COURTS-MARTIAL PROCEDURE

HL Deb 14 March 1951 vol 170 cc1095-132

THE MARQUESS OF READING rose to call attention to the conclusions reached by His Majesty's Government in regard to the recommendations contained in the Reports of the Committees on Courts-Martial Procedure and Administration of Justice in the Armed Forces (Cmds. 7608 and 8094) as set out in the recent White Paper (Cmd. 8141): and to move for Papers. The noble Marquess said: My Lords, I hope your Lordships will consider that this is a subject which well merits discussion by us, although I desire to protect myself in advance by giving the warning that its exposition is likely to be both tedious and technical. At first glance it might perhaps seem that the subject of courts-martial was one that was of interest only to barrack room lawyers or court room soldiers, and in the days when we had only a small Regular Army that may well have been true, except in so far as the administration of justice in any form in a democratic country is, or ought to be, of interest to all its citizens, even though they may be only indirectly concerned.

Ever since 1938–39, there has been a large number of men in the Services, not by their own free will but by statutory compulsion, and accordingly the administration of justice has taken on a new and more important form with its wider application. The two Reports and the Government's conclusions upon them, which I am to-day inviting your Lordships to consider, refer, the one to the Army and Air Force and the other to the Navy. Before dealing with their recommendations, I feel bound to call attention to the great delay which has taken place in connection with them on the part of the Government and not, be it said, on the part of the Committees themselves. The Committee on the Army and Air Force, known as the Lewis Committee, after the late Mr. Justice Lewis, who presided over their deliberations, were appointed as long ago as November, 1946. They reported in April, 1948, but their recommendations were not released for general scrutiny until January, 1949.

Even then His Majesty's Government were reluctant to accept invitations to discuss the contents of the Report, because it had apparently just dawned upon them that it was necessary to have a similar inquiry into the working of the Naval Discipline Act. Why that great thought did not reach them at an earlier stage I find it difficult to understand, because the main theme set for each of these Committees was ultimately the question of the institution of a court of appeal from courts-martial. Once that matter had been raised in the foreground of the discussion it was perfectly plain that one of the most vital questions that would arise, if such a court of appeal were recommended, was: Is this to be a court for the Army and Air Force alone, or is it to be a court for the three Services? And no conclusion could be reached upon that point without preliminary investigation by the naval authorities. Nevertheless, although the Lewis Report was published in January, 1949, it was not until the following month, February, 1949, that the noble Viscount the First Lord bethought himself of appointing a Committee into the naval aspect. One would have thought that either the terms of reference of the Lewis Committee would be extended from the outset to cover naval matters, or, more conveniently, that a separate committee would be set up, simultaneously with the appointment of the Lewis Committee in 1946, to consider the whole matter. That, however, was not done, and I estimate that, from the delay that has taken place, and assuming this court of appeal to be a desirable institution, something like two years has been wantonly wasted in introducing the Bill to set it up.

If I can give no great applause to the Government's despatch in dealing with this matter, nevertheless, I do desire to commend and to thank them for the form in which their conclusions have ultimately been published in Command Paper 8141. For there are set out clearly, precisely and in a Shape easy of reference, those recommendations of both Committees which have been accepted by the Government, those which have been rejected and those upon which the Government are still deliberating. Your Lord-ships will be glad to know that the publication of that White Paper has abbreviated the length of what I shall have to say to the House, although I am afraid it has not entirely eliminated my remarks.

As I have indicated, the main question submitted to both these Committees was whether or not it was desirable to establish a court of appeal from the decisions of courts-martial; and, if so, what should be its composition and its functions. Both Committees reported in favour of the establishment of such a court, though they varied substantially in their recommendations in matters of greater detail. It would be wrong of me to-day, however, to enter into any discussion of that aspect of the matter, since a Bill for the establishment of the appeal court is already on its way through another place, and will in due course reach your Lordships' House, where it will no doubt be the subject of considerable discussion and close examination. Nevertheless, I would take leave to say this much: that I give a most cordial assent to the principle of the Bill, although I feel bound to make the reservation that I have the greatest doubt whether the scheme at present incorporated in the Bill is workable under active service conditions. There are, of course, forms of appeal at the moment in the shape of confirmation, review and Petitions to His Majesty; but none of them adequately takes the place of the argument of an appeal in open court, where not only the accused but the public at large can understand what is being discussed and can form an opinion upon it. From that point of view, I believe that the establishment of such a court will be a great step in the right direction.

There have been within the past year two courts-martial, in particular, which have attracted a certain amount of public concern, largely, I think, because a spotlight has been focused upon their proceedings by a section, though only a section, of the Press. I said a spotlight, but I am not at all sure that a radiant heat lamp would not be the more appropriate description.

I wish to say only two things about those courts-martial, because it must be remembered that in both cases their findings have subsequently been quashed. The first thing I desire to say is that I very much hope that, if a court of appeal is established, the Government will take steps to ensure that the rules of contempt of court which apply in civilian proceedings are made equally applicable, without any possible doubt, to the proceedings of courts-martial. It seems to me singularly unfortunate that the moment a sentence is pronounced by a court, and before the matter has even set out on its journey to the confirming officer, it should be subjected to this somewhat unbridled criticism of the Press. Those of us who have practised at the Bar or, indeed, in other fields, know how ill-advised it is to arrive at a conclusion without having in front of one a full and accurate report of the facts. It was obviously impossible, when this pæan of criticism began in the newspapers, that they should have had anything except the most fragmentary reports. No one imagines that the day the sentence was passed in Korea, the news-paper offices in Fleet Street had a complete verbatim record of what had passed at that court-martial, and yet one newspaper at least did not hesitate, on the very same day that it published the sentence of the court, to open a sort of Gallup Poll to its readers, inviting them to express their view on whether or not the sentence erred on the side of severity. I care not whether the finding of that court-martial was quashed or whether it was not. It is no excuse for a paper behaving in that way.

As to the other case, there too the conviction was quashed, and the unfortunate man has since died. I say nothing on the merits of the case, but it did in its day arouse considerable public clamour, and at my invitation the noble and learned Viscount on the Woolsack was good enough to put in the Library of this House a full record of the proceedings at the trial. I took advantage of his courtesy to read that report with great care, as did others of your Lordships, and I am perfectly confident that they will all be at one with me in saying, whatever the right and wrongs of the case may be—and in view of the confirming officer's refusal to confirm the proceedings I feel bound to accept that decision —that the reports of that case which appeared in the Press bore little or no relation to the evidence given at the trial. That is a very regrettable state of affairs, and it is highly undesirable that this kind of mass extraneous pressure should be brought to bear upon a confirming officer before he has had an opportunity objectively to consider the case, as it may adversely affect not only his mind but the fate of the accused as well. In the interests of all concerned, I express very strongly the hope that in future more reticence will be exercised in the early stages of these matters.

In the Reports of these two Committees there is collected a great deal of most valuable and interesting matter from which, obviously, in the relatively narrow compass of an afternoon's debate, I can select for mention only the outstanding matters. From the Lewis Report, I think two items of particular interest, or perhaps three, arise. The first is the position of the Judge Advocate-General himself. The Lewis Report desired to change or to separate his functions to this extent. In the past he had been charged not only with considerable duties in regard to the prosecution of offences but also with the very onerous task of subsequent review, and of tendering advice to the heads of departments as the pro- ceedings continued or when they had come to an end. The Lewis Committee took the view (the Government have accepted it, and I agree with it) that it is to the general interest that there should be a separation of his functions. It is only right to say that in the past the existing system has, I think, worked with complete efficiency and impartiality, but at the same time the Judge Advocate-General's dual capacity, both as concerned with prosecution and with the more judicial function of examining the proceedings after they had terminated, at least allowed the possibility of a misconception in people's minds, and a consequent suspicion of the complete fairness of the system then in vogue. It is of overriding importance that the administration of justice should be subject to no such suspicion, and from that point of view I am sure that His Majesty's Government have taken the right course in starting to implement these recommendations, first by administrative action and, secondly, by including the remaining provisions in the Bill concerned with the court of appeal, as your Lordships will notice when it reaches us in due course.

