§ In Subsection (1) of Section fifty-two of the Army Act which prescribes the oath to be administered by members of courts-martial, the following words shall be inserted after the words "you do further swear that," "except so far as may be permitted by instructions of the Army Council for the purpose of communicating the (Sentence to the accused."—[Mr. Macpherson.]
§ Brought up, and read the first time.
§ Mr. PRINGLE
I wish to thank my hon. Friend for putting this Clause on the Paper, and, further, for the alteration in the form in which ho has now moved it. As the concession has been moved, it does not entirely meet the case which has been put by those who have been criticising the Bill in regard to courts-martial and the possibility of the appeal from the decisions of courts-martial. We, however, recognise that the power now given to communicate the sentence, when it has to do with the capital penalty, has this advantage: that in future the soldier or officer who is thus rendered liable to the capital penalty will have the opportunity of obtaining the evidence which has been placed before the Court and to make representations to the authorities. Many of us would have desired that there should have been set up a regular Appeal Tribunal in all these cases, so that there would have been an opportunity of revision such as there is in civilian trials in this country. We understand, of course, the difficulty, especially at the present time when there has been a change in the Secretary of State, in obtaining such a revolutionary change in procedure. We also recognise, in making this concession, that the hon. Gentleman has made a concession which is in the interests of men who may be in this unfortunate position. As we understand it at present, if a man is under trial on the capital charge the sentence is not divulged to him until it is going to be carried out.
§ Mr. PRINGLE
He knows, of course, that he has been found guilty of the charge, but he does not know whether he has been found guilty on the capital charge. The result is that he has no opportunity, first of all, of obtaining a note of the evidence taken at the trial, or of 811 making representations by way of securing a revocation of the penalty. The concession now made will enable the men to know first of all that this sentence is going to be pronounced upon him, and, secondly, The will be able to obtain the evidence upon which the Court has acted. Having that evidence, he will also be able to make any representations which he thinks are necessary, or may be useful, to the authority which may confirm the sentence. The concession that has just been made is a substantial improvement in respect to the administration of this matter.
§ Mr. HUME-WILLIAMS
I do not in the least object to the Clause as the Undersecretary read it. The only objection I have to it is that it does not go far enough. I am sure, too, by an oversight, and misapprehension on the part of the hon. Member, it does not quite carry out what we, at any rate, understood the Undersecretary to say he would do. The hon. Gentleman will, I am sure, remember that the discussion was devoted mainly to two subjects. The first was, it was suggested that officers who were going to be dealt with the authorities should be allowed an interview before sentence was passed; and, secondly, the discussion turned upon the question of Courts of Inquiry, when I suggested, as strongly as I could, that there should either be some Court of Appeal from the Court of Inquiry or else the officer, before conviction by the Court of Inquiry, should be given the option of being tried by court-martial. In the discussion the hon. Gentleman said he would do his best at once to make representations to his colleagues and advisers; he also conveyed the impression to the House of undertaking to give an interview to the soldier or officer. "It may be possible," he said, "to bring in a rule which I can place on the Table of the House.
§ Mr. HUME-WILLIAMS
The hon. Member for East Edinburgh raised the question that the Committee stage ought not to be allowed to go on unless the hon. Gentleman produced the words on the Report stage, and the Under-Secretary for War replied, "I am quite willing to agree to- that." I came down in-day hoping that the Clause on the Paper 812 would cover as well the other two questions which were the subject of debate. I hope the hon. Gentleman will not think that I am asking for the slightest departure from what he promised, but I think that there has been some oversight.
