§ In Section fifty-four (relating to the confirmation, revision, and approval of sentences) of the Army Act there shall be inserted immediately after Sub-section (1) the following Subsection, namely:
§ (1) (a) The authority having power to confirm the finding and sentence of a court-martial shall not confirm any such finding or sentence until the accused person has had the prescribed opportunity to make any representation to that authority with respect to the sentence and to any point of law or fact arising at the trial; and that authority shall take any such representation into consideration.
§ The Army Council shall make Regulations for carrying this Sub-section into effect, and in this Sub-section the expression "prescribed" means prescribed by any such Regulation.—[Mr. King.]
§ Brought up, and read the first time.
§ Mr. KINGI beg to move, "That the Clause be read a second time."
7.0 P.M.
I have a number of Amendments on the Paper. They are of two classes. I propose to move those to which this first Amendment belongs. The others, which deals with the penalties imposed under the Army Act, I do not intend to proceed with on this occasion. This first Amendment deals with the sentences of court-martial for men in the field. I raise, in this Amendment, the question of the opportunity which I think should be given to a man after court-martial, and before the confirmation and publication of the sentence, of making representations. A later Amendment raises the question whether the death penalty should be inflicted for desertion, and another proposes a lapse of time after the confirmation of the sentence and before the execution. Another raises the question of a Court of Criminal Appeal, and another suggests that it should be possible for title court-martial to 472 divulge to the condemned man his sentence before it is confirmed. All these points occur on one subject, and I propose to ask you to allow us to raise generally the whole subject, and I shall not take advantage of the later Amendments, and do more than just move them. The question of court-martialling men in the Army for desertion has caused a great deal of interest and even public unrest. There has been a great deal of public comment, and some sensational articles appeared in newspapers, and Members of Parliament have all received letters on the subject. We have got to remember that when a man is taken from civil life, sent out with a very short training to France, and put in circumstances of terror and horror and strain such as soldiers have never before undergone; it must have this effect, that in many cases a man of real courage, high moral standard, and physical endurance, breaks down. Either momentarily or for a considerable period, his nerve and courage have gone, for it happens that, though he is really no coward, he quails before going into action, he hangs back, and then he is charged with desertion—a charge which sometimes renders him liable to the death penalty. That is a very terrible fact he has to face. But of course it is most necessary to keep up the discipline of the Army, and to ensure that a man shall not, on any claim or ground which is not absolutely well founded, fail his comrades in the terrible hour of stress. There are two cases personally known to me in which men have stood their trial for desertion. One succeeded in getting off, and the other was condemned but recommended to mercy. I submit that in each of those cases, admitting that one was rejected, there was in the present procedure unnecessary hardship, possibilities of suspicion of injustice—I do not say more than suspicion—and certainly modifications might be introduced which would make the whole procedure more intelligible to the public and consequently give them more confidence. What happens? When, a court-martial is constituted each member of that court-martial must take the oath that he will not divulge the sentence of the Court until it is confirmed, and that he will not divulge the way in which any other member of the Court has expressed his opinion of the case. A case of desertion may involve the death penalty, even though one member of the Court is against 473 that sentence. The penalty does not need to be the unanimous opinion of the Court. One of the Amendments I have down is to make it necessary that the Court shall be unanimous before the death sentence is enforced. When the Court is open, and when, after the proceedings, it is cleared for the sentence to be considered by the Court, the accused man is taken out. When he is brought back, he is told there and then that he is set at liberty, and he goes free, or he is told that sentence will be promulgated in due course, but he does not know whether he is guilty of the main offence, and going to be sentenced to death, or convicted on the minor offence. I consider that an unnecessary hardship, and involves keeping a man in a state of terrible suspense.
