§ Order for Second Reading read.
§ 4.11 p.m.
§ The Secretary of State for War (Mr. Strachey)
I beg to move, "That the Bill be now read a Second time."
I have no intention of indulging in an historical disquisition, but I think that I ought to say a few words about the past in order that the House may judge of the importance, and indeed the delicacy, of the changes which we are proposing to make in the special codes of law which are applicable to members of the Armed Forces. Ever since there have been armed forces there have had to be special codes of law for their governance. The Lewis Committee, the Committee presided over by the late Mr. Justice Lewis, the Report of which forms one of the bases of the present Bill, points out in the opening paragraph why this is so.
The Report points out that, for example, the sin of disobedience to a superior is not normally a criminal offence at all in civil life; but disobedience to an order may be an exceedingly grave offence in Service life. Similarly, leaving employment without giving due notice is not usually a criminal offence in civil life, while desertion is one of the most serious offences imaginable in Service life. Accordingly, ever since there were armed forces there have been promulgated these special codes for their governance.
The Pilcher Committee, the Report of the Committee presided over by Mr. Justice Pilcher which largely forms the other basis of this Measure, tell us that it was King Richard I who first promulgated a special code of law of this kind for the Fleet which he raised for one of his crusades. Subsequently, down the centuries, whenever an army or a fleet has been raised there has been promulgated a special code of law for its governance. These were often called articles of war. The House will have noticed that I have said "an army" or "a fleet" as opposed to "the Army" or "the Fleet" because at these times fleets or armies were ad hoc creations raised for special operations which the King had in mind.
596 It was not till the second half of the 17th century, in the case of the Army, and a little earlier—from, say Henry VII onwards—in the case of the Fleet, that there began to be standing Armed Forces in this country. It was not until then, therefore, that the question of standing or established special codes of law for these permanent and established Armed Forces arose. Parliament did not lightly—indeed it was most reluctant—give the executive, permanent powers and authority over those of His Majesty's subjects who were in uniform which were much more drastic than those which were given over the ordinary civilian citizen.
Hence arose the Parliamentary phenomenon of annual Acts, beginning with the Mutiny Act of 1689, and which we still have with us in the form of the Army and Air Force Annual Act which brings into effect a standing code of discipline of special law for these forces. On the other hand, Parliament, which was never so jealous of the Fleet in this matter, did not require the passage of an annual Act in their case.
But that marks the extremely careful watch kept by Parliament on these special codes of law conferring these special powers over the subject in uniform and, to this extent, removing from him the protection of common law. In this connection, it is interesting to observe that the present codes were not really established until the 1860's in the case of the Fleet and the 1880's in the case of the Army. Before then everything was still to a considerable extent on an ad hoc basis.
It is clear from this brief allusion to the past that in seeking to modify these special codes we are doing something of very great importance: we are touching something which is absolutely vital to the existence of the Armed Forces—just as vital as the provision of weapons and tanks which the House were considering a few moments ago. On the other hand, such consideration of the past should suggest to us that from time to time changes—in these special codes of law—are absolutely indispensible if they are to meet changing conditions; because there is nothing more certain than that if these codes were not changed and kept abreast of the changing conditions they would cease to fit contemporary facts and begin to do harm instead of good.
597 It is not very likely that a code which was established for an old small professional Army of long service volunteers would fit without modification a contemporary large National Service Army or, what is even more complex, the existing Army which is a mixture of roughly equal parts between a volunteer long service Army and a National Service element. Again, though they have been amended and modified, of course, these codes in the case of the Army were established as long ago as the 1880's. That is the basis with which we are dealing, and it is worth remembering that that was a period when I should say the larger part of the "other ranks" could neither read nor write. It was only 10 years after, the first Education Act—Forster's Education Act—the very beginning of universal education in this country.
Therefore, modifications such as proposed by the present Bill must be necessary, but they must only be made after careful and due deliberation. I make no apology for the fact that two very strongly composed committees have carefully weighed these matters and that, after that, the Government have taken their time in carefully sifting the recommendations, which were not always identical. In the result, the Bill before the House is essentially devoted to one issue—the right of appeal of the Service man and the setting up of an appropriate Appeal Court. Naturally, I shall speak mainly on that, but before I come to that matter I should like to say a few words about some of the other matters which are dealt with in these two valuable reports.
I should not like the House to think for a moment that the Government were doing nothing about the many other valuable recommendations in the Lewis and Pilcher Reports. On the contrary, if hon. Members will look at the White Paper (Cmd. 8141), which is before the House, they will see a long list of their recommendations, and will observe that many of them, with or without modification, have already actually been carried out by administrative action. For example, they will see a number of paragraphs in the Lewis Report—paragraphs 75–104—which offer a fairly strong comment on the law's delays in the case of military law, which apparently was not exempt from that chronic defect of legal proceedings. If hon. Members will turn 598 to Table A of the White Paper, they will also see that against a number of these recommendations we have been able to put the comment, "Already implemented by administrative action."
Then, again, they will see in the Lewis Report a long passage dealing with the office of the Judge Advocate General. That is an ancient and curious office, and, as the Lewis Report reminds us, up to 1893 the Judge Advocate General was a Privy Councillor and a member of the Government. He was not, even at that time, what his title might be thought to suggest to people who were not at all familiar with the matter—some combination of the conflicting functions of a judge and an advocate at the same time.
Apparently, we are told, this curious title, which probably derived from the Latin judex advocatus—a judge called in by the court, presumably in an advisory capacity—has nothing to do with the word advocate in its original sense. Nevertheless, we thought it right to follow in this respect the recommendations of the Lewis Report, with modifications to make provision so that the independence of the Judge Advocate General could be beyond any possibility of misunderstanding.
It is for that reason that, in Part II of the Bill, provision is made for the appointment of the Judge Advocate General on the recommendation of the Lord Chancellor, rather than by the appropriate Secretary of State. Secondly, provision has been made for the separation of the Judge Advocate General's department by a process of hiving off the prosecuting function to departments of the War Office and Air Ministry, respectively, and his department is to become, as it has already become in fact, one with an entirely judicial function.
