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Sentenced Soldier, Germany

Volume 476: debated on Wednesday 28 June 1950

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With your permission, Mr. Speaker, and that of the House, I should like to make a statement on the case of Private Linsell.

Private Linsell was tried by General Court Martial on a charge alleging that he murdered Robert William Reith, a German policeman, on the night of 31st March. He pleaded not guilty, was found guilty and was sentenced to death. The court added a recommendation to mercy on the ground that he did not receive the supervision in respect of his duties which he was entitled to receive from his superiors.

The decision whether or not to confirm the findings and sentence of the court was one for the Commander-in-Chief, British Army of the Rhine. After careful scrutiny of the court martial proceedings, and of a petition submitted by the accused, General Keightley concluded that a conviction for murder would be an injustice to the accused. He therefore refused confirmation, with the effect that Private Linsell has been released.

As hon. Members will be aware, a copy of the court martial proceedings is now available in the Library of the House: another copy has been made available to members of the Upper House and a third copy to Lobby correspondents. I have arranged for this in view of the unusual circumstances of the case, but I must point out that the effect of refusal of confirmation is to annul the whole trial, and hat the proceedings have no legal validity.

Nevertheless, in view of widespread misunderstandings as to the circumstances in which the fatal shots were fired, I would like to call attention to certain broad facts which appear to have emerged in court. I think that hon. Members will agree that an impression has arisen in the public mind that this is a case of a sentry who saw a suspicious character approaching his post, duly challenged, when his challenges were not obeyed, carried out his orders by opening fire, and yet was convicted of murder by a court martial for having done so.

It is most important, in the interests of the Army, that this completely erroneous impression should be removed. When they come to read the proceedings, hon. Members will see that in fact the evidence adduced in court appears to show that Private Linsell had entered a café or cafés with the deceased and spent some time with him both there and in the cookhouse at the medical reception station. The deceased and another German policeman later appear to have created some kind of disturbance which Private Linsell went to investigate. Immediately before his death the deceased had entered a motor van and was about to leave the neighbourhood of the medical reception station which Private Linsell was guarding. Private Linsell got on the running board of the van and told it to return to the medical reception station. The evidence further shows that Private Linsell either fell or was pushed off or jumped off the van, when it reached the medical reception station. Private Linsell stated that he shouted after the van to stop it; when it did not do so, he fired five shots after it, killing the deceased.

I must warn the House that much of the evidence is conflicting as to the exact sequence of events, but I think that they will satisfy themselves, as the court was evidently satisfied, that there was no question of Private Linsell challenging someone who was approaching his post in a suspicious manner, failing to receive a response, and carrying out his orders by firing.

I turn to the question of the orders given to Private Linsell. Private Linsell was a member of an armed guard at the medical reception station. There is no doubt that this guard had been given inadequate instructions. The supervision of the guard also left much to be desired. These aspects of the case are being dealt with by the Commander-in-Chief, British Army of the Rhine.

I think, however, that hon. Members when they read the proceedings of the court martial will conclude that the court was satisfied that the fatal shots were not fired in obedience to any order which Private Linsell had received, and that in particular, the court appears to accept the contention of the prosecution that the regimental orders of the Black Watch, which instruct sentries to shoot to kill persons who are acting suspiciously, and who refuse to obey a second challege, could not cover the actions of Private Linsell.

Nevertheless, I have welcomed General Keightley's assurance that he is taking immediate steps to see that all sentries in his Command are given clear and definite orders and that these orders are appropriate to the circumstances of their post. The question of what security orders should be issued in any particular theatre is left to the discretion of the Commander-in-Chief who is in the best position to judge what action is necessary to meet any set of circumstances. I am therefore calling the attention of all Commanders-in-Chief to the importance of ensuring that all sentries have clear and appropriate orders.

Finally, I would like to refer once again to the allegations of unjustified delay in this case. Private Linsell was sentenced by the court on 25th May. On 10th June, 16 days later, it was announced by the Commander-in-Chief, British Army of the Rhine, that the sentence, if confirmed, would be commuted. Meanwhile the Commander-in-Chief postponed his final decision on confirmation, at the request of Private Linsell's legal adviser, until after a petition on Private Linsell's behalf could be prepared and forwarded to him. This petition reached the Commander-in-Chief on 19th June, and his decision not to confirm was announced on 22nd June.

Confirmation or otherwise of proceedings of military courts martial corresponds in some respects to the decision of an appeal court in civil proceedings, with the important differences that review by the confirming authority is automatic and does not depend upon the submission of an appeal, and that the proceedings of a court martial have no legal validity unless and until they are confirmed. Even allowing for the delay caused by awaiting the defendant's petition, the time from the sentence to final refusal of confirmation was 28 days. This does not compare unfavourably with similar periods under the civil appeal procedure. There was an additional factor, referred to above, that the total period for which the accused stood in peril of the death sentence was 16 days, considerably less than the comparable period of uncertainty pending the decision of an appeal court in similar civil cases.