The second point is that he neither knows what the sentence is nor is he allowed to make representations. He knows that he is guilty of something, but whether he is to pay the full penalty or a much less one, he does not know, and he is not allowed to make any representation, and he does not know whether there is any recommendation to mercy or not. None of these things is told him, and none of these things can be told him until the sentence is confirmed. When it is confirmed by the superior authority, then the sentence may be put into force at once, and the man in a very few hours after he knows the sentence may be executed. Another Amendment which I have down on the Paper is to allow a certain limit of time, twelve days I think, between the promulgation of the sentence and the execution. I should like myself to press for the total abolition of the death penalty for desertion. I have had the privilege of discussing this question with various officers, and I have had correspondence with officers, and I know that there is a great deal of difficulty about the abolition of the death penalty in cases of desertion. In the first place, men who form up and go into the terror of battle know that it will take away 50 per cent. of them, and some are likely to hang back, but it cannot be tolerated that any of them should fail their comrades at the last moment. If a man deserts there can be nothing for him but very severe punishment. I admit at the present time that it is very difficult to abolish the death penalty. On the other hand, I would like to point out that we have now got a Citizen Army composed of men who have gone, not unwillingly, into the War—men who at the 474 call of patriotism and feeling that the country desired them to make the greatest sacrifice, have become, soldiers, but who had never wished to be soldiers, who had not the necessary or suitable moral, spiritual or physical qualifications for being soldiers, and these men, naturally, are inclined to fail at the great crisis.
One more fact. No Australian soldier can be condemned to death at the present time for desertion. The death penalty for desertion does not exist in the Australian Army for practical purposes. It exists, I believe, if a sentence is passed and it receives confirmation of the authorities in Australia; but that being practically impossible, we may take it, therefore, that it is correct to say there is no death penalties for the Australian soldier in the field. Yet I have never heard it said that the Australians in any way lack bravery or discipline. I do not believe myself that if the death sentence were abolished we would have more desertion or less discipline in our Army. I have stated the case on each of my Amendments except in the last of them on the Paper, which is one I hope, at any rate, will be granted by the Under-Secretary for War. It is one which I think would bring great relief to everybody who has thought of this measure. It is one that I believe could be carried out without any difficulty whatever, while it would relieve public opinion, which is plain and urgent on this matter, and the granting of it would do a very great deal of good at the present time. It is a proposal by which, when the court-martial is over the accused man is brought in and told that the sentence of the Court will be confirmed and then promulgated in the usual way, it would be possible to inform him of what the sentence was before confirmation.
The procedure, I conceive, would be this: The Court would be cleared of all except, of course, the accused person, who would be told that he had been found guilty by the Court and recommended to mercy, and so on, but that the sentence did not become effective until it had been confirmed. It would allow, by altering the oath taken by members of the Court, the President to divulge to the accused person what the sentence was. That would enable the accused to communicate with his friends, or his representative, or the officer who had undertaken his defence, and anything that could be done would be done 475 from that moment. There would be no unnecessary delay and none of the really painful suspense that he would otherwise undergo. I hope I have stated my case clearly and I hope I have stated it reasonably. I am quite convinced that it is a matter which is on the minds of thousands of parents at the present time. I am quite sure that if we have a sympathetic reply, and some concessions can be made now by the Under-Secretary for War, it will do a great deal to relieve the minds of anxious parents find others at this time.
§ Mr. PRINGLEI have an Amendment on the Paper which is cognate to that which we are now discussing. I understand it will be for the convenience of the Government if we have a general discussion on all these court-martial points at the present time, and I will, therefore, speak on the general question now. My hon. Friend who has moved the Amendment said that there has been recently a great deal of concern in the country regarding sentences of death passed by courts-martial. There was one case in particular to which publicity was given in the columns of "John Bull," and to which I myself have already made reference in a former Debate in this House, and which, I think, has done a great deal to disturb the public mind and to excite the public interest on this particular subject. I do not wish to enter into the details of that particular case, but I would suggest to my hon. Friend the Under-Secretary certain deductions, which, I think, may be made from the experience of that and of other cases. Some of the changes which are required can. I think, be made without alteration of the Army Act, and by Regulations and Rules of procedure. The first point which was made in regard to that particular case was as to the failure to provide the accused man with legal assistance at the very outset of the proceedings, namely, when what is called the minutes of evidence are taken—the preliminary investigation. At the time we discussed the case before, there was general agreement that, in the case of any charge which might result in a capital sentence, the prisoner should receive legal assistance at the outset of the investigation, and not simply when the actual trial by the court-martial commenced. I believe he is allowed forty-eight hours before the proceedings in court-martial are opened. I do not think 476 that requires an Amendment of the Army Act. My own impression is that it could be done by administrative order in some particular form. The second point arises after the trial. At the present time, the evidence given at the court-martial can only be obtained by the accused. For example, at present, if there is the slightest suspicion that there has been a miscarriage of justice at a court-martial, and if the capital sentence has been carried out, it is quite impossible for anybody interested to obtain a copy of the evidence. An effort was made in the case to which I have already referred by the father of the boy who was shot. He was informed by the representative of the Army Council that, under the Army Act, the evidence could only be made available to the accused, and, as the accused was now dead, nobody could obtain it from the War Office. One of the later Amendments on the Paper, in the name, I think, of the hon. Member for North Somerset, and of myself, provides for the sentence being divulged to the accused; so that, if he has any ground of complaint with regard to the conduct of the trial, the procedure, or the evidence given against him, he may have an opportunity of making representations to those who have the power and the duty of confirming the sentence. Members of the Committee will agree that that would be a very considerable reform in itself in the way of eliminating the possibility of a miscarriage of justice in these cases. I think the War Office are willing to accept that. I am not quite sure of the form in which they propose to accept it, but I understand that they have no objection to making a change in regard to divulging: the decisions of the Court.
