HC Deb 10 April 1940 vol 359 cc607-17

After Section 56 of the Army Act there shall be inserted the following section: 56A.—A person subject to military law convicted by court-martial of an offence for which he might have been tried on indictment by a civil court shall be entitled to appeal against the finding of the court-martial to the Court of Criminal Appeal."—[Mr. Foot.]

Brought up, and read the First time.

4.0 p.m.

Mr. Dingle Foot (Dundee)

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

My hon. Friend the Member for West Middlesbrough (Mr. K. Griffith) and I put down this Clause to call attention to a matter which has been considered by the House on various occasions during the last two or three years. As hon. Members will see, the Clause draws a distinction between offences which are purely offences against military law and offences which are also indictable offences against the ordinary civil law and which could therefore be tried on indictment in a civil court. It sometimes happens that courts-martial adjudicate on cases which could be tried in the ordinary way by a judge and jury, and where that happens the effect is that the man who is tried loses the right of appeal which he would enjoy if the case were heard by a civil court. It is true that there is a review of the case by the Army Council, but I do not think any hon. Member would dispute that there is an enormous difference between a mere review and an appeal. I do not say for a moment that there is no value in the review that takes place by the Army Council, and I know that there are cases where the verdict is altered as a. result of that form of proceeding, but the accused has no opportunity to appear either in person or by advocate, and he has no opportunity to state before those who adjudicate what objection he takes to the trial in the court of first instance. Nobody will seriously suggest that there is no difference or that a review by the Army Council or any other body can ever be a proper substitute for a properly constituted appeal.

As the Ministers know very well, this matter has been raised before in recent years. It has been raised particularly by the hon. and gallant Member for Armagh (Sir W. Allen), and when we had a considerable Debate on the matter in 1938 a demand was supported by Members in different parts of the House, and by Members with a good deal of experience in these matters, that there should be a right of appeal from conviction by court-martial. Eventually a Committee of Inquiry was set up, on 15th March. 1938, and I would like to remind the Committee that its terms of reference were as follow: To examine the existing system of trial by court-martial under the Army and Air Force Acts and matters incidental thereto, and in particular to consider whether it is desirable and practicable that a person convicted by court-martial should have a right of appeal to a civil judicial tribunal against his conviction, and to make recommendations. I think everyone will agree that that was an exceedingly strong committee. It was presided over by Mr. Roland Oliver, now Mr. Justice Oliver, and it included Sir Felix Cassel, Mr. Tristram Beresford, K.C., and also the hon. Member for Chester-le-Street (Mr. Lawson),and in addition there were two representatives of the Services. That committee was set up in March, 1938, and I do not know precisely when the report was presented to the War Office, but I understand it was quite a considerable time ago, and before the war started various reasons were given from that Box why the report should not yet be published. Shortly after the commencement of the war, the hon. and gallant Member for Ayr Burghs (Sir T. Moore) asked whether it was intended to publish the report. The hon. Gentleman who was then Parliamentary Secretary to the War Office replied that it was not intended to publish it, and he said: The main recommendations of the committee related to the appointment, constitution and functions of the Judge Advocate General and his office. As it is not practicable to make the proposed alterations during the war, it would not be possible, if the report were published now, to indicate the decisions of His Majesty's Government thereon, and its publication has therefore been deferred."—[OFFICIAL REPORT, 19th October, 1939; col. 1052, Vol. 352.] We can only gather from that statement that it is not proposed to make any alteration or even to publish the report as long as the war lasts, and I am bound to say that that seems to be an exceedingly unsatisfactory state of affairs. Even if it is not possible to act upon all the recommendations of the Committee during the war, is that any reason why the terms of the report should not be published and made available to Members of the House? It was said in that reply that it would not be practicable to carry out the recommendations of the Committee during the war. If the report were published, hon. Members would be able to judge of that matter for themselves, and is there any good reason why they should not be allowed so to judge? There seems to be a tendency on the Treasury Bench to withhold information of all kinds from the House of Commons, even when it is information which has no strategic importance whatever. We had one example of it in the case of the West Indies report, and now we have another example in the case of the report of the Oliver Committee, and we put down this Clause particularly to draw attention to the refusal of the Department concerned to publish this report.