There was an attempt by the Lewis Committee—which, I am glad to say, was frustrated by the wisdom of the Government—to alter the title of the Judge Advocate-General, and to call him in future the Chief Judge Martial. I do not know what advantage the proposed new title was thought to have over the existing title, which at least has a long and distinguished tradition behind it, and I am glad to say that the Government were firm. As we are talking about nomenclature, may I also interject this? The Government have been a little weaker on one similar recommendation: they have given in to the recommendation that what we have all known for many years as a field general court-martial—which is, after all, a simple and descriptive term—should be known in future as an emergency court-martial. Now why? An emergency court-martial suggests to my mind two or three reluctant officers gathered together at the last moment in order to constitute a court for the trial of some offence. A field general court-martial is a long familiar title, and I should very much have hoped that His Majesty's Government would leave that alone, too.

The next point of substance raised by the Lewis Committee is an extremely controversial one, because it embraces a recommendation that the findings of a court-martial—that is, the finding of "Guilty" or "Not Guilty"—must be the unanimous decision of the court, instead of, as at present, a decision by a majority of the members. It is right that I should say that although the Pilcher Committee differed from the Lewis Committee on that point, a minority Report was nevertheless attached to the Report of the Pilcher Committee, in which it was powerfully argued by two King's Counsel, Members on opposite sides of the House in another place, that unanimity ought to be a requisite of the court. The Government have rejected that contention, and I am glad that they have.

The Lewis Report wanted to change to a very considerable extent the shape of the court, by appointing a civilian legal figure to preside over all courts-martial of importance and difficulty. If that part of the scheme had been adopted, then I think it would have been just arguable that it might mean doing what the rule as to unanimity in effect requires—that is, treating military or air force or naval members of a court as nothing but a jury. However, the recommendation as to a civilian legal President has not been adopted—and rightly not adopted. And it seems to me that with the collapse of that recommendation there falls also the recommendation in regard to unanimity, even if it could have been sustained on that basis. My view of the members of a court-martial has always been that they are not a jury; they are full members of the court, and their position is much more analagous 10 the position of a bench of magistrates, or a court sitting in banc— by which we mean a court consisting of two or more judges, in which each is entitled to express his own opinion, but the majority always prevails. I think that that was a very wise resolution of the Government.

The other, and not less controversial, matter raised in the Lewis Report is to be found again in a minority report by Mr. Raymond Blackburn. In it, he urges the inclusion in the membership of a court, in the case of a court-martial for the trial of an other rank, of a non-commissioned or warrant officer, graded according to the scale of the accused's own position as private, non-commissioned officer or warrant officer, and entitled to express his view on equal terms with other members of the court as to the findings, but with no voice on the question of the sentence. That seems to me a quite illogical position. Moreover, although I hope that I am not, and have never been in the past (when it was more important), a hide-bound disciplinarian, one has to remember that one of the main reasons why there must be a special code in the Services is that we have to maintain a standard of discipline. I do not believe that it would assist in the maintenance of that standard to import other ranks on to a court-martial.

One of Mr. Blackburn's main arguments on this theme is that the present system is a violation of the Magna Carta requirement as to the light of a man to be tried by his peers. I am inclined to think that that puts too narrow a construction on "trial by a man's peers." You might as well say that, in the very unlikely event of a duke being charged with an indictable offence, he could be tried only by a jury composed completely of other dukes; or that, if a baronet were a member of a jury empanelled to try a burglar, the burglar— if, indeed, he were not also a baronet himself—could object to the presence of the baronet on the jury on the ground of his rank. I think that that recommendation is quite untenable; and as I say, I am glad His Majesty's Government have resisted the blandishments of that ideological serpent and have gone on their way leaving the matter as it stands at present. I think that is to their credit, since there is in that recommendation the possibility of an apparently democratic gesture. I believe that such a system exists to some extent in the American Army, and that great numbers of people concerned with discipline in the American Army very much wish that it did not.

As regards the miner, but still important, recommendations of the Lewis Report, I should like strongly to commend the alteration, which has already been made by Order in Council, to the old, and to my mind always inexplicable, provision whereby, when a man was found guilty, the court did not there and then pronounce sentence, but merely adjourned in order that the matter might in due course find its way to the confirming officer. That always seemed to me to be a quite unnecessary strain upon the accused. He would, I think, much rather know the worst from the outset, and hope that as the matter went up to, and through, the appeal tribunal there might be some amelioration of his fate. That alteration, as I say, has already been made—and that is all to the good.

Again, the Government propose, I understand, to accept the recommendation that there should be introduced a new punishment in the shape of a penal rate of pay. Your Lordships will be aware that, so far as the Army and Air Force are concerned, stoppage of pay is at present applicable only in the case of drunkenness. This new proposal is to make it applicable generally to all appropriate offences, and to extend it to officers as well as to other ranks. That seems to me to fill a useful gap in the present Army Act. Here again I think the Government have been right to accept it. They have, on the other hand, rejected (and once more I give them, for what it is worth, my blessing for having done so) a proposal that another new punishment, in the shape of reduction of rank, should be instituted. At present, all that the court-martial can do in that respect is to reduce an officer's seniority in his rank; they cannot actually reduce the rank. I think the Government are right in not acting on that recommendation. It is one, I suggest, which would be rarely used in peace time in the Regular Army, while in war time, confusion in regard to rank —acting, temporary and war substantive —is already so chaotic that nobody would be surprised to find, and nobody would be disgraced to find, that one day he was a major and the next day a captain or less. Therefore, I think such a punishment would have little practical effect.

I am rather sorry that the Government are still hesitating to adopt the recommendation to make the process of taking a summary of evidence a good deal more strict and formal than it is to-day. The proposals of the Lewis Committee are that evidence at a summary of evidence should always be on oath and that the accused should always be present and represented. Those, I think, are important safeguards. It is not easy for officers with no legal training behind them to conduct adequately a summary of evidence upon which much of the decision of the actual court may eventually depend. I know that in my own days as a commanding officer, with my somewhat schizophrenic background of half lawyer and half temporary soldier, I used to cause severe shocks to my own orderly room staff by my, as they thought, excessively rigid views upon what was and what was not admissible evidence. But the introduction into a summary of evidence of inadmissible evidence, owing to the lack of skill of the officer taking the summary and the absence of anybody to check it, may make all the difference to the ultimate fate of the accused. So much for the Lewis Report.

As regards the Pilcher Report on the Naval Discipline Act, I confess that it is only with considerable trepidation that I venture even to break surface. I realise that for one who has no experience of these matters to discourse upon the administration of justice in the Navy requires a walking so delicate that beside me Agag might well be mistaken for a metropolitan policeman. But there are three points which friends of mine at the Bar who have appeared before naval courts-martial inform me have appeared in their minds as somewhat startling, having regard to their civilian experience. The first is really a survival of an archaic procedure and is more a question of form than of substance. It consists in the requirement by which the leave of the president of a naval court still has to be obtained before a witness can be examined or cross-examined. I do not imagine that that leave is ever refused in practice, and it seems as well that the demand for it should now be abolished.

