§ 6.55 p.m.
§ The Lord Advocate (Mr. John Wheatley)
I beg to move, in page 13, line 11, to leave out "subsection," and to insert "subsections (1) and."
It may be for the convenience of the Committee if at the same time I deal with the following Amendment, in page 13, line 13, at end, add:(2) Where, on a reference under this section, the person convicted appears before the Court, the Court shall direct the payment by the Admiralty or the Secretary of State (according as to whether the finding that is the subject of the reference is a finding of a naval court-martial or of an army or air force court-martial) of such sums as appear to the Court 916 reasonably sufficient to compensate the person convicted for any expenses properly incurred by him for the purposes of his appearance and may, if they think fit, also direct the payment by the Admiralty or the Secretary of State (according as aforesaid) of such sums as appear to them reasonably sufficient to compensate that person for any expenses properly incurred by him in carrying on his defence before the court-martial by which he was convicted or before any other court-martial before which were begun, but not concluded, proceedings for the offence with which he was charged before the court-martial by which he was convicted.The Committee will recollect that a reference to the Court under this Clause, which is treated as an appeal, can only be at the instance of the Judge Advocate of the Fleet, the Judge Advocate General, the Admiralty, the Secretary of State for War or the Secretary of State for Air. The purpose of the reference is to enable these authorities to have the Court determine matters of exceptional legal importance or difficulty instead of the authorities doing so themselves. An Amendment was moved by the Government in Committee to provide that where such a reference is made to the Court under this clause the convicted person should not be ordered to pay costs to the Admiralty or to the Secretary of State.
Apart altogether from this Amendment the Court had power to get costs against the Admiralty or against the Secretary of State under Clause 13 (1) where the Court allowed an appeal. But the Amendment as tabled did not satisfy the hon. and learned Member for Northants, South (Mr. Manningham-Buller) and the hon. Member for Belfast, South (Mr. Gage), who criticised it on the Committee stage on the grounds that it would be wrong for a person convicted by a court-martial to have to pay his own costs in any case which is referred to the Court either by the Judge Advocate of the Fleet, the Judge Advocate General, the Admiralty, the Secretary of State for War, or the Secretary of State for Air, irrespective of whether the appeal was allowed or not.
We felt there was great cogency in that submission and these Amendments seek to remove the difficulty which the hon. Members had in contemplation. Accordingly, the present Amendments together require the Court to direct payment of costs by the Admiralty, or by the appropriate Secretary of State as the case may be, of a sum of money to compensate the 917 person convicted for the expenses incurred by him as a result of his appearance before the Court when a reference is made to the Court under this Clause.
The Amendment goes further even than was contemplated by the hon. and learned Member for Northants, South, as we have also provided by it to allow the Court if it thinks fit, to order costs to be paid to the convicted person in respect of his defence before the court-martial. The Committee will recollect that there is already power under Clause 13 for the Court, at its discretion, to award expenses to a successful appellant in respect of the conduct of the defence at the court-martial itself, but it is thought desirable to include that particular power in this Clause. It is a discretionary power, but it enables the Court to award expenses to the accused person to compensate him for the expense he incurred in conducting his defence at the court-martial. It thereby provides a self-contained code for this procedure within the Clause itself. I think the Committee will agree that that is a desirable thing.
§ 7.0 p.m.
§ Mr. Manningham-Buller (Northants, South)
When the Bill was introduced, it contained a provision whereby cases of great importance, in which principles of some complexity were involved, might be referred, as the Lord Advocate has said, by the Judge Advocate of the Fleet or the Judge Advocate General to the Court of Appeal set up under this Bill. That was obviously desirable, and indeed we welcomed it. But we drew attention, in the course of the Second Reading, that to the fact that as the Bill then stood it was possible that the convicted person who was brought before the Appeal Court, not at his own instigation but at the instigation of the prosecution, might be made liable to pay the costs of the prosecution, that is, the costs that would be incurred by the War Office, the Admiralty or the Air Ministry.
We thought that was very wrong. We drew attention to it, and I am grateful to the right hon. Gentleman for moving in Committee an Amendment which secured that where there was a reference of this kind there would be no liability falling upon a convicted person, treated under this Clause as the appellant, although the matter was brought before the court by the prosecution. We then 918 drew attention to the fact that if the convicted person was brought before the Court in that way he really should not be liable to pay the costs of arguing the great question of principle which the authorities wished to have decided. I am glad that by this Amendment the right hon. and learned Gentleman has given effect to the point of view put forward from this side of the House.
As he said in moving the Amendment, it goes a little further than we asked that it should go, but if I am correct it does not really do so in substance because the last half of the second Amendment really repeats part of Clause 13 (1), and even without that part of that Amendment I should have thought that on a proper construction of the Bill, in view of the fact that the reference has to be treated as an appeal by a convicted person, there would have been power possessed by the Court to deal with the costs incurred by the accused person at the court-martial. So as I understand the position, the last half of the second Amendment is really put in to make clear beyond doubt that that can be done, and to facilitate reference to the code which is applicable when there is a reference.
I am a little puzzled by the last words of the second Amendment, where it provides that an order for costs may be made in respect of costs incurredbefore any other court-martial before which were begun, but not concluded, proceedings for the offence with which he was charged before the court-martial by which he was convicted.I find it difficult to conceive of the circumstances under which a man who has been convicted by a court-martial, and whose conviction is the subject of an appeal to the Courts-Martial Appeal Court, could, while that was happening, be brought before another court-martial charged with the same offence. I apprehend that those words are inserted only out of an excess of caution, and as that provision contains no disadvantage to an accused man, I have no objection to it; but I think that must be the explanation.