§ Mr. Manningham-Buller (Northants, South)
On a point of order. I am sorry to interrupt the right hon. Gentleman, but he is now dealing with changes which have been made some considerable time ago with regard to the position of the Judge Advocate General and his department. There is, of course, nothing about that change in the Bill, and I am now asking for your guidance, Mr. Speaker. The right hon. Gentleman is, in fact, referring to the White Paper published last Friday, which sets out the extent to which recommendations made by the Report of 599 the Committee presided over by Mr. Justice Lewis have not been accepted and are still under consideration. It would have been difficult indeed to debate today the conclusions published in that White Paper and remain within the bounds of order for a Second Reading debate on a Bill such as this, which merely deals with setting up a Court of Appeal. It may be proper, in passing—and I would not object to it in the least—to refer to the White Paper, and the right hon. Gentleman has indeed done so, but now he is going in more detail into the changes made some considerable time ago. If he does that, it appears to me possible that this debate, instead of being a debate on Second Reading of this Bill, will really turn itself into a debate on the White Paper published last Friday, on which I, personally, would like to say a very great deal.
§ Mr. Strachey
I referred to these matters because some, although not all, are dealt with in Part II of the Bill. It is very difficult, but I was just about to say that these administrative changes which have already been made are, in some cases, given statutory effect in Part II of this Bill, and it was only in that respect that I referred to them.
§ Mr. Speaker
In regard to the implications of the White Paper, I thought there were two subjects which we could debate on this Bill; first, the Court of Appeal, and, second, the position of the Judge Advocate General. I thought that we ought not to go beyond that. Actually, I have a copy of this White Paper, and I am bound to say that the notes upon it place very much, if not almost all of it, out of order.
§ Mr. Strachey
I shall not say any more about the matters in the White Paper, or, indeed, about Part II of the Bill, which deals with the position of the Judge Advocate General, except to say that, by Amendments which will be introduced later on, this part of the Bill will be enlarged to include, with the necessary modifications, the office of Judge Advocate of the Fleet, and it is proposed to amend the Bill in that respect.
The object of this second part of the Bill, which is of much less importance than the first part, but which still should not be neglected, is essentially to see not 600 only that justice should be done but that it should be seen to be done. I do not think anyone really believes that the Judge Advocate General has lacked independence of the executive authority, but, nevertheless, I think all of us will be glad of the change, which places his appointment on the recommendation of the Lord Chancellor, along with other consequential changes which we have made in this Bill.
Now I come to the main matter of the Bill—the recommendations which give the Bill its title—to set up a Courts-Martial Appeals Court. Unquestionably, this is by far the most important provision of the Bill. In order to understand what is being proposed here, I think it is necessary to refer for a moment to existing practice, and I am speaking now especially of Army and Royal Air Force practice.
If a man is found guilty, there are at present three stages which, in some senses, correspond to appeal in a civil process. There is the first stage of confirmation or non-confirmation of the sentence by the commanding officer, commander-in-chief or the commanding, officer of the forces in which the man is serving. As the House knows, such commanding officers can and sometimes do turn down the findings of the court. After that, it goes for review by the Judge Advocate General, who has to see whether the trial was perfectly in order, and such review is automatic, whether the prisoner petitions that such a review should take place or not. Finally, the prisoner may petition to His Majesty for mercy, either by a reduction or a complete abolition of the effect of his sentence, or he may petition that the sentence should be quashed, and it is one of the most important and responsible duties of the relevant Secretary of State to advise on such petitions.
Now we come to what the Lewis Committee recommended in this respect. They recommended that there should be a right of appeal for the soldier, which is the word they use but which also includes an airman, to an appropriate court, and that this right of appeal should be substituted for the present system of confirmation and of review by the Judge Advocate General. That was the first recommendation. The second recommendation was that that appeal should be on questions of law alone. A third 601 recommendation was that appeal should be against the findings of the court, but not against sentence.
In some ways, the Bill now proposes something different from that. It proposes, in Clause 1, that a Court analogous to the Court of Criminal Appeal should be set up, and that there should be recourse to it from all three Services by leave of the Court. But for the Army and for the Royal Air Force this new recourse open to the prisoner should be superimposed on, instead of substituted for, the system of confirmation and of review by the Judge Advocate General.
It may be asked why we propose this. In the first place, we are now proposing that there shall be four stages by which the findings of the court-martial can, if necessary, be set aside. There would be, after this Bill became an Act, the stages of confirmation or non-confirmamation, of review by the Judge Advocate General and appeal to the new Appeal Court and of petition to the Sovereign for mercy, though in that fourth case it would be the effect of the findings and not the findings themselves which would be set aside. I shall say a few more words about the relation of the appeal to the prerogatives in a moment.
Therefore, we set up something further as a safeguard for the accused in these respects than is proposed in the Lewis Committee. Secondly, we retain above all the review by the Judge Advocate General because we feel that, even in the new circumstances, this will be of great value in acting as a filter so that the Appeal Court should not be overladen. This is of special importance in war time, of course, when the volume of business on the Court might otherwise be quite unmanageable. Under Clause 3 (2), the appellant cannot have access to the Court unless he has made his petition to the reviewing authority except in the case where the death sentence is involved, and here I come to perhaps the most substantial difference with the recommendations of the Lewis Report on this central matter.
We also propose that the accused should have recourse to this Court, not only as proposed on the question of law, and not only on the question of mixed law and fact, but on the question of fact only as well. If this filter of the review by the 602 Judge Advocate General's Department were not retained, we feel that real difficulty might arise here. May I say that from my personal experience of the matter during the past year I certainly welcome the retention of the Judge Advocate General's review function because I think it is extremely carefully done and of great value.
The House will see, therefore, that in these respects the Bill goes rather further than the Lewis Committee's recommendations in providing safeguards for the accused. On the other hand, we accept the view both of the Lewis and Pilcher Committees that the appeal should be on the findings and not on the sentence. We agree with the committees that the matter of sentence is best left to the Service authorities. On two more points the Bill goes further than the recommendations of the committee. Recourse to the Appeal Court can be had even if the accused has pleaded guilty, and, secondly, the Appeal Court can provide legal aid for the accused if the Service schemes of legal aid are found to be in any way insufficient or inapplicable.
I now come to the constitution of the Court which, it will be seen, is set out in Clause 1 of the Bill. It is to consist of the Lord Chief Justice and the puisne judges of the High Court, Scottish and Irish judges chosen by their authority, and appointees of the Lord Chancellor. There, again, we are not following closely the recommendations of the two committees which, indeed, are not unanimous on that matter. What we have attempted to do is essentially to make a court for Service: men comparable to the Court of Criminal. Appeal and a court appropriate of recourse for all three Services, and I call the attention of the House to the Pilcher Committee's paragraph on that matter which shows that other forms of court, proposed, for example, by the Lewis Committee, might not have fulfilled that function.