The second point is more serious. It is that in a naval court-martial, as I understand it, the judge advocate has been in the habit of retiring with the court when they consider their finding. The consequence is that the accused and his advisers have no information of any kind as to the counsel which the judge advocate has given in secret to the members of the court whilst they are considering their verdict. That, again, if I may say so respectfully, seems to infringe the principles of justice as they would be understood in a civil court. The third matter is this. It has, I think, been the practice to circulate in advance of the hearing what is called a circumstantial letter, a document which purports to set out the facts to the president and members of the court. From what I hear, it has occurred, not once but often, that members of a naval court-martial have considered statements in the circumstantial letter to be more conclusive than evidence given at the trial. I have, indeed, beer given examples where a counsel cross-examining a witness has been sharply pulled up by the president when the witness was being asked to deny some question of fact. The president has said: "But you cannot ask him that. He cannot deny that. It is in the circumstantial letter."

I once had a court-martial in which the papers had to be sent back to the lower formation because they had transgressed in a substantial form. In a case of manslaughter they had provided no evidence that in fact there had ever been a corpse. When it was pointed out to them that this was an essential ingredient of the evidence, they replied, very humbly, that our comment had been noted, but it had not been appreciated that a fact once alleged had to be proved. It seems to be somewhat on that basis that some naval courts-martial have proceeded in relation to matters contained in the circumstantial letter. All these three objections are covered by the Report of the Pilcher Committee, which has dealt with them all seriatim and has recommended that they should be brought to an end. There remain two other interesting and controversial questions of naval procedure. The first is whether it is right that the captain of the accused's ship should preside at a court-martial. The second is whether officers of non-executive branches of the Navy should be eligible, either on the same terms with members of the executive branch, or at all. Those two issues are, I fancy, in the nature of domestic dynamite. I mention them only to drop them again as hastily as I may. I prefer that noble Lords with naval experience who are proposing, I am glad to say, to follow me, should deal with this particular form of depth charge, rather than that I should endeavour to handle it.

In the space of time which I have already taken up, I have been able to point only to the peaks revealed by these two Reports, and to leave the valleys in shadow. Nevertheless, I have some faint hope that I may have said enough to induce some of your Lordships to continue the exploration on your own account, unaccompanied by a guide. I have endeavoured to compress and concentrate this very detailed and comprehensive subject within reasonable bounds, even at the sacrifice of many matters which are well worthy of comment and elaboration. My Lords, I think it was Madame de Staël who wrote to a correspondent, "I am sorry to send you so short a letter. If I had had less time, I would have written more." It is perhaps as well for everybody's sake that I have had so many weeks in which to contemplate my material, for otherwise I should certainly have been even more prolix than I am only too conscious of having been to-day. I beg to move for Papers.

3.21 p.m.

THE FIRST LORE) OF THE AD-MIRALTY (VISCOUNT HALL)

My Lords, we are in complete agreement with the opening remarks of the noble Marquess, that a question of this kind well merits a debate in your Lordships' House. I may say that if a choice of the opener of the debate were sought amongst your Lordships, I am sure that the one person who would be chosen would be the noble Marquess who has just sat down. Indeed, we are very fortunate in our opener because we have in the noble Marquess not only a distinguished member of the legal profession but one who has also had a long period of distinguished service with the Army during the two world wars. I have no doubt that during that service he was brought into contact with this problem of courts-martial, because he has for some time shown considerable interest in this subject.

Apart from the reference to the delay, about which I am not going to take much umbrage, and for which I am not going to apologise, the speech of the noble Marquess has been helpful in every way. Indeed, never since I have been honoured to be a member of your Lordships' House have I noted so much agreement between anything which the noble Marquess has said and the action of His Majesty's Government.

THE MARQUESS OF READING

I still have a right of reply.

VISCOUNT HALL

I agree; but I am dealing with the speech which has been delivered. My Lords, as I understood the noble Marquess, the purpose of this debate is to hear what noble Lords with Service experience have to say on the two very valuable Reports which are before your Lordships' House. And I hope that we shall hear from noble Lords expressions of opinion, even upon the two very controversial matters with which the noble Marquess concluded his speech, and which are at present being dealt with by the Board of Admiralty. Not only is the debate of interest to your Lordships, but it is of considerable interest to the Services; and I have no doubt that the Services, who have in some repects pressed for a consideration of many of the difficulties which have arisen in relation to courts-martial, will read with considerable interest the remarks which are made in your Lordships' House during this debate. It can be said that on the whole, the Reports have been welcomed, both by the Services and by the general public, and for that we are grateful. I have risen to deal with a few of the points to which the noble Marquess has referred, but I am not going to attempt to deal with the legal intricacies of this problem. In this respect I am fortunate, as the noble and learned Viscount on the Woolsack is winding up the debate.

Before I pass to an examination of the Lewis and Pilcher Reports, I think your Lordships will be interested to hear a little of the historical background of the system of courts-martial, which goes back to very remote times. Indeed, even from those remote times there has been some distinction as between Army and Air Force courts-martial and Naval courts-martial. In very early days the prerogative power in naval matters was exercised by the Lord High Admiral, while in military matters the code prescribed by the King under his Prerogative was administered by the Lord High Constable and the Earl Marshal. In the 16th century, however, appointments of Lord High Constable ceased to be made, and it became the practice for the King himself to grant commissions to Commanders-in-Chief authorising the holding of courts for military offences which came to be known as Councils of War or Courts-Martial.

The office of Lord High Admiral was established to organise and govern all the Fleets raised for the service of the Crown, and with exclusive jurisdiction over all civil cases and criminal offences arising among seamen. Early in the 17th century, however, the office was put into commission and, with the exception of a few periods, during which individual appointments have been made to the post of Lord High Admiral, the duties have since this time been performed by the Lords Commissioners for executing the office of Lord High Admiral. This explains how it is that, out of roughly parallel systems of common origin administered by the Lord High Constable and Earl Marshal and the Lord High Admiral, there have grown up two entirely separate systems of naval and military justice. It explains also how the greater part of the powers exercised by His Majesty in respect of the Army and Air Force, either under His Prerogative or under the Army and Air Force Acts, are exercised in respect of the Royal Navy by the Admiralty. I should like to make it clear, however, that although the systems differ, it has been the aim of His Majesty's Governments along the ages to ensure that the same broad general principles of justice are applied to all the Services, and, indeed, to ensure that, in so far as it is possible, the principles of justice which govern the civil code are also applied.

There is one further point which I should like to bring to your Lordships' notice. The Naval Discipline Act has been applied at different times by several members of the Commonwealth to their own naval forces. In effect, with minor adaptations and modifications, it now applies to the Australian and New Zealand Navies, and it is the practice of His Majesty's Government to consult the Governments of these countries on contemplated amendments of this Act.

The noble Marquess, Lord Reading, made some play concerning what he seemed to regard as undue delay in dealing with this important question. When one considers how extremely important and complicated this subject is, however, I feel that such criticism is not entirely justified. When the Admiralty were asked after the war to consider whether the Lewis Committee should be invited to investigate the administration of justice in the Royal Navy, it was felt that such a course would be a mistake. In the first place, the system—unlike that of the other two Services—had just come through the Second World War with a minimum of public criticism. Even more important was the fact that the naval system differed fundamentally from the military system, and it was felt that it would have been too much to expect any one Committee to be able to give adequate attention at the same time to two such widely differing systems. His Majesty's Government, however, gave an undertaking that the possibility of applying to the Royal Navy the recommendations of the Lewis Committee would be seriously considered. That consideration was given, with the result that as soon as the Lewis Report was first presented, in April, 1948, some of the recommendations were accepted—for example, that for the transfer of the Judge Advocate of the Fleet to the Lord Chancellor's Department, and other recommendations.

