Ch. III. punishment is cashiering (a); and the civil offence of murder in which case death is the only punishment. Punishment of detention. Field punish ment. Articles of 36. The scale of punishments received an important modification in 1906, when a new punishment-" detention "-was introduced into it, to rank immediately below imprisonment. The object of the change is explained in the preamble to s. 4 of the Army (Annual) Act, 1906, which is as follows:-"For the purpose of preventing soldiers convicted of offences against discipline under the Army Act, and not discharged with ignominy, from being subjected to the stigma attaching to imprisonment, the following amendments shall be made in the Army Act." A court-martial ought not, therefore, to sentence to imprisonment a soldier convicted of a purely military offence, and if the court imposes imprisonment in contravention of this principle, the confirming officer should, except under very special circumstances, commute the sentence to a sentence of detention. If the sentence is imprisonment and discharge with ignominy, the confirming officer, when commuting to detention, must also remit the discharge with ignominy, as such a discharge cannot accompany a sentence of detention (b). 37. The Army Act, as a substitute for the formerly existing power of inflicting corporal punishment, provides (s. 44, proviso (5)) that a court-martial may award for any offence committed by a soldier on active service such field punishment, other than flogging, as may be directed by rules made by a Secretary of State. The rules made in pursuance of the above enactment must be referred to for further details on this subject. (c). 38. In conclusion must be noticed the power of His Majesty, under s. 69, to make Articles of War for the better government of officers and soldiers. Such Articles may be made applicable to officers and soldiers at home or abroad, and must be judicially noticed by all judges, and in all courts. The penalty of death or penal servitude cannot be imposed by an Article of War, except for an offence expressly made liable to such punishment by the Act itself; nor can an Article of War render any offence punishable under the Act liable to be punished in a manner which does not. accord with the provisions of the Act. The enumeration of offences in the Act is so complete, that the necessity for the exercise of the power of making Articles of War for the purpose of creating offences would appear unlikely to arise. (a) Army Act, s. 16. (b) See generally K.R. para. 583. (c) The rules are printed below, p. 598. The term "field punishment" has been substituted by the Army (Annual) Act, 1907, s. 10, for the term "summary punishment," and that enactment also extended the power to award such punishment to the case of any offence on active service, the power having been previously limited to aggravated offences of drunkenness, offences of disgraceful conduct, and offences punishable with death or penal servitude. CHAPTER IV. ARREST: INVESTIGATION BY COMMANDING OFFICER: PROVOST-MARSHAL. (i.) Arrest. person 1. Whenever any person subject to military law is charged with Military an offence, he may be taken into military custody, which in the custody of case of an officer means arrest, and in the case of a private soldier charged means confinement. Non-commissioned officers are, as a rule, put with in arrest, and not in confinement. Persons subject to military law as officers under s. 175 will be put in arrest; persons subject to military law as soldiers under s. 176 will usually be put in confinement (a). offence. officer. 2. An officer is put in arrest either directly by the officer who Arrest of orders it, or more generally through the medium of a staff officer, i.e., by the adjutant or a field officer of the regiment when the arrest is ordered by the commanding officer, and by an officer of the general staff when the arrest is ordered by a superior officer, and not through the channel of the commanding officer. The order may be verbal or written, the latter as being more formal being the preferable mode, except where the offence is committed in the presence of the commanding or superior officer. On being put in arrest, an officer is deprived of his sword. open. 3. The arrest may be either close or open, according to the Arrest may direction of the officer who ordered it. The King's Regulations be close of direct that an officer in close arrest shall not leave his quarters or tent except to take exercise under supervision; but an officer in open arrest may be permitted to take exercise at stated periods within certain limits, which are usually the precincts of the regimental barracks or camp; he must not, however, appear out of uniform, nor at mess, nor at any place of amusement or public resort, such, for instance, as a billiard room, nor must he wear sash, sword, belts, or spurs (b). An officer placed under arrest should always be informed in writing of the nature of the arrest, which will be governed by the circumstances of the case; and any change in the nature of the arrest should be notified in writing to him. An officer may, if the circumstances of the case require it, be placed in the charge of a guard, piquet, patrol, or sentry, or, if on active service abroad, in the custody of a provostmarshal (c). An officer under arrest may be ordered or permitted to attend as witness before a court-martial, or before a civil court. 4. As a rule, a commanding officer will not place an officer under Arrest arrest without investigation of the complaint or the circumstances usually pretending to criminate him; though cases may occur in which it ceded by investiga would be necessary to do so. It is the duty of the commanding tion. officer to report each case of arrest without unnecessary delay to the proper superior military authority (d). (a) Army Act, s. 45 (1), (2). K.R., paras. 