The following proviso shall be added at the end of Section forty-one of the Army Act:
Provided further that a person subject to military law convicted by court-martial of an offence under this Section of the Army Act shall have a right to appeal against the finding of that court to the nearest civil court having jurisdiction to hear appeals against convictions for offences
of a similar nature recorded by civil courts, and such rights of appeal shall have retrospective effect as from the thirtieth day of April, nineteen hundred and thirty-two.
So far as persons no longer subject to military law are concerned, their right to appeal may be similarly exercised in the civil court nearest to their domicile of origin or place of residence at the time of the submission of such appeal.
No right of appeal, however, may be exercised after five years have expired from the date of the confirmation of the proceedings of the court-martial.
The response to such appeal shall be conducted by the judge advocate general or by an official of his department or by a person specially so directed by him, who shall be required to produce before the court of appeal the proceedings of the courtmartial."—[Sir W. Allen.]
§ Brought up, and read the First time.
§ 12.0 m.
Lieut.-Colonel Sir William Allen
I beg to move, "That the Clause be read a Second time."
May I ask your guidance, Sir Dennis, with regard to the new Clauses standing in my name on the Order Paper? In addressing my remarks to this new Clause, I should like to touch on the others.
I can tell the hon. and gallant Member that having looked at his proposed new Clauses, I think that with regard, at any rate, to most of 937 them, some reference thereto would be in order on the first new Clause in his name. Therefore, I propose to allow as reasonably wide a discussion as I can on the first new Clause, and then, unless something of importance occurs in the Debate or as the result of the Debate, I shall not, according to my present intention, select any of the other new Clauses in the hon. and gallant Gentleman's name.
§ Sir W. Allen
I should like to join in the general protest that has been made with regard to taking this important Bill at this late hour. I wish to lodge as strong a protest as I can because the new Clauses I am proposing are to provide for an appeal. Because of the injustices, irregularities and illegalities that have been committed since Major Sandford was first arrested, I find it is necessary that I should take this opportunity to move that a court of appeal should be appointed so that such injustices can be overruled and so that one individual in the Judge-Advocate's Department shall not use his position in an arbitrary manner. I have been trying for over two years to get some justice for this officer. The correspondence I have received is evasive and contradictory; it is misleading and displays an absolute lack of knowledge of elementary law. This officer is now before the House of Commons as his final and only court of appeal. An officer in the British Army is not considered as an ordinary citizen. An ordinary citizen has a right of appeal. A British officer has no right of appeal. That is an injustice which should once and for all be done away with. It is behind the times that we should treat officers of His Majesty's Forces in that manner. Illegalities have been committed since the start of this case and they have continued up to his final petition to the Army Council. Rules of procedure have been flouted.
I should like hon. Members to consider what those rules are. Here is a Manual of Military Law. It contains the Army Act rules of procedure. Every unit in the British Army is given a copy of that for guidance—guidance for discipline but also guidance for the protection of the soldier and officer. Here we find the Judge-Advocate-General sitting in the War Office declaring that certain rules of procedure are inoperative. There are some 130 rules of procedure. I would like to know who gave the authority to 938 any one individual to throw aside the rules of procedure that have been passed by this House. There is the rule of procedure 21B, for instance, that is mentioned in one of my Clauses. That rule is thrust aside. It is declared to be inoperative by the Judge-Advocate-General. Being inoperative, of course, means that that particular rule of procedure has no longer any effect in the British Army. What is that rule? It refers to the constitution of a general court martial. That is the only rule of procedure either in the Army Act or in the 130 rules of procedure that tell a British officer how a general court martial is to be constituted. Take another of the rules of procedure. Take it away from that book and what happens? You have a position that is absolutely impossible in the British Army. The same has happened with half a dozen other rules of procedure. We have one gentleman in the War Office who wipes them out as if they were non-effective.
Here we have rule of Procedure 94. It states that in connection with a court-martial the evidence shall be taken down in longhand by the Judge-Advocate if there is no reporter present. That was arranged at that particular court-martial. It was taken down in longhand. What do we find? When the Judge-Advocate comes to decide the question as to whether this is to be the record of the Court or not, he decides that anything at all will do as long as it has the signature of the president. Rule of procedure 94 is wiped out. In lieu of rule 94, which distinctly states that the taking down by the Judge-Advocate-General in longhand—
I am afraid I shall have to stop the hon. and gallant Gentleman. Perhaps I should have stopped him sooner. He is quite in order in referring to any particular case as being a case which would justify some such Clause as he is proposing, but certainly he is not in order in going into such detail on that particular case as questions of what happened in regard to the transcript of the proceedings and things of that kind. He cannot go into that particular matter beyond a general reference to it to support such other arguments as he may have in moving his new Clause.
§ Mr. Foot
I submit that if it can be shown or suggested that there were gross 939 irregularities in connection with the transcript which resulted in, or were a contributory cause of, a miscarriage of justice, and that that could be avoided if there were a court of appeal, it would be proper to bring the matter up in those circumstances.