§ Mr. MACPHERSON
I know perfectly well what the undertakings were, and I said that I would keep my promise of a bargain, and I hope I have. Under the Army Act there is no provision to allow any officer who has been asked to resign his commission to appear by a personal interview before any individual member of the Army Council. That is the point which the Member for East Edinburgh pressed upon me, and I said that I would see that my part of the bargain was fulfilled. At the present moment officers serving either at home or on leave from abroad have the right to see the Military Secretary upon any personal questions arising, whether of promotion or anything else, and I do not think anybody would wish for a better Military Secretary than General Sir Francis Davies, who is only too anxious to see every officer, and does see those who care to call to see him, and they can come without having previously made an appointment in writing. After consultation with my legal and military advisers, I find that the best possible thing is to frame a new King's Regulation upon the analogy of the Regulation which governs these interviews with Military Secretary. This is the Regulation:Officers of all ranks on the active list, whether serving at home or on leave from abroad, may interview the Military Secretary on personal questions relating to appointments, promotions, etc. In such cases no written permission is necessary.I propose to issue an Army Order amending the King's Regulations which would give any officer, who had been asked to resign, the right to appear before any individual member of the Army Council for a personal interview to state his case. My promise was that any officer or soldier who felt himself aggrieved should have this right of personal interview. That was the only pledge I gave. With regard to the remaining point raised by the hon. and learned Member that there should be an appeal from the Court of Inquiry, I have been looking into that question. I did not make any explicit pledge, but what I said was that I would look carefully into the point and see if I could do anything to meet the hon. Member. I have not been able to do anything, and I 813 will tell the House why. In my judgment the name "Court of Inquiry" is a misnomer. There is no evidence taken, and there is no finding. The Court of Inquiry is a collection of officers instructed to ascertain certain facts, and they report to the authority which constituted them. They are not governed by rules of evidence as is a court-martial. I call it a misnomer. [An HON. MEMBER: "A fraud!"] I do not go so far as that. I know of many such Courts that have done their work in an admirable manner, and have well fulfilled the purpose for which they were constituted.
§ Mr. HUME-WILLIAMS
It is poor consolation to officers to be told the Court is not governed by rules of evidence. Evidence is taken, and as a result a report is made upon it.
§ Mr. MACPHERSON
The Court of Inquiry merely reports: it does rot make a finding. It investigates certain facts and reports, but it does not follow that any action is taken on the report. I do not see how we could constitute a Court of Appeal from a Court of Inquiry.
§ Mr. HUME-WILLIAMS
That is the suggestion which I made, and which I understood the hon. Gentleman to accept. I should have put an Amendment down to that effect but for what I thought to be the undertaking given by the hon. Gentleman. My suggestion was that where an adverse opinion was given in the report it should be communicated to the officer and that he should be given the right of trial by court-martial. That is the only Court of Appeal I ask for.
§ Mr. MACPHERSON
As I have said, I have carefully looked into the matter. If the report which has been submitted has been considered by the superior authority which has constituted the Court, and they have come to the conclusion that on the report of that Court of Inquiry the officer should be called on to resign, I, personally, do not see why that officer should not have the same right as in the other case, namely, to a personal interview with one of the members of 814 the Army Council. I think that will meet the case which has been put by my hon. and learned Friend. But no officer is entitled to a court-martial as a matter of right. Everybody knows that, and I cannot promise here that in every individual case that is raised if an officer feels himself aggrieved he shall by the mere asking be entitled to a court-martial. I will not go as far as that, but I do think I can go as far as saying that if upon the finding of a Court of Inquiry the officer's conduct has been considered to be misconduct before he is called on to resign he should, if he so wishes it, have the opportunity of appearing before an individual member of the Army Council.
§ Brigadier-General McCALMONT
I desire to say a word or two in support of my hon. Friend (Mr. Macpherson) on the subject of a Court of Inquiry. I think it is much more a Committee than a Court. At the same time, I am bound to say that I can see absolutely no object in the new Clause which is now before the House. I do not see that it is going to benefit anybody, least of all the accused. The accused man is now, as I understand it, when condemned to death going to be brought before the Court. I garner that for the purposes of this Act he shall, for the time being, be released from arrest. He will be in the Court-room with members of the Court only—which is not always a pleasant situation for the Court—and will be told by the Court that he has been sentenced to death. There are many cases in my mind in which men have been sentenced to death by Courts, and the man has never been told he was sentenced to death, for the very good reason that the sentence has been quashed by the revising authority. Therefore, a lot of unnecessary anxiety and pain is going to be put on the man by telling him he has been sentenced to death when the sentence may never be carried out at all. I am sorry I was not able to take part in the Committee stage of this Bill, because having had experience, not only as a prosecuting but as a confirming officer, I know how many of these sentences have never materialised.
