§ Mr. KELLAWAYI am sorry to detain the House at this late hour, but I shall do so for a very few minutes. I only intrude because the case I desire to call attention to is one in which it appears to me a very serious miscarriage of justice has taken place, and a cruel act of injustice has been done to an English journalist who bears a name honoured on all sides of the House. It will be necessary for me to put the facts of the two cases involved here. The first case is the McCormick case which I referred to by question in the House about six months ago. The second case is that of Mr. Arnold. The McCormick case is the case of a captain who was charged with the 1228 abduction and rape of a native girl of the age of about ten years. Captain McCormick is an Australian and a D.S.O. He settled at Victoria Point in 1909 and he then adopted a Malay child, a part of the terms being the payment of thirty rupees to the mother of the child. The child remained with Captain McCormick for some months, after which she was taken away by her mother. In March, 1911, the mother banded the child over to a woman who was the native mistress of a servant of Captain McCormick. Captain McCormick then saw the girl and removed her from the care of this woman and detained her in his bungalow for a period of three months, denying the girl access to her parents, refusing to allow her to go to see her father who was lying seriously ill and even refusing to allow her to attend her father's funeral. The mother made application to Captain McCormick to have her child back. Captain McCormick refused and roughly handled the woman when she made the application.
The child remained with Captain McCormick for three months, when the mother laid an information before the magistrate, Mr. Buchanan. Mr. Buchanan did not want to hear the case, he having been brought into conflict with McCormick over a concession of some land. He therefore wired to his official superior asking him to send Captain Finney, a police magistrate, to enquire into the case. That application was sent in on July 3rd and it should have arrived at the headquarters within three or four days, but, as a matter of fact, more than a fortnight passed before Mr. Andrew, who was the magistrate whom it is said Mr. Arnold libelled, sent Captain Finney down to make inquiries at Victoria Point. In the meantime Mr. Buchanan had become aware of the very serious charges that were being made against Captain McCormick in connection with this girl. He ordered the girl to be removed from Captain McCormick and the girl was removed by a police inspector. The mother of the girl then went before Mr. Buchanan and accused Captain McCormick not only of having abducted the girl, but of having raped her and having communicated to her a loathsome disease. The defence set up by Captain McCormick was that he had become aware that the child was suffering from this disease whilst she was staying 1229 at the house of the woman to whom her mother had entrusted her, and he said—"out of pure humanity I thought it was my duty to take the girl to my bungalow and examine her, and I took her and I myself examined her. I found she was suffering from an exceedingly virulent form of this loathsome disease. I took medicines from my medicine chest. I gave them to one of my servants and my servant attended this child. I had a right to do that because I had bought the child from her mother for thirty rupees." All these statements were statements which were made when the case came on for hearing.
When Captain Finney arrived and inquired into this case he saw Mr. Buchanan, the local magistrate, who did not want to hear this case. Mr. Buchanan then came to the conclusion that the police wanted to hush the case up, and he therefore decided to issue a warrant for Captain McCormick's arrest on a charge of abduction, and instructed the police to proceed with an inquiry into the charge of rape. That warrant was carried out in spite of the protest of Captain Finney. Captain Finney then wired in a secret code to Mr. Andrew, the magistrate who Mr. Arnold is alleged to have libelled: "McCormick is arrested on an unbailable offence. I hope bail will be allowed." Mr. Andrew allowed bail. During the time before the authority for bail to Captain McCormick arrived, Captain McCormick was entertained by Captain Finney.
Captain Finney finally reported that there was no case on the evidence so far as he had been able to get it. Mr. Andrew, however, decided, there ought to be a hearing. He himself decided to hear the case at his headquarters, some 200 miles from Victoria Point. As soon as the mother heard that Mr. Andrew was to be the magistrate she petitioned the Commissioner that the trial should be removed to another court owing to the well-known fact that Mr. Andrew and Captain McCormick were close personal friends. That petition was sent to Mr. Andrew to deal with. He filed the petition and decided to proceed with the case. The mother also applied that she might be allowed a pleader, as they were poor people and they were not able to pay a pleader. That application also was refused. The case then went to Mr. Andrew's court. One of the statements made by Mr. Arnold was that the case was heard in camera. That statement is denied by Mr. Andrew, and as I have heard a suggestion 1230 that the hearing in camera was desirable in a case of this kind it is important to bear that denial in mind. He denied that it was heard in camera. As a matter of fact the only persons present at the Court—I have the names—were these, the magistrate and his clerk, McCormick and his counsel, two of his servants, the woman and her child, and the interpreter. And here is another factor which I think is of singular significance. Instead of using the official interpreter of the Court at Victoria Point, who had been brought up to the Court, a distance of 200 miles, the interpreter actually employed was the servant of Captain McCormick. I ask the House to try and realise the position of this poor Malay woman and child, in an alien court, when the only means of approaching the judge was through an interpreter who was employed by the man against whom they were seeking justice. Another circumstance was this, that Mr. Andrew refused to admit evidence from two witnesses who were essential to the case of this woman and her child. One of them was the civil doctor who had examined the girl. Two witnesses were entered as being witnesses on behalf of the woman and child who wore actually witnesses for McCormick. That is explained by Mr. Andrew, the magistrate, as being an error on the part of his clerk. The verdict Mr. Andrew brought in was that Captain McCormick's motives had been pure and philanthropic, and he dismissed the case. Two days afterwards he entertained Captain McCormick at dinner, and during the Durbar celebrations Captain McCormick was his guest for a week. I am coming to a conclusion and I know it is an unpleasant and painful story, but it is one which I felt compelled to lay before the House.
