Special Committee Defence Bill, 1951 debate -
Friday, 4 Apr 1952

SECTION 123 (Resumed).

Question again proposed : " That Section 123 stand part of the Bill."

Captain Cowan

I put down an amendment opposing the section. In the first place, it is a new section. Everything that is in it is new, has never been in an Act before. It is a new law. It is a dangerous law from many points of view, and it is too serious to be inserted. If the Committee will read the section they will see that it is a section to deal with capital offences by commanders when in action. Paragraph (a) says :—

" who, when under orders to carry out an operation of war or on coming into contact with an enemy that it is his duty to engage, does not use his utmost exertion to bring the officers and men under his command or his ship, aircraft, or his other material into action."

My first objection is to the words, " does not use his utmost exertion ". Any soldier and any person who has read the history of the last two warsknows that there can be the greatest difference of opinion as to whether an officer in certain circumstances used his utmost exertion. The danger then is that it would have to be left to a court-martial. Somebody may say: " This particular officer did not use his utmost exertion." He is brought before a court-martial and he is executed, and when he is a long time dead, it is discovered that he did everything that was conceivable and, in fact, that his action may have been the cause of subsequent success on the part of the same force. In my view, criminal law ought not to be based simply on a matter of opinion, because that is what it boils down to—the opinion of the court at the time as to whether the accused officer used his utmost exertion or did not. It is too dangerous to leave it in that fashion.

It is desirable to deal with the section paragraph by paragraph. I will just run briefly over it, because there is the same principle in every one of the paragraphs.

Paragraph (b) says:—

" who, being in action, does not, during the action, in his own person and according to his rank, encourage his officers and men to fight courageously."

There again it is a matter of opinion, did he encourage them or did he not ? People have different methods and ways of dealing with a situation. Does " encourage " there mean that he would have to go around shouting to his men in the old style of the Boer War, with his sword brandished? Some commanders may never open their mouths at all but remain absolutely quiet and retain their self-control. They are seriously considering all things. Somebody may make a complaint that such a commander did not encourage his officers and men to fight courageously. In fact the complaint in such a case would be made by a subordinate. Obviously, it would have to be made by a subordinate, because, if there was superior officer present it would be his duty to take control.

Paragraph (c) says :—

" . . . who, when capable of making a successful defence, surrenders hisship, aircraft, vehicle, defence establishment, matériel or unit to the enemy, . . ."

Again that becomes a matter of opinion—was he capable of making a successful defence? Let us consider Tobruk during the last war. There are books still being written about it—was the commander capable of making a successful defence or was he not or did he do the right thing? It would be dreadful if all that discussion was going on now and he had been executed by court-martial a number of years back.

Paragraph (d) says:—

" . . . who, being in action improperly withdraws from the action, . . ."

I will object every time I see this word " improperly " because that again is a matter of opinion.

Paragraph (e) says:—

" . . . who improperly fails to pursue an enemy or to consolidate a position gained, . . ."

The same point arises.

Paragraph (f) says:—

" . . . who improperly fails to relieve or assist a known friend to the utmost of his power, . . ."

Paragraph (g) says:—

" . . . who, when in action, improperly forsakes his station."

For all these offences the officer shall, on conviction by court-martial, be liable to suffer death.

The experience of the first world war, which I think is more important than the second world war, was that in the stress of battle, where an officer was overcome his action in a critical stage may not have been due to cowardice, deliberate incompetence, or anything like that but may have been due to some medical cause. It is one of those difficult things that are very hard to establish to the satisfaction of a court-martial. This section has been taken from some other Act, from some other army, from some other military law. I am satisfied—I did not look it up—that it is not just something that the Department of Defence here haveworked out on their own because they have had no experience that would enable them to do that. They have taken that out of some Act of some other country. The particular section frightens me. For that reason I put down my opposition to it.

Mr. Traynor

The Deputy appears to be opposing the section because it is new in nature. Up to the present there has been no provision in legislation dealing specifically with the responsibility of commanders in action. A commander misbehaving before the enemy was liable with, and in the same way as his men, as a person subject to military law. The conduct of an action, however, depends so much on diligent and courageous leadership that it has been thought necessary in this section to place emphasis on the commander's responsibility. The section applies to any officer exercising command, whatever his rank, although some of the offences will, perhaps, apply more to seniors than juniors. I do not think that any of the offences, taken in themselves, can be objected to.

I think it well to say this about the present section and subsequent ones because Deputies without intimate experience of military law would need to be aware of this. The maximum penalty provided is death but, of course, the maximum penalty will not necessary be awarded in every case. The death penalty is provided so that flagrant cases may be dealt with, but when an officer charged with one of these offences is tried by court-martial, the court-martial will take all the evidence and circumstances into consideration and may award any of the lesser punishments for which the Bill provides if they consider the death penalty too severe in relation to the particular case. The various confirming and reviewing authorities will also have a say in the matter. It is well to bear this in mind and to remember that the maximum punishment provided in this part of the Bill—whether it be death, penal servitude, or so on—is intended for the extreme case and has been assessed on that basis in deciding what maximum punishment should be provided.

