

Sects.

102-

121.
4. 5.

General provisions Sects. I22-I74A. Application of the Act Sects. 175-190.
:

See

Army

Act.

Rules of Procedure.
Deal with
1.
:

1

Investigation and disposal of offences

by Command-

ing Officer.
2.

Convening and constitution of Courts-Martial.

3.

of charges, &c. 4. Procedure of Courts-Martial.

Framing

5.

Confirmation and revision of Courts-Martial pro-

ceedings.
friend,

evidence, prisoner's Field General Courtscounsel, Judge-Advocate, Martial and Courts of Inquiry.

6.

Rules

regarding

witnesses,

Forms for Courts-Martial, Courts of Inquiry, Charges, Commitments to prison, Detention Barracks (appended).
7.

King's Regulations. Contain Regulations as to
1.

:

Interior economy. 2. Maintenance of discipline.
3. 4.

Powers

of

Commanding

Officer.

Disposal of prisoners and offences against enlistment.

Royal Warrants.
Issued
1.

when necessary and

deal with

:

Discipline.

2.

3. 4.

Pay. Promotion. Conditions of service.

Sec. 70.

|

the

These Rules cannot contain anything contrary to the provisions of Army Act, must be judicially noticed, and must be laid before Parliament as soon as possible after they are made.
i

THE MILITARY CODE.

Army

Orders.

Issued monthly by the Army Council. Serve to promulgate all orders, regulations, and instructions to the

Army. Regimental Debts Act.

Contains information regarding disposal of effects in the case of the death of an Officer or soldier.

Regulation of the Forces Act.
Gives Government power to take possession of any railway in the United Kingdom in case of emergency.
Act, 1888. Gives Government power to have precedence of traffic on any railway in case of emergency.

The National Defence

PERSONS SUBJECT TO MILITARY LAW.
Reference.

1

NOTES ON MILITARY LAW.
Reference.

THE MILITARY CODE.
Reference.

10
Reference.

NOTES ON MILITARY LAW

II

CHAPTER

III

CUSTODY, ETC.
OFFICERS CLOSE ARREST OPEN ARREST ORDERING ARREST PRIVILEGE FROM THE MANNER OF INVESTIGATION OF A CHARGE AFTER ARREST AGAINST AN OFFICER OR WARRANT OFFICER AGAINST A SOLDIER POWERS OF COMMANDING OFFICERS AS TO OFFENCES POWERS OF PUNISHMENT OF GENERAL MINOR PUNISHMENTS COMMANDING OFFICER POWERS AS REGARDS N.C. OFFICERS RESTRICTIONS GENERAL NOTES ON COMMANDING OFFICER'S POWERS POWERS OF COMPANY COMMANDERS PROFICIENCY PAY, ETC. CONDUCT SHEETS.

taken into military custody by being placed in arrest (i.e. confined in Barrack or Guard Detention room) or in open arrest (i.e. must not quit
is

A

SOLDIER

Sec. 45.
'

'

barracks until his case
is

is

disposed

of,

attends parades but
place to place,

detailed for

no duty).

A
man.

soldier in arrest,

when moved from

does so in charge of an escort.

An

escort

may

consist of a single
is

N.-C. Officer

or

A

soldier while in custody

not required to perform K.R.

482.

any military duty further than that necessary to relieve him from any position of responsibility which he may
hold.

He

is

not to bear arms except on the line of march or

in cases of emergency.

(Old) Barrack cells

= (New)

Barrack detention rooms.
(New) Quard detention rooms
.

A.O.LLL
1906

Guard-room cells| Prisoners room
)

=

12
If

NOTES ON MILITARY LAW.

R.P.
joe

2,

K.R.

484.

put on duty in error he is still liable to be proceeded against for the offence for which he was put in arrest. A crime may be entered in the Guard Report without the accused being confined. xhe case of a soldier taken into custody must be inquired into within 48 hours of his arrest. If not dis<f

posed of by the Commanding Officer the latter
either
1.

will

2.

Convene a Regimental Court-Martial within 36 hours. Apply for a District Court-Martial or General CourtMartial within 36 hours.

R.P.

5.

j n the case of a Regimental Court-Martial there should be an interval of 18 hours between the warning and the

arraignment of the accused, and 24 hours in the case of
higher Courts.
If investigation is

must be made
Station.
Sec. 45.

delayed beyond 48 hours, a report to the Officer Commanding the District or

a person subject to Military Law not on active service is detained in custody for more than eight days
if

without a Court-Martial being ordered to assemble, a special report must be made to the Officer Commanding
the District or Station, and a similar report made every eight days subsequently until the accused is released or

a Court-Martial ordered to assemble. This report must be made even

if

the fault of the

delay appears to be with the General Officer
R.P.xy.

Command-

ing i.e. convening Officer. Serious delay (15 days at home, 30 days abroad) must be reported by the convening Officer to the Army Council.

Sec

45.

A

person subject to Military

Law

is

ordered into mili-

tary custody by any Officer or N.-C. Officer of superior rank to the offender.
Sec.
10,

The only exception to fray or disorder, when an

this is in the case of a quarrel, order a senior to be Officer

may

arrested even of a different corps, but not if a senior is present and has witnessed the offence or disturbance.

CUSTODY, ETC.
Officers

13

Are put either
latter

open arrest or close unless the former is ordered.
in

arrest.

The

K.R.

466.

Close Arrest

Means detention

in tent or quarters except to take

exercise under supervision.

Open Arrest
Debars an Officer appearing in mess or at any place of

amusement

or

public

resort.

He may

take exercise

within defined limits.

In both cases uniform must be

worn, but without sword, sash, belt or spurs.

Ordering Arrest.
Officer usually orders the arrest of a N.-C. Officer Sec. 45. *** 484 or private through the medium of a N.-C. Officer. The
latter

An

'

immediately makes out the

'

crime,'

which

is

signed by the Officer and furnished to the Commander The latter enters it in his Guard Report of the Guard. if the accused is confined, or if the case is to be reserved
for the disposal of the Commanding Officer, otherwise it is entered in the company minor offence report.
If

the crime

is

not furnished at once

it

must be sent

Sec. 21.

within 24 hours of committal. The non-receipt of a crime is automatically reported to the Commanding Officer, as the Guard Report is furnished to him daily,

and

no crime has been received the accused's name is only recorded with no crime entered against it. If it is not furnished within 48 hours, and if evidence
if
'
'

sufficient

to justify detention accused is released.

is

not forthcoming, the
463.

An

Officer

is

Staff Officer.

placed in arrest through the medium of a K.R The order should be in writing.
usually reported to his

An

Officer

is

own Commanding

when he has committed an offence, the latter taking the necessary action. The placing of an Officer
Officer

14

NOTES ON MILITARY LAW.
Officer

under arrest must be immediately reported to the

Commanding

the District or Station.

Privilege from.
Sec. 125

Nobody

is

privileged

from arrest except witnesses

before a Court-Martial, when proceeding to, attending at, or returning from the Court, and then only from arrest on a civil process. There is no privilege from
arrest

K.R.

470.

on a criminal process. An Officer under arrest cannot demand a CourtMartial, and cannot be released from arrest without the

sanction of the highest authority to
Sec. 182, T Qo TOO

whom

the case has

been referred. For N.-C. Officers and Warrant Officers not holding an honorary commission the regulations for arrest are the

same as
K.R.
477.

for pi vat es.

Warrant

commission, the same Lance- Corporals or Acting-Bombardiers with less than
four years' service should not, except in special cases, confine soldiers, but should report the case to the Orderly

Officers holding as for Officers.

honorary

K.R.

476,

Sergeant. On the line of

march a

soldier

may
'

confined in any police-station or civil of his Commanding Officer for a period not exceeding
seven days.
K.R.
475.

necessary be lock-up by order
if
'

For a minor offence a
only.

soldier is placed in

open

arrest

THE MANNER OF INVESTIGATION OF A CHARGE AFTER ARREST.
1

M.
C

IV. 19.

Rp

4 ^*4

8, 124.

Against an Officer or Warrant Officer. The evidence is taken in writing (if necessary) before ^e Commanding Officer and in the presence of the accused. A General Court-Martial in the case of an
1

See

K,R

?

484, 485, 486.

CUSTODY, ETC.
Officer,

15

or a General Court-Martial or District Courtis

Martial in the case of a Warrant Officer

applied for
Sec. 182.

within the limit of time already laid

down

(36 hours).

cannot dispose of the cases of offenders of either of the above ranks.
Officer

A Commanding

Against a Soldier. Is always investigated
his

first

by the

Officer

Commanding
M.IV.
21.

Company

(within the usual time limit).
:

This Officer can either Dispose of the case himself, or refer
Officer.
If

it

to the

Commanding

he disposes of it himself he endorses the crime with the punishment given. This is copied into the Company minor offence report,
for the information of the
If
it

Commanding
the
Officer

Officer.

is

referred

to

Commanding

he

may:
1.

Dismiss the case
it

;

2. Dispose of
3.

himself

;

4.

Convene a regimental Court-Martial Apply for a District Court-Martial.

;

or

In the latter case the application (or convening of Regimental Court-Martial) must be made within the
in the case of drunkenness no time limit (36 hours) investigation must take place until 24 hours have elapsed
;

since the soldier in arrest

was confined

in the

Guard

K.R.

478.

Detention room.

The

Officer

Commanding a Company

as such can only

award a private seven days' C.B. and fines for drunkenHe may admonish or reprimand a Corporal or ness.
Lance-Corporal.

he considers an offence so serious as to merit a punishment more severe than he can give he should refer the case to his Commanding Officer, the crime being then entered in the Guard report* The Commanding Officer can dismiss a case if he
If,

therefore,

i6

NOTES ON MILITARY LAW.
is

thinks sufficient evidence
alleged offence.

not forthcoming to prove the

Regimental Court-Martial must be convened within 36 hours as stated above, but not sooner than 18 hours
K.R.
487.

A

after the original investigation. Commanding Officer by

A

Law can

deal with any

offence,

but not with any offender. By Regulation his powers are restricted as to offences. These powers are tabulated below
:

POWERS OF COMMANDING OFFICERS
AS TO OFFENCES.
K.R. 487
Sec. 6. Sec. 8 (2).
1.

2.

Offences in respect of service, notjon active service. Threatening or insubordinate language, not on

active, service.
Sec. 9
(2).

3.

Disobedience of lawful command, not on active
Resisting custody, or breaking out of barracks. Neglect of Standing Orders.
Assisting or conniving at desertion.

service.
Sec. 10
(2, 3, 4)-

4.
5. 6.

Sec.

ii.

Sec. 14. Sec. 15.

7.
8.

Absence.
Malingering.

Sec. 18
(i, 3).

Sec. 19. Sec. 20.
Sec. 21. Sec. 22. Sec. 24.

9.

Drunkenness.

Permitting escape of prisoner (except wilfully). 11. Irregularly detaining a prisoner.
10.

Sec. 24.

Sec.27( 4 ).
Sec. 33.
Sec. 34. Sec. 40.

Losing by neglect. horse. 13. Injuring property and ill-treating a 14. False statement to prolong a furlough. from Reserve. 15. False statement on attestation except
12.

16. Offences against enlistment regulations.
'

17.

Conduct to prejudice/

etc.

CUSTODY, ETC.

POWERS OF PUNISHMENT OF COMMANDING OFFICER.
In those cases marked with an asterisk a soldier can claim to be tried by District Court-Martial instead of

submitting to the award of the
*

Commanding

Officer.

i8

NOTES ON MILITARY LAW.

General Restrictions.
K.R.
BC 4
'

493.

^'

detention exceeding seven days punishment may be added.
i.

If

is

given,

no minor

R.P.

6.

award of detention and C.B. must not exceed 14 days added together. 3. For more than one award a soldier is not to do more than 14 days' consecutive detention or 28 days' combined detention and C.B. 4. Detention always commences on the day of award,
2.

Single

except when a prisoner is not received into a detention barrack or military custody on day of award. 5. C.B. always commences at expiration of previous

award.

Powers as regards N.-C.
K.R. 302, 499, 506.
Sec. 183.
(a)
(b)
(c)

Officers.

Severe reprimand.

Reprimand.

Deprivation of acting or Lance rank. (d) Deprivation of position in the nature of an appointment. (No minor punishments may be given.)

General Notes on

Commanding
of

Officer's

Powers.
Officer

The power

of

punishment

a

Commanding

always exceeds seven days' detention, except for absence less than seven days.
Sec. 46

Detention for absence if it exceeds seven days must not exceed the number of days' absence. (5) (6) and Note. 2. If detention exceeding seven days is given, no minor K.R. 493. punishment must be added. Sec.
K.R.
493. 1.

4 6(9).
512,

K.R.
497-

R.P.
135-

6,

Detention should not be given for simple drunkenness unless the amount of unpaid fines is 205. and upwards, or the case is liable to trial by Court-Martial. 4. Detention up to and including seven days will be
3.

given in hours, and commences from the hour a soldier is received into prison, and if not so received it commences
the next

R.P. 6. Note A,
last three
lines.

day whether received or

not.

1

1

He

on day

of

cannot lose pay for this day when he has not been committed award of punishment.

CUSTODY, ETC.
5.

19
in days,

Detention over seven days
first

is

awarded
of

and

award. 6. A soldier guilty of simple drunkenness must be K.R. 510, " summarily dealt with by the Commanding Officer, unless s 5I2>
four previous cases have been proved against him within the previous 12 months, without subtracting any time spent in prison or detention or absent.
7.

commences the

minute of day

Fines for drunkenness

:

First case,

no

fine.
; ;

K.R.

512.

Second case, 2s. 6d. third and subsequent cases, 55. but if within six months of last, 75. 6d. if within three
;

months
8.

of last, IDS.

Colonial Corps one-half of above fines.

