§ (1) In the proviso to subsection (1) of section one hundred and fifty-eight of the Army Act (which provides that except in the case of certain offences a person who since the commission of an offence has ceased to be subject to military law shall not be tried for the offence by court-martial unless his trial commences within three months after he had ceased to be subject to military law) after the words "he had ceased to be subject to military law" there shall be inserted the words "or unless the offence was committed outside the United Kingdom and is an offence which when committed in England is punishable by the law of England, and the Attorney-General consents to the trial."
§ (2) Subsection (1) of this section shall apply in relation to the trial of an offence after the coming into operation of this Act, whether the offence was committed before or after the coming into operation thereof.—[Mr. Shinwell.]
§ Brought up, and read the First time.
§ Mr. Shinwell
I beg to move, "That the Clause be read a Second time."
The purpose of the proposed new Clause is to ensure that an officer or soldier who commits a civil offence while serving outside the United Kingdom can be brought to trial beyond the three months' period specified in the present Act. As regards mutiny and desertion or fraudulent enlistment we already have these powers. There was a recent judgment of the divisional court in a case where an offence committed by an officer who was tried by court-martial for fraudulent conversion led to his conviction; but the conviction was subsequently quashed, but only on the ground that the divisional court found that the time within which the officer could be tried by court-martial had expired, and that there was no jurisdiction to try him. If this situation were permitted to continue it would enable certain crimes to go unpunished, and, therefore, would fail to safeguard the public interest. It is not my intention to use the powers contained in Subsection (2) to bring into the net a large number of old cases. Only 518 where a serious crime is involved would these powers be invoked. It will be noted that there are two condition's: the offence must have been committed outside the United Kingdom, and have been of a character which, had it been committed in the United Kingdom, would have been punishable by ordinary law; and, moreover, the consent of the Attorney-General must be obtained before the accused person is brought to trial. Criminal offences committed in the United Kingdom could, of course, be tried in the civil courts here, but we have not been able to adopt the same measures where an offence is committed overseas.
It is not my intention to amend Section 161 of the Army Act, so that, as in the past, a trial must in all cases begin within the three years provided for. As regards purely military offences, there appears to be no reason why the present law should be altered. Such offences are usually of a character where the offence is speedily detected, and the accused person can be brought to trial very soon after the commission of the offence. I regret that the proposed Clause should be necessary, but its passage is unavoidable if we are to bring to trial persons who have committed offences which have not been detected while the officers or soldiers were in the Service. In view of the need for bringing the law up to date, and for bringing to justice offenders who, in order to safeguard the public interest, must be brought to justice, and having regard to the safeguarding conditions provided for, I feel that this is a Clause which, in all the circumstances, should be accepted.
§ Mr. Manningham-Buller
The Secretary of State has sought to justify this new Clause in order to provide for the trial and punishment upon conviction of persons who have ceased, under the existing law, to be subject to military law. This new Clause clearly arises out of the judgment of the Divisional Court on 27th February of this year, but the problem with which it is intended to deal must surely 519 have come up for consideration as long ago as 1945. The question of bringing to trial before courts martial persons who were demobilised must have been considered then, because, as the right hon. Gentleman may know, at the top of every charge-sheet containing the charges before the court martial are stated the grounds upon which it is supposed that the person is at that time subject to military law. Therefore, I suggest that at the very outset that question must have fallen for consideration by the military authorities.
I should be interested to know whether the learned Attorney-General expressed any view upon that matter, because it is obviously—as, indeed, the Lord Chief Justice said—a question of the highest constitutional importance. I know that the right hon. and learned Gentleman did not appear in the case before the Divisional Court. In saying that I am not seeking to draw any inference that he did not find it possible to support the views at that time put forward on behalf of the Crown. This is a most astonishing position, where a person is arrested, taken out of this country, tried on the basis that he is subject to military law, sentenced, the sentence confirmed—with all the advice available on that issue from legally qualified gentlemen, and had any doubt been felt at that time about jurisdiction those sentences could not have been confirmed—and then, in 1948, the decision of the Divisional Court that the whole machinery was wrong, and that the court martial had no jurisdiction to pass sentence. We must have some explanation from the right hon. Gentleman why this situation was allowed to develop.
Secondly, we must have a much more detailed explanation as to the operation of this new Clause, because as I understand it—the learned Attorney-General will correct me if I am wrong—the man in question, whose conviction was quashed by the divisional court on the ground that the court-martial had no jurisdiction, is liable, if this Clause be passed, to be re-arrested and brought again before a court martial.
