The History of Criminal Procedure in Wartime

“Criminal procedure” means the entire range of activities associated with bringing a criminal defendant to trial. It begins with investigation by the police, including searches of houses, cars, and so on, and lineups and photo displays of potential suspects; it proceeds through arrest, interrogation, arraignment, preliminary hearing, indictment by grand jury, trial, sentencing, appeal, and collateral challenges to conviction. The “criminal procedure revolution” refers to a series of constitutional decisions by the United States Supreme Court during the 1960s that “revolutionized” the criminal procedures of the states.

For example, the Court required that unconstitutionally seized evidence must be excluded from state criminal trials, that police must warn criminal suspects of their constitutional rights before interrogating them (the Miranda warnings), and that indigent defendants must be given free counsel at any criminal trial that might lead to a prison sentence. For some thirty-four years, in the high summer of Victorian liberalism, even Ireland was governed without the use of detention.

The First World War ended that high summer, and executive detention was revived in 1915 by Regulation 14B of the wartime Defence of the Realm Act (DORA) regulations, and established throughout the United Kingdom. It persisted for nearly eight years, nearly twice as long as the hostility with Germany, for the war was prolonged by legislation until 31 August 1921. Even after that, for the power had been extended, as we shall see, by the Restoration of Order in Ireland Act (ROIA) of 1920, detention continued.

Orders were still being executed in mainland Britain as late as 1923. Official experience in the use of detention between 1915 and 1923 provided the model followed in the Second World War. There was no general breakdown in criminal proceedings during this period, except in Ireland. The use of detention was based on the more radically authoritarian belief that in a time of national emergency the executive ought not to be prevented by the requirements of regular criminal procedure from taking precautionary action against dangerous persons.

In both 1871 and 1882 executive detention had been openly and directly introduced by controversial Parliamentary legislation. But Regulation 14B was introduced in a much less straightforward way, as but one aspect of a general scheme of wartime government, ‘a form of statutory martial law’, created by delegated legislation. This scheme derived from a bill drafted in 1888 by the military. In earlier times there had been no bureaucracy to make advance plans for the conduct of war; now there existed both a professional Civil Service and a military general staff.

Both conceived of forward planning as their function, and, during the period of heightened tension which preceded the war, a subcommittee of the Committee of Imperial Defence had considered what special powers, if any, would be needed in the event of war. One view was none: the executive and military could rely simply upon the common law, or the prerogative, to take action necessary for the public safety, and later paper over any cracks by an Act of Indemnity.

But what might be done at common law, or under the prerogative, was obscure: martial law had not been used in England since the eighteenth century, and its use would certainly be politically sensitive. Everyone concerned knew of the violent controversies, not so long before, over Governor Eyre’s suppression of a supposed insurrection in Jamaica; Governor Eyre had relied upon martial law, and lived to regret it. Hence the military strongly favored a code of emergency regulations, spelling out powers precisely; the model here again was Ireland, in particular an Irish Act of 1833.

This view, though rejected as late as June 1914, prevailed. The scheme adopted did not involve Parliamentary legislation which directly conferred specific emergency powers. The regulations would become law through Orders in Council, authorized by a parent Act of Parliament, which would confer upon the executive a wide power to legislate in this way. So a code was prepared, and a hurriedly drafted parent Defence of the Realm Bill was rushed through Parliament on 8 August 1914, and a second on 28 August.

19 Apparently it was feared that these Acts merely clarified existing executive powers, without conferring new ones, but the Defence of the Realm (Consolidation Act) of 27 November 1914 dispelled this fear. 20 It declared that ‘His Majesty in Council has power during the continuance of the present war to issue regulations for securing the public safety and defence of the realm, and as to the powers and duties for that purpose of the Admiralty and Army Council.

‘ In effect the Defence of the Realm Acts 1914-1915 radically altered the British constitution for the duration of the emergency; the executive became the legislature, and Parliament declined into a relatively unimportant sounding board for public opinion. The regulations made dramatic inroads into established liberties; the DORA of 27 November 1914, for example, made it possible to try any citizen by court martial for the more serious DORA offences, even capital offences, though the right to jury trial was in general restored by a DORA Amendment Act of March 1915.

