HC Deb 13 April 1920 vol 127 cc1602-13

"In all cases of death sentences there shall be a right of appeal to the Court of Criminal Appeal."—[Major Lowther.]

Brought up, and read in the First time.


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

A large number of the Clauses of this Bill are based upon the recommendations of the Committee which sat at the War Office to inquire into the procedure of courts-martial. I had the honour of being a member of that Committee, and I must confess that I signed the Minority Report. I understood last night, on your ruling, Sir, that it is not the custom of this House that matters which generally appear in the Bill can be discussed on Second Reading. Therefore, in consultation with some hon. Friends, I put down-this New Clause. I confess that the Clause as it stands is very imperfectly drafted, but with the Committee stage following so closely on the Second Reading, we were in a certain sense precluded from considering at full length the machinery that we might have added to the Clause to make it more fitting. As it stands, the Clause does embody a principle which was strongly felt by hon. Members who agreed with me on the Committee, that a man on joining the Army should not entirely lose the right of citizenship. I wish the hon. Member for South Hackney were present, because he would bring this point forward far more eloquently than I can, but, unfortunately, he is not able to be present to-night. We should always bear in mind that the Army (Annual) Bill becomes an Act of Parliament, that it is in force during the year for which it is intended, and that it may be applicable at any time to a large number of men who are voluntary or conscripted soldiers. That is to say, if, unfortunately, there broke out another war of a great magnitude, many voluntary or conscripted soldiers would, during the course of this Act, be liable to its provisions. That being so, I feel strongly that if the principle that I have enunciated is sound, it might be embodied in this Army (Annual) Bill. It may be urged that we are not in present danger of a war and that consideration of the matter might be well left over for some future time; but I would point out that if the matter were raised in future, those who raised it would be met with the question, "Why did not you raise it when the new recommendations of the Courts-martial Committee were first introduced into the Army (Annual) Bill?"

I should like to state very briefly what happened during the War when a man was tried by court-martial for his life. He was brought before a court consisting of officers who, throughout the War—and it is a very great thing to be able to say—were renowned for fairness and impartiality. No more striking fact appeared during the course of the Committee s investigations than the confidence that was universally shown among all ranks in the perfect fairness of courts-martial. Therefore, as to the fairness of the trial, and men are but human after all, there can be no question of doubt, but there was and is bound to be a question always as to whether men, although they may know their Army (Annual) Act well, and their manual of military law well, do really know sufficient about the legal technical side to be able to arrive, in all the circumstances, at a perfectly proper decision. After a man had been tried, and supposing the court found that he was guilty of the offence with which he was charged, and that the punishment which corresponded to that offence was that of death, he was handed a secret envelope in which was given the decision of the court, together with the information that the sentence was liable to revision by higher authority. I am not quoting the exact words, because I do not recollect them, but that was the purport of the communication which he received. The findings and sentence of the court are then passed up the long ladder of staff officers, and so on until they reach the Commander-in-Chief, and he, after consultation with the Judge Advocate-General, as the case was in France—supposing that the Judge Advocate-General said that the proceedings were perfectly in order and legal—then decided as to whether the sentence should be commuted, carried out, suspended, or whatever it might be.

That imposed upon the legal officers grave responsibilities which, in this new Clause, we would like to remove from their shoulders. The point we take is this. A man enlists for war service. Perhaps he goes into the Army or perhaps into munitions. If he goes into the Army, it is true that he gets the best legal protection that the Army can afford, but if he goes into munition work, supposing he happens to be tried by a civil Court of Assizes, he gets a great deal better than that, he gets the best legal brains of the country to consider his case from the legal point of view in the Court of Criminal Appeal. What we are asking in this Clause is that, in the case of death sentences, and only in that case, that same consideration should be given to the legal aspect of a man's case. However badly the Clause is worded, at any rate it embodies a principle on which we felt very strongly, and I believe that if the sense of this Clause were to be adopted by the right hon. Baronet, it would give the greatest confidence through all ranks in the Army that, not only are their cases tried by the fairest body of men whom you could possibly assemble, but that their legal aspect is in the best possible hands.