§ Mr. Manningham-Buller
I should be obliged to hear what the learned Attorney- 520 General has to say about that. I should have thought it was absolutely clear in law that that man is liable to re-arrest and trial.
§ Mr. Manningham-Buller
Yes, on the same charges, because the first trial was a nullity, as the court had no jurisdiction. I have before me the judgment of the divisional court, and that was the basis of their decision. The court had no jurisdiction; it was a nullity; and, as far as I am aware, where a court martial is, for instance, improperly convened and the proceedings are subsequently quashed on that account, that is no bar to a retrial before a properly constituted court martial. We want and ought to be told, without any shadow of doubt, first, what is the legal position with regard to such persons?
§ 1.0 p.m.
§ Mr. Manningham-Buller
Persons who have been tried. There is only one case of that sort. Secondly, what is the legal position of persons who have been arrested and taken overseas for trial, and whose trials have been abandoned in the light of this decision of the Divisional Court? They, too, so far as I am aware, may now, if this Clause be passed, be rearrested as soon as the Bill becomes law, and brought before a court martial either in this country or overseas. If I am right in the view that I put forward as to the effect of this Clause, then it is very unsatisfactory in this form.
In moving the Motion the Secretary of State said that it was not his intention to operate the Clause in a large number of old cases. Surely, the administration of the criminal law does not rest upon the right hon. Gentleman's intention? What he is seeking to provide here is that, people who commit offences, not of a military character but such as would have been offences against the criminal law if committed in England, could be brought to justice. That must rest upon the whim of the Attorney-General. If provision is made for retrospective trial in respect of offences committed a long time ago, we must be informed, and there ought to be a 521 statutory provision declaring the principles on which this wide power will be exercised. He has said that this new Clause would only be invoked in serious cases. What does he mean by that? Who will decide what are serious cases? Does it mean that if a man is charged with fraudulent conversion of£1,000, he will be taken away from his civilian employment? May be, under this new Clause, he has been in that employment for the best part of three years before he is taken away and brought before a court martial. Does it mean that a man charged with the fraudulent conversion of £1,000 will suffer that, and that a man charged with taking £900 will not? What does the Attorney-General mean by serious cases? Who is to determine them?
It must not be forgotten that we should not assume for one moment that persons arrested on these charges are guilty of the offences alleged against them. The consequence of this Clause will be that, within three years after the alleged commission of the offence, when the officer or man has been demobilised almost that entire period, when he is employed again in a suitable civilian capacity, he is suddenly taken off to face a civil charge of this character. The consequences for that individual are bound to be serious. Even if he is acquitted, it is going to cause some interruption of his civilian occupation and may prejudice his advancement in the civilian sphere.
Why is it that the right hon. Gentleman wants to maintain this power for so long a period as three years? Surely it is possible for the military authorities to discover what has gone on, and to know what is going on, in less than that period. After all, when a man is demobilised he first has his demobilisation leave. Then he is free after three months, as the law now stands, from liability under military law. Surely it would be sufficient to say that the time should be much shorter; say, within six months of his demobilisation he can be brought back. But three years—a man may have forgotten all about the circumstances and may be further handicapped when he comes to put forward his defence or to secure witnesses in support of his case. Three years would seem to be an unnecessarily long period. I am not saying anything to seek to justify the evasion of justice 522 by persons who have committed criminal offences, but I am putting forward the plea that the period in which they can be brought for trial before a court martial should be much shorter than three years after the commission of the offence. There is something to be said for three years if they were still serving, but when a man has been demobilised, it is a very hard thing to seize him suddenly, two and a half years, it may be, after the alleged commission of the offence. I ask the right hon. Gentleman to look into that question of time very seriously indeed to see if he cannot reduce it.
I think that we ought also to be told a little about the position of persons employed by the Control Commission. Do they come within the sphere of this or not? If they do not, is there not some means of dealing with them in cases of fraudulent conversion, embezzlement, or something of that sort? I do not know whether they can be brought before a court martial or not, but the right hon. Gentleman must know. If they cannot be brought before a court martial—I should have thought that the probable answer was "No"—is there not some machinery for dealing with them, if they have committed offences which, if committed in England, would be contrary to the law of England? If there is machinery for dealing with these individuals machinery created in 1945—it would seem to destroy the argument for providing for trial by military courts of officers and men after their demobilisation for offences which, if committed here, would be offences against the law of England. If there is machinery for dealing with employees of the Control Commission in Germany for fraudulent conversion, embezzlement and things of that sort, would it not be possible to use that machinery in relation to any man who was in the Army, but who is no longer, who is charged with an offence of that character?