The hon. Member, in what he has said, perhaps agrees with my Ruling. At any rate, he agrees with one part of it and I hope also he will agree with the other part—that the moving of a new Clause of this kind is certainly not the occasion to re-try a particular case which has been decided elsewhere.
§ Sir W. Allen
In that case I find that not only are the War Office and the Whips against me, but the rules of the House also are against me, and, being against me, they are against this British officer. [HON. MEMBERS: "No."] I am prohibited from giving evidence as to what took place in that court—evidence of misdirection of the court.
The hon. Member is now getting on to very doubtful ground indeed when he is complaining of the Rules of the House. That, certainly, is not a matter which can be discussed now, in addition to which I must put it to him that because the Rules of the House, and, therefore, the ruling of the Chair debar him from discussing this particular subject on the particular question which is before the House, it does not by any means follow that it is not a matter which can be discussed before the House on another occasion.
§ Sir W. Allen
The fact of the matter is that I have put down this Clause for an appeal court, and it is a very strange thing that the Rules of the House prevent me from giving the reasons why there should be such a court of appeal. The reasons are so plain to me in connection with this case, that I regret very much that I cannot have the opportunity of putting my case as I should like to do. I feel very strongly about an officer being condemned for the rest of his life because the rules of procedure have been flouted by the Judge-Advocate. It is a perfectly monstrous thing that any man should so use his position as to prevent the various units of His Majesty's Forces and various members of them from using the rules that have been given to them.
940 Here is a case where every mess in the British Army is wondering what is going to happen to them if this Clause is not passed. We are 1,000 officers short; I do not wonder. I do not wonder if, with a thing like this and the injustice that can be caused by the happenings in connection with this case, parents hesitate to give their young men to the Service. It is a Service which is becoming governed by Hitlerism. That is exactly what is happening in the War Office and it is high time the House of Commons took action to prevent it being continued, because while it is continued officers are suffering all the time. They enter the Service with high hopes, and they expect to be treated as British gentlemen, but during their service they have always the feeling that there is something above them trying to crush them down. There is a psychological influence because they feel that unless they are very circumspect and attend to their duties almost in an abnormal manner the officer above them will take the opportunity of putting bad marks against their names. They look forward to honourable service and to retiring with honour from the Army and to getting their retired pay. But after this Debate and after the happenings in connection with this case, I doubt very much whether the right hon. Gentleman will succeed in getting all the officers he wants. I ought to have had his help in getting this matter put right. I am sorry to say I have not had it. He told us that other Secretaries of State for War had considered this case. So they have—on the advice of the Judge-Advocate. They acted on the advice of the Judge-Advocate and they did not look into the case themselves. That is why we want a court of appeal and why it is necessary that British officers should have the same rights of appeal as the ordinary citizens of the country.
The right hon. Gentleman asked me to give him proof of what I stated on previous occasions and in the correspondence. I have had such correspondence from the War Office that I have absolutely no confidence in those who are responsible in the Judge-Advocate's office and I was not going to give any evidence I had to the charge or the jurisdiction of a man who had already made up his mind on the case. The right hon. Gentleman might, I think, have given me a little 941 more assistance. What I did offer to do was to meet the right hon. Gentleman, to put the whole case from my point of view before him, to put all my cards on the table and see whether we could not come to some understanding. But I was refused an interview. It is a strange thing and one of the bitter experiences of my life, that I should have been refused an interview in these circumstances by a Cabinet Minister and I do not think it was treating an old Member of the House of Commons as he ought to have been treated. I believe that if we had had an opportunity of putting this case before the right hon. Gentleman and submitting all the particulars, something could have been done to meet our point. But, no‡ I was refused that opportunity and here I am appealing to the House of Commons.
I suppose that the officer Members on this side of the House will all follow the Whips although knowing well that the refusal of this court of appeal will condemn this officer for the rest of his life. I feel very strongly on this case. The hon. Member for Bridgeton (Mr. Maxton) and others have taken up the case of the soldiers, and I have done the same thing in the past 20 years. Many and many a time I have tried to assist them. This is the first case I have had brought to my notice of an officer condemned—illegally condemned. Everything was wrong from the beginning. The court itself was misdirected by the Judge-Advocate-General. The time has come for us to decide that the rules of procedure given to us for our guidance shall be maintained and not flouted.
This case has given me a very different opinion of the War Office and those responsible. There is no justice to be had. After going through all the correspondence, and after all the appeals I have made to the War Office for fair play and British justice, I have come to the conclusion that it is not to be had. I appeal to ex-members of His Majesty's forces in this House to support me in this matter. I believe that this question of an appeal has been before the House for many years. If I live till next year I shall propose the same new Clause, and work until I get justice done for one who, I believe, has suffered a great wrong. My time in this House will not be long as a matter of Anno Domini, but as long as I am in the House I shall propose it 942 every year, in the hope that at some time or other I may see justice done.
§ 12.24 a.m.