In 1925, when it was all over, Sir Edward Troup, who was Permanent Under-Secretary of State in the Home Office from 1908 to 1922, wrote approvingly about the DORA system: These regulations were, after all danger was over, subjected to a good deal of undeserved criticism; but while the war lasted they were essential to its successful prosecution. They took the place of legislation with the immense advantage that they could be altered from day to day as new demands arose, new difficulties had to be met, and new modes of evasion were detected.

The ‘immense advantage’ was obtained at the expense of the ideal of the rule of law, for laws which can be altered from day to day lack that stability which the ideal requires. The law, here manifested as DORA, paradoxically erodes the rule of law, and Troup’s enthusiasm marks a declining commitment to that ideal. It also reflects approval of a decline in the status of both Parliament and the courts.

For the war occasioned a massive transfer of power to the new Civil Service, of which Troup was a distinguished member; with this professionalization of government older institutions, such as Parliament and the courts, came to play a lesser role. In both 1871 and 1882 executive detention had been openly and directly introduced by controversial Parliamentary legislation. But Regulation 14B was introduced in a much less straightforward way, as but one aspect of a general scheme of wartime government, ‘a form of statutory martial law’, created by delegated legislation.

This scheme derived from a bill drafted in 1888 by the military. In earlier times there had been no bureaucracy to make advance plans for the conduct of war; now there existed both a professional Civil Service and a military general staff. Both conceived of forward planning as their function, and, during the period of heightened tension which preceded the war, a subcommittee of the Committee of Imperial Defence had considered what special powers, if any, would be needed in the event of war.

One view was none: the executive and military could rely simply upon the common law, or the prerogative, to take action necessary for the public safety, and later paper over any cracks by an Act of Indemnity. But what might be done at common law, or under the prerogative, was obscure: martial law had not been used in England since the eighteenth century, and its use would certainly be politically sensitive. It is the business of security services in wartime to catch spies, and in the early part of the war MI5 gave the appearance of being very unsuccessful, since it had caught hardly any.

We now know that there were hardly any to catch, but this was not obvious at the time, and the penetration of the fleet anchorage at Scapa Flow by Gunther Prien in October, though now thought to have had nothing to do with spies, must have suggested that MI5 had signally failed to perform its principal function. But late in 1939 MI5 contrived to discover the existence of a spy ring of devilish ingenuity, for its members employed as cover perfectly regular businesses, which had legitimate access to government departments and, most critically of all, to naval bases, including Scapa.

It comprised two groups of companies managed by persons of German ancestry. One, known as the Mercedes Group, which included a marketing firm, Block and Anderson, supplied typewriters, and duplicating and calculating machines to government departments. The other, principally involving Concrete Pumps Ltd. , supplied pumps to defence installations, including those at Scapa. There was no evidence either of illicit collection of information, or of improper foreign contacts. But the beauty of the scheme was that in the nature of things there was unlikely to be any.

At the point of collection the activities were perfectly legitimate, and illicit foreign contacts were easy to conceal in legitimate contacts, for example over the use of patents.

References:

International Tribunal for the Prosecution of Persons responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. (1996). Kalinauskas, M. (2002). The Use of International Military Force in Arresting War Criminals: The Lessons of the International Criminal Tribunal for the Former Yugoslavia. University of Kansas Law Review. 50, 383-429. Rossi, C.R. (2008).

The war crimes symposium. Transnational law & contemporary problems, v. 17, no. 1. Iowa City, Iowa: University of Iowa College of Law. Sabol, W. J. (1988). Models of judicial decision making and the post-Second World War growth of the prison population in England and Wales. Thesis (Ph. D. )–University of Pittsburgh, 1988. Sobchak, N. J. (1989). The aftermath of Nuremberg.. the problems of suspected war criminals in America. New York Law School Journal of Human Rights. -. 62, 425-468. A Decade of sentencing guidelines: Revisiting the role of the legislature. (1993). Wake Forest Law Review.