When all these facts were known, Mr. Arnold, who is editor of the "Burmah Critic," approached the Government and asked for an inquiry into all the circumstances of the case. He did not succeed in getting any satisfaction, and it was only then that he decided to take up the case in his paper. He then made three statements. One was that Captain McCormick and Mr. Andrew were "boon companions." That expression may be an unpleasant and unfortunate one, but there is no question as to its accuracy, they both being in close and intimate connection over a fairly considerable period. The other was that the case was heard in 1231 camera. I have given the House the actual and undisputed facts as to the persons who were present. The third was that Captain Finney and Mr. Andrew had agreed to acquit their friend of this charge. Mr. Arnold was convinced that there had been a grave miscarriage of justice on the facts as he saw them, and as for myself, I may say that having seen the detailed reports of the proceedings, I have come to the same conclusion. I think there has been a grave miscarriage of justice. Burning with a sense of indignation and believing that wrong had been done, Mr. Arnold did write what may have been indiscreet, he may have used some expressions which were indiscreet, but I think that the sentence of twelve months' imprisonment in a Malay prison which was passed upon him greatly exceeded any guilt for which he was responsible. I venture to ask the representative of the India Office two things—first, that they will institute a full inquiry into all the circumstances regarding the trial of McCormick, and also I hope the Secretary of State for India will see his way to exercise the prerogative of mercy on behalf of Mr. Arnold. I cannot help feeling that having served one month, as he has done, in a Burmese jail, whatever indiscretion he was guilty of has been fully condoned. We are not dealing with the case of a man with a libellous pen. Mr. Arnold is the son of Sir Edwin Arnold, and has a hereditary love for the East, and although he may have gone too far in his criticism, there can be no doubt that his motive was a pure and public one.
§ Mr. MACPHERSONI usually agree with my hon. Friend in the views which he too rarely expresses in this House, but I am sorry to say I do not agree with all the views he has expressed tonight. I think it is a great pity that a matter of such extreme and grave importance to a gentleman who may some day be a distinguished public servant, should be raised at this time of night in the Imperial Parliament. I may say at the outset that I agree with my hon. Friend in what he said when he suggested that the prerogative of mercy might be used on behalf of Mr. Arnold, who the House also will agree bears a distinguished and honoured name, but I do not agree with him on the strictures he has passed upon Mr. Andrew. His first point, so far as I could make out, with regard to Mr. Andrew was that he had heard the case in 1232 open court. The fact is, as the hon. Member states himself, that the police reported that there was no case against Captain McCormick. It is a well known fact in Indian law, as it is in the law of this country, that if the police report that there is no case against a man the magistrate can dismiss the case immediately, but Mr. Andrew did not do that, although it was within his power to do it. He thought it was necessary, as there was some doubt about the evidence on which the police had brought the charge, to hear it in open court, and he did hear it in open court. But the hon. Member did not stop there; he said he ought not to have heard the case in open court.
§ Mr. KELLAWAYNo, no. If I said that, I meant to say the contrary.
§ Mr. MACPHERSONHe did mention something about it, although I am afraid I did not quite catch the point. He mentioned something about the names of the people who were present in court during the trial of the case. As a matter of fact, in an offence of that sort in this country and indeed in every part of the world the magistrate almost invariably uses his discretion, and in India as in this country he clears the court of all people who are not directly interested either as witnesses or as friends of the prisoner. The magistrate in this case may or may not have used that discretion, but I think it is greatly to his credit, and in his favour if he did what he is credited with, and cleared the court in a case where it was alleged that an offence had been committed against a child, an offence of a disgraceful nature, if it was actually committed, or actually proved, against Captain McCormick. The next point is, the hon. Member said that the offence was a non-bailable one. That may be so, but again the magistrate's discretion in a case of this kind is quite undisputed. If it is a non-bailable case he is entitled to use his discretion and allow any person whenever arrested out on bail.