I know that hon. Members are under the impression that they will benefit these people, but they are really doing the reverse. If there were going to be a Court of Appeal, it would be a different matter, because it would be necessary to tell the accused the sentence; but I do not see 815 why you should tell him now until the sentence has been confirmed. I regret that my hon. Friend has been pressed by public opinion in this House to bring in an Amendment of the Army Act which I am sure will be quite misunderstood in the Army, and which is not of any practical value, except in so far as it salves the consciences of hon. Members of this House and makes them imagine that they are benefiting the unfortunate private soldier. I think it is an unfortunate thing. It has been done in a great hurry and does not benefit anybody.
One other word about the Court of Inquiry. It seems to be forgotten that the Court of Inquiry is merely a Court set up by the senior officer to assist him to come to a conclusion. If any man's conduct is called in question he is entitled to be present throughout the time during which evidence is being given against him, and this proposal, under which I understand such officers having held an adverse verdict from a Court of Inquiry are to be allowed to see a member of the Army Council, will, it seems to me, add a good deal to the labours of the Army Council. I do not know whether their numbers arc to be added to for this purpose, but I can imagine thousands wanting to see them, and it will be useless to see a member of the Army Council unless the officer can bring his evidence with him. If everybody concerned in every case is going to be brought home, plus all the evidence of the various senior officers concerned, it will add very much to the labours of the Army Council without in any way adding to the efficiency of the investigations.
§ Mr. SHERWELL
I am inclined to concur in what the hon. and learned Member (Mr. Hume-Williams) has said, that the statement of the Under-Secretary does not, at least in my estimation, carry out the whole of the scope of the assurance as understood by those of us who took part in the Debate last week. My hon. Friend the Under-Secretary just now argued from the point of some appeal for a further inquiry than the Court of Inquiry. He will remember, if he recalls the Debate, that the point which was taken with great emphasis by some of those who took part in the discussion was the case of the officer who may be degraded in connection with a charge upon which he himself has never been heard.
§ Mr. SHERWELL
That only confirms the impression that I was just now expressing. We raised cases of officers who had been degraded, say, on charges of cowardice without the least opportunity from first to last of presenting their evidence or giving their version of the facts. It is within the recollection of my hon. Friend the Under-Secretary that in certain of such cases the decision had to be reversed on a subsequent occasion after the man himself had been practically dismissed. What I am certain other members of the House contended for in the course of the discussion last week, was that there should be some security that the officer or man should not be made the victim of a capricious judgment, where there was no securing that full evidence of the facts of the case had been presented before the authority pronouncing judgment. I have in mind cases where there is no Court of Inquiry or court-martial from first to last. What I and other hon. Members contended for was that there should be some opportunity of having the man's own case presented before judgment was pronounced, and so long as you have no security in the Army under the Regulations that the man shall not be condemned before he has had the opportunity of presenting his evidence, there is injustice in any pronouncement of sentence. The Under-Secretary to-night has dealt entirely with the case of the officer. In the discussion last week very great emphasis was laid upon the case of the private. The case of the private becomes of extreme importance under the conditions which obtain to-day, when you have virtually a civilian Army composed of classes of men who were not formerly enlisted in the establishment of the Army of this country. I am bound to express my disappointment that so little has come from the understanding that we thought was arrived at in the Debate last week.
§ Mr. HOGGE
I raised this question originally and got the promise from my hon. Friend, and, although he has done literally what he said he would do by granting an interview to each of the applicants, I would submit that he has not really carried out what we imagined he would do, namely, put down a new Clause similar to that which was proposed by the for and gallant Member for Southampton (General Sir Ivor Philipps). 817 The Clause attempted to erect a new Court which my hon. Friend said he could not accept; and out of the discussion there arose the other point which my hon. Friend has dealt with, namely, that each man, if he desired, should have access to one or other of the members of the Army Council so that he could raise his case. That is something gained. The reason why I think that is that the Army Council will find, as a result of making this concession, that they will not be able to cope with a situation they have created for themselves and they will be bound to give a real Court of Appeal. There will be so many cases of men who will want to see one or other of the members of the Army Council, that the members of the Army Council will require, for the purposes of self-protection, to go further and create a Court of Appeal. I look at this concession from the point of view that, after all, we have got our foot in the door, and that the door cannot be shut now on the real Court of Appeal that we want, because there are so many men who will seek access that, as a matter of fact, the Army Council will seek self-protection. It is monstrous that so many men should be turned down. They are chiefly lieutenants. They have been dismissed, or have dismissed themselves from the Army, because they have had so much spirit that they preferred to be dismissed rather than send in their resignations. I know many of these men. It is monstrous that they should be turned out of the Army without any opportunity of stating their case. That is never given to them from first to last. Whether or not this concession will achieve the purpose, I do not know. At any rate it will enable them to get access to some member of the Army Council and put their point of view. While I should have liked that the spirit of the suggestion made by the hon. and learned Gentleman (Mr. Hume-Williams) should have been put on the Paper, we have moved a considerable way towards putting the Army Council in such a position that, in I order to protect themselves, they will have to create finally, and very shortly, what we have suggested.