I myself, and, I think, a number of other hon. Members, are anxious that, in these capital cases, at least, there should be some more regular form of procedure. As I understand it at the present time, the-President of the Court communicates the finding of the Court to the officer who has convened the court-martial. It then goes for confirmation to the various commanding officers, in order of rank, until it goes to the Commander-in-Chief, whose decision in the matter is final. That, I think, is a very brief account of the proceedings. I do not think that is a satisfactory method of obtaining a review of what has been done, for the simple reason that when the documents of a trial go through all these 477 hands you are diffusing the responsibility to far too great an extent. There are all these officers, whose duty it is to confirm the sentence, but you have no security that any single individual among them does direct his mind to the issues raised in the trial. That is the inevitable result of the diffusion of responsibility. It would be well that you should concentrate responsibility for the final confirmation of all these sentences upon a single authority. You would then have an authority upon whom you could rely—an authority with experience. I do not think there is any difficulty in obtaining the men with the necessary experience for such a tribunal—men who would command public confidence, both from their legal attainments and from their experience of military administration. Both these things are required in a tribunal of this kind. I can understand, of course, that my hon. Friend (Mr. Macpherson) is not in a position to accept such a revolutionary change at the present time, but the Army Council might do a great deal administratively to see that there is a proper authority to revise all these sentences, and that the accused person, who is under sentence, has every facility for making any representations which he thinks fit and relevant, and on account of which he thinks that the sentence should not be carried out in his case. These are the main points. First of all, legal advice to the man, immediately a charge which may involve a capital sentence is brought against him; secondly, the divulging of the sentence by the Court to the accused man, immediately; thirdly, the right of the accused person, if he thinks fit, to make representations to the authorities; fourthly, the regularising of the confirming authority, so that there shall be some real and substantial appeal for the man who is under sentence.
§ Commander BELLAIRSI wish to deal with only one point raised by the two hon. Members who have just spoken, and that is that the sentence should be communicated to the prisoner. I quite agree that while we have a citizen Array we should try and make our procedure conform as nearly as possible to the civilian procedure of the country. To my mind, there is no sound military reason why the sentence should not be communicated to the prisoner. I would go further. I think the prisoner ought to be present in court when the sentence is pronounced. That is not only the civilian procedure, but it is the regular naval procedure. In all 478 court-martial procedure in the Navy the prisoner is present in court when the sentence is pronounced, and the regular practice of the Navy is that the sentence should be pronounced in open court.
§ Mr. ANDERSONI wish to add just a word in support of the contentions of the previous speakers. I think the Undersecretary will admit that the discussion has been conducted with real restraint. No one for a minute denies the difficulties that arise in regard to discipline, and matters of that kind; but you have entirely new conditions governing the Army to-day, and I am sure that you would do wrong if you were to attempt now to govern the new Army wholly by the old methods and by some of the old standards. In regard to this question of court-martial for various offences, I think it is most important that you should have Courts where men are able to weigh with judicial fairness all the evidence that is brought before them. If you get different sets of officers you will sometimes have men who have almost trained legal minds, but in other cases you will have officers, who are very competent for the ordinary run of their duty and for ordinary work, but whose minds are not given to the careful weighing of evidence one way or the other, such as would happen in a Court of law. This is very important indeed when a soldier's life is at stake. I think the circumstances should be such that a man should get every possible assistance to put his case, and to bring out every conceivable point. That is sometimes very difficult for a private soldier; not that he does not get the opportunity, but that, perhaps, he has not the ability to bring out and to put his case clearly. Some of these cases which have to be decided must raise matters of very grave difficulty indeed for the officers. Take the ease of a man who is charged with cowardice, as the result of refusing to go over the top. That man may have been, for two or three months, under the stress and strain of war conditions, with bursting shells above him and so on. Really to understand what happens, you would have to understand and to have a real insight into the man's mental condition, and into his physical condition at the moment when it occurred. It would require, above everything else, human insight, human knowledge and human sympathy, in order to weigh up the matter and to give a proper decision, and unless that is done almost anything might happen in that way.