In the main this is based on the 1923 Act. I have said that there was no specific provision in relation to commanders in that Act. Capital offences are provided in the 1923 Act but they apply in general to all ranks. It is now deemed desirable that officers who in the main are responsible for leadership in action should be provided for in this manner. As the behaviour of an officer in face of the enemy might militate against the success of an action, it stands to reason that the troops under his command would be affected and that an action which might possibly have been won would be lost—all because of a single individual. I must confess that I am rather surprised at Deputy Cowan's attitude on this section. Can we do without a single one of these clauses (a), (b), (c), (d) or (e)? If we can, what does the Deputy suggest substituting for them ? As an Army may have to fight, surely there is nothing wrong in endeavouring to provide for the possible offences against military law dealt with in the section, and if by any chance any of them occurred, surely there should be some provision to deal with them ?

Deputies may be a little worried about some of the offences in Section 123. They may wonder who is to make the charge that, for instance, an officer did not use his utmost exertion to bring his men into action. Deputy Cowan is worried about that. The answer is the charge will be made by the superior officer competent to do so and that the officer will be tried judicially by a court-martial and that court-martial will, in the light of the evidence, bring in its verdict. It need hardly be said that any court-martial is unlikely to arrive at a conclusion rashly or against the weight of the evidence in so serious a matter. The charge would undoubtedly be preferred by a colleague, but by a colleague who had a full concept of the situation and who saw the results of the action of the officer charged. I think that the committee should give me this without very much further discussion.

Mr. MacBride

Could the Minister indicate the precedents for these provisions ? He indicated that some werecontained in the 1923 Act. Are they also contained in the legislation of other countries ?

Captain Cowan

The section is clearly taken from an Act of another country. It is not in the 1923 Act although in that Act there are certain offences based on broad general principles to which I intend to refer later.

Mr. Traynor

The principles underlying the section are practically the same. Section 32 of the Defence Forces (Temporary Provisions) Act, 1923, reads :

Every person subject to military law who commits any of the following offences, that is to say:—

(1) The offence of unjustifiably surrendering, yielding or abandoning any garrison, guard, place, post or position which it was his duty to defend ; or

(2) The offence of endeavouring in any way to persuade, induce or compel any person subject to military law to commit the offence specified in the foregoing clause ; or

(3) The offence of treacherously or without due authority holding communication or correspondence with, or giving intelligence to the enemy; or

(4) The offence of misbehaving or inducing others to misbehave before the enemy in such a way as to show cowardice; or

(5) Having been made a prisoner of war the offence of voluntarily serving with or voluntarily aiding the enemy; or

(6) The offence of assisting the enemy with arms, ammunition or supplies; or

(7) The offence of treacherously assisting the enemy in any way not specifically hereinbefore mentioned in this section; or

(8) The offence of knowingly when on active service doing any act calculated to imperil the success of, or endanger, any portion of the Forces ; or

(9) The offence of attempting to commit any of the offencesspecified in sub-sections (3), (6) and (7) of this section;

shall on conviction by Court-Martial be liable to suffer death or such less punishment as is in this Act mentioned.

Captain Cowan

Of course the Minister will realise that most of that section has been incorporated in Section 124 but that the provisions about commanders constitute a new section. I am asking the Minister to give this Committee its source. It has clearly been taken out of an Act passed in Canada, America, New Zealand or somewhere else.

Mr. Traynor

The legislation of all countries is studied. Surely the Deputy is not going to object to taking what is deemed best out of the Acts of other States ?

Captain Cowan

No. I cannot say for certain at the moment whether this section is in the British Act at present, but I do not think it is.

Mr. Traynor

The military offences in the 1923 Act were copied practically verbatim from the British Army Act of 1881.

Captain Cowan

I have said that. I have put it to the Committee a score of times that the 1923 Act was the British Act with a couple of words changed, but the section we are now dealing with is not in the British Act. The British Act has carried the British Army through three big wars and scores of small wars and they have not, in my opinion—I may be wrong in this—put in a section such as this Section 123. It is very doubtful if the British Parliament would permit such a section to be inserted in British law. As we know, our law is fundamentally British law. There is no doubt whatever about that. Other countries like Canada, America or Germany may have different ideas however. Everything in the section of the 1923 Act read out by the Minister is contained in the subsequent section of this Act, but the section which I am opposing is new. It introduces principles which we should abhor as contrary to our idea of law and to which we mustobject—that a man must use his utmost exertion or be sentenced to death.

Mr. MacBride

The reason I asked the Minister whether he could give us some information about the sources of the paragraph is that it would relieve my mind a good deal if I felt that the various sub-paragraphs (a) to (g) had precedents even elsewhere. I do not think that it is a vice to adopt precedents which have been put into practice effectively in other countries. I would be a little worried if I felt that it was a new concoction because the wording would have to be examined much more closely. It would be a help therefore if the Minister could give us the actual sources. I would not like to be misinterpreted. I am not saying that we should slavishly copy the legislation of another country, but it would be a help if we knew the precedents.

