HC Deb 09 March 1915 vol 70 cc1313-20

His Majesty may by Order in Council establish a Special Commission for the trial of offences under this Act in cases where the person charged would otherwise be tried by a civil Court with a jury or by court-martial under this Act, or where the offence is not tried before a Court of Summary Jurisdiction, and by the same order may provide for the constitution and procedure before such Special Commission, and may direct what cases should be tried before such Special Commission instead of being tried by a civil Court with a jury or court-martial, and such Special Commis- sion may inflict the like punishment as if the offence had been tried by court-martial.

Proposed Clause brought up, and read the first time.


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

When I put this Clause on the Paper my right hon. and learned Friend the Attorney-General had not put down his Amendment to Clause 1, which will come before the House in a few minutes. I admit fully that that Clause does remove one aspect of the Bill which was intended to be dealt with by the Clause I am moving, because that concession does make it clear that the Government, at any rate, may have the power of trial by jury in cases which otherwise would inevitably have gone for trial by court-martial. The reason why I still move this Clause is in order to ask the House to consider whether there ought not to be a further alternative in those cases which would otherwise be dealt with by court-martial. If there are any serious cases in those we are now dealing with, cases which are not tried before a Court of Summary Jurisdiction, but charged under this Act, and the Government is not willing that they should be tried by jury in cases in which a jury could be claimed, they would be tried by court-martial. Some of us think, and have thought all along, that if there are any cases under this Act of a grave nature which cannot be tried by a jury, they ought to be tried, not by a military tribunal, but by a Special Commission of legal authorities.

I move this Clause for the purpose of raising that, issue now on this, the last opportunity which we shall have in the discussion on this Bill. It seems to me that any case so grave that it cannot be tried in a Court of Summary Jurisdiction, while at the same time trial by jury cannot apply, ought to be tried by trained legal intelligences more than by members of another honourable profession whose duties lie in other directions. If the Government can see their way to accept this Clause, to apply only to those cases which would otherwise be tried not by Civil Court or jury, but by court-martial, some of us would gratefully welcome that concession. I move the Clause in this form in order to put as pointedly as I can the issue before the House: that a Special Commission is the true tribunal for exceptional cases like these, and that a court-martial is not a suitable tribunal, except in those cases where the Civil Courts cannot sit at all, and where, therefore, civil justice is for the time at an end.


I beg to second the Motion.

I would draw attention to the fact that the other day the Attorney-General in the discussion on the Bill suggested that the course now pursued under the regulations made this Bill necessary in order to secure the safety and efficient administration of the law. It seems to me that by the appointment of this Commission both safety and effectiveness would be much better obtained than by withdrawing from their military duties officers who, we are given to understand, are sorely needed. The appointment of the Commission would also do away with another thing. It would enable us to remove what seems to me a most serious blot on the Bill itself. That is the proviso by which the Government, at its own option, without any request on the part of the accused, is in a position to change the venue of the trial. As we pointed out in the discussion last week, this is a most serious inroad upon the privileges now enjoyed by the accused. I think it is a very serious matter indeed that the Executive should, under this Bill, be vested with the power of changing the venue. In the discussion in Committee it was pointed out that this might put the accused in a position where it would be extremely difficult to get at the necessary witnesses. Personally, I would welcome the course that is proposed by the Attorney-General for another reason. Notwithstanding all that has been said with regard to the efficiency of the Military Courts, I still pin my faith in the Civil Courts. We have found it necessary in the past to take our judges and stipendiary magistrates from gentlemen who not only were lawyers, but who had considerable practical experience in the law. I cannot conceive that in times when passion, prejudice, and feeling runs high it is wise to hand over the trial in serious cases to military officers, who in the past have had neither legal training nor training in the administration of the law.


