ARMY (ANNUAL) BILL.—(No 35.) (Hansard, 5 April 1889)

§ *LORD THRING
My Lords, in, rising to move the omission of this clause I need give but a very short explanation. Under the Army Act, 1881, a particular distinction is drawn between breaches of discipline and crimes, as I will call them—namely, offences which the Act designates as of an immoral, dishonest, and flagrant character, and it provides for distinction to be made in the treatment of the two classes of offences. Accordingly, the prisoner committed for a purely military offence goes to a military prison, and the prisoner convicted of crime goes to a civil prison. The effect is tremendously different. The one man coming out is untainted by what 1693 ordinarily called crime, and can go to some respectable sort of labour; the other associates with burglars aud men of worse description, and is tainted with the character of a gaolbird, and his future career utterly ruined. The effect of this clause is to entirely reverse the humane provision I have referred to, and to convert what is a purely military offence into a crime. When I referred to this matter on the Second Reading of the Bill, I failed to extract from the noble Lord (Lord Harris) any reason for the alteration. He told me that the submission of sentences to the Judge Advocate would prevent any injustice being done. No one is readier than I am to admit the great ability of the Judge Advocate, but I may remind my noble Friend that the office of Judge Advocate is to judge of the legality of the crime; he has no power whatever to give any authoritative opinion upon the severity or otherwise of a sentence. I will read what was said by Lord Randolph Churchill's Committee on this subject— Your Committee entertain a strong opinion that some high legal authority entirely independent of the military authorities should he appointed to secure the due administration of military justice and the proper protection of the private soldier, in whose interests the office of Judge Advocate was created by Parliament. I trust your Lordships will not pass this clause, which would allow a man to be branded with disgrace for the very offence which the Act declares is not of "an immoral, dishonest, shameful, or criminal character," and I hope that, at any rate before such a law comes into operation, the Government will appoint that "high legal authority," whose duty it will be, independently of the military authorities, to protect the private soldier.

*THE UNDER SECRETARY OF STATE FOR WAR (Lord HARRIS)
I trust your Lordships will approve of the inclusion of this clause in the Army (Annual) Act, and I think when I show your Lordships what are the crimes for which it is proposed that a man shall be sent to a civil prison instead of to a military prison you will agree with the military authorities that it is advisable 1694 that a man of the character in question should be for as short a time as possible in the comradeship of soldiers. These are the words of the General Order of 1887, paragraph 99— A sentence that amonnts to, or exceeds, one year's imprisonment should be imposed only in cases of disgraceful conduct of an unnatural kind, gross violence to superiors, repeated desertion or fraudulent enlistment, or in cases of persistent offenders whom ordinary punishment has not had the effect of restraining from serious crime. In this latter class of cases the additional sentence of discharge with ignominy is as a rule advisable. Those are the persons who will be affected by Clause 4 of the Army (Annual) Act of this year; and I do trust that your Lordships will take the view which the military authorities take, that the sooner a person who has been dismissed the Army with ignominy is out of all contact with his honest and honourable comrades the better for the Army.

§ *LORD THRING
The noble Lord must be aware that if the offences committed are of an immoral, dishonest, and shameful character, then the Act applies at present. The military offences in respect of which this clause subjects the offender to go to a civil prison are military offences which are not of an immoral, dishonest, or shameful character.

§ VISCOUNT BURY
The noble Lord who has just sat down seems to imply that courts martial are likely to make a constructive crime out of a purely military offence, to discharge the man with ignominy, and thus to send him into the company of felons. Now, I think we may fairly ask the noble Lord whether he can point to any instance in which a court martial has ever done such a thing. I challenge the noble Lord, with all his great experience in military legal matters, to say whether he has known a case in which such a miscarriage of justice has occurred. I believe that anybody who has had experience of courts martial will agree that if he had to be tried either for his life or his honour he would just as soon submit to the decision of a court martial as to that of a civil tribunal.

§ *LORD THRING
I should like to point out that this clause would be perfectly useless in the cases to which the 1695 noble Lord refers. The clause only applies—I cannot repeat this too often—to cases in which a court martial dismisses a man with ignominy for a purely military offence which is not of an immoral, dishonest, and shameful character. At the present moment if the offence is of this character the offender does go to a civil prison, and the whole object of this clause—it has no other meaning whatever—is to subject a man to go to a civil prison for an offence which is not of that character. I challenge the noble Lord to dispute the statement.

*LORD HARRIS
I do not think the noble Lord opposite quite puts the matter fairly. He avoids entirely the point of the contention, which is that these are men who have been dismissed with ignominy—I admit for military offences, but from the words I read to the House your Lordships will see that it is only enforced after repeated offences. The noble Lord's desire is to retain what has only been the custom for the last eight years because this was the previous practice for forty years. The old practice was altered by a Bill which, I believe, the noble Lord himself drafted in 1879. It is now sought to revert to the old practice, and the military authorities are, in my opinion, well justified in desiring to get out of the association altogether of honourable soldiers these men who have been tried and convicted of repeated offences, and eventually dismissed from the Army with ignominy.

THE EARL OF KIMBERLEY
I quite understand that military offences may be of such a serious nature, that their repetition may well justify a man's dismissal from the Army with ignominy; but what I cannot understand from the noble Lord's explanation is, why in the case of any military offence whatever, being a purely military offence, it is right that he should be sent to a civil prison. My noble Friend merely begs the question when he says that these men have been dismissed with ignominy, and do not any longer belong to the Army; that is merely repeating the clause itself. The question is, ought those who have been dismissed with ignominy for military offences to be sent to a civil prison; what are the classes of cases for which a man under this clause could be dismissed with ignominy?

*LORD HARRIS
There is, for instance, the striking of a superior officer; that is one of the offences for which a man can already be dismissed with ignominy, and it is a purely military offence.

THE EARL OF KIMBERLEY
Then I venture to say that the case of my hon. Friend is proved. This military offence of striking an officer is not, in itself, a shameful offence. In civil matters it would probably be an ordinary case of common assault. Of course, it may be a most serious military offence, and it may be right that the soldier should be dismissed with ignominy; but my noble Friend's argument is perfectly clear that the punishment for a military offence of that nature ought not to involve the man in the degradation which attaches to a man who has been sent to consort with felons in a civil prison.

§ *LORD THRING
With regard to one portion of the noble Lord's argument, I would ask, can a man be guilty of an offence which disqualifies him from association with his fellow soldiers, though the offence is not dishonest, immoral, or shameful?

§ *LORD NAPIER OF MAGDALA
This question may be easily explained. A soldier may commit a grave military offence, combined with offences of a dishonest or immoral nature. The soldier receives a certain pay to perform a certain duty. There are some men—very few, I am happy to say, but there are some—who take the pay and will not do the duty; men who malinger, who pretend to be sick, who commit small offences to get short imprisonments; who, in fact, resort to every trick which will enable them to cheat the Government and to avoid performing their share of the work. There is no use in keeping such men in the Army. You cannot reform them—you cannot punish them. The only thing you can do is to dismiss them with ignominy; and these men would have a fatal influence if allowed to consort with honourable soldiers after conviction. My Lords, I support the retention of this clause.