§ Major HUNT
While the Undersecretary has said that he is going to make things a little better for officers in future, he is doing nothing at all for the very large number of officers who have practically been kicked out of the Army in the past. In future, officers are to have some chance, but he will not give any chance at all to 818 those who during this War have been kicked out, and who have had no trial and no chance of defending themselves. They have had nothing approaching the chance possessed by the ordinary civilian who has murdered his wife. I put the case of Colonel Monteagle-Browne to the hon. Gentleman some time ago and I had no answer from him. The War Office has not a ghost of a case; they had to go back to an alleged case of cribbing 18 years ago as one of the reasons for turning a distinguished officer out of the Army. Something should be done for the officers who have already been turned out, at all events during this War, as well as for the officers who may be told to resign in future. It is very unfair that during the same war some officers should have some sort of chance, which the hon. Member appears to be going to give them, while other officers who have served what we hope will prove to be the greater part of the War will have no chance at all. They have absolutely no chance of putting chair case before anything approaching a fair tribunal. They are to have no trial; they are just kicked out at the will of the commanding officer. There have been a great many such eases in the past and there is a very great deal of feeling about it in the Army. There ought to be something done in this matter for the officers before this time as well as after it, and I hope the hon. Gentleman will ask the Army Council whether something cannot be done. The feeling among the officers in France about Colonel Browne's case is very strong indeed, and really are you 80 very full of even colonels, who have admittedly done very good service, that you can afford to continue to keep out of the Service a man who is anxious to fight for his country? Is it not possible that you maybe able to give another chance to a man who has admittedly proved himself to be a good fighting officer?
§ Colonel LESLIE WILSON
I desire to associate myself very strongly with the remarks which have fallen from my hon. and gallant Friend opposite with regard to the insertion of this Clause. I consider it a very serious matter indeed that power should be given to members of a Court to divulge the sentence to the accused until it has received confirmation. I have had a considerable experience of courts-martial, and in the days before the War it was very seldom indeed that any convictions were quashed. That was from the knowledge the officers naturally had. which they have not to-day, of military law. While 819 justice is meted out just as well to-day as in those days before the War, it is undoubtedly the fact that the number of convictions which are quashed in France is very large indeed. There is a very high percentage.
§ Colonel LESLIE WILSON
Ninety per cent. of the accused who formally receive sentences which are never going to be carried out. That is a very strong argument for the non-retention of the Section. The reason is that the Judge-Advocate-General, having a larger number of officers at present who have not had an opportunity of being well versed in military law is very careful in examining every case which comes up before him. The whole reason why this Court of Appeal is asked for is with regard to certain cases which have come to the notice of this House and which this Clause will not meet in the very least. The principal case which Members had in view was one in which an officer was informed at 7 o'clock one evening that he was going to be shot at 7 o'clock next morning. Even if this Clause were brought into operation it would not meet a case such as that, and I really think it is very dangerous in the interests of the men and of discipline in the Service, that this Clause should be inserted.