§ Mr. Foot
I beg to second the Motion, and I wish to support some of the arguments put before the Committee by the hon. and gallant Member for Armagh (Sir W. Allen). Apart altogether from the reasons which impelled him to bring forward this new Clause and his other proposals, this seems an entirely reasonable proposal in itself, because hon. Members who have looked up Section 41 of the Army Act will see that it refers to serious offences which would generally be tried by a civil court if a civil court were readily available, and if they are tried by court-martial because there is not a civil court within easy reach I do not see any reason why the accused should therefore be deprived of the possibility of going to a court of appeal such as the Court of Criminal Appeal. The hon. and gallant Gentleman had a particular reason for bringing forward the Clause and for framing it in this way. He told the Committee, as he did a few days ago, of a particular case, of a Mr. Sandford, and his contention was that there had been so much injustice in that case and so many breaches of the law in the way in which it was conducted by court-martial and afterwards by the reviewing authority, the Army Council, that the case was conclusively proved for a court of appeal of the kind which he now proposes. I propose to follow up what he had to say about the particular instance.
The case is simply that of a Mr. H. R. Sandford, who, on 29th January, 1934, was tried by a court-martial at Quetta, in India. There was five charges, though they all arose out of one transaction; they were all charges of forgery. Four of those charges were subsequently quashed by the reviewing authority and only one was left in. The officer was dismissed the service and the sentence remained, although the four charges had been quashed.
I have heard only one side of the case, and I hope we shall have a fuller reply than we had last year. There is, on the face of it, some reason in what is said about this case. It is said, firstly, that it was very undesirable and that it was contrary to the directions given in the Indian Army Regulations, that this case should have beeen tried by court-martial instead of by civil court; secondly, that 943 this case was tried in such a way as seriously to embarrass the defence, the court-martial refusing an adjournment, which meant that it was impossible for the defence to call a vitally important witness; thirdly, that the constitution of the court-martial was not according to rules of procedure; fourthly, that the rules of procedure were not observed in keeping the court record, that which went to the Army Council when they reviewed the case being only a copy, I think it was a second copy, of the original record, and an inaccurate copy and that at least in one case there was a substantial difference between the original and the copy, to the detriment of the accused man; and fifthly, that when the Army Council quashed four out of the five charges they should have mitigated the sentence. I submit that they are required to do so by the rules of procedure governing the matter. This officer was allotted certain duties which necessitated that he should acquire a motor car. I understand that the system prevails in India that when an officer needs a car the Government advance money for its purchase and then deduct instalments.
The Chairman ruled earlier on this matter that we must not go into the details of the case. The hon. Gentleman is now going beyond that Ruling. He is entitled to give it as a reason why a court of appeal should be set up, but he must not go into the merits or demerits of the actual case.
§ Mr. Foot
I will try to keep within the Ruling of the Chair, but I was only endeavouring to put this as shortly as I could in order to make the case understandable. I will try to give the facts as broadly as I can; I am only doing that in order to show that the defence was considerably prejudiced in this particular case. In a case of this sort, or in the case of any other officer serving in India, when a car is required the money is advanced to the officer, who is expected to pay the money back in instalments, which are deducted from his pay. In order to show that he does spend the advance on a car, the officer is required to give a receipt showing that the money has actually been spent for the purpose for which it was advanced. To put it as shortly as I can, the officer in this case was asked for a receipt and he 944 obtained an advance receipt. That is to say, the transaction for the purpose of the car had not yet been completed in the sense that, though ordered, the car had not yet been delivered. The receipt which he obtained and forwarded to the Army authorities purported to show a purchase, though actually it was a purchase which had not yet been completed. In these circumstances he was charged with forging that receipt and also with uttering a forged receipt, and another gentleman, a Mr. Youett, who was not subject to military law, was charged with him. Those proceedings were instituted before the civil court, and later on the proceedings against this officer were withdrawn from the civil court and he was tried by a court-martial.
The point I want to make, and on which I may, perhaps, have an answer from the Secretary of State for War, is that if one looks at the Indian Army Regulations and at the Manual of Military Law, it is laid down in both cases that it is exceedingly undesirable that a case of this kind should be withdrawn from the Civil courts and tried by court-martial. In the Indian Army Regulations there occurs this passage:Cases which should preferably be tried by a civil court—civil offences—
That appears to be purely a matter of administration, which cannot be raised on the Army Annual Bill.
§ Sir Patrick Hannon
On a point of Order. How can the Committee be made familiar with the whole of the facts of this very extraordinary case unless the hon. Member is enabled to give a full description?
The first point I would make is that it is not for the Committee to try the case in any circumstances, and, secondly, it has been held over and over again by the Chair that questions of administration cannot be raised on the Army Annual Bill. So far the hon. Gentleman has been making a charge against the administration—I am waiting for his argument in support of the proposed new Clause.
That is a purely administrative matter. This Clause does not propose that these cases should in future be tried by a civil court. I am asking that the hon. Member should confine himself to arguments on the merits of the Clause.