As regards the Clause itself, I would only say that as far as we can see there is no vital reason why a change of this kind should not be made, even during the war. An appeal to the Court of Criminal Appeal does not involve anything in the nature of a rehearing. In not one case in a hundred is the decision taken to call evidence in the Court of Criminal Appeal. All that happens is that the transcript of the evidence in the court of first instance is sent up to the Court of Criminal Appeal, and the appellant or the advocate who appears on his behalf tries to convince the court that there has been some irregularity in the original trial and that that irregularity has led to a substantial miscarriage of justice. That does not seem to present any great technical difficulty, even in time of war. Presumably a record is kept of the evidence in the case of a court-martial. Indeed, it must be kept, because it has to be transmitted to the Army Council for their approval, and it would be an equally simple matter to transmit it to the Court of Criminal Appeal. We all hope that the number of cases in which this issue will matter during the war will be very small, but there are bound to be some cases, and it would be a matter of satisfaction if we could be sure that in all cases of this kind where members of the Services are charged with some indictable offence and convicted by court-martial substantial justice has in fact been done.

4.9 p.m.

Sir E. Grigg

The hon. Gentleman has moved his Clause with his usual cogency, and I hope I shall be able to give him satisfactory reasons why, at any rate during the emergency of a great war, the change which he advocates should not be made. With regard to the Oliver Committee, it is true that this subject was referred to Mr. Roland Oliver and his committee, and that report is not being published because it deals with a large number of matters which were under consideration in the War Office when the war broke out. Owing to the rapid expansion which has taken place since and to the emergency character of the existing situation, it would be impossible to give effect to the greater part of the committee's recommendations at the present time. I should like to say that the hon. Gentleman had better not assume that if that report were published, it would necessarily support him in the course which he has just been advocating. As a matter of fact, this matter has been referred in the past to two absolutely independent committees. It was referred immediately after the last war to a committee presided over by Lord Darling, and at a later date, as a result of many questions which were put to the Labour Government in 1924, it was referred again to a committee of which the hon. Member for Chester-le-Street (Mr. Lawson) was chairman while that Government was in power and which had another chairman, I think, after the Labour Government went out of office. In both those cases the decision was quite clear, and, I think, unanimous, against the change which the hon. Member advocates this afternoon.

There are two aspects of that change—first of all, as to its desirability, and secondly, as to its practicability—and I should like to say a word or two on both those aspects. With regard to its desirability, we all agree that the object of this procedure, whether by court-martial without appeal or whether by civil procedure, is the same. It is that the interests of justice shall be served, with the qualification that in the case of the Army or any Fighting Service discipline shall be maintained. Everybody will agree that those are absolutely necessary points. The Darling Committee went carefully into these points. The hon. Gentleman said that the soldier was not in so good a position as a person accused before a civil court if he had not got this appeal. The Darling Committee said he was actually in a better position, and I do not think I need go into the argument, which is to be found in the report of the Darling Committee. The actual words used by Lord Darling, who was a master of words, were: A soldier is in a better position. If the hon. Gentleman likes to follow the argument, it is there. He may not approve of it, but at any rate that was the view of a very distinguished Judge and of the Committee which worked with him.

Mr. Foot

I would point out that it would be very much more impressive if we could have the views of the distinguished Judge who has just advised on this matter.

