HC Deb 10 May 1916 vol 82 cc857-63

During the continuance of the present war Section one hundred and fifty-three of the Army Act and Section seventeen of the Reserve Forces Act, 1882 (which relate to offences in connection with deserters and absentees), shall have effect as though the following provision were inserted at the end of each of those Sections:—

"For the purposes of this Section a person shall be deemed to have knowledge unless he proves that he had not knowledge and had taken all reasonable steps to obtain the necessary information."

The CHAIRMAN

The hon. Member for Somerset has an Amendment on the Paper, but I do not know whether it is a drafting Amendment or not.

Mr. KING

It is a matter of very great importance. I beg to move to leave out from the word "though" ["have effect as though"] to the end of Clause, and to insert instead thereof the words

"in paragraphs (2) and (3) of the first-cited Section and in paragraphs (b) and (c) of Sub-section (1) of the second-cited Section there had been inserted after the word 'knowing' the words 'or having reason to believe.'"

Before I go into this Clause, which, to my mind, is totally unnecessary and very objectionable, I want very respectfully to appeal to the right hon. Gentleman whether it is really necessary to proceed with the Clause.

Mr. LONG

Certainly.

Mr. KING

I would be very glad to hear that this Clause is to be dropped. It is not necessary in the slightest degree, and if it is dropped that will save another Division and a great deal of time. There are a great number of people who are very suspicious about the proceedings of this Bill, and if I were told that the Clause was to be dropped I would not say another word about my Amendment.

Mr. LONG

This Clause is really essential in the new conditions in which we find ourselves. It is essential that this change should be made because we have passed a good deal of legislation in the course of the last six months, and it is important and only fair that people should be presumed to know for what they are liable.

Mr. KING

I am very sorry to have heard that reply from the right hon. Gentleman, because it compels me to state to the Committee what the real facts of the case are. This Clause proposes to alter Clause 153 of the Army Act, and I will therefore take the liberty to read that Clause in order that the Committee may know the extensive and large powers in that Act against any person who harbours deserters. The Clause reads:

"Any person in the United Kingdom or elsewhere by any means whatsoever (1) procures or persuades any soldier to desert or attempts to procure or persuade any soldier to desert, or (2) knowing that a soldier is about to desert aids or assists him in deserting, or (3) knowing any soldier to be a deserter conceals such soldier or aids or assists him in concealing himself, or aids or assists in his rescue."

The Committee will see how comprehensive it is. And the penalty is that such person shall be liable on summary conviction to be imprisoned, with or without hard labour, for a term not exceeding six months. I cannot see what the object is in wishing to enlarge the law. This Clause which we are considering enlarges it in a very important and novel respect. If we pass this Clause the whole of this Clause in the Army Act which I have read will be extended to this question, and it will not fall to the prosecuting party to prove that the person that committed the offence knew that the soldier was a deserter: the onus would be on the man to prove his innocence. Now, the Solicitor-General and every Member of this House, whether a lawyer or not, knows it is a totally new principle in English law to assume that a man is guilty and put on him the burden of proving his innocence. That is a new principle, and a totally wrong and unjust principle. It is, moreover, absolutely against the whole principle of English law, and what is it all for? It is for the purpose of bringing one or two possible aiders of deserters to justice. I do not think the House of Commons at this time of night by legislation of this kind, legislation by reference, should subvert one of the fundamental principles of English law. To do so will be a crying shame, and unworthy of our traditions. It is a thing which I shall protest against, and I shall not hesitate, even if I am alone in the Lobby, to go to a Division on it. I totally disagree with the President of the Local Government Board when he says it is absolutely necessary. I do not really believe that the right hon. Gentleman understands the seriousness of the proposal or the subversive character of the principle involved. I am surprised that such a good Englishman and such a fair-minded man as the right hon. Gentleman should put forward such a proposal. I do most earnestly ask that, as I want to continue to have the greatest possible respect and consideration for the right hon. Gentleman, he will now reconsider the matter while the Debate is going on, and either withdraw or, at any rate, modify the Clause.

Mr. MORRELL

I think my hon. Friend opposite has made a very powerful plea, and I cannot believe that the House of Commons, without free discussion, will allow a Clause of this sort to pass into law. I am certain that no one wishes people who are guilty to get off, but, at the same time, we do not wish to pass a Clause which will allow an innocent man to suffer unjustly. It is, I submit, a bad principle that we should lay on a man who may be poor, and may have no experience at all in such matters, the onus of proving his own innocence. It is for the prosecution to prove him guilty, and I contend that it is altogether wrong that the Committee should allow these extraordinary precautions to be taken against a small body of men, many of whom may be entirely innocent. We are, I say, fairly entitled to complain of the way in which this Bill, affecting the liberties of so many people, is being rushed through the House of Commons. [HON. MEMBERS: "Oh!"] I have certainly not delayed the discussion. I have been shouted down once, and that was the first time I had addressed the Committee this evening. We are, I repeat, entitled to complain when an attempt is made to rush through a Bill of this sort at half-past two in the morning when it curtails the freedom of action of such great numbers of our fellow-citizens. I am very much disappointed that a Bill, which we were told was necessary to add 200,000 men to the Army, should prove in the result to be a measure to increase the military spirit in the country and to screw up the penalties. I really hope, therefore, that the Government will think a little before they compel us to pass a Clause of this sort at an hour when clear and careful deliberation is out of the question.

