HL Deb 21 May 1971 vol 319 cc711-21

11.5 a.m.

THE SECRETARY OF STATE FOR DEFENCE (LORD CARRINGTON)

My Lords, I beg to move that the Commons Amendments be now considered.

Moved, That the Commons Amendments be now considered.—(Lord Carrington.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

[References are to the first Commons print—Bill 78]

[Nos. 1 and 2]

Clause 2, page 3, line 29, leave out " calculated " and insert " likely ".

Clause 2, page 4, line 14, leave out " calculated " and insert "likely"

LORD CARRINGTON

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 1 and 2. I should like to take No. 6 with them. The Select Committee in another place took the view that the Bill should, where appropriate, use the word " likely " or the word " calculated ", but not both of them. The legal advice was that neither word is preferable to the other, but the Select Committee felt that " likely " would be more intelligible to Servicemen. I beg to move.

Moved, That this House cloth agree with the Commons in the said Amendments.—(Lord Carrington.)

LORD WINTERBOTTOM

My Lords, since it is a virtue in a Bill that it should be understood, the Amendments are sensible.

LORD CARRINGTON

My Lords, I am much obliged to the noble Lord.

On Question, Motion agreed to.

COMMONS AMENDMENTS

[Nos. 3 and 4]

Clause 8, page 8. line 37, leave out subsection (1) and insert— (1) Section 33 of the Army Act 1955 and section 33 of the Air Force Act 1955 (insubordinate behaviour) shall each be amended by substituting the following for the proviso to subsection (1) (which limits imprisonment to two years for offences not committed on active service and not involving violence)— Provided that it shall be a defence for any person charged under this subsection to prove that he neither knew nor had reasonable cause to believe that the person in relation to whom the offence is alleged to have been committed was his superior officer."

Clause 8, page 9, line 20, leave out from first " provisions ' to " shall" in line 22.

LORD CARRINGTON

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 3 and 4; and I should like to take with them Nos. 13 and 14. The effect of these Amendments is that the specific offence of behaving with contempt to a superior officer in the Naval Discipline Act has not been extended to the Army and Air Force Acts. Although this results in a minor exception to the general commonality of the scheme of offences prescribed by the Bill, I would not object to it, for this reason: that I think what it is important to bear in mind is that contempt to a superior officer has been, and must remain, an offence in all three Services. What is in question is very largely a matter of how charges are framed for the offence. I do not think we need be disturbed by the fact that such an offence will continue to be charged under a specific section of the Naval Discipline Act while in the Army and Royal Air Force it will continue to be charged as the more general offence of conduct to the prejudice of good order and military discipline. My Lords, I beg to move.

Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Carrington.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

[Nos. 5 and 6]

Clause 17, page 16. line 30. after "Act" insert ", by the substitution, in the provision to become section 29A, of " 29 " for " 44 " ".

Clause 28, page 22. line 19, leave out "calculated " and insert " likely ".

LORD CARRINGTON

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 5 and 6. Amendment No. 5 is purely a drafting Amendment to correct a deficiency in the original wording of the clause. I dealt with No. 6 earlier, together with Nos. 1 and 2. My Lords, I beg to move.

Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Carrington.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

[Nos. 7 and 8]

Clause 44, page 36, leave out lines 4 and 5 and insert— (1) Section 103 of the Naval Discipline Act 1957 (arrest under warrants of naval authorities) shall be amended by adding the following subsection at the end:— (4) A certificate under subsection (3) above shall be in such form as may be prescribed by regulations made by a Secretary of State by statutory instrument and shall for the purpose of this Act be evidence of the matters stated therein. (2) The following provisions (being provisions corresponding to section 103 of the Naval Discipline Act 1957 (as amended by subsection (1) above) and section 104 of that Act) shall

Clause 44, page 36, line 33, at end ensert— (4).A certificate tinder subsection (3) above shall be in such form as may be prescribed by regulations made by a Secretary of State by statutory instrument and shall for the purposes of this Act be evidence of the matters stated therein.

LORD CARRINGTON

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos 7 and 8. Clause 44 of the Bill has been amended so as to provide that the certificate handed over to the Service authorities by the police when they deliver a person who has been arrested on a warrant into Service custody, shall be in, such form as may be prescribed by regulations made by a Secretary of State by statutory instrument and shall for the purposes of this Act he evidence of the matters stated therein ". This is the formula used elsewhere in the Acts where certificates are prescribed, so we are really only putting this new certificate on the same basis as the existing ones. There is, however, an important practical advantage, because a certificate of this kind ordinarily makes it unnecessary to call the police officer concerned to give oral evidence of the arrest. I commend these Amendments to your Lordships' House. I beg to move.

Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Carrington.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

[Nos. 9 and 10]

Clause 62. page 51, line 19, leave out " by adding the following subsection at the end " and insert "as follows—

  1. (a) subsection (2) (service of process for a hearing more than twenty miles away to be of no effect unless travelling expenses are paid) shall be omitted, and
  2. (b) at the end there shall be added the following subsection:— "

Clause 62. page 51, line 24, at end insert— (2) Section 101 of the Naval Discipline Act 1957 (rules for service of process in maintenance proceedings where the defendant is subject to that Act) shall be amended by omitting subsection (3) (service of process for a hearing more than twenty miles away to be of no effect unless travelling expenses are paid).

LORD CARRINGTON

My Lords, with the leave of the House I beg to move that this House doth agree with the Commons in their Amendments Nos. 9 and 10. I should like to take Nos. 19 to 21 with them. Section 153 of the Army and Air Force Acts and Section 101 of the Naval Discipline Act provide that service of process on a member of the Services in connection with maintenance proceedings requiring his personal appearance at a hearing more than twenty miles from his station shall not be valid unless he is also provided with sufficient money to enable him to attend the hearing and return. In practice. this means that the complainant, who is usually a deserted wife. is compelled to provide the sum required before the hearing can take place. This provision goes back to the days when Servicemen were much less well-paid than they are to-day. It was introduced to obviate the danger that a Serviceman might have to allow his defence to go by default for lack of means to attend the hearing. In present-day conditions, it is out-dated and these Amendments remove this provision from the 1955 and 1957 Acts. My Lords, I beg to move.

Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Carrington.)

LORD WINTERBOTTOM

My Lords, is the Secretary of State absolutely certain that present circumstances remove this objection? A man who is a deserter probably has financial troubles as well; in fact, desertion often comes as a result of financial troubles. Is he satisfied that we are so affluent that this provision can be removed?

LORD CARRINGTON

My Lords, I think so. Generally speaking, this really bore rather more hardly upon the wife than upon the soldier. If the money had to be provided before the hearing could take place, it was the deserted wife who had to provide the money. I think that, generally speaking, it was more unfair to the wife than it was fair to the soldier. In the circumstances, I think this is right.

On Question, Motion agreed to.

COMMONS AMENDMENT

[No. 11]

After Clause 72, insert the following new clause—

Appeal against sentence by civilians

(1)The Courts-Martial (Appeals) Act 1968 (under which appeals to the Courts-Martial Appeal Court are confined to appeals against conviction) shall be amended in accordance with subsections (2) and (3) below.

(2)In section 8—

(a) at the end of subsection (1) (which confers the right of appeal) there shall be added the words " and, if he was a civilian (as defined in subsection (5) below) both at the time of his conviction and when the offence was committed, may also with the leave of the Court appeal against his sentence, unless it is one fixed by law ", and

(b) the following subsection shall be added after subsection (4)—

"(5) In this section ' civilian ' means any person who is not subject to service law (meaning military law, air-force law and the Naval Discipline Act) and any person within section 208A or 209 of the Army Act, section 208A or 209 of the Air Force Act or section 117 or 118 of the Naval Discipline Act (which apply certain provisions of those Acts to passengers in Her Majesty's ships and aircraft, persons employed by or accompanying Her Majesty's forces. families of members of those forces etc.)."

(3)The following section shall be inserted after section 16:—

"Powers on appeals against sentence

16A. On an appeal against sentence the Appeal Court, if they consider that the sentence is not appropriate for the case, may quash the sentence and pass in substitution for it such sentence as they think is appropriate, being a sentence which the court-martial had power to pass and which is not of greater severity than that for which it is substituted."

(4)The provisions of Schedule (Amendments about appeals against sentence) to this Act shall have effect, being provisions making in the said Act of 1968 and the other enactments there specified amendments consequential on, or otherwise connected with, the preceding provisions of this section."

LORD CARRINGTON

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 11. I should like to take No. 16 at the same time. Your Lordships will remember that at the Committee and Report stages of this Bill last December you considered Amendments tabled by the noble Lord, Lord Shackleton, which were designed to give civilians sentenced by court-martial a right of appeal to a higher court against sentence, in addition to their existing rights to petition the Service authorities against conviction or sentence and to appeal to the Courts-Martial Appeal Court against conviction. The noble Lord was good enough to withdraw his Amendments upon my assurance that I would seek to amend the Bill to provide what he wished.

The new clause proposed to the Select Committee in another place gives a civilian convicted by court-martial a new right of appeal to the Courts-Martial Appeal Court against sentence. His rights in the matter of appeal to a superior court will thus be similar to those of a person convicted by a civil court.

