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The role of a Prosecuting Officer at a Field General Court Martial.


Nigel Marshall
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Can anyone tell me what exactly a Prosecuting Officer did at a FGCM, please?
I am researching an officer who took on this role at the FGCM trials of two soldiers of his battalion who were subsequently convicted and executed for desertion.

Unless the transcripts for the Courts Martial are not complete records of the proceedings, the officer I am looking at seems to have had a role which didn't extend further than presenting and reading documents to the court. He is not recorded as asking any questions of either of the accused (they were tried separately) or any witnesses.

It doesn't appear from his file that he had any specific training in law, as he had enlisted as a private soldier in 1900 and was commissioned in 1916 after reaching the rank of Colour Serjeant with the appointment of RSM of a Territorial Force infantry battalion. He moved to a New Army battalion of a different infantry regiment on commission.

Cheers,

Nigel

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I don't have a pre-war copy of Manual of Military Law but from the 1925 edition Chapter V section ix Trial on plea of not guilty para 52:

"The prosecutor should always make an opening address if the case is a complicated one, and the court may require such address to be made, He should explain the substance of the charge and outline the evidence to be called in support of it.

The prosecutor is not a partisan but an officer of justice whose duty it is by laying all relevant facts in evidence before the court to assist the court in ascertaining the truth. He must act with scrupulous candour, fairness and moderation towards the accused, the witnesses and the court."

The Judge Advocate or the President of the court was responsible for ensuring that the evidence of each witness was recorded and at the end of each witnesses' evidence the whole of their evidence was to be read back to the witness for them to agree that it was accurate. It's possible that this what you are seeing in the records. It's also possible that the evidence was not going to be challenged by the defence so the attendance of witnesses was not required and their statements simply read instead.

If the accused gave evidence, and they were not obliged to do so, then the Prosecuting Officer could cross examine but was not required to do so if he felt it wasn't necessary. Even in a capital case the evidence might have been straightforward and the amount of examination and cross examination minimal or non-existent.

Nigel

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I think that the job of prosecuting officer usually fell to the adjutant of the accused's battalion. You are right that he did not normally have a legal qualification. Later in the war, if there was no judge advocate, a "courts martial officer" with some legal training was often appointed at a FGCM.

Ron

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Thanks, gents.

I'd forgotten I had a copy of the Manual of Military Law when I posted this. I think mine is a 1907 edition, so I'll see if there's any great difference in the wording or intention.

My Field Service Pocket Book might have a précis of the duties too.

I'll look that up.

Thanks again,

Nigel

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Ages ago I read/heard somewhere that an OR was not allowed to speak at his court martial, this being the exclusive right of the "accused's friend", who would always be an officer.

I have always doubted the veracity of this, but have never looked into it.

Any comments?

Cheers

Colin

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Colin

I don't think that is correct. I have a copy of one of Gale and Polden's books, by Major H M Shurlock who was also a barrister, in which examples are given of witnesses being questioned by the accused. Although it dates from 1944 I think the 14-18 practice was the same.

However, he does refer to the Rules of Procedure, rule 87( B ), which says that "the Convening Officer shall use his best endeavours to ensure that the accused shall be represented by a suitable officer." So it was certainly recommended that an accused should have an officer to assist him in presenting his case.

Ron

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A man could choose to speak.

"It is the duty of the President to inform the accused at the close of the case for the Prosecution that he (the accused) can either give evidence as a witness on oath, in which case he is liable to be cross-examined by the Prosecutor and examined by the Court, or make or hand in a statement not on oath, in which case he is not liable to be questioned in any way.

The President should also inform the accused that the Court will attach more weight to evidence given on oath than to a statement not on oath.

The President should then ask the accused which course he wishes to adopt and if he has any witnesses to call in his defence."

Reference : SS 391, Field General Courts-Martial, Notes for guidance of Presidents, March 1916.

(Also similar wording in SS 412a, Circular Memorandum on Courts-Martial for use on Active Service, June 1917.)

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Thanks, Ron and Chris - I thought it must be a load of bull. Couldn't really imagine a man facing, e.g., a possible death penalty not being allowed to speak.

Cheers

Colin

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Nigel

Here is a vignette of an officer with some legal training participating in an FGCM:

In wartime, any officer with a legal qualification was likely to find himself ordered to take part in the military justice system. It could be a terrible responsibility.

Henry Lawson, who later went on to a distinguished career including presidency of the Law Society in 1962, but in 1917 he was utterly unprepared to be called as one of three officers trying a case. He recalled: 'I had never attended a court martial, let alone sat as a member of the court. I suppose in my examinations I may have read something about the subject, but I knew virtually nothing.'

The defendant, 'a charming boy of 19 or so with pink cheeks and blue eyes' who admitted the charge of sleeping at his post. 'This did not surprise me because one or twice on my night rounds I had found a sentry asleep, absolutely worn out, whom I dealt with in my own manner.' This apparently involved firing a rifle six inches from the sleeper's ear and shouting 'They're coming!'.

As junior member of the court, Lawson had to give his verdict first and he recommended a reprimand, saying he held the platoon commander in part responsible. 'Silence reigned until the Colonel told me that if I found the boy guilty there was only one sentence I could pass... the death penalty.'

Lawson responded that he would 'be prepared to be taken out and shot, which the enemy would probably do to me anyway before the end of the war, but in no circumstances whatever would I pass the death sentence upon that boy with whom I sympathised.'

In the end the court agreed on 40 days 'confined to barracks... whatever that meant in the line'.

The prisoner 'showed no emotion, no relief, thus confirming by belief that he had no idea that his life had been at stake.'

In 1979* Lawson recalled: 'All was mysterious to me, but I have never forgotten that charming boy with pink cheeks and blue eyes, whose life I have always felt I saved. I can still see his face.'

*Vignettes of the Western Front, Henry Lawson, Positif Press 1979. We would like to thank Lawson's grandson, Freddie Lawson of W. Davies Solicitors, Woking.

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A copy of the 1914 Manual is available on line here;

http://pt.slideshare.net/oldcontemptible/manual-of-military-law-1914

Most field general courts martial seem to have been properly constituted, with three presiding officers and the accused not allowed to enter a guilty plea on a capital charge. True, the accused were not guaranteed legal representation, but they could pick any individual they liked as defending officer, who had to take the job unless there was good reason. Legally qualified officers were often available: one such was Captain Louis Crispin Warmington, a 40-year-old London solicitor serving in the Durham Light Infantry, who acted as prisoner's friend in at least three capital cases.

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