A proposal substantially in the same terms as this was made on the Committee stage of this Bill. It was discussed, and not adopted by the Committee. If there was no reason sufficient to adopt it then, I venture to think there is less reason to adopt it now. In the Amendment I have put down I have been largely influenced by the arguments which were addressed to the Committee by my two hon. Friends who have moved this new Clause. In the meantime I have put down on the Paper an Amendment which we shall reach shortly and which really—as I thought—went a long way to meet their main point. What was that main point? It was that as the Bill stood, in the case of a man who was a foreigner and not entitled to claim to be tried by a jury, there was this power to be tried by a jury, if he wanted so to be tried. They pointed out that that produced possible serious difficulties, including the difficulty of distinguishing with certainty between the man who was a British subject and the man who was a foreigner. I agree with them. I think the point they made so far as it went was a good point. In consequence I put down an Amendment which will at any rate make it impossible for a man who is not a British subject to be tried by jury, though it will not confer upon him the right to be so tried, so long as we are living in times of emergency. I have met, as I thought, the main point which the hon. Members had put.


Pardon me, the point I certainly made was this: Not that we wanted trial by jury but trial by Civil and not by Military Courts.


I pointed out, at any rate, that so far as criticism was put forward in the Committee stage there was no power to try by Civil Court a man who was a foreigner. The Amendment I have put down will meet that. Now come my two hon. Friends—I make no complaint, but it is always interesting to see how rapidly arguments can be made applicable—and say: "Please do not imagine we are in favour of the jury—"


I did not say so.


My hon. Friend the Member for Carnarvonshire served with great distinction on a Committee which dealt with this subject. He pointed out that the Commission of which he was a Member, presided over by Lord Mersey, did not have a single witness before them who did not regard the jury as a valuable and necessary element of the criminal trial. Yet now he says there ought to be a special commission. Is there to be a jury with special commission? I suppose not. What then is the proposal? Is it the prisoner who has to choose whether he is to be tried by special commission or a jury, or is it the Government that has to decide whether by special commission or jury? I call my hon. Friend's attention to this, because I am prepared to stand by the good traditional system of trial by jury. I am not going to support any new-fangled proposal.

The only justification for departing from trial by jury is that for the time being, and within given limits, it is in the interests of the national safety necessary to have Military Courts to deal with certain classes of offences. If that is not a good justification then we ought to have juries all the way round. If it is a good justification, then the Bill, as hitherto accepted by the House, is in a correct form. But neither from one point of view or the other is there any justification for starting a new commission which, though it is not the same thing as a court-martial, is still equally far from traditional trial by jury. Either you should have the jury for all cases, or else in the cases where you do not have them recognise that this Bill is, within certain limits, exposing persons who are not soldiers or sailors to a military tribunal. I do not want to wrap that up by pretending we have got some institution which is neither one thing nor the other, and which ought to satisfy the community for all times. I want rather to say that it is emergency, and nothing but emergency, which justifies the use of Military Courts at all for persons who are not soldiers or sailors. Let us frankly face that.

6.0 P.M.


I desire to point out to the Mover and Seconder that the Clause goes a very long way indeed. I understood this Amending Bill was required in order that we might restore the right to claim a jury to persons who were affected by this Act, and who desired to have their liberties retained for them. But what does this Clause do? This Clause gives back to the Government the full power not merely of setting up a Special Commission, but also directing what special cases should be tried before the Special Commission. So away goes the liberty of the subject, away goes trial by jury, and all election on the part of those persons who are within the ambit of the Act; and my learned Friends who have been standing up here and discussing the rights and liberties of the subject are once more putting into the hands of the Executive power, by Order in Council, to decide what cases should be tried before such Special Commission. If the Order in Council decided that all persons were to be tried by Special Commission, away would go all the rights of trial by jury, away would go all the rights and privileges which this Bill was brought in to emphasise and enlarge, and away would go all the purposes of the Bill. On these grounds I think it is a most unfortunate Clause, and I hope it will be negatived.