Pay

is

now

forfeited

by Royal Warrant

for every R.W.902.

day

of absence without leave.

Six consecutive hours count as one day. Twelve consecutive hours count as two days provided part of the 12 hours is in one day and part in another.

Over 12 hours a man loses pay for every day during any portion of which he has been absent. If a soldier's absence causes a duty to be thrown on
another, a day for the purposes of forfeiture of be any time, however short.
9.

pay may
7-

a Commanding Officer proposes to give a R-Psoldier other than a minor punishment, or his finding is such as to involve forfeiture of pay, he must first ask him whether he desires to be summarily dealt with or be
tried

When

by

District

Court-Mar tial.

If this is

not done a soldier

may demand

to be tried

instead of submitting to the award given him at any time before the hour fixed for the commitment of soldiers

under
10.

arrest.

A Commanding

Officer

may

remit any portion of a R.p.
e

6,

punishment given by himself or his Company Commanders any time before the original punishment given is comAfter completion of punishment, the record in the conduct sheet cannot be altered by him.
pleted.
c 2

20

NOTES ON MILITARY LAW.

This may, however, be done by the General Officer Commanding should he think fit at any time within two
years of the awarding of such punishment. In all cases brought before a Commanding Officer for
disposal the accused may now demand that the evidence be taken on oath. Sec. 46 sub. -sec. 6 and note.

A
Sec.46(8),

Soldier can claim to be tried by District CourtMartial. * When given other than a minor punishment with-

K.R.

509.

out having been previously asked if he will submit to the award. 2 When fined for drunkenness.
-

495> Sec.

3
4-

Sec. 46.

F or loss O f p ay When awarded

for absence.

(Put shortly, Martial in any case where his pay
finding.)

to stoppages of pay. a soldier may claim a District Courtis

affected

by award

or

Powers of Company Commanders.
i.

Fines for drunkenness.

K.R.
R.P.

501.
120.

Seven days' C.B., but Subalterns of less than three years' service may be restricted to three days' C.B. for offences committed 3. Extra Guards and Picquets while parading for or on these duties (subject as usual
2
-

K.R.

499.

to the approval of the Commanding Officer). a case against a Non-Com4. They "may also deal with missioned Officer below the rank of Lance-Sergeant,

disposing of

it

by admonition

or reprimand (not severe

reprimand)

.

Service Pay, etc. Since April i, 1902, the soldier's pay and allowances

have been as follows
1.

:

is.

a day pay.

2.
1

1 Messing and kit allowance, $d. a day.

After the ist of April, 1909, kit allowance (2d. per diem), will be credited quarterly (155. $d.) and consolidated with a quarterly clothing allowance.

CUSTODY, ETC.

21

A
six

soldier

is
1

only paid the latter after having served

months.

NOTE. The Commanding Officer may request the Accountant to withhold this allowance from unsatisfactory
recruits.
1

A.O.,

Service Pay

Only
1905,

refers to soldiers enlisted

who do
i.

prior to October 19, P.W. not change their conditions of service pp
*

'

subsequently.
6d. per day, to increase to yd. per five years' service. *

Class

day day

after A.O.'a

^
193

Class 2.

4d. per day, to increase to $d. per

after

03
JJ-

five years' service.

ao3

Qualifications for above.
as for Proficiency Pay (see below), except that for Class 2 no musketry standard of efficiency is

*

The same

required.

Proficiency Pay.
Special A. O. September 17, 1906. Proficiency pay takes the place of Service Pay and

Good

Conduct Pay

for all

men who

enlist or

change their con-

ditions of service

i.e.

re-engage, continue, or transfer to
I,

another branch after October
Classification.

1906.

Class

i.

Class 2.

a day. 3^. a day
6d.

Qualifications for either Class.
1.

Must be serving

for

more than three years with the

Colours.
2.

Have two

years' completed service.

After the ist of April, 1909, there will be enlisted subsequent to that date.

no

restrictions for

men

22
3.

NOTES ON MILITARY LAW.

Must be physically fit. 4. Must have 3rd Class Certificate of education. Warrant Officers and Sergeants are entitled to Class
in virtue of their rank.

i

Corporals and Bombardiers are similarly entitled to
Class 2.

Other soldiers must, in addition to above qualifications for Class 2 be a 2nd Class for Class i, be a ist Class shot shot or efficient signaller if enlisted as boys, be 20 years
;
;

of age.

No man
Service

can draw Proficiency Pay while suffering from

venereal or alcoholism.

Pay
;

for

men

enlisted prior to October
i,

continues

but from November

i, 1906, the qualifica1907,

tions for Class i are the

A man may
falls

as those for Proficiency Pay. be reduced from Class i to Class 2 if he

same

below the necessary standard of efficiency. Service and Proficiency Pay cannot be forfeited for

misconduct. 1

Messing and Kit Allowance.
A.O. a8o
1907

messing from date of attestation, kit on attaining six months' service.
Issued automatically to
soldiers,

reference to the various punishments which have been enumerated in this chapter it will be found useful
to study the tabulated form on the following page showing what punishments are entered in the Regimental and

With

Company conduct
1

sheets respectively.
Periods of det. imp. or absence are not

Previous service counts. deducted.

CUSTODY, ETC.

ENTRIES.
Regimental conduct sheets of Colour-Sergeants and ranks above will be kept as confidential documents.
Company Conduct
K.R. 1921.
Sheet.

Regimental Conduct Sheet. K.R. 1916.

1.

Every offence for which more than one day's C.B.
has been given

1.

2.

Every conviction by C.-M. Every case of desertion or
fraudulent enlistment
trial

when

2.

Every offence of drunkenness whether punished or
not

3.

dispensed with Every conviction by Criminal
or

Summary
1

Jurisdiction

3.

Every offence entailing a forfeiture of pay, whether
punished or not Every case of admission to Hospital for alcoholism

4.
5.

Court Severe reprimand Reduction to a lower grade

4.

Put

Enter shortly. every offence, whether punished or

or ranks, and deprivation of lance stripe for an offence (not for inefficiency) 6. Every award of detention
7. 8.

admonished of (a) Drunkenness
:

(6)

If

it

entails

forfeiture
9.

C.B. exceeding seven days Every instance of drunkenness, whether punished or not

of

pay

Any punishment
on
ship

awarded

board

Other offences only when C.B. exceeding one day is awarded

ship
of

by

O.C.
exits

10.

Stoppage

smoking

ceeding seven days or equivalent
11.

Every offence

entailing forfeiture of pay, except for
:

(a) Absence not exceeding two days (b) Civil conviction pun-

(c)

ished by fine if G.O.C. so directs Offences committed before enlistment

12.

Punishments

awarded

by

visitors to prison's detention bks., &c., (branch

detention bks. only when ordered) 13. Convictions under R.F. Act
14.

Admissions to hospital for
alcoholism
distinguished conduct

15. Special acts of gallantry or

to be given in evidence before Court-Martial, mitted before enlistment or when not a deserter.
1

Not

if

offence com-

24

NOTES ON MILITARY LAW.
following documents are attached to R.C.S.
:

The
1.

Records of Court of Inquiry under Sec. 72.
Copies of
all

2.

convictions

by

civil

power.

imprisonment over seven days has been awarded by Civil power, it is evidence as a former conviction by C.-M.
If

M. v.
lk>4.

27,
'

As previously
does not deal

stated,

when a Commanding

Officer

582

a case himself, he either convenes a Regimental Court-Martial or applies for a District or General Court-Martial to the General Officer commanding.

w ^h

In the latter cases the following documents are forwarded with the application
:

1.

The

2. 3. 4.
5.

Summary

charge-sheet. of evidence.

Conduct sheets. Statement as to character and particulars
List of witnesses.

of service.

6.

Medical certificate showing the accused
trial.

is

fit

to

undergo
7.

Name

of the Officer

who

investigated the charge.

AMENDMENTS TO
The substance
sheets
K.R.
1916,1921. i.
is

KING'S REGULATIONS.

Issued with A.O. February, 1907.
of the
:

amendments
book
is

as regards conduct

as follows

Officer's Court-Martial

abolished.

Regimental conduct sheets for Officers who have been convicted by a C.-M. will be kept instead. Ditto for

Warrant
2.

Officers.

Regimental

and

Company

defaulter

sheets

are

abolished.

Regimental and Company conduct sheets
instead.
3.

will

be kept

Regimental conduct sheets will be kept for every N.-C. Officer and man in the battalion those of Warrant
;

Officers

and Colour-Sergeants being

confidential.

CUSTODY, ETC.

25

Regimental Conduct Sheets. 4. The following will be entered
(1) (2)

in R.C. sheets

:

Every conviction by C.-M. Every case of desertion or fraudulent enlistment
trial

when
(3)

dispensed with. Every conviction by Criminal or

Summary

Juris-

diction Court.

Severe reprimand. (5) Reduction to lower grade or ranks and deprivation of Lance stripe for an offence not inefficiency.
(4)

(6) (7) (8) (9)

Every award

of detention.

C.B. exceeding seven days. Every instance of drunkenness.

Any punishment on board

ship

by C.O.

of ship,
its

(ga)

Stoppage of smoking exceeding seven days or

equivalent.
(10)

Every offence

entailing forfeiture of pay, except

for:
(a)
(b)

Absence not exceeding two days. Civil conviction punished by fine,

if

G.O.C.

so

directs.
(c)

Offences committed before enlistment.

awarded by visitors to prisons, detention barracks, etc. (to branch detention barracks
(n) Punishments
only

when

ordered).

(12) Convictions under Sec. R.F. Act.

(13)
(14)

Admissions to hospital for alcoholism.
Special acts of gallantry or distinguished conduct.
K.R.

5.

Company Conduct Sheets
Will be kept for every N.-C. Officer and man. The following will be entered in this sheet
:

(1)

Every offence

for

which more than one day's C.B.

has been given.
(2)

Every offence of drunkenness, whether punished or

not.

NOTES ON MILITARY LAW.
Every offence entailing a forfeiture of pay, whether punished or not. (4) Every admission to hospital for alcoholism, whether
(3)

punished or not.
shortly, enter every offence, admonished, of
:

Put

whether punished or

(a)
(b)

Drunkenness.
If it entails forfeiture of

pay.
is

when
6.

C.B. exceeding one day

Other offences only awarded.

1

Company Conduct Sheets will be destroyed (1) On discharge. (2) On transfer to Reserve. (3) On completion of six months' service (unless
clean
').

it

'

is

(4)
2

After a period of two years clear of an entry.
attaining rank of Sergeant. clean sheet is, of course, never destroyed.

(5)

On

A A new
K.R.
1921.

sheet

is

to have the date of destruction and

date of last entry shown at the top. 7. A Captain's pocket-book takes the place of conduct
sheets on active service.
8.

Company Commanders may reprimand
8

Corporals

and Lance-Corporals.
1

and

Only when completed or promoted

after date of publication

of this A.O.

27

CHAPTER
LIMITATION

IV.

CLASSIFICATION OF ARMY ACT. CRIMES.
FOR WHICH CLAUSE DEFINITIONS OFFENCES NO ALTERNATIVE AS REGARDS PUNISHMENT IS ALLOWED OFFENCES EXCEPTIONALLY TREATED OFFENCES AGAINST ARMY ACT WHICH CAN BE DEALT WITH BY CIVIL COURTS.

Before dealing with crimes the limitation clause should be noted.

Limitation Clause.
i.

Sec. 158,
if

No

crime can be tried

three years have elapsed K.R. 489

since its commission.
1

2.

Or if the

Law

offender has ceased to be subject to Military after three months have elapsed since his so ceasing

to be subject.

This does not affect his liability to be tried by Civil
Court.

Exceptions to Limitation. 1. Desertion on active service
be
tried.
2.

2

and mutiny can always

Both desertion and fraudulent enlistment if committed not on active service can also always be tried, unless in both cases a man has served in an exemplary manner (i.e. no entry in Regimental conduct sheet) for
three years since the commission of the offence.
1

A

to Military
*

person sentenced to penal servitude or imprisonment is subject Law as long as his sentence lasts. Trafficking in commissions is dealt with in Section 155. It may be noted See Sec. 189 for definition of Active Service.

that troops in

Egypt are always on active

service.

28

NOTES ON MILITARY LAW.

Offences of Reserve and Militia.
Referring to
R.F.A.
26.
:

i.

Assembly and payment.
Absence. False answer on attestation. Contravention of enlistment laws of Militia.
tried within
Officer
A v

M.A.

2.
43.

3.

4.

Can be
offence
if

two months

by the

who

after the discovery of has power to dispose of it, or

the

man

has not then been apprehended, within two

months

after his apprehension.

Classification of
Sec. 1-75.
76-101.
,,

Army

Act.

It

Discipline.

2.

Enlistment.
Billetting

1 02-121.

3.

and impressment

of carriages.

122-

4.
175-190.

General provisions.
Application of Act.

5.

Definitions.

Forcing a Safeguard.
Sec. 6.

Safeguard is a party of soldiers or single soldier detached to guard any particular property from depredations of our own troops.

Mutiny.
Sec.
7.

Collective insubordination.

M.

III.4.

Insubordination.
Sec.
10.
8, 9,

Mutinous act of an individual.
Sedition.

Sec.

7.

Similar to mutiny but directed

more against

civil

power.

Violence to Superior Officer.
Sec.
(7).
8.

Sec. 190

Superior Officer includes any N.-C. Officer or Acting N.-C. Officer, and does not include a private soldier

CLASSIFICATION OF

ARMY

ACT.

CRIMES.

29

not prevented, could be reasonably supposed to lead to an act of violence.
if

temporarily placed in authority. only includes such an attempt as,

An

offer of violence

Execution of his Office. May be denned thus When a soldier commits an offence against any person whom he may reasonably be supposed to know from any cause whatever is a superior Officer.