Captain Cowan

If a great nation like Britain has gone through three wars successfully without these precedents we don't want to adopt them as law.

Chairman

Yes, it would be no harm I think to ask the Minister to give us the sources. Hitherto we have been dealing with the peace time aspect of the Army when the civil law is paramount, but remember that here you are dealing with active service. War is a nasty autocratic business. We are providing here the legal foundation for an Army in its savage primitive state. Let us face the fact that war is a situation where physical force is used to the utmost to attain certain ends, where people are going to be killed, where there devolves on every combatant a serious duty and where, if he fails in that duty, not only the whole country—take the specific case of our own Army in action—but the lives of the individuals in these forces also are at stake. In that situation it is obvious that military law must provide, as it always has, for capital punishment and other serious punishments for people subject to military law, who are guilty of dereliction of duty. Derelictions of duty have been defined as far as is humanly possible in the sub-paragraphsof Sections 123 and 124 of this Act, and in the corresponding sections of previous Acts. It is not possible completely to delineate and define the limits of responsibility in all the cases which might arise.

By the very nature of the thing, by the very stress which is put on human nature by war, by the very fact that cowardice and demoralisation are infectious, it has been found necessary to maintain discipline by having these penalties. We can talk and argue in a humanitarian way with regard to peace time—and I for one would be very much on the side of humanitarian progress in peace time—but war in all its cruel savagery is a brutal and primitive business. It must be operated on these lines. In war our primitive instincts will come to the fore in a way we are glad to see refined in peace time in our civilisation, and in war it is necessary to provide penal provisions of this nature. You must take into account that the position of a commanding officer, either big or small, is one entailing a greater degree of responsibility, greater potentialities for damage to morale and discipline, than that of any other officer.

Captain Cowan

What about a lieutenant ?

Chairman

Even a lieutenant, even a corporal, equally with a general, is in a position of greater responsibility and carries greater potentialities for damage than the ordinary person who is subject to military law. It seems to me to be necessary, if you are going to have organisation under the brutal and primitive conditions which necessarily attend war, to have the sanctions and provide for these offences. I will not dignify it with the name of principle but it is a hard basic fact that we have to deal with. I am not in the least questioning Deputy Cowan's and Deputy MacBride's right to inquire for the precedent.

It is very proper that they should do so and very proper that the legal aspect of this should be looked into, but by way of counter-balance I am stressing the other aspect. On thataspect, we can very properly take the heads of these sections and ask ourselves whether it is unreasonable under active service conditions, where fighting is in progress or liable to take place at any moment, to prescribe the duty and responsibility which this section prescribes for commanding officers and thereafter the penalty for failure in that duty and responsibility. Take (a). If an officer when under orders to carry out an operation of war fails—be he corporal or general—to carry out his part in the action with the utmost exertion the whole action on the part of his unit or formation may fail. Apart from the danger to the State, there is going to be serious loss of life to some other unit, if not his own, and in addition morale is going to suffer. There is the old music-hall example—I am not applying it to this country—of the London policeman who walked to the other end of his beat when he got an idea that something was happening. That mentality can creep in very easily where physical stress is involved, and if an officer fails " in his utmost exertion " it is a failure in duty. Then (b), encouraging officers and men to fight courageously—what can you expect of a unit if the commanding officer does not himself, in his own person, by his own personal leadership, give a lead to his men ? It is not sufficient for him to put himself in the position of his subordinates. He must do something more. That is the privilege and the responsibility of his rank. Thirdly (c), relating to surrender. I always thought that for anybody to surrender improperly was a capital crime, and surely if a commander surrenders it is a much more heinous offence than that of the private soldier who puts up his hands and says " Kamarad ". Paragraph (d) refers to an officer improperly withdrawing from an action. Anybody who thinks of what is involved in a military action will immediately see that any unit which improperly or weakly withdraws can have most serious consequences for the whole formation.

It is tantamount to disobeying orders. If he does it improperly, he is not doing it in accordance with his orders. That is indiscipline and criminal indiscipline. Paragraph(e)—improperly fails to pursue an enemy or to consolidate a position. That is criminal negligence for which many people would have to pay. Paragraph (f) relates to an officer who improperly fails to relieve or assist a known friend to the utmost of his power. There again the whole question of co-operation morale and integrated working of a military organisation in action comes in. Paragraph (g), dealing with an officer who improperly forsakes his station, needs no comment. I have tried to put this a little vehemently for the reason that we are dealing with active service conditions and cannot afford to be too finicky. Deputy Cowan has said that it is a new principle of law. In the last analysis, even though you define law pretty well, there is always an element of opinion in finding out whether a man is guilty or not guilty of an offence and in the stress of active service we cannot afford to be too pernickety about these things. There is this counter-principle and this is a principle of law and discipline ; is it not much better to provide a legal framework which can be kept to in the spirit and then have a system, although a flexible system, in force in active service conditions than to provide a rigid system which will not work and because it will not work in the brutal conditions of war will be thrown aside and the situation dealt with by the autocratic rule of the commander. The analogy in civil life is that if you have a law which is not workable in a particular situation, either of two things will happen—either the law will be completely forgotten or it will be abused. That happened in America. The law in regard to homicide evidence and such matters was such that when the gangsters went riot the police were incapable of dealing with them on a legal basis between all the attorneys.