Sir E. Grigg

I do not think it would serve the purpose if I were to go into the various reasons why the report should not be published at the present time, but I would remind the hon. Gentleman of what I said, that he must not assume that the report of the Committee would in any way support the case he was making to-day. In the second place, the Darling Committee said that there was a great responsibility in these matters being decided by a court which actually saw and heard the witnesses. In the case of appeals in the Army that would be impossible. Finally, I would remind the hon. Gentleman of the circumstances, particularly with regard to death sentences, in the last war. The Darling Committee went very carefully into that point, and this is what it stated in regard to courts-martial under review by the Commander-in-Chief: As showing the care with which all considerations were weighed and the desire to show mercy whenever the interests of the Army as a whole, and of the nation, permitted, it may be stated that no fewer than 89 per cent. of the death sentences pronounced were commuted by the Commander-in-Chief. We doubt very much whether any court necessarily not possessing information which he possessed as to the discipline and moral of the Army, would have ventured to exercise clemency to any such extent. The Commander-in-Chief, of course, commuted sentences in many cases where a Court of Criminal Appeal would have had no legal grounds for interfering and must, therefore, have dismissed them. It shows conclusively that the method of appeal which now exists may be much more favourable to the accused or convicted person than the course which the hon. Gentleman suggests. So far as fairness and the interests of justice are concerned, both Committees, and the Darling Committee certainly, endorsed the view of that time. There then followed the Committee which was presided over by the hon. Gentleman the Member for Chester-le-Street (Mr. Lawson)—

Mr. Lawson

May I put the hon. Gentleman right on that point? The Labour Government fell while that Committee was sitting, and someone else had to take my place. While it sometimes bears my name, it is a fact that the Committee were fax from arriving at conclusions at the time I left. Someone else had to make the conclusions and sign the report.

Sir E. Grigg

I must apologise if I seem to be making the hon. Gentleman in any way responsible for the conclusions of that Committee, but he knows that the report is generally known after his name, and that is why I so refer to it. What he says is true. This Committee reported in 1925 on this question of appeal in the cases of death sentence to the Court of Criminal Appeal. They quoted, with approval, the findings of the Darling Committee and said: We have little to add to those observations except that they are supported by the Service evidence we have taken and that we fully agree with them and can recommend no amendment of the Act on this subject. There, therefore, are very clear decisions by two independent authorities which, at intervals, were asked to report on this subject. I think the Committee, in the present emergency, may safely be guided by the information which they expressed, particularly in view of the fact that if the latest inquiry were published, it does not follow that it would give any support to the arguments which the hon. Gentleman deduced this afternoon. I might add that this principle of keeping military procedure apart and having no appeal from military courts is followed not only in England, but in the United States. Wherever our system of law prevails this principle holds at the present time. In the case of France, where the system of law and the whole method of procedure are very different from ours, there is an appeal to a civil court in time of peace, but in time of war that is absolutely abrogated. I think, therefore, we may say that the existing procedure affords safeguards as good as can be given under any procedure, and it is certainly the best from the point of view of military discipline.

Now I come to the question of practicability, which is an important point. There is a general rule—and it is laid down clearly in the Manual of Military Law—that in places where civil courts are available, and no practical reason exists why cases should not go to a civil court, they should, as a general rule, go to such a court. But there remains a large number of instances where practical difficulties do exist to a large extent because parts of the Army are out of reach of civil courts and troops, also, are constantly moving about. In time of war, of course, that difficulty becomes still greater. It is a system in which the national interest may be concerned, and I think no one will argue that a change of this importance should be made in time of war. At a time like this, when there is the gravest national emergency, an immense responsibility rest son different commanders in the field. They have our future and the lives of millions of men in their hands, and those lives are affected by the issue we are discussing this afternoon. I think the whole Committee will agree that, from the quotation I have made from the Darling Committee, the powers given to the Commander-in-Chief in France in the last war were exercised with the greatest care, and I would ask the Committee to give the same confidence to our commanders at present in the field.

4.22 p.m.

Mr. Kingsley Griffith (Middlesbrough, West)

The hon. Gentleman who has just sat down has, by his own speech, given a most convincing reason why it is desirable to publish the Oliver report. He has been standing there and saying, "You must not assume that this report would have been in your favour." He has implied to us that if we did get this report, we would be very badly stung and wish we had not seen it. Surely that is a very undesirable thing. The report has not been published, and we do not know what the terms are. We are subjected to hint and innuendo as to what the effect would be if we did know what was in the report. If we knew it, it would clear the matter up once and for all as to what were the effect and weight of the Committee. It is no good asking us to assume this or that. Why are we left in the sphere of assumption at all when it would be so easy to clear up the matter? When the Financial Secretary came to deal with the positive arguments he apparently forgot what the terms of the Clause actually were, because nearly the whole of his argument and quotations from previous Committees were devoted to an offence with which this Clause does not deal.