Being

in the

:

Sec. 8. e x*

1

Threatening or Insubordinate Language.
Essential points
(a)
:

An
It

intention to be insubordinate

must be apparent.
his

Sec-j

?

must be shown that the accused knew (b) words would be overheard.
(Otherwise they must be dealt with under Sec. 40.)

Lawful Command. (a) The command must be given by a superior who has a right to do so. (b) The command must refer to some military duty. (c) It must not be contrary to civil law.
2 Disobeying Lawful Command.

M.IIl.jo.

Essential points
(a)

:

The command must be given by a superior
office.

in the Sec.
'

9.

execution of his
(b)
(c)

(d)

must be lawful. It must be given personally. The disobedience must show
It

wilful

defiance

of

authority.
1

NOTE.

This

may

be either because the superior was in uniform or

being in plain clothes informed the soldier of his identity. 2 See Chap. III. par. 10, p. 17 of Manual. Mess waiters

can be given

a lawful

command

in regard to their

mess duties.

30

NOTES ON MILITARY LAW.

Desertion
Sec.
12.
.

Is

committed when a
:

man

absents himself with the

ivuii.i 3
Sec.
15.

intention either
(a)

Sec^i* V.A*
Sec. 17.

^ ^ evading active Of evading foreign ^ Q^ evac mg service
(c)

Of not returning to the

service.

service.
service.

j

in aid of civil power.

absents himself from the Regulars and enlists in the Militia or Territorial Forces he is not
(e)

If

a

man

debarred from being tried for desertion.
conditions of service so great.)

(Difference of

The length

of time a

man

has been absent, or the

distance he has gone before being apprehended, have practically nothing to do with determining a case of

always show whether desertion was intended or not. This is one of the cognate offences referred to hereafter.
desertion.
facts

The

of

the

case

will

Penalties on Conviction of Desertion.
Sec. 79.

R

On

V17

1023 1042
1158! 902,' 1064.

m

conviction or confession of desertion, even though t*16 l^ter case trial may be dispensed with, a soldier
:

forfeits
1.

All prior service towards discharge 2. All good conduct badges.
All gratuities (if any due to him). 4. All medals (other than V.C.).
3.

and pension.

For every day trial he forfeits
:

of his absence or detention awaiting

1.

Pay.
Service towards pension.

2.

3.

He

is

liable to general service in

commutation of

sentence.
K.R.
5I4>
1868*
f

is

absent for more than 21 days, or if on furlough r more than five days after the expiration of his furlough, reported as a deserter, though he need not necessarily

A man

have deserted.

CLASSIFICATION OF

ARMY

ACT.

CRIMES.

Fraudulent Enlistment Is committed when, without
conditions
:

fulfilling

the

proper

Sec. 13.

A

Regular

NOTES ON MILITARY LAW.
Yeoman
actual service

not

on

military

CLASSIFICATION OF

ARMY
is

ACT.

CRIMES.

33

record of these proceedings Court-Martial Book.

A

kept in the Regimental

again called to the fact that the man is not necessarily a deserter, but he can be tried as a deserter just as can a man who has been absent for two or three

Attention

is

days.
It will rest

with the

man

to prove he did not intend to
28.

desert.

Militiaman called out for training or embodiment M.A. who fails to appear within 14 days has an entry to this effect made against his name in the Regimental books.
This
is

A

taken as conclusive evidence of his absence.

In cases of absence, desertion, fraudulent enlistment, false answer on attestation, men of the
Reserve,
Militia,

and
Civil Court.
25.

Territorial Forces,

may

be tried by a
assisting a

Reserve-man or Militiaman to absent M.A. himself a person may be fined a sum not exceeding 2ol.

For

by a Civil Court. For doing the same for a Regular six months' imprisonment may be given by a Civil Court.

sec. 153.

Two
1.

Offences for which

no alternative as regards

punishment

is

allowed.

'Scandalous Conduct' By an Officer (must on conviction be cashiered).
'

M.I 11.35.
Sec.
i(5.

2.

Murder

'-

Must on conviction be sentenced

to death, but this

s.ec. 41,

may

be commuted by confirming

Officer.

57

W*

Embezzlement. 1
Fraudulently converting to one's received from or held for another.
1

own

use property

Sec. 17.

M.I 11.24.

The property

is

legally in possession of the offender.

34
Stealing.
Sec. 18.
1

NOTES ON MILITARY LAW.

M. 1 1 1.23.

Wilfully or fraudulently obtaining possession of the property of another with the intent to permanently

deprive

him

of

it.

Stealing from a civilian Sec. 41, or by a Civil Court.

must be

dealt with under

R-P- 59
Sec. 28,
126, 129,

S* Sea
(i).

180

Contempt of Court. Can be specially dealt with thus When committed by an Officer or soldier (a) Can be arrested and sent for trial before another v '
:

_

Court.
(b)

Can be given up

to 21 days' imprisonment

by the

President.

By

Civilian

(a)
(b)

Can be turned out

of Court.

Reported by the President to the High Court of Justice to be dealt with by the latter. be tried by Court-Martial. (c) In India may

Of Counsel as aboveIn these cases the offender can be punished by Civil Court as if the offence was committed before one of the

High Courts.
Sec. 129
(3).
1

He

can be removed from the Court.

Sec. 40.

Conduct to the Prejudice,' etc. The offence must be one that cannot be met by any other section of the Army Act, or must be an attempt only to commit a specified offence which is so met.

Sec. 41.

charges under Section 41 (civil offences) K.R.487, cannot be tried by a Regimental Court-Martial or be dealt with by a Commanding Officer without permission

Remember that

of superior authority. Five of these offences cannot be tried

by any Courton
p. 51.

Martial, unless under the conditions noted
1

The property

is illegally

obtained possession of by the offender.

CLASSIFICATION OF

ARMY

ACT.

CRIMES.

35

OFFENCES EXCEPTIONALLY TREATED.
Offences.

Punishment

Serious misbehaviour
to superior execution of office Violence or threatening

On
in

active service, death. Otherwise, cashiering or imprisonment

Sec.

6.

Violence

Death

Sec.

8.
8.

or

On

insubordinate language
Wilful defiance, &c.' Disobedience to lawful com4

active service, penal servitude Otherwise, cashiering or imprison-

Sec.

ment Death

On

Sec.

mand
Desertion

active service, penal servitude Otherwise, cashiering or imprison-

9.

ment

On

active service, death
first

Sec. 12.

Otherwise,

offence,

imprison-

ment
Second
Fraudulent enlistment
Scandalous conduct
Officer
ofj

offence, penal servitude First offence, imprisonment Second offence, penal servitude

Sec. 13.

an

Must be cashiered
Must be
fifth case within the year or the prisoner has elected to be tried If wilful, penal servitude Otherwise, imprisonment To be tried by another Court cashiering or imprisonment Summarily, 21 days' imprisonment by President

Sec.
Sec.

16.

Drunkenness

(if

simple)

19.

or Releasing permitting escape of prisoner

Sec. 20.

Contempt

of Court

Sec. 28,

OFFENCES AGAINST ARMY ACT WHICH CAN BE DEALT WITH BY CIVIL COURTS.
Offence.

NOTES ON MILITARY LAW.

37

CHAPTER
CHARGE-SHEETS
PRIVILEGE

V.

CHARGES AND WITNESSES.
COMPETENCY
OF WITNESSES FROM ARREST EXAMINATION OF WITNESSES.
R.P. 9,10,
p. 543)

Charge-Sheets (For form see M.,
charges.

may

contain one or several

'

R

t

Pt 134

(c).
:

In two parts as regards each charge
1.

Statement of the offence in the words of the

Army

App,

x.

Act.
2.

Statement of the particulars in words concisely

describing the offence.
If

of

an accused person has elected to be tried instead submitting to the award of his Commanding Officer
be stated in red ink at the top of the chargea doubt as to
1

this should

sheet.

If there is

how offences should be described,

Sec.

18, 8,

separate alternative charges
charge-sheet.

may

be used on the same J'p.

4
xl .

In no case, however, should an offence be described in the alternative in the same charge.
Joint Charges.

Any number
for
1

of accused persons

may

be tried together R.P.

15.

an offence committed

collectively.

In the case of loss of kit the value of public property need only be The value of articles which the soldier keeps up at his own need not be mentioned. expense
stated.

38

NOTES ON MILITARY LAW.

R.P.

62.

Separate Charge-Sheets Are used to prevent confusion in evidence. In this case the Court proceed on each charge separately up to and including the finding.
Witnesses are

R.P.

78.

summoned

before the assembly of the

Court by the convening

Officer.

After the assembly, by the President. Military witnesses are ordered to attend.
Civilians are

summoned by an order

in writing

from

either of the above, or the Judge- Advocate General, or the Commanding Officer of the accused.

The only person exempt from being summoned
witness
Sec. 9,28,
i8o'(i).

as a

is

the King.

Neglect to answer to a summons may be punished as disobedience (soldier) or contempt (civilian). (Summons

must be served personally
third person.)

in all cases

and not through a

Privilege of
Sec. 125.

Witness from Arrest.

While attending at, going to, or coming from Court, from arrest on civil process, but not from arrest on a
criminal charge.

Competency of Witnesses.
M.vi.
R.P.
83,

Everybody

is

competent to give evidence except

:

et. seq.

80.

For the Prosecution. (a) The accused.
(b)

Any

accused person being tried jointly (until he

becomes King's evidence).
(c)

(d)
(e)
(/)

The wife of the accused. The wife of an accused person being A member of the Court. The Judge-Advocate.
of the

tried jointly.

Any

above

may

give evidence for the defence.

Neither for Prosecution nor Defence. A person who from extreme youth or want of understanding cannot understand the obligation of an oath.

CHARGES AND WITNESSES.

39

A

competent witness
:

may

not always be a credible M.VI.QI.

witness.

Example

A convict.
p. 318,

For forms of oaths see M.
Prosecutor.

and R.P.

27-30.

When

called as a witness should

be examined

first.

Rp
-

-

39-

The Accused. May give evidence
The Examination
1.

at

any time, but should give
is

it first.

R-P- 4 1
80.

.

of Witnesses

divided into

:

Examination

in chief (by side calling him).

2.

3.

Cross-examination (by opposite side). Re-examination (by side calling him).
in Chief.

Examination

Leading questions (i.e. questions suggesting the answer M. vi. desired) are not admissible, except iio^i"? (a) Introductory (i.e. forming no part of real sub:

stance of charge).
(b)
(c)

On

admitted points to save time.
(In the interests of justice

To help

only.

the memory. 1 See M. VI. no.)

Cross-Examination.
(a)
(b)

Leading questions
Irrelevant
to the

may be put. questions may be put,
main

but the latter M.
questions put

VI.

must be relevant
(c)

issue before the Court.

Degrading questions

may

be put

(i.e.

in order to test the veracity, accuracy, or credibility of the witness by injuring his character).

if

This type of question may be disallowed by the Court R.P. they think an answer would not affect their opinion.
1

92.

a witness shows himself hostile to the side which calls him he with the permission of the Court, be treated as a hostile witness and may,
If

M.VI.70.

be cross-examined and asked leading questions. A witness fresh his memory from notes, but may not read his evidence.

may

re-

40
R.P.
80.

NOTES ON MILITARY LAW.

accused person giving evidence cannot be asked questions referring to a supposed criminal act not covered by the charge, unless
:

An

1.

The evidence necessary

to prove

it

is

admissible

evidence to the charge. 2. He has given evidence of his good character, or
cast imputations
3.

upon prosecutor or

his witnesses.

has given evidence against any other person charged with the same offence.

He

M. VI.
II6 '

Questions as to previous statements in reference to the case made by a witness may be put.
(d)

A. A.
sec^i28.

bound to answer questions put them except those which would involve
:

Privilege. All witnesses are

to

73

(b).

(a)

A

M.VI.93,

i.e.

Criminating Answer one which would render the witness

liable to

a

criminal charge or military punishment (not a civil suit).
(b)

A

Degrading Answer.

M. vi.
4i 92-

Unless the truth of the imputation would affect, in the opinion of the Court, the credibility of the witness.
(c)

The Disclosure

of Professional Secrets.

Professional secrets are communications
client to his legal adviser (as such).

made by a

M. VI.
I02t

See M. p. 79. Medical men and clergymen are not included, but questions to them would not be pressed.
(d) Official

Secrets.

M.VI.95.

The proceedings
duced
Official Secrets.

of a Court of Inquiry cannot be proas evidence, as it comes under the heading of

Husband and Wife.
M. VI.

Cannot be forced to disclose information imparted to one another since they have been married.

CHARGES AND WITNESSES.
Contradiction of Answers. Answers given must be accepted as true, except
1.

4!

:

M. VI.

When

a witness

is

asked whether he has been

previously convicted and denies it, or refuses to answer. 2. When asked a question to show he is not impartial.
3.

When
When

a previous answer

is

inconsistent with the

present one.
4.

he can be shown to be a notorious

liar.

Credibility
1.

may

be impeached.
witness.

2.

3.
4.

By producing evidence to contradict a By making him contradict himself. By discrediting his character. By bringing witnesses to swear from
is

^V
"3.

i.

their

know- M.

ledge that the witness

unworthy

of credit

on oath.

" 7l

VI.

NOTES ON MILITARY LAW.

CHAPTER
DEFINITION DIRECT

VI.

EVIDENCE.
OF EXCLUSION OF ORAL DOCUMENTARY PRIMARY INDIRECT SECONDARY FACTS NOT PROOF BURDEN OF PROOF PRESUMPTIONS REQUIRING RULES OF EVIDENCE.

NOTE.

The four

rules of evidence are tabulated

on

the following page together with the exceptions thereto. This table is only meant to aid the memory, and should

be looked up under the references given.
M. VI.
3.

Evidence

may

be:

Oral

Facts not
requiring proof

Documentary

M.