As one who had, during the War, considerable experience of these questions, as I was one of the deputy judge advocate-generals in one of the further theatres of war, I would like, in a few words, to put the other side of the case before the House. My hon. and gallant Friend has rather led the House to believe that in these cases where men are unfortunately sentenced to death the legal aspect of their trials has but small consideration. That is not so. The Committee should understand what happened during the War in France and in the other theatres in the case of men sentenced to death. First of all, unlike sentences of any other class, the death sentence had to be confirmed by the Commander-in-Chief, and by him alone. Before the proceedings of a court-martial got up to the Commander-in-Chief they passed through a, large number of purely legal channels. First they would go to the brigade headquarters, then to the division, then to the corps head-quarters. Both the brigade and the divisional commanders put their recommendations from a military point of view as to whether they considered that the crime of which the man had been convicted was so serious that he should be executed for it. Then the proceedings got to the headquarters of the Army Corps and they came under the immediate review of the legal officers, because with every Army Corps in France and the other theatres of War there was an officer who was a barrister or a solicitor in civilian life whose duty it was to advise the commander of the Army Corps on all these legal questions, and to go through these cases in reference to their legal aspect. He read the proceedings in every case where there had been a death sentence, just as he read other proceedings.

Then the matter went up to the Army. There you had a legal officer of even greater training, generally a deputy assistant adjutant-general, who was in every case a barrister in civilian life before the War. That officer again read the proceedings and advised the Army Commander as to what should be done. He, of course, put on his recommendations in regard to the case. Then it went to the Commander-in-Chief. The Commander-in-Chief had the deputy judge advocate to advise him, and before he confirmed a sentence of death the legal aspect of the case had been considered by at least three different officers whose training was just as good as regards legal matters as that of any counsel who would place a case before the Court of Criminal Appeal, and the legal aspect of those cases was most elaborately gone into to make sure that justice should be done. Then the sentence was either confirmed or not confirmed by the Commander-in-Chief. But a man sentenced to death or to any other sentence has other remedies now. He has this remedy of confirmation. Hon. Members may be surprised to hear that of the number of death sentences passed in France 89 per cent. were commuted by the Commander-in-Chief.

Lieut.-Colonel J. WARD

There never would have been if this had been law.


The number of such sentences was extraordinarily small when we consider the number of men who were engaged, but out of every hundred, if there were so many, eighty-nine had their sentence of death commuted to some other sentence. Probably the sentence was suspended and the man went back, and if he did his duty properly never got into trouble again. The man also has a right of petitioning, which is another remedy. That petition eventually comes before the Judge Advocate General, and the man's case can be fully investigated from that aspect. I think that the soldier to-day has a far better chance of getting his case fully considered if he has been sentenced to death than he would have if the case had to be taken before the Court of Criminal Appeal.


My hon. Friend surely does not consider that by this Clause we seek to take away from the Commander-in-Chief the prerogative of mercy? All we do is to seek to relieve him of the legal responsibility, and we maintain that the judges who sit in the Court of Criminal Appeal are better legal experts than all those, however excellent, barristers and solicitors, who may have served in the Judge Advocate General's offices, or elsewhere in the army.


My answer to that is that in the Minority Report, which my hon. and gallant Friend himself signed, he recommended that the system of confirmation, which is the system under which the Commander-in-Chief exercises his prerogative, should be done away with.


I am sorry to interrupt again. It is not fair to take one of my recommendations without taking the lot. I do not know that it is in order to refer to the matter, but I recommended a number of things which would improve the standing of the Court in the first instance. It would not then be necessary to have these proceedings confirmed.


