Clause 3.—(RIGHT OF APPEAL FROM COURT-MARTIAL.) (Hansard, 30 April 1951)

§ The Lord Advocate
I beg to move, in page 3, line 25, to leave out "provisions of the next following subsection," and to insert: following provisions of this Part of this Act. This Amendment is designed to meet an objection raised by the hon. and learned Gentleman the Member for Wirral (Mr. Selwyn Lloyd) in Committee. He wanted us to insert in Clause 3 (1), after the word, "subsection," the words, "and of Section 14." Those who were on the Committee will remember that it was argued that the Clause as drafted was wrong, because the right of appeal is also subject to the proviso to Clause 14 (1). We had a rather academic discussion about that in Committee.
It was argued—and possibly the argument was technically correct—that under the provisions of the proviso to Clause 14 (1) the right of appeal was not taken away from the convicted men at all. I think I put it rather crudely when I said that what happened was that the convicted man was taken away from his right of appeal. However, it is important that the matter should be placed beyond any doubt, and if any reasonable doubt exists it should be eliminated. The purpose of the Amendment is to eliminate doubt. Rather than have any doubt, we propose to give effect to the request of the hon. and learned Gentleman.
The argument adduced in respect of Clause 14 and its proviso is equally applicable to Clause 26 which provides 925 that a person who, at the time of his conviction by a naval court-martial, was borne on the books of a ship of the Royal Australian Navy or the Royal New Zealand Navy, which was not a ship at that time placed at the disposal of the Admiralty, shall not have a right of appeal to the Court. Therefore, we have to make provision for Clause 26. We propose to add, not the words suggested by the hon. and learned Gentleman in Committee, but the words on the Order Paper today.

§ Mr. Selwyn Lloyd
Again I thank the right hon. and learned Gentleman for meeting the wishes of the Opposition. It is the more satisfactory to be able to thank him in this case because he told us to begin with that it was quite unnecessary to have an Amendment. I concede to him the point that the industry and the inquisitiveness which we initiated in this matter led him or his Department to make further inquiries, so that the Bill has been improved even more than we wanted to improve it in Committee by including also the reference to Clause 26. We thank the right hon. and learned Gentleman.

§ Mr. Leslie Hale (Oldham, West)
I do not desire to object to the Amendment, but I desire to seek information about the Clause as amended. I apologise to my right hon. and learned Friend that, not having been a Member of the Standing Committee, I am now probably asking a question which must have been answered on some previous occasion, because it is of fundamental importance. The Clause refers to the words——

§ Mr. Speaker
We are not discussing the Clause: we are discussing an Amendment. We cannot discuss Clauses on the Report stage.

§ Mr. Hale
I am asking a question arising purely out of the sentence as amended. As amended it will read: Subject to the following provisions of this Part of this Act, a person convicted by a court-martial may. …. The only question I want to ask my right hon. and learned Friend is this. The definition of a court-martial in Clause 24 merely refers to an Army and Navy or Air Force court-martial. In the following sentence we have the definition of a field general court-martial. As I read the Bill, I hope it is intended that the word "court-martial" includes, and always has 926 included, field general courts-martial. I have been unable to find anything in the Bill which makes that clear.
It is a matter of fundamental importance. Every hon. Member who has served in the Forces knows that the moment war breaks out, the whole of the country is on active service. The whole of the Forces in England are on active service, and a field general court-martial frequently takes the place of a court-martial. I should like to be assured that the proceedings of a field general court-martial are intended to be included in the word "court-martial," and that that will be made clear at a later stage.

§ The Lord Advocate
I beg to move, in page 4, line 3, at the end, to insert: (4) Rules of court may provide that, in such circumstances as may be specified in the rules, any such petition as is mentioned in subsection (2) of this section which is presented to such person as may be specified in the rules shall be treated, for the purposes of that subsection, as having been presented to the appropriate authority. The object of this Amendment is to enable rules of court to be made which will allow a person convicted by court-martial who wishes to appeal to the Court to present a petition to someone who is on the spot. The House will recollect that the presentation of a petition is a condition precedent to the appeal taking place. I think hon. Members will agree that it is essential that the petition should be deemed to be presented when it is handed in by the convicted person locally, wherever he may be. Otherwise, a man will have no means of knowing from what time the period prescribed in Clause 3 (2, b) runs. Moreover, there is the possibility of a petition going astray, particularly in time of war, and not reaching the appropriate authority, or reaching it late. Unless some provision of this nature were included in these circumstances, the result might be that the right of appeal would be lost altogether.
In Committee the hon. and gallant Member for Macclesfield (Air Commodore Harvey) moved an Amendment the purpose of which was to allow a petition to be presented to the accused's commanding officer. We cannot accept that as a general or inviolable rule, because the accused person may have no commanding officer at a certain time. He might be in a civil prison or he might be a civilian. The House will recollect 927 that he might be brought before a court-martial within a period of three months after leaving the Services. He might be a camp follower. There is such a variety of circumstances where a man would not have a commanding officer, that the proposal of the hon. and gallant Gentleman was not acceptable.
It may be that under the rules which will be prescribed, the commanding officer in many cases will be the person designated; but we have to leave the matter flexible so that the rules can prescribe for a variety of circumstances who is the appropriate person on the spot to deal with any case. The House will recollect that these rules will be brought before the House for consideration before they are put into operation. Thus we keep guard over them and ensure that the proper type of rules are made.
The Amendment which we now propose introduces an addition to the procedure laid down in the Bill. It is important to emphasise that it will still be possible for a convicted man, if he so desires, because he is in the United Kingdom and for any reason he may think fit, to present his petition direct to the appropriate authority without going through this procedure. This procedure is optional. The rules will certainly provide that there will be a person on the spot who will be entitled to receive a petition and thus eliminate any question of undue delay which might mitigate against the interests of an appellant.

