HC Deb 17 April 1951 vol 486 cc1651-6
34. Mr. Bellenger

asked the Secretary of State for War whether, after having perused the court-martial proceedings in the case of Driver Fargie, he is now prepared to make a full statement.

Mr. Strachey

I will, with permission, make a statement at the end of Questions.

Later—

Mr. Strachey

Hon. Members will now have had an opportunity to study the full text of the proceedings of the trial of Driver Fargie, which I placed in the Library last week. I wish to make the following general observations upon this case.

First: I cannot doubt but that anyone who reads these proceedings will conclude that Driver Fargie had a fair and just trial.

Second: I also cannot doubt that hon. Members will conclude that the tragic event on the night of 30th November, 1950, in Taegu, made it indispensable to hold this court-martial and to bring the accused to trial. In order to appreciate this necessity one has only to envisage what the position would have been if this court-martial had not been held. In that event it would have appeared that a South Korean civilian had been shot by a British soldier in the streets of a Korean city many miles behind the front in undetermined circumstances, and that no effort had been made to clear the matter up and establish responsibility for the tragedy. I trust that a time will never come when it will be considered a small or light thing if a British soldier kills a civilian inhabitant of a country in which our forces have to operate—even if it is subsequently found that he has done so unintentionally or innocently.

Third: Having made these general comments, I trust that hon. Members will think that it would be quite wrong for me to express an opinion either about the finding of the court or about the subsequent non-confirmation of that finding by the Commander-in-Chief, British Commonwealth Occupation Forces. Reading the proceedings has reinforced my opinion of the impossibility of attempting to retry these cases in our minds without the advantages and possibilities enjoyed by the court—without, to take one example, seeing and hearing the witnesses. And as for confirmation or non-confirmation of the finding, that is essentially something which it is the right of the Commander-in-Chief, British Commonwealth Occupation Forces, to decide upon, in the light of all the advice, legal and otherwise, avilable to him.

Mr. Bellenger

Does not my right hon. Friend agree that the most serious fact which emerges from these proceedings is the antiquity of the law on the liability of a sentry placed on duty? Therefore, as these proceedings show that both the prosecuting and the defending counsel referred to laws and cases which are now something like 150 years old on which this soldier stood trial for his life, does he not think that he ought to consult the Law Officers to see that some clearer definition of the law relating to sentries is made?

Mr. Strachey

As I understand it, the principle is that a soldier is still a citizen and is subject to the common law of this country. On the other hand, it is of course a defence for a sentry that he acted in accordance with his orders if those orders were legal and within the law. That is the legal position as it stands today. It is possible to argue that the legal position should be changed, but that is what it is and what it has been for many years.

Sir G. Jeffreys

Would the right hon. Gentleman tell the House what actually was the charge, or what were the charges, on which Driver Fargie was tried? I do not think they have ever been published in any account. Would he further tell the House whether Driver Fargie was or was not on sentry duty?

Mr. Strachey

As to the first part of the question, I really think that hon. Members should read the proceedings for themselves. As to the second part of the question, that is precisely a matter which was acutely disputed between the prosecution and the defence in the trial. If I were to express an opinion about it now, I should be attempting to re-try it here. It is clear from the evidence of the court—though it is not even clear whether they accepted it—that they considered that the shot was fired illegally.

Brigadier Prior-Palmer

Does it not appear from the evidence that this sentry was not properly instructed at all what his duties were? That came out clearly at the trial. Does not the right hon. Gentleman agree that some clearer definition should be given to commanders in particular as to what the liabilities of a sentry are, particularly on active service?

Mr. Strachey

Again, the first part of the hon. and gallant Member's Question is a subject which was acutely disputed in the proceedings. On the second part of the Question, we have once again written round, as I have already told the House, to all commanding officers, but their instructions to sentries must vary in different theatres and in different conditions. One cannot lay down rigid instructions which they must all follow.

Mr. Martin Lindsay

Does not the right hon. Gentleman think that by far the most serious feature of this case and the Linsell case was the deliberate misrepresentation of the case by sections of the Press, who sought to give the impression that it was shooting in the course of the sentry's duties? Does he not think that he might say something on this aspect of the matter, in view of the alarm it might cause to the families of soldiers in Korea?