Captain Cowan

Which gangsters—the legal fellows or the fellows outside the law ?

Chairman

The gunmen back in the thirties who ran riot. The police could not do anything within the legal framework, so they brought the Thompsons out and the police werethen in the position that they were shooting people and that it was far better to shoot them than to bring them to trial. That is an extremely dangerous siuation to bring about, and it is better, in regard to a military force, to have a framework of law which you can operate and to which a court-martial and officers can keep in the spirit—and can be pinned down to it to some extent—than to prescribe a system which is impossible of application in the particular circumstances in which it might be applied. I am all with Deputy Cowan when it is a matter of peace-time, but if you prescribe something too rigid and not flexible enough, the exigencies of the situation will demand the autocratic rule of the opinion of a commanding officer. For that reason, I think the Minister, if there is a precedent, might inform Deputy Cowan and Deputy MacBride what that precedent is.

Mr. Traynor

I mentioned that we had studied the Acts of practically every country. In the main, this section is based on a Canadian Act.

Captain Cowan

I thought so.

Mr. Traynor

And the Canadians, like the British and ourselves, were working on the 1881 Act. They have gone through two wars and they are a young modern nation. Perhaps, because they are so, they are no longer satisfied with the provisions of the 1881 Act and, as a result of the vast experience they have gained from two wars, they have now apparently set about revising their legislation. Our authorities, looking, as they naturally would look, for the best—and I should say that this section has military approval—have decided that this is suited to their requirements.

Mr. Davern

I think the dominating factor in war is that the devil behind you is worse than the devil in front of you, and I believe that provisions of this type, in view of that dominating factor, are certainly an incentive to fight. That has been my personal experience. This is one of the sections that should remain. I hope the necessity to operate it will never arise, but it is an incentive to our soldiers to fight if the occasion should arise.

Mr. MacBride

I am always reluctant to agree to any measure which involves capital punishment because I think that capital punishment in itself is undesirable for a great many reasons. However, war is barbaric, primitive and cruel, and the mere fact that we are here considering a Defence Bill is an acknowledgment of the fact that we recognise that we may have to engage in a barbaric and cruel method of defending ourselves. I think this is probably one of the few cases where in a barbaric form of occupation or engagement we have to recognise that capital punishment becomes inevitable. I am indebted to the Minister for telling us that the precedent for most of this section comes from the Canadian Act. That relieves my mind considerably, but I should have liked—I do not propose to stress the point—to have the actual provision available to us.

Captain Cowan

It is the Canadian section, word for word. I will bet on that.

Mr. MacBride

It may be, but the difficulty is that if you take one provision from an Act of any country without taking the Act as a whole, you may have an undesirable position resulting. As a lawyer, the thing that worries me about this section is that it does not seem to draw any distinction between four different categories of acts into which the various offences set out are capable of division. An officer can easily make an honest, bona fide error of judgment. For instance, in relation to (f) he might make an error of judgment and decide not to assist a known friend in a given set of circumstances. He might think that it might endanger some other portion of the engagement in which he was partaking.

Chairman

The word " improperly " is there.

Mr. MacBride

I think a distinction should be drawn between these four different categories. The second category I would suggest is that of an officer who may be negligent in doing an act and there the word " improperly " would cover negligence. For instance, through sleeping too longhe might fail to decide that he should have taken a certain action.

Captain Cowan

He might be appointed to a position for which he was not fit and should never have been in.

Mr. MacBride

It might occur through negligence and negligence would hardly merit the death penalty. The third category is one in which probably the death penalty would be necessary —cowardice. But even cowardice can be sub-divided—active cowardice and just timidity, so to speak. The fourth one, of course, is treachery which would also deserve the death penalty.

I do not know if it would be possible in the framework of this chapter to put in a section to cover cases of an offence committed on account of an honest error of judgment or on account of negligence not amounting to criminal negligence. If it were possible to embody a section of that kind in this chapter, it might relieve a great many difficulties in regard to some of the other sections. I appreciate very much the points Deputy Cowan has made, but I think the question of " improperly " being too vague is not possibly as water-tight as it sounds at first. If you go through the whole code of criminal law you find such expressions as " wrongfully,"" unreasonably," and " without just cause or excuse." A fundamental distinction should be drawn as to whether the thing is done through an error of judgment or through some illegal motive such as treachery or cowardice.