I will not go into that. I think I have shown that the soldier at present has very large remedies open to him if he receives this sentence. There is, of course, another objection from the military point of view. It is that in these cases of death sentences, which can take place only in time of war, they are generally passed not in this country. There was not a single case of a death sentence carried out in regard to a soldier serving in England during the War. Such sentences are naturally passed in the theatres of war, where active operations are going on. Take the case of a man who has committed some extreme military crime, say in Mesopotamia. He may have been guilty of a gross form of desertion, as a result of which many of his comrades may have lost their lives. Does my hon. and gallant Friend suggest that that man should either himself be sent here to London to have his case heard by the Court of Criminal Appeal, or that the "proceedings" of the court-martial should come to London and be investigated by the Court of Criminal Appeal? It would take months, and I venture to say that if that man were executed it would be a scandal that he should have had to wait many months with the uncertainty hanging over him as to whether or not he was going to pay the last penalty. It is absurd to suggest that when men are on active service, and unfortunately receive this sentence in distant theatres, the Commander-in-Chief is not to have the power of carrying out the sentence unless in the meantime the case has come to London to be argued before civilian judges who are not acquainted with military discipline.

Lieut.-Colonel J. WARD

We have heard from the hon. and gallant Member that during the War the number of these cases was extremely small, considering the vast numbers of men employed and the terrific strain of the conditions under which they were employed. One might have expected an enormous number of such cases. It is to the credit of the Army and to the character of our men that they behaved with such remarkable gallantry as to make the number of such cases so few. Now that I understand the internal working of the thing, I am certain that it must be largely due to the influence of men who have not served in the Army that an Amendment of this description is put forward. In the Army, from the Commander-in-Chief down to the junior subaltern, there is not, I am sure, anything but a desire, when a man is in difficulties, to get him out of them. It is only when you can see quite clearly that the discipline of your corps or of your army will go to pieces unless you take extreme means, that such extreme means are taken. As long as it is left to him, the Commander-in-Chief, if there is not that painful necessity due to want of discipline, always finds way and means, as he does in nearly 90 per cent. of the cases, of getting a man off, or he can commute the sentence. Make this appeal to the Court of Appeal—I was going to say, a rotten old Court of Appeal—where the pure legal aspect of the case and dry-as-dust methods of deciding whether it is a legal sentence or not are adopted, and I am afraid that instead of the commutations being more than 80 per cent., the executions would be that proportion. What could a Court of Appeal do? It cannot do as a commanding officer would do, and say that the special danger has gone, and therefore there would be no good in executing a man.


This proposal does not interfere with the prerogative of the Commander-in-Chief, but would merely decide for him his legal difficulties. When a case had been dealt with and it had been decided what was legally correct, the prerogative would still remain to him. I thought I made that plain.

Lieut.-Colonel WARD

If the Court of Appeal followed the Army there would be something to say for it. Take, for instance, my own case, among my own men. We were 5,000 miles from Vladivostok, and from there we had to travel another 14,000 miles to get home. The thing is so absurd that it is not worth talking about. Look at the derangement that would take place in bringing witnesses and officers. If it is a case only of looking through the papers, the ordinary legal mind is just as good as the Court of Appeal. Lawyers differ even on pure matters of that kind. One does like to think that the thing is done perfectly legally. If you want the human element to decide these things and not the pure logic of legality, if you want to get off scores of men who otherwise from the purely legal point of view would be executed, if you want to make it a real camaraderie affair, where a man stands 50 times better chance of getting off than he would under any other system of administering the law, then keep it as it is. That is my advice from the practical knowledge that I have of the subject.