I raised this question of a military Court of Appeal, and I desire to thank the Under-Secretary for the slight concession he has made. When this matter was discussed on the Committee stage appeals were made to the hon. Gentleman from all parts of the House to set up a military Court of Appeal, and we hoped that when we came down to-day we should find a Clause on the Paper carrying out the proposals which were made to him. He said he would consider the matter in conjunction with his military advisers, and that he would get some proposal to put before us when we came to the Report stage. Has he put the case to the Judge Advocate-General? As he told us, there was a feeling in the country that there might be something wrong, and I am sure there is no one who is more anxious to put it right than the Under-Secretary. I appeal to him when the Bill comes to another place whether he cannot find, with the advice of his 820 learned adviser the Judge Advocate-General, some Clause whereby he might meet the very general desire on the part of the House to have a provision inserted which will allow officers who are dismissed from the Army to make an appeal and to explain their cases before a properly constituted tribunal. Personally I have not much faith in the appeal to the members of the Army Council, because they are all at present overworked, and I do not think they have the time at their disposal to give proper attention to the many cases which must necessarily come before them. I join with the hon. and gallant Member (Major Hunt) in the appeal to the hon. Gentleman to make this Clause retrospective. We all know that from time to time Members of Parliament are appealed to by-officers who think they have been, aggrieved to bring their cases before the notice of the War Office and this House. A most invidious task is imposed upon us to bring these personal cases of hardship to the notice of this House or before the War Office. It would be better if the War Office would take their courage in both hands and set up a tribunal to give these officers the hearing denied to them. I am not at all satisfied with the concession which my hon. Friend has made, and I hope the War Office will go further and set up a properly constituted tribunal to deal with this work.
§ Sir G. TOULMIN
I have no experience either of Courts of Inquiry or of courts-martial, but I can imagine no greater condemnation of the system than that which has been exposed by the hon. and gallant Member (Colonel L. Wilson). A system under which 90 per cent. of what he calls sentences are quashed—
§ Sir G. TOULMIN
The civilian Members of the House can only take a view of these methods by what is laid before them by the Service members, and it seems to me that that statement of the hon. and gallant Member is an extremely serious one, and does condemn the system.
§ Mr. MACPHERSON
It is not right to say "quashed." There is a misunderstanding. The fact is that 90 per cent. of 821 the recommendations for mercy by the courts-martial were assented to by the Field-Marshal Commanding-in-Chief.
§ Sir G. TOULMIN
I do not think I was responsible for the use of the word "quashed." It was used by the hon. and gallant Gentleman. If they are recommendations to mercy, that puts a different complexion upon it. But these Courts of Inquiry are not Courts; the charges are not charges; the decisions are not verdicts; the sentences are not sentences.
§ Mr. MACPHERSON
These are courts-martial. Courts-martial only try men for culpable offences. The courts-martial alone make recommendations to mercy.
§ Sir G. TOULMIN
The courts-martial deliver the sentence, but the sentence has to be confirmed by high authority?
§ Mr. MACPHERSON indicated assent.
§ Sir G. TOULMIN
Am I to understand that in these cases there is a definite charge, and a definite sentence delivered, which the accused is allowed to know?
§ Sir G. TOULMIN
He is not allowed to know it at once. Then it appears to me that the Under-Secretary has done the very least he could in the concession which he has made. I do not see how there can be any justice to a man unless there is a full hearing where there is a definite charge, and a verdict and sentence.
§ Sir G. TOULMIN
There are also Courts of Inquiry when there are no charges, and there is an extraordinary case in reference to what I am not allowed to call an offence, seeing that the man is not charged with an offence. In all these cases I think that officers and men are entitled to know that upon which they are likely to be condemned, whether they are condemned by a sentence or by a decision.
§ Major WARING
It is a little unfortunate that this House is discussing two totally different things upon this simple Clause. We are discussing a Court of Appeal not against a sentence, but against a decision. With regard to officers who are 822 not court-martialled at all, and with regard to officers who do not even appear before Courts of Inquiry, an appeal against decisions of that kind I think is required, and I hope that the Undersecretary will some time or other be able to do something with regard to these grievances which officers have. But the Clause which we are discussing is a different one. The idea is to give some kind of appeal to a soldier when he has been court-martialled and condemned to death. What happens at the court-martial is this: Three officers form the Court. The soldier is brought in, evidence is taken, there is cross-examination and so forth, and then the Court is closed and the finding is come to; and if the soldier is found guilty the Court is reopened, and he is brought before the Court, and certain evidence is taken with regard to character, etc. The Court is closed again, and the sentence is considered, but the soldier is not again brought before the Court.