Generally speaking, the Bill is modelled on the Criminal Appeal Act, 1907, which set up the Criminal Appeal Court. As an example of that, we have provided that my right hon. and learned Friend the. Attorney-General can certify that in extremely exceptional cases of public importance there can be a further right of appeal, but to the House of Lords rather than to the Judicial Committee of 603 the Privy Council. In other respects, the decisions of the Court of Appeal are final.
I ought to deal with one other matter—the scope of the Bill in this connection—and that is Clause 26, which excludes appeals to the new Court to certain Dominion naval courts-martial. The Naval Discipline Act is at present applied with certain modifications and adaptations, by Australian and New Zealand legislation to the naval forces of those two Commonwealth countries. There have been discussions with those Commonwealth Governments with regard to the probable effect the present Bill might have on their personnel, and it has been agreed that no right of appeal to the Court established by the present Bill should be granted to anyone convicted by a naval court-martial who is borne on the books of a ship of the Royal Australian Navy or Royal New Zealand Navy, not being a ship at that time placed at the disposal of the Admiralty.
But for that Clause this Bill would place a right of appeal on the two Commonwealth navies. This would not only be politically unacceptable, but would be highly inconvenient in practice, if appeals affecting such personnel were to come to a Court normally sitting in London. On the other hand, the Bill allows appeals when members of these two Commonwealth Navies are serving in either a ship of the Royal Navy or in a ship placed at the disposal of the Admiralty and, therefore, forming part of a unit in which the discipline is wholly that which is applicable to the Royal Navy. As a corrollary of this a member of the Royal Navy on loan to the Royal Australian or Royal New Zealand Navies would if court-martialled under the code of the Dominion Navy have no right of appeal to the Court established by this Bill.
I should like to say just a word on the effect of the provisions of this Bill on the Royal prerogative. The House will remember that there are at present two distinct kinds of prerogative power in this connection. There is, first, the prerogative of mercy by which His Majesty can set aside the effect of a sentence of a court-martial in whole or in part, and, secondly, a prerogative power actually to quash the conviction 604 of a court-martial, no such prerogative existing in the case of civil actions. The Bill leaves the prerogative of mercy completely unaffected. That is shown in Clause 27. On the other hand, the second prerogative power, actually to quash a sentence, is also left in existence till the moment of application of leave to appeal, but from that moment the second prerogative power is curtailed.
There are, of course, many other points in connection with the Bill, many of them of importance and which will no doubt emerge in our discussions, but my object at this stage of Second Reading is to try and give the House a broad picture of the general effects of the most important provisions of the Bill.
I should like to say a final word on what, I believe, is the most valuable provision of the Bill. I should like to say a word as to the effect of the proposed setting up of a Court of Appeal—upon the most serious cases of all involving the death penalty. I can certainly speak from my own personal and painful experience as Secretary of State, and I think that in this matter, at any rate, I speak for all other Secretaries of State for War and for Air past, present and future, when I say that it will be the utmost comfort and reassurance to us to have in existence such a highly skilled Court of Appeal to deal with these cases.
It is true, of course, that we may still have to exercise our authority in advising His Majesty in the exercise of his prerogative of mercy, just as the Home Secretary still has to do so in comparable civilian cases, despite the existence of the Court of Criminal Appeal. Nevertheless, the fact that the accused will have had at least the right to make application to appeal to this extraordinarily highly qualified court—and, if there is any element of doubt in a matter of law or of fact, to have his appeal heard—will be of the greatest assistance and comfort to us in the exercise of what must always be one of our heaviest responsibilities. There is one exception in this respect—the exception of a force in war-time which is cut off and where the death sentence must be carried out without recourse to the Appeal Court.
It is my opinion that, even if nothing else were in the present Measure, these proposals would certainly justify me 605 in commending it to the House. For it is above all in respect of the death penalty that the establishment of a Court of Appeal, such as set up here, is a reform urgently required for the men of the Armed Forces.
§ 4.43 p.m.
§ Mr. Manningham-Buller (Northants, South)
In moving the Second Reading of this Bill, the right hon. Gentleman indicated quite early his familiarity with both the Lewis Report and the Pilcher Report and I am glad he found the historical chapters of both those Reports to be not the least interesting parts of them.
I welcome this Bill. Indeed, it would be very odd if I did not, because I think I can claim to have a certain responsibility for some of the suggestions it now contains, having given evidence before the Lewis Committee and having been a member of the Pilcher Committee. But I am sorry that its appearance is so belated. I shall be surprised if this Bill is not welcomed in all parts of the House, but it has really taken a long time to secure it.
The House will remember that it was as a result of pressure from this House that the Lewis Committee was appointed on 4th November, 1946. That Committee reported in April, 1948. It was not until January, 1949, that the Members of this House were able to read what that Committee had reported, and then we were told that the position in the Navy must be considered. So it was not until 17th February, 1949, that the Pilcher Committee was set up. That Committee reported on 20th February, 1950. Then we had this Bill on 15th December last year and last Friday the White Paper to which the right hon. Gentleman has made a passing reference.
It appears from that White Paper that, although the Government have had the Lewis Report since April, 1948, and the Pilcher Report since February, 1950, they have not made up their minds as yet on no fewer than 14 of the recommendations in the Lewis Report and on six recommendations in the Pilcher Report. We cannot debate today, of course, the decisions and the lack of decisions which that White Paper reveals without incurring grave risk of being called to order; but I hope we shall be given an opportunity fairly soon of having a general discus- 606 sion on the actions taken and not taken by the Government as shown in that Report, because as yet there has been no debate in this House ranging over either the Lewis or the Pilcher Report. I think a debate on certain of those recommendations would be most useful. I hope the right hon. Gentleman will be able to prevail upon the Leader of the House to furnish the necessary opportunity. I am sure that hon. Members on both sides would like to express their views on certain decisions taken, and in respect of one of them, at least, there will be a considerable coalition between myself and a co-signatory of a minority report.