9.0 P.M.

Lieut.-Colonel HURST

If I thought that this proposal was really going to improve the chance of the soldier I should support it, but I agree with the view that there is no real hope of improving the lot of the condemned man under this Amendment, and that he is better off as he is under present conditions. Everybody is, of course, anxious to make every possible allowance for the soldier who gets into trouble on the field, because he is subjected to mental and physical strain that does not exist in civil life. One always has at the back of one's mind the recollection that the man has voluntarily run risks for the country, and that if he shirked his duty and stayed at home he would not have got into disgrace. Therefore everybody's instinct is to do the best for the soldier. The only issue we have to decide is whether this Court of Criminal Appeal is likely to be more helpful to the man when he is in trouble than the present system, and, without any bias in favour of the present system, I think this Amendment certainly suggests no better remedy than that which the man has at present. As an hon. Gentleman said just now, the Court of Criminal Appeal will find whether there are or are not any legal flaws in the proceedings, and having regard to the conditions of legal supervision which pervade the atmosphere of the court-martial from beginning to end, the chances are altogether against any such legal flaws being detected. The papers will have been before a number of legally trained persons in connection with the court-martial as well as the Judge Advocate General, and there is little likelihood of any lapse taking place. You would have as well a great objection in the shape of the suspense which the man would have to undergo during many months, while the case was coming from Mesopotamia or India or elsewhere to England.

Then again, the sentence is not intended to be punitive, and is not designed as a punishment or as a form of revenge taken by the Army or by society on the man. The whole point of the death sentence, like that of many other punishments, is that it should act as a deterrent. If the sentence is imposed and six months elapse while the case goes to the other aide of the world, and the comrades of the man have no idea of what happens to him, then how could it act as a deterrent as it should? So much is this the case that I was told by a Divisional General a few days ago of one case where it was his painful duty to carry out a sentence of death. He paraded the whole of the Division in order to see the sentence carried into effect. The result was that there was not a single other case in that Division during the whole course of the War. If the Division did not know what the fate of the man was, and if he suffered death in England without any knowledge of that occurrence coming to the soldiers, it would not have acted as a deterrent, and the whole of this painful and drastic punishment in such cases would have been absolutely futile.

The true line of advance in courts-martial is first of all to give the soldier when on trial the very best professional legal assistance through the service of his "friend." That has been secured by law for some time, and I think the full observance of that law is guaranteed by the recommendations of the Committee which dealt with courts-martial. The second line of advance in my judgment is to make courts-martial as independent in practice as they are in theory, and absolutely to liberate them from all undue, and in my view illegal, interference by superior officers or any outside authority. That has been secured by the recommendations of the Courts-martial Committee. These lines of development and advance will undoubtedly greatly help any man when he is accused in future. That being so, we are really left with the position that the present state of affairs is actually more favourable to the accused than his lot would be if he had to stand the racket of the ordinary English technical court of law. As the hon. Member for Stoke (Lieut.-Colonel J. Ward) pointed out, it is not the object of officers of the Army to do a man down. Their object is to let him off if it can possibly be done in a way consistent with discipline in the Army. They have already the best legal assistance. They do not look at the matter from the technical point of view. What we want to see is that the officers responsible are animated by sentiments of generosity and humanity. If they always have this Court of Appeal behind them they probably would not take upon themselves the responsibility of letting the man off, and they might be disposed to say that it was a difficult case and to put the responsibility on the experts behind them in London. That feeling does not exist now, and there is no inducement to throw the case over to some superior authority. Therefore, although I am in hearty sympathy with the sentiments and objects which have been expressed by the hon. and gallant Gentleman who moved, I feel that the present system with all its defects is a better one than the alternative which has been put before the Committee, and that the present system is one which is more likely on the whole and in the long run to temper justice with mercy.


We have had interesting expressions of opinion about the very vexed question of death sentences, and I think the House will be prepared now to come to some decision on the point. The view that the Government take on this matter is that the present system ensures on the whole a fair trial to the man, and, in the second place, it is in its results more favourable to the man from the point, of view of leniency and clemency than any system which depended solely or mainly upon the advice or recommendations or decisions of a civil court of appeal, which would be bound in the nature of its duties to decide the ease upon the legal technicalities, but would lose sight altogether of the many surrounding circumstances which are borne in on the minds of the soldiers and others in the case who deal with it on the spot. It is absolutely essential in punishment of this kind that the punishment should be an exemplary and speedy one, since otherwise it loses the effect which is required, namely, the effect on discipline. Without discipline, what would an army be but a mob, and without this power to enforce discipline Army Commanders would have grave doubts, I daresay, in many instances about operations which they would otherwise undertake. This is

