The missing files are the records of proceedings against more than 2,700 soldiers who were sentenced to death and then spared. The Ministry of Defence could only say that the War Office had disposed of the files some time before 1947 because they were 'no longer required for administrative use'.
The files of 307 British soldiers executed during the 1914-18 war after courts martial are gradually being released to public scrutiny under the 75- year rule. The last tranche, from 1918, will be made available in January.
They were executed for a range of offences against the Army Act, mainly desertion which accounted for 268 cases. Other offences for which the death penalty was imposed included cowardice, disobedience, quitting a post, striking an officer, sleeping on duty and casting away arms.
Details that the courts martial papers reveal about the quality of justice applied to those men have led to growing calls for their status to be re-examined. Whatever their earlier war records, the dead were stripped of campaign medals and their names left off war memorials. Widows did not receive any pension.
In February, John Major attempted to bury the issue when he disclosed that he was rejecting a plea to grant pardons to all 307, saying after an examination of 30 files that 'no evidence was found to lead us . . . to think the convictions were unsound or that the accused were treated unfairly at the time'.
Andrew MacKinlay, a Labour MP who has been campaigning on behalf of many of the families of the 307 soldiers, said after hearing about the missing files: 'It's outrageous. Unfortunately whoever made the decision isn't around any more, but it's convenient, isn't it? It makes it much more difficult to examine whether the men executed were judged fairly by the standards of the time.' He will raise the matter in the Commons again with a Ten Minute Bill in October,
Anthony Babington - a retired judge who more than a decade ago was the first to see all the files of those executed when he was researching a book, For the Sake of Example (to be reprinted later this year by Leo Cooper) - thinks John Major is right not to pardon all 307, but wrong to say the men were judged fairly at the time.
'There were clear injustices. Certainly men who had previously been treated for shell-shock, or men who had been injured, should be pardoned.' He favours a commission of inquiry, comprising a lawyer, a senior army officer and a psychiatrist to re- examine the files.
He believed in many cases the correct verdict would be a partial pardon similar to that granted to the 1950s murderer Derek Bentley, deemed still guilty, but wrongly hanged.
In his book he says: 'Viewed by the standards of today, few of the executed men received the most elementary form of justice.
'They were tried and sentenced by courts which often regarded themselves as mere components of the penal process and which, until the final year of the war, were asked to perform a complex legal function without any sort of legal guidance.
'The cases for the accused were seldom presented adequately and sometimes were never presented at all. If crucial matters were raised which might have established their innocence they were rarely investigated.' Authors of the first book to name the dead men - Shot at Dawn, by Julian Putkowski and Julian Sykes, 1989, Wharncliffe Publishing - said in the preface: 'We consider proceedings should be undertaken to obtain their exoneration.'
A total of 3,080 men were condemned to death at courts martial during the war, but almost 90 per cent had their sentences commuted. Some are known to have returned to the front to fight with distinction. At least one reprieved man won a Distinguished Conduct Medal for bravery.
Refusing a pardon in February, John Major said in a letter to Mr MacKinlay: 'Most death sentences were commuted on the basis of medical evidence. I appreciate the distress which surviving relatives of the soldiers concerned . . . still feel, and I greatly sympathise with them. I do think it is essential, however, that full account is taken of the circumstances of the time. The First World War was probably the bloodiest conflict ever. At times allied troops were being killed at a rate of tens of thousands a day. Soldiers who deserted were sentenced against this background of heavy casualties amongst the vast majority of their fellow soldiers who were carrying out orders.
'The authorities at the time took the view that deserters had to receive due punishment because of the effect of desertions on the military capacity and morale of the allied armies. Millions of soldiers put their lives at risk and endured the most terrible sufferings. They had to be able to rely on the support of their comrades in arms.
'As to shell-shock and the states of mind of the soldiers concerned, medical evidence is not always available on each file and, in many cases, was not a factor in the soldiers' plea of mitigation.
'However, shell-shock did become recognised as a medical condition during World War I. And, where medical evidence was available to the court, it was taken into account in sentencing and the recommendations on the final sentence made to the Commander in Chief. Most death sentences were commuted on the basis of medical evidence.'
He continued: 'We cannot rewrite history by substituting our latter-day judgement for that of contemporaries, whatever we might think. With the passage of time, attitudes and values change. This applies as much to civilian trials as to military ones, in which sentences were imposed based on the values of the time.
'I am sure that all people, when they think of this subject now, recognise that those soldiers who deserted did so under the most appalling conditions and under terrible pressures and take that fully into account in reaching any judgement in their own mind.'
But Mr MacKinlay disputes Mr Major's view that the issue cannot be reopened. 'It is not history. Maybe it is a quarter to midnight, but not yet midnight. The Napoleonic war is history. This is close to it, but not there yet. There are still living sons and daughters of these men. Until even last month there was a widow.'
Leading article, page 17
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