§ Mr. Gage (Belfast, South)
I rise merely to thank the Lord Advocate for these Amendments. As he said, this was a matter which I, together with my hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller), raised in Committee. The Lord Advocate's second Amendment has in- 919 deed gone further than we asked him to go, because it deals with the costs before the court-martial itself. It has gone so far that I confess that I do not quite understand how far it has gone, because as my hon. and learned Friend has said, it allows the Court to award the accused person costs before the court-martial by which he was convicted and also costsbefore any other court-martial before which were begun, but not concluded, proceedings for the offence with which he was charged before the court-martial by which he was convicted.I suppose it is possible to imagine a case in which a man was brought before a court-martial which was dissolved before arriving at a conclusion, and to deal with which another court-martial is set up. It seems to me that in his generosity, the Lord Advocate has imagined a very unusual case. But it is not in any way deleterious to the man. In those circumstances, provided that the Lord Advocate gives us an explanation of those words, I cannot for a moment think that it would be anything but advantageous to the accused man.
§ Mr. Hylton-Foster (York)
May I ask the Lord Advocate one question merely on drafting? It is in relation to subsection (2), as it will be made to read by the carrying of the second Amendment. Is it clear that the Court may, if they think fit, direct payment in respect of the accused's costs before the court-martial by which he was tried in a case in which that person does not appear before the Court. It cannot, in my belief, be the intention to limit the cases in which the Court can make an allowance for costs before the court-martial to cases in which, as a matter of accident, a person appears before the Court to which the reference is made but about which the person may not care a hoot. Will he then be entitled to costs? It appears to me that as the Clause would be worded, the opening words qualify the right of the Court to award costs right through.
§ The Lord Advocate
The difficulty which the hon. and learned Member for Northants, South (Mr. Manningham-Buller), had was fully explained by his hon. Friend the Member for Belfast, South (Mr. Gage), because there are circumstances in which a court-martial may 920 begin and for some reason be dissolved before the matter has reached a conclusion. None the less, the accused person can again be tried by a subsequent court-martial. There are a variety of circumstances in which that might occur. A member of the court might die pending the actual trial, and under Section 53 of the Army Act the Court has to be dissolved and a new Court convened. That is merely an illustration. Perhaps this provision shows an abundance of caution, but with a view to covering all cases that might conceivably arise, we have provided for that in the Amendment.
As to the point raised by the hon. and learned Member for York (Mr. Hylton-Foster), a person is only entitled to the expenses which he incurs. If he does not appear or is not represented, he will not incur any expenses, and the question does not arise.
§ Mr. J. C. Maude (Exeter)
It is a nuisance to have to do something about this matter at this stage, but if one looks at it carefully and takes the case of a man who does not want to appear in person, there is nothing to force him to do so. Yet his case involves a point which is considered worthy of consideration by the Court, and it is argued, and properly argued. The man has counsel—one hopes he would have. Then why, in those circumstances, should not the Court be able to pay the man? I do not see why he should have to be there in person. I must point out that when people appear on appeal, for instance in the Court of Criminal Appeal in London, they appear in the dock but they do not open their mouths.
§ The Lord Advocate
I think there is some confusion here which I hope I can clear up right away. The word, "appearance" is used in a technical sense. It does not necessarily mean the physical appearance of the appellant. It means the appearance in court either of himself or of someone appearing for him.
§ Mr. Manningham-Buller
I do not think that the Lord Advocate has quite dealt with the point raised by my hon. and learned Friend the Member for York (Mr. Hylton-Foster). If he reads this subsection, he will see that the subsection starts by making it a condition precedent to the court doing anything about costs, 921 that the convicted person appears before the court. Even assuming that it is an appearance by counsel, that condition has to be satisfied. That condition appears to apply both to the first part, which deals with the costs of appearance before the Appeal Court, and also to the awarding of any costs incurred before a court-martial. From the drafting I think that must be so; and on the drafting as it now stands the Court would not have power to deal with the costs incurred before the court-martial, unless the accused person had in fact appeared before the Appeal Court.
I am sure that is not the intention. Indeed, if we rely solely upon subsection (1) of Section 13 as giving power for dealing with costs in the court-martial, there would be no such limitation. It is purely a drafting point. The intention, I think, is clear and well agreed upon. I therefore ask the Lord Advocate to say that he will consider this drafting further with a view to making any necessary alteration in another place.
§ The Lord Advocate
I will certainly give that assurance, but I am convinced that my own interpretation is right and that the word is used in a technical sense. But I will give the assurance that I will look at the matter and, if need be, have it corrected in another place.
§ Amendment agreed to.
Further Amendment made: In page 13, line 13, at end, add:
(2) Where, on a reference under this section, the person convicted appears before the Court, the Court shall direct the payment by the Admiralty or the Secretary of State (according as to whether the finding that is the subject of the reference is a finding of a naval court-martial or of an army or air force court-martial) of such sums as appear to the Court reasonably sufficient to compensate the person convicted for any expenses properly incurred by him for the purposes of his appearance and may, if they think fit, also direct the payment by the Admiralty or the Secretary of State (according as aforesaid) of such sums as appear to them reasonably sufficient to compensate that person for any expenses properly incurred by him in carrying on his defence before the court-martial by which he was convicted or before any other court-martial before which were begun, but not concluded, proceedings for the offence with which he was charged before the court-martial by which he was convicted.—[The Lord Advocate.]
§ Bill reported, with Amendments; as amended (in the Standing Committee and on recommittal), considered.