In the end, however, it became evident that sound decisions could be reached only on the basis of a special examination of the naval system, and Mr. Justice Pilcher and his Committee were invited to undertake this work. As your Lordships know, the First Report of Mr. Justice Pilcher's Committee was presented in February, 1950. It was at once evident that on some important points its recommendations conflicted with those of the Lewis Report, so collation of the two Reports followed. But it has to be borne in mind that the full effect of the Pilcher recommendations on the naval system did not become clear until the Pilcher Committee presented their Second Report at the end of last year. I am sure your Lordships will agree that the three Reports which are now before us have been well worth waiting for, and that you will wish me to say how grateful your Lordships are, not only to the late Mr. Justice Lewis and to Mr. Justice Pilcher but also to their respective Committees for the excellent service which they performed in producing these very valuable Reports.

When one realises all that was involved in the co-ordination of the Reports, and also in the preparation of the Courts-Martial (Appeals) Bill, I do not think that the Government have been unduly slow in announcing their decisions in the form of the White Paper issued in January. The White Paper shows that a large number of the recommendations have been accepted, some are still under con- sideration, and others—a very few—have been rejected. Of those accepted, particularly from the Lewis Report, a number have already been put into effect by administrative action, but others require legislation. The noble Marquess referred to the Bill, now in another place, designed to give the Service man a right of appeal. Like him, I do not propose to go into this question of appeals to-day. There are, as I have said, many recommendations which have been accepted, but others will require legislation. On those which require legislation, the Army and Air Force (Annual) Bill affords a convenient opportunity for making the necessary Amendments to the Army and Air Force Acts.

There is, in fact, in the recommendations accepted little of importance requiring legislation which is not covered by the Courts-Martial (Appeals) Bill, or which cannot be anticipated by administrative action. It is intended to sweep up any outstanding points in the Army and Air Force (Annual) Bill next Session, when a final decision will have been reached on the recommendations shown in Part II of the White Paper as still under consideration. The Admiralty, of course, have no corresponding Bill, and opportunities of amending the Naval Discipline Act have therefore been infrequent. None the less the Act needs amendment on many points, apart from those dealt with by the Pilcher Committee, and it is the Government's intention to introduce amending legislation, if possible, to deal not only with the recommendations for which legislation is necessary but also other amendments which are required.

I turn now to some of the recommendations of the Lewis Report. Paragraph 74 of the Report describes alleged defects in the system which are divided broadly into four categories: delays before trial; insufficiency of legal aid, both before and after trial; defects in procedure; and, finally, insufficient right of appeal against conviction or sentence or both—and, in particular, the lack of right to a hearing. The main recommendations of the Committee are concerned with these problems, and examination of the White Paper will show what action the Government have taken or propose to take. Delays before trial form the subject of four recommendations, three of which have been accepted and already implemented; they have been put into effect, though in slightly different form, in the Royal Navy. The fourth recommends that, after being in close arrest for twenty-eight days without a court-martial having been convened, the accused should have the right to petition the Chief Judge Martial. This has not been accepted, since a Chief Judge Martial with the functions proposed by the Committee has not been appointed. This pre-trial function is not considered appropriate for the Judge Advocate-General, and it is felt that the present right to appeal through Service channels is sufficient at this stage.

The Committee recommended a scheme for the provision of legal aid, and this was in fact put into operation whilst the Committee were still sitting and deliberating. The scheme was welcomed by the Committee, and is operating successfully in all three Services. Indeed, the latest reports which I have had from the Army indicate that for the year which closed at the end of February this year, out of the total number of applications for legal aid 62 per cent. were granted and 38 per cent. were refused. That means that approximately two-thirds of the applications for legal aid during last year were granted. The noble Marquess rightly dealt with the recommendations regarding the taking of the summary of evidence, a matter on which no decision has yet been reached. I can assure the noble Marquess that his remarks will be taken note of by His Majesty's Government when this matter is finally dealt with.

Defects in procedure are mainly related to the appointment of the Judge Advocate-General. The appointment of the Judge Advocate-General by the Lord Chancellor has already been accepted and various recommendations under this heading are being given statutory effect in the Courts-Martial (Appeals) Bill now being considered in another place. The noble Marquess entirely agrees with the Government's attitude in relation to this matter. Finally, under this heading of defects in procedure, I should like to say how much we welcome the noble Marquess's remarks regarding unanimity of findings, in which he indicated the complete agreement which exists between us on this matter.

THE MARQUESS OF READING

I wonder whether the noble Viscount would allow me to put one thing right. I made a slip, which has been pointed out to me by my noble and vigilant friend, Lord Simon, in saying that it is recommended that unanimity must apply to findings of "Guilty" and "Not guilty." Of course, it is appropriate only to a finding of "Guilty." I am much obliged to the noble Viscount for allowing me to put that right.

VISCOUNT HALL

That is so. The last heading concerns insufficient right of appeal against conviction or sentence and the lack of right to a hearing. Broadly speaking, the recommendations on this question have been accepted and are embodied in the Courts-Martial (Appeals) Bill. Other questions raised by the noble Marquess and the two cases to which he referred will be dealt with by my noble and learned friend the Lord Chancellor.

The noble Marquess touched upon the Pilcher Reports. It can be said, and I think the noble Marquess will agree, that the Pilcher Committee did not find anything fundamentally wrong in the disciplinary system of the Royal Navy. It is worth my while quoting two of the paragraphs of the Pilcher Report on this matter: A naval court-martial … enjoys a high degree of prestige among officers and ratings in the Royal Navy. It is regarded by the Navy as essentially a Naval Court and it is right that we should say that we have heard little evidence of any dissatisfaction in the Royal Navy with the present system of administration of justice. We are satisfied that under modern conditions discipline can only be satisfactorily maintained if it is, and is known to be, thoroughly based upon justice. All the evidence before us goes to show that members of naval courts-martial take a serious view of their responsibilities. Whilst there have been alterations in the Naval Discipline Act since 1861, the system of administration of justice which has been maintained in the Service, and now modified to meet modern conditions in accordance with the recommendations of the Pilcher Committee, is fundamentally sound. The number of courts-martial in the Royal Navy is much smaller than in the other two Services. In peace time a high proportion of naval courts-martial deal with disciplinary offences unlikely to involve any difficult questions of law. In war time such offences tend to increase. The figures are interesting. In 1938 there were 36 courts-martial; in 1939 there were 40; during the war the number rose to 1,134, though it must be remembered that then there were over 800,000 serving in the Royal Navy; in 1950, with a Vote A of 142,000, the number was 83. I think that is an indication that discipline is being maintained, notwithstanding the references made to some of the practices which operate in the Royal Navy and whose abolition has been recommended.

THE MARQUESS OF READING

I should never have dared to make any suggestion that discipline was not being maintained in the Royal Navy, and I never said anything of the kind. I said there were practices which some of my legal friends found objectionable.

VISCOUNT HALL

I do not suggest that the noble Marquess said that. Notwithstanding the practices to which some of his legal friends have taken exception, the disciplinary system in the Royal Navy is doing its job very well. Conditions of service in the Royal Navy, both in peace and in war, differ widely from those in the other two Services, particularly on the disciplinary side. It is in the interests of all serving in a ship that the commanding officer should have adequate powers of summary punishment. I think it is admitted that these are not abused. In fact, the Pilcher Committee came to the definite conclusion that the extent of the commanding officer's powers should not be reduced, with the exception that dismissal with disgrace should be abolished as a summary punishment. That sentence has seldom been awarded summarily; it has almost always been awarded by court-martial. The question of summary punishment has been dealt with fully in the second Pilcher Report. The Pilcher Committee recommended no fewer than sixty-one changes, of which number only nine have not been accepted. Many of these recommendations have been covered under the Courts-Martial (Appeals) Bill or dealt with administratively.

