Clause 14.—(SUSPENSION OF DEATH SENTENCES.) (Hansard, 30 April 1951)

§ The Lord Advocate
I beg to move in page 10, line 25, to leave out "a field general," and to insert: an army or air force. It may be convenient to the House if we also discuss the Amendment in line 28, to leave out from the second "the," to "that," in line 29, and to insert: force with which that person is present. These Amendments are tabled to give effect to an undertaking which my hon. Friend the Under-Secretary of State for War gave in Committee that the proviso to Clause 14 should be made to apply in the case of a general court-martial as well as a field general court-martial. This arose out of a point that was raised by the hon. Member for Belfast, South (Mr. Gage). I hope in the course of explaining these Amendments to allay the fears and doubts in the mind of my hon. Friend 939 the Member for Oldham, West (Mr. L. Hale).
What the first Amendment does is to remove the words "a field general" and to substitute for them, an army or air force. The effect of that will be that the Clause will read: Provided that, where a sentence of death passed on a person on active service by an army or air force court-martial is confirmed … Then if we turn to the interpretation Clause we find 'air force court-martial' means a court-martial under the Air Force Act. We also see that 'army court-martial' means a court-martial under the Army Act and that, of course, embraces both the field general court-martial and the general court-martial, so that this procedure will apply irrespective of the nature of the court-martial itself. Accordingly, the proviso under this Clause is being widened as a result of the Amendment.
By virtue of Section 49 of the Army Act and the corresponding Section of the Air Force Act, a field general court-martial can only be convened if, in the opinion of the convening officer, it is not practicable that the offence should be tried by an ordinary general court-martial. In the circumstances envisaged here, namely, the exceptional case where a force is completely cut off from the main theatre of war to which it belongs, it may nevertheless be practicable to try a person subject to military or Air Force law by an ordinary general court-martial. When the Clause was originally framed, it was contemplated that that would not be so, but on reflection we appreciate that it might still be possible to have an ordinary general court-martial under these conditions.

Mr. Leslie Hale
This is a matter of vital importance. Does not the Amendment really mean that this Clause applies to every person tried by any court-martial anywhere, or does it not?

§ The Lord Advocate
Of course it does. I have already given that assurance. I am merely explaining one of the reasons why we are amending the 940 Bill. The Bill as originally drafted confined this provision to a field general court-martial because it was contemplated at the time that the circumstances where this would arise would be circumstances where one could only have a field general court-martial. We now appreciate that there might be circumstances to which this Clause would apply where, nevertheless, a general court-martial could be convened. Therefore, we are making this applicable to any type of court-martial, be it a field general court-martial or a general court-martial. I hope that this time I have succeeded in allaying my hon. Friend's fears.

Mr. Hale
On the contrary, my right hon. and learned Friend has increased them.

§ The Lord Advocate
The second Amendment to which I have referred, and which I have brought into discussion for convenience, is made necessary by the first Amendment because the words proposed to be left out being properly applicable only in the case of a field general court-martial, and having been chosen since the troops to be protected would under Section 49 of the Army Act be under the command of the convening officer, these words are not suitable to the case of a general court-martial because such a court-martial may be convened either by the King or by someone with a much larger command than the force whose protection is in question.
The person or persons whose discipline and safety it is essential to secure by the immediate execution of a confirmed death sentence passed by a court-martial on a person on active service will not, for a variety of reasons, necessarily be persons under the command of the officer who convened the court, and for these reasons it is necessary to make the consequential Amendment to which I have referred.

§ Mr. Manningham-Buller
We welcome this Amendment, but I think that the Lord Advocate in moving it perhaps conveyed a wrong impression with regard to part of it. The House will appreciate that this proviso can only apply where the authority confirming the sentence is satisfied that it is essential in the interests of discipline and for the purpose of securing the safety of those in the force that 941 the sentence should be carried out forthwith. One must bear that in mind because the proviso certainly does not apply to all courts-martial, since all courts-martial could not come within that proviso.