VI. 10. R. 74.

Direct

Indirect

Direct

Indirect

M.

VI. 41.

i

i

Primary Secondary Primary Secondary
(best)

Primary Secondary Primary Secondary

(next best)

Definition of Evidence.

M. VI.

5.

The testimony on which

facts are believed.

The advantages
1.

of excluding certain Evidence are : It assists the Court by keeping their minds con-

centrated upon the issue. 2. It secures fair play to the accused. 3. It protects absent persons.
4. It

prevents waste of time.

EVIDENCE.

43

RULES OF EVIDENCE.
Evidence must be
Relevant
:

M.VI.IS

i.

44

NOTES ON MILITARY LAW.

Oral Evidence. Statements made by witnesses on oath.

Documentary Evidence. Documents produced to the
Direct Evidence

Court.

statement of a witness who has seen or otherwise observed the facts in question.
Is the

Indirect Evidence

the testimony of certain facts from which the facts in question may be inferred or deduced.
Is

Primary Evidence
M.VI.43.

the best evidence which can be produced which the nature of the case admits of i.e. that of a man who
is

actually

saw the

offence or crime committed.

Secondary Evidence. Only to be used when the best is unattainable such would be the deposition of a witness who, it had been
;

proved, could not attend through death or

illness.

Facts not Requiring Proof. M.Vl.xo. Certain facts are assumed to be judicially known. R.P. 74such as
:

1.

Acts of Parliament.
Military Regulations.

2.

3.

Facts which

may

reasonably be supposed to be
Officer or soldier.

known

professionally

by an

Burden of Proof.
M. VI.
9.

in every case other than the above the burden of proof rests on him who affirms a fact i.e. the substance of the charge has to be proved step by step by him who

makes the charge.

EVIDENCE.

45

Presumptions. These shift in some cases the burden of proof. The following are legal presumptions
:

M.vi.

14.

Criminal Intent. If a man does an unlawful act to do it. (Shifts burden.)
1.

it is

presumed he meant

2.

Theft.
If stolen

property

is

found in a man's house a guilty

knowledge is presumed. (Shifts burden.) 3. That a man is innocent until he is proved guilty. i.e. that 4. That all things necessary have been done a soldier under trial has been legally attested. 5. That everyone is acquainted with the law. 6. If an injurious action has been done malice is presumed. (Shifts burden.) 7. Child born in wedlock is presumed to be legitimate. 8. A letter properly posted is presumed to have been
received.
9.

A person not heard of for seven years is presumed to

be dead.
Refer to table on p. 43.

Rule of Relevancy. The evidence must be confined to the points
Offences connected.

at issue.

M.VI.

16.

several offences are so connected as to form part M.vi. 21. of one transaction, evidence of one is admissible in proof
of another.

When

Facts showing Intention. Are admissible provided they do not

refer

to

the M.VI.

22.

general character or disposition of the prisoner.

46

NOTES ON MILITARY LAW.

M.VI.2S.

Facts showing Motive. Always admissible, such as the following case. evidence may be prisoner is being tried for murder received that he held an insurance policy on the murdered man's life.
;

M.VI.26.

conspirators as acts in furtherance of the common cause are regards evidence against these other conspirators.

Conspiracy. Statements referring to any

other

The Best Evidence.
One Witness, M. VI. 45
Documentary, M. VI. 31. Depositions, M. VI. 57 Public Documents, M. VI.
Copies.
Sec. 163
^

Read

these paragraphs.

37,

R.F.A. 24 Sec. 164, 165
Sec. 72, 73

Read
M. VI.

these paragraphs.

For

2, 3, 4, 5, 6, 7, see

35

Hearsay, M. VI. 46.

Dying Declarations.
M.VI.49.

In order to be admissible must have been made when the witness believed he was in actual danger of death, and had given up all hopes of recovery.
Against

own

interests,

M. VI.

55.

M.VI.S3.

Res Gestae. The crime or offence under investigation. Statements made form part of Res Gestae when they are made
immediately
investigation.
after, or as

the reuslt of the offence under

EVIDENCE.
Public Documents.

47

Note summary of evidence
prisoner pleads guilty.

is

not admissible unless M.Vl.fo

Opinion.
Identity, M. VI. 68.
M.vi.6s.

Conduct

i.e.

a witness

may

swear that the prisoner

was, in his opinion, drunk. Thus evidence may be produced to show what the prisoner's bearing or attitude was before or after the
alleged offence.

Confessions.

Are only relevant when voluntarily given.
It is

M.vi.ya.

not voluntary when obtained by means of a M.vi.ys, 76 77> threat, inducement, or promise from a person in authority, who held out a hope that confessor would escape some effects of the charge.

When
i.e. is

the person referred to above is not in authority not in a position to carry out his threat or promise
is

the confession

voluntary.

An

involuntary confession, though not evidence,

may

M.VI.78,
8l *

be proved.

NOTES ON MILITARY LAW.

CHAPTER

VII.

COURTS-MARTIAL.
ELIGIBILITY QUALIFICATION WARRANTS GENERAL COURT-MARCOMPOSITION TIAL CONVENING AUTHORITY RANK OF POWERS OF PUNISHMENT AS TO OFFENDERS PRESIDENT AS OFFENCES CONFIRMING AUTHORITY SPECIAL TO DISTRICT COURT-MARTIAL DITTO CONFIRMATION DITTO

REGIMENTAL
MARTIAL.
Eligibility.
Sec. 50.

COURT-MARTIAL

FIELD

GENERAL

COURT-

R.P.

19.

A member is not eligible unless 1. A Commissioned Officer.
2. 3.

he

is

:

Has Has

sufficient rank.
sufficient service.

4.

Is subject to Military

Law.

Qualification.
Sec. 50
(3).

An
1.

Officer is
if

disqualified

from

sitting

on a Court-

Martial

he

is

:

The convening
.

Officer (except Field General CourtOfficer

Martial)
R.P.
19.

2.

Investigating

Commander who who took the summary
3.

(includes (i) investigated the case ;
of evidence).

the

Company

(2) the Officer

Prosecutor.

4.
5.

Witness for prosecution.

6.

Commanding Officer of the accused. Member of the Court of Inquiry which
Has a personal
interest.

investigated

the case.
7.

COURTS-MARTIAL.

49

Having discussed the methods of punishment other than by Court-Martial, and the more serious crimes, witnesses, and evidence, we now proceed to the subject
of Courts-Martial themselves.

There are three ordinary kinds of Court-Martial.
General Court-Martial, the equivalent Civil Court being the High Courts of Justice. 2. District Court-Martial, the equivalent Civil Court being the Quarter Sessions.
1.

Regimental Court-Martial, its equivalent Civil Court being the Petty Sessions. 4. The exceptional Court, which has no civil equiva3.

lent

i.e.

Field General Court-Martial.
(herein Courts-Martial

Every Court-Martial must be differ from Civil Courts)
:

(a)
(b)
(c)

(d)
(e)

Convened by an authorised authority. Composed of a certain minimum of members. Members must be of a certain rank. Has only certain powers which are laid down. Sentence must be confirmed by a special authority.
is

In the following pages each type of Court

dealt with

separately from beginning to end to prevent confusion. As the authority of all convening, etc., authorities, ' except that of a Regimental Court-Martial, is a Warrant,' the

powers embodied in these Warrants
Sec. 179, 122, 123.

may

be

conveniently given here. Refer to M. pp. 38, 52.

a document signed by the Secretary of State for War, giving the holders of certain appointments the following powers.
is

A

Warrant

They

are not personal.

NOTES ON MILITARY LAW.

WARRANTS.
Issued to

COURTS-MARTIAL.
(b)

51

members. Members may not have less than three years' service five of them must not be below the rank of Captain.
Elsewhere
five

;

Rank
(a)
(b)
(c)

of President.

The President should be a General.
Otherwise a Field Officer. In no case below the rank of Captain.

K.R.

578.

Scc> 48>

Powers of Punishment
;

Death.

Sec
48

^

Penal servitude.

I 37-

Imprisonment.
Cashiering (Officer). Forfeiture of rank.

Severe reprimand.

Reprimand. Stoppage of pay. Plus what lesser Courts can

give.

On
1.

Active Service.
Field punishment. 1 Forfeiture of pay.

2.

^ ^'
Law.

Sec. 44

As to Offenders. Anybody subject
As to Any
Offences.
offences

to Military

mentioned

in the

Army Act

except that

Sec. 41.

the five offences of

Treason,
Treason-felony,

Murder,
Manslaughter,

Rape, can never be tried by a Court-Martial in the United Kingdom. Elsewhere only on active service ;

Or Gibraltar
1

;

For purposes of commutation comes next below Detention. E2

NOTES ON MILITARY LAW.

Or out of H.M. Dominions Or if within H.M. Dominions, only
;

if

more than 100

miles from a competent Civil Court.

Confirming Authority.
Sec. 54,
122.

Refer to table of warrants.

At home the King. (b) Abroad by an Officer holding a warrant from H.M. the King (not below the rank of Field Officer,
(a)

except in very rare cases).

Sec. 54.

Special Confirmation for the following: ANYWHERE, sentence on an Officer of

Death, Penal servitude,
Cashiering,

Dismissal,

must be confirmed, if in India by the Commander-inChief, elsewhere by H.M. the King.
In Colony.

Death not on active
Penal servitude for
In India.

service
civil offence

by Governor.

Death

for treason or

murder not on

\

active service

[by
civil offence

the Viceroy.

Penal servitude for

Sanction by Civil Authorities is not required Anywhere on active service for a sentence of death. In India for death and penal servitude for military
:

offences.

M. V.

97.

In Colonies for penal servitude for military offences. A refusal to confirm would be justified in the following
cases
:

Sec. 47,
52) 5^;

the provisions as to assembly and constitution have been contravened.
i.

If

COURTS-MARTIAL.
2. 3.

53
R.p.
34,

If the
If

charge or finding

is

bad

in law.
trial

a plea to jurisdiction or in bar of

improperly

|J

ty

overruled.
4.
5.

Defence unduly restricted.
If

the proceedings have deviated from Rules of Procedure, causing injustice.

Custody of Proceedings. Kept in Judge- Advocate's
then destroyed.

Office for seven years

and

R.P.

98,

I21 '

J? Sec. 124,

GENERAL NOTES.

For the

trial of

an

Officer,

members R p

165.

2I

should be of equal or superior rank to prisoner. For the trial of a Commanding Officer, as many

R.P. 2o

mem- B
(

)-

bers as possible should have held a similar position. For the trial of a Subaltern not more than two members

57

should be Subalterns.

DISTRICT COURT-MARTIAL.
Convening Authority.

Same

as General Court-Martial.
of Captain.

Must not be below the rank
Composition.

Sec. 48, 7 M?v! 2o
22.

Anywhere, three members. No member to have less than two years' service. Not more than one member to be a Subaltern, if
1

Sec. 48.

three. K.R. 576.

Rank

of President.
K.R.
558.

Field Officer.

Captain, if no Field Officer available. In rare cases (on board ship) a Subaltern, but not for
trial of
1

a Warrant Officer.
trial of

For the

doubtful or complicated cases the Court should

K.R.

576.

consist of five or

more members.

54

NOTES ON MILITARY LAW.

Powers of Punishment.
Sec. 44.
i.

la.
2.

Imprisonment, hard labour Detention two years. 1 Discharge with ignominy.

two

years,

3. Forfeitures. 4.

Plus what the lesser Court can give.

On
1.

Active Service.
Field punishment. Forfeiture of pay.

2.

As
Sec. 182.

to Offenders.

person subject to Military Law of any rank up to but not including a Warrant Officer. It can try a Warrant Officer, but can only sentence him
to:
1.

A

Dismissal.

2.
3.

4.
5.

Reduction to a lower class or place on his list. Reduction to a lower grade. Reduction to the ranks (if originally a soldier).
Forfeitures, fines,

and stoppages.

Sec. 41.
Sec. 54, 122 123.

As to Offences. Same as General Court-Mar tial.
Confirming: Authority. Same as General Court-Martial

.

RP
121.

o8a

(&).

Sec. 124,

R^D.

99<

Custody of Proceedings. Kept in Judge-Advocate's

Office for three years.

REGIMENTAL COURT-MARTIAL.
Sec
R.P.
47.
129.

Convening Authority.
(a)

Any

Officer

authorised

to

convene the higher
if it

Courts.
Imprisonment, not Detention, must be given discharge^ man with ignominy.
1

is

desired to

COURTS -MARTIAL.
(b)

55

A Commanding
An
Officer in

Officer

not below the rank of
of

Captain.
(c)

command

two or more detachOfficer of

ments not below the rank of Captain. (d) On board a ship a Commanding

any rank.

Composition. Sec. 47. Three members. Members not to have less than one year's service, and K.R. to have served under instruction at least 25 times.

Rank

of President.
:

A
1.

Captain, except

Sec. 47.

2.

3.

On board ship (not in commission). On the line of march. When a Captain is not available.
all
is

In

rank

where a President of less than the customary appointed the fact should be stated in the order
cases

convening the Court.

Powers

of Punishment.

Detention
Reduction.

42 days.

Sec. 47, I8x l83 '

Forfeiture of seniority of rank. Fines.

Stoppages. Dismissal of a Volunteer.

Reduction to lower grade of pay of schoolmaster.

On
1.

Active Service.
Field punishment. Forfeiture of pay.
to Offenders.
'

2.

Powers as

Cannot try persons not belonging to His Maj esty 's forces, K. R. 43* Sec l84 and by K.R. 438 should not try a N.-C. Officer above the rank of Corporal (except on board ship in commission).
'

56

NOTES ON MILITARY LAW.
to Offences. 1

As
K.R.
487,

Should only try offences which can be dealt with summarily by a Commanding Officer.

Confirming
Sec. 47.

Officer.

Same

as convening Officer.