Without going into detail on the minor recommendations in these Reports, I have tried to explain the principles which have governed the Government's decisions on the major issues, and also to outline the historical origins of the naval and military systems in order to show how they have come to contain such differences in detail. These differences have complicated the task of the Government, but I hope I have said enough to show that they spring from the deep-rooted conviction that Armed Forces with such widely differing functions are best governed by separate systems in which the best features of each are retained, and that any attempt to impose a uniform system for the mere sake of uniformity is most undesirable. We are rightly proud both of the history and of the present efficiency of our Armed Forces. We are all agreed that no system of justice short of the best which is compatible with the maintenance of that efficiency is good enough for them. It is on these principles, recognising the value of many of the features which have their roots deep in the past, and superimposing on them such new features as are required to assure to our sailors, soldiers and airmen the highest standards of justice, that the Government have worked in applying to the Services the recommendations of these valuable Reports.

3.50 p.m.

LORD WINSTER

My Lords, I am sure you will appreciate that I feel considerable diffidence in speaking on the subject of naval discipline in the presence of two highly distinguished and experienced Admirals of the Fleet—no doubt I shall be corrected and chided if I make-any mistakes. The noble Marquess, Lord Reading, reproached the Admiralty for having been rather slow in these matters. The Admiralty sometimes are a little slow: they get entangled by centuries of tradition. However, they get there all right, and, when they do, it is usually found that they have made a good job of the business in hand. That is borne out by the fact that the noble Marquess referred to three points in the Pilcher Report to which his legal friends took exception, but I think they went on to agree that the Admiralty had already decided to put the matter right. It seems, therefore, that the Admiralty do not act quite so slowly as is sometimes thought.

Now undoubtedly the Admiralty have done something to remove some of the features of court-martial procedure which are archaic and present certain anachronisms. All your Lordships will have heard a court-martial spoken of as the fairest tribunal on earth; and many of us are acquainted with the old warrior in a Service club who says: "If I have to be tried for my life, give me a court-martial every time, and none of these damned lawyers proving that black is white and swearing a man's life away." I am not sure that I can go the whole way with that opinion, and I may say that, at the opposite extreme, sailors are frequently heard to refer to courts-martial as "courts of iniquity." But, at any rate, your Lordships will agree that in this matter of courts-martial there is only one safe, basic principle upon which to proceed—namely, that discipline is best maintained by being based on the rule of law and not upon unconditional respect for rank. I would say that no one is quicker than a sailor when it comes to judging character, and he will respect rank only if it is accompanied by qualities which deserve and earn respect.

When reference is made to unconditional respect for rank, I would point out that certain notorious cases have been known where undue respect for rank was an operative factor in a court-martial. There is the instance of an official of the naval law branch at the Admiralty (I am not sure whether the position has now altered, but at one time I do not think it was necessary for an official of the naval law branch to have any legal training) who said, when dealing with an approaching court-martial: "No circumstances can excuse criticism of a senior officer." What is even more extraordinary, still is that, when this dictum was referred to the Deputy Judge Advocate, he endorsed it and said that no evidence could excuse remarks of criticism concerning the conduct of a superior. This court-martial involved some disagreement between a captain and his admiral, and some of the captain's fellow officers loyally and bravely gave evidence on his behalf. A member of the court then said (I do not think he said it in public; I can hardly think that he did) that he could court-martial the lot for giving evidence against an admiral. From that I feel that we may fairly conclude that the question of rank has from time to time loomed large in courts-martial.

The fact that naval courts-martial and maintenance of discipline present certain differences of feature from courts-martial and discipline in the other two Services grew out of the old days when ships were away from this country for years at a time without any communication with the Admiralty or, in fact, with any of the home authorities at all. In those circumstances, the admiral or captain, in the little kingdom of his ship, was in himself the Crown, the Church and the Law. Having included the Church, perhaps I may tell your Lordships of an incident, which I am sure is apocryphal, when one of these small ships was off the Pacific coast of South America. A sailor died, and for some reason the captain wanted to have him buried ashore. The chaplain said it was impossible, because there was no consecrated ground in the neigh-bourhood. The captain was not to be defeated, and said: "Then I rate you a Bishop, and you will go ashore in my galley and consecrate some ground this afternoon." That was done, and the man was buried. But when it was over the captain wished the Bishop to revert to his former rank of chaplain, and the Bishop said: "No; once a Bishop, always a Bishop." And he went on to add: "May I point out to you that King's Regulations lay down that when a Bishop is embarked in one of His Majesty's ships he occupies the captain's quarters?" However, all that is very much by the way.

The powers exercised by a captain on board are most necessary, because the Navy has to fight not merely an enemy, but a dangerous, implacable element, the sea, and there must be in a ship one voice which can be raised in moments of crisis and danger and which is recognised and obeyed with instant, unthinking obedience. If it were not so, then the safety of the ship and the life of every man on board might be imperilled. That is the way in which the difference between the naval system of discipline and courts-martial and those of the other two Services has grown up: in fact, in a word, it has to be rather more taut.

I feel that in what they have done about the Pilcher Report the Admiralty have made a great advance and will receive many congratulations. I believe, indeed, that the Pilcher Committee must have been a remarkably good Committee, when one remembers that, as the First Lord has stated, out of sixty-one recommendations only five have been rejected out of hand. I should think that in the history of Committees that is something approaching a record: it is most unusual for so many recommendations to be accepted. I should not yet like to give an opinion about three of the five recommendations which have been rejected, but if we take one, namely, that the captain of the accused's ship is not to act as prosecutor, that, on the face of it, sounds an attractive and very proper provision. The Admiralty, however, have not accepted it, and probably for this reason: that if a captain of a ship is nominated to act as prosecutor, and if there are reasons in the case which make it undesirable that he should so act, then, as I understand it, the court have the power to appoint another prosecutor. If that is so, I think it completely meets the position, and I would agree with the rejection of that recommendation.

The other is a small matter, but the noble Marquess, Lord Reading, had some remarks to offer about nomenclature. I see that one of the recommendations rejected is that the title "defending officer" should be adopted instead of "accused's friend." I am glad that the Admiralty have rejected that proposal, because I am sure that if a man is facing a court-martial he prefers to feel that he has a friend by his side, rather than a somewhat chilly person called the defending officer. Of the large number of recommendations accepted, and the few which are under consideration, I see that they are to be dealt with by legislation, by administration or by Order in Council. In some cases there is perhaps reason for delay, but in many of these cases, where administration and Orders in Council are concerned, I should think there is not much reason for delay. When we come to debate the Naval Estimates, I wonder whether that would be an appropriate time to ask for a progress report in this matter, and to ask in how many cases an Order in Council has been put through?

VISCOUNT HALL

Certainly.

LORD WINSTER

The primary form in these recommendations seems to me to be the establishment of a court of appeal. I believe that that will remove any justification for such complaints of courts-martial procedure as are heard to-day. I think that is really the crux of the matter.

May I mention one or two other matters? One of them has been termed to-day a difficult and awkward matter, and that is the question of whether officers of all branches of the Navy should be eligible to sit upon courts-martial. I am inclined to approve that idea. It is probably a wise proposal, and I am especially glad to see that officers of the Royal Marines and of the Reserves are to be eligible. Considering the part that the Merchant Navy and the R.N.V.R. now play when the country is at war, I am very glad indeed to see the proposal that their officers should be eligible to sit upon courts-martial, and I think this step will give great satisfaction. After all, all officers in a ship, no matter to what branch they belong, have an action station, and they all play their part in the actual fighting when at sea. For that reason alone, I welcome the proposal that they should all be eligible to sit upon courts-martial. I believe that it is an admirable thing that the number of supply officers who receive special legal training should be increased. Another most valuable suggestion is that in cases of a very grave character—where, perhaps, a sentence of death may be involved—a judge advocate shall be chosen from King's Counsel or from experienced barristers. I can imagine that when a ship is on a foreign station that might present some difficulties. But to-day, flying time is very short to almost anywhere, and I am sure that the Lord Chancellor would do all in his power to supply a competent and capable judge advocate in such cases.