1.0 A.M.
The next point which the hon. Member made was that this Malay woman and child were not allowed a pleader at the expense of the local government. Every person knows that even in this country it was only quite recently that the Poor Prisoners' Act was passed in order to enable poor prisoners in this country to be defended at the public expense. Every person who has any practice in the criminal courts of this country knows that unless a prisoner, however poor he 1233 may be, raises some sort of defence before the magistrates, when he is sent for trial he is not allowed to have anyone to represent him, however strong his case is, and it is not at all surprising to me that Mr. Andrew did not give the woman a pleader Probably he had no power. An hon. Friend tells me he had the power. At any rate, the worst that can be said against him is that he did not use the discretion. The facts are that Mr. Arnold was sentenced to twelve months' simple imprisonment. Everyone knows that simple imprisonment in India is not a very serious punishment. There is no hard labour of any sort, but I do agree with my hon. Friend in impressing upon the representative of the India Office that in a case of this sort the prerogative of mercy ought to be extended to a man who bears so distinguished a name as Mr. Arnold.
My hon. Friend said it was a very serious thing that Mr. Andrew entertained Captain McCormick two days after the trial. As every person knows in this country judges very often entertain barristers and barristers entertain judges. [HON. MEMBERS: "Prisoners?"] I am coming to that point. I do not see why in the wide world if a magistrate who was absolutely convinced that a man in his own station of life, who was tried before him, was innocent, and he got a fair trial, and there was no proof of any guilt, he should not afterwards entertain him if he wished to do so. I do not think, therefore, that any point ought to be made of that. We in this country do not understand the conditions of the East. The conditions surrounding the white man and the black man in India and in Burma are probably not understood by the people of this country, and I do not think that at this time of night my hon. Friend ought to have gone out of his way to bring that forward as a charge against Mr. Andrew. I do not know Mr. Andrew and I have never heard of him before, but I do think it, is a great pity indeed at this hour of the night that accusations made in various quarters should be repeated. I trust, therefore, when the hon. Member representing the India Office replies to the speech of my hon. Friend he will promise the House that the twelve months' imprisonment shall be shortened, and at the same time produce to the House something in substantiation of the character and honour of Mr. Andrew, who, no doubt, is a very able and a very zealous servant.
§ Mr. HAROLD BAKERI make no complaint at all of the way in which my hon. Friend the Member for Bedford has placed his case before the House, but if I do not follow him in the statement of facts which he made I hope that I shall not be taken as not dissenting on my part, or on the part of the Secretary of State for India, from that statement. Some were true and admitted facts, but others were very much open to question. If I pass them by it is because in the short time which remains I desire to come to the real question which is in the minds of hon. Members, and that is what should be done in reference to Mr. Arnold and in his present position. I am well aware, as many right hon. and hon. Members are, that this case has excited a great deal of interest, not only in India, but in this country, too. If the statement of the facts made by my hon. Friend be true, even if Mr. Arnold had been guilty only of a technical offence, still he would have the sympathy of every honest man in the country; but this case is still sub judice, and it must be remembered, with regard to the statement of facts put before us this evening by the hon. Member for Bedford (Mr. Kellaway), that it has not commended itself to the courts which have dealt with the case. It is necessary just for one moment and I must try to be brief to refer to the legal history of the case. As my hon. Friend said, in 1911 after Captain McCormick was first tried before Mr. Andrew on a charge of abduction and rape and was discharged, a petition was presented to the Lieutenant-Governor of the province on behalf of the mother of the child asking him to call for the records of the case and to look into the allegations that were made against Mr. Andrew's conduct of the trial. The Lieutenant-Governor made a full investigation into the matter and declared himself to be completely satisfied and to be unwilling to intervene in the matter. That decision was communicated to Mr. Arnold and upon that Mr. Arnold published two articles which formed the subject of the libels. Again, I should like to point out this, in order to correct the statement made by the hon. Member for Bedford. Those libels were not a mere case of criticism of a magistrate for non-performance of his duty, or any simple suggestion of an error of judgment, or even that there had been shown partiality or friendly bias to a prisoner. They went far beyond that, and were intended as my hon. Friend frankly 1235 admitted, to make a charge of deliberate conspiracy against two officers. They charged that they had conspired together to prevent justice and to screen a friend. It was a very gross libel, if true, upon two judicial officers in their official capacity. That I think should be borne in mind. Next, Mr. Andrew having been the subject of these libels at once brought an action under the criminal code for defamation of a magistrate.
§ Mr. KELLAWAYCan the hon Gentleman say whether Mr. Andrew did that on the instigation of the India Office?
