HC Deb 14 July 1893 vol 14 cc1629-36
MR. NAPIER (Roxburgh)

said, that being successful in securing a place in the ballot he begged to move the Resolution standing in his name. He proposed to call attention to the provision of the law relating to Courts Martial, and to move— That the difference now existing between the procedures respectively obtaining before General and District Courts Martial, whereby in trials before District Courts the prisoner's counsel is not permitted to put questions to witnesses or to address the Court on behalf of the prisoner, whereas at General Courts such counsel is permitted both those privileges, bears hardly upon the soldier and should be removed; and, further, that the Law should in future afford the same facilities to counsel for the prisoner at District Courts as are now enjoyed by such counsel at General Courts. He was afraid he must apologise to the House for bringing before it a matter which must necessarily be somewhat technical; but he was happy to say that he had in his friend, the hon. Member for East Down (Mr. Rentoul), a colleague who could supply any deficiencies, and who had been kind enough to say he would second the Resolution. But the matter he proposed to bring before the House was really one of exceeding simplicity, for the facts would not really be in dispute. He did not pause to lay before the House any historical disquisition on the growth of the powers, either of the Courts Martial or of prisoner's repre- sentatives at the Courts Martial; the historical aspect of the case would, no doubt, be interesting, but he desired to come to the point at once, and he proposed to bring to the mind of the House the year 1881. At that time the late Mr. Ward Hunt, who was not altogether untouched by the sweet reasonableness which came from an early acquaintance with principles of law, desired to infuse into a military procedure the principles that applied in Civil Courts. It seemed to strike Mr. Ward Hunt that that system of procedure which had been firmly built up through many centuries in the Civil Courts was the best means of attaining truth and arriving at the ends of justice in trials of criminal matters; and believing that soldiers tried before Courts Martial had very much the same interests, the same dangers, and the same difficulties to face as were presented to criminals tried in Civil Courts, he not unnaturally arrived at the conclusion that that procedure, which had been tested by long years of practice in the Civil Courts, was by experience shown to be the best at arriving at the truth in administering justice. He therefore provided—and he was assisted by hon. Gentlemen who still occupied places in that House—that in the General Courts at least the same procedure should apply—namely, the system of examination, as it prevailed in the ordinary Civil Courts; that there should be a cross-examination for testing the veracity and aiding the memory of witnesses; and that reasonable latitude should be allowed for addressing arguments to the Court. That was undoubtedly an innovation, because under the old system that prevailed in the Courts Martial the trials were exceedingly difficult for the soldier, as the Court recognised no one but the prisoner. A prisoner might be endowed with ability, with daring, and with a spirit of independence, and if he were he might run some chance of being able to lay his case properly before the Court; but, on the other hand, if he were overawed at the presence of the officers, or from the danger in which he stood, or from some infirmity of speech or intellect, he was decidedly at great disadvantage. Before 1881 the Courts only recognised the power of the prisoner to be represented by what was called his friend, but he could not examine witnesses; he could not address the Court on questions of law, or the construction of the rules of procedure, or the evidence adduced at the trial. Under this old procedure the friend was obliged to draft questions for the prisoner to put to the witness, and draft a speech or address, which necessarily had to be contrived before the case came on rather than being based on the evidence as it appeared at the trial. He had often heard it stated that they had too many lawyers in the House; but he hoped the audience he now had the honour to address did not contain any substantial number of that maligned profession. To any lawyer who had ever had the honour and duty of conducting a case in a Court of Justice it was only sufficient to state the facts to show how impossible it was to carry on a trial with any success or any modicum of chance to the prisoner under such conditions. That was the condition of affairs when, in 1881, Mr. Ward Hunt—

THE SECRETARY OF STATE FOR WAR (Mr. CAMPBELL-BANNERMAN, Stirling, &c.)

It was Mr. Childers.