§ Mr. Foot
The point I was about to put was that if this case had been left in the hands of the civil court, this gentleman would have had a right of appeal. Surely it is open to me to point out that he was deprived of the right of appeal by the case being transferred to a court-martial? Surely that is an argument I may put forward as to why there should be a right of appeal from courts-martial similar to this one? I will not pursue that point, but perhaps the Committee will take it from me that a similar ruling is given in the Manual of Military Law that cases of offences of this kind should not be preferably tried by courts-martial but by the civil courts. This gentleman was brought before a court-martial and he was tried on this charge of forgery. Whenever anyone is tried with either having forged a document or having uttered a forgery, it is an essential part of the offence that there should be an intent to defraud. It was upon that point that the whole of this particular case turned. The document which was alleged to have been forged and uttered had been drawn up by Mr. Youett.
§ Mr. Foot
Yes, but I have here information given to those who were responsible for the prosecution but which evidence they did not choose to call—evidence which I will hand to the Secretary of State if he wishes. A gentleman who says he was perfectly familiar with Mr. Youett's handwriting, and who had seen the document and the signature said they were, in fact, in Mr. Youett's handwriting. That evidence was in the pos- 946 session of the prosecution but they did not choose to hand it in.
§ Mr. Foot
It was in the sense that there was a false signature, but the signature was that of Mr. Youett. Even if there was a false signature, the offence of forgery would not be complete unless there was intent to defraud. The point I am making is this—and it has a wider application than this particular case, as showing how these matters can be dealt with in a court-martial. It was clear, if this gentleman was to defend himself properly against the charge, that the one vital witness was Mr. Youett. Mr. Youett was in the hands of the civil authorities at that time, but he had not been tried, convicted or acquitted. Obviously he could not be called as a witness at a court-martial unless his case had been taken before the civil tribunal, because otherwise he might have been expected to answer questions which might have incriminated himself. The counsel for Mr. Sandford applied for an adjournment until Mr. Youett had been tried by the civil authorities in order that this vital witness might be called for the defence. That application was refused, and I submit for that reason the defence was gravely embarrassed.
I am not going further into all the details raised by the hon. and gallant Member for Armagh (Sir W. Allen) either on this occasion or on the last occasion on which he raised this matter, but the hon. and gallant Gentleman has said to-day, as he said a week or two ago, that in certain respects the rules of procedure laid down for military trials had not been complied with. As I understand the case, for instance, he said the rules of procedure dealing with the rank of officers who may sit on courts-martial to try an officer had not been compiled with. I understand that the answer made by the War Office was that this particular rule of procedure is not authorised by the Army Act, that there is nothing in the Army Act which says rules should be made to deal with this special point. That may be so, but the rules of procedure are promulgated by the Army authorities, and, really, it is a fantastic position when the Army authorities put forward these rules, and the persons serving in the Army are ex- 947 pected to be guided by them, and when they find these rules are not altogether convenient, or that their own officers have not observed them, they say they have no validity at all because there is nothing in the Army Act which says that rules must be made on this particular point. I have seen letters which the right hon. Gentleman has written, and it does seem to me a fantastic argument to be put forward by any Government Department, first to make the rules, and then to say that we ourselves need not be bound by them.
Another reason arising out of this case why I submit the Clause proposed should be accepted is because of the unsatisfactory question of the court of record in this case. The case has been put to the Committee that when there is a court-martial it is the Judge-Advocate who is expected to keep a record of the proceedings, and who is expected to take the proceedings down in longhand. He is not supposed to make a copy, but in this case a copy was made. Not only was one copy made, but a second copy was made. First the Judge-Advocate copied out his notes in the case—made a fair copy—and then there was a type-written copy after that. When this matter was raised a week or two ago by the hon. and gallant Member for Armagh it was stated that the only difference between one copy and another was purely a matter of drafting. I understood that from the substance of the Minister's reply. This is an important matter of some public interest, particularly in this class of case when the Army Council have to review a case. That, I understand, is the only form of appeal from a court-martial. They have to have a record and come to their decision on the record taken by the Judge-Advocate. In this case—there may be, for all we know, other cases—there was, in my submission, not just a drafting difference, but a very substantial difference between the original which showed what was said at the court-martial, and the ultimate copy which came into the hands of the Army Council. There was called at the court-martial a Mr. Batok Singh, who was deputy-controller for military action in India. He was called for this purpose—
§ Mr. Foot
Well, Captain Bourne, I am trying not to go into too much detail, but I am saying that in this case the method adopted of keeping the records of the tribunal constitute the greatest irregularity. That is the submission I shall put forward on the facts I am putting to the Committee. The witness was called for the purpose of showing motive. The motive was to say that this gentleman was very much in debt due to cuts in his pay which followed from certain attachment orders which had been made against him. It was put to the witness by the counsel for the defence that the orders could perfectly well have been settled without the knowledge of the Army authorities, and therefore it was not necessarily accurate to say that he was in debt to any particular amount.
The hon. Member is now trying to re-try the case, which we cannot do in this House.
§ Mr. Silverman
I understand the hon. Member to be bringing to the attention of the Committee matters to which a court of appeal—had a court of appeal existed—would have directed its attention in deciding whether or not to support a conviction of a court-martial and using it in order to show that there ought to be in all future cases a court of appeal. How are we to understand this argument without knowing what would have been the grounds of appeal?