There is one other proposal to which I should like to make reference. It is suggested that fines should be introduced for officers. At first sight, I do not like that idea. It seems inappropriate to a fighting Service that a fine should be introduced as a punishment. As a magistrate, I know one usually inflicts alternative punishments One says that there shall be a fine or, possibly, imprisonment. Are we to have a system of alternative sentences for officers, whereby they will either be fined so much or lose six months' seniority, or something of that kind? I must confess that I am rather taken aback by such a suggestion. In my view it is an admirable thing that the proceedings before the appellate tribunal will be similar to those before the Court of Criminal Appeal. Broadly speaking, I feel sure that these recommendations of the Pilcher Committee will lead to justice being administered in the Navy, as it should be, in accordance with known and settled laws.

There are two questions which I should like to ask. Naturally I expect no reply to-day, but perhaps I may come back to these matters when we debate the Naval Estimates. I agree that perhaps the questions are not entirely relevant, but they do relate to the general question of justice in the Navy. One thing which I find curious is that different punishments may be inflicted for the same offence, according to the rank of the commanding officer. Two men may commit precisely the same offence, but if the commanding officer of one ship is a young officer and the commanding officer of the other is a more senior officer, the men may receive different penalties. That seems to me a most peculiar thing. In a nutshell, the junior officer may not inflict the same punishment which a more senior officer may inflict, although the offence is the same. That is exactly the same as if we were to say that the cashier of a country branch of a bank who embezzled £200 would receive less punishment than the cashier of a head office in London who committed the same offence. I am sure that there must be some explanation for this situation. When one cannot understand a thing, nine times out of ten it is because one does not know the explanation, and I am sure that there must be a good explanation of this.

When we debate the Naval Estimates perhaps we might also hear something about the exact procedure in regard to the making of complaints by ratings. A rating has the right to come before his officer and make a complaint, but in the past— no doubt it is better now—there has been a very strong feeling on the lower deck that it is not healthy to make a complaint. I should be grateful if, in the course of the debate on the Navy Estimates, we heard something about that matter.

The third question which I wish to raise is perhaps a more vexed one. I said something in the beginning of my remarks about flag officers. There is one instance where I think flag officers suffer a very great injustice indeed, and it is this. A flag officer who in the eyes of the Admiralty has made some error of judgment may be ordered to strike his flag. As I understand it, in those circumstances he has no right to demand an inquiry into the conduct which led to that order being issued. It is difficult to imagine anything more hurtful, more galling, to a flag officer, especially in time of war, than to be ordered to strike his flag. One can think of hardly anything which can be more painful to him. It seems to me a denial of what I call the simple human rights to say that that bitter experience can be inflicted upon a man who has risen to the very top of his profession, and that he has no power to demand an inquiry. I have in mind an instance of the sort which occurred during the war. This actually happened to an extremely distinguished officer, and I know that amongst a great number of Service men the feeling is that he was extremely harshly treated, and indeed was made a scapegoat for something which had gone wrong higher up. With the acceptance of this Report—making improvements and so on in the administration of discipline and courts-martial— there must surely be some reason, which one would be glad to hear, why flag officers are denied what I, at any rate, should regard as a very obvious right.

I should like to join with those who have congratulated the Government upon the steps forward that they have taken in this matter. One hopes that the public will realise how very infrequent are courts-martial in the Navy, and how excellent is the state of discipline. I believe that the decision of the Government to accept so many recommendations of the Pilcher Report will give the Admiralty a good dividend in contentment, in morale, and in good discipline. For, above all, good discipline must be based on respect for the law, and I think the recommendations of the Pilcher Committee endorse that view.

4.11 p.m.

LORD GIFFORD

My Lords, the noble Lord, Lord Winster, started his speech by expressing diffidence because no fewer than two noble and gallant Admirals of the Fleet were present. I notice that while he has been speaking two more have arrived, and also a very distinguished Admiral. Naturally, therefore, I, as a comparatively junior officer, feel even more diffident. There is one small point which I should like to mention in connection with a remark made by Lord Winster. I always thought that the term "court of iniquity" was used for the court of inquiry—not the court-martial. With regard to the noble Lord's point concerning penalties imposed by junior and senior commanding officers, surely it is merely a question of an upper limit of punishment; a junior commanding officer cannot award the full punishment for a particular offence. If the full punishment is necessary he must pass the matter on to a higher authority.

THE LORD CHANCELLOR (VIS-COUNT JOWITT)

My Lords. I am not going to "butt in" on this matter—it is too technical for me -but is not the situation rather like this: that a junior officer has to get the approval of his flag officer, whereas a more senior officer may be able to dispense with that approval? As I say, I am not going to argue the matter, because it obviously needs consideration.

LORD GIFFORD

I think that is right. He may have to get the approval of the captain of the depôt ship or something of that kind.

I think the Royal Navy owes a great debt to Mr. Justice Pilcher and his Committee for their admirable Report. I was going to start my speech with a quotation from paragraph 45 of the First Report, which begins: A naval court-martial is attended by considerable ceremonial and enjoys a high degree of prestige among officers and ratings in the Royal Navy …. The noble Viscount, Lord Hall, has already quoted that same paragraph. I believe that that paragraph, and the tone of the whole Report, show that on the whole there is very little dissatisfaction with the working of the Naval Discipline Act. It is only right to emphasise once again how very rare a court-martial is in the Royal Navy. I think the average in the past ten or twelve years has been something like one per 1,000 men per year. I myself have never served in any ship in the Royal Navy at any time in which a court-martial has taken place, but it is a most awe-inspiring affair.

I think that one of the reasons why the court-martial procedure in the Navy works so well is the admirable corps of Supply and Secretariat officers which the Navy possesses. A good many of them have had legal training, and it has been suggested that such training should be extended. They have a great knowledge of the Naval Discipline Act, and of court-martial procedure and preparation. I believe that this is one of the reasons why naval courts-martial are so very carefully carried out. I have served also in the Royal Air Force, and was at one time a court-martial officer in that service. Owing to the greater number of courts- martial that take place in that Service, and to the limited powers of the commanding officer, it is often difficult to find the right type of officer to act as president of a district court-martial. And this is even more applicable in the Army. I remember that once, when there was a whole flock of courts-martial at one period, I had the greatest difficulty in finding a president to try a case. When the proceedings came to me, prior to going to the judge advocate, there were no fewer than eighteen glaring errors. I listed these, and sent the proceedings back to the president. He telephoned me and asked me why I had sent the proceedings back. I pointed out that there were those errors He said, "My dear chap, the fellow obviously 'pinched' the watch, and is now in 'jug.' What are you worrying about?" With regard to another point which has been mentioned, I would remind your Lordships that the findings and sentence, in the case of a naval court-martial, were always read out in open court, whereas in the Army and Air Force they were not. I have always thought that, as regards the findings, the latter was a ridiculous procedure. What was read out was that the accused had been found not guilty on, say, charges 1, 5 and 7. It did not take much intelligence to realise that he was guilty on charges 2, 3, 4 and 6.