This Bill implements a very important recommendation of both the Lewis and Pilcher Committees, for they both recommended the constitution of a Court of Appeal. As the right hon. Gentleman said, the Lewis Committee recommended a Court of Appeal for questions of law alone. The Pilcher Committee extended that a little because of the difficulty of separating questions of law and mixed law and fact. The Government, perhaps, have gone one stage further in that they have modelled this court on the Court of Criminal Appeal, and Section 5 of the Bill, which deals with the determination of appeals in ordinary cases, is almost identical with the Section in the Criminal Appeal Act, 1907.
I welcome that extension, but it should be made clear—and I hope the Attorney-General, when he winds up, will confirm it—that the intention is that this court of criminal appeal for the Services shall function in a similar fashion to the Court of Criminal Appeal and that appeal from courts-martial will not be by way of rehearing. I think that should be made absolutely clear and that the appeal should be an appeal similar to an appeal from a conviction at the assizes or the Old Bailey.
I agree with the right hon. Gentleman that one must give careful consideration to proposed changes and with his remarks as to the importance of the disciplinary system of the Services. In considering any change in our courts-martial system, there are two questions that have to be considered. The first is whether the case for the proposed change has been made out. The second and more difficult question to answer is: will the change, when carried into effect, work in peace 607 and in war? It is very difficult to speculate about conditions that will exist in another war, but it is no use devising a wonderful system for peace-time operation which breaks down or gets clogged in wartime. I feel that these questions must be applied to any change proposed from any quarter in our courts-martial system.
I should like to say a few words on the first question. It must be remembered that a Service court-martial deals not only with what may be called military, Air Force and naval offences but also with very grave offences under the criminal law of England. The Lewis Committee, in paragraph 138 of their Report, enunciated a principle which I am sure will be accepted by this House. They said:Service under the National Service Act in peace time, the effect of which they did not have to consider"—that is referring to the earlier Reports—emphasises the importance of the principle which we think no one would dispute, namely, that, in the matter of legal safeguards, citizens should be no worse off when they are in the Forces than in civil life unless considerations of discipline or other circumstances make such a disadvantage inevitable.Any citizen of England convicted by a jury of a criminal offence has a right of appeal to the Court of Criminal Appeal. There his case can be argued on his behalf, and if he loses his appeal, he will know the reasons why his appeal has been dismissed. But until this Bill becomes law, no member of the Forces, no matter how grave the criminal offence with which he is charged, has any right of appeal or any right of hearing his case argued. After conviction, of course, the record will be read through, and in the Army and Air Force there will be a question of confirmation to which the right hon. Gentleman referred. I am glad that has been retained. There will then be a review, and I am glad that that is also being retained.
But those are not, in my view, any substitutes for the right of a hearing before a court and having the case argued on one's behalf. Nor is the right of petition against conviction; for if the case is confirmed and not quashed on review, up till now that is all an accused person can do—petition against conviction. If that petition is dismissed, the accused person is only told the fact and not the reasons for dismissal, although it 608 is interesting to note that the Oliver Report in 1938 recommended that the Judge Advocate General should state the reasons where a matter of law was involved.
In this connection I should like to remind the House of what I think summarises the argument in favour of a court of appeal with the right of the applicant to have arguments advanced for him as against the right of a petition, if it is a case of having one and giving up the other.
It was stated in paragraph 142 of the Lewis Report:A further disadvantage was well described to us by a witness who at the time he was giving evidence was engaged in drafting a petition against the conviction of a number of soldiers by a court-martial at which he himself had appeared as counsel for the defence. He said in effect 'I can put down my various reasons of law on paper, but when reading them the Judge Advocate General may form in his own mind some ground for thinking that they are not well founded. If I knew what that ground was, I might be able to show him by argument that his view was wrong. But I shall never get the opportunity of doing so such as I would have if there were an oral hearing of an appeal.'Now we shall have the oral hearing in certain cases. That is indeed important.
I am also very glad indeed that this Bill does not abolish the reviewing system, but I do hope that the Secretary of State for War will look into the way that system is operated, not in the office of the Judge Advocate General but lower down the scale, because I think that some of the delays to which he referred were due to the fact that so many people are engaged in reading through the record of every court-martial, and I cannot help thinking that some saving of man-hours could be effected by improved administration without in any way weakening the efficiency of the reviewing system.
This Bill does not abolish petitions. Again, I think that is a good thing for reasons which I shall indicate later. But I should like the right hon. Gentleman to consider now, when we are giving a right of appeal similar to that held by a citizen, to the Court of Criminal Appeal, whether it would not be right to impose some limitation upon the number of petitions which can be presented, or the period within which they can be presented. I think I am right in saying that a man could petition against a conviction by court-martial in the First World War, 609 and if that petition was dismissed he could go on petitioning once a year during the rest of his life. I think it might lessen unnecessary work if either some limitation of time or some limitation of the number of petitions which could be presented against conviction were imposed. I do not know if it would be possible to do that in this Bill, but I should think that something of that sort could be done at a time when a new court of appeal was being created.
I think one can summarise the improvement by reference to a very old cliché. In the days before this Bill becomes an Act justice may be done, and I think usually is, but it is certainly not seen to be done, because no one who is not in the office knows how it operates. By this Bill justice will not only be done in future, but everyone will have an opportunity of seeing how it is effected. That is all I have to say on the first question. I think the case for the change is fully made out, and it is absolutely desirable.
I now come to the second question. Will this Court of Appeal work in war-time? No one can answer that question positively. At least, one can say: Is it likely to work in war-time? I know there are some people who are fully informed about circumstances which arose during the last war and who feel some fear about it being workable in war-time. I have heard them put their argument in this way: "Look at the numbers of courts-martial in the peak year of the last war, 1945." I think the total was something like 54,000 in that year. Then they say, "If only 5 per cent. appealed that would mean 2,705 appeals; if only one per cent. appealed it would mean 541 appeals." They pose the question: "How can this system work in war-time if there are going to be any such number of appeals?"
I think that is an unsound argument, for these reasons: I think it is possible to draw an entirely false conclusion from the statistics of courts-martial in any particular year, because taking that peak year, I am confident that in the vast majority of cases no question of law arose at all; the great majority of those cases would be cases of desertion, absence without leave and minor offences such as would normally be dealt with, if the defendant were a civilian, in the magistrates' courts. It would be interesting 610 indeed to know how many of that large number were convictions for what would otherwise be serious criminal offences under the law of England.