If that machinery does exist, this Clause becomes unnecessary, and that is why I am asking if there is machinery. If there is no machinery, then perhaps this Clause does not completely fill the gap which the divisional court has shown to exist. Therefore, I suggest that we ought to have an explanation upon that. No one, I feel sure, in this Committee likes retrospective legislation, and no one likes 523 the idea of providing for the trial of persons in relation to offences committed a long time ago. I hope that the right hon. Gentleman will be able to say that, in view of the observations I have made, the period of three years will in these cases be reduced.
I have one final observation to make. Of course, it is true to say that no prosecution can be brought, as shown by Subsection (I), without the consent of the Attorney-General. The right hon. Gentleman may have a heavy burden placed upon his shoulders. I think that he ought to tell us on what principles he will act in determining whether or not his consent will be given. The Secretary of State rather indicated that he thought that it was for him to decide whether a case was sufficiently serious for a prosecution, but, as I understand the Clause, it rests upon the Attorney-General to determine that. We ought to be told on what principles the right hon. Gentleman relies. For instance, supposing he is satisfied that the charge, although a serious one, is one which really ought to have been made months ago, that the whole circumstances ought to have come to light months ago had there been proper diligence on the part of the military authorities, and supposing it is brought to his knowledge that the individual concerned is well established in some civilian occupation, will he say that, in view of the delay that has occurred, although the charge is of a serious character, he is not prepared to give his consent? What weight will he give to the element of delay in bringing the matter before him? I think that we must ask for further explanation on this particular point. I hope we shall get a more satisfactory assurance from the right hon. Gentleman than we have received up-to-date and that he will be able to allay some of the fears about the actual operation of this new Clause.
§ Mr. Blackburn (Birmingham, King's Norton)
My right hon. Friend the Member for Bassetlaw (Mr. Bellenger), who had put down a new Clause which appears on the Order Paper, is unavoidably absent today and asked me to apologise to the Minister and the Committee that he is unable to be present. He feels that the point which he had in mind has been covered by the Government's new Clause. I would only put two other short points. 524 First, everyone will agree with the hon. and learned Member for Daventry (Mr. Manningham-Buller) that we in this House do not like introducing retrospective legislation, which may have the effect of making something criminal today which was not criminal two or three years ago, and we also agree it would be most unsatisfactory for any individual case to be reopened. I feel quite certain that the Secretary of State for War, in view of his opening remarks, has not the slightest intention of reopening the Boydell case, to which the hon. and learned Gentleman referred. I feel absolutely certain that he has no intention whatsoever of taking advantage of this retrospective provision in order to upset decisions which have already been taken by the Courts.
I should like in the second place to say something about the Attorney-General's consent to the trial. I would respectfully suggest to the Attorney-General that in principle it is not a very good thing to have a provision of this kind. I personally consider that the whole business of bringing the Attorney-General into appeals in criminal cases to the House of Lords is wrong. It is an anomalous situation, and I should like to refer to Montesquieu's doctrine of "separation of powers," which appears to be broadly correct. Something which one should keep at the back of one's mind is that the legislature and the judiciary should always be kept separate. In principle the kind of thing we ought to try to avoid is to have a man of the political importance of the Attorney-General taking semi-judicial decisions as to whether or not an individual should be prosecuted in certain circumstances. That is brought out by the particular case we have in mind, where I understand the gentleman concerned, about whom I know nothing, has made certain threats to the Secretary of State for War. It is undesirable that a political function of any kind should enter into this matter.
It would be far better if the decision rested with the Director of Public Prosecutions. Perhaps the Atorney-General will deal with the point, but I understand that, in general, the Director of Public Prosecutions, in fact, operates under the broad supervision of the Attorney-General. Therefore, perhaps there is not a great deal of substance in my point. I hope the Attorney-General will not think I am per- 525 sonal when I say that in any event he is far too busy a man to be wasting his time considering individual cases of this kind. The Attorney-General advises the Cabinet on all points of law in regard to the Measures which come before this House, and it is ridiculous to suggest that he personally should be spending his time dealing with cases of this kind. The whole idea of the Attorney-General being responsible for going personally into these cases is fantastic. If he does go into them he is wasting his time. He is responsible for seeing that all legislation brought before this House of Commons is in accordance with the great legal traditions of this country.
§ Mr. Manningham-Buller indicated dissent—
§ Mr. Blackburn
Yes, he does. I hope the hon. and learned Member for Daventry is not going to contradict me when I say that the Attorney-General is responsible for advising the Cabinet on points of law, and, therefore, in relation to legislation which comes before this House he has to advise whether or not it is in accordance with the legal traditions of this country. That being so, it is wrong that he should have to concern himself with individual cases. While entirely approving, if I may respectfully say so, of the new Clause and being willing to vote for it if the hon. and learned Member for Daventry divides the Committee, I hope that this kind of provision will not appear in future. I trust, too, that the Attorney-General will say a few words on the subject.