Custody of Proceedings.
R.P. 98

Proceedings are kept with the Regiment until the next Brigade General's Inspection, after which they are sent to the officer i/c. records and kept for a total period of three
years, inclusive of the time they

have been kept at the

Regimental headquarters.

FIELD GENERAL COURT-MARTIAL.
This Court
is

meant

to

meet cases where

it

is

not

practicable to convene ordinary General Courts-Martial and when as on active service it is necessary in the
interests of discipline that cases of in-discipline should

be dealt with without delay.

Sec. 49.
'

'

10S *

Convening Authority. Not on Active Service. The Officer commanding a detachment beyond the seas, where an offence has been committed by a person
under his command against property or the person of an
inhabitant.

On
Sec. 49.

Active Service.

A Commanding Officer or Officer in immediate command
of troops for

an offence committed by anyone subject to

Military Law.

NOTE. Not on active service a convening Officer must have been authorised if within His Majesty's dominions by his General Officer Commanding.
See Manual, p. 462, last paragraph of notes, and p. 313, second

paragraph of notes.

COURTS-MARTIAL.
In
all

57

cases

it

must be shown that

it

was not practicable
it

to convene an ordinary General Court-Martial, or that was not practicable to delay.

Specially
is

is

this necessary
Officer.

when the convening

Officer

not a

Commanding

Composition. Three members. R.P. If three are not available in the opinion of convening I07f Officer, and delay is impracticable, then two may sit.

10$,

The convening

Officer

may

appoint himself President.

not be below Captain. p.p. Members should not have less than one year's service. I07' Where possible, should have three years' service.

Rank of President. Any rank, but should

I0 g f

Powers of Punishment.
consisting of If Court-Martial.
If

three

two

members same as General members only imprisonment

R.P. us.
SeCt 49>

two

years' hard labour Field punishment. tence of death requires a unanimous vote.

A

sen-

Confirming Authority. Not on Active Service.
1.

Any

Officer

who has power

Courts-Martial.
2.

No

to confirm ordinary R.P. other Officer can confirm.

120.

Confirmation of sentence of death must be reserved for Commander-in-Chief of Army in the Field. 3. Confirmation of death or penal servitude must be
reserved for an Officer having power to confirm a General Court-Martial.

Any
ment
4.

mitigate, remit, or commute a punishto one which he has power to confirm.
Officer

may

having power to convene or confirm General Courts-Martial or District Courts-Martial can only confirm a sentence within the limit of power of a
Officer not

An

Regimental Court-Martial.

58

NOTES ON MILITARY LAW.
Active Service.
to

On

above restrictions, any Officer in immediate command can confirm a sentence up to the
Subject
the
limit of his powers.

Custody of Proceedings.

Same

as District Court-Martial
Office).

(three years Judge-

Advocate General's

App.

2.

GENERAL NOTES i. The form of
as far as possible.
2.

:

proceedings laid

down

to be followed

App. R.P.

2.

107.

necessary can carry out proceedings without any writing, but in this case the Provost-Marshal, President, or promulgating Officer must keep a record,
if

The Court

making a report to the General Officer Commanding, who has power to convene General Courts-Martial. 3. An objection to a member, if supported by one member, must be carried.
In the case of an equality of votes on the finding the accused is acquitted.
4.

59

CHAPTER

VIII.

HE SPECIAL DUTIES OF VARIOUS MEMBERS OF AND PERSONS PRESENT AT A COURT-MARTIAL.
PRESIDENT

PROSECUTOR

JUDGE- ADVOCATE COUNSEL.

CIVILIAN

The President
1.

2.
3. 4.

Responsible: That the trial is conducted with due decorum. That the accused has a fair trial.
its

is

R.P. 59

.

That the members as detailed are present. That the Court makes proper inquiries as to That the accused is amenable to That the charge is valid.
:

R.P.
23-

22,

legal constitution.
5.
trial.

6.

Also
7.
8.

the mouthpiece of the Court. Calls witnesses when necessary.
is

He

9.

Administers oaths to members.

10.

Writes proceedings.
of

proceedings responsible for safe custody if there is no Judge-Advocate). (latter two only 12. Must initial all alterations or erasures.
11. Is
13. Signs proceedings.

R.P. 95, 96> 97<

R.P.

45,
-

14.

Compares summary

of evidence with the evidence jj^

being given before the Court. 15. Collects votes of members.

has a casting vote in every case after the arraignment, except on the finding or a sentence of
16.

He

death.
17.

Summons

civil witnesses.

6o

NOTES ON MILITARY LAW.
Prosecutor.

The
Sec. 50.
i.

The prosecutor may not be the convening
vice versa.

Office

and
2. 3.

R.P.
107.

106,

4.
5.

The prosecutor may not be a member of the Court. The prosecutor may not act as Judge- Advocate. The prosecutor may not confirm the proceedings.

R.P. 120
(C).

R.P. R.P.

25. 103.

not sworn unless he gives evidence. 6. cannot be objected to by the accused. 7. If he is called as a witness for the prosecution he should give his evidence before that of any other witness.
is

He He

His Duties.
R.P. K.R.
60.

1.

To see

575-

2.

He

done and to behave impartially. should not omit evidence which might show the
that justice
is

innocence of the accused.
R.P.
41.

3.

He

should not

evidence,

comment on the accused not giving but he may well comment on the accused

giving evidence after the witnesses for the defence have been heard.

R.P.

14.

should inform the President before the arraignment if the accused has elected to be tried instead of being summarily disposed of by the Commanding Officer. 5. Warns accused for trial (at least 18 hours before
4.

He

Regimental Court-Martial and 24 hours before higher Court is opened). 6. Asks accused for his list of witnesses.

The following documents when he is warned
:

are given to the accused

1.

Copy

of

summary

of evidence.

2.

Charge-sheet.

3. 4.
5.

Names

of Officers

Notice of joint

composing the Court. trial, if the man is to be tried

jointly.

List of witnesses.

R.P.

88.

Counsel may appear as prosecutor before General Courts-Martial and District Courts-Martial, but

NOTE.

A

not before Regimental Courts-Martial.

DUTIES OF MEMBERS OF COURT-MARTIAL.
These must be
:

6l

In England or Ireland a Barrister. In Scotland an Advocate or Law Agent.

R.P.

93.

Elsewhere

anyone who holds a corresponding

position.

Judge-Advocate. Must always be present at a General Court-Martial May be appointed to a District Court-Martial. An Officer who is disqualified from sitting on a Court.

R.P. 101.

R.P.

xoi.

Martial cannot act as Judge- Advocate. He is sworn.

Sec. 52.
is

Once appointed, a Court cannot proceed unless he
present.

R.P.

27.

He cannot be objected to. He remains present when the Court is He may be called as a witness for the
for the prosecution.

R.P.
closed.

25.
63.

R.P.

defence, but not R.P.

77.

His Duties.
1.

Is

the legal adviser of the Court, and must be R.P.
of

103.

impartial.
2.

Must inform President

any want

of legality in the

proceedings.

His information or advice must be entered in the proceedings if he or the Court wish it.
3. 4.

Must see that the accused does not

suffer

through
R.P.
R.'P.
26,

ignorance or incapacity. 5. Swears the Court.
6.

7.

Sums up the case. Has power to summon

^
78. 83,

witnesses not subject to R.P.
R.P.
8s*

Military Law. 8. May examine or cross-examine witnesses through

President.

custody of proceedings. 10. Signs the proceedings after the President, transmits them to the confirming Officer.
9.

Is responsible for

R.P.

96.

and

R.P. 45

^"

62

NOTES ON MILITARY LAW.

Civilian Counsel.

H
90,

appointed (General Court-Martial or District Court-

Martial only)
1.

2.

Seven days' notice must be given on either side. He takes the rights and duties of the person he

represents.

CHAPTER

IX.

PROCEDURE.
EXEMPTION FROM TRIAL DUTIES OF CONVENING OFFICER ASSEMBLY OF COURTS-MARTIAL PROCEDURE ON PLEA OF GUILTY DITTO NOT GUILTY GROUNDS FOR CHALLENGE INCIDENTS OF TRIAL SPECIAL PLEAS ON ARRAIGNMENT IN BAR OF TRIAL AS TO CHARGE ADJOURNMENTS ARMY FORM AQ.

As a general rule a man cannot be tried twice for the same offence if he has once been tried by a Civil Court, a
Court-Martial, or his
1.

Commanding

Officer,

except

:

When

2. 3.

the Court was illegally constituted. Proceedings not completed.
it
'

When

4.
5.

has been dissolved before finding. Or after the finding if it (the finding) was Guilty. In the case of a finding of insanity which is not
plea in bar of trial upheld but not confirmed.

confirmed.
6. If

A
A

Military Court cannot Try A man who has been sentenced by a Civil Court.
Civil

Court can claim to Try
:

A soldier
1.

For a crime punishable by fine or imprisonment. 2. Can order the removal from the Army of an apprentice under 21 years of age. 3. Can order the removal from the Army of an indentured labourer.
4.

Sec. 144, 96f 97>

for

Can order the removal from the Army a fine, debt, or damage over 30/.

of a soldier sec.

6z.

04

NOTES ON MILITARY LAW.
Soldier
is

A
Sec. 162.

not

exempt from

Even
his

if

already tried by
Officer.

Trial by Civil Court Court-Martial or punished by

Commanding

Offences against the Militia and Reserve Forces Ac which are cognizable by civil and Military Law cannot be
tried by

a Civil Court when It has been dealt with by a Military Court, unless the consent of the Commanding Officer of the battalion or
district is given.

Court-Martial can try any the Army Act.

A

civil offence

mentioned

in

Note the

restrictions

on

p. 51.
is

The procedure followed by Courts-Martial

the

sam

whether they are General, District, or Regimental. A copy of this form of procedure is added at the end
of this chapter.

application for a Court-Martial having been sent to the General Officer Commanding, accompanied by the

The

documents mentioned at the end
Martial in District Orders.

Chapter III. The General Officer Commanding will convene a Court:

of

The President only (and the Judge- Advocate appointed) is mentioned by name.
Duties of Convening Officer.
R.P.
' '

if

one

is

17.

i.

He must

satisfy himself that the charge discloses

5
9-

7>

an offence under the
2.

Army
the

Act.

R.P.

He may amend
if
1

minor charges
R.P
T^ T3

charge-sheet, striking out he thinks the evidence is insufficient to

78.

C/8

support them. o Arranges that witnesses are ordered to attend. 4. Decides on the nature of the Court.
5.

Issues order for assembly of Court.
after approval

1

A copy of the charge-sheet,
is

by General
and

Officer

Com-

manding,

sent to the President, to the accused

to the prosecutor.

PROCEDURE.

65

Assembly of Court-Martial. The Officers being seated according to rank 1. The order convening the Court is read and the names of the Officers composing it. 2. The charge-sheet and summary of evidence are laid
before the Court.
3.

R.P.

22.

The Court
i.e.
:

satisfy themselves as regards R.P. 22

and 23
(a)
(b)
(c)

That it is properly convened. That the Officers detailed are present. That they are of proper rank, eligible and not

dis-

qualified.
(d)
(e)

That the President is of sufficient rank. That the Judge-Advocate is duly appointed, and
23.

not disqualified. (/) That the accused is amenable to Military Law, and R.P. to the Court as constituted.
(g)

That the charge-sheet

discloses

an offence under

the

Army Act.
:

Next The accused being present. The names of the President and members are read out, and they severally answer to their names. The accused is asked if he objects to be tried by any
of them.

R.P.

24.

Sec. 52.

The Court is then sworn. The accused is arraigned and asked
charge.

R.P.

30.
8lt

to plead to the

Rp
*

*

Procedure on Plea of Guilty. 1. The accused is warned as to the consequences
his plea.
2.

R.P.

35,

of

37<

Care should be taken that the prisoner does not plead guilty to a lesser alternative charge to evade the

consequence of one more serious.
3. ^Finding of

guilty recorded.

M.V.

55.

66
R.P.
46.

NOTES ON MILITARY LAW.
4. Sufficient
5.

evidence taken to determine sentence. The accused is asked if he has any statement to
usually sufficient to

R.P.

37-

make in mitigation of punishment. 6. The summary of evidence is
decide punishment.
7.

Statement in mitigation of punishment is heard, or written statement is handed in. 8. The accused's statement as to character is received together with the statements of any witness he may wish to call, including himself. 9. Evidence as to character is received from an Officer
of the accused's
10.

own
is

The Court

corps (usually the prosecutor). closed to consider the sentence.

Procedure on Plea of Not Guilty.
(a)

When
:

the

accused

calls

witnesses

other

himself
R.P. R.P.
3984.

1.

The prosecutor makes an opening
Evidence for the prosecution
first). is

address.

2.

taken (prosecutor's

evidence
R.P.
41.

R.P.

41.

R.P.

42.

The accused may make an opening address. 4. The accused may give evidence himself, and may call witnesses as to character and facts. 5. The accused may make a second address. 6. The prosecutor may make a second address. 7. The Judge- Advocate sums up.
3.
(b)

When
.

the Accused does not call Witnesses
his opening address.

:

R.P.39-

i.

The prosecutor makes

f

3.

R.P.

40.

4.
5.

M.VI.I9

6.

Evidence for prosecution is taken. The accused may give evidence. Prosecutor makes second address. The accused may make an address in his defence. Evidence as to character, called by the accused,
Prosecutor

is

taken.
7.

may

produce evidence of former con-

victions.

R.P.

61.

8.

Judge- Advocate sums up.

PROCEDURE.
Incidents of the Trial.

67

The accused, when he has heard the names
Officers

of the Sec.

51.

composing the Court read out,
is

may

object to P.P.
first.

25.

the President or any member. An objection to the President

considered

Objections to members are taken consecutively, commencing with the junior.