§ Mr. Buchanan
After another case it was decided in this House by the Government of the day to bring in a Bill granting to the subjects of Scotland a right of appeal in criminal cases. The reason for that Bill being introduced arose out of a famous case—the Slater case. When the Bill was brought before the House, the case of the Slater trial was re-argued here, on the ground, not that we had a right to overturn or reject a decision, but as a reason why that Bill ought to be passed. I remember very well indeed that we argued the whole Slater case over again, not as a criticism of the judge but as a reason why that Bill should be intro- 949 duced, and the right of appeal granted in Scotland.
I still do not think we can go into the entire details of the case. I think that the hon. Member can make his case for a court of appeal without going into too much detail.
§ Mr. Foot
I was only trying to draw the attention of the Committee to the fact that in this particular case there was room for injustice because of one glaring difference between the correct record of the court-martial and the revised record which came into the hands of the Army Council. I regret if I went into that too fully. If I may illustrate my point, the difference was simply this: The witness to whom I was referring replied, in answer to a question in cross-examination, "I cannot say that the accused, therefore, owes 39,000 rupees," that is, that he was not in debt to that extent. In the revised record the words "I cannot say" have disappeared, and the words "I can say" appear in their place. I have seen the copy—the intermediate copy—which I am told is the actual fair copy made in this case by the Judge-Advocate in which, it appears, the word "cannot" is crossed out and the word "can" written in over the top. I do respectfully submit to the Minister and the Committee—I have been at such pains as I can to verify the facts—that if that be correct, then obviously procedure of that kind is grossly unsatisfactory. I understand that when counsel for the defence makes a submission to a court-martial, even if that submission is overruled, the submission must be attached to the record of the proceedings which is sent on to the Army Council when they review the case. In the case we have been discussing, I think I am right in saying that not even the submissions of, counsel for the defence were attached to the record.
Finally, I merely want to raise a point with regard to the action of the Army Council when they come to review this matter. I think it goes beyond this case, because it turns on the construction of a rule of procedure, and on the action of the Army Council when they have to consider sentences that have been imposed. In the case to which I have been referring the accused had been convicted on five charges, four of which were quashed when 950 the case came up for review. Only one charge was then outstanding. In spite of that, the penalty was not mitigated in any way. As the rules of procedure stand, in my submission, the Army Council, if they quash certain charges, are bound to mitigate the sentence. There has recently been an alteration made in the wording of the relevant rule of procedure, No. 54. Perhaps I ought to say that I understand the Army Council is in a different position from the Court of Criminal Appeal, and the procedure here is different in that a court-martial can impose only one sentence, however many charges there may be. They cannot impose several sentences on each charge to run concurrently or consecutively. The rule of procedure reads as follows:Where a sentence has been awarded by a court-martial in respect of an offence under several charges, and has been confirmed, and any one of these charges or findings thereon is found to be invalid, the authority having power to commute, mitigate or remit the punishment awarded by the sentence shall take into consideration the fact of such invalidity and mitigate, remit or commute the punishment so awarded according as may seem just, and having regard to the extent of the offences and charges, and the punishment shall so modify the punishment as originally awarded only in respect of these offences.After "commute the punishment" there occur the words "according as may seem just." The extent of the mitigation, is intended to be at the discretion of the reviewing authorities. Two very eminent members of the English Bar have given it as their opinion that the rule of procedure is mandatory, and that if certain charges are quashed, the punishments must be mitigated to some extent. I am rather strengthened in this view, because as the rule stood until recently the words "and if it seems just" occurred before the word "mitigated." In the new version that has been struck out and it could not have been struck out for any other reason than to make it mandatory. My submission is that it is unsatisfactory because the plain intention of rule of procedure No. 54, which governs these appeals in the last resort, was not carried out in the last resort.
It does seem to me that these are matters of importance not to one man only but to the whole British Army. When this matter was raised the other day we received, I must say, a most perfunctory reply from the right hon. Gentleman the Secretary of State for War. The right 951 hon. Gentleman said that the matter had been reviewed and that his advisers were satisfied. When a matter of this gravity is raised on the Floor of the House we are entitled to a better reply. We have raised this case because if irregularities such as are alleged have taken place, and can take place, then it is time that there should be a right of appeal from courts-martial to some tribunal which has some elementary notion of justice.
§ 12.55 a.m.
It has been ruled from the Chair that we cannot re-try this case, and I have no intention of re-trying it. I do not think that the Commitee is very interested in small legal technicalities but the Committee is very much interested in justice and equity. I want to assure the Committee that I am convinced that no injustice has been done in this case. No single argument has been brought forward either by the hon. Gentleman or my hon. and gallant Friend to suggest that injustice was done. It has been suggested that legal technicalities which ought to have been observed have not been observed.