not a new subject, but one which has been debated in this House before, and, in view of the expressions which have been used in this House and elsewhere, the Secretary of State appointed a Committee to investigate this, with other subjects. This question of the death sentence occupied a very prominent place in the consideration of the Committee. The last date on which the House considered an Army (Annual) Bill was about 3rd April last year, and the Committee was appointed about a week or ten days later. It consisted of very eminent and influential people, and any hon. Member who takes the trouble to look at the report of what is known as Mr. Justice Darling's Committee will see from a perusal of the names how very influential and experienced those gentleman were. Not only that, but the Committee had before them a large number of witnesses, and their evidence was very carefully considered. Then, having considered the whole matter, the Committee, by a very large majority, there being only three dissentients, of whom the hon. and gallant Member (Major Lowther) was one, came to the conclusion that the present system should be maintained. This recommendation has been considered by the Army Council, who have come to the deliberate and considered decision that the present system is the best and should be maintained, and they reject the suggestion of an appeal to a civil tribunal. Therefore, I am not in a position to give the hon. and gallant Member any hope that his Amendment can be accepted. The new Clause is contrary to the opinion of that Committee, contrary to the opinion of the officers, and, judging by the Debate to-night, contrary to the general opinion of this Committee.

Question put, "That the Clause be read a Second time."

The Committee divided: Ayes, 42; Noes, 124.