MR. NAPIER

understood it was Mr. Ward Hunt, but in 1881 a change was brought about. There were two kinds of Courts Martial—the General and the District. The General Court Martial was a Court of superior authority and character, and composed of officers of higher rank and power to deal with crimes of a more serious character. But there was this peculiarity about it—that it was the only Court at which an officer could be tried. If an officer or soldier was tried by General Court Martial he was entitled to employ a member of the Bar for his defence, and his counsel was entitled to all the privileges of counsel in any Court in the Kingdom; he was entitled to examine witnesses direct, to cross-examine witnesses for the prosecution, address the Court on questions of law, the construction of the rules of procedure, and the relevancy or irrelevancy of evidence. Under such conditions a trial could be carried on with a feeling of satisfaction, and a knowledge that no facts would be withheld from the Court, that the prisoner would have the fullest benefit of the laws of his country for the purpose of preventing injustice. There the officer and soldier was on the same plane—upon an equality with every other citizen. But when they came to cages tried before the District Court Martial, where the soldier was compelled to take his trial, they found a very different state of things. A soldier might spend his money in the employment of counsel to defend him, but when he came into Court his counsel was almost valueless, for the reason that the rules of procedure prevented him—even though a barrister well trained in the law—from puttings single question to any witness; he was unable to test by cross-examination the evidence against his client, and, above all, was prevented from addressing the Court on the evidence that had come out. He had heard officers say it was well to keep lawyers and their technicalities out of a Court Martial; but could they show him a case in which an officer who had been labouring under a serious charge against his honour, his probity, or his conduct who had not, in the moment of danger, gone to a member of the Bar and sought that learned and professional assistance they were all anxious to gain? He might cite the case of the senior Member for Northampton (Mr. Labouchere), who, in the course of his picturesque career in life, was not unknown both in Court and in camp; but he was bound to say the hon. Member's principal triumphs had been gained in the Court. They knew that the hon. Member was armed with great learning, with self-possession, with extreme imperturbability, unlikely to be moved or overcome by an undue sense of the majesty of the tribunal before which he appeared; but he could hardly remember any case in which the hon. Member had not been ready and glad to appeal to the distinguished members of the legal profession.

An hon. MEMBER: He argued one case.

MR. NAPIER

said, that undoubtedly the hon. Member argued one case, but it was such a good case that he knew he could win it. If it was necessary for a man of intelligence and cultivation to appeal to the ranks of the Bar for assistance and protection in Courts of Justice, how much more must it be necessary for the poor soldier who, very often, was unable to understand the charge against him, and who stood in fear and in awe of the officers who were to try him? He could assure the House he had often seen men of great courage, of strong independent character, who, when brought before the District Court Martial, had quailed under the circumstances in which they found themselves; and he had felt that it was bitterly hard that these men might not have the same assistance that the commonest criminal obtained in the Court of Quarter Sessions. The officer tried before a General Court Martial was entitled to the same assistance that was afforded to a civilian in any of our Criminal Courts, but the common soldier had not the same privileges, and therefore he was hardly used. From his own experience he could cite cases in which the strict enforcement of the rules of procedure had rendered a full, fair, and complete inquiry impossible. He wished, however, to say that he knew from experience that the officers who constituted the Court behaved with great generosity, humanity, and consideration for the prisoner who was being tried; they had a great desire to do justice, but it was impossible, under the rules of procedure, for them always to carry out their desire. Though a counsel might prompt the questions to be put to the witnesses, it was impossible to conduct a case properly through the mouth of an illiterate and often a half-intimidated prisoner. Under such circumstances the whole case broke down, the Court became impatient, and the prisoner gave it up in despair. His case was that if the officer was to have these privileges the men ought to have them also; the soldier ought to be upon an equality with his officer before the eye of the law. The soldier was upon an equality with his officer in the face of the enemy, and often desired to be before him; on the field of honour they held an equal place, each anxious to be first; and he submitted to the House that they could not do better, in the interests of justice, than to place the soldier in the same position as his officer in the face of the law. These were very serious cases for the soldier, because the District Courts Martial were empowered to inflict a sentence of no less than two years' imprisonment, the punishment often carrying degradation from rank which had been hardly won by long years of service and stripes of honour, together with loss of pension depending upon them. He had seen cases where men who, after painfully toiling up to positions of honour, and having secured to themselves pensions for their declining years, had, by sudden temptations induced by bribery and corruption, given way at the last moment, and lost almost everything. He did not wish to press the matter too far, but from his own experience he could show cases where the system worked badly, not only in the interest of the soldier, but in the interest of the State, where cross-examination would have exposed instances of fraud, bribery, and corruption of a widespread character in relation to stores, and which it would have been to the benefit of the State to have had probed to the bottom. As in our Civil Courts he believed that no harm could come of publicity, he was in favour of Court Martial procedure being as free as the procedure in Assize Courts. If that were the case he believed that great good would come both to the State and the Army. True justice and policy required they should, as far as possible, remove the inequalities—he had almost said the indignities—that attached to the soldier; do not put him on a lower level than the citizens of this country; let him feel that he had the respect of the State; and that when brought before the majesty of the law at least he was there upon an equality with his officer and fellow-citizen.