What would be a much more reliable guide in seeking to assess the possible peak number of appeals to this Court, would be to know, not the total number of courts-martial in any one year, but the total number of petitions arising from them in any one year. I do not know the number. Perhaps the right hon. Gentleman could inform us later. But I shall indeed be surprised if in that year 1945, the number of petitions against conviction as opposed to petitions in respect of sentence were in excess of a thousand. I imagine it was a very much smaller number.
It is unlikely, I should have thought, that under this system the proportion of appellants would exceed the number of petitions against conviction. In fact, I think the number of appeals will be considerably less than the number of petitions lodged, for if it is clear that the Court has gone wrong in the first instance, that will probably be put right on review, if the proceedings are confirmed. If it is clear from the petition that is lodged that something has gone wrong, then the conviction will be quashed after the petition is considered. Thus, we have all these things as filters, and the final number of appeals is, in my opinion, likely as a consequence to be less than the total number of petitions received against conviction.
Again, there are other safeguards in this matter, and I want to ask the right hon. Gentleman a question or two about them. First of all, under Clause 3 a man is not able to appeal unless he has lodged a petition against conviction within a prescribed period. That petition has to reach either the Admiralty or a Secretary of State. If that petition does not reach the Secretary of State or the Admiralty within that period, then, as I understand Clause 3, the man is deprived of his right of appeal. I think that is not right and it will require alteration. For instance, in the case of a man who was convicted by court-martial in Korea or Malaya, it is not right, to my mind, that his right of appeal to this new Court should depend on whether his petition gets back from Korea or Malaya to the 611 Secretary of State or the Admiralty within the prescribed period. His right of appeal should not depend on risks of that sort, and I should have thought—and I mention this because I hope the right hon. Gentleman will be able to give consideration to it—that, provided the man lodges his petition with his commanding officer within a prescribed period, that should suffice.
That is one safeguard created by Clause 3 (2). There is, of course, a further safeguard—that if anyone makes a frivolous application for leave to appeal the Court, in dismissing that application, may order the sentence to run from the date when the dismissal takes place. There has to be a petition and an application for leave to appeal before one ever gets to the appeal itself, and I want to ask the right hon. Gentleman to tell me whether, under Clause 4, the application for leave to appeal has to be made in writing and only in writing, or whether it is intended that there shall be an oral application for leave such as there is sometimes in the Court of Criminal Appeal.
I turn now to the constitution of the Court. In his speech the right hon. Gentleman indicated the way in which the Government had departed from the recommendations of the Lewis Committee. In fact, in this respect I think they have come very near to the recommendations of the Pilcher Committee, but, of course, with this improvement, which one welcomes, that a High Court judge should be a member of the Court. As I understand it, that Court will generally sit in London, although on occasion it may sit outside this country. I should like the right hon. Gentleman to consider whether it would not be wise to insert a provision whereby it would be possible for that Court to sit without necessarily having a High Court judge as a member of it. The sort of thing I have in mind is this. In another war it might become desirable to have a Court of Appeal sitting at some theatre of war, as, for instance, Cairo, dealing with appeals from all three Services, and it might indeed be difficult to spare a High Court judge to sit for a considerable time at Cairo dealing with these matters. In this connection, I feel sure that the inclusion of a High Court judge in this Court lends weight to the suggestion that 612 the number of High Court judges should speedily be increased.
I want to deal with the question of delay and it is, again, a question which arises under Clause 3. I am sorry if my speech is somewhat disjointed, but I am trying to draw attention to particular points, which are perhaps more than Committee points, for consideration by the Government. There are two periods prescribed under Clause 3, as I understand it—the period within which the petition has to be presented and then the period which has to expire before application for leave to appeal can be heard. Much depends on the length of those periods. Obviously, if the petition has to get back from Korea to the Secretary of State or the Admiralty, there must be a lengthy period—not so lengthy if the petition has only to reach the man's commanding officer.
But the great difficulty with regard to prescribing these periods appears to be this. If the period prescribed is too short, in many cases there will probably not be sufficient opportunity of giving consideration to the petition. If, on the other hand, the period prescribed is too long, then it would appear to follow that many of the appellants will have served their sentences, or a great deal of their sentences, before their petition is ever heard.
The right hon. Gentleman did not say anything on the question of suspension of sentence if an appeal is lodged. In my view, it would be quite wrong if it were provided that any such suspension should be automatic. Presumably, where it is felt that there is a real doubt about the case, the Service authorities will, if possible, suspend the sentence pending the hearing of the appeal, but I should like to hear what the right hon. Gentleman can tell us about those prescribed periods because, while I appreciate the difficulty, the Bill itself contains no solution of it, and it seems to me desirable that there should be considerable flexibility.
The right hon. Gentleman did not say anything about Clause 18. Subsection 2 of this Clause gives this Court power to call for the opinion of the Judge Advocate of the Fleet or the Judge Advocate General or to call for a report from any member of the court-martial. I know that 613 that Clause is somewhat similar to Section 8 of the Criminal Appeal Act, but I am puzzled to know why that power should be given here and what it is wanted for. If it is an appeal against conviction, what is the object of taking power to ask any member of the Court for a report—not only the Judge Advocate of the Court? What is the object of asking the Judge Advocate General, if it is an appeal against conviction with a public hearing, for a report upon a case? Or the Judge Advocate of the Fleet? If this power is required—and I am not at all certain, so far, that it is—then, at least, ought not that report, if furnished to the Court, to be made available to the accused? I should be glad indeed if the right hon. Gentleman could give consideration to those questions.
The Secretary of State for War did make some reference to Clause 27 and the prerogative to quash convictions. I should like to ask him two questions about that. He explained how that Clause operated. He did not give the reason for the limitation proposed upon the exercise of the Royal prerogative. The fact was, he told us, that a conviction could not be quashed by exercise of the prerogative if a man made an application for leave to appeal. Why is that? Might not this happen? In London, where the matter is being considered, the prerogative is just about to be exercised; the day before it is, the man, in Korea, makes an application for leave to appeal. Directly he does that, the prerogative cannot be exercised, as I understand the Bill. It seems to me a little odd.
I should have thought that the prerogative could have been properly exercised without any objection being taken until at least the hearing or the granting of an application for leave to appeal. I should like to ask the right hon. Gentleman a further question upon this, which he may have difficulty in dealing with, but on which, I am sure, he will get full instructions from those who advise him. Does Clause 27 affect the powers of the Board of Admiralty, to which reference is made in paragraph 38 of the Pilcher Report?
