§ (1) A person examined as a witness by the Commissioners shall not be excused from answering any question put to him, or from producing any document, on the ground that the answer thereto or production thereof may criminate or tend to criminate him.
§ (2) Every person examined as a witness who, in the opinion of the Commissioners, makes a full and true disclosure touching all the matters in respect of which he is examined, shall be entitled to receive a certificate signed by the Commissioners, stating that the witness has, on his examination, made a full and true disclosure as aforesaid.
§ (3) If any criminal proceeding (including a proceeding by court-martial) is at any 101 time thereafter instituted against any such witness, in respect of any matter touching which he has been so examined, the Court having cognizance of the case shall, on his application, and on proof of the certificate, stay the proceeding.
§ (4) Nothing in this Section shall apply to the case of proceedings for having given false evidence before the Commissioners, or of having procured, or attempted or conspired to procure, the giving of such evidence.
§ Amendment made: In Sub-section (1), after the word "from" ["excused from answering any question"], insert the words "producing any document or giving any information on the ground that such document or information is secret or confidential, or is entitled to be withheld under Section 2 of the Official Secrets Act, 1911, or from."—[Mr. Hazleton.]
Sir H. DALZIEL
I beg to move to leave out Sub-section (2).
I have no intention of pressing this Amendment. My real object is to hear from the Government exactly how far they intend to go. This has to be read in conjunction with Sub-section (3), and as I read these two Sub-sections together it appears to me it would be possible for anybody guilty of gross neglect or misdirection to tell his whole story without anything being done under any circumstances to punish him. How far do the Government intend to go in this connection?
Sir H. DALZIEL
I understand that the point will be raised later, and therefore I will not now press it.
§ Sir G. CAVE
I beg to move to leave out Sub-sections (2) and (3), and to insert instead thereof, at the end of Sub-section (1), the words "but any answer so given shall not be evidence against that person in any criminal proceeding (including a proceeding by court-martial) at any time thereafter instituted against him, and any document so produced shall not be evidence against him in any such proceeding unless the production of that document could be enforced in those proceedings or evidence of that document could be otherwise obtained in any such proceedings."
The general view of the House appeared to be, in the Committee stage, that you should not give witnesses appearing before the Commission such full protec- 102 tion as is given to witnesses under the Corrupt Practices Act in connection with election petitions. In those cases it is provided that any witness who makes a full disclosure shall be given a certificate of full indemnity from the judges who hear the petition. That is a very full protection, but the general view of the Committee was that the protection of witnesses before these Commissions should not go so far. It is not the desire of the House that those who come before these Commissions should by reason of their having made the fullest disclosures be wholly protected from any subsequent proceedings, but, at the same time, it is recognised that if we call upon witnesses to make full disclosure they should not be subject to proceedings on the evidence they themselves have given. In other words, their evidence should not be used against them in subsequent proceedings. Any charges made must be proved in some other way than by the evidence given by the person before the Commission. It would not be fair, and you could not expect a full disclosure of evidence by a witness if his evidence was such as to incriminate himself and thus make him afterwards subject to a charge based entirely upon his own evidence. Therefore we propose to leave out the words to which objection is taken in Sub-sections (2) and (3), and insert these words which are adapted from the Corrupt Practices Act. The result will be that any answer or evidence given by a witness shall not be used against him in subsequent proceedings.
§ Sir W. BEALE
I think there is a very important point which is liable to be overlooked. I find no fault with the Clause as it stands, but is the policy right? Are you not in this way rather sacrificing the chance of getting at the truth from anxiety to serve somebody out for misdoings. I quite agree with the right hon. Gentleman in very much deprecating anything condoning misdeeds that may be disclosed in the course of this inquiry, but I think if you do not have a power in the Commission to give an absolute indemnity you will run a great risk of not getting at the whole facts. You may define cases in which a person is entitled to an indemnity, but there ought to be power for the tribunal to grant absolute indemnity if they find it necessary. It occurred to my mind in connection with a case which is probably out of recollection of most Members of the House—the case of the Sheffield outrages in the year 1868—that 103 the very greatest difficulty was experienced in getting at the facts there. Witnesses went very near to the point of confessing, but one after the other wanted the assurance, "Will you indemnify me and other people as well?" I have refreshed my memory by looking up in the Annual Register of 1868, and it is evident how difficult it was for those who conducted the inquiry to get at the truth, one man after another gasping out, "Will you give me an indemnity and also an indemnity for the men I shall name?" I do not say that it will be necessary to go so far in this case. It is not like a criminal case where a charge of murder is involved. Incidentally I should say that the outcome of the inquiry to which I have referred was to acquit the actual trade unions, and to fix the blame on individual cases. There is no real likelihood, I think, of incrimination here, as there was in that case. The fear of giving evidence may be there. I scarcely think so. Yet it may exist to some extent, for I cannot conceive that one officer will willingly say things, or will volunteer to say anything he can keep back which will cast blame on a comrade, or any other person. But if the tribunal itself has the power, not only to promise himself an indemnity, but one in regard to the others whom he may mention, I think we should have a very much better chance of getting at the truth. I hope I am not actually out of order in speaking on the Clause, which I do not oppose. But what I wanted to point out was that in the interests of getting at the truth, the wording should be in such a way that the Commissioners will have the power to give a further indemnity if need be.