§ 1.15 p.m.
§ The Attorney-General (Sir Hartley Shawcross)
Perhaps I might just pick up amongst the points that have been raised in this short discussion the last point made by my hon. Friend the Member for King's Norton (Mr. Blackburn). I must be careful not to allow the various functions that I have to discharge to be added to by the constitutional theories of my hon. Friend. It is not part of the duty of the Attorney-General to see that legislation accords with any kind of tradition. The duty of the Attorney-General is to advise the Government as to the law and as to the effect on the law which any changes in legislation may bring about. It is for others to decide whether those changes are consistent with the 526 traditions of the law or with political or other traditions to which the country may adhere, but that is not the Attorney-General's responsibility. It is, however, his responsibility under a number of existing Statutes to give his consent or fiat before particular prosecutions are launched.
§ Mr. Blackburn
I am not trying to quarrel with what the Attorney-General has said, but he must bear in mind that he remains a member of the Government both as a politician and as a lawyer, and in that capacity surely he takes a broader view than merely being, as it were, a hired attorney.
§ The Attorney-General
Obviously, as a Member of the Government I accept with all other members of the Government collective responsibility for any decision which the Government take. I advise the Government on legal matters and I accept responsibility with other Ministers on questions of policy. I was simply taking up the suggestion made by my hon. Friend that the Attorney-General, by virtue of his office, is under some special obligation to the House to see that legislation accords with some particular kind of tradition. That is not the position of the Law Officer at all.
In regard to this question of giving my fiat to the launching of a prosecution under a particular statute, it is, as I have said to the Committee already, the practice in a number of statutes that the fiat of the Attorney-General should be obtained. Where there is a statutory provision to that effect I can assure the Committee that in every case I personally consider whether the fiat should be given. Nobody else does it for me. It is not an easy task, and it is a task which sometimes takes time but it is one which the Law Officers of the day have to discharge personally, and invariably I discharge it personally. If the Committee decides under this Bill to cast this duty on me, it can rest assured that it will be discharged personally by me or my successors and by nobody else, nor will it be discharged, as my hon. Friend seemed to suggest, as a political function. There is nothing political about it. It may be that it is a function which contains an element of an executive as well as a judicial nature, but it is one in the discharge of which no political considerations are allowed to apply at all. Nor during the 527 course of the time I have held my present office has anybody ever sought to bring any political influence to bear.
It is true that in some cases the consent of the Director of Public Prosecutions rather than that of the Attorney-General is required, but, as my hon. Friend has pointed out, the Director of Public Prosecutions does work under my supervision and no great constitutional point is involved there. I find it a little difficult to say what reason there had been for choosing the Director of Public Prosecutions in one case and the Attorney-General in another. The practice in the past, I believe, has been that the more important cases, where it has been thought that prosecutions ought not to be brought without the most careful consideration at a high level being given to them, should be assigned personally to the Attorney-General. That is the reason why that course has been taken in this case. When the hon. Member referred to separation of powers, it might have been better if, instead of quoting Montesquieu, he had quoted our own great authority, Maitland, who pointed out that in no country in the world did that doctrine apply less than it has applied in the English Constitution. It is rather fortunate for the development of our Constitution that that has been the case.
I now come to the points raised by the hon. and learned Member for Daventry (Mr. Manningham-Buller). He asked me whether that matter had been considered in 1945 or prior to the recent decision of the Divisional Court. I must tell the hon. and learned Member that the matter had not been considered before.
§ The Attorney-General
Not by His Majesty's Law Officers. I do not know that in recent years it had ever occurred to anybody, until the matter was raised, not by counsel but by one of the judges of the Divisional Court, that officers who, without being discharged, without being placed on the reserve list had been placed on the unemployed list with liability to recall at any time, thereby ceased to be subject to military law. I doubt whether that had occurred to anybody until the Divisional Court decided it. The Divisional Court did decide it. They said that it was a matter of very great 528 legal difficulty as well as of importance. But they did decide it and from that decision in the circumstances of that case there is no appeal. I must be absolutely loyal to that decision and not express, even if I were so minded, which I am not, any view about it save, perhaps, that we shall seek an opportunity—and we hope that one may present itself in the not too distant future—of testing this matter which is of very great importance, constitutionally and legally, before the highest tribunal, so that the law may be finally settled in a way beyond all possibility of dispute or argument.