I hope I have not spoken at too great length on this technical but, at the same time, very important subject—very important particularly in view of the statement which was made earlier today. 614 This Bill is, in my opinion, a good Bill. I believe that we can improve it during the Committee stage. It obviously should be subjected to a close examination, and we should satisfy ourselves that its operation will result not only in improvement of justice but in an improvement of conditions for all those in the Services.
§ 5.14 p.m.
§ Mr. Emrys Hughes (South Ayrshire)
I should very much like to have some enlightenment on one or two points which I wish to put before the House. The hon. and learned Member for Northants, South (Mr. Manningham-Buller) pointed out that in the last year of the war 54,000 men appeared before courts-martial, and I should like to put before whatever Minister is to reply to the debate, the case of a soldier who happens to be a Reservist and is called up under the new provisions that have been outlined today.
Suppose, for example, a soldier who is called up goes to his unit and there argues that circumstances have changed since he was discharged from the Forces and that he now does not wish to become a member of His Majesty's Forces and is not prepared to carry out the conditions of military discipline. I would point out that this is not a fictitious case, but that there are two soldiers who have been called up and are at the present time undergoing sentence of 92 days' imprisonment as the result of courts-martial proceedings. They were charged with refusing to obey orders given by a superior officer, and they now appear to have been sentenced to what is, I believe, a rather harsh sentence for such an offence. One of these cases is that of a Scottish soldier who comes from Edinburgh. I should like to put this case before whoever is to reply to the debate. Are these soldiers to be entitled to appeal to this new Court of Appeal?
Suppose they came forward and said before the Court of Appeal, "Yes, we are Class Z Reservists, but we do not believe that in present circumstances we can continue our military service." A soldier might argue that circumstances have changed that he was in the last war because he wished to oppose Hitler, but that now circumstances are entirely different. He might argue, as some of 615 us on these benches argue, that he did not believe that by going into the Armed Forces at the present time he would be serving the country to the best of his capacity, and that he wished to return to civilian work. I do submit that that is quite an ordinary case that is likely to come up within the next year or so, and that we shall have quite a percentage of people who will take this point of view and put it as logically and as conscientiously as other classes have done in the past. I should like to put this question. If there is a soldier who comes forward with this objection, will he have the opportunity of having his case stated before this Court of Appeal, or is it to be dealt with summarily as a frivolous application?
I can quite see the point of the hon. and learned Gentleman opposite that the whole machinery is likely to be clogged if these applicants are given a fair opportunity of stating their cases. I was very interested in what the hon. and learned Member said, that we might yet petition against the decisions of a court-martial in the First World War. I have a personal interest in that, because I remember being court-martialled in the First World War. I do not know about the next, but conceivably I might be unfortunate, like Private William Lynch from Edinburgh, and be faced with court-martial proceedings. I know they did not know what to do with me when I went into the Forces. They did not classify me as a conscientious objector. They said, "You are not a conscientious objector. You are a political revolutionary." And I made no quarrel about that. I do not quarrel with courts-martial as courts-martial, because from my experience of appearing before five courts-martial I can say that they are just as reasonable and fair-minded as civilian courts; in fact, I would say more so. In war-time courts-martial were far more inclined to realise—
§ Mr. Deputy-Speaker (Colonel Sir Charles MacAndrew)
This Bill deals only with appeals and not with courts-martial in the first instance.
§ Mr. Emrys Hughes
I was only following the point raised by the hon. and learned Member for Northants, South, because if he is right and one can still petition for wrong conviction before a court- 616 martial in the First World War, and if damages are to be retrospective, I can see myself coming in for a considerable sum.
I should like to have some explanation of how this Court of Appeal will work in cases of this kind. People who have determined opinions on these questions are of no use to the Armed Forces; it would be far better to dismiss them with ignominy. I hope that there will be no attempt to carry out the cat-and-mouse procedure which was followed in the First World War when a man was court-martialled, sent to prison, then sent back to his unit and court-martialled again. It should be made clear that courts-martial will not be used in that way politically against people who take a different, and, I submit, perfectly genuinely different, point of view on this issue.
If the two privates who are now in Winchester Gaol, to whom I have referred, were to appeal under this Bill, what would be the procedure? Would their application be dismissed as frivolous, and what would be likely to happen to them? If possible, this Bill should contain provision for these cases which can only add to the difficulties of the military authorities.
How will this Bill apply to the Colonial Forces, in which I understand there is a different system of military discipline? In West Africa, for example, questions of military discipline are decided under what is called the West African Ordinance, under which a native soldier is liable to serve 42 days' imprisonment and 28 days' field punishment for offences which would not be so punishable in the case of an ordinary British soldier. If this Bill does not apply to the Colonial Forces, how can one escape saying that this is a measure of political discrimination?
We are told that under this Bill the Court must normally sit in London. For offences committed in Scotland, why should the Court of Appeal not hold its sessions in Edinburgh? I can assure the Attorney-General that there are proportionately as many military offences committed in Scotland as in other parts of the country. I suggest that the Bill should be amended to enable the Court of Appeal to meet in Edinburgh to try Scottish soldiers stationed in Scotland.
The very fact that this Bill has to be, introduced at the present time shows that there is need for some kind of civilian supervision over military law. All kinds 617 of military law depend eventually upon harsh discipline over the individual. The individual who offends against military law may be sent to a military prison, which is the worst kind of prison. I can only say that I wish this Bill had been more drastic, and that it had dealt with the grievances of the ordinary soldier, especially the soldier whose one ambition is to get out of the Services as quickly as possible.
§ 5.25 p.m.
§ Brigadier Thorp (Berwick-upon-Tweed)
I intervene for a short time because I was a member of the Lewis Committee. Naturally, I welcome this Bill, but there are one or two points about which I wish to ask questions. My hon. and learned Friend the Member for Northants, South (Mr. ManninghamBuller), said that the retention of the review was a good thing. It may well be, but will it filter the number of cases that go to appeal to the extent that my hon. and learned Friend thinks? Even if it does, will the delay caused by having this review be worse than if there were no review?