MR. RENTOUL (Down, E.)

said, his hon. and learned Friend had put his case so fully and so clearly that there remained very little for anyone else to say in support of the Motion. His hon. and learned Friend, though not a military man, took a deep interest in military matters, which was only natural, as he bore a name distinguished in military history; therefore it was that this matter had appealed to him and caused him to give deep thought and attention to a matter outside the ordinary range of his practice and position as a barrister. He (Mr. Rentoul) felt sure the House desired that Her Majesty's soldiers should not be placed in a worse position than other subjects of the Queen—that they should have the same protection and the same means afforded them of defending themselves, and the same opportunity of having their difficulties and their grievances tested. Let him for a moment look at the circumstances under which a civilian who committed a crime found himself and the circumstances under which a soldier found himself who committed a parallel crime. In regard to the civilian, there were three Courts for the trial of prisoners—the Petty Sessions, the Quarter Sessions, and the Assizes, corresponding somewhat with the three Courts Martial—the General, the District, and the Regimental Court Martial. Only a few nights ago they heard from the Solicitor General for England (Sir J. Rigby) that our system of criminal procedure was so defective as to be almost disgraceful. If that was so, one only needed to look at the system of criminal procedure as it existed in Courts Martial in order to see something that was infinitely worse from every conceivable point of view. When a civilian committed an offence, when he was guilty of any crime he was brought before the Petty Sessions; and unless his case was dealt with summarily, or was a case that could be dealt with summarily after investigation, he was committed for trial. No matter whether he was committed for trial to the Quarter Sessions or the Assizes, there was another tribunal he went through before he was put on his trial—namely, the Grand Jury; so that first he had the chance of the charge being dismissed at Petty Sessions, then the chance of having the bill thrown out by the Grand Jury before he finally came to those who were really his Judges, the Judge and Petty Jury, by whom he was to be tried; whereas the soldier came at once, committed by the summary word of his commanding officer, before the tribunal which tried him, so that he had no chance of escaping being tried for the offence. That being so, his chances of not coming to trial at all, of escaping trial, were somewhat considerable. There were three kinds of Courts Martial—the Court Martial General, which was composed of at least nine officers if it were held in the United Kingdom, India, Malta, or Gibraltar, but of five officers if held elsewhere; the District Court Martial, which was formerly composed of five officers, but now of three, under the Act of this year; and the Regimental Court Martial, which was composed of three officers. The composition of the tribunal was a very important point. The officers who happened to form a District Court Martial might have held their commissions for only two years, and consequently it was quite possible that some of those who sat as Judges might be only 18 or 19 years of age. No such thing could possibly happen with regard to the trial of a civilian. But the soldier who came before the District Court Martial might, as a maximum punishment, be imprisoned for two years, or might have a sentence very serious and terrible in its consequences imposed upon him, and when he appeared before this tribunal he was compelled to defend himself. He wanted the House to look at the difficult position in which a prisoner before a District Court Martial stood. In the first place, his Judges, or some of them, were likely to be his own superior officers. He fancied any of the Members of that House, if they were to be tried for any offence, would feel much more cool and collected if tried by Judges with whom they were not acquainted than by Judges whom they had served under, and whose good opinion they were most anxious to retain. So much for the Judges. But who was the prosecutor? As a general rule, he was the adjutant of the regiment, or some other officer who was an amateur prosecutor and inexperienced, and would, therefore, probably prosecute with extreme vigour. The prisoner was left without legal aid, and had often to cross-examine witnesses, many of whom might be his superiors in rank in the regiment to which he belonged. So anxious was the soldier to avoid the difficulty of conducting his own case that he very often feed counsel to sit beside him; but as the counsel could only prompt the prisoner in regard to examination and cross-examination, this often led to a misunderstanding on his part, and he would, in such cases, be infinitely better off without counsel.

Notice taken, that 40 Members were not present; House counted, and 40 Members not being present,

House adjourned at twenty minutes before Ten o'clock till Monday next.