§ Mr. Manningham-Buller
In this connection the right hon. and learned Gentleman will perhaps remember that in the course of the discussion on another Bill, I referred to the question of providing some right of appeal against the judgment of a divisional court.
§ The Attorney-General
My memory was brought sharply to that matter when I saw the decision in that case—a decision of which I knew nothing at all until I saw it reported. I do not wish it to be thought for a moment that the reason why no Law Officer appeared in the case was that no Law Officer thought it was capable of argument. Law Officers cannot appear in every case.
I will now pass to some of the other points which the hon. and learned Member raised. He asked me, in particular, in what cases the enlarged power would be exercised, and what my right hon. Friend meant by "serious." In regard to a quasi-judicial duty, which has not yet been cast upon me by statute, and which, if it is, I shall have to discharge in relation to the merits of particular cases, it would not be right for me to tie myself down by indicating too precisely the particular principles which would weigh with me, or the extent to which they would weigh, but I think that without impropriety I may go so far as to say that the question of delay would certainly be one of the factors to which I should have regard. In the criminal law of this country it is not yet a defence to say that the prosecutor was guilty of contributory negligence, but if there has been long delay, and if in the meantime the person against whom it is sought to bring a charge has established himself in honest, civilian life, those are obviously considerations which one would not ignore 529 in deciding whether or not the matter should be reopened and whether it was necessary in the public interest that a prosecution should be brought.
Nor do I think I ought to tie myself down—because I have not yet considered it in a judicial way as I should have to do in regard to any particular case, and one case has been mentioned here. But I am certainly entitled to say that I should think it exceedingly unlikely either that my right hon. Friend would ask for leave to prosecute, or that if he did I should give leave to prosecute in a case which had already been the subject of proceedings made abortive under the decision of the Divisional Court. I do not think I ought to have to go any further than that, for the obvious reason that I have no function yet, and when I do get it it will be a judicial function which I shall have to discharge on the merits of the case.
§ Mr. Manningham-Buller
The right hon. and learned Gentleman has explained how he will exercise his function if the Clause is passed. He has said that he thinks it unlikely that any further proceedings will be brought against the gentleman in a case which was the subject of a judgment in the Divisional Court. I apprehend from that that he agrees that under this new Clause such proceedings could be brought. Will he go further and say what the position would be, and what would be the Government's attitude towards those who had not in fact been brought to trial but—and there have been cases of this character—who have been arrested, taken overseas, and then the proceedings dropped because of the decision of the Divisional Court? Will such people be re-arrested?
§ The Attorney-General
I do not think I ought to commit myself any further than I have done on that kind of case. I think that would certainly be a consideration which would have to be borne in mind by the Attorney-General and, I have no doubt, by my right hon. Friend the Secretary of State because my right hon. Friend would have to consider the matter first. He or his Department would have to decide whether the case was one in which, in their view, a prosecution ought to be brought. Only if they so decided would the matter come before the Attorney-General at all. I have no doubt 530 that both my right hon. Friend and his Department and the Attorney-General would certainly give weight to that consideration, but how much weight is a matter which must depend upon the merits of each particular case.
In some cases it would obviously be a grave miscarriage of justice—and when I say "justice" one must remember that it is not only the wrongdoer but society as well who are entitled to justice—if a man who had committed a serious offence for which punishment ought to be meted out were to escape that punishment because he had been arrested and detained for a day or two by mistake. He has his remedy for that. He can bring an action if he thinks it is right, and can possibly get damages for it. I would not be prepared to tie myself down here and say that no man who has been mistakenly arrested should thereafter be rearrested and tried for an offence. All that I feel able to say is that that is one of the factors that one would certainly take into account in deciding whether or not there should be a trial.
The next matter which the hon. and learned Gentleman raised concerned the position of officers of the Control Commission. Officers of the Control Commission may, of course, be civilian officers or military officers. If they are military officers and are subject to military law, as they would be if they were on the active list, they would be liable to be tried by court martial. If they are civilian officers their liability is to be tried by the courts which have been established by the Control Commission in Germany—what are, in effect, civilian courts operating in Germany now, and presided over in many cases by British judicial officers. The difficulty about those courts—and those courts might have been available to try certain military officers—is that their jurisdiction is a territorial one, and the wrongdoer may succeed in leaving Germany before his offence is discovered. There does not now exist between this country and Germany the machinery which normally exists between two countries—the machinery of extradition between one country and the other—and once a Control Commission officer gets back to this country he cannot be compelled to go back to Germany for his trial.