We have not been able to follow the suggestion made by the noble and learned Viscount, Lord Dilhorne, that the appeal should lie to the Court of Appeal, Criminal Division. The provisions of the Criminal Appeals Act 1968 are geared to trial by jury and would need lengthy adaptation if that court were to hear appeals after trial by court-martial. Moreover, to provide for appeal to the Courts-Martial Appeal Court avoids the difficulty which could otherwise arise of two different courts considering the appeals of two persons, a serviceman and a civilian, convicted of the same crime. The Amendments attempt to provide, in the most practical way, what I think the noble Lord, Lord Shackleton, had in mind. My Lords, I beg to move.

Moved, That this House doth agree with the Commons in the said Amendment—(Lord Carrington.)

LORD WINTERBOTTOM

My Lords, I should like to express to the Secretary of State the thanks of my noble friend for this new clause, which will carry into effect the reform that he wished to see. If I remember the case correctly, it was based on his experience of a very sad case of infanticide in B.A.O.R. I am certain that this Amendment will remove what has caused hardship and injustice in the past, and will put the matter right for the future.

On Question, Motion agreed to.

COMMONS AMENDMENT

[No. 12]

Leave out Clause 74 and insert the following new clause—

Amendments for introducing naval rate, and marine rank, or Warrant officer

"77. The enactments specified in Schedule (Amendments for introducing naval rate, and marine rank, of warrant officer) to this Act shall have effect subject to the amendments specified in that Schedule, being amendments connected with the introduction of the naval rate, and the marine rank, of warrant officer."

LORD CARRINGTON

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 12. I should like to deal with Nos. 17 and 18 at the same time. It was found that the introduction of warrant officers in the Royal Navy and Royal Marines involved amending further Statutes as well as those dealt with in the original clause. These are entirely technical Amendments which in no way alter the intention of the original clause.

Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Carrington.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

[Nos. 13–21]

Schedule 1, page 61, line 11, leave out subparagraph (13)

Schedule 1, page 61, line 11, leave out lines 17 to 19

Schedule 1, page 61, line 22, at end insert—

"() In Schedule 3 to each Act, the following shall be inserted after the paragraphs numbered 7:—

" 7A. Using threatening, abusive, insulting or Provocative words likely to cause a disturbance. 7A. Using threatening, abusive, insulting or provocative behaviour likely to cause a disturbance.
7B. Using threatening, abusive, insulting or abusive insulting or provocative behaviour likely to cause a disturbance. 7B Using threatening, abusive, insulting or provocative words likely to cause a disturbance ",

() In Schedule 3 to each Act, the following shall be inserted immediately before the paragraphs numbered 10:—

" 9A. Misapplying public or service property. 9A. Wastefully expending public or service property,
9B. Wastefully expending public or service property. 9B. Misapplying public or service property."

After Schedule 1, insert the following new Schedule—

"SCHEDULE

AMENDMENTS ABOUT APPEALS AGAINST SENTENCE

Courts-Martial (Appeals) Act 1968

1.—(1) The Courts-Martial (Appeals) Act 1968 shall be amended as follows.

(2) In section 8(2)(a), after the word " quashed " there shall be inserted the words "or, as the case may require, that his sentence be quashed of (if a sentence of a naval court-martial) annulled ".

(3) In sections 13(a), 14(1), 15(1), and 15(2), after the words " Appeal Court" there shall be inserted the words " on an appeal against conviction ".

(4) In section 16(1), after the words " on an appeal " there shall be inserted the words " against conviction ".

(5) In section 17(1). for the words "or 15" there shall be substituted the words " 15 or 16A "; and in section 17(2), after the words " conviction by", in both paragraphs, there shall be inserted the words " or the sentence of"

(6) In section 31(1), after the words " an appeal " there shall be inserted the words " other than an appeal against sentence".

(7) In section 34, the words " under subsection (1) above" shall be substituted for the words " this section " in subsection (2), and the following subsection shall be added after subsection (3)— (4) Where a person convicted by court-martial is a civilian as defined in section 8(5) of this Act, the Secretary of State may, if consideration thereof by the Appeal Court appears to him for any reason desirable, refer the sentence of the court-martial to the Court; and any such reference shall be treated as an appeal by the person convicted against sentence for all purposes except those of section 32 of this Act.

(8) In Schedule 2—

  1. (a) in paragraph 1(1), after the words " the right of appeal " there shall be inserted the words " against conviction and any right of appeal against sentence ", and
  2. (b) in paragraph 4, after the words "a conviction involving sentence of death " there shall be inserted the words " or against such a sentence itself ", and after the words " any such conviction " there shall be inserted the words " or sentence ".

The Army Act 1955 and the Air Force Act 1955

2. Section 113(3) of the Army Act 1955 and section 113(3) of the Air Force Act 1955 shall each be amended by inserting after the words " leave to appeal " where first occurring the words " against conviction or sentence", and by adding at the end " or, as the case may be, to the sentence to which the application relates ".