As the noble Viscount, Lord Hall, has said, the majority of the recommendations of the Lewis Committee have been accepted. One of the main ones is, of course, that concerned with the court-martial appeal court and I am sure that nobody would quarrel with this proposal. If it is granted to the other Services, the naval officer or rating should obviously have the same right. Another recommendation relates to naval courts-martial having to be held afloat. I think it is only right to-day, when there are so many units ashore and so many naval air stations, that they should be held ashore without special permission. I agree with the proposal that a leaflet should be given to the accused, giving him a summary of his rights before he goes to trial. Another point which has already been touched upon is that in the past survivors of a ship which had been lost were liable for trial. It was a procedure that was seldom adopted, and I think it is right that it should now be abolished. Another recommendation was that the advice of the judge advocate should be given in open court, and that he should not retire with the court. I do not think there has been any miscarriage of justice through the judge advocate's retiring with the court. As the noble and learned Viscount the Lord Chancellor has said more than once, it is not only necessary that justice should be done; it should be evident to all concerned that it has been done. There was perhaps a feeling, however, that the judge advocate might unduly influence the court if he was present when they were considering their findings.

It is right that the very considerable powers of a naval captain should remain unaltered, and in fact they have remained unaltered, except in one respect—the power of dismissal with disgrace. A more controversial point is, whether the captain of the accused man's own ship should be the president of the court-martial. I am sure that no convening officer would ever appoint the captain to preside at a court-martial unless it was absolutely essential. But I regard it as necessary that the Navy should not be tied down too much, because from time to time there are cases where ships are completely isolated—say on the Pacific coast of South America, or possibly up some river in China—where it is impossible to convene a court without utilising the captain or other officers of the accused's own ship.

There is another controversial point to which I should like to refer—whether only executive officers should be members of the court. I am glad to see that it has already been agreed that executive officers of the Reserves shall be eligible to sit on a court. On the whole, I am inclined to disagree with the noble Lord, Lord Winster, and to agree with Admiral Palliser's remarks in the Pilcher Committee Report: that at the moment, at any rate, the sitting of the court should be confined to executive officers. As Admiral Palliser says, executive officers have always been regarded in the Navy as the magistrature of the Navy. Finally, there is the recommendation that young ratings in training ships should be given talks explaining the effects of punishment and also their rights under the Naval Discipline Act. I see that this matter is still under consideration. I think it is a point which should be regarded with caution. At first sight it is attractive, but in the young mind of an uninformed man it may tend to develop what the Navy so hates, the sea lawyer. So I think the Admiralty are right to give careful thought to this recommendation.

To sum up, the Pilcher Committee have wisely agreed to recognise the great differences in conditions of service as between the Royal Navy and the other Services. They have resisted the temptation to make a kind of uniform code for the three Services, which I think would have been quite impracticable. There are a number of criticisms in the Report, but I can end by saying that I think the Navy comes out of it very well indeed.

4.23 p.m.

THE LORD CHANCELLOR

My Lords, my task to-day is a comparatively simple one. Indeed, for me it has been an unusual experience. It has been "roses, roses all the way," and there is little that I desire to add. The last two speakers, the noble Lords, Lord Winster and Lord Gifford, will not mind if on the rather technical questions which they have asked me I do not attempt to give an answer on the spur of the moment. It would be more courteous to them if a more detailed answer could be given, per-haps by letter, rather than that I should embark upon this difficult and perilous subject now.

I want to start by saying this, apropos of what the noble Marquess, Lord Reading, said in his opening remarks. I believe that there are two principles which we should always have firmly in our minds about any form of legal proceeding. The first is this. Anything like a trial by newspaper is absolutely abhorrent to anybody of our race. So long as the trial is on—and "on" in any sense; by that I mean until it is finished—it is quite manifest that there must not be comment about it at all. It really is common sense. Equally, the next principle is this. When the trial is over—and the trial should always be in public and always there should be a fair report of what took place —then open the gates and let everyone criticise as much as he likes. I think the observance of those two principles is of fundamental importance to the proper administration of justice, whether by court-martial, in civil law or in any other way.

I cannot help thinking that the failure of the papers to which the noble Marquess referred to observe this rule was partly due to ignorance of the facts. They did not realise that the findings of the courts-martial there in question were not completed until they had been confirmed by the officer commanding. Until this has happened, the trial is still on, and therefore the comments that were made were wholly irregular. At an earlier stage I endeavoured to point it out, and the Attorney-General pointed it out in another place. I hope that the lesson has sunk in and that this will not occur again. I do not think any alteration of the law is necessary. It now becomes plainly a matter of law. When and if this is done again, it will be necessary to take the appropriate steps to deal with the matter as one involving contempt of court. So much for that, which I mention because the noble Marquess referred to it at the opening of his speech.

Then there was the small criticism— the only thorn in the roses—relating to the delay which had taken place. Let me tell your Lordships how the matter started. We did, of course, consider whether the first Committee, the Lewis Committee, should deal at one and the same time with both the Army and the Air Force, on the one hand, and the Navy on the other. I frankly admit that the Navy were much opposed to that idea, and I think they were perfectly right, for this reason: that the two systems are wholly dissimilar, so that you need a different set up in your tribunal, your staffing of officers, and so on, in the Army from what you need in the Navy. The Navy necessarily is wholly different. First of all, I think I am right in saying that the Judge Advocate of the Fleet at no time ever concerns himself with the prosecution. The prosecution has never in any shape or form been any concern of his. He merely comes in at a later stage altogether as a reviewing authority, whereas (theoretically, at any rate) one might say that the Judge Advocate-General was concerned both with the prosecution and with the review. Of course he was not so really, because he took very good care that the people who had anything to do with the prosecution had nothing to do with the review. Therefore, the requirements of justice were in fact completely observed, although there was the weakness that both prosecution and review were technically under the control of the Judge Advocate-General. That is the reason for our recent alteration.

Then we must always remember, when considering naval courts-martial, that it is the fact—and I am not going into technicalities—that necessarily the commanding officer in an appropriate case has power to award confinement up to a quite substantial extent, and it must be so. A ship may be at sea and it may be absolutely impossible to constitute a court-martial, so that offences of a less serious nature must be dealt with in that way. Thus in origin, in practice and in the way that they have developed, the Navy necessarily has evolved a completely different system from that which has been evolved in the Army. When it was suggested that the whole subject should be dealt with by one Committee at one and the same time, with both Navy and Army officers serving on it, that was thought an undesirable way of dealing with the problem, since the Navy and the Army would be raising quite different topics. I think that view was right. I think it was much better in the first place to confine the inquiry to the Army and the Air Force, and then, in the light of that inquiry, to see how far the Navy could join in and have a similar system.

Well, Mr. Justice Lewis reported, and I gather from the noble Marquess it was exactly nine months between the date of the appearance of the Lewis Report down to the time of its publication. Nine months seem to be a very suitable time in which to consider the matter; and although it may be that if the noble Marquess himself is ever concerned with these matters in the future, he will shorten all these periods, I am quite satisfied that in this case a period of nine months was an eminently reasonable and proper one. That is how it cams about that, finding that the Navy felt they were not prepared to accept this, that or the other, we then had the Pilcher Report. When we had obtained these two Reports—and I will say what I have said before, how greatly we are indebted to the members of the two Committees for the work they did —it became necessary to see how far we could harmonise them. A Committee of the three Services was set up and has been working, with everybody pooling their ideas. We have devised this scheme, which I am not going to discuss to-day because it is going to come out in a Bill in the near future, but which I know meets the wishes of the officers of all three of His Majesty's Services.