As this appears to be the first occasion on which this House and the public have had access to the actual proceedings and to some of the evidence, with consequent misconceptions in the public mind as to what actually happened in this case, may I ask my right hon. Friend whether access to the court was given to the Press in Germany when this trial took place, and whether it is the general procedure that, except in very rare cases, courts martial are open to the public Press?

I am obliged to my right hon. Friend for that question. Yes, the courts martial proceedings were fully open to the public as a whole.

Is the right hon. Gentleman aware that one reason for the non-confirmation of the death sentence in this case was that—and I quote from an official document—other aspects arose in the proceedings which might, in the view of the Commander-in-Chief, have influenced the court's decision and resulted in an injustice to the accused man? May I therefore ask the right hon. Gentleman whether he knows what these particular aspects were, and whether, in view of their seriousness, he will tell the House exactly to what they refer? What are those other aspects?

The confirmation is, of course, a matter in the sole discretion of the Commander-in-Chief, who has informed us that the two principal grounds and he was careful not to say the only grounds—of non-confirmation of the sentence were the grounds to which I have alluded and the fact that he did not consider that the orders to the sentry were satisfactory or clear, and that, in some respects, he thought that the proceedings and the constitution of the court martial might, in those circumstances, have led to an injustice in a capital sentence.

Can my right hon. Friend say whether the confirming authority would have the same right as the Court of Criminal Appeal would have had in this country, in comparable cases, of substituting a verdict of manslaughter for a verdict of guilty; and whether it is clear that this case is not a contradiction of the old-established principle of English criminal law that one cannot justify a crime on the grounds of obedience to superior orders?

In answer to the first question, it is not the case, under military law, that the charge could have been varied to that of manslaughter by the confirming authority. The second question does not arise in this case, and I think my hon. Friend will agree, when he reads the proceedings, that the court was not called upon to adjudicate on the question whether the order, though carried out, had been illegal.

May I ask the right hon. Gentleman if he will say whether, in fact, as the result of the proceedings of this court martial, it was disclosed that this sentry, very far from carrying out his duties properly, had quitted his post and gone into a place of refreshment, that he had fired not one shot but five shots, and had actually carried out his duty very badly indeed, whatever his orders might have been?

I should not like to add to what I have said in my statement, because I feel that we should then be re-trying the case on the Floor of the House.

With reference to the Question which I asked my right hon. Friend yesterday, and which is not specifically related to the Linsell case, will the Secretary of State consider issuing an Army Council Instruction on the subject of orders to sentries, so that it may be made absolutely clear that only in exceptional circumstances are sentries to shoot to kill, and stating that in general they should shoot for the purpose of stopping people, but not for the purpose of killing them?

I have examined the general orders to sentries of the British Army of the Rhine, and I must say that they seem to me to be satisfactory and sensible. On the other hand, General Keightley has set up a court of inquiry to examine these general Army Orders and their relation to regimental orders, such as those of the Black Watch. I think they ought to be left to Commanders-in-Chief in each theatre, because circumstances do vary, but I have called the attention of other Commanders-in-Chief—or rather I am doing so—to the importance of this matter.

Can the right hon. Gentleman confirm the alleged statement of Linsell that, during his period of detention and when he was in peril, he was confined in a room where glaring lights were maintained all the time, preventing him from getting any sleep?

I have seen the statement, but I have no reason to suppose that it is either well-founded or ill-founded. I could not answer that.

Does not my right hon. Friend agree that all this indicates the need for early steps to be taken for the reform of the court-martial procedure, and can he say when the various recommendations now before him are to be put into effect?

The House knows that we have had two committees of inquiry on this subject, under Mr. Justice Lewis and Mr. Justice Pilcher, and their reports are under consideration by the Government.

Can the Secretary of State for War tell the House whether the benefit of legal advice as to English criminal law is available to Commanders-in-Chief before they confirm sentences?

Is the right hon. Gentleman sure that it would not have been possible to reduce the period of 16 days, not in respect of confirmation or otherwise of the verdict, but from the point of view of the non-execution of the death sentence? Have the military commanders no powers similar to those which reside in the Home Secretary to mitigate a death sentence in cases where it appears obvious that it would not, in fact, be executed?

Yes, Sir. The Commander-in-Chief has such powers, and in fact, exercised them, but I should have been loath to exercise them in less than this period. He had to have the transcription of the full shorthand notes of the proceedings before him and study it very carefully, and I think my right hon. Friend the Home Secretary would agree that 16 days is not necessarily too long a period in which to make so weighty a decision as this.

Reverting to the question of the general principle, would not my right hon. Friend agree that it is of the highest public importance that it should be realised that a soldier is under no obligation to obey a manifestly unlawful order, and that, on the contrary, it is his duty not to do so?

My hon. Friend is perfectly correct, but I would only tell him that that particular issue did not arise in this case.

Is it not really very unsatisfactory that we should attempt to re-try this case in the House of Commons, and is it not time that we got on with the Business?