Captain Cowan

I am not being squeamish about this. I believe there are circumstances in which the death penalty is the only penalty, particularly in regard to a military force on active service. Section 32 of the old Act was, in my opinion, all-embracing and adequate. It stood the test in the British Forces — and after all, we operate everything according to the British law, as we approach things in the same way. For almost 100 years this section existed in the British Army Act. It existed over two world wars without alteration. It has existed here for 30 years and, thanks be to God, we neverhad to use it. Every conceivable point is covered. Britain has always been at war in one way or another and yet they never considered it necessary to go to Parliament to have the section altered. If they went into Parliament with this section here, it would never go through, as the British have an extraordinarily correct conception of the rights of an individual.

May I remark in passing that I do not think a lieutenant could be charged under this section, as paragraph (a) refers to " the officers and men under his command." That would be interpreted to mean someone who had " officers and men."

Mr. Traynor

He would nevertheless be in charge of men.

Captain Cowan

It says " officers and men ". However, that would be a legal argument. If a person does an act or is guilty of neglect with treacherous intent, then I say certainly he ought to be dealt with drastically. The old section in the 1923 Act provided for cases where he " unjustifiably surrenders ". " Unjustifiably " is a very strong word, much stronger than " improperly ".

Mr. Traynor

" Improperly " means without authority.

Captain Cowan

I have defended people charged with " improperly " doing things and it is the widest thing in the world—improperly taking a bottle of stout while driving an Army car.

Mr. Traynor

How can a man " improperly " take a bottle of stout?

Captain Cowan

The court-martial found him guilty of doing it—" improperly " taking it, when he was going from Cork to Limerick in an Army car. The drinking of the stout was not covered by Regulations, it was not expressly permitted by Regulations. Therefore it was improper. I was as much annoyed as the Minister appears to be about it.

Mr. Traynor

Surely he was charged with a breach of the Regulations, not with " improperly " doing this?

Captain Cowan

He was charged under the old Section 68 with conduct to the prejudice in improperly drinking the stout. Here is another clause in the old Act:—

" The offence of misbehaving or inducing others to misbehave before the enemy in such a way as to show cowardice."

In every section of the old Act there was some provision as to doing a thing " unjustifiably " or " treacherously " or through cowardice, or voluntarily aiding the enemy or assisting the enemy or " knowingly " doing an act calculated to imperil the success of an action. In all cases there was a protection for the officer or soldier and he had to be proved guilty according to law. I agree with the Chairman that war is brutal; I agree with Deputy MacBride that it is barbaric and cruel; but that does not entitled you to shoot your own comrades, unless there is good reason and correct lawful authority for it. In this State, we have not a conscript Army.

Every person who joins the Defence Forces either in peace or in war does so voluntarily. He ought to have the protection of this Act so that his life cannot be taken away from him unless he does something wrong deliberately or with evil intent.

In matters affecting life and death I have no regard for innovations that make it easier to take away a man's life. This is an innovation and in my opinion a dangerous innovation. I do not think it is right that when we are preparing a military Act, after 30 years of experience, it should happen simply that because someone picks up a Canadian Act and sees that section in it that he should have it inserted as a grand section into our Act. And that is what happens. Some one individual slips it in.

Mr. Traynor

The Deputy does not believe that. He should not say it.

Captain Cowan

I do say it. Let me finish. I am only talking about what happens. One officer reads the Canadian Act and sees this section and says " this is a grand section ". He then has it typed and puts it into thedraft. The military officers may see it and they may ask where it came from. If they do they are told it came from the Canadian Act and they accept it as a matter of course. Then the Minister is very strongly advised, when I oppose the section, on the lines on which he has spoken to this Committee to-day, that it is good and reasonable that this section should be accepted. But the necessity for this did not become apparent from any experience of our own. No person with experience of the deficiencies of our Act has found this necessary. Some one simply saw a precedent in a Canadian Act and said it would be good to bring it into our Act and it is in that way that it reaches us.

If you are going to operate that provision, " that he did not use the utmost exertion to bring the officers or men under his command into action ", what is likely to happen? A senior commander who is negligent or incompetent or inefficient and who has under him a brigade commander or battalion commander may decide: " I will defend myself from suspicion of incompetence by arresting the brigade or battalion commander for not using his utmost exertion or for improperly failing to assist a known friend."

Mr. Traynor

Could he not do all this under the 1923 Act?

Captain Cowan

Under the 1923 Act the words were so specific that he could not be convicted, unless it was proved that he was guilty of some deliberate intent in regard to it. As this stands, you would only have to get the five officers of a court-martial—probably three in the case of active service—to say that he did not use his utmost exertion. It is too serious to introduce novelties into an Act just because some officer in the Defence Forces—some legal officer, to put it bluntly, not a line officer—has read the Canadian Act and thinks it wise to put this in. I am saying that deliberately, because no officer commanding a command or commanding troops, or with any experience of handling them, would have thought of putting in such a section as this. That is why I amopposed to it. To put it in where our Defence Force is not conscript, but composed of volunteers, all volunteering to fight for the State, is a danger and a menace to them. I have been thinking of the sort of discipline that Kubla Khan exercised, shooting his own officers. That is what this provides for, not fighting the enemy, but shooting our own officers, who can be shot for the purpose of protecting authority.