During the last war I was stationed in Abyssinia, where there was not a very good aeroplane service, and by the time courts-martial proceedings reached the headquarters at Nairobi, some 5,000 miles away, being taken by truck, a good deal of delay occurred before it had been reviewed and sent back to us. If that review has still to take place, followed by an appeal, with the proceedings coming back to London, the delay will be very long indeed. If this review will not cause much extra delay, and if it will filter the cases as it is supposed to do, this argument will have been met.
I endorse what my hon. and learned Friend said about the time of the petition. In a case such as the one I have mentioned the time a petition will take to reach London would be very great. How long it would take could not be known, and it would be most unfair if the petition of a man who wanted to appeal were overdue owing to no fault of his own but owing only to the method of transport for getting his petition to London.
The Lewis Committee recommended that a man or officer who pleaded guilty could not appeal against conviction. I think that was a sound view, and adop- 618 tion of that recommendation would have reduced the number of cases coming forward for appeal. I cannot altogether agree with the provisions of the Bill in that respect.
This may show my ignorance of the law, but am I right in saying that Clause 25 refers only to the period when the Bill comes into operation? Presumably, this Bill will not be retrospective, and could not take into account a case such as the Fargie case.
§ The Attorney-General (Sir Hartley Shawcross) indicated dissent.
§ Brigadier Thorp
Certain of my hon. and gallant Friends have said that they thought this Court of Appeal might not work in war-time. I do not think that I am breaking any rules when I say that the members of the Lewis Committee were quite convinced by the evidence given by the various people called before them that this Court of Appeal would work all right in war-time.
Finally, there is the question of the time taken by the Government to come to a final decision on the recommendations of the Lewis Committee. There were 14 recommendations on which no decision has been made and some very important ones, such as legal aid during trial and punishments. The Committee sent in their Report in April, 1948, and I hope sincerely that the Government will come to a decision on these points very soon. That is all I have to say in welcoming the Bill.
§ 5.31 p.m.
§ Mr. Ungoed-Thomas (Leicester, North-East)
I must first apologise for not having been here to hear the speech of my right hon. Friend. I would, therefore, hardly venture to intervene in this debate had I not been the only Member on this side of the House who sat on the Filcher Committee. It was a privilege to serve on it. I doubt if any of the hon. Members on that Committee shared my political views, but this is an entirely non-party matter, and everyone certainly approached it with the sole purpose of ensuring that the standard of justice in the Services should be as high as possible.
I remember signing a minority Report in very unfamiliar company, with the hon. and learned Member for Northants, 619 South (Mr. Manningham-Buller); I was delighted to hear his observations. I think all the points he made were valid, and I hope that the Government will consider them carefully and sympathetically. In approaching the question of the administration of justice in the Services a very difficult problem is involved. It is the problem of ensuring the complete maintenance of discipline and, at the same time, ensuring the completely satisfactory administration of justice. I recognise at once that there is no incompatability between the two, and that we cannot have a proper standard of discipline unless, throughout the Services, there is a sense that justice is properly administered.
Nevertheless, the method by which justice is administered has to take into consideration first, the insurance that discipline is maintained, and, second, the need to make it perfectly clear to everybody concerned that justice is not only administered but is quite obviously and inevitably administered. These problems perhaps arise more acutely in dealing with the smaller offences rather than the major offences which, for the most part, would be the subject of appeal to the Court of Appeal which we are considering today. When it comes to the serious offences which become the subject of appeal, it becomes a matter of supreme importance that it should be made perfectly clear that justice is being done. It is desirable, therefore, that justice in the Services should be administered as nearly as possible in the same way as justice in civil life, and that justice in each of the three Services should be administered in exactly the same way.
As the hon. and learned Gentleman who spoke for the Opposition emphasised, it is most desirable that when appeals are made they should not be considered in secret but in open court and by judges of high repute and indisputable legal qualifications. I am not sure if the hon. and learned Gentleman was not actually reading, when I came into the Chamber, the passage in the Lewis Report which I had in mind myself. Paragraph 142 of the Report discusses whether or not a petition considered by the Judge Advocate-General in private sufficiently meets the needs of justice. It puts perfectly clearly the need to have these 620 matters considered and decided in open court, instead of their being only considered privately in a Government Department.
As the Pilcher Committee made quite clear in paragraph 147, it is, in our view, just as important in a disciplined Service as in a civil community that justice, as well as being done, should be seen to be done. In the Court of Appeal which is proposed, we have a single Court of Appeal for all three Services—and that, to my mind, is a great advantage—instead of having a separate Court of Appeal for the separate Services. It is desirable, so far as possible, that the same administration of justice should apply in all three Services.
I welcome the fact that this tribunal is not only entirely independent of the three Services, but will be so composed as to bring this military Services Court of Appeal into line with the civil Court of Criminal Appeal. To my mind, that is a great advantage. I say, without qualification, that the composition of this court is an improvement on that proposed by either the Pilcher Commitee or the Lewis Committee, and I am glad that it is a stronger court than it seemed to us that we could practically recommend.
Like the hon. and learned Member for Northants, South, I am very glad indeed that the power of review is being preserved. It seems to me of the greatest importance, although I recognise that, for reasons which I do not fully appreciate, the Lewis Committee suggested otherwise. They dealt with it very briefly, and I am not at all sure how far they considered all the implications of doing away with the power of review. I think that the power of review is of the greatest importance. Not only will it reduce the number of appeals, but, more important, I think that it will serve the administration of justice in the Services. It is valuable that there should be this automatic review without any step being taken by the person concerned, so that whether he petitions or not all the considerations that can arise by a review on paper of a case of this kind will, in fact, receive full consideration in the Service Department.
Another aspect of the review that causes me some little concern is referred to in paragraph 149 of the Pilcher Committee Report. It is indicated there that 621 the reviewing authority may well take into consideration evidence that would not be admitted in the Court of Appeal. Obviously, the gentleman who is doing the review will not pay attention to any kind of evidence, but only to evidence that carries weight. These are properly qualified gentlemen who know how to distinguish between what is important and what is not important.
Therefore, we have the position that the reviewing authority can take into consideration something which, ex hypothesi, ought to be taken into consideration, but yet will not be admitted in a Court of Appeal. I will read the relevant passage from the Report:The Court of Appeal has power under the Criminal Appeal Act, 1907, to allow fresh evidence to be called, but it is a power exercised very sparingly, and if an appeal tribunal were to he given a similar power it would in many cases refuse to allow fresh evidence to he called where the Board of Admiralty would at present take such evidence into consideration. The Board might therefore be hampered in considering fresh evidence on review by doubt whether the appeal tribunal would admit such evidence.If there is any force in that observation, then, quite obviously, it is a matter of some importance. To my mind, it is a matter of supreme importance in deciding whether or not the power of review should be preserved.