§ Mr. Manningham-Buller
May I continue my argument? These are the two conditions which have to be satisfied. The first matter to which I desire to draw the attention of the hon. Member for Oldham, West (Mr. L. Hale) is this. If we are going to have a capital case tried by a court-martial it is obviously much better, if it is possible so to manage it, to have it tried by a general court-martial. There are probably more officers on it, and officers of greater seniority. Therefore, we feel that in every case where possible these capital charges should be tried not by a field general court-martial but by a general court-martial.
Circumstances may arise when it is not possible to hold a general court-martial, but suppose that under this proviso as it originally stood a force were serving in a completely separate theatre where, in the view of the authorities, it would be in the interests of discipline and of securing the safety of the persons in that force that the sentence, if passed, should be executed forthwith; it would follow that, instead of convening a general court-martial, to bring this proviso into play that man would have to be tried by field general court-martial. Therefore, we feel that it is in the interests of the accused person that this Amendment should be made. It is not really widening the scope of the proviso, except in the sense that it is providing that the accused may be tried by a tribunal, if I may say so, of greater authority. But still the proviso does not come into play——

Mr. Hale
I am sure the hon. and learned Gentleman does not wish to mislead the House. I have read this carefully. He may be right in his proposition that the Clause as it works, and if it is worked properly, may ensure that more people on capital charges are brought before general courts-martial, but the Clause as amended means that every man who is tried before any court-martial and on whom the death sentence is imposed can be shot first and the question of his innocence investigated afterwards—subject to one proviso, that the confirming 942 authority certifies that it is about the right thing to do.

§ Mr. Manningham-Buller
The hon. Gentleman interrupted me in a middle of a sentence, but I do not object in this instance because his interruption shows that he does not attach any importance whatsoever to the very important part of the proviso—namely, that there must be that certificate to the effect that the execution of the sentence is essential in the interests of discipline and for the purpose of securing the safety of the forces. It can only be very exceptional circumstances in which any senior officer could decide to give a certificate under the Clause.
If we accept the position that there must be power to give a certificate in certain instances, then it seems to me that there should be power to have the trial by a general court-martial. That is all this Amendment is concerned with. As the Bill stood, it merely secured that the certificate could be given after trial by a field general court-martial. Personally, I think it is better that the Clause should be as it will be when amended. I do not believe the Amendment will extend the operation of the Clause. It will merely ensure that where the circumstances exist which enable a general court-martial to be held to try a man, then such a general court-martial will be held. I think that will be a very good thing.

Mr. Leslie Hale
Although I appreciate the sincerity of the argument put forward, the meaning of the Clause as amended, if it is to be so amended, is that any person tried before any court-martial and sentenced to death may have that sentence imposed before his appeal is heard if the confirming authority certifies that, for the reasons set out in the Clause, it is desirable to do so.
I know, of course, that I approach this matter from a point of view which was the majority point of view of Members of the House from 1945 to 1950 and, so far as I know, is the majority point of view of Members of the House today—that capital punishment should have been abolished years ago. One of the things which we hoped from this Bill was that at least when a man was sentenced to death, whether on active service or not, he would have a full right of appeal and 943 the sentence would not be carried out in any circumstances unless and until the appeal had been heard and except in accordance with the decision of the appellate court.
I want to remind the House of one or two things. It is very easy to listen to the sort of sentences we have just heard. I know that my right hon. and learned Friend speaks with great humanity and courtesy and I do not want to associate him with this proposal except in so far as it is put forward on behalf of His Majesty's Government collectively, but I think it is right that he should remember one or two things, and the first is this. When we talked of active service 40 years ago, we were talking of the kopjes of South Africa, of operations on distant fields, of circumstances in which we knew unforeseen difficulties might arise and in which it was almost impossible for a carefully constituted court to consider at great length matters of great importance and transmit them in the way intended. But when we talk of active service in terms of 1939, we are talking of the streets of London or of Northampton or Leicester or anywhere else in the country, because everybody who served in the Forces in 1939 was posted as on active service from that moment and became subject to the proceedings of a field general court-martial merely on the basis of an order that he was on active service.
8.15 p.m.
We are talking now quite vaguely of the sort of case of the man who betrays his troops to the enemy in some foreign field where discipline is so affected or safety so affected that some quite exceptional measures should be taken. Let me ask the House to consider the sort of case which arises in practice under decent confirming officers—men of humanity. I remember one case in particular, quite a simple case which arose during my own service in the A.A. I am quite happy that hon. Members opposite should continue their conversation, but would they please make it not so loud, for that would enable me to continue coherently to collect my thoughts.
This was a case in the A.A., and it was a case of a volunteer regiment. It was a case in which the senior officer—a very decent officer—had recruited a large proportion of his staff in a voluntary unit because they wished to join 944 voluntarily. His own enlistment inevitably reduced his personal establishment and we had the butler as corporal in charge of a gun site in the Midlands about 100 miles or so from the coast. He had not had much training because he joined after the outbreak of war. A few months later there is a form of action and bombs are dropped near the gun site. He is in command of the little team of that gun site, without having had any special experience of actually operating the gun, on which he has never had any practical training at all. He ducks and loses his nerve for a few seconds and does not fire back.
The charge against that man was cowardice in the face of the enemy. It may seem a little fantastic to say when you are serving on a gun site in Leicestershire that you are in face of the enemy, but technically you are. It may seem a little hard if you are a butler with no military experience and you happen to duck in a moment of fear—and you may prove to be a very gallant man later—that you are none the less liable to be charged with cowardice, but you are.
I remember the case very well, because I was a staff sergeant in those days and the papers were passed to me by the unit commander, who was a man of great humanity and great decency, and one whom I remember with sincere affection. But even then the official view—and it may be the official view of the Army authorities—was that cowardice in the face of the enemy was almost the unforgivable sin. The man was not sentenced to death; he was sentenced to a fairly long term of imprisonment. I tried hard to have it reduced, but I failed.
Who decides these things? Let us just remember who is to decide whether we shall hang the man first and find out afterwards whether he was innocent or not. That is what it means; and I challenge my right hon. and learned Friend to deny it. Surely that it what it means. You hang a man in the interests of somebody else. Nobody suggests that you do it to do him good. It is to keep peace in the unit—and in my view these things never keep peace in the unit. After he has been hanged, the matter then goes to a court of appeal for them to decide whether he should have been hanged or 945 not. I have had some experience of this sort of thing; I once went to the Court of Criminal Appeal to appeal against sentence after the lady concerned had been released in very special circumstances. We did not get on very well on that. The person charged jointly with her, had previously had her appeal allowed.
That is the position. Let us consider who is to decide. The hon. and learned Gentleman opposite said the matter will be carefully considered, and I know he is quite sincerely and honestly advancing the argument, and I am making no attack on him about this. But the matter is decided by the general officer commanding corps, who may be 10 miles or may be 100 miles or in certain circumstances may be 1,000 miles away; and it is decided merely on the papers which are transmitted to him from the regimental commander of the unit where the man was court-martialled. That is the position.
I sincerely apologise to the House that I realised the position only on reading the Bill today. Otherwise I most certainly would have tabled an Amendment and forced it to a Division. I cannot do that now. This Amendment certainly widens the ambit of the Clause and-brings within this decision every man who is ever tried by any court-martial under the Army Act or the Air Force Act in future. I sincerely and passionately appeal to my right hon. and learned Friend to consider whether this should be. I ask him not to be misled by whoever commands the Forces now—whether it be the G.O.C.-in-Command or the State Department—but to say that the single solitary visionary example of the sort of circumstance which might occur in some future Tobruk is not a sufficient justification for introducing a whole series of provisions which vitally affect our own approach to this matter and which mean that, on this major point, the Bill can be vitiated. It is a Clause which certainly will offend the public conscience.