The reason why the sentence is not declared to him is that it has to go for confirmation to a superior military authority. That confirmation itself forms a kind of appeal. There is, at all events, a revision by officers of great military experience, assisted, of course, by the Judge Advocate-General, and, as has just been said, 90 per cent. of the courts-martial in France apparently have not been confirmed. Therefore, as the hon. and gallant Gentleman has said just now, it is surely better that the soldier should never know that he was condemned to death at all. He does not know it at the present time. Surely this is better than that the Court should consider its finding and sentence and then send for the soldier and say, "You are condemned to death, but you have got to wait a week to see whether that sentence is confirmed or not." I do not see what advantage the soldier would get out of that. I think this is a very dangerous Clause to pass, and I sincerely hope that the House will consider very seriously whether it will not divide against it. It is certainly not going to be of any advantage to the soldier. If you set up a Court of Appeal against the sentence after informing the superior military authority, then I will support it. I think there should be such an appeal. I think where a man is condemned to death you ought to give him a Court of Appeal, just as you have a Court of Criminal Appeal in civil law. What you suggest now is not only of no 823 value, but would, I think, be an additional hardship on the soldier who had been condemned by court-martial.
§ Mr. HUME-WILLIAMS
I know I cannot again speak without leave, and I ask you, Sir, whether I can again address the House or reserve my remarks to the Third Reading?
§ Mr. HUME-WILLIAMS
With the leave of the House, I would state that I am very sorry that the hon. Gentleman has not seen his way to carry out the assurance he gave on the last occasion to bring this before the Army Council and do his best in the matter.
§ Mr. HUME-WILLIAMS
Of course, we know that a Court of Inquiry is not in any sense a court-martial. It may be a misnomer to call it a Court of Inquiry. It sits and takes evidence, it considers the question affecting the soldier, it makes its report, and the report is acted upon. What is the distinction between a Court of Inquiry and a court-martial? I can say from personal experience that a court martial is admirably conducted. The ordinary rules of evidence obtain, the Judge Advocate-General sits on the right hand of the President, and the evidence is given on oath. The accused has the right, of being represented; he gets a fair trial, and I have never in the course of my experience heard a single complaint from any man as to the decision given against him by a court-martial. A Court of Inquiry is altogether different. It is not a Court with any experience of trials, and the rules of evidence do not prevail. I have a letter from a high officer of the War Office, in which he says:I think probably you may be under the impression that the laws of evidence govern the Court of Inquiry; such, however, is not the case.The laws of evidence are the concentrated essence of common sense, and are for the protection of the accused. What is the result? They take written statements by people who are not parties to the proceedings, whose evidence you cannot test, and that you do not see. There was a case during a recent Court of Inquiry where a letter was put in and handed to the President of the Court, and was read by 824 him. It dealt with the opinion given by Major F.—I do not want to give his exact name—on the subject of the inquiry. It so happened that a little later Major F. was called, and the letter was put to him. This is what he said:Oh, I cannot accept that as a statement of mine. I know what that might be. When I went to the Embassy, 'and so on,' I saw one of the officers there. He asked me a question. That is not my own written statement. That seems possibly someone else's idea of what I said.Yet, if this gentleman had not been called and that explained, probably that letter would have been acted upon. My hon. Friend knows of many cases where a Court of Inquiry, which has been assembled informally, has paid no attention to the rules of evidence. The reputation of an officer depends on their decision—one case that I know of was that of a commanding officer of a regiment—comes into question. He is not told before he goes there what it is that is going to be inquired into. The Court adjourns, it does not meet again, a report is sent in, and he is deprived of his position in the Army. His whole life has been spent in the Army, and there is no other career open to him but that. There is no redress, and what consolation is it to tell him, "It was not a Court at all j it was only a sort of informal means of inquiry, and the report which has been made in respect of you is partly what was ascertained at the Court of Inquiry and partly some other private information which will not be communicated" The only redress is under Section 42 of the Army Act, an appeal to the King, which goes back to the Army Council, to whom the report has been sent, and who have acted upon it. This is very unsatisfactory. I do not speak as a lawyer, although one's training rebels against procedure of this kind, which does not seem to be consonant with the ordinary principles of English justice. If you are going to have a trial, let it be a fair trial. If a man is not going to have a fair trial then act without one. but do not set up Courts of Inquiry and let them proceed on principles of this kind. The remedy is this. If you are going to proceed against a man, give him the option—safeguard it if you like—of having a trial by court-martial, where he will have a proper and fair hearing.
§ Question put, and agreed to.
§ Clause read a second time, and added to the Bill.