The CHAIRMAN

I must plead guilty myself to having misconceived the Amendment, which is a direct negative of the Clause. The matter, therefore, can only be dealt on the Clause itself.

Mr. KING

With great respect, Sir, I submit that it really does not negative the Clause at all.

The CHAIRMAN

The speeches of hon. Members have been directed to nothing but negativing the Clause. I think we had better take what has been said on the Clause.

Mr. KING

If the Amendment were accepted and then the Clause were adopted there would be some concession, because it would obviate a principle of British law, which I have maintained should be preserved, being thrown to the wind. I would like to make an appeal in that way if I may do so.

The CHAIRMAN

I think there are others who would wish to speak on the Clause, and it is better that they should have a proper opportunity to do so.

Amendment negatived.

Mr. ANDERSON

I beg to move, to leave out from the word "knowledge" ["unless he proves that he had not knowledge "] to the end of the Clause.

The adoption of my Amendment would mean that we omit the question of a man having to prove that he took all reasonable steps to obtain the necessary information. It seems to me, first of all, that the last part of the Clause is unnecessary and it also appears to me that the words are altogether too vague. I am quite sure no lawyer would be able to say how a man could prove that he had taken all reasonable steps to obtain the necessary information. If it is going to be a point of law, the authorities ought to be able to show that the man did not take all reasonable steps. In the earlier part of the Clause it is provided that a man shall prove that he did not have knowledge, that he did not know what was involved; and, surely, If he does that he is doing quite sufficient without having to prove at the same time that he took all reasonable steps to obtain information. I think the Amendment, as I move it, improves the Clause very much indeed, and I hope the Government will agree to it.

Sir J. SIMON

I do hope very much that the Government will see their way to make this change. My hon. Friend opposite was quite right when he said just now that the first part of this change in the law was, to say the least, very unusual, but I think he went too far when he implied that there were not sometimes cases where the burden of proof is thrown on the accused. Those who are familiar with these matters will be aware that you may have cases where that is perfectly proper, but here you are going a great deal further when you say in your Clause, "a person shall be deemed to have knowledge unless he proves that he had not knowledge and had taken all reasonable steps to obtain the necessary information." If a woman has taken in a person for a night's lodging, are you going to say that not only shall she be compelled to go into the box and give evidence that she had no knowledge, but that you are going to have her convicted unless she proceeds to prove that she has taken all reasonable steps to obtain information? Do you mean to say that as part of those remarkable steps she must have sent round to the police and to the barracks? I do not think that the military strength of this country can possibly depend for a single moment upon innovations like that. While I will, though unwillingly, accept for my own part the shifting of the burden of proof in the first part of the Clause, I am bound to say that I do hope that we shall not go in for the second part, which opens a door for people who want to say that you are using this Bill for the purpose of starting a new system of ideas. Therefore I hope that the Solicitor-General, who knows from a practical point of view how very unusual these words are, will promise that they shall be omitted now and an opportunity be afforded later of considering whether that will not leave the measure in a more satisfactory form than it is at present with the words in.

Sir G. CAVE

I have no complaint to make about the way in which the Amendment has been moved and supported, and I must say that some of the arguments which have been used were calculated to impress those who listened to them. There are many cases in which it is necessary to shift the burden of proof, because it is so difficult for a person asserting knowledge to prove it. Therefore, I think the first part of the Section should be retained. But, with regard to the words which are now in question, I think the Committee will understand what the object was in proposing them. It is quite possible for a man to shut his eyes, having the best means of ascertaining the facts to neglect to use those means, to wilfully shut his eyes to the facts. Of course, the object of the proposal was to avoid anything of that kind. At the same time, I admit there is a great deal to be said against the proposal in the form which it takes in the Bill, and I think it will best meet the wishes of the Committee if we do omit these words. It may be a matter of importance, and if we think fit we shall bring up new words.

Sir J. SIMON

I am very glad indeed to hear my hon. and learned Friend say that, but I may point out that it is creating a new offence if you put these words in the Bill. The offence is doing a thing knowingly.

Mr. ANDERSON

I think the Solicitor-General has met us very reasonably.

Mr. POLLOCK

May I point out that there is an exact parallel for these words in relation to the Lunacy Act, where almost precisely the same offence may be committed and where the offence of receiving a lunatic in an unlicensed house, even though based on reasonable grounds, is still an offence, and I think you could justify the whole of the Section under that particular Act, where the offence is receiving persons in respect of whom the person who received them had reasonable grounds to believe they were all right. Almost the exact words are used in the Act I refer to, and I think the whole of the Section could be justified on that ground. I think the late Home Secretary over-stated the case when he said there was no parallel. I think there is a parallel and a precedent, and perhaps the Solicitor-General might care to consider it in that light.

Question, "That the words proposed to be left out stand part of the Clause," put and negatived.

Clause, as amended, ordered to stand part of the Bill.