§ Mr. Manningham-Buller
This is an important Amendment, because Clause 3 is one of the most important Clauses in the Bill. I am glad to know from the speech of the Lord Advocate that he has appreciated the arguments we put forward from these benches on this point, first upon Second Reading and again in Committee.
Under the Clause as it stands, there is no right of appeal unless a petition is presented within a specified time, and until after the result of that petition is notified, or a certain prescribed time has expired, it is not possible, though I should have thought it was desirable, for a person far afield to send in his petition and with his petition a notice saying that, if his petition is rejected, he desires to appeal.
928 Under the Clause as it now stands, that will not do. The petition has to go, and has to be rejected, or the prescribed time has to expire, the appellant has to be notified of the rejection of his petition, and then must put in notice of appeal. The petition had to be presented to the appropriate authority within the time specified; that is to say, to the Admiralty, the Secretary of State for Air, or the Secretary of State for War. My hon. and gallant Friend the Member for Macclesfield (Air Commodore Harvey) pointed out that many things could happen to that petition from the moment when the soldier, sailor or airman signed it in some far-off country, before it got back to the War Office, Admiralty, or Air Ministry.
We therefore urged very strongly that it should suffice to comply with the conditions of this Clause if the petition of the accused person or convicted person was presented within the prescribed time to his commanding officer. Indeed, the Lord Advocate was convinced in Committee by the arguments advanced, for he said then: But the actual spirit of the Amendment is fully accepted. He then gave the assurance in these words: … we shall give effect to the purpose of this Amendment by an Amendment at a later stage."—[OFFICIAL REPORT, Standing Committee C, 13th March, 1951; c. 29.] We now see an Amendment on the Order Paper which is rather indefinite in its terms, and the right hon. and learned Gentleman, in moving it, said that it might well be the case that the person to whom the petition could be presented would be the commanding officer of the accused, I hope he will go a little further than that and will say that it is the intention, in every case where the convicted person has a commanding officer, that presentation of the petition to him will be sufficient to comply with the requirements of this Clause. I quite agree that it is not enough to put in the Bill that the petition can be presented to the commanding officer, because there may be certain categories who have not, at that time, commanding officers, such as those detained in a civil prison, for instance, and indeed camp followers, who, although subject to military law, have never had a commanding officer.
929 I hope the right hon. and learned Gentleman will be able to give us a clear and specific assurance that, although it may be left open to the convicted person to send his petition to the Admiralty, Air Ministry or War Office, if he wishes, it will also be provided by these rules that, where he has a commanding officer, it will suffice to present the petition to that commanding officer.
If the right hon. and learned Gentleman will say that that is the intention, and that that is what these rules will seek to provide, I think we can pass from this Amendment, which does indicate an intention to comply, at least to some extent, with the arguments we advanced. I hope that he will be able to put it more strongly than he did before, when he said that it might well be the commanding officer. We should like to be assured that it will be the commanding officer, where the accused has a commanding officer.

§ The Lord Advocate
I can speak again only with the leave of the House. I can certainly give this assurance. In the normal case, it is the intention that it should be the commanding officer, but there is such a variety of circumstances which might apply that it is impossible to give an absolute guarantee. I think the best answer I can give is the one which I have already given. We should try to see that the rules of court will deal with all varieties of cases which they might have to take into contemplation.
It is perfectly true that we cannot amend, but we certainly can annul, a Statutory Instrument giving effect to the rules of court if that Instrument is not satisfactory. I really cannot give the guarantee in absolute terms which was sought by the hon. and learned Member for Northants, South (Mr. Manningham-Buller), because there might be occasional circumstances which would call for some other form of treatment. I am sure that the general assurance which I give in all sincerity will be acceptable to the House—that it is our intention in the normal case to make it the officer on the spot, such as the commanding officer.