For the benefit of the Committee I will briefly state what the facts were. This officer applied for money to buy a motor car to carry out his duties—a lump sum which he would afterwards have to repay in gradual instalments from his pay. He knew that if he did not buy a motor car, at the expiration of a certain time he would be required to pay the whole of the lump sum immediately, which would be inconvenient for him. He was asked to provide proofs that he had bought the motor car. These were—the specification of the car, his receipt for the car and the insurance policy of the car. These three documents he, after long delay, sent to the proper authority. The specifications of the car were those of a car he had never bought; he had never paid the insurance premium. The insurance policy was one he had had drawn up on the specifications of this car on which he had never paid a premium. The receipt for the car has been admitted to be a forged document. He had obtained this document from a friend. It was signed by somebody who was never proved to exist. We have heard much about an important witness. He thought it best to remain under a charge and not go into the witness box or give evidence.
952 The facts are very simple. He was charged with forging and uttering these three different documents. I am not a layman and the exact significance of the word "uttering" is a mystery to most laymen in the House. On examination in was found by those who reviewed the case that it had not been proved satisfactorily that two of the documents had been forged and uttered by him. It has been expressly stated that those who reviewed the case were as convinced as those who tried the case that two were forged documents and he had used them for giving the false impression; that the third was signed by somebody who had never been proved to exist. The findings of the court were upheld and the sentence of dismissal from the Service was upheld.
What are the two grave abuses which are said to have taken place? One is that the record of the court taken down by the Judge-Advocate in longhand was copied out by him and a fair copy made. That is the burden of the accusation.
Either he has acted in good faith or he has not acted in good faith. Who has not written a document in longhand, not at leisure but under pressure, and has not left out a "not" and inserted it? Here a man wrote in the heat of the moment in court, and he comes to review it. There is not anyone, I think, who could take down a Crown case in longhand and find no need for correction. If it is to be forbidden to a man, suppose he makes a mistake in longhand, to correct it, that would be a fearful responsibility for the Judge-Advocate. Is it to be said that what he has written he has written, and that if he misses out an important word he should not correct it? He made one or two corrections and then thought it necessary to make a fair copy. I do not imagine that any layman could imagine that that is a fearful miscarriage of justice.
Surely the best judge of whether a man has made an error is the man himself—[Interruption]. The hon. Gentleman is suggesting that it is wrong to alter in a fair copy what has been written in the first copy.
§ Mr. Stephen
Surely the person who can state the facts best is the witness who made the statement to the court, and not the person who made the record?
I quite agree if we had the witness here; but we have not the witness here. There are only two people whose evidence we have, and they are the Judge-Advocate and the president of the court who have both written down and signed what they believe to be true.
In regard to the technical point that the court should consist of officers of rank equal or senior to the rank of the person before them, it did so happen that while the trial was taking place the officer who was being tried was promoted in the natural course of promotion. Therefore, two of the seven officers comprising the court became junior to him in rank.
None of the officers, nor the officer being tried, were aware that this promotion had taken place until after the trial. This is a technicality, and I am prepared to abide by the decisions of the technicians upon it. I am assured that this does not invalidate the trial and that, therefore, no injustice has been done. Whether it did or did not, nobody can say it inflicted a fearful injustice.
The hon. and gallant Member for Armagh (Sir W. Allen) has been brooding over this case for a long time, and he feels very deeply upon it. I sympathise with him in that. I understood him to say I had refused to see him. I have never refused to see him. When he asked for an interview, I said I thought in view of the facts before me, that it would be useless, but that if he would send further evidence I would consider it. I have never refused to meet him or any other Member of the House. As to the suggestion that a Court of Appeal should be set up, that has already been 954 the subject of a very careful inquiry, as hon. Members know, in 1919 by a committee presided over by a distinguished judge of the High Court, the late Lord Darling. They inquired into the subject very thoroughly, and in the course of their report they said:We are of opinion that it is undesirable to set up any formal Court of Appeal from the decisions of courts-martial, since these courts sit and adjudicate in circumstances wholly different from those in which the civil courts exercise their powers. So far as findings are concerned, the Court who actually see and hear the witnesses are far more likely to arrive at a correct conclusion upon conflicting evidence than any appellate tribunal. The best method of minimising the risk of error is, in our opinion, not to set up a court of appeal, but to strengthen as far as possible the trial court.That was the considered view of a very responsible committee presided over by a judge of the High Court, and I would remind the Committee that every officer who is brought before a court-martial has his case submitted to review whether he appeals or not. In that case he is better off than persons tried in civil courts. Everything is inquired into, and very frequently a conviction is quashed, and it is not true to say there has been no appeal in this case. The appeal came in the ordinary course to the Judge-Advocate-General and then before the Secretary of State. Owing to the vigorous support and advocacy of my hon. and gallant Friend the Member for Armagh, the case was considered closely by the then Secretary of State for War, who happened to have been before and who happens to be now Lord Chancellor, and he decided that the appeal could not stand. The case then came, in the natural course of events, once more before the Judge-Advocate-General who happened to bet another Judge-Advocate-General from the one who first reviewed the case, and he went into it from beginning to end. The Secretary of State for War was at that time the present Lord Privy Seal, Lord Halifax, and, whatever people may think of his political views, he is a man of wide experience with a broad mind. Lord Halifax saw my hon. and gallant Friend with his legal adviser, and having listened attentively to the whole of the evidence, he decided that the appeal could not be upheld. The case has been again before me with far less experience as a Secretary of State.