Mr. Hilliard

This provides for extreme cases. I do not believe commanding officers would go to the limits outlined by Deputy Cowan, if ever in action, to shove the blame on to a subordinate officer. Neither do I think it will be used as extensively as he thinks. The provisions will be used as they should be used, and it is only in extreme cases that they will be used at all, in my opinion.

Mr. Davern

It is a deterrent, on the one hand, and an incentive from the other point of view.

Mr. Colley

I do not think there could be any objection in principle to matters like this in time of war. I take it that it is new, in that it defines these things in connection with officers. There cannot be any objection to that, whatever about the legal sense of the use of the words. This section could possibly be a protection to any officer, instead of being the other way. It set the matters out specifically, instead of in the more general way under the old Act. Certain things are set out as being the duty of an officer in action.

I cannot see any objection to the principle. As regards the words used, particularly the word " improperly," surely there will be brother officers there who will have had some experience of what happened and who will understand that an officer may have had good sound reason to use his discretion to save his men, or who will understand that his reason is not a sufficient reason why other units in the Army should have been exposed, perhaps to annihilation, through his action. It will be for them, with their special military knowledge of the position, to deal with it. I do not think for a minute that any of them is goingto shoot a brother officer without justification or put any punishment on him. Apart from whatever the legal people may say as to the ultimate use of words here—of which I am not competent to judge—I think the section is quite all right.

Chairman

My view is that we have to look at this as soldiers when you come to this situation, not as lawyers. The lawyers have to take a back seat when it comes to war because, fundamentally, it is going to be a question of the exigencies of the situation, on the one hand, and justice is going to depend on the inherent sense of fair play of the superiors administering it, coupled with the psychological sanction of behaving properly and maintaining the morale of their own men. This is a situation, in other words, where, as I have said, the lawyers have to take a back seat. We have to look at it from the point of view of the soldier. Fair play is as important as in peace time, and the psychological necessity for discipline, co-operation, keeping up the morale of your own troops, and so forth, is a stronger sanction and protection for the individual than any legal formulation. The trouble about legal formulations is that it is too easy to get off the guilty under them on a technicality and, no matter how careful you are, very often they are too wide to give absolute protection to the innocent. That has always been a difficulty in peace time. In war conditions it is absolutely impossible.

Although I do not want to minimise for a moment the correct approach of Deputy Cowan and Deputy MacBride to this—as a lawyer I suppose I would sympathise with it—I feel that we must look at it as soldiers. We have got to the stage where one has to look at it on the basis of hard facts. I would suggest to Deputy Cowan, the principle being all right, it is futile to go into nice formalities in regard to words and, since there is nothing new in principle—beyond the fact that there is some definition of a commanding officer's more serious responsibility than the responsibility of every member subject to military law, there is nothing very new in this—personally, I think the Minister should have thesection. If I were a commanding officer—here I beg to differ from my friend, Deputy Cowan, on this and he has had more experience of military forces than I have had—if I were a commanding officer and had command of troops, I would think it would be highly desirable that that section should be there.

Mr. Traynor

We are discussing this as if there was no option for the court-martial but to sentence a man to death. The death penalty is the maximum penalty. There are a number of other sentences which can be imposed. In the course of the discussion Deputy Cowan referred to the possibility of an officer committing an error of judgment. An error of judgment would be as obvious to people observing an action as an act of cowardice would be and you would find, if it came to an investigation, that even though some people might misinterpret the position, there would be plenty of others who would say it was an error of judgment and nothing else. The main protection is that it the man's own comrades who would be judging as to whether an act of cowardice or any of the other offences that are outlined in the Bill had been committed. If we ourselves were dealing with a case of a man whose life was likely to be forfeited as a result of our judgment, there is not one of us who would not sift down to the last possible piece of evidence before recommending that the maximum penalty should be imposed. An officer's own colleagues would be as just as we would in that respect. I would be inclined to say that our leanings would be towards saving the officer's life and, even if there were an act of cowardice, to impose one of the lesser penalties.

Captain Cowan

My approach to this section and to all sections in regard to punishment is neither that of a soldier nor that of a lawyer. I approach this as a member of the Legislature who has fundamental conceptions of justice and of the rights of an individual. That is the basis of my approach. I am not concerned with the maximum punishment. The maximum punishment is death. That is not the important thing.