§ Mr. BAKERI cannot give a reply to that question without notice. I think it is not the case. No instigation I think was required. Mr. Andrew, knowing the grave charges made against him was, I think, bound to take action. He did take action for defamation, and that case was tried in the Chief Court of Lower Burmah before the Chief Judge and a European Jury, and they found by a unanimous verdict that Mr. Arnold was guilty of libel, that the statements in the articles were untrue, and he then received a sentence of one year's imprisonment. I think, for the information of the House, I ought to quote what the Chief Judge said in passing sentence:—
I have sentenced the accused to what may seem a severe punishment, because in my opinion no grosser, more unwarranted, or more mischievous libel could have been published, and because the offence has been aggravated by the line of conduct of the defence, both advocates having not only reiterated, but added to the vituperation contained in the articles, and no sort of apology or expression of sorrow for the injury done to the complainant having been uttered even up to the end of the case.On that verdict Mr. Arnold took the case a step further. He applied to the Government advocate for a certificate that they were bound to have a full bench which would consider the points of law and procedure. The Government advocate refused to grant the certificate, and at that point the Burmese Court had performed all the functions which it was entitled to perform. It was functus officio. There was no further court of appeal for the province. It then remained open to Mr. Arnold to proceed to move in the final court of appeal which is the Privy Council. I understand that it is the fact that he is applying to the Privy Council to ask them to exercise the prerogative of the Crown and to grant special leave to appeal in this case. I have only a few minutes left, and I want to utilise them 1236 to deal with the last point, which is Mr. Arnold's position. It must be remembered that the Burmese Chief Court has no further power to act. It has gone to its full extent. It could not entertain an application to grant bail to Mr. Arnold whilst the case is being heard before the Privy Council. There remains the Executive authority, that is the power of the Secretary of State to intervene. I must tell hon. Members that it is the view of the Secretary of State that at this moment it is not his duty to intervene. If he were to do so, he would be anticipating by his intervention the decision which the Privy Council is going to take upon this appeal, and he would be prejudging the very question which the Privy Council has to decide, which is not whether Mr. Arnold is guilty or not, but whether there is a prima facie, case or not for an appeal from the previous decision. It would be an intrusion of the Executive into the sphere of the judiciary just at the point where the Privy Council has to give its judicial decision. Although the Secretary of State is unable at this point to decide upon the exercise of the prerogative of mercy, I am willing to assure the House that, if the Privy Council thinks fit to grant special leave to appeal in this case, there is, I think, very little doubt that the Government of India, or the Privy Council will at once liberate Mr. Arnold on bail whilst that appeal is being heard. I can perhaps go beyond that and say I have very good reason to believe that the hearing of the petition for leave to appeal is being expedited so that it may take place at the earliest possible moment. I am sorry it is not possible to go further to meet what I have no doubt are the views, though I think, the mistaken views, of hon. Members. I can assure the House on these two points, that the hearing of the petition for leave to appeal before the Privy Council will be expedited to the greatest degree possible, and that there is every probability, if the Privy Council thinks fit to grant leave to appeal, that Mr. Arnold will be liberated pending the final hearing of that appeal.
§ Mr. C. BATHURSTMr. Arnold is an old Oxford friend of mine, and I should like to say one word on his behalf. I understand that the Burmese Court has no further jurisdiction, and that his application is now before the Privy Council, and that the case is in the jurisdiction of the Privy Council. That being so, cannot the Privy Council at once release Mr. Arnold 1237 on bail. If it has not the initiative, I should like to ask the India Office to do so as a matter of fair play and justice to the son of an eminent public man, who is a graduate of Oxford University and whose offence, whatever it may be, would not have justified in this country so serious a penalty as twelve months' imprisonment in a Burmese jail. I ask that now the case is in the control of the Privy Council that either the Privy Council or the Secretary of State for India should forthwith exercise such clemency as would enable him to be released at once on bail.
§ Mr. BAKERI am afraid the dilemma is this, that the Privy Council cannot yet act in this case, and the Secretary of State thinks it is not his duty to act in a way which might anticipate the decision of the Privy Council.
§ Mr. C. BATHURSTIf an application were made to the Privy Council as a 1238 judicial body that Mr. Arnold should be at once released is there any reason why he should not be so released?
§ Mr. BAKERI understand that they could not do that until they decide whether or not there is a prima facie case for appeal. They must decide that question first.
§ Mr. KELLAWAYWill there be an inquiry into the whole case?
§ Mr. KELLAWAYDo the Government of India intend to have an inquiry into the circumstances of the case?
§ Adjourned accordingly at a quarter after One a.m., Wednesday, 27th November, 1912.