479 I had a case brought to my knowledge some time back of a soldier in France. He is a young man of very high character. I know his people well, and they are very proud of their boy. This boy was sentenced to a very heavy sentence in France. I saw letters that came from him to his parents, and in every letter he declared that there was nothing in the world with which he could charge his conscience. He was driving a wagon at midnight, on a pitch-dark night, along a road behind the lines. He ran the wagon into some soldiers who were marching up the road, with the result that one or two were injured, and, I think, two were killed. On the strength of that the boy was taken before a court-martial, and was sentenced, I believe, to six months' hard labour. I myself brought the matter to the attention of the Undersecretary of State for War, who went into it with that attention he always gives and the sympathy he always gives when individual cases are brought before him. That sentence, in point of fact, has been allowed to lapse, but I think they have come to the conclusion that no real blame, although the circumstances are most unfortunate, attached to that individual soldier. In the stress of war conditions, with all the anxieties and work devolving upon the officers in other directions, are their minds really free to take each circumstance into account, and to give to an individual soldier that fair trial that he ought to have if something has gone wrong and his very life is at stake? Therefore, we are asking the War Office not to think we are making some attack upon the officers or upon the War Office, but we are anxious to be persuaded that every soldier is going to have a fair chance, and that every judicial means is going to be found for his defence. I believe the soldier ought to have full legal aid. I believe every means ought to be found of helping him to present his case. I think the Courts ought to be Courts that are used to weigh evidence, and that judicial minds ought to be brought to bear in regard to the matter. I do say once more that your Army now, being a citizen Army, it does not always do to pour new wine into old bottles. Sometimes you have got to have the new bottles for the new wine, and I am quite sure that it would have a most reassuring effect in the country if the Under-Secretary to-night would announce at least some concessions in the direction which we are asking. I believe this could 480 be done, not in any degree to undermine the discipline of the Army, but to develop the moral of the Army, which is good from every point of view.
§ Mr. SMALLWOODI desire to add a word or two in support of some of the views that have been urged. It has been my lot during the last twenty or twenty-five years to come in contact with young men of the middle class, and I am in touch at the present time with something like 500 or 600 young men, most of whom have been at the Front during the last three and a half years. I have had from these young men letters of various kinds. I have been a father confessor or elder brother to many of thorn, and they have written me over and over again from the Front. Now in respect of one or two of these young men, as illustrating what my hon. Friend has said, I should like to quote one or two sentences from the letters I have received. But before I do that, I would like to point out that when this War broke out I was talking to an old officer, who had seen a good deal of warfare from time to time, and when we were talking, as most men did at that time, of the War lasting a few months, and with that in view, my old officer friend said:
Under modern conditions of warfare, if this War lasts for six months, one of the great things that we shall be up against will be this, that the nerve of the men will probably give way. That will be the greatest test of the man. That is one of the great things we will have to fear.We are afraid the War Office do not sufficiently realise that we have a citizen Army at the present time, that we have a citizen Army composed, net largely, but I should say to a very considerable extent, of young men—boys, many of them—who are highly strung, nervously strung. Take the experience during the last fortnight or three weeks. I have had at least a dozen letters from friends who have told me that their boys of eighteen and a half were-in their own land three weeks ago and have been sent up to the Front. Take the experience of a boy like that, never probably having hoard a shot fired, and being pitch forked into this terrible warfare without the time to get his nerves properly attuned to that which would be required. We do not know what would happen, nor does that boy or young man who is highly strung, know what would happen. He has never been under such conditions to enable him to see or to 481 trust himself how far he could go. One of the most striking letters I ever received was from a young fellow who had been at the Front and fighting for something like fourteen months before he wrote this letter. He had been over the top five times, and he wrote this on the eve of the sixth. He knew, did this young officer, that he was going over the top the next day, and he said:As I write these words I am perfectly calm, but I know that within half an hour, or a few minutes, of the time we are expected to go over the top, my nerve will be anywhere, and I do not know quite what is going to happen. My greatest fear is that I shall run like a hare.That is a man who has been over the top five times. That young fellow, as a matter of fact, did not run like a hare, but he won the Military Cross on that occasion. But the thing I want to point out is the fear of the young officer as far as he himself is concerned. Supposing he had started to run under that nerve strain, he would not