Division No. 80.] AYES. [9.13 p.m.
Bowerman, Rt. Hon. Charles W. Hirst, G. H. Rees, Capt. J. Tudor- (Barnstaple)
Brace, Rt. Hon. William Inskip, Thomas Walker H. Richardson, R. (Houghton-le-Spring)
Cairns, John Irving, Dan Short, Alfred (Wednesbury)
Davies, A. (Lancaster, Clitheroe) Jones, G. W. H. (Stoke Newington) Sitch, Charles H.
Davison, J. E. (Smethwick) Kenworthy, Lieut.-Commander J. M. Smith, W. R. (Wellingborough)
Edwards, C. (Monmouth, Bedwellty) Maclean, Neil (Glasgow, Govan) Swan, J. E.
Edwards, Major J. (Aberavon) MacVeagh, Jeremiah Thomas, Brig.-Gen. Sir O. (Anglesey)
Entwistle, Major C. F. Malone, Lieut.-Col. C. L. (Leyton, E.) Thorne, G. R. (Wolverhampton, E.)
Gould, James C. Mills, J. E. Waterson, A. E.
Graham, D. M. (Lanark, Hamilton) Murray, Dr. D. (Inverness & Ross) Wilkie, Alexander
Griffiths, T. (Monmouth, Pontypool) Myers, Thomas Williams, Col. P. (Middlesbrough, E.)
Guest, J. (York, W. R., Hemsworth) Newbould, Alfred Ernest Wilson, W. Tyson (Westhoughton)
Hallas, Eidred Newman, Sir R. H. S. D. L. (Exeter) TELLERS FOR THE AYES.—
Hayday, Arthur O'Grady, Captain James Major C. Lowther and Major Barnes.
Hayward, Major Evan Raffan, Peter Wilson
Agg-Gardner, Sir James Tynte Gray, Major Ernest (Accrington) Perkins, Walter Frank
Ainsworth, Captain Charles Gregory, Holman Perring, William George
Archdale, Edward Mervyn Gretton, Colonel John Pickering, Lieut.-Colonel Emil W.
Ashley, Colonel Wilfrid W. Hailwood, Augustine Pinkham, Lieut.-Colonel Charles
Baird, John Lawrence Hancock, John George Prescott, Major W. H.
Baldwin, Stanley Harmsworth, Sir R. L. (Caithness) Purchase, H. G.
Balfour, George (Hampstead) Henry, Denis S. (Londonderry, S.) Rae, H. Norman
Balfour, Sir R. (Glasgow, Partick) Hood, Joseph Rankin, Captain James S.
Barlow, Sir Montague Hopkinson, A. (Lancaster, Mossley) Remer, J. R
Barrie, Charles Coupar Hurd, Percy A. Richardson, Alexander (Gravesend)
Bell, Lieut.-Col. W. C. H. (Devizes) Hurst, Lieut.-Colonel Gerald B. Robinson, S. (Brecon and Radnor)
Bellairs, Commander Carlyon W. James, Lieut.-Colonel Hon. Cuthbert Robinson, Sir T, (Lancs., Stretford)
Birchall, Major J. Dearman Jameson, J. Gordon Rodger, A. K.
Boyd-Carpenter, Major A. Jephcott, A. R. Rose, Frank H.
Brackenbury, Captain H. L. Johnson, L. S. Roundell, Colonel R. F.
Breese, Major Charles E. Johnstone, Joseph Royden, Sir Thomas
Bridgeman, William Clive Jones, J. T. (Carmarthen, Llanelly) Samuel, Samuel (W'dsworth, Putney)
Brittain, Sir Harry Jones, William Kennedy (Hornsey) Sanders, Colonel Sir Robert A.
Britton, G. B. Kenyon, Barnet Seager, Sir William
Bruton, Sir James King, Commander Henry Douglas Seddon, J. A.
Burn, Col. C. R. (Devon, Torquay) Law, Alfred J. (Rochdale) Shortt, Rt. Hon. E. (N'castleon-on-T.)
Campbell, J. D. G. Lister, Sir R. Ashton Simm, M. T.
Cayzer, Major Herbert Robin Lloyd, George Butler Stanier, Captain Sir Beville
Chadwick, R. Burton Locker-Lampson, Com. O. (H'tingd'n) Stanley, Lieut.-Colonel Hon. G. F.
Cobb, Sir Cyril Loseby, Captain C. E. Stanton, Charles B.
Cohen, Major J. Brunel M'Lean, Lieut.-Col. Charles W. W. Sturrock, J. Leng
Cory, Sir J. H. (Cardiff, South) Maddocks, Henry Sykes, Sir Charles (Huddersfield)
Cowan, Sir H. (Aberdeen and Kinc.) Mallalieu, F. W. Taylor, J.
Craik, Rt. Hon. Sir Henry Malone, Major P. B. (Tottenham, S.) Tryon, Major George Clement
Davies, Thomas (Cirencester) Martin, Captain A. E. Waddington, R.
Dawes, James Arthur Middlebrook, Sir William Wallace, J.
Denniss, Edmund B. B. (Oldham) Molson, Major John Elsdale Ward, Col. J. (Stoke-upon-Trent)
Edge, Captain William Moore, Major-General Sir Newton J. Waring, Major Walter
Elliot, Capt. Walter E. (Lanark) Morison, Thomas Brash Williams, Lt.-Com. C. (Tavistock)
Eyres-Monsell, Commander B. M. Morris, Richard Williamson, Rt. Hon. Sir Archibald
Finney, Samuel Mosley, Oswald Winterton, Major Earl
Forestier-Walker, L. Murray, John (Leeds, West) Worthington-Evans, Rt. Hon. Sir L.
Fremantle, Lieut.-Colonel Francis E. Nail, Major Joseph Yeo, Sir Alfred William
Galbraith, Samuel Neal, Arthur
Gange, E. Stanley O'Neill, Major Hon. Robert W. H. TELLERS FOR THE NOES.—
Gardiner, James Parker, James Lord E. Talbot and Mr. Dudley Ward.
Gilmour, Lieut.-Colonel John Parkinson, Albert L. (Blackpool)
Goff, Sir R. Park Pearce, Sir William