Clause 6.—(POWERS OF THE COURT IN SPECIAL CASES.) (Hansard, 30 April 1951)

§ The Lord Advocate
I beg to move, in page 5, line 21, at the end, to insert: (4) Where, on an appeal to the Court against a conviction by an army or air force court-martial, the Court are satisfied that a finding ought to have been substituted, by virtue of powers conferred in that behalf by the Army Act or the Air Force Act, for the finding of the court-martial, they may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial such a finding as, in their opinion, ought to have been so substituted and pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence as they think proper, being a sentence warranted by the relevant Act for the offence specified or involved in the substituted finding but not being a sentence of greater severity. It may be for the convenience of the House if I were to explain this Amendment and the Amendment to line 33, to leave out "subsection (1), (2) or (3)," and to insert "any of the foregoing provisions," together. The point arises out of the discussion in the Committee stage, when the hon. Member for Bromsgrove (Mr. Higgs) asked whether appeal courts in all appropriate cases would have the power to do what courts-martial can do, namely, to make a special finding analogous to rule of procedure 44 (d). Under that rule of procedure, a court-martial, instead of recording a finding of not guilty, may record a special finding if of the opinion that, as regards any charge, the facts which they have found to be proved in the evidence differ materially from the facts alleged in the particulars of the charge, but are, nevertheless, sufficient to prove the offence stated in the charge and that the difference is not so material as to prejudice the accused in his defence.
Accordingly, they are entitled to bring in a special finding, rather than a finding of "not guilty," if the difference is not so material as to prejudice the accused in his defence. The form of such a special finding is that the accused is found guilty of the charge subject to certain exceptions and variations affecting the particulars, but not the statement of the offence. Under Section 70 (1, ee) of the Army Act, Section 70 (1, ee) of the Air Force Act, and Rule of Procedure 53 (a) His Majesty or the Army Council or Air Council, as the case may be, may, in an appropriate case where a court-martial has failed to make a special finding under 932 Rule of Procedure 44 (D) substitute for the finding of the court-martial a new finding, if it appears that the court-martial must have been satisfied of the facts establishing the offence specified or involved in the new finding, and impose for the said offence another sentence, not being a sentence of greater severity than the sentence imposed by the court-martial.
The first Amendment would enable the Court, if they are satisfied that a new finding ought to have been substituted under Section 70 (1, ee) of the Army Act or the corresponding Section of the Air Force Act and of Rule of Procedure 53 (A), instead of allowing or dismissing the appeal to substitute for the finding of the court-martial a finding which, having regard to Rule of Procedure 44 (D), they think ought to have been substituted and to pass on the appellant a sentence in substitution of the original sentence which is not greater than the original sentence itself. The second Amendment is consequential and applies subsection (5) of Clause 6 to the subsection which is introduced by the first Amendment.

§ Mr. Gage
This is an obvious and wise Amendment to the Bill because I think it was originally overlooked that there were special findings. Of course, it is only doing for the Court of Appeal what could have been done before by either the Army Council or the Board of Admiralty, and, therefore, it is an Amendment which we on this side welcome, in that it is a very proper alteration to make.

Mr. Leslie Hale
This Clause is one to which I take very special exception because the power to be exercised by it is already exercised by the Court of Appeal in these cases. I do not like the way that a Court can say that a man should not have been convicted, and then, notwithstanding that, can say, "No substantial miscarriage of justice has taken place, and therefore we let the sentence stand." However, I do not think it would be fair on this occasion to press that point which concerns our general law more intimately than it does this particular matter.
I rise now because I gather than the Lord Advocate is confronted with a difficult situation. He rises to explain a Clause, but cannot explain it except with the leave of the House. The Ruling 933 given when I rose to speak before was that I could speak about the words proposed to be left out, but not about those proposed to be left in. Here we are dealing with the words proposed to be inserted, which are: Where, on an appeal to the court against a conviction by an array or air force court-martial … I want the Lord Advocate to tell me, or, if he does not wish to ask for the leave of the House in order to do so, to nudge somebody on his left to answer for him and to say whether that includes a field general court-martial or not. [Interruption.] I am glad to have that assurance, and if someone will be good enough to say it loudly enough so that it may be reported in HANSARD, I shall be quite satisfied.

§ The Lord Advocate
May I interrupt my hon. Friend to give him that assurance, and the further assurance that I did not intend any discourtesy when I did not answer him on the previous occasion. I did not answer then with the consent of the House for the simple reason that there is a further Amendment on the Order Paper on which I can fully explain the problem which my hon. Friend has in mind.

Mr. Hale
I am glad to have that answer, and if the Lord Advocate is referring to Clause 14, I will now give him the additional information that that Amendment proposes to leave out the words "field general court-martial." That being so, there is no need to define it at all.

§ Mr. Lionel Heald (Chertsey)
There is one small point I should like to raise. The Amendment says: Being a sentence warranted by the relevant Act for the offence specified or involved in the substituted finding … Will the Lord Advocate be good enough to give us a little explanation as to what that means? One can understand the word "specified," but to say that one can also impose a sentence which is warranted ….for the offence specified or involved in the substituted finding …. seems a little difficult to follow. It may be that there is some explanation connected with the Scottish law, or something of that kind, but it certainly seems that there ought to be some justification for an 934 extension, if that is an extension, of the trial.