have stopped, and if he had not stopped in time that man would never have gone back, because he dare not go back. When the strain was over he would have realised what he had done. There are very many men of that description—men who have been tried and tested under fire, who have had to screw their fears down and to screw their nervous system up, and who, up to a certain point, have been able to stand. Then, after their nerve has been more worn, after a certain number of months of fighting, those men find themselves in front of another supreme trial, and their great fear is that they will not be able to stand up against it.That is the type of thing, it seems to me, that some such Amendments as are mentioned by my hon. Friend would meet. We have a civilian Army, and we have to realise that they are of a somewhat different type. The average man who went into the Army in the old days, fine type of man as he was, was a man who knew what sort of a nerve he had, and he knew, as a matter of fact, that he had been in all sorts of hair-breadth escapes before, and that he had done all sorts of foolhardy things. I come into touch at the present time with something like 200 boys, and during the last few years have come into touch with over 1,000, and those boys, as a matter of fact, are of this type of daredevil boys, and they make the finest men in the Army. We have a different type of man now from that which we had in the Old Army. They are men who have been 482 strung up to do certain things, and men whose nervous system is a great deal more highly strung. I conclude by quoting what a lady friend of mine, in writing about this matter the other day, said. She is a lady who has a very large estate, and takes a great interest in horses, and she used this phrase, which I think quite appropriate to the present occasion. She has both cart horses and thoroughbreds upon her estate, and she said:
I have never known a cart-horse ruined by racehorse methods of treatment, but I do know that a racehorse can be ruined, and would be ruined, by the application of cart-horse treatment.It seems to me we are not sufficiently realising the fact that we have a different type of young man coming into our citizen Army to-day, and we do not sufficiently realise that the hard methods of training the class of men that we used to get into our ranks is not always applicable to the highly strung, nervously strung, young man and boy that we get out of our family life into our Army to-day. I think some more consideration is due from the War Office, and I would add my voice to those already raised that something more should be done.
§ Major DU PREI rise to support one or two of the points that have been raised. I have had some practical experience of these courts-martial, and I should like first to say that I think it is not right that the Committee should get the idea that the Army regards these courts-martial in any way as unfair or harsh tribunals. So far as I have been able to judge, I have not found them so. The officers who compose them are always actuated by a strong sense of the very responsible duties that they have to perform, and the very procedure of the Courts is such that they afford every possible protection to the accused. The officer who prosecutes is specially enjoined to bring out and to bring forward any points which may tell or which the may find out in favour of the accused. The president, also, is specially charged with the same duties, and that procedure is always, I may say, most conscientiously carried out by every court-martial with which I have ever had anything to do. With regard to one point raised by the hon. Member for Somerset (Mr. King), so far as my recollection goes on the question of the death sentence, the court-martial must be unanimous. There is no doubt that the special character of the 483 Army as it stands now has to be taken into consideration as regards its citizen character, but I think the president of the court-martial usually weighs those considerations in determining the sentence.
It is by no means a pleasant task for any officer to pass a sentence, it is especially unpleasant if the sentence is a severe one. But it must be remembered that the punishment is not vindictive to the man; it is meant to be deterrent so far as other men are concerned. It is impossible in a large body of men to maintain discipline unless it is felt that offences are not only detected and punished, but punished with sufficient severity to prevent a repetition of them. There is one special point I desire to impress on the Under-Secretary, legal advice is not of course always obtainable, but wherever it can be obtained, it would be an advantage to have it, especially in cases where the death penalty is involved. Courts-martial deal as a rule with questions of fact and not of law, and most cases that come before them involve questions of fact which any reasonable body of men can decide. But, of course, there are cases in which legal assistance would be a good thing. The only other point I should like to refer to is as to the desirability of divulging the sentence. I am in favour of that. At present the accused is left to guess what is to happen to him; if he is found not guilty, of course he is acquitted in open Court, but if he is not acquitted then he knows he has been found guilty, but what is going to happen to him he does not-know. I cannot see there would be any military disadvantage in communicating to him the sentence after it has been decided on. Of course, it would not be possible for the accused to remain in Court while the sentence is being considered, but it could be communicated to him immediately afterwards. If the Under-Secretary can make a concession on these two points it will accord with the feelings of many officers.