955 I can assure the Committee that I have gone very carefully into the case, and I am fully conversant with all the facts. I am convinced that no injustice has been committed. As to the Clause before the Committee, I hope that the hon. Member will not press it to a Division. I hope the Committee will accept my assurance that no injustice has been committed in this case and that, so far as legal technicalities which were observed or not observed are concerned, we have had the best legal advice that is possible on these questions, and I am advised that no technical wrong has been committed, and that to the best of our information no inequity has been committed.
§ Sir P. Hannon
Do I understand the right hon. Gentleman to say that the whole facts of this case were examined by the present Lord Chancellor and the present Lord Privy Seal, and that they came to the conclusion that there were no facts available on which an appeal could have been established?
§ 1.10 a.m.
§ Mr. Pritt
What fills me with the gravest anxiety about this case is almost everything which has just fallen from the right hon. Gentleman. He offers the Committee his assurance—and I accept it without a moment's hesitation—that he believes no injustice has been done, but there is a very important principle which comes into a matter of this sort. The right hon. Gentleman is convinced—he will forgive me if I put it so bluntly—that this officer was guilty, but it has been laid down over and over again as a cardinal principle of the administration of justice in this country that the only thing less important—and very little less important—than the proposition that justice shall be done, is the propositon that jusitice shall also appear manifestly to the public to have been done.
The right hon. Gentleman suffers from a defect which he mentioned, which is ordinarily a merit, if not in this particular case—that he is not a lawyer, and if he thinks he can see through the technicalities and procedure that a man is guilty, then the procedure and technicalities do not matter. But they do matter vitally. 956 The procedure is laid down as a machine in order that you shall secure justice. It does not always work perfectly, but you are better with it than without it, and I do not think you want a clearer illustration of a thing which is nearly always recognised by lawyers as a conclusive illustration of injustice or a manifest appearance of injustice, even if justice happens by accident to have come about, than the fact that you can discover in the notes of the Judge-Advocate a statement which appears to be the exact opposite of what a witness has said. One knows how many times it appears that someone has made a mistake in taking down what a witness has said, but I do not think there is a trained lawyer or judge in the whole of the English-speaking world who, finding that that had happened, would alter it on his own opinion, and say that whereas he wrote yesterday that a witness said "I cannot say a man is guilty" would to-day say that the witness said "I can say." It is the one thing no judge would allow to appear on the records unless he was quite sure of the substance of what was said. It is because the Minister treats that so lightly that I feel more convinced than I was before that this is a very grave case on which the Committee should pass its vote.
I want to say a word on another matter. The right hon. Gentleman will forgive me if I say that he passed it over lightly only because he is a layman. He says that this case has been submitted to appeal over and over again. That is a lawyer's job, and a layman cannot settle it. It will be the opinion of every lawyer who has had to deal with such charges that there is all the difference in the world between an appeal and a revision or review. At an appeal a man can be heard himself, or by his friend or legally trained advocate, and can argue the issue on his behalf. The only thing which happens in a revision or review is that persons with varying degrees of competence, prejudice and sympathies say, "Now that I can sit down by myself with nobody to argue with me, do I think this is right or wrong?" I hope the Committee will show, by voting for this Clause, that whatever the precise form of the appeal tribunal suggested may be, it is emphatically of opinion that irregularities of this kind show it is absolutely necessary that some fully judicial procedure should be adopted to protect officers as well as men.
§ 1.15 a.m.
§ Sir A. Wilson
The hon. and gallant Member for Armagh (Sir W. Allen) has asked that Service Members should express an opinion. I have no knowledge of this case, and I should not presume to express an opinion upon it, but on the merits of the question of an appeal in such cases I do submit that there has been for a good many years now a good deal of doubt and some resentment at the fact that there is no proper form of appeal available from courts-martial. If the right hon. Gentleman could reconsider the matter and reopen the question that came before the late Lord Darling in 1919, he would be doing a real service. I remember hearing the Prime Minister saying not long ago—and it has been said before—that not only must justice be done, but it must be seen to be done. I think there is a stronger case than the right hon. Gentleman opposite realises for a tribunal before which cases can be argued afresh. The Judge-Advocate-General is not a judge; he is a judicial person, but he holds his position on the War Office Vote at pleasure, and is not quite in the same position as a judge. I hope whatever decision the Committee may reach on this particular Clause, the Secretary of State for War will reconsider and reopen the whole question which was submitted in 1919 to Lord Justice Darling.
§ 1.17 a.m.
§ Mr. Spens
In my view the proposed new Clause should not be voted for or against on the merits of a particular case which has been mentioned in this Debate. It ought to be voted on upon its general merits as to whether there should be any court of appeal from courts-martial. I know nothing of the particular case, and I do not propose to say anything about it. There come before courts-martial two classes of cases, one class consisting of purely military offences, and about which the civil courts know nothing at all, and I think it would be quite wrong in such cases that there should be any appeal to a civil court. On the other hand, there is the right under military law for the military authorities to have tried by court-martial those offences which ordinarily, if they were committed, or alleged to be committed by, persons other than those in the Services, would come before a civil court. From the decision of courts-martial on this particular type of offence there is no right of appeal to a civil court 958 —not for confirmation of sentence, but for confirmation of being guilty or not of such offences.
