HC Deb 24 August 1881 vol 265 cc852-7

Order for Committee read.

Bill considered in Committee.

(In the Committee.)

Clause 1 (Short title of Act).

SIR WALTER B. BARTTELOT

expressed a hope that the right hon. and learned Judge Advocate General would state exactly what was the nature of the alterations which had been made in this Bill. He made that request, because the right hon. and learned Gentleman had stated the day before that certain gaps had been filled up by the draftsman. There was, of course, no objection upon that ground, so long as the draftsman's alterations did not in any way touch the Acts passed in that House; but if they went beyond, and introduced now matter, he should feel it his duty to oppose the further progress of the Bill on that occasion. He had not the least doubt the right hon. and learned Gentleman would be able to give a complete and satisfactory explanation. While he admitted the necessity that existed for consolidating the law relating to the Army, in the interest of the Army itself, he held that they would not be doing their duty to the Service if alterations were made in the present Bill, about which nothing was previously known. Therefore, he appealed to the right hon. and learned Gentleman to state at once whether any change had been made that touched the vital interests of the Army.

THE JUDGE ADVOCATE GENERAL (Mr. OSBORNE MORGAN)

said, he was obliged to the hon. and gallant Member for West Sussex for affording him the opportunity of making a statement with reference to the alterations made in the wording of this Bill. He had caused it to be printed with italics, in order that the additions and omissions might be seen at a glance. Practically, the Bill was only a consolidation of the existing law; but there were one or two Amendments, of which he would furnish the Committee with instances, that did not come under that category. They were, in fact, alterations which he believed the Committee would at once consent to, inasmuch as they involved no kind of principle whatsoever, and, in any case, they were made in the interest of the soldier. Take, for instance, the Amendment in page 3, section 6. Under the existing law, certain offences committed on active service were punishable with death, amongst them the making known of the countersign to persons not entitled to receive it. Then the old Act went on to say— "Or without good or sufficient cause giving a parole or watchword different to that which he receives." That was, on active service, also punishable with death. Now, it might be quite possible that a man should give a wrong parole or watchword by mistake; and it would, he thought, be very unjust that he should, under such circumstances, be sentenced to death. Therefore, he felt sure that the alteration which proposed to do away with that punishment in the case mentioned was one to which no hon. Member would object. There was another alteration, which went, perhaps, a little beyond the principle of consolidation. There could be no doubt that, in the section of the old Act referred to in the margin, the words "non-commissioned officer" were omitted by mistake, and it was now proposed to add them, thereby extending to that class the protection given by the clause. Then it was proposed further on to add the words "or countersign" after "watchword." All these alterations simply put into words what he believed, to be a correct interpretation of the Act of 1879. There were some slight alterations of a purely technical character that were rendered necessary by the wording of the Bill, and which, he believed, would be at once agreed to. The proposal to make the offence a second offence "when tried by court mar- tial," was not an alteration of the law; it was merely a carrying out of the rule that prevailed in Civil Courts, and ought to prevail in Military Courts. There was only one thing that could be said to be really new, and that was one so manifestly in favour of the soldier that he thought the Committee would assent to it. At present, it was the duty of anyone in charge of a prisoner to make his case within 48 hours, and that it was now proposed, in page 10, clause 21, to reduce to 24 hours.

SIR WALTER B. BARTTELOT

observed, that the course he had taken was, perhaps, irregular; but he thought it well to give an opportunity for the right hon. and learned Gentleman's statement, in order that it might be on record that there was nothing in the Bill prejudicial to the Army.

GENERAL SIR GEORGE BALFOUR

said, he had not found any real Amendments to the existing Acts in the Bill, which was not covered by the amending Act authorizing the change; and he must add that he was very much pleased with what the right hon. and learned Gentleman the Judge Advocate General had done. A Military Code was greatly needed, and he thought the Committee could not be too grateful to the right hon. and learned Gentleman for the good work he had done in trying to simplify and make clear the previously complicated and obscure clauses. He hoped the right hon. and learned Gentleman would next year bring in a Bill to get rid of the remaining difficulties and verbiage of the existing Act. A Military Code should be concise, decided, and clear to the soldiers who had to obey the law. The present Code, even as amended, was still far too long.

MR. HOPWOOD

thought the right hon. and learned Judge Advocate General was mistaken in what he had said about Clause 13. The 2nd sub-section of that clause provided that a soldier, if convicted of more than one offence, should be subjected to the higher punishment. With regard to the punishment for fraudulent enlistment—

THE CHAIRMAN

We are now getting to specific matter with regard to particular parts of the Bill. I allowed a somewhat irregular discussion merely on the general scope of the Bill.