§ Major HAYWARDI should like to say a word or two in support of the point which has just been raised. I entirely agree with what has fallen from the last speaker as to the general attitude of courts-martial. I believe that every officer who is a member of a Court does his very best to find out points in favour of the accused; in fact, I believe he is 484 straining his mind all the time to elicit what may be in the prisoner's favour. I also agree with what has been said about the general procedure of courts-martial. I think it has been most wisely devised, and is in favour of the accused. There are one or two points of administration, however, to which attention might be paid. It has been suggested to-night, and the suggestion is one well worthy the consideration of the Under-Secretary, that a prisoner charged with a serious offence, the punishment for which might be of a serious character, ought to be represented by somebody at the trial. If the representative can be someone with legal experience so much the better, but he ought certainly to have somebody with some knowledge of procedure to assist him at his trial. At a general court-martial where a prisoner is tried on a serious charge and has no one to represent him in any way, the president of the Court is careful in watching his interests, and probably in some cases he docs as well by leaving his case to the careful consideration of the Court itself as if he had more or less indifferent assistance.
There is another point which I should like to emphasise, and it is in reference to the constitution of the Courts. There is all the difference in the world between the constitution of a general court-martial and a field general court-martial. On a general court-martial every officer must be an officer of experience. I believe it is laid down in the Army Act and in the Manual of Military Law that he should be an officer of a certain number of years standing. But with regard to field general courts-martial—and these are the Courts which generally sit in France—any officer, even if he has little or no experience, can sit upon them, and I have known cases whore soldiers have been charged with most serious offences, the punishment for which might be death, where the president of the Court has never sat on a Court and never attended a Court of any kind whatever previously. I know the War Office hrs done something in this respect. I believe efforts have been made to arrange for officers with legal experience to be members of the Court, but I do not know how far it has been carried out. Will the Under-Secretary tell us to what extent it has been carried? I hold that presidents of these Courts should be men of experience and knowledge, accustomed to weigh evidence and 485 bring out the facts, and I hope that the Under-Secretary will be able to tell us that steps have been or will be taken to arrange that the presidents of these Courts in future shall be officers of legal experience and training.
§ Mr. WATTI desire to support the Second Reading of this new Clause. I think the Committee owes a debt of gratitude to my hon. Friend the Member for Somerset (Mr. King) for having brought it forward, and I trust that the facts which have been brought out by the Debate will have convinced the Under-Secretary of the desirability of agreeing to the Second Reading, even although the Clause may be amended in Committee. Section 54 of the Army Act, which this Clause proposes to amend, sets up a great number of authorities for confirming sentences passed by courts-martial, and the idea of this new Clause is that these various authorities which have to confirm sentences shall not confirm them until an opportunity has been given to the prisoner, first of all, to know what the sentence is, and, secondly, to represent to the confirming authority anything which he wishes to represent either as to law or fact. That seems to me to be a simple demand which is justified on the very face of it, and confirmation of the justice of it is given in the statement of the hon. and gallant Member for Maidstone (Commander Bellairs) that it has been for some time the practice in the Navy. I cannot see, therefore, why there should be any objection to its being adopted by the War Office. The hon. and gallant Member who last spoke (Major Hay ward) pointed out the necessity for legal assistance being given to prisoners under trial. With that I entirely agree. I know it is not always procurable, but I do suggest that efforts should be made in every instance at an early stage of the proceedings to give the prisoner an opportunity of securing legal advice. Further, I hold that the president of a court-martial should in every instance be a man who has had some opportunity of sifting evidence. He should have a legal training as far as possible. In the old days when the Army Regulations were set up a lawyer was practically an unknown being in the Army. But now conditions are entirely changed, and you have in the Army representatives of all trades and professions. It would be, therefore, quite easy to choose for the president of your court-martial an officer who, even if he be not a lawyer, has had some experience in sift- 486 ing evidence and administering justice. I hope the Under-Secretary will see his way to do something to meet these demands. That a prisoner under sentence should have his sentence divulged to him is surely the least that one can expect.
§ 8.0 P.M.