In 1802 a Statute was passed, as I thought, to deal with that very type of 531 problem, which gave jurisdiction to the then existing courts to try persons who, while in the service of His Majesty, military or civil, had committed offences abroad. Unfortunately, it has been construed, whether rightly or not, as applying only to misdemeanours, and, another unfortunate thing, it seems still to be subject to the rule that there must be a grand jury presentment for trial to take place. There are also other procedural difficulties. After examination of the possibility of using that statute, it did not seem to me right to use it because it had fallen into desuetude. We shall have to consider whether it is necessary to provide other machinery to deal with that kind of case.
I was asked why we should take three years. Clearly, consideration was given to that before we decided to have three years. What happens in some of these cases is that discovery of the offence only occurs when an attempt is made to remove money from Germany. I do not want to be thought to be referring to any particular cases for it would be improper that I should say anything that might even indirectly refer to a particular case. However, there may be cases in which, as a result of some criminal process, a person in the service of His Majesty has succeeded in obtaining money in Germany and has put it, in an anonymous account in a bank, perhaps in the name of a German, and left it there until he has been discharged from the Army for three months. Having been discharged for three months, and knowing that under the existing law he is immune from prosecution, he then says, "I have got some money in Germany. Kindly arrange for it to be sent over to me."
While we felt that it was necessary to have some time limit, we thought that as quite considerable sums might occasionally be involved, a year or even two years might not be enough. People might be prepared to let the money lie in Germany for two years in order to avoid the risk of prosecution. We had to draw the line somewhere and we thought that the right line was the line already laid down in Section 161 of the Statute, that is, three years. Hon. Members will remember that there is no time limit to prosecution in the ordinary criminal law, except in particular cases.
532 Let me now say a word about retrospective legislation. The real objection to retrospective legislation is, as was said, that it may make something criminal which was not criminal at the time it was done; but that is not the effect of this Bill. There is authority for the view that the whole principle against retrospective legislation has no application at all to cases where the legislation is simply jurisdictional or procedural. It is one thing to say to a man that we shall prosecute him and punish him now for something which he did at a time when there was no law forbidding it and it was done innocently and properly as far as he knew. That is very objectionable. It is different to say that we shall prosecute a man now for something which he did, knowing when he did it that it was criminal to do it and that he could be tried and punished for it. We are asking the Committee to say that we may have the right to do that, subject to the very considerable safeguards which do not protect ordinary civilian wrongdoers, in the special circumstances of this case.
§ Mr. J. S. C. Reid (Glasgow, Hillhead)
I am rather disturbed about what the Attorney-General has said with regard to the Control Commission. Obviously, that is highly relevant here because, as I understand from him, there is already a distinction between those under military law and those who are not under military law. That distinction is in favour of those who are not under military law. The effect of this Clause will be greatly to aggravate that distinction. No steps have yet been taken to deal with the Control Commission offender who gets away before he is caught and yet, with regard to the man under military service, this extra period of two years and nine months is to be applied, and it is to be made retrospective.
I should have thought that this increase in the distinction between those under military law and those not under military law was entirely unjustifiable unless it is proposed to follow this Bill with another Bill introducing some new law with regard to civilian offenders in Germany. If it is proposed to do that and to have still more retrospective legislation coming along shortly, we must examine this Clause pretty narrowly. We may have to ask the right hon. and learned Gentleman to give us a little more detail than he has 533 yet done as to what he will do about the other class of cases. If he is going to leave the other class alone, why should there be this distinction against those under military law whereas the others, who are already better off, are left where they are? It is an entirely unjustifiable Clause unless it is to be followed by a further Bill to deal with the civilian employees of the Control Commission who reach this country before their offences are discovered.
Surely a proposal to deal with the civilian officers in Germany, and not this Clause, would have been a better way to deal with the demobilised man, because he is now a civilian and these are civilian offences. The Government have attacked this problem from the wrong end. They should not have had this Clause but should have realised that these people are now civilians and that civilian employees of the Control Commission are apparently "getting away with it."
§ Mr. Shinwell indicated dissent.
§ Mr. Reid
The Secretary of State for War shakes his head, but I understand from the Attorney-General that if a civilian employee of the Control Commission reaches this country before he is found out, nothing can be done about it. The Attorney-General was perfectly clear on that point. If we are to accept this Clause, it is necessary, and plain justice, that there should be another Bill to clear up the position in regard to the civilian officer of the Control Commission against whom an offence is alleged but who cannot now be tried because of the technicality that he cannot be extradited to Germany.