MR. HOPWOOD

explained that he had wished to avoid raising his point at a later stage; but he would postpone his remarks to the proper time, when he would be obliged to make them.

Clause agreed to.

Clauses 2 to 12, inclusive, agreed to.

Clause 13 (Fraudulent enlistment).

MR. HOPWOOD

said, that sub-section 2 of this clause provided that when a soldier had fraudulently enlisted, he might be deemed to belong to one or more corps, and that it should be lawful to charge him with any number of offences, and he might be convicted and punished. But this was new matter, and they had been assured that no novelty was to be introduced. The clause proceeded— And, further, it shall be lawful, on conviction of a person for two or more such offences, to award him the higher punishment allowed by this section for a second offence, as if he had been convicted by a previous court martial of one of such offences. How would that act? If a man was convicted of two offences before the same court martial, he would be liable to punishment of imprisonment only, though for each offence; but this proviso enacted that as to the second of these offences the Court, if it chose, might give him penal servitude, treating the latter as if it was an offence committed after a previous conviction. The right hon. and learned Gentleman said that was the same in the Civil Courts; but in those it was necessary by the law that the previous convictions should be expressly charged in the indictment. It was evident this could not be done in respect of a conviction which only preceded the second by a few minutes, or in the course of the same trial. Therefore, this provision was the introduction of an alteration which was not known to the Civil Criminal Law. It was a distinct change, and he should propose that this part of the Bill, from "and, further," should be left out.

Amendment proposed, in page 10, line 8, to leave out from "and, further" to the end of the sub-section.

Question proposed, "That the words proposed to be left out stand part of the Clause."

THE JUDGE ADVOCATE GENERAL (Mr. OSBORNE MORGAN)

said, he could not see the force of his hon. and learned Friend's (Mr. Hopwood's) observations. The cases for which this clause was intended were cases in which a man had committed two distinct acts of desertion—first one, and then the other. If these charges were tried by separate court martials, on the man being found guilty of offence A, he could be tried by the other court martial for offence B. It constantly happened that a man was guilty of the two offences, but they were only discovered at the same time; and what was now proposed was that in such a case the man should be tried for both offences without the court martial being dismissed, and then re-constituted. If a man stole a pocket-handkerchief on one day, and a purse on the next day, and being tried and convicted of the first offence, was then tried for the second offence, that was a second offence for a higher punishment. In the court martials this clause made no change whatever; for, in substance, the second offence, even when tried by the same court martial, constituted a second or subsequent offence. It clearly was so as a matter of fact; and it was useless to go through the formality of dismissing the court martial, and re-constituting it.

MR. PUGH

said, it appeared to him to be very clear that the principle in their Criminal Law was that where a man had been convicted once, if he then got a second conviction, he was liable to a heavier punishment. He hoped the hon. and learned Member for Stockport (Mr. Hopwood) would agree to the clause.

SIR WALTER B. BARTTELOT

said, he did not think the hon. and learned Member for Stockport (Mr. Hopwood) fully appreciated the difficulty in regard to these cases. There were two offences —desertion, and fraudulent enlistment. Now that soldiers were not marked, it was much easier for them to enlist and desert several times, and these cases were becoming more frequent every year. By this clause, a man who did that could be tried for the two offences —desertion from one regiment, and fraudulent enlistment in another—at once and severely punished; and, in his judgment, such a man deserved severe punishment, for, of all things, fraudulent enlistment was the most difficult to detect. When such a man was detected, the punishment now proposed was not too severe.

GENERAL SIR GEORGE BALFOUR

hoped the hon. and learned Member for Stockport (Mr. Hopwood) would not now press his Motion, but allow the clause to pass as it stood. He thought the entries of offences in the regimental book ought to stand against a soldier, and that the word "convicted" ought to be taken in the wide sense that the man had been convicted by another court on duly constituted authority, and, being properly convicted, was thereby liable to the additional punishment for reiterated offences.

MR. HOPWOOD

said, his difficulty was that he found a change proposed. The House was taking the Bill on the understanding that there were no changes; and it was no use saying that this was done to put down offences in the Army. He would put down offences as much as any other man; but he objected to its being done in this way. There must be a first conviction to carry this higher punishment; and he contended that it was wrong to inflict penal servitude, simply because two offences were proved, each of which by itself would incur only a lighter punishment. This Bill was forced upon the House at the last end of the Session, and the House having taken it on trust, he found in it words which he maintained supported what he had said.

MR. WARTON

said, he had no sympathy with the hon. and learned Member (Mr. Hopwood), and would support the clause.

Amendment negatived.

Clause agreed to.

Remaining clauses agreed to.

Bill reported, without Amendment; read the third time, and passed.