§ Mr. MACPHERSONThe discussion has ranged over a very wide field, bat I think the kernel of it has been very concisely put by my hon. Friend who has just spoken. The hon. Member for Somerset (Mr. King) has persistently brought this problem before the House of Commons. It is a problem which has, of course, created a great deal of interest, not only in the Service, but in every family in the Kingdom. What is it that I am asked to do? I am asked, if possible, to give the soldier who is tried by court-martial every possible opportunity of presenting a defence and of seeing that he gets fair play. I do not know whether the Members who are listening to me to-night were present when I spoke at considerable length in reply to a speech of my hon. Friend the Member for North-West Lanark (Mr. Pringle) before the Recess. At that time I pointed out how the men who were tried were carefully examined, medically, how the prosecutor had careful instructions to present every fact that could be presented on behalf of the accused person before the court-martial, and how, now that we had so many legal men employed as military men in France, there was scarcely a court-martial—I would go so far as to say there is no court-martial—where someone of very high legal training is not present. I believe that the proposition put forward by my hon. and gallant Friend the Member for Durham (Major Hayward), namely, that on every court-martial there should be a member of some legal training and knowledge, is at present fulfilled. It has always appeared to me to be a strange thing that a sentence which was passed by the court-martial upon a prisoner who was tried for a crime which is likely to be followed by the death penalty should not be disclosed. As the hon. and gallant Member for Bucks (Colonel Du Pre) has pointed out, Section 54, Sub-section (2) of the Army Act provides that where there is a finding of acquittal on all the charges that finding is pronounced in open Court. I have not yet had an opportunity of consulting my legal and military advisers on this point, but I think I can promise the 487 Committee that some words such as my hon. Friend the Member for Somerset (Mr. King) and also my hon. Friend the Member for North-West Lanark suggest will be put in the Army Act in another place. I do not think I can go farther than that just now. That means that in future the soldier who has been convicted will be entitled to know what sentence has been passed upon him, and also what recommendations, if any, have been made to mercy so that he may utilise the, opportunity between the lime of the conviction and the time that the sentence is confirmed to take any measures which may seem reasonable or possible to him in order to bring further facts before the confirming officer.
§ Mr. MACPHERSONIt is going to be divulged to him in the Court, at the trial; but that will necessitate our introducing an Amendment, probably in the nature of an oath, which can be administered to the President of the Court, because as the law stands every member of the Court must take an oath that he will no divulge the sentence to anyone. What I propose to do is to arrange for such an oath to be put into the Army Act, which in every case of this sort will be administered to the President, who then can address the accused and state to him exactly what the sentence is. I hope I have met fairly all the points that have been raised, and I shall be very glad now if my hon. Friends would give me the Committee stage of this Bill.
Major DAVIESThere is one point my hon. Friend opposite has not dealt with, and that is the point made by my hon. Friend the Member for the College Division (Mr. Watt), with regard to the question of legal assistance for prisoners who are being tried by court-martial. The hon. Member for Bucks (Colonel Du Pre) told us a few minutes ago that his experience in France is that legal assistance was not forthcoming on occasions, and on several occasions we have drawn the attention of the War Office, and of my hon. Friend, to this state of affairs, and have asked him to endeavour to persuade the Noble Lord the Secretary of State for War to appoint special officers, whose duty will be to be present 488 at these courts-martial, and be able to act as soldiers' friend. It is perfectly true that every soldier being tried by court-martial is entitled to have the assistance of a soldiers' friend, but it is not always possible to get properly qualified assistance, because the soldiers' friend may not have had any experience, or may have had very little experience, in the procedure of courts-martial. I cannot conceive why the War Office are so stubborn in regard to this matter. On other occasions, months ago, they have been pressed in this House to do something and to have these legal officers appointed, either attached to Corps Headquarters or Divisional headquarters, in order to secure that every man brought up before a court-martial shall have a duly qualified soldiers' friend to state his case, and to see that he is fairly dealt with. Every criminal in this country brought up before the Criminal Court has that right, and I submit that in the case of these men, who are fighting for us so bravely at the Front, the least the War Office can do is to see that they are treated properly in the matter. With regard to the power to enable officers to appoint officers to do this work, we know there is a large number of wounded officers constantly being discharged from the Army who have had legal training in civil life before they entered the Army, and who could undertake this work and do it most efficiently. I therefore submit that the hon. Gentleman has not given the Committee a satisfactory reply in regard to this particular point. We all remember when the Mesopotamian Report was published, when there was a question as to whether certain general officers were to be brought up before the Court of Inquiry, the War Office at once said they would be provided with expert legal assistance. If this legal assistance is forthcoming in those cases, why cannot the same rule be applied all round?