§ Mr. Gage
The disquiet which has been expressed by the hon. Member for Old-ham, West (Mr. L. Hale), is the general disquiet that was felt by the whole Committee at an earlier stage, but it is a disquiet which would have existed whether or not this Amendment were made. The 946 Amendment makes no difference to the matter. One may think it is wrong that any person in a beleagured garrison, or anywhere, should have the power to execute before the right of appeal; one can understand that point of view. It is one which to some extent I share.
As I understand it, this exceptional power is required only in rare cases, and there has to be a certificate of the kind which has been mentioned. The sort of case which is visualised is one in which the responsible officer has to certify that the execution of the sentence forthwith is essential in the interests of discipline and for the purpose of securing the safety of the force under the command of the person who convened the court-martial. In the circumstances which were given by the hon. Gentleman, no convening officer could obviously have given such a certificate. It would have been quite impossible, because it can only be given in the most exceptional circumstances. When the Committee considered this point, we were told that it could be given in such cases as a garrison that was completely beleagured, and could not——

§ Mr. Paton (Norwich, North)
Might it not be possible that the certificate would be given by a peculiar officer in quite ordinary circumstances?

§ Mr. Gage
If an officer were so unmindful of his duty as to give the certificate in circumstances described by the hon. Member, he would himself be liable to court-martial. I should think it would clearly be a case of conduct "to the prejudice," or even of "scandalous conduct unbecoming a gentleman."

Mr. Hale
Does the hon. Member remember a case in the last 40 years of a general officer commanding being charged with an offence of that character?