§ Mr. DICKINSON
That is the point I put down in an Amendment on the Committee stage. I think, having carefully considered the words of the Government, they meet the difficulty very satisfactory. I hope they will be passed.
§ Mr. STUART-WORTLEY
I was going to School at the time of which the hon. and learned Gentleman opposite has spoken I have, nevertheless, read about the matter, and I have had the good fortune to meet many of the members of the Royal Commission of which he spoke, and also the smaller Commission of Inquiry, which had special and exceptional, powers. In conversation with them I gathered the feet that they did not at all enjoy the exercise of those tremendous 104 powers with which they were invested. Without the Solicitor-General's Amendment you tend to take away from the tribunal the power of dispensation in that which I believe to be one of the most fundamental and therefore one of the most sacred principles of our criminal jurisprudence—that a man shall not be compelled to incriminate himself. That I believe to be not only a most sacred, but one of the most characteristic principles of our criminal jurisprudence—one of which we are most proud, and one of which we have most reason to be proud.
§ Mr. HUME-WILLIAMS
I put down an Amendment on the Committee stage which I still think would have met the justice of this case. It was that the Commission should have no obligation in cases where the Commissioners reported against the witness. I have some doubt whether the Clause which the Solicitor-General now proposes is quite strong enough, and whether it may not suggest some fear in the minds of witnesses that after all the only protection they are going to have is that that which they actually say in Court cannot be used against them, though it does not follow that others may not be called into the question in respect of the evidence given. It does not at all follow from the suggested Amendment that the whole body of a witness's evidence, in any subsequent case, may not be the subject of proceedings against him. In any such proceedings no such answer as they have given should be used unless it is otherwise produced at the inquiry. So far it is only absolute protection against the words they have used that is provided for, and it is not, I am afraid, complete protection.
§ Mr. SCANLAN
The right hon. and learned Gentleman suggests that the wording of his new Amendment is satisfactory by providing that the tribunal should have power to give an indemnity, but I do not think I have ever seen anywhere anything more illusory in the way of protection than the words set down by the Solicitor-General. The only thing the witness is protected against is that what he says in giving his evidence may not be used in evidence against himself in any criminal proceedings which might afterwards be taken. How would this work out? In the measure in which the witness is frank before the Commission, and discloses anything that may possibly exist of a case against him by the mere 105 fact of this disclosure, he enables the machinery of prosecution to get up evidence on which he can be convicted on a charge which is possible only by the disclosure in the evidence which he gave before the Commission. It may be that in certain circumstances it would not be right to say that a witness who came before the Commission and who had been guilty of a considerable offence should escape altogether merely because he gave evidence. I think that would be absurd, because then the more guilty a man was the more readily he would go into the witness box and give evidence, because by the giving of the evidence he would altogether escape and get scot free. Surely there is a middle course? The Commission is a body of people selected by the House because the House believes in their fitness to discharge this duty judicially and properly. I think the Solicitor-General would make his Amendment acceptable to my hon. and learned Friend who has an objection to it, and to everyone who objects to it, if he takes power in the Clause for the Commission to issue, in a good and proper case, a certificate of indemnity to a witness against prosecution in respect of any matter on which he has committed himself by giving evidence. I humbly submit that as it stands the protection given by the Clause is illusory. It should be strengthened by conferring on the Commission the power to give a certificate which would be absolute for the protection of witnesses in the case which seems proper and reasonable to the Commission.
§ Mr. HOHLER
I confess I do not appreciate the difficulties to which reference has been made. It is understood that this is the usual condition, and that those giving evidence will be precisely in the same position as in a Court of law. Whether the witness appears by counsel or not he will be entitled to say, "I refuse to answer such-and-such a question on the ground that it will incriminate me." The Commission cannot get behind that. The witness has committed no contempt. What he has done is his legal right. There is no difficulty about this matter, for the legal position is quite understood.
§ Sir G. CAVE
With respect to what the hon. and learned Gentleman for Bassetlaw said, nothing the witness says would incriminate himself or could be used against him. As to the observations of the hon. Member for Sligo, it may be remembered that in the discussion in Committee Members strongly pressed the Government not 106 to insist upon certain specified words. The point taken was this: If you authorise a Commission to indemnify a witness who makes a whole disclosure, then the man who is most to blame comes before the Commission, and if he makes a full disclosure of his misdeeds, he will be entitled to an indemnity. This is not what the House desires. The point is that but for this Clause a particular witness might say, "I decline to answer because the answer would incriminate myself, and may expose me to later proceedings." We want to avoid that. We want to make provision that no witnesses may object to answering the questions of the Commission on the ground that the answers might incriminate them. Having done that, it is surely right to say that we must not take advantage of the provision.
§ Amendment agreed to.