The important thing is the conviction. If an officer were convicted of not using his utmost exertion, it might not matter at that stage to him whether he was put to penal servitude or imprisonment, or simply discharged with ignominy from the Force. An officer so convicted would probably prefer to be brought out and put against the wall and shot. It is the conviction that is the important thing here, not the punishment. I want the Committee to realise that. It is to prevent grave injustice being done to an individual by the wording in this section, which I consider too loose, that I am making the case. It would be different if the Minister were to say to me and to the Committee : " All right, I will redraft the section to provide that, where a thing is done wilfully, knowingly, or treacherously, I can have these powers." It is too drastic to put in simply, " where he does not use his utmost exertion to bring the officers and men under his command into action ". If the Minister could come to us and say: " Our experience has been that we want this power, that the power we had in the old Act was inadequate; that we want it; that not only do we want it, but the British people, who had millions of soldiers under arms in the last 50 years, have decided to make that change. We think they were wise in making that change. We would like to follow them. There were reasons for it. There were these examples where the old Act was inadequate. There is grave necessity to do it," I would be satisfied. That does not arise here. What does arise is that a particular individual reads the Canadian Act, gets a section like that and says it would be a good thing to put that in. That is tampering too much with rights. If an officer did anything wrong, under Section 32 of the 1923 Act, there is ample power for dealing with it. The Minister has read out the section. Sub-section (1) of that section reads:—

" The offence of unjustifiably surrendering, yielding or abandoning any garrison, guard, place, post or position which it was his duty to defend;"

If the Minister wants to put in the word " ship " there, I would say that that is perfectly right. I would agree with that whole section word for word and it provides for death. I think the officer has protection under that section. I think he is in too much danger under this new section and that there is something now brought in that has no basis in our conception of criminal law. This is criminal law that we are laying down, although it is in a military Act. This is a new offence we are creating. We are Ireland. What is Canada ? There is a French section in Canada. There is a British section; there is an American section. There is quite a number of people in Canada who speak French. The Canadians may have discovered in the first world war that, because of their racial differences, they needed something like this. I would like to have the time to check with the Canadian authorities—and I will check with the Canadian representative here—as to when they introduced this offence; why they put this section in; why they altered the old law and what grounds they had for it. It may be that it may have something to do with the racial set-up in Canada. That may be the position.

Chairman

I think what Deputy Cowan has said is not to be treated in any way as trivial or non ad rem, but can we still avoid the issue on the principle that I have tried to define? What is in this section seems to be eminently suitable for that situation. I think it is necessary. That is my own judgment. I can see certain dangers that Deputy Cowan has adverted to and they are not to be brushed aside but my answer to that is that, when all is said and done, in the stress of war you are going to be back ultimately on personal assessment, the sense of fair play, and the psychological factors that I have referred to. It is futile, in my opinion, to attempt a tight legal drafting. It is the spirit of the thing that matters. You cannot go any further in the drafting to define the spirit than the Minister does without erring too much on one side or the other.

For these reasons, with all duedeference to what Deputy Cowan has said, I would differ from him on this occasion. I have been asked by Deputy MacBride, who has just left as he had to attend an all-party conference on Partition, to suggest to the Minister a qualification. He has passed me a note in which he suggests that the Minister might meet the case this way, with a proviso :—

" The death penalty shall not be imposed in any case where the court-martial finds that the offence charged was committed owing to an honest error of judgment on the part of the officer charged."

I am putting that to the Minister, but I will take this opportunity to make my own comments on it. My own comments are these : First of all, Deputy Cowan has made a cogent point that it is the conviction that matters, not the penalty. So, I do not think that proviso really meets it. Secondly, the use of the words " honest error of judgment " just shows the futility of attempting a legal definition of that sort. What is going to decide what is an honest error of judgment in all the circumstances ? It is going to be the opinion of the officers considering the matter, and it is going to be, again, back to the exigencies of the situation, the sense of comradeship, fair play, the necessity for maintaining the morale and discipline of your own troops, and all these human factors which, in the last analysis are the greatest and the only safeguards the subordinate has in those situations.

I am not forgetting Deputy Cowan's rather important point with reference to the possibility of human temptation where the higher man who is in trouble may pass the buck to the lower. It is for that reason, without in any way minimising the case made against the section, that I would urge the Committee not only to support the section but to give it to the Minister.

I said that I was looking at this from the point of view of the soldier. Yes, because it is from the point of view of the soldier who must perform his task efficiently that we, as Deputies, must face the problem.

Mr. Traynor

Before you put thequestion I would like to refer to what Deputy Cowan has said about a legal officer. He has implied that a legal officer has forced this clause into the Bill for some reason of his own, perhaps because he likes the Canadian Act or something else better than the British Act. I do not know what his reason was but this was considered by the General Staff and no legal officer has any more responsibility for the form of the section than any of the other officers who sat down and examined it as it was examined—that is, very carefully and with great consideration. I would like to put that on record.

Captain Cowan

I would like also to put on record that if the General Staff, and particularly the Adjutant-General's branch of the Department of Defence, came to the conclusion that a section such as this was necessary because of their experience, because of inadequacies in the operation of the previous Act, I could understand that, but what happens ? When I mentioned a legal officer I did not mention a particular legal officer but just a legal officer who reads the Canadian Act when this Bill is being prepared and sees this section; he says " this is a grand section " and puts it in. It comes before the General Staff and they read it. They are not so much concerned with the principles of liberty and individual rights as Parliament or a Deputy who is elected to make laws. They just look at the heading: " Capital Offences by Commanders when in Action." They says that looks all right and that is how the section comes into this Bill—not deliberately because of some real necessity but because somebody just drafts it and puts it in as a grand idea.