§ Mr. Gage
As a matter of fact, I do. There was a divisional commander who was faced with just that charge in North Africa. I happened to see the proceedings. I do not think it is advisable for me to say anything more about it, but I assure hon. Members that that was the case. Quite clearly, no officer would be anxious to exercise this kind of power unless the circumstances were most unusual and peculiar. That is stated in the proviso, and not in the Amendment.
947 My point is that one may have one objection to the proviso, but the Amendment to some extent improves the position. Our object in moving the Amendment in the Committee was that we felt that if we left the words as they were, a commander reading them might well think that he had to convene a field court-martial which, as most hon. Members know, is often composed of officers with very little experience. The purpose of the Amendment was to permit him to convene a general court-martial. I think that when the Bill was drafted it was thought that in the very unusual circumstances envisaged it was possible only to convene a field court-martial, but we took a different view. We thought there were very few circumstances in which a general court-martial could not be convened.
In the last war, as the hon. Member for Oldham, West, will remember, even though courts-martial which were called "field-general" were convened, they resembled general courts-martial in number and seniority. If we left the words as they are in the Bill, there might be a temptation only to convene an inexperienced court. Therefore, we thought it proper—and I am glad that the Lord Advocate has accepted our Amendment—to leave out the words "field-general" so as to give such an officer an opportunity of convening a more experienced court.
I do not think that the Amendment affects, either one way or the other, the fears expressed by the hon. Member for Oldham, West, and I am certain that he will agree, on reflection, that the Amendment, so far as it does anything, improves the situation. As for his disquiet about the rest of the matter, it need not be dealt with at this point in our proceedings.

§ The Under-Secretary of State for War (Mr. Michael Stewart)
Perhaps I might be able to say a little in partial reassurance of my hon. Friend the Member for Oldham, West (Mr. L. Hale), at any rate so far as the Amendment is concerned. I think he will agree that part of what he was saying was concerned more with the general spirit of the Clause than with the Amendment. Whether we make the Amendment or not, the position is that in certain circumstances, precisely defined in the Clause, summary power to carry out the sentence before the right of appeal can be exercised, may be used. It is a 948 matter that can be argued whether there should be such a summary power at all, but I think my hon. Friend will agree that in the last war the death sentence was used sparingly and that the exercise of summary power like this was used very sparingly indeed. It can be used only where it is clear to the officer concerned that it is not only essential for discipline but for the safety of the men in the force itself, that it should be used.

Mr. Leslie Hale
I think my hon. Friend will remember that Sam Johnson said that what concentrates a man's mind wonderfully is the knowledge that he is going to be hanged. It also concentrates the mind of the man faced with summary execution, to know that other people are not being hanged with the same speed as he is.

§ Mr. Stewart
I think my hon. Friend will also agree that it also clarifies the mind of a man to be shouldered with this responsibility. I do not think we ought to assume that an officer charged with this responsibility is likely to execute it carelessly or recklessly. If we are to have this proviso at all—and this is not the issue that we are arguing now—ought it to apply only when a field general court-martial is convened or also when the other kind of court-martial is convened? I ask my hon. Friend to notice what, in fact, would be the result if we did not make this Amendment. He will notice that this summary power can only be exercised in the case of a person who has already been tried and convicted by a court. If we do not make the Amendment, the summary power can only be exercised on a man who has been tried and convicted by a court which has really less power, authority and prestige. If we make the Amendment, the power can be exercised when it has been possible to summon a court with greater authority, power and prestige.
8.30 p.m.
If we do not make the Amendment we may find that a field general court-martial, a court with less authority, is being summoned where it would be better and wiser to summon a general court-martial, a court with a greater degree of authority. I suggest to my hon. Friend that if he is not satisfied with the general position, with the fact that there should be this summary power at all, he will agree that it is better, if that summary 949 power is to exist at all, it should exist under the Clause as amended rather than under the Clause as it stands.

Mr. Leslie Hale
I have accepted the argument put forward by the hon. and gallant Gentleman opposite. My remarks were in the direction of the second half of the Clause as well. The question of whether there is an Amendment or not is academic to my argument——

§ Mr. Deputy-Speaker (Colonel Sir Charles MacAndrew)
I was going to suggest that the hon. Member should have asked leave of the House.

Mr. Hale
I will be quite relevant on this——

§ Mr. Deputy-Speaker
We are on the Report stage and the hon. Gentleman must ask the leave of the House to speak again.

Mr. Hale
I ask the leave of the House to make a short interjection. I apologise for not having heard you, Mr. Deputy-Speaker. I thought that I heard you say something which you have said so often that I was ready to anticipate it.
As the Clause is at the moment, it applies only to a field general court-martial. If the Clause is amended it will apply to any form of court-martial, including a field general court-martial. The right hon. Gentleman said to me earlier that this did include a field general court-martial. Therefore, we have not eliminated the lower type of court; we have merely added the higher one as well, and it can apply to any one of them.