I think that is all I have to say, except on one other matter, and that is with regard to Courts of Inquiry. I always understood that in these Courts of Inquiry the result, if of an adverse character, had to be communicated to the person concerned. A case was brought to me the other day in which, so far as I could gather from the evidence the findings of the inquiry into the conduct of an officer against whom certain charges had been brought by his subordinate 489 officers were adverse, and the adverse findings were not communicated to him. In spite of repeated attempts on his part to get information from the War Office as to what these findings were, these appeals were met with blank refusals, and there has been no statement as to what the findings of the Court have been. I submit that the attitude of the War Office in these matters is most unsatisfactory, and that they put Members of this House off time after time. As my hon. Friend himself admitted, the country and the House is now taking a great interest in these matters, and the only place where, apparently, they are thought not worth considering is in the War Office. I trust that after my hon. Friend's experiences here this afternoon we shall find some improvement in the way in which these things are considered.
§ Colonel Sir H. JESSELI should like to point out to the Committee that, as regards courts-martial at home, a very great use is made of legal members. Nearly every command has an officer who has legal training to whom all proposed proceedings have to be submitted. Very often the legal adviser to the general officer says there is not 'a proper case, a written summary is sent, and if he does not think there is ground for a court-martial one is not held. So, before a man ever comes before a court-martial the whole thing is gone into, sifted—very often the charges are not held to be right, or they are altered in order to make them of a less serious character—and I can assure the Committee with regard to what goes on at home before anything comes before the Court everything is done to see that the case is a proper one, and that every safeguard exists. I think every Member here will agree that on the whole courts-martial are very fair. There is no vindictive feeling at all; everybody tries to do his best. It is not to secure a conviction that the prosecutor makes his statement, but to see fair play. I think what the Under-Secretary of State has done to-night, as regards the concession he has made to the hon. Member behind me (Mr. King), is probably a very good thing. I cannot see, from the military point of view, any objection to it at all. It satisfies public opinion in that way. I do not think there will be the slightest military disadvantage in it, and I think 490 it is a great concession and a great boon to everybody concerned. I wanted to ask the Under-Secretary, if he could, as he is going to make an Amendment in another place, to see whether something cannot be done with regard to the powers of the commanding officer? A commanding officer on active service can give up to twenty-eight days' detention, except for absence without leave. The effect of that is that any day over seven days cannot be given as punishment, and that results in a court-martial for what is very often a trivial offence. I should like to ask the hon. Gentleman if he could make some change in that respect and allow the commanding officers to deal even with cases of absence without leave up to twenty-eight days. I am afraid I have been rather out of order, Mr. Whitley, but I have had no other opportunity of referring to the matter.
§ Mr. MACPHERSONI will look into that.
§ Mr. PRINGLEI wish to thank my hon. Friend the Under-Secretary for War for the concession he has made to-day. I think the Committee was interested to hear what the hon. and gallant Gentleman (Colonel Sir H. Jessel) had to say with regard to courts-martial at home. I think those who have listened to the Debate this afternoon will realise that throughout the whole of the time there has not been the slightest suggestion against these courts-martial at home. No criticism of any kind has been offered. I believe that pains are taken to secure the best men to conduct the courts-martial, and that among all those who are engaged upon them there is the keenest desire to see justice done. While we have been criticising courts-martial on the other side it is not because we suggest that there is anything wrong at home, but I think there is a view that you cannot on every occasion get the same amount of legal ability available for a particular Court. In many cases courts-martial upon the other side have been constituted in a somewhat scratch way. Under these circumstances it is extremely important that this House should see that every safeguard is given a man against a miscarriage of justice. It is solely with that view that we have been conducting the discussion on this Amendment to-day. I am sorry that my hon. Friend has not been able to make an announcement regarding legal assistance to men affected by the capital charge 491 immediately the preliminary investigation takes place. I have suggested that this is a matter which can be dealt with without an Amendment to the Army Act. I am not sure whether my hon. Friend has gone into that, but I am sure, if it is possible to do this without Amendment, that he will endeavour to secure what we require—that he will certainly use all his influence to obtain it. I desire once more to thank him for what he has said.
§ Mr. KINGAfter the satisfactory Debate, and the decision of the Undersecretary, for which, I am sure, we are all much obliged, I beg leave to withdraw my Amendment.
§ Motion and Clause, by leave, withdrawn.