HC Deb 09 March 1915 vol 70 cc1320-4

Without prejudice and in addition to any enactment relating to the confirmation of sentences pronounced by courts-martial, where a person not subject to military law or to the Naval Discipline Act is in England or Wales convicted by a court-martial of any offence against any regulation made under The Defence of the Realm Consolidation Act, 1914, he shall have the same right of appeal to the Court of Criminal Appeal as he would have had if he had been so convicted on indictment, and the provisions of The Criminal Appeal Act, 1907, shall extend accordingly.

Proposed Clause brought up, and read the first time.


I beg to move, "That the Clause be read a second time."

It is one which provides that a person who has been convicted by court-martial shall have the right of appeal to the Court of Criminal Appeal. It is unnecessary to argue the point after the various speeches of the learned lawyers to which we have been listening. I was myself delighted to hear the phrase in which the learned Attorney-General held to the old institution of the jury, and I hope he will stick to that phrase. For myself, I neither revere nor do I trust a court-martial. I look upon it at the best as a necessary evil. You do not look for justice from a soldier—[HON. MEMBERS: "Oh!"]—I mean for a judicial examination. I did not mean, of course, to imply for a moment that he was necessarily unjust as a soldier. You will forgive me if I accidentally suggested that; it was quite unintentional. But a soldier is a soldier and a lawyer is a lawyer, and each has his functions, and, therefore, when a person has been convicted at a soldiers' tribunal, I ask only that he should have the right to the Court of Criminal Appeal which is held by lawyers. I believe the Court of Criminal Appeal has worked well, and many a time has prevented injustice.


I beg to second the Motion on this ground: As I understand the Act as it stands, cases tried before Courts of Summary Jurisdiction would still have their right of appeal to the Quarter Sessions, as so many cases have which are tried in Summary Courts. Cases which are tried before judge and jury, I imagine, would have their right of appeal to the Court of Criminal Appeal, and, therefore, it would only be those cases, on the one hand too serious to be tried summarily, on the other hand withdrawn from judge and jury, dealt with by courts-martial, which would have no right of appeal at all, or, if any, only to the Judge-Advocate-General, and I would earnestly ask my right hon. Friend whether it is not fitting that a civilian—for we are only dealing with civilians—accused of very grave offences under this Act should not have the same right of appeal which the vilest person in this country has under the ordi- nary civil law, a right which I am sure all Members of this House would agree has been of the greatest advantage to the administration of the law, and has increased the authority and respect for English justice.


My hon. Friend proposes that in cases dealt with under the Defence of the Realm Act by court-martial there should be an appeal to the Court of Criminal Appeal. Let me say at once that the proposal which my hon. Friend makes is one which I think has many attractive features. It is one which I may be allowed to say had occurred to me and had occurred to the military authorities, and it certainly is not on any obscurantist ground that I am unable to accept it. Military justice is in itself a rather elaborate and carefully constructed machine, and I do not think it should be treated in such a rough and ready way as my hon. Friend has adopted. It has its own systems by which its sentences are renewed and revised, and that machinery is a very elaborate one, carefully worked out and pieced together. In regard to civil justice, I agree that it is based upon a different system. It is not only administered by civilians in the first and early stages, but it goes to an appeal as part of the same civil machinery. If you take the Act of Parliament which created the Court of Criminal Appeal, you will see at once that almost every Section of it is quite rightly based on the assumption that the case has been dealt with in the first instance by a civil tribunal and, indeed, by a jury. You have the summing up to be considered, and the matter of arriving at a conclusion by the summing up to a jury is conditional in a civil tribunal, but it has no counterpart in a military tribunal.

In the same way you will find right through the structure of the Criminal Appeal Act that you cannot marry that form of appeal to a partner which is not at all of the same race or kind and which belongs to a different order of beings altogether. You cannot do a thing like that, and it really cannot be practically managed in that way. But you can do this: You can inquire what are the provisions existing inside military justice for revising and reviewing the decisions of courts-martial, and I would like to tell my hon. Friend what they are. It seems to be supposed that once a court-martial has arrived at a conclusion the sentence must be carried out and there is nothing more to be said. As a matter of fact, whether you are dealing with courts-martial in the Army or in the Navy, and whatever may be your view as to the general superiority of Civil Courts, there is no doubt about it that the machinery provided for reviewing the sentence is more complete in the case of military tribunals than in the case of civil tribunals. Every military sentence has got to be reviewed by somebody and the same is true in regard to naval matters, in which case an official exists for the express purpose of reviewing every such sentence. Something has been said in favour of having the matters dealt with by lawyers rather than by soldiers, but the official whose duty it is to consider every one of these cases is not a soldier but a lawyer. Every single sentence passed by courts-martial, not only corns before the Judge-Advocate-General, but he makes a report upon it, and in a proper case calls attention to the fact, that the sentence appears to require reconsideration. There is a machinery which is necessarily brought into play in connection with every court-martial for reviewing the sentence as an administrative act. They have the assistance of legal authorities and sometimes very eminent legal authorities, and this is in practice taken advantage of in reviewing any sentences passed by courts-martial under the Defence of the Realm Act.

There is also this distinction. If you go to the Court of Criminal Appeal to appeal from the sentence of an ordinary Civil Court, the Appeal Court may say, "As you have appealed to us we are not going to reduce your sentence, but we are going to increase it," and the Court of Criminal Appeal does sometimes increase a sentence. No such thing is possible in reviewing a military sentence, because every military sentence, if altered after review, must be in a sense favourable to the accused. I know my hon. Friend is attached, and I am attached, to the methods of civil justice, but our only excuse from departing from those methods is the emergency in which we stand. I suggest that it is better that we should be frank in this Bill. Do not let us cloak what we are doing by saying that there is an appeal to be brought. If we expose persons who are not soldiers and sailors to a Military Court, I admit that we are departing from the traditions we have inherited, and which we are proud of. But our only excuse for doing it is the necessity of the time, and that puts upon us the most solemn obligation to get rid of this method as soon as it is possible to do so. I cannot consent to do more in this direction than the Bill does now. I ask the House not to endeavour to join together the Civil Court of Appeal with the Military Court in the first instance. The machinery will not work because the whole scheme of the Criminal Appeal Act is not suitable for Military Courts. Therefore, let us do Military Courts the justice of saying that they have their own method of reviewing their decisions which is a very complete one, and let us return as soon as we can without any qualification to the system to which my hon. Friend and many of us are sincerely attached.


I am greatly indebted to my right hon. and learned Friend for his elaborate explanation of this matter, and I ask leave to withdraw my Amendment.

Motion and Clause, by leave, withdrawn.