Are we to have another Bill or not? If not, this Clause is entirely unjust to the men under military law. If we are to have another Bill, why does it not deal with all cases in the same way? I would rather see a man who had committed an offence in Germany and is now demobilised, tried in England, or Scotland if he is a Scotsman, under the ordinary law of his country. I would rather have these people regarded for this purpose as having committed the offence within the jurisdiction of their home courts. After all, we are occupying Germany, and these people are under our direct orders, even more than in the case of a Crown Colony. I see no legal objection to our saying that people who commit offences in Ger- 534 many against the law there and the law here might be tried here as if the offence had been committed in this country. They would have a jury of their own country to try them, and it seems perfectly fair. If that is the proper way to do it, why bring the man back into uniform if he has been demobilised for two or three years?
I cannot help feeling that the War Office have landed this Clause on the Attorney-General. There has been no consultation between the civilian and military sides of the Government, and the problem is being dealt with piecemeal and in the wrong way, whereas if it had been brought to the Attorney-Generals' notice before it was prepared, he would have produced a very much better scheme. It is most astonishing that the War Office should have allowed this to go as far as the Divisional Court without taking proper legal advice about the position. I was astonished to hear the Attorney-General say that a case of this constitutional importance had come up in the Divisional Court without his or the Solicitor-General's knowing anything about it.
There is something very far wrong with War Office organisation if that can happen. If it had happened in Edinburgh when I was Lord Advocate, I would not have let the thing rest there. I do not think it could have happened. It may be, that because they are on a bigger scale, things can happen in London which could not happen in Edinburgh. In any case, it ought to be stopped, and I hope this case will have induced the War Office to realise that though they may be good at their own job, law is not their strong point and that on a case of this great importance they ought to take proper advice before they get into this kind of a mess.
I agree with the Attorney-General that if there is to be a discretion here, it ought to be his discretion. Our system in Scotland is a good system under which the Lord Advocate exercises an entirely nonpolitical discretion in the matter of prosecutions. I see no objection whatever, theoretically or practically, to the exercising of this discretion. If the period is to be three years, I hope the Attorney-General will look carefully at delay in bringing these cases. If the delay occurs in the circumstances he envisaged, where the War Office could not possibly have discovered it, I would not object, but if there has been slackness either in Get- 535 many or in the War Office here, I hope he will mark his displeasure at once and without hesitation by saying that this case ought to have been before him six months or a year ago, and on that ground alone it cannot proceed. Only in that way will the War Office be brought to a proper sense of responsibility in this matter, and I hope he will make it known to them that, unless these cases are produced promptly and within a reasonable time after they should have been discovered, he will not permit the case to go forward. I think that is the best way out, but I hope he will tell us how many cases are involved.
Retrospective legislation of this character is a bad precedent which no one likes. It may be necessary, but we ought to be told approximately what is involved. If it is only a handful of people against whom allegations are known, and those are left to the learned Attorney to sift out, that may be the best way out of a bad job; but if there are a large number, or if the War Office cannot say that there are not a whole host still to be discovered, then it becomes different. In other words, is the War Office administration reasonably up to date, leaving aside the case the Attorney-General has told us about? Can we be assured that ordinarily all the cases have been discovered and action taken within the three months which is allowed, or are there any cases hanging over where the War Office ought to have been able to proceed within the right time? If there are, that makes us suspicious that there may be a good many more to come. To my mind, much the most important point emerging from this discussion is the disparity between the man under military law and the civilian employee of the Control Commission, and I hope the right hon. and learned Gentleman will clear up that matter before we go further.
§ 1.45 p.m.
§ Major Legge-Bourke
Although I am not a lawyer, and my only law experience has been in military law, I would like to ask the Attorney-General a question arising out of what he said when he referred to those on the unemployed list. Supposing a man on the unemployed list goes out to Germany and commits an offence, is he then to be tried by court martial or by a civil court? As I understand it, the matter is one of extreme conjecture as a result of this new Clause. We 536 all agree that the most desirable thing is that those who commit the same offence should all be treated equally, regardless of whether or not they happen to have been in the Armed Forces or employed in a civilian capacity with the Control Commission in Germany. My own feeling is that military law largely covers offences which are also offences under civilian law, and I should have thought it more desirable to try these people for their offence after release within three months by the same court rather than quibble about the period during which they are subject to trial by court martial.
The situation regarding the Control Commission might be solved by the Government moving an Amendment to the Criminal Justice Bill. For instance, could it not be arranged that members of the Control Commission staff, regardless of whether they had been employed in a military or civil capacity, after having been discharged from the Control Commission for a period exceeding three months, would be liable to be charged by a civil court rather than by court martial? That would be much more satisfactory, and I cannot believe there is not some way by which that could be arranged. I cannot imagine anything more inconvenient for a man than, having been released into civilian employment, he suddenly has to come back into the Army for the period of his trial and for the period under which he was awaiting trial, either under arrest or on probation. I hope that the Attorney-General will look into the suggestion I have made. Both military and civilian courts have a high reputation for fairness, but difficulties confront a civilian who is being tried by court martial which would not confront a soldier or anyone subject to military law. I hope the Attorney-General will tell us how that difficulty can be avoided.