The accused may

call

These witnesses may (this evidence is not on oath, the Court not having yet been sworn).
objection to a member is carried if half the support it. The President has no casting vote.
objection to the President vote in support of it.

witnesses to prove his objection. be examined in the ordinary way R.P.
**

83,

An

members

Sec. 51.

An

is

carried

if

one-third Sec.

53.

The

Officer objected to does not vote.

vacancy thus caused amongst the members may be filled by the inclusion of a waiting member, but if the President
is

A

The

successfully objected to the Court must adjourn. convening Officer either appoints another member

or convenes another Court.

The usual Grounds for Challenge are 1. That a member has a personal interest
2.

in the case.

R.P.

25.

Is prejudiced against the accused.

3.

Has expressed an opinion on the

case.
15,

be tried together for an R.P. offence they have committed collectively, but an accused, 7 1 if the charge admits, may claim a separate trial on the that the evidence of another accused person is ground
Several accused persons

may

*

material to his defence.

Special

Pleas on Arraignment before Pleading to Charge.

(a)

As

to jurisdiction of Court, the following are the R.P.
:

34.

usual grounds
i.

The Court

is

improperly constituted.
f2

R.P.

22,

68
Sec, 158.
2.

NOTES ON MILITARY LAW.

R.P.

28.

3.

That he (the accused) is not subject to Military Law. That he is not amenable to that description of
In Bar of Trial.

Court.
(b)

R.P.

36.

Grounds. i- That the offence has been previously dealt with by
Civil Court.

:

Court-Martial

.

Commanding
2.

Officer.

Sec. 161.

3-

That it has been pardoned or condoned. That more than three years have elapsed
less

since

it

was committed, or such
Civil Courts,

time as

may

be fixed by

As
R.p.
32.

to Charge.

i.

That
Act.

it

does not disclose an offence under the
is

Army
2.

That

it

not in accordance with the Rules of

Procedure.
All these special pleas are decided in the usual vote.
If

way by

the plea

is

overruled the

trial

proceeds.

If carried,

the Court adjourns, reporting to the con-

vening
R.P. 62;

Officer.
If there is

NOTE.

charge-sheet is including the rinding.

more than one charge-sheet, each proceeded with separately, up to and

To
R.p.
69.

Repeat.
is

decided by a majority of votes, the President having a casting vote. The following are the exceptions to the rule
:

Every question before a Court

1.

Challenge of President, carried

if

one-third vote for.
for.

2.

3.

Challenge of member, carried if one-half vote Finding, equality of votes acquits.

4.

Sentence of death, only carried

if

two-thirds vote

for.

PROCEDURE.

69

The President has no
cases
(a)
(b)
:

casting vote in the following

Sentence of death.
Finding.

Adjournments. Usual Causes are:
1.

2.

Court not satisfied as to its legal constitution. R.P. I4f Has doubts as to its legal jurisdiction, amenability J* J3> 33

of accused to trial, or accuracy of charge.
3.

4.

Accused not been properly warned. Witnesses have been called without due notice to

accused.
5.

6.
7.

Everybody necessary is not present. At request of accused to prepare his defence. At request of prosecutor to prepare his reply.

R.P.

41,

&

to view a place, or to take the evidence of a sick witness, in which case the whole Court must go together with prosecutor and the accused.
8. 9.

A Court may adjourn
If

the President

is

from any cause absent.

R.p.

65,

similarly absent and the Court is ^' p thereby reduced below the legal minimum and there are
10. If

a

member

is

ig

no waiting members.
11. If the accused is absent.
12. If the
Sec. 53.

Judge-Advocate

is

absent.

R.P.
102.

65,

The Accused may Plead
1.

in his

Defence

:

2.
3.

4.
5. 6. 7.

8.

That the charge is not proved. M. VI I. Evidence of prosecution unworthy of belief. That he had no criminal intent. Insanity (which excuses from guilt). That he acted under compulsion. That his case has been previously dealt with. That his trial is barred by limit of time. That his offence was caused by misfortune or

ignorance.

NOTES ON MILITARY LAW.

A
*Form
matter
not
plicable to particular Court

Army Form

A.

9.

apthe

of Proceedings for General, District and Regimental Courts- Martial.
Court-Martial held at
19

being

held

should be struck out and initialed by the President.

Proceedings of a OH the day of

by order
19

of

Commanding
dated the

day

of

President.

Members.

,

Judge- Advocate.

At
Trial of*

o'clock the Court opens.

The order convening the Court is read, and is marked signed by the President, and attached to the proceedings.
( i )

,

The charge-sheet and the the Court.

summary

of evidence are laid before

The Court
cedure, 22
(2)

satisfy themselves as provided
23.

by Rules

of Pro-

&

appears as prosecutor, and takes his place.

The above-named accused

is

brought before the Court.

appears as counsel for the accused. The names of the President and members of the Court are read over in the hearing of the accused, and they severally answer to their names.
Ouestion by the to president
the accused.

vou object to be tried by me as the President, or by any of the Officers whose names you have heard read over ?

Answer by
accused.

(N.B.

If objection is

made it should be recorded, together with the decision of the Court, on a separate sheet.)
Rank,
full

*

Here

insert No.,
(if

Name,

Battalion,

and Regiment, and

Appointment

any).

PROCEDURE.

71

B
The
President, Members,
Officers

and Judge- Advocate are duly sworn.

The following

under instruction are duly sworn.

Charge-Sheet.
signed and annexed to the proceedings.
(3)

The charge-sheet

is

by the

President,

marked

B

2
Instruction.

If the accused
has elected
to

be tried under

Army
sec.

Act,

46 (8) the fact should be

here recorded.

arraigned upon each charge in the abovementioned charge-sheet.
is

The accused

Are you guilty or not guilty which you have heard read ?

of the [first] charge against you,

Question

to the

accused.

Answer.

Are you guilty or not guilty of the second charge against you, which you have heard read ?

Question.

Answer.

Are you guilty or not guilty of the third charge against you, which you have heard read ?

Question.

Answer.

The accused having pleaded
provisions of
If

Rule

of

charge , the guilty to Procedure 35 (B) are here complied with.
Instruction.

'

'

the trial proceeds upon any charge to which there is a plea of Guilty,' the Court will not proceed upon the record of a plea of ' Guilty until after the finding on those other charges, such finding

Not

being recorded on Sheet E.

72

NOTES ON MILITARY LAW,

c
Proceedings on Plea of Not Guilty.
(5) The prosecutor makes the following address [hands in a written address, which is read, marked , signed by the and attached to the proceedings]. President,

The prosecutor proceeds to
First witness}

call witnesses.

for
prosecution.
)

being duly sworn,

is

examined by the prosecutor.

[Here evidence

is

recorded.]

\The accused declines

to

cross-examine this witness.

His evidence

is

read over to the witness.

The witness withdraws.]
* Second
}

witness fc for\ ion. prosecution )

PROCEDURE.

73

C2

74

NOTES ON MILITARY LAW.

D
The prosecution
is

closed.

Defence
Question, to the accused.

Do you

apply to give evidence yourself as a witness

?

Answer.
Question.

Do you
Is

intend to

call

any other witness
?

in

your defence

?

Answer.
Question.

he a witness to character only

Answer.

(7) [If the accused gives evidence himself, but calls no other witness to the facts of the case, his evidence will now be taken on

a separate sheet.]
(6 7) *[The prosecutor addresses the Court upon the evidence for the prosecution (and the evidence of the accused) as follows :

&

(Hands in a written address, which is read, marked by the President, and attached to the proceedings.)]
Question to the Accused.
(6,

,

signed

7

&

8)

Have you anything

to say in your defence
:

?

Answer.

The accused
[Hands

in his defence says

in a written address, which is read, marked the President, and attached to the proceedings.] by

.

signe(

Instruction.

* If the accused calls other witnesses to the facts of the case, whether he himself gives evidence or not, this paragraph will be struck out, and the course laid down in R.P. Appendix II. (8) will be followed.

PROCEDURE.

75

D
The accused
calls

2

the following witnesses *[as to character].

being duly sworn,
accused.

is

examined by the

First witntss for the defence [*as to charac*
ter\.

* If witnesses are called, excepting as to character, these

words are to

be struck out.

NOTES ON MILITARY LAW.

Proceedings on Plea of Guilty.
TO. be struck

Sea

"V^Not

Guilty 'has been proceeded with.

(4) *[The Court having been reopened, the accused is again brou g h t before it, and the charge to which he has pleaded read to him again]. Guilty
' *

The accused
is

found Guilty of
*

The summary of evidence is read, marked the president, and attached to the proceedings.

,

signed

by

Question

to tfo

Do you
ment
?

wish to make any statement in mitigation of punish-

accused.

Answtr.

The accused
[or

in mitigation of

punishment says

:

hands in a written statement, which

signed

by the

President,

is read, marked and attached to the proceedings.]

Instruction.

* If there is

no summary of evidence,

sufficient

evidence to enable the

Court to determine the sentence, and to acquaint the confirming officer with the facts of the case, will be taken on a separate sheet in the same manner as on a plea of Not Guilty.' If from the statement of the accused, or from the summary or abstract of evidence, or otherwise, it appears to the Court that the accused did not understand the effect of his plea of Guilty,' the Court shall alter the record, and enter a plea of Not Guilty.' and proceed with the trial accordingly.
'
' '

PROCEDURE.

77

D

Do you

wish to give evidence yourself or to
?

call

any witnesses

Question

to the

to character

accused.

Answer.

Evidence as
character.

to

NOTES ON MILITARY LAW.

E
1

Finding.
(10)

The Court

is

closed to consider their finding.
find that the accused

(10

&

ii)

The Court

PROCEEDINGS ON CONVICTION
(12)

before Sentence.
is

The Court being reopened, the accused
it.

again brought

before
Evidence of
character^ drY.

is

duly sworn.

Question by the
President.

to produce as to the character and particulars of service of the accused ? Answer by the witness.

Have you any evidence

is

The above statement [with the schedule of convictions] is read, marked signed by the President, and annexed to the
,

proceedings.
Question by the
President,

Is the

have heard read

accused the person named in the statement which you ? Answer by the witness.
the contents of the above statement with Answer.

Question.

Have you compared
the regimental books.

Question.

Are they true extracts from the regimental books, and is the statement of entries in the conduct book a fair and true summary
of those entries
?

Answer.

Cross-examined by the accused.

The Court is
1

closed to consider their sentence.

To be omitted, except in cases of a plea of Not Guilty having been proceeded with,

PROCEDURE.

79

F
Sentence.
The Court sentence the
accused.

s

nt

c

8o

NOTES ON MILITARY LAW.

CHAPTER
SPECIAL

X.

FINDING, REVISION, CONFIRMATION.
ALTERNATIVE CHARGES SENTENCE CONFIRMATION OF PROCEEDINGS REVISION DITTO AFTER PROMULGATION SPECIAL CONFIRMATION PRISONS.
FINDINGS

NOTES.

A

Military Court differs from a Civil Court
:

in the following respects
1. 2.

The finding need not be passed by a unanimous vote. The accused can be simultaneously found guilty of

several charges.
3. 4.

A special rinding
The

(explained hereafter) is permissible. finding may have to be revised by the same

Court.
5.
6.

A A

rinding of guilty finding of guilty

must be confirmed.
is

not

made

public until after

it

has been confirmed.
R.P.
43.

The Court having heard

all

the evidence on both sides,

proceeds to deliberate on the finding. For this purpose the Court is closed.

The Judge-Advocate remains present. The following principles of Law may be considered
1.

:

By
he

English law a
is

man

is

assumed to be innocent

proved to be guilty. 2. That a Court must decide according to the evidence which has been produced only.
until
Sec. 54.

R.P. 45.

found not guilty on all the charges before the Court, he is at once informed and released. If he is found guilty on some, and not guilty on others,
If

the accused

is

none

of the findings are disclosed until after confirmation.

FINDING, REVISION, CONFIRMATION.

8l

Special Findings Are recorded when, for the reasons given below, a R.P. finding is come to which is not exactly in accordance

44.

with the charge.
i.

When
is

the substance of the charge

is

proved but

there
2.

a discrepancy as to particulars.

Alternative Charges i.e. when the Court is not certain which of the alterna- R.P.

55.

tive charges they should convict on they find that the facts stated in the charge have been proved, but doubting which charge these facts at Law come under, leave it to the confirming Officer to decide.
3. 4.
(a)

When

the accused

is

found to be insane.
:

R.P.

57.

In the case of cognate offences, for instance

Sec. 56.

may
(b)

A man charged with stealing or embezzlement be found guilty of either or of fraudulently misA man
charged with
desertion

applying.

be found M.p. guilty of attempting to desert or of absence without leave. (c) A man charged with an offence involving a certain amount of punishment may be found guilty of the same

may

483.

offence
service
It

involving

a lesser punishment
is

i.e.

on active

and not on active service

an example.

may

here be repeated that charges are divided into
:

two parts (a) Statement
Act.
(b)

of the offence in the

words of the

Army

Statement of the particulars.

Special findings refer as a rule only to (b). Those allowed in regard to (a) are only such as are referred to in Sec. 56 and R.P. 44 F.

As soon as a decision is come to as regards the finding R.P. the Court re-opens. The Court takes evidence as to character in order to determine the sentence.
G

46.

82

NOTES ON MILITARY LAW.

A

schedule

of

convictions

and statements

as

produced statement as to bad character is not pergeneral missible, but a similar statement as to good character isThe Court now proceeds to consider the sentence the

character,

etc., is

to the Court.

A

;

guiding rules for sentencing will

be found in K.R. 583.

Put shortly they are For
:

:

(a)
(b)

First desertion in first six

months

]

Offences punishable
ing Officer

by Command- [28 days.
)

(a)

Previous conviction or aggravated
of

above
or aggravated

Add 7-28

days.

(a)
(b)
(c)

Above repeated
Striking

Grave disobedience
Desertion

56-112 days.