Mr. Strachey

I cannot sufficiently deplore uninformed comment on these cases before the facts are fully known. My right hon. and learned Friend the Attorney-General has already warned certain newspapers that their comments in this case were in contempt. Comments, now that the case is over, are perfectly legal and proper, but I would implore responsible members of the Press not to comment upon these cases without acquainting themselves very fully of the facts, which are, as the hon. Member says, very different indeed, as any hon. Member can see for himself, from those which have been represented in the public Press.

Mr. Duncan Sandys

Does not the right hon. Gentleman's statement show once again how unsatisfactory the law is which places upon a sentry the obligation of deciding whether an order was legal before he can know whether it is his duty to carry it out?

Mr. Strachey

This is a very difficult legal point and we must put the responsibility upon responsible officers who place guards to give orders which are legal.

Colonel Crosthwaite-Eyre

Was it not in fact shown, both in the case of Linsell and of Fargie, that, in the opinion of the court, at the time the shot was fired the men were not on sentry duty?

Mr. Strachey

I do not think I am entitled to say that now. In the case of Fargie that was one of the things which were acutely disputed. The prosecution submitted that Fargie was not on sentry duty. We do not know, and we are not entitled to say, what particular pieces of evidence the court accepted, or would not accept, when they brought in the finding guilty of manslaughter.

Mr. Angus Maude

While we must accept the statement that the killing of a friendly civilian must always be cleared up, is it not the case that this can very often be done by a court of inquiry without necessarily proceeding to a prosecution on a charge of manslaughter?

Mr. Strachey

Certainly, Sir, but in this case the competent authorities there called for a court-martial, and, after all, we must take into account the fact that the court-martial—it was hardly likely that, as it consisted of British officers it would be prejudiced against a British soldier on trial—brought in a finding of manslaughter. I do not think we can possibly suggest that the authorities on the spot were wrong to hold that court-martial in view of its results.

Mr. Snow

Does not my right hon. Friend think that in recent years duties for sentries have tended to become more and more complex and more difficult to get into one's mind, certainly in times of emergency? Furthermore, do standing orders and unit orders take into account more modern military activities such as infiltration behind one's own lines?

Mr. Strachey

That may be, but I do not think it has any application to the present case.

Mr. Keeling

Will the right hon. Gentleman state explicitly that the Attorney-General's warning was conveyed to the "Daily Express," which invited the public to re-try the case?

Mr. Strachey

The warning was expressed in this House for all to hear, and it was a very serious warning.

Mr. Keeling

The right hon. and learned Gentleman said that he had warned the papers.

Mr. Strachey

I think that an explicit statement given by the Attorney-General in this House that the papers in question were in contempt of court could hardly be a more serious warning. I should like to repeat that I think that newspapers which attempt, either during the proceedings or after them, and without a proper account of the facts, to create prejudice against a court-martial, and therefore against the officers who have to undertake this always ungrateful but absolutely indispensable duty, are doing a very great disservice.

Mr. David Renton

In regard to the suggestion of my hon. Friend the Member for Ealing, South (Mr. Angus Maude), about courts of inquiry, will the right hon. Gentleman bear in mind that they are held in private and, if higher authority wishes it, they are normally not held in open court, the public have no right of access, and the findings may be treated as confidential whenever higher authority so wishes, and that therefore a court of inquiry cannot serve the purpose which a court-martial serves of allaying public anxiety?

Mr. Strachey

That is a very valid point. I think that the court-martial, which is held in public unless security considerations make it necessary to do otherwise, is, in many cases at any rate, an indispensable feature.

Sir G. Jeffreys

Is not the real trouble that newspapers, possibly through lack of space, are apt to give publicity to what they consider to be news and do not really give anything like a full account of either the charges or the proceedings? Would it not simplify the problem very much if in the case of open court proceedings the right hon. Gentleman were to cause a summary of the proceedings to be circulated to the Press?