25 DECEMBER 1964, Page 12

A Christmas Tale

By IAIN MACLEOD THERE was certainly snow on the ground and it was about Christmas time in Oslo in 1945 when I appeared for the last time as a defending officer in a court martial.

I had something of a reputation as a barrack- room lawyer, probably because I was the only person around who had read the Manual of Military Law. But this, my last case, was the only one that I had been concerned with where the officer was charged under the splendidly Kiplingesque section which relates to 'conduct unbecoming an officer and a gentleman.' Specifi- cally, my client, whose name wasn't Colonel Jones, but who was a colonel in a distinguished corps in the British Army, had kidnapped an infant. The facts were not in dispute. Colonel Jones had started by attending a State dinner. Being bored with this, be had sought gayer fields of entertainment and when he finally returned to his apartment in a civilian block of flats, he was, frankly, plastered. On entering, he heard from somewhere the cry of a babe. I don't think I ever saw the child, but I assume it was about a year old. For reasons best known to himself, the Colonel searched the building and eventually discovered the infant in a flat on the third floor. Pushing open the door, he found that the strap round the infant had broken and the infant had fallen from his or her cot on to the floor. The parents were nowhere to be seen. The gallant Colonel did not hesitate. He scooped the babe up under one arm and retired to his flat. Un- fortunately for the defence, he scooped a bottle of whisky up under the other.

It is only surmise what actually happened in the Colonel's apartment, because Colonel Jones couldn't remember and the baby wouldn't talk. But we may assume that he reviewed the position in the approved military manner and contem- plated all the courses open to him. We may further assume (because the bottle was found empty) that he refreshed himself white doing this. It is possible that he was disturbed in his thoughts by the continuing cries of the babe. It is certain that failing to comfort it by more orthodox means, and having no milk available (he remem- bered this), Colonel Jones started to feed the baby on neat whisky. The infant was gratified by this attention, but not surprisingly, in due course, passed out. Not having a spare room, Colonel Jones then put the baby in the bath, finished the bottle of whisky and fell asleep with the clear conscience of a soldier who has done his duty and earned his night's repose. Some hours later the parents returned from their Christmas celebrations and raised the alarm with the police. The Norwegian police searched the block of flats and all was discovered. It didn't seem a very promising case to defend.

The court martial appropriate for the trial of a colonel is a large and formidable affair blazing with red tabs. The Judge Advocate General appointed to assist the court was a distinguished lawyer, and a barrister was flown out from England to conduct the prosecution. I viewed these preparations with some alarm. Brooding over the case, there seemed to tne only one pos- sible chance. Perhaps the powers that be had charged him under the wrong section. If Colonel Jones had been charged with being drunk, there would have been no possible defence. If he had been charged with the theft of a bottle of whisky, one could only have pleaded guilty. But he had been charged under a section for which the one and only penalty is that of cashiering. Was his conduct really unbecoming an officer and a gentleman? I thought that if I could eliminate the drunkenness and the theft from the con- sideration of the court, there was just a chance.

My defence was extremely elaborate. 1 insisted on adjourning the court, and taking them all to the block of flats in question. Here I had stationed leather-lunged sergeant-majors on different floors of the block of flats to bellow messages down the well. 1 suppose I meant to impress the court with the fact that a baby's cry could by the same reasoning have been heard by the Colonel, but as this really wasn't in dispute, the exercise was rather pointless. After about half an hour of this, the President of the court, for whom I had acquired a considerable respect, suggested that it was rather cold, that they had taken in the point such as it was that I was trying to make, and that they might go back to the warm hotel where the case was being tried.

On the resumption, I produced a large number of babies' straps, which I had purchased at vast personal expense from stores in Oslo. I demon- strated with loving care that the strap which actually bound the babe in the cot had been purchased some years ago, was of an out-of-date pattern, and had been worn through. I invited the court to consider the callousness of the parents who neglected their child and dis- appeared to a Christmas party, leaving their precious babe insecurely secured in his cot. I questioned the mother on the number of times she went out in the evenings and, until I was rebuked by the court, embarked on. a lengthy lecture to her on her duties as a parent.

Not surprisingly, none of this seemed to im- press the court. I turned to the appeal direct. If, I argued, the action of the Colonel in removing the baby (I said nothing, of course, about the bottle of whisky) was, however misconceived, directed to the well-being of the child, it could not at the same time be regarded as conduct un- becoming to an officer and a gentleman. I thought I detected 'a dignified stir of interest from the Judge Advocate General at this point and, aban- doning the rest of my defence, I concentrated on this. No future Minister of Health could have argued with, greater conviction how much agony there must have been in the mind of the child as he found himself alone, bewildered and forgotten in the dark and on the floor. Some of the court, I surmised, might have tiny children (I had, of course, taken the elementary pre- caution to find out which of them had). Think of this, I urged them, as parents and not as commanding officers. Put yourself, I said, into the mind of that child. Would you not prefer that your own child should be picked up and comforted rather than be left to the mental de- rangement that might follow the terror from which he was rescued by the noble and selfless action of Colonel Jones? ,By this time the court had become interested in this bizarre proposi- tion and were listening to me with unusual care. I wound up with passionate eloquence and, with a vague memory of Sir Norman Birkett's customary peroration, concluded with a demand that they should acquit this innocent man. I sat down.

The barrister followed with some chilling and perfectly accurate observations to the effect that the facts were not in dispute and that he could not see how the verdict could be either. By this time the fervour of my oratory had worn off and 1 had in any event no very exalted opinion of the quality of British military justice. I assumed, in fact, that Colonel Jones would be found guilty. Surreptitiously I withdrew from my briefcase the notes I had made for a speech in mitigation, although as only one penalty could be imposed, there was again little point in the exercise.

The court was cleared and after an ominously short interval reassembled. The President spoke a few words, but I scarcely listened to them. I was intent on my next speech. As soon as he had finished, I stood up and launched into a pas- sionate plea for mercy. After a few sentences, the Judge Advocate General stopped me. 'Major Macleod,' he said, `this is very interesting, but as Colonel Jones has been acquitted, do you think that it is necessary to trouble the court further?' As they say in Parliament, I resumed my seat. And so my second and even better speech was never delivered. This is a calamity which 1 have become accustomed to in later years, but it was stark tragedy at the time—except, of course, for Colonel Jones.

The court were extremely generous to me and congratulated me warmly. The prosecuting bar- rister forecast a successful careef for me at the Bar, and inquired whether he could buy cham- pagne at reduced prices. Colonel Jones kept wringing my hand and asking me if I would accept as a token of his esteem an engraved silver cigarette case. I assured him that I would. Later that evening I had some qualms as to whether this was or was not in order. I need not have worried. I never saw Colonel Jones again, and I am still waiting for the cigarette case.