(d)
(e)

Theft

(a)
(b)

Above repeated
Against Sec. 32

or aggravated

113 days to 6

months.
case
of

(a)

Third

or

fourth

most

(b)

above Disgraceful conduct
serious of

One

year.

(a)
(b)

Offences of a disgraceful nature

Discharge with

Or under

Sec. 32

ignominy.

The Court votes
Sec. 68.

as laid

down on

p. 67,

beginning with

the junior. If a soldier

K.R.

584.

already undergoing imprisonment or detention, the new sentence runs concurrently. No soldier is to do more than two consecutive years of
is

Sec. 68.

imprisonment or detention upon one or any number of
sentences.

however, broken by one day of escape or release from prison or detention. For forms of sentence see Army Act, Appendix II.
This
is,

FINDING, REVISION, CONFIRMATION.

83

NOTES. A Court cannot order the forfeiture of the R. R<p V.C., or an Order which is the personal gift of H.M. the King or of a Foreign Power.
All others they can.

-

**-

Imprisonment begins on the first moment of the day on which the President first signs the Proceedings.

R-P-

6.

The proceedings
firming Officer.

of the Court are

now
:

sent to the con-

The confirming
(a)

Officer

may

either

S

C

l6>

6 c7

Confirm, and in so doing
'

mitigate remit

commute
(b)
(c)

sentence
f

4

or suspend Partially confirm.

Refuse to confirm.

(d)

Send back finding or sentence, or both,

for revision.

cannot commute a sentence of cashiering passed on an Officer for scandalous conduct. Less of same kind of punishment. Mitigation Remission Taking out part of sentence.
:

He

:

Changing description of sentence. For the above, detention comes below imprisonment so long as the period is equal to or less than the imprison:

Commutation

ment given. The power

of

commuting
:

to general service

is

restricted Sec. 83(7),

to the following

In England

:

The Army Council. The Adjutant-General.
In India
:

R.P.
I28
-

127,

Commander-in-Chief. G.O.C. Division or detached Brigade.
G 2

A.o.

AP rU

84.
I9

8

84

NOTES ON MILITARY LAW.
:

Elsewhere

General Officers Commanding-in-Chief.

Revision

May
Sec.. 54.
1.

be ordered for any of the following reasons

:

R.P.

52.

Sec. 54.

For the revision of the finding (other than that acquittal) on account of informality. 2. For the revision of the sentence on account
informality.

of

of

R.P.
56.

51,

NOTE.

i.

2.

Revision can only be ordered once. A sentence can never be increased
revision.

on

3.

A

finding of acquittal cannot be revised.
is

After confirmation the sentence

promulgated

i.e.

appears in orders and

is

read out on parade.

Sec. 57

&

(2)

Note.

After PromulgationOnly the following persons can alter or deal with any irregularities in the proceedings
:

At

Home

:

Army

Council.

General Officers

General Officers

Commanding Commanding

in Chief.

Divisions.

Any

prescribed authority.
:

In India

Commander-in-Chief. Other Officers with the approval of the Viceroy.

Colony The Commander-in-Chief
:

of that Colony.

Some Sentences
Sec. 41,
54-

require Special Confirmation.

Death
Penal servitude
Dismissal
\

on an

Officer

must be confirmed

:

FINDING, REVISION, CONFIRMATION.
In India
:

By By

the Commander-in-Chief.
:

Elsewhere

the King.
Sec. 54 (6 8 ^*

Death, not on active service, and penal servitude for a civil offence passed in a Colony must be approved by the
Governor.

Death Not on active

service,

penal servitude for civil approved by the Governor-General.

and murder, and offence passed in India, must be
for treason

After promulgation, if the sentence is one of penal servitude or imprisonment, the soldier under sentence is

committed to one

of the prisons

shown

as follows

:

IMPRISONMENT AND CUSTODY.
Public Prisons.

1

86
K.R.
624.

NOTES ON MILITARY LAW.
Soldiers

embarked for a foreign station cannot be recommitted on arrival, and are released on embarkation if undergoing less than 21 days, otherwise on disembarkation.
Soldiers

embarked from a

foreign station for

England

can be recommitted.

87

CHAPTER
TRANSFER
AS

XI.

V

J

PUNISHMENTS.
PART

OF

FORFEITURES

FINES

STOPPAGES

SUMMARY PUNISHMENT

COMBINED PUNISHMENTS.

The powers of punishments of the Commanding Officer and the various Courts-Martial have already been referred
to.

The
1.

following additional notes are added

:

Court-Martial has nothing to do with the carry- M.v.ioo. ing out of a sentence. This is done by the confirming Officer.

A

Abroad a Provost-Marshal may be ordered

to do the Sec.

74.

actual carrying out of a punishment. 2. An Officer may be sentenced to forfeit seniority of R.P. 42. rank in the Army or in his regiment, but he may not be A PP- 2 I0
>

-

reduced from one rank to another. 3. A soldier sentenced to death would be hanged for M.p. 576. 4I a civil offence and shot for a military offence.
*

a soldier has been sentenced to penal servitude he is sent to a penal servitude prison, and comes under the authority of the Home Secretary (carries dis4.

When

charge with ignominy).

Imprisonment or detention over twelve months is Sec. 131. undergone in the native country of the offender i.e. a British soldier if sentenced abroad would be sent to the United Kingdom. 6. The wording of awards of imprisonment or detention K.R. 585.
5.

will

be as follows

:

(a)

Up

to but not including six

months

will

be awarded

in days.

88
(b)
(c)

NOTES ON MILITARY LAW.

Terms

of exactly one or

All other terms will

two years in years. be awarded in months, or

months and days.
Sec.83(7).

7.

a soldier may be transferred from one Unit to another without his consent :(a) A soldier who has been guilty of desertion (not exempted under Sec. 161) or who has been sentenced by Court-Martial to more than three months' imprisonment or detention may have such punishment commuted to
general service.
(&)

The circumstances under which

K.R.

527.

A

soldier convicted of fraudulent enlistment

may

Sec. 83.

be sent to serve with his former corps. (c) Within three months of enlistment
general service.
(d)

if

enlisted for

When When

his unit is

abroad and

is

ordered home, and
is

he has more than two years' unexpired service.
ordered abroad, and he has less than two years' unexpired colour service. invalided from abroad or is medically unfit (/) When
(e)

his unit is at

home and

to go abroad (but in this case he would usually be transferred to the Reserve).

R

-

w

Forfeitures.

A
1.

soldier can be
:

awarded any

of the following for-

1065,1043, 1022,1160.

feitures

All or
All All

2.

3.

any past service towards pension. or any past service towards gratuity. or any past service towards good conduct badges.

Medals (except V.C.), together with annuity attached to them.
4.

Forfeited medals are sent to O.C. records.

Medals forfeited for other reasons than desertion and fraudulent enlistment can be restored when a soldier has been three years clear/
'

PUNISHMENTS.

8Q

FORFEITURES ON CONVICTION.
Offence.
Forfeits.

Of desertion or fraudulent

enlist-

ment

All prior service Pension (service towards) Pay for time absent and

Sec. 79,
161.

awaiting trial Gratuity Good conduct badges Medals, &c., other than V.C. (liable to general
service)

R.W.
1062,1023, 1042,1158, 902, 1064.

Confession of desertion or fraudulent enlistment and trial dis-

Ditto

pensed with
542)

(see Sec. 73,

K.R.

Disgraceful conduct, Sec.
(or

by

17, 18 Civil Court exceeding six

1.

All medals, &c.

2.
3.

Good conduct badges
Gratuity

months' imprisonment)

Forfeiture of Pay.

A
1.

soldier forfeits
-^

pay

for

:

.

Sec. 138 R v v 00 *x y\j*

W

Every day

of absence without leave, desertion, or of confinement

prisoner of war.

under sentence. on a charge of which he 3. 45 afterwards convicted, except when not committed to prison on day of award. 4. Every day of confinement on charge of absence without leave, if awarded imprisonment or detention by
2.

Every day Every day

of confinement

R.P. 6a,
note *

Commanding
5.

Officer.

For every day

in hospital caused

by an

oftence.

Fines.

Court can sentence a soldier to a fine of il. for drunkenness. Under this section, Courts can fine up to the limits
laid

A

Sec. 19.

Sec. 41.

down

for ordinary criminal law.

90

NOTES ON MILITARY LAW.

Stoppages.
Sec. 138.

K.R.

565.

Stoppages are only ordered to make good losses in public clothing, etc., and the award of a Court, if it is found to exceed the value of losses, is only enforced up
to that value.

The only exception
convicted
the
Sec. 138.
full

to this
of

is

when

offenders have been

collectively

when each may be ordered

destroying public property, to be put under stoppages for

value of the whole property destroyed.

A
1.
.

soldier

may

be put under stoppages

:

For losses incurred as ordered by Court-Martial 2 For losses incurred as ordered by Commanding Officer 3. To pay a fine awarded by Court-Martial, Command. .

ing Officer, or Civil Court. R.W.9I4. 4. To reimburse to the public expenses incurred by his irregularly enlisting in the Militia.
5.

To

contribute to the maintenance of wife and child.

A
Sec. 140.

soldier

must

in all cases

be

left

a

sum

of at least

id. per diem.

Stoppages may be made from ordinary pay or gratuity, but money in the Savings Bank cannot be

NOTE.

touched.

Field Punishment.
Sec. 44.

This special punishment can be awarded

:

M.III.37.

On

~

active service,

,.

For any offence, and only on a private,

if

awarded by C.O.
1

M. p. 598.

Field Punishment, No. i. Total award, three months.

be fettered or tied in a fixed position to a fixed object, but than two hours a day. (a) Not for more than three days out of four. (b) Not for more
(c)
1

A man may

Not
up

for

more than 21 days
Officer

in

all.

A Commanding

can award this punishment on active

service

to twenty-one days.

PUNISHMENTS.
In addition he

91

ment, as
tention.

if

be given hard labour or employundergoing ordinary imprisonment or de-

may

Field Punishment, No. 2. Total period, three months.
1

be fettered or kept in irons, but may not be tied in a fixed position to a fixed object. In no case is a permanent injury to be done or a per-

A man may

manent mark

left.

Combined Punishments.

An

Officer

Sentenced to be cashiered

may

also be sentenced to Sec.

44.

penal servitude or imprisonment.

An

OfficerSentenced to

forfeit seniority of

rank

may

in addition

be reprimanded.

A

SoldierSentenced to penal servitude or imprisonment may in addition be sentenced to be discharged with ignominy.
N.-C. Officer-

A

May be
forfeit

reduced to a lower grade or to the ranks, or to seniority of rank in addition to any other punish-

Sec. 183.

ment.
N.-C. Officer or private may be sentenced to deductions from pay, to forfeit service and medals (other than

A

the V.C.) in addition to any other punishment.
1

A Commanding

Officer

can award this punishment on active

service

up to twenty-one days.

NOTES ON MILITARY LAW.

CHAPTER
LAW
ON

XII.

GENERAL.
BOARD SHIP COURTS OF ABSENCE MARTIAL LAW
INQUIRY
RIOT ACT.

ON

ILLEGAL

M.
48.

p. 605.

on board Ship. In commission (i.e. H.M. warship) Regimental Court-Martial only for
Officers.

Law

trial

of

N.-C.

Sec. 47,

be Subaltern. Confirmation must be concurred in by Captain of ship
President

may

(in writing).

M.

p.6o8.

Commanding Officer can give: Minor summary punishment, 4,
No. No. No. No. No.
4.
5.

5, 6, 7,

and

8.

6.
7.

Stoppage of smoking, etc., up to 14 days. Stoppage of smoking, etc., up to 7 days. Stoppage of smoking only up to 28 days.
Fines for drunkenness.
for

A
Not
1.

Extra guards. man loses a badge
8.

any

of these

awards over

seven days.
in

Commission
for
if

(i.e.

Troopship
:

hired)--

A Commanding
Apply
Court-Martial

Officer can

a General Court-Martial or a District
there
is

a General on board

who

holds a

warrant to convene such Courts. This may be confirmed if the above Officer has power to, otherwise it is confirmed on disembarkation.
2.

Convene a Regimental Court-Martial.
Dispose of the case.

3.

GENERAL.
4.

93

Dismiss the case. 5. If he cannot dispose of the case and has not sufficient Officers on board to assemble a Court-Martial he may
confine the soldier until disembarkation,
possible the usual A. A. Sec. 45 (i).
6.

making when
referred
to
in

eight
is

days'

report

If

the offence
in

may

still

beyond his power to deal with he an emergency do so, but he must make a

special report.

Proviso.

In no case can he thus deal with an offence entailing a punishment of death or penal servitude without the
authority of a General Officer Commanding. A ship takes with her the law of the land where embarkation took place, until the troops are landed, when they come under the law of the country in which is the port or place of disembarkation.
Sec. 188.

Courts of Inquiry-

Which may involve

points of discipline are assembled R.p.

124.

to assist the convening Officer in forming an opinion on the subject of their reference.

K

-

Rt 666>

They may consist (a) Of any number
:

of Officers.
of the service.

K.R.

666,

(b)
(c)

From any branch
They may

Rjp?i24*,

take evidence

on oath (including a

Gt

Board on recovered prisoners of war). (d) Cannot compel civilian witnesses to attend.
unless specially directed to, or K.R. 666. M.vi. 98. in the case of recovered prisoners of war.

They give no opinion
The proceedings

are not evidence against the accused R.P/IM H. before a Court-Martial.

VIII 77

Court of Inquiry on
Is
,,

Illegal

Absence
72.
* '

assembled after absentee has been absent 21 days. Sec. The Court is not sworn, but the evidence is taken on R p
oath.

I25<

K.R.

673.