I should just like to say that I believe that the courts-martial system, whatever its defects may be, in point of form—I am talking now of courts-martial in the Army, the Air Force and the Navy—is an extraordinarily fair system. If I were innocent of the crime with which I was charged, I would not much mind whether I was tried by court-martial or by a judge and jury, but I have come to the conclusion that if I were guilty I would rather be tried by court-martial than by judge and jury. Of course, the whole point of our system is to try to see that we convict the guilty and acquit the innocent. To be quite certain of not convicting somebody who is innocent, we have to pay the price (and we all know it) of giving the benefit of the doubt to the accused, and by reason of that process a good many people who are in fact guilty get off. But it is much better that that should be so rather than that we should run the risk of convicting an innocent man; and I have no doubt that in the past courts-martial have given the benefit of the doubt to the accused in somewhat generous measure.

I have had some little experience of courts-martial and, as a Law Officer, I had sometimes to consider what had taken place. Though I have found matters which in point of form one could criticise and which would perhaps shock lawyers, I think I can say that I have never found a court-martial which I thought had arrived at the wrong conclusion so far as guilt and innocence was concerned. Of course, that is not to say that we must not be careful to see that the forms, the procedure and the law are regularly applied. That, indeed, is the justification for our Bill, which I am not going now to discuss. I am glad that we are keeping the title of Judge Advocate-General. It is a very old and honourable one and I am sufficient of a traditionalist to like to keep these old things. I think that to him and to his predecessors of many years ago, and to the Judge Advocate of the Fleet and to his predecessors, as reviewing authorities, all of us in this country owe a deep debt of thanks. I believe that the way in which they have administered their respective offices and seen that justice was done has been a great factor in making courts-martial the satisfactory tribunals which they are now generally recognised to be.

There are one or two other matters about which I want to say a few words. I am selecting only matters which are not going to be the subject matter of our Bill, because the other topics we shall discuss at the proper time. First, there is the question of unanimity. The rule always was that you did not have to have unanimity for a conviction, and you did not have to have unanimity for an acquittal. So long as you had a majority for acquittal, then, of course, you got an acquittal. But Mr. Justice Lewis's Committee recommended that there must be unanimity, both for a conviction and for a finding of innocence, so that if there was anybody sticking out, even if there were four to one in favour of a "Not guilty" verdict, then the court would not be able to discharge the man but would have to order a re-trial. I must say, with the greatest respect, that I do not think that that is a practicable scheme. I agree with the noble Marquess, Lord Reading, that when one realises that this trial is not a trial before a judge and jury but is much more like a trial before five judges, or, if you like, by five magistrates, it seems that the doctrine of unanimity is really out of the question. In the Privy Council five judges generally sit, but we deliver one judgment, which is, of course, the judgment of the majority, and is the judgment of the court. I think it is fallacious to bring in the conception of judge and jury to such a question as this. I am not going to embark upon a disquisition of the law of Scotland, but be it remembered that in Scotland there need not be unanimity. Even with a jury there is a majority decision, and, so far as I know, the administration of justice in Scotland is working with considerable satisfaction.

VISCOUNT SIMON

May I ask my noble and learned friend one question? I am not myself instructed, but I see a statement in paragraph 121 of the Lewis Committee Report as regards the Army and Air Force, to the effect that the existing practice is that findings by a court-martial of guilt or innocence are decided by a majority. I was not sure whether, in the sentence that he just used, the Lord Chancellor was suggesting that there had to be complete unanimity before there could be a finding of guilt. I do not myself profess to know.

THE LORD CHANCELLOR

No, I did not mean to say that. That was the practice, but Mr. Justice Lewis's recommendation in paragraph 125 on page 28 is: Accordingly, we recommend that all findings of guilt or innocence should be unanimous. In the event of a disagreement the accused should be liable to be retried before another court-martial with different membership. That was the recommendation which I was criticising, but I quite agree with what is the practice. It is as the noble and learned Viscount says.

With regard to the controversy about other ranks, it is a fact that they have— I think comparatively recently—tried this system in the American Forces. It may or may not work well there, but I do not think the system has been in operation long enough for us to know. My point of view is this: I think one must realise that the upholding of discipline is a task which is quite frankly placed upon, and which should be placed upon, officers of His Majesty's Services. I think it would put other ranks in an exceedingly difficult position if they were called upon themselves to sit upon these courts-martial and perhaps, as it would be said, to "send someone down." That would put them in a very difficult position. In my view, the suggestion that whilst they should be responsible for the verdict of "Guilty" or "Not guilty" they should not be responsible for the fixing of the sentence, is one which it is quite impossible to justify. I therefore suggest to your Lordships that we had better adhere to the existing system, and not try the experiment of having other ranks sitting on courts-martial. And I feel bound to add this. I can quite imagine that if, for example, the regimental sergeant-major were to be sitting on a court-martial, the result so far as the decision was concerned might be considerably less advantageous to the accused person than if some more senior person were sitting. I really do not think that this idea is very good or very practicable.

Various other points have been raised in the debate, but, as I have said, I am not going to deal with them to-day. First of all, it would clearly be improper for me to deal with the Bill beyond just saying this. In drafting this Bill we have throughout tried to draft—and we believe successfully—a Bill which will hold up even under the strains and stresses of war. That, at any rate, has been our object. I am not going to answer other questions, because, as I told Lord Winster and Lord Gifford, they need a little careful examination. I would very much rather that they received that examination than try to answer them now. I will see to it that the noble Lords have by letter the clearest answer possible. I am grateful to your Lordships for this discussion. The noble Marquess, Lord Reading, in some way, apologised for starting it. I am sure that, certainly in your Lordships' House or in any deliberative assembly in this country, no one need ever apologise for discussing and canvassing the question of what is the best and most satisfactory form of administering justice.

4.45 p.m.

THE MARQUESS OF READING

My Lords, I am very much obliged to the noble Viscount the First Lord of the Admiralty for the courteous welcome which he gave to my efforts to expound this somewhat complex matter. May I say, in relation to what the noble and learned Viscount the Lord Chancellor has just said, that my apology was directed not so much to my raising the matter as to the prospect which I saw of having to develop it at considerable length? I do not want to take up further time now except to deal with one or two passing matters. As regards delay, I fully agree —and I think I indicated it in the first place—that it would have been inconvenient to extend the terms of reference of the Lewis Committee to cover naval matters. But what I have still not been told is why, simultaneously, a naval Committee was not set up in order that this whole question, especially as it relates to courts of appeal, might be considered contemporaneously and a solution arrived at at the end of the deliberations of both Committees, instead of one being postdated to the other. I think that what the noble and learned Viscount the Lord Chancellor has said about contempt in this respect will have a valuable and farreaching influence. Obviously, the time has come when something of the sort should be said and should be realised in the quarters most affected.

I am very glad that on the matter of unanimity there has been unanimity so far as this debate has gone. It seemed to me, from the beginning, to be quite impracticable to insist on unanimity, more especially as in the event of failure to arrive at it a new trial in each case was contemplated. What would be the consequences of that provision on active service it is difficult to see. It appears that, time and again, not only would a man be brought up for trial once, twice or three times (after all, if one body of persons treated as a jury has disagreed, the same might well happen two, three or four times in this connection), and not only would the wretched man be kept under suspense all the while, but repeatedly you would have to take away officers, possibly from active operations, to make them serve as members of a court-martial. This debate has produced a very large degree of harmony. I am most grateful to those noble Lords who undertook to deal with the naval side from a far more experienced point of view than mine. I hope that the discussion has been useful. Apart from other considerations in this respect, it may well have cleared the ground for an even more useful debate when the Bill in relation to the establishment of courts of appeal reaches your Lordships' House. I now beg leave to withdraw my Motion.

Motion for Papers, by leave, withdrawn.