The Naval Discipline Act 1957

3. Section 70(3) of the Naval Discipline Act 1957 shall be amended by inserting after the words " 63(1)" the words " or a sentence of a court-martial ", after the words " the finding " the words " or sentence", and after the words " or finding " the words " or sentence".

Insert the following new Schedule—

"SCHEDULE

AMENDMENTS FOR INTRODUCING NAVAL RATE, AND MARINE RANK, OF WARRANT OFFICER

The Naval and Marine Pay and Pensions Act 1865

1. Section 2 of the Naval and Marine Pay and Pensions Act 1865 shall be amended by inserting, in the definition of " seaman or marine ", the words " warrant officer " immediately before the words " petty officer ", and the words " warrant or " immediately before the words " non-commissioned officer ".

The Greenwich Hospital Act 1865

2. In section 5 of the Greenwich Hospital Act 1865, immediately before the words " non-commissioned officers", in both places where they occur, there shall be inserted the words " warrant officers".

The Navy and Marines (Property of Deceased) Act 1865

3. Section 2 of the Navy and Marines (Property of Deceased) Act 1865 shall be amended by inserting, in the definition of " seaman or marine". the words " warrant officer " immediately before the words " petty officer" in both places where they occur, and the words "warrant or" immediately before the words " non-commissioned officer ".

The Army Act 1955

4.—(1) Section 210 of the Army Act 1955 shall be amended—

  1. (a) by inserting, in subsections (2)(b) and (3), the words " warrant officer " immediately before the words " non-commissioned officer" wherever occurring, and
  2. (b) by inserting, in subsection (4) the words " warrant officers " immediately before the words " non-commissioned officers" in both places where they occur.

(2) Schedule 7 of the said Act shall be amended—

  1. (a) by inserting, in paragraph 10, the words " a warrant officer and " immediately before the words " a non-commissioned officer",
  2. (b) by inserting, in paragraphs 19 and 22, the words " warrant officers " immediately before the words non-commissioned officers " wherever occurring, and
  3. (c) by inserting, in paragraph 23, the words " warrant officer " immediately before the words " non-commissioned officer " where they first occur.

The Naval Discipline Act 1957

5.—(1) Section 45(2)(h) of the Naval Discipline Act 1957 shall be amended by inserting the words " warrant officer " immediately before the words " chief petty officer".

(2) Section 112 of the said Act shall be amended by inserting the words " warrant officer " immediately before the words " noncommissioned officers".

(3) Section 132 of the said Act shall be amended by inserting, in subsections (7) and (8), the words " warrant officers " immediately before the words " non-commissioned officers".

(4) The following subsection shall be substituted for section 133(2) of the said Act:— (2) In this Act ` rating ' means a member of Her Majesty's naval forces of or below the rate of warrant officer: and any reference in this Act to a rating, or to a rating of any particular rate, shall include a reference to any warrant officer who is subject to this Act without being a member of those forces, and to any non-commissioned officer, marine, soldier or airman who is so subject, or, as the case may be, to any such warrant officer or non-commissioned officer of rank corresponding to that rate.

The Reserve Forces Act 1966

6. In section 21(1) of the Reserve Forces Act 1966, the definition of " man " shall be amended by omitting the words " (except in relation to the marine forces)" and by substituting the words " warrant officer" for the words " chief petty officer ".

The Armed Forces Act 1966

7. In section 14(1) of the Armed Forces Act 1966, in the definition of " rating ", for the words " chief petty officer" there shall be substituted the words " warrant officer "."

Schedule 2, page 67, line 4, at beginning insert—

"28&29 Vict. c,73, The Naval and Marine pay and pensions Act 1865. In section 2, in the definition of ' officer' the words 'warrant, or subordinate' and the words 'or assistant engineer'.
28 & 29 Vict. c, 111. The Naval and Marine (property of Deceased) Act 1865. In section 2, in the definition of ' officer ',the words 'warrant, or subordinate' and the words 'or assistant engineer',"

Schedule 2, page 67, line 21, column 3, at end insert "section 153(2)"

Schedule 2, page 67, line 28, column 3 at end insert "section 153(2)"

Schedule 2, page 67, line 42, column 3 at end insert "section 101(3)"

LORD CARRINGTON

My Lords, I beg to move that this House doth agree with Commons in their remaining Amendments, Nos. 13 to 21 Amendment No. 15 is a technical and drafting Amendment, and I have covered the remainder in dealing with earlier Amendments.

Moved, That this House doth agree with the Commons in the said Amendments. —(Lord Carrington.)

On Question, Motion agreed to.

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