HC Deb 30 April 1951 vol 487 cc934-8
Mr. Manningham-Buller

I beg to move, in page 6, line 22, to leave out from "appellant," to "until," in line 23.

The House will see that under Clause 7, where the Court of Appeal has allowed the appeal, there is power for the Admiralty or the Army Council or the Air Council to apply to the Attorney-General for a certificate enabling the case to be taken still further up to the House of Lords,. Where such an application is made under Clause 7 (2), it is provided that the Court may make an order providing for the detention of the appellant or directing that he shall not be released except on bail. It was that particular passage of this Clause which attracted the attention of my hon. Friend the Member for Belfast, South (Mr. Gage). He drew attention to the unlikely event of serving soldiers being released on bail.

We have, therefore, tabled this Amendment because, in the Committee stage, the right hon. and learned Gentleman said that he would give further consideration to the point. As I understand it, it is possible under Clause 7 (2) for the Court to make no order. It is not compelled to make an order, and, therefore, the accused person whose conviction presumably would be quashed by the Court of Appeal would no doubt be immediately released but for the power contained in that subsection whereby the Court may provide for his detention or direct that he should only be released upon bail. In the case of a soldier serving with his unit pending the hearing of the case by the House of Lords the expression "released on bail" does not appear to be particularly apt.

As I see it, this subsection does involve a great possibility that a person convicted by court-martial whose conviction has been quashed after a considerable lapse of time by the Court of Appeal presided over by a High Court judge or by a Scottish judge would then be kept in detention. although not convicted, until the case is heard in the House of Lords. I am not really directing my observations to that power so much as to the use of the expression that the Court may direct his release upon bail. It is with a view to getting a further explanation from the Lord Advocate, on the Government promise of further consideration of this point, that I beg to move the Amendment.

Mr. Gage

I beg to second the Amendment.

I think this question was originally raised by the right hon. Member for Bassetlaw (Mr. Bellenger) who said the words "released on bail" were singularly inappropriate to apply to a serving soldier because normally when soldiers are being dealt with for military offences they are looked after by their unit, either under close arrest or open arrest or not under arrest at all. The person who knows whether a particular soldier is likely to appear for trial or to abscond is, of course, the commanding officer and he is able to say what steps should be appropriate in his case.

The Court of Appeal really is not an appropriate authority to deal with a soldier in this way. I think the matter could be met quite simply by stating that in such cases the Court shall allow him to be released into military custody, which would not necessarily mean he would be kept under close arrest or even under open arrest but that the military authority should be responsible for producing him on whatever occasion he was required.

If a soldier is to be released on bail and the commanding officer—who is the most likely to do so—comes forward and goes bail, it will be explained to the officer, as it always is explained, that if the man does not appear the officer's £20, or whatever may be the sum, will be forfeited. I think it is a cogent point that the likelihood is that to protect his recognisance the officer would do what otherwise he would not have done and put the soldier under guard to make certain he does not disappear. The whole object of giving a man bail would then be completely lost.

We can get over that perfectly simply by leaving out these words altogether, as my hon. and learned Friend the Member for Northants, South, suggests, or we could say "release into military custody." I should have thought that to omit the words altogether would have been the best way of dealing with this matter. I do not think this provision is at all appropriate to a serving soldier and I hope that the right hon. and learned Gentleman is not going to be so intransigent about this as he was on a previous occasion upstairs.

The Lord Advocate

I do not think that hon. and hon. and learned Gentlemen opposite can accuse me of being un-co-operative as far as this Measure is concerned. But having promised to look at this matter again and having done so, I find I only get confirmation of my original opinion. The House will appreciate that under the Clause as it stands the Court will have three courses open to it in a case of this nature—either to order the detention of the person who was the appellant, to make no order at all, or to order that he shall not be released except on bail.

This is a question for the discretion of the Court and it is for the Court to determine which is the proper course in any given set of circumstances. By and large, I think we are entitled to trust the Court to do the right thing in the appropriate case because, although ex hypothesi of this procedure the accused person has been successful in his appeal, there is a further appeal being taken by the authorities to the House of Lords and there may be reasons in a particular case, on which I do not want to speculate too much, why it is desirable to keep him in custody or only to release him on bail. Each case will be decided on its merits, but it is wrong to assume that we are dealing with persons who, being released, will immediately go into Service conditions and be subject to Service discipline. Within the ambit of this Clause one may be dealing with a person who, if released, would be returning not to Service conditions and discipline but to civilian life.

One might be dealing with a person who, within three months of his leaving the Service, has been brought back to answer a charge at a court-martial. That person, if he were being released in the terms of this Clause, would not be going to a place where he would be subject to Service discipline but presumably to his own home. It is not unusual and certainly not rare, to find in such circumstances that the Court might think it desirable only to release the individual on bail being produced, and we have to cover all types of cases.

I do not want to get into the realm of controversy but at the expense of interrupting the conversation between the hon. and learned Member for Northants, South, and the hon. Member for Belfast, South, I should like to inform them that it is not unknown for the criminal courts to direct that bail be found in cases involving military, Air Force or naval personnel. Exactly the same argument could be advanced here. I do not share the misgivings of the hon. Member for Belfast, South, that if the appellant's officer had stood surety for him he probably would put him in the guardroom to make sure he was available for production as and when the case came up. He could only put him in the guard-room if he had committed an offence, or rather only if he had put him on a charge.

Mr. Leslie Hale

I have been put in the guard room at least three times without being charged, and sometimes for quite a long time.

The Lord Advocate

I am sure that was only an omission of procedure and not any miscarriage of justice. Be that as it may, the technical position is that the officer cannot put the man in a guard room unless he has put him on a charge. We know from experience how flexible Section 40 of the Army Act is, but even so I do not think the hon. Member for Belfast, South, made a really fair point. What we have to remember here is that we are dealing with a very unusual procedure where an appellant having been successful in his appeal before the Appeal Court finds the authorities are seeking, on the Attorney-General's fiat, to take the case to the House of Lords.

I had inquiries made and found that in the 10 years between 1940 and 1950 in the civil criminal sphere only five appeals from the Court of Criminal Appeal were taken to the House of Lords on the Attorney-General's fiat, and all those appeals were brought by a convicted person. They were not cases where they were taken the other way round and in the circumstances with which we are dealing in connection with this particular Amendment.

If one takes into account first of all the extreme rarity of a case where an appeal would be taken to the House of Lords by the authorities and not by the man, and further the rarity of a case where a Court would deem it to be an appropriate case for bail rather than one of the other two methods of procedure, and finally bearing in mind that one is dealing not only with people who will be released into military, naval or Air Force discipline but might be returning to civilian life, it seems to me we are taking a very natural, though perhaps a hyper-critical precaution, by including bail as one of the procedures that the Court, having regard to all the circumstances of the case, might direct.

8.0 p.m.

Mr. Manningham-Buller

With the leave of the House may I say a few words? The right hon. and learned Gentleman said that he would look at this point again. We are grateful to him for having done so and for the explanation he gave, although I am a little sorry that he did not attach quite as much importance to the point raised by my hon. Friend as did the Under-Secretary of State for War who said in the course of the Committee stage that my hon. Friend had pointed out a very real difficulty. I do not know which of the Ministers was right in his description of this point, but in the light of the explanation, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.