465-473. (b) K.R., paras. 466, 467., (c) K.R., para. 465. (d) K.R., para. 469. See for summary of the provisions of the Act and rules for preventing unnecessary detention in arrest, s. 45 of the Act, and note. Ch. IV. Arrest of senior by order of junior officer in certain circumstances. Case of Lt. Col. H. in 1819. Officer under arrest has 5. It is expressly laid down by s. 45 (3) of the Army Act, that a junior officer may order the arrest of a senior (even of a different corps or branch of the service), if engaged in any quarrel, fray, or disorder; and in the case of any glaring impropriety, such as drunkenness on parade, it may become the duty of a junior to take the same extreme measure. 6. This was clearly shown by the order on a court-martial for the trial of Brevet Lieut.-Col. H. at Plymouth, in 1819. Lieut.-Col. H. appeared at a regimental parade in a state of intoxication, and was put under arrest by Captain E., one of his junior officers. He was tried "for being drunk on duty when under arms inspecting the "guards and piquet of the Regiment of Foot," and sentenced to be cashiered; the court observing that the occurrence of a commanding officer being put under arrest while in the actual command of a regimental parade was unprecedented in their experience; and that the circumstances detailed in evidence were not of that imperious urgency as to have called for the immediate adoption of so very strong a measure. The Prince Regent, however, in confirming the finding and sentence, took occasion to signify that he could not allow the observations of the court to go forth to the army without explaining "that the court are in error when they 'suppose that circumstances may not occur even upon a parade to "justify a junior officer in taking upon himself the strong responsibility of placing his commander in arrest; such a measure must "rest alone upon the responsibility of the officer who adopts it, "and there are cases wherein the discipline and welfare of the "service require that it should be assumed. In the present "instance the sentence of the court appears to afford a full justifi"cation of Captain E.'s conduct in the placing of Lieut.-Col. H. in "arrest, though it would have been more regular if that officer "had continued to rest upon his own responsibility, without "calling a meeting of his brother officers to support it by their "opinions." 7. The King's Regulations point out that an officer put under arrest has no right to demand a court-martial, nor, after he has no right to been released by proper authority, to persist in considering himself under arrest, or to refuse to return to his duty. If he conceives himself wronged by arrest, his remedy is a complaint in manner prescribed by the Army Act (a). demand court martial. Release of officer. No privilege of Parlia 8. The release of an officer under arrest may be ordered by the officer who imposed the arrest, or the superior to whom it may have been reported; but, as a rule, the release is not to be ordered without the sanction of the highest authority to whom the case may have been referred (b). 9. Peers and Members of the House of Commons are not ment from privileged from arrest; but the fact and cause of the arrest should always be communicated to the Lord Chancellor, or to the Speaker, as the case may be. arrest. Non-com missioned officers. 10. The rules which govern the close and open arrest of officers apply also to non-commissioned officers. A non-commissioned officer charged with a serious offence will, as a rule, be placed under arrest forthwith; but in case of doubt as to the commission of the offence, the arrest may be delayed; and if the offence is not serious, it may be disposed of without previous arrest (c). (a) K.R., para. 470, Army Act, s. 42; see also K.R. para. 127. (c) See para. 3 above. K.R., para. 471. soldiers. 11. Private soldiers taken into military custody (not under Ch. IV. sentence) are confined in charge of a guard, piquet, patrol, or ConfineIsentry, or of a provost-marshal, or are placed in open arrest (a); ment of but this does not apply to minor offences, such as absence from private tattoo and other roll-calls, overstaying a pass, and other slight irregularities in quarters, which are to be disposed of by the company, &c., commander, or commanding officer, without the offender being previously lodged in the guard-room. In permanent barracks soldiers confined under charge of a guard will usually be detained in the guard detention room (b). They are never to be kept in irons, except when it is necessary for safe custody, or to prevent violence. A soldier against whom a charge for a minor Toffence is pending, is not treated as in arrest, and attends all parades, though he will not be detailed for duty. Where troops are in billets or on the line of march, or accommodation for the confinement of soldiers is otherwise not available, a soldier in military custody (not under sentence), may be committed by order of his commanding officer, for a period not exceeding seven days, to any civil prison or lock-up (c). An offender, while in close arrest, is not required to perform any military duty further than may be necessary to relieve him from the care of any cash, stores, &c., for which he is responsible; nor is he permitted to bear arms, except by order of his commanding officer in case of emergency or on the line of march; and if by error he is ordered to perform any duty, his offence is not thereby condoned (d). On board ship he should, if not in close confinement, take his regular turn of watch, although he should not be placed on guard (e). A man may be confined while awaiting trial by court martial or the promulgation of the finding and sentence of the court-martial which tried him, and may be so confined in a branch detention barrack (f). A man when confined can only be released by a competent authority—e.g., if confined in a regimental guard-room he can only be released by the authority of the commanding officer of the regiment, and if in a garrison guard-room by the authority of the officer commanding the garrison. 