The report which was made by Lord Darling in 1910 is comparatively old now, and there has grown up in this country the tendency that certain types of case which might ordinarily go before a civil court have been reserved for trial by court-martial. I do not want to say anything more than that it does not seem to me satisfactory that the decision of these courts-martial should be final and binding in all cases. I am bound to say I should feel happier if the Secretary of State for War would reconsider whether the time has not come when there should be some form of appeal from the findings of such courts-martial to some court of criminal appeal in respect of these very serious offences which are frequently tried to-day by court-martial. I do not want to say more than that. I can see very obvious objections against the new Clause proposed to cover every sort of findings of a court-martial and with which I could not agree.
§ Sir F. Acland
May I say that the Clause refers only to Section 41 of the Army Act which deals specifically and solely with the second class of cases which the hon. and learned Member distinguished from the first—not military offences but civil offences.
§ Mr. Spens
None the less, the Clause is retrospective, and I could not possibly agree to that. On the general principle I would ask the right hon. Gentleman to consider whether the time has not come in regard to civil offences when there ought not to be a right of appeal to the Court of Criminal Appeal.
I am quite prepared to consider that point. I have devoted so much time to this case, that I did not explore at length the case for giving a court of appeal. I merely dealt rather shortly with the Clause on the Paper which I did not think would meet the wishes of Members at all. I am quite prepared to look into the Clause once again, and carefully examine it, and ask the advice of my legal advisers and other 959 people as to whether the time has come for a revision of that nature.
§ 1.22 a.m.
§ Mr. David Grenfell
I remember this discussion some time ago. It caused me some disquiet, and to-night the right hon. Gentleman provided an example of a possible misinterpretation of what he himself said. I understand that the witness at the court said, "I cannot say that this man is so much in debt," and that the expression was ultimately found to be "I can say." It is said that an alteration took place. When the right hon. Gentleman was speaking to-night he said "I cannot say that a travesty of justice took place." Suppose he found those words altered in the OFFICIAL REPORT to-morrow to "I can say" would not he have a right to feel aggrieved?
§ Mr. Grenfell
I am assuming that that is beyond his power, and that it is stated against him for all time. I do hope that he will look at this particular phase of the matter.
§ 1.24 a.m.
§ Sir W. Allen
With regard to what the right hon. Gentleman said about the guilt of the officer concerned, of course I cannot accept what he said. It is not possible. Then he said there has been appeal after appeal. There has never been any appeal. There have been petitions. An appeal to the court gives an opportunity for counsel for the individual to plead his case again. Neither this officer nor any officer has any right of appeal, and never could exercise that appeal. It is no use creating the impression that there has been appeal after appeal. That is quite wrong. The right hon. Gentleman has tried to create that impression like some of the impressions created by the Judge-Advocate on the court-martial. With regard to his statement that Lord Hailsham and Lord Halifax have reviewed the case carefully, I still hold the opinion that had Lord Hailsham known that the court was misdirected he could not have come to the conclusion he did. Had he known that a typed copy was substituted for an original copy in handwriting, he never would have accepted it, 960 and had he known that the typed copy differed materially to the detriment of the officer, he never would have accepted it. There is no reason to suppose that it is anything like the original as taken down by the Judge-Advocate at the trial. I stated in the House when I had an opportunity of speaking before that we had in our possession 44 pages of the original copy and the right hon. Gentleman admits that they have nothing in their possession to compare with that. We state emphatically that there are many differences between the original taken down by the Judge-Advocate and the typed copy that is in the possession of the War Office. Moreover there is a falsehood on the face of that typed copy. It is marked in red "original." That is a false statement. That is the position we are up against now. By rejecting this Clause we are condemning this officer on false evidence. That is what is comes to. I intend to divide on this to give hon. Members an opportunity of saying whether we shall have an appeal from this manifest injustice.
§ 1.27 a.m.
§ Sir P. Hannon
The Committee must have been very impressed by the statement made by the right hon. Gentleman the Secretary of State for War. I came into the House with the warmest sympathy for my hon. and gallant Friend the Member for Armagh (Sir W. Allen) who has brought this case persistently before the House of Commons for a long time past, and in my view it is the function of this House to protect the interests of every officer and man in the British Army against injustice, but after the statement of the Secretary for War, and particularly when he told us that so distinguished examiners of the facts as the present Lord Chancellor and the Lord Privy Seal had come to the conclusion that there was no substance in the case made for a further appeal, I think the Committee would be well advised to reject the proposed Clause.
§ Sir P. Hannon
Members will not get me to sit down by shouting "Divide." This House always stands for justice to the Services, and I do not think in this case there is the slightest diversion from the rigid delivery of justice in the Services.
§ Question put, "That the Clause be read a Second time."