I have had some experience of courts-martial in France, and I entirely bear out what the hon. Gentleman said about the humane manner in which Lord Haig and others exercised their functions in reviewing death sentences. These sentences were for such offences as cowardice in the field and sleeping at a post and the kind of purely military offences which are not subject to indictment before a civil court. Our Clause—and it is amazing that the hon. Gentleman does not appear to have noticed it—deals solely with indictable offences and entirely rules out of consideration the kind of offences he had in mind when he made his quotations. The authorities he quoted are not authorities in his support at all. The hon. Gentleman's speech has been interesting, and there is much of it with which many of us agree, particularly his words about the great responsibility resting on those who have to deal with discipline. But it really does not touch the kind of offence which was meant to be dealt with by this Clause. That being so, the whole stuffing and essence of the hon. Gentleman's reply has gone, and there is not much left. He has not put before the Committee any solid reason why the Oliver report should not be published. If it was against us, we should have to bear the brunt of that, and it would be a powerful influence, coming, as it would, from such a source. The reasons in favour of giving effect to all the various matters with which that report may deal are no reason for not letting the Committee know what were the recommendations. The hon. Gentleman has not put forward any solid reason for not accepting the Clause, because he was dealing with an entirely different class of case.

4.28 p.m.

Mr. Lawson

The Committee, I think, will see the difficulty in which I find myself in this matter, as one of the signatories to the report. The hon. Gentleman has just said it would not give any countenance to the Clause. I do not want to be dragged into this discussion, but I want to be quite honest and impartial, and I must say I do not see why the report should not be published. I see no real objection to that. It is quite true that any changes of big nature would be very difficult for the War Office and the Judge Advocate-General's Department at the present time. The Committee will also understand that those who are members of a committee do not like to do work which is to be kept in a pigeon hole.

4.30 p.m.

Sir Percy Harris (Bethnal Green, South-West)

I want to deal with the important point of the failure to publish the report. That is the real reason behind the Clause. We wish to have the report published, and if the hon. Member can give us an assurance to that effect we shall not press the Clause. Even in war-time we think that the report of responsible persons appointed for a specific purpose should be made available to hon. Members. This is not a matter of giving information to the enemy or of undermining discipline in the Forces. The whole nation is now subject to being embodied in the Army, and I think it is of vital importance to the nation that hon. Members should not be deprived of the very latest information which is the result of careful investigations by a responsible committee presided over by a distinguished Judge. I hope the hon. Member, who I know is quite new to his office, will be able to give a sympathetic reply to our request. If he insists that the report should not be published, I am afraid we shall have to press the Clause to a Division.

4.32 p.m.

Sir E. Grigg

The hon. Member for West Middlesbrough (Mr. K. Griffith) tried to draw a distinction between two classes of crime, but he did not seem to realise that an indictable offence may be just as important from the military point of view as from the civil point of view. I should have thought he would have discovered that from his own experience in the last war. Troops have to serve in many other countries, and there may be indictable offences against the civilian population which are of immense importance from a military point of view and must be dealt with summarily if discipline is to be maintained. I think his argument falls to the ground. An indictable offence may be just as important from the military point of view as any other military offence. As to the plea which has been made for the publication of the report, I am sure that my right hon. Friend will be influenced by the fact that a distinguished member of the committee sees no objection to the publication of the report. I will certainly convey the observations which have been made to my right hon. Friend, and while I can give no undertaking, I can assure the Committee that he will give it immediate and sympathetic consideration.

Mr. Foot

I am much obliged to the hon. Member for his statement that the publication of the report will be reconsidered by the Secretary of State for War with sympathy. In view of that assurance, I ask leave to withdraw the Clause.

Motion and Clause, by leave, withdrawn.

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