I am afraid that, after the strong condemnation of the Attorney-General and my hon. and learned Friend, it is useless to attempt to persevere with this Clause, but, as one who has never professed an unreasoning admiration for the traditional method of criminal trial in this country, I confess, if it were possible to introduce this system at this stage, I should be in favour of doing so. The Attorney-General's speech was really exceedingly entertaining. It is very delightful to have something to relieve the gloom of these days as a speech such as that. Here was the representative of the Radical Government making a speech, hitting the box before him, and saying he would never be a party to departing from the traditional method of criminal trial in this great country I hope it was as sincere as it sounded. Surely, putting aside the trial by jury fetish, what we want to arrive at is a method which will secure the conviction of the guilty and the acquittal of the innocent. That is the object we have in view. At times of great national excitement, as I have said in this House before, and I say it again, I do not think trial by jury is the best method of arriving at that result, neither do I think the court-martial is the best method of arriving at that result. Trial by jury is liable to popular passion necessarily, because the whole point is that the jury is taken haphazard from the population, and, if there is a great popular passion running over the country, the jury will necessarily share in that passion as in the other feelings of the community. Therefore, in times of great popular passion, I do not believe trial by jury is the best guarantee of the liberty of the subject.

I do not wish to say a word against courts-martial, but it is really absurd to say that soldiers, who are trained and educated for a wholly different duty, can be regarded as the best tribunal for the trial of criminal offences. I admit that it is an obvious necessity that they should be entrusted with the discipline of the Army, and no one wishes to interfere with that. But that they should be entrusted with the trial of civil cases is a matter that should not be granted except under the stress of urgent necessity. It seems to me the real way out is to have a tribunal of skilled persons who will be more or less free, more or less above passions, and will not be necessarily moved—or, at any rate, will have their training and special experience to prevent their being moved—by popular passion, and will yet have the rapidity, the vigour, which are undoubtedly necessary in times such as we live in at the present moment, and which are the qualities for which we look in a court-martial. Therefore, if I may be pardoned the contradiction in terms, a civil court-martial is really what I should have thought was the best way out of the difficulty. But, of course, in view of the scorn with which this proposal was treated by those who preceded me, although I think there is a great deal to be said for it, I must say to the hon. Gentlemen opposite I do not think it is a very hopeful enterprise to try to introduce it at this stage under these circumstances.


The Attorney-General used a very interesting phrase. He said it is interesting to see how rapidly arguments in favour of a Clause can be applied. He refused an Amendment of mine a little while ago on the ground that really trivial matters such as putting out a light in one place, not having a road in a particular condition in another, were not fitting matters in which a man might have legal defence. And then he refers the hon. Gentleman behind him to his own Clause, which, he says, is a substitute for theirs. And what happens? You find that the moment he puts his Clause in operation these very trivialities will become felonies if he chooses to lay them before his Department. If I construe the Clause correctly, it means this: He claims the right, if a man does not put out his lights at a given hour, to send him before this tribunal, and thereby that act of triviality will be a felonious one. It is a pity the Clause is not framed more clearly—"an offence against any regulations," to wit, not putting out lights at a given moment.


The hon. and learned Gentleman does not read the Clause.


I was going to when you stopped me.


I am sorry. Perhaps I may point out, then, that my Clause deals with offences triable by court-martial. There are some offences under the Defence of the Realm Regulations not triable by court-martial which must be dealt with summarily. The hon. and learned Gentleman's Clause said "for any offence under this Act."


Does the right hon. Gentleman then say that there is no offence against any regulation made under the Defence of the Realm Act that is not a felony? Will he get up and say that?


With the permission of the House I will say it standing. There are some offences under the Act not felonies, and cannot be tried by court-martial, but must be dealt with by the Police Court.


Accepting the statement from the learned Attorney-General with the respect which it deserves, may I say that I think to some extent, so far as the argument is directed against him from his own benches, he has rather met it, and I think further that there is an inherent power in the Crown at common law to constitute the special commission without any Statute. I think there are precedents for it. Of course the right hon. Gentleman does not like any reference to coercion or to such a year as 1798 or 1866, but, although I was not very old in 1866, undoubtedly there were scores of special commissions then for particular purposes, sometimes with three judges, and sometimes with two, and, so far as I know, without any Statute. Therefore, I am prepared to say if the Government were disposed to set up a special commission, that can be done by the inherent power of the Crown.


I ask leave to withdraw the Clause.

Motion and Clause, by leave, withdrawn.