§ The Attorney-General
I will refer later to the substance of the remarks of the hon. and gallant Member for the Isle of Ely (Major Legge-Bourke), but first may I tell him that if I had to make the choice, having committed an offence, of whether I should be tried by a civilian court or a court martial, I should choose the court martial, and get some good advocate to defend me. I should then feel more optimistic about my prospects than in a civilian court. The hon. and gallant Member has asked for advice on 537 that matter, but I must not attempt to give advice on a hypothetical case. If he will write to me about the matter, and tell me exactly what he contemplates doing, I will, without any fee or charge, advise him of the offence I thought that constituted, and what prospect there was of his being tried for it, and of getting off if he were tried, but I do not think I should go further into that.
In regard to the point raised by the right hon. and learned Member for Hill-head (Mr. J. S. C. Reid) about consultation with the Law Officers in this particular case, I think it is a fact that the Scottish Law Officers have a somewhat smaller—although I do not for a moment say less important—department. In this country it is quite impossible for the English Law Officers to be consulted about every case. We seek to keep ourselves informed of all pending litigation, but it would be quite impossible to be informed about the details of every case. In this case, counsel—very competent counsel in whom we all have complete confidence—were, of course, consulted. It would not be unfair to anyone to say that the point of difficulty which arose occurred to no one at all until it was raised by one of the judges in the divisional court. It was not taken by counsel.
§ Mr. Manningham-Buller
I was not suggesting that it was taken by counsel, but, before charging anyone with an offence triable by court martial, those who supply the charge sheet have first to consider in each case whether the man is subject to military law.
§ The Attorney-General
Oh, certainly. The point whether officers who under Army Order 83 of 1945 were placed on something which is not the retired list, but apparently is not now to be called the active list, although it was so called in the Army Order, would be subject to military law, was no doubt considered at the time when the hon. and learned Member for Daventry was engaged in the office of the Judge Advocate-General.
§ The Attorney-General
Perhaps a different view might have been taken if he had not left so prematurely. It was considered at that time no doubt and there was not any great doubt about it. That 538 was a long time ago, when I do not believe I was available to be consulted, and certainly I was not consulted about it. It was not then realised to give rise to the very great legal difficulties to which it undoubtedly does. I do not want it to be thought that there was any negligence on the part of anyone in not consulting the Law Officers. Particularly is that the position in regard to Habeas Corpus cases, which arise at short notice, and sometimes with no notice at all, and have to be dealt with. This was tried at the time when I was engaged at the Court at the Hague.
I come now to the question of civilian employees of the Control Commission. Even if it were a fact that some wrongdoers were going to escape punishment because of the absence of an appropriate jurisdiction to deal with them, that would hardly be a reason why all wrongdoers should escape, and we are here trying to deal with what appears to be the main class of case. As far as I know—and I am speaking only of matters brought to my notice—no case has yet arisen in regard to an official of the Control Commission who has left the service before the commission of an offence has been discovered. Of course we have not lost sight of the theoretical position, which may be more than a theoretical position, it such cases arise in the future.
I will take note of the suggestion made by the hon. and gallant Member for Ely. It may be best to deal with those cases by legislative provision, enabling them to be tried here, or by machinery enabling them to be extradited, as would be the normal course between two foreign countries. In general, I do not think I should quarrel with the view expressed that it would be better to try them here, but for the practical difficulty that there may be great difficulty in regard to the evidence, and in regard to the witnesses. The provision that such persons could only be tried in this country might result in some cases that they could not be tried at all.
Finally, I was asked how many cases there are. I do not want to lie myself down to any figures. The right hon. and learned Gentleman spoke of a shoal of cases. As far as we know there are certainly not a great many cases. It is a comparatively small number and, as far as I know, there are none in which it is clear that the offence 539 ought to have been discovered before the three months had gone by. The cases are those in which there has been a deliberate attempt to cover up what has been done for more than three months, either by "salting" the money away, or arranging that the witnesses should be transferred to another part of Germany. That kind of problem has arisen. I am prepared to repeat the undertaking I gave, that while I could not bind myself, one of the factors to which I would pay proper account would be if the case ought to have been considered and whether there was grave negligence. I should weigh that against the importance of bringing the offender to justice.
§ Clause read a Second time, and added to the Bill.