Mr. Traynor

Because somebody tries to foresee the future.

Captain Cowan

No, not a thing does he foresee. He just sees what is written in a Canadian Act, the circumstances of which, as Deputy MacBride and I said, have no application at all to this country. If the Minister would meet me by going so far as to say that instead of a section like this which contains a new principle : that if a mandoes not use his utmost exertion he must die—which is unknown to our concept of law—he would say that if a man commits any of the offences set out in the section treacherously, wilfully and knowingly he must die, then I would be satisfied. The bald statement, " if he does not use his utmost exertion " could be a cause of argument for years and, in fact, it is causing argument.

Mr. Traynor

Would it not be just as much a cause of argument to have to prove that a man did something wilfully?

Captain Cowan

No, that is something which you must prove positively in a court-martial. The court-martial must be satisfied by law, by evidence, that he did it wilfully. If there is any doubt he must be given the benefit of the doubt and acquitted.

Chairman

In either case the war would be over before the argument was concluded.

Captain Cowan

The question whether he used his utmost exertion is a matter of personal opinion between one commander and another, and very rough language could be used between two of them about that.

Chairman

And about the other too.

Captain Cowan

No, not if you have to prove that he did it wilfully, knowingly or treacherously. Nobody could have him convicted unless he did it wilfully, knowingly or treacherously, and that is why I want the Minister to put those positive and clear words in the section.

Mr. Brennan

You would need to be in a position to interpret the individual officer's mind.

Captain Cowan

No, do not forget that there are a whole lot of other sections which provide that things must be done knowingly, wilfully and treacherously.

Chairman

The answer is that there is a higher, more serious responsibility on an officer in a commandingposition. However, we have discussed this very thoroughly, and I think we should come to a decision.

Captain Cowan

I want the Minister to realise that this is not just a petty point. It is of tremendous importance, of such importance that I will not cease my fight simply because I am defeated by the Committee. I think I have put my case as strongly as I could to the Committee, and I would be wasting time by repeating myself.

Mr. Brennan

Is the basis of your argument that a man may suffer the supreme penalty on circumstantial evidence ?

Chairman

It will be that, anyway.

Captain Cowan

Circumstantial evidence is often stronger and better than direct evidence.

Chairman

We are going to get into a discussion on the law of evidence.

Mr. Brennan

The officer is charged on his actual actions in a particular engagement.

Chairman

I would suggest that Deputies should imagine what the actual hard brutal facts of the situation are likely to be. That would bring us to a decision.

Mr. Brennan

In his opening statement Deputy Cowan drew an analogy with the case of an officer who through some mental or other defect might be guilty of any of the offences. On the face of it his action proves that he is guilty, but when it comes to a court-martial will the officer in charge of the court-martial not take into account the circumstances which had this critical effect on that individual officer at the time when he was supposedly guilty of this action ?

Captain Cowan

In the first world war hundreds of soldiers were shot and it was discovered when the war was over that they were wrongly shot.

Mr. Traynor

How were they shot? How did the British:——

Captain Cowan

I did not say the British.

Chairman

That proves the case. Mere legal verbal objections——

Mr. Brennan

I am afraid—with all due respects to Deputy Cowan—that neither he nor Deputy MacBride nor the Chairman can get away from the legal aspect of matters like this. The lay people are left outside. All we can give is our views of matters as they strike us as laymen.

Mr. Hilliard

That is what we want.

Captain Cowan

I think that the Chairman will agree—I hope he will—that, looking at the whole history of the fight for individual rights and freedom, one sees that it has always been fought and won by lawyers.

Chairman

Not always to the benefit of the community.

Captain Cowan

I do not mean court cases at all. It was mainly lawyers and some other people with the same fundamental conceptions of justice who fought for and established individual freedom over all the ages.

Chairman

Lawyers will have many things to answer for on the Last Day. I say that as a lawyer. However, I will have to bring the Committee back to order. We have discussed this very much. We are dealing in this part of the Bill with a situation where the pen is completely impotent in the face of the sword. If Deputy Cowan feels that we have discussed the matter enough, I certainly feel that we have. If, however, he wants to ask the Minister some further questions before we close the debate, I will give him the opportunity to do so.

Captain Cowan

Having fought such a fight, naturally I must have a Division recorded, but, irrespective of the results of the Division, I would appeal to the Minister before the next stage to put in the words, " wilfully, knowingly and treacherously ", thus bringing the section within our conception—at least what I think is our conception—of law.

Question put.

The Committee divided: Tá. 5; Níl, 1.

Tá.

• Minister for Defence.
• Brennan, Thomas.
• Colley, Harry.
• Davern, Michael J.
• Hilliard, Michael.

Níl

• Cowan, Peadar.

Question declared carried.