12. The offence of breaking or attempting to break arrest or Breaking confinement renders an officer liable to be cashiered, and a soldier arrest. liable to imprisonment (g). An offender confined to quarters, and quitting them for any purpose whatever, however short the time of his absence, is strictly speaking guilty of breaking his arrest. The gravity of the offence will depend mainly on whether the circumstances do or do not disclose deliberation, and intentional defiance of authority. 13. The offences of releasing without proper authority a person Improper lin suffering punishable in some cases more severely; an offender who acts wilfully escape. being liable to penal servitude (h). It will be remembered that here, as elsewhere, the punishments specified are maximum punishments. 14. An officer or non-commissioned officer commanding a guard, Receiving or a provost-marshal, cannot refuse to receive or keep any person (a) K.R. para. 473. (b) K.R. paras. 473-476. As to soldiers in a state of drunkenness, see para. 478. (c) K.R. para. 476. For form of order, see Form Q in App. III to Rules of Procedure. As to the duties of N.C. officers in relation to the confinement of private soldiers, see para. 477. (d) K R. para. 482. (e) K. R. para. 1612, 1) K.R. para, 648, and sec Form R in App. III to Rules. (g) Army Act, s. 22. As to escape, see note to that section. (A) Army Act, s. 20. accused persons into custody. Ch. IV. committed to his custody by an officer or non-commissioned officer; but the committing officer or non-commissioned officer must, at the time of committal, or within 24 hours after, deliver a written account, signed by himself, of the offence with which the person committed is charged (a). Account of offence. Omission to deliver account. of guard to 15. This "account" should be a concise summary of the evidence, on which the accused was committed into custody, and should contain, without any unnecessary detail, all the material points of the offence. If the account states that the accused was drunk, or absented himself, and a witness subsequently adds before an investigating officer that the accused struck a non-commissioned officer, or used threatening language, the presumption is that the conduct of the accused had not at the time been thought sufficiently serious to amount to an offence, and to be entered in the account. As a rule, then, the investigating officer would treat the fresh evidence merely as showing the nature and degree of the offence originally deposed to; but in some cases he may consider it advisable to make this new evidence the substance of a specific charge. 16. The omission of the committing officer to deliver the "charge" (as the "account" is generally termed) will not justify the commander of the guard or provost-marshal in rejecting, much less in releasing, the accused. His proper course, in the event of such, omission, is to take steps for procuring the "charge," or to report to the officer to whom his guard report is furnished that no 'charge " has been delivered. If the "charge" or evidence sufficientl to justify the retention in custody of the accused is not forthcoming within 48 hours after committal, the latter officer will order the release of the accused (b). Duty of 17. It is the duty of the commander of the guard (immediately commander on the relief of the guard) to report in writing to the officer to report name whom he is ordered to report, the name and offence of the accused, and offence and the name and rank of the committing officer; and he should of accused, include in his report the "account" above mentioned, or, if it has Investigation by command ing officer. In case of officer. not been delivered, should state the fact. If he fails to make this report within 24 hours after the accused was committed, or where he is relieved from his guard within that period, then immediately on being so relieved, he himself commits an offence. The report will, as a rule, be made to his commanding officer (c). (ii) Investigation by Commanding Officer. 18. The object of the above report is to enable the commanding officer of the accused, without delay, to institute an investigation of the case. There is some difference in the procedure in the case of an officer and in that of a soldier. 19. The case of an officer may be referred to a court of inquiry, and need not, unless the officer requires it, be formally investigated before his commanding officer (d); but the commanding officer, in the case of an officer as well as of a soldier, is made by s. 46 of the Army Act responsible for dismissing the charge, if it ought not to be proceeded with; and, if it ought to be proceeded with, for taking the proper steps to bring the offender before a court-martial. (a) Army Act, s. 45 (4). (b) K.R. para. 463. (c) Army Act, s. 21 (3), and K.R., paras. 463, 464. See for summary of the provisions of the Act, and rules for preventing unnecessary prolongation of confinement, 8. 45 of the Act, and note. (d) Rule 8 and note. |