94

NOTES ON MILITARY LAW.
declares the fact of a man's absence

The Court

and

notes in detail the value of the public clothing of which he was deficient at the time when he absented himself.

K.R

676.

Boards only
discipline.

differ

from Courts of Inquiry

in that the

subject of their inquiry should not involve a point of

Martial Law. May be defined as
application of Military Law under the law of necessity when civil law, owing to the existence of war, or ceases to operate
1.

The

;

2.

The

substitution of the will of the

Commander

for

the ordinary law as regards persons
to Military

who

are not subject

Law.
is

brought into force by proclamation of the Commander-in-Chief in the field in foreign countries, or by the Governor of a Colony if in His Majesty's
dominions.

Martial

Law

has ceased to operate an Act of Indemnity is necessary in order to protect those who have operated it.
After
it

Riot Act.
M.
'

Kill.
948,

The

military

may

use force by arms to prevent
:

K.R.

irreparable loss/

Guiding principles for Officers employed on
1.

Report daily to

War

Office

and

Officer

commanding

station.
2.

Do

not

move without

requisition in writing.

3.

Keep a Magistrate with you.

Consult Magistrate as to disposition of troops. 5. Do not act until Magistrate has read Riot Act Proclamation. to take action.' 6. Make Magistrate request you
4.
'

7.
8.

Give executive words of

command

yourself.

Warn

people before
fire

firing.

9. Tell off

detachment into squads of
over heads.

five.

10.

Do

not

95

APPENDIX
THE Army Act
Section.

Sections are arranged as follows
Offence.

:

Punishment.

Title

Mode

of bringing into force Division of Act Offences in relation to enemy Ditto Forces safeguard ; leaves C.O., etc. ; drunk on or leaves

Death. Penal servitude.

On

active
;

service,

sentry post
7 8

death otherwise imprisonment, hard
labour.

Mutiny and sedition
Striking or threatening

9
10
ii

12

Disobedience I nsubordination Neglect to obey Desertion

Death. Death. Death. Imprisonment. Imprisonment.

On

active
;

service

death

penal
13

otherwise servitude

(2nd) or imprison

Fraudulent enlistment
Assisting to desert

14
15

16
17 18

Absence Scandalous conduct Embezzlement
Drunkenness

ment. Penal servitude (2nd or imprisonment. Imprisonment. Imprisonment.
Cashiered. Penal servitude.

(officer)

Malingering, etc. ; embezzling, stealing ; fraudulent offence

Imprisonment.

19

Imprisonment
i/.

;

fine,

20

Permitting escape prisoner

Penal servitude

(will-

ingly) or imprison-

21

Irregular imprisonment

22 23

Escaping
Corruption, supplies, etc. Injuring or losing equipment Falsifying documents or fraudulent statements

24
25

ment. Imprisonment. Imprisonment. Imprisonment. Imprisonment. Imprisonment.

NOTES ON MILITARY LAW.
Section.

Offence.

Punishment.

26
27 28

Courts-M.

!

Billeting.

29 30
31

Impressment.

32 33 34
35

Signing in blank ; neglect to report False accusation Witness absent refuses oath, etc. (contempt of Court) False evidence Offences in regard to Ditto Enlisting after discharge with
;

Imprisonment.
Imprisonment. Imprisonment.

Imprisonment. Imprisonment. Imprisonment. Imprisonment. Imprisonment. Imprisonment. Imprisonment. Imprisonment. Imprisonment.
Imprisonment. Imprisonment.

ignominy
False answer on attestation Assisting to wrongfully enlist Traitorous words Injurious disclosures withholdIll-treating soldier ;
ing pay Duelling and attempting suicide Refusing to hand over to civil power, soldier or officer
'

36 37
38

39

40

Conduct

'

42 43 44 45
Courts-M.

Treason, murder, manslaughter, rape, burglary (any offence) Redress of wrongs (officer) Ditto (soldier)

Same

Imprisonment.
as Civil Courts.

46 47 48 49
50
5i

Punishments Custody Powers of C.O. R.C.M. G. and D.C.M.
F.G.C.M.
Eligibility

R.P. 105-123.

Challenge

52 53 54
55

Oath
Procedure
Confirmation, etc.

Repealed
Alternative findings Commute and remit Effects of penal servitude Penal servitude prisons, commit

56 57 58 59

ments
60
61

62 63 64
65

Ditto in India Ditto in foreign country Penal servitude prisons, general Imprisonment and detention
Ditto,
definition

and commit-

ments
66 67 68
Ditto in India Ditto foreign country Removal to corps of prisoner

Commencement

of P.S.

APPENDIX.
Offence.

97
Punishment.

Section.

69 70
71

Articles of

War, powers to make
R.P. 104.

R.P.

Command
Court of Inquiry on illegal absence R.P. 125
Confession of desertion fraudulent enlistment

72 73

and

74
75

76 77 78 79 80
81

Provost-Marshal Returning stolen goods Enlistment Ditto, terms of

Part II.

Changing conditions of service Reckoning and forfeiture of

Mode

service of enlistment

82 83 84
85

Purchasing discharge General service
Transfer

Re-engagement
Continuance
Ditto, N.-C.O.s Prolonging service Imminent national danger Transfer to Reserve when corps

86 87 88 89

90
9i

92
93 94
95

ordered abroad, etc. Discharge or transfer to Reserve Lunatics When soldier may be discharged Recruiting enlisting officers
J.P.s for

R.P. 57-

above
Pages 358-9.
Fine, 2O/.

96 97 98

99
100
IOI IO2

Enlistment aliens, negroes Claims to apprentice Indentured labourer Unlawful recruiting False answer to J.P.

Imprisonment three months.

When

103 104

duly attested i.e. after receiving three months' pay Competent authority Billetting, suspension of certain laws Constable to provide billets Liability to provide billets

Part III.

Who

is

entitled to billets

Payment and accommodation
107 108 109

Annual list Grant of billets
Offences of constables Ditto innkeepers Offences by officers, regard to billets
405. to io/. 405. to 5/.
etc.,

no
in

in

NOTES ON MILITARY LAW.
Section.

Offence.

Punishment.

112 113 114
115

Impressment

of carriages

Payment
Offence

for

Annual list Supply of carriages in emergency

116
117

ment
118 119
1

by

police

ve

impress-

20

Part IV.

121 122

Offence by persons ordered to furnish Offence by officers and soldiers Recovering debts for above Provisions for constables, etc. Fraudulent claim for above

123 124 125

Royal Warrants Convening and confirming D.C.M

R.P. 16-21
R.P. 73-86.

;

51-56.

126
127

Copy of proceedings to prisoner Privilege and summoning witnesses Misconduct of a civilian before a
Court-Martial Courts-Martial under English law only Rules of evidence ditto Counsel contempt of Court Insanes Prison arrangements over 12

Same

as Civil Court!

and by a Civil Court
R.P. 73-86.

128 129 130

Removed from Court
R.P. 57-

132 133 134 135 136 137 138 139 140
141

months, etc. Receiving prisoners
Prisons Ditto, Indian, etc. Classification of prisoners

Also K.R. 607.

Deduction from pay Stoppages Penal deductions Remitting deductions Deductions Assignment of pay
Personation
Toll exemptions Civil process exemption

142 143 144 145 146 147 148 149

Fine, 25/.

Maintenance of
sheriffs, etc.

wife, etc.

Prohibition as regards becoming

Exemption from jury
Repealed

service

152
153

Ditto Ditto Ditto False confession, desertion

Inducing to desert

Imprisonment, months. Imprisonment, months.

three
six.

APPENDIX.
Offence.

99
Punishment.

Section.

154
155
I

56

Apprehension of deserters Trafficking in commissions Purchasing equipment

157 158 159 160
161

One

trial

only

Liability to military law Liability as to place Useless Limitation clause
v. military law Evidence Evidence of civil conviction Evidence of military conviction

162

Civil

Misdemeanour.

163 164
165

166 167 168 169 170
171

j

Jurisdiction of civil courts Jurisdiction in Scotland Islands and Colonies do
'

'

j

Reduction of

fines

abroad

Protection of administrators of military law

Transmission
military law

of

power under

Warrants and orders Furlough for sickness Canteen licences I74A Recreation rooms
172 173 174
175

Persons subject to military law
(officers)

Part V.

176 177 178 179
1

Ditto (soldiers)
Colonials

80

Regulars and Auxiliary together Marines Indian forces
Auxiliary forces, modifications

181

182
183 184 185
1

Warrant
N.-C.O.s

officers

Civilians Prisons in Ireland

86

Saving Naval Discipline Act
Application of Act to Islands Ditto to ships
Definition, etc., active service Definitions

187 1 88 189 190

RULES OF PROCEDURE.
i.

2-8.

9-12.
13-15.
1

Delay of trial. Powers of C.O. Framing charges.
Preparation of defence. Convening.

6-2 1

.

H

2

100
22-23. 24-30. 31-42.

NOTES ON MILITARY LAW.
Constitution of Court.

43-5 o

-

51-56.
57.

Challenge and swearing. Prosecution, defence, and summing. Finding and sentence. Confirmation and revision.
Insanity.

58-72. 73-86.
87-94.

'

95-100. 101-103.
104.

Proceedings generally. Witnesses and evidence. Friend and counsel. Preservation of proceedings.
'

J.A.

105-123.
124. 125.

126-129.
1
1

Suspension of rules F.G.C.M. Courts of Inquiry. Courts of Inquiry, illegal absence. Prescribed and Commanding Officer.
Colonial.

30.

31-1 39.
1

Supplemental.
Definitions.

34.
I.

Appendix Appendix Appendix

Forms of Charges. Forms of Courts-Martial. III. Forms of Commitment.
II.

RULES OF PROCEDURE.
i.

Report of delay

of trial.

2.
3.

4.
5.

Investigation by C.O. Hearing of charge. Disposal or adjournment.

Remand.

6.
7. 8.

Summary

award.
officer.

Right Charge against
Charge-sheet.

of trial.

9

.

10.
ii.

Commencement
Contents.
Validity.

of charge-sheet,

12. 13. 14. 15. 6.

Preparation of defence.

Charge delivered to prisoner.
Joint
trial.

1

17.
1

Convening R.C.M. Procedure on convening.

8.

Adjournment
Ineligibility
.

for insufficient officers.

19.

20.
21
.

Corps

of.

Rank.
Legal constitution.

22.

RULES OF PROCEDURE.
23.
24. 25. 26. 27. 28. 29. 30.
3
1
.

101

Amenability and validity of charge. Prosecutor and accused, appearance
Challenge.

of.

Swearing.

Swearing of J.-A.,
Plural oath.

etc.

Solemn declaration.
Swearing according to Arraignment.
Objection.
religion.

32.
33. 34. 35. 36. 37.
38. 39.

Amendment

of charge.

Plea to jurisdiction. Guilty or not guilty. In bar. Procedure after plea.

Withdrawal

of plea

Not

guilty.

Not

guilty.

40.

41. 42. 43. 44. 45.

Procedure Procedure

no witnesses for defence.
with witnesses for defence.
up.

Summing
Finding.

Record

of.

Acquittal.

46

.

Conviction

.

47.
48.

Forfeiting seniority of rank. Sentence.

49.
50.
5
1
.

Mercy. Signing and transmission.
Confirmation. Revision.

52.
53. 54.

Promulgation.
Mitigation.

55.
56.

Finding on alternative charges, confirmation Confirmation in spite of informality.
Insanity.
Seating. President's responsibility. Powers over addresses. Procedure on trial of several prisoners. Separate charge-sheets. Closing. Time-limits daily.

of.

57. 58.
59.

60.

61.

62.
63.

64.
65. 66. 67. 68.

Continuity and adjournment. Suspension. Death of accused. Presence of all members.

102
69. 70.

NOTES ON MILITARY LAW.
Opinions of
all

members.

71

.

72.
73.
74.

Incidental questions. Swearing Court for several prisoners. Swearing of interpreter and shorthand writer.

Relevancy.
Judicial notice.

75.
76.

77. 78. 79. 80.
81.
82. 83. 84.

Calling of all witnesses. Ditto, not in summary. List of accused's witnesses.

Procuring witnesses. Adjournment for absence of witness. Evidence, prisoner and wife.

Withdrawal
Questioning.

of witnesses.

Swearing of witnesses.

Examination and cross-examination.
Questions by Court,
Recalling. Prisoner's friend.
etc.

85. 86. 87. 88.
89.

Counsel.

90. 91. 92.

Requirements. Counsel for prosecution. Counsel for accused. General rules as to.
Qualification of.

93.
94.

95.
96.

Statement by prisoner defended by counsel. Record in proceedings.

Custody

97

.

98.

of proceedings. Transmission. Preservation.

99. loo.
101.
1 02.

Payment
Loss
of.

for.

J.-A.,

appointment.

Substituting.

103.
104.

105. 1 06. 107. 1 08.
109.
1

Powers, etc. Suspension of rules. Convening F.G.C.M.
Composition. Necessity for. Charge.
Trial of several accused.

10.
.

Challenge,

in

112.

113.
114.

Swearing. Arraignment. Plea to jurisdiction.
Witnesses.

RULES OF PROCEDURE.
115.
1 1 6. 1

IO3

Swearing witnesses.
Defence.
Acquittal. Sentence.

17.
8.

1 1

119. 1 20.

General provisions. Confirmation.
Application of rules. Practicable and available/ def. C.O.
'

121.
122.

I2 3.
124. 125. I2 6. 127. 128.

Opinion of convening and confirming Courts of Inquiry.
Illegal absence.

officer.

Prescribed and

commanding

officer.

Court of inquest.

Competent military authority.
Definition of C.O.

129. 130. 131.
132.

Colonial prisons. Powers of military

office.

133
1

.

Cases unprovided Appendices.
Definitions.

for.

34.

135.
136. 137.
!

Construction of rules.

Channel Islands.
Application of rules. Short title.

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139.

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