I also welcome the comparatively new departure of providing that the reviewing authority may itself refer certain questions of difficulty to the Court of Appeal. It seems to me that under this Bill the man in the Services has stronger guarantees for the administration of justice than has the civilian. I welcome these safeguards. The Court of Appeal is a very strong independent tribunal that is in line with the civilian administration of justice. The power to review is preserved. The Bill is an improvement on the recommendations of the Committees, and I congratulate the Government on introducing it.
§ 5.44 p.m.
§ Mr. Hylton-Foster (York)
Like other hon. Members who have spoken so far, I welcome the Bill. I particularly welcome it because it gives the final blow to a suspicion that undoubtedly existed. If I refer to that suspicion, I hope that it will not be thought I am suggesting that any real injustice was done under 622 the existing system. Not only do I consider that not to be the case, but from personal experience I know that it is not so. Undoubtedly the suspicion did exist in the Army and Air Forces that if anyone got into trouble he was always up against the view as to the law of the Judge Advocates' Department, and that he could not get past it.
There was some reason for this, because the charges would be fixed by his staff, who would probably do the prosecuting. The court would probably be advised by a member of the staff, and so at every stage thereafter when there was a legal review it would be a member of the Judge Advocates Generals' staff who would give legal advice. Worst of all, if a defending officer wanted to contest some view of the Department or any rule of law, he would be met with the reply that what was said was based on one of the rulings of the Judge Advocate General.
If the defending officer asked where the rulings could be found, whether they were published or to be found in some book form, he would be told that they were in the Department. In other words, they were in some dark and noisome place in the Department in London, and if the defending officer was in Abyssinia he had little chance to get leave to find them. This Bill will put an end to that sort of thing, because with these courts the views of civil justice will prevail over any ruling kept in some mysterious place like that.
I should like to draw attention once more to Clause 18. My hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller) has already referred to this matter, but I make no apology for raising it again, as it is somewhat more than a Committee point. I raise it in the hope that the right hon. Gentleman will be able to tell us why subsection (2, a) is there. It makes it possible for the Judge Advocate General to make a report to this new court, giving his opinion on the case. Apparently it will be done quite privately. This seems to be going back to the old trouble. What useful purpose can it possibly serve? The appropriate Secretary of State is charged with the duty of defending the appeal. If there is something that the court ought to know, it would presumably be part of counsel's instruction and would be publicly mentioned. If it were a point in favour of the appellant, it seems only 623 right that it should be part of the instructions of his counsel.
If I am told that it is like the 1907 Act, my reply is that that is not so. Under that Act the court can call for a report from the judge or recorder who sat on the trial, but no one has ever suggested before that it is wise to take the opinion of someone who has reviewed at some later stage. I ask that, unless there be some particular reason, the right hon. Gentleman should consider whether it is necessary to preserve the Clause in its present form in case the old suspicion is re-aroused. I have had anxieties about how this Bill would work during war. I appreciate that it was the view of the Lewis Committee that it could be made to work, but they decided that in relation to quite different tribunals which they were contemplating.
The hon. Member for South Ayrshire (Mr. Emrys Hughes) is quite wrong in thinking that there is any obstacle to a court sitting in Scotland. There will certainly be no obstacle to that, subject to the vagaries of British Railways. But what is to happen when the court has to sit overseas? Judges in peace and in war are rather like destroyers in a naval war—there are never enough to go round. There does not seem to be any likelihood of a judge being spared for a tour round the Middle East. I suggest it would be much better to establish something that will not have to be changed, so that the court which is familiar in peace-time can continue to function in war-time. I hope that the Government will consider this matter before we come to the Committee stage.
There is another considerable difficulty about it. Bottlenecks will be dangerous, because they will prevent appeals from being heard in time. There is a real danger of a hold-up at the registrar's level. He has to receive all papers in respect of an application for leave to appeal and he has to read all of them because he must tell the court whether it is a right case for legal aid or not. Knowing something of the number of delicate fingers through which these papers pass, I can tell hon. Members that court-martial proceedings become somewhat jagged and ragged in appearance, and they have to be and they will inevitably have to be copied at that stage. If this scheme of appeal is to 624 be made to work properly in war-time, I hope that due attention will be paid to sufficient staffing of the registrars of the Court to prevent any hold-up at that stage. Anticipation of difficulties is one way of getting rid of them.
I hope the House will give a Second Reading to the Bill, and that it will be a contribution to the maintenance of the high esteem in which British justice is invariably held.
§ 5.51 p.m.
§ Captain Ryder (Merton and Morden)
I am sure that the House will appreciate the reference made by my hon. and learned Friend the Member for York (Mr. Hylton-Foster) to the resemblance between His Majesty's judges and the destroyers of the British Fleet. The way in which we have dealt with a shortage there was partly by commissioning old destroyers and partly by driving those we had at a higher rate than that to which they had been accustomed. I do not know whether my hon. and learned Friend meant the simile to go that length when he referred to His Majesty's learned judges.
As has been fully explained, the present Bill arises out of the recommendations of the two Committees mentioned. I want to confine my remarks to the naval aspects of the Bill. It should be noted that the Pilcher Committee was largely a civilian committee and no one could possibly suggest that it was packed in any way with naval officers. It is interesting to note that after some doubt had been cast for many years by the legal profession on the workings of the Naval Discipline Act, it is a matter of considerable satisfaction that the Report of the Pilcher Committee was undoubtedly a very satisfactory one to the Admiralty.
If I may quote from paragraph 45 of the Pilcher Committee it reads as follows:A naval court-martial is attended by considerable ceremonial and enjoys a high degree of prestige amongst officers and ratings in the Royal Navy. It is regarded by the Navy as essentially a naval court and it is right that we should say that we have heard little evidence of any dissatisfaction in the Royal Navy with the present system of administration of justice by court-martial.Again, in paragraph 145 it is said:The system of review is simple and reasonably expeditious and we unhesitatingly recommend its retention.625 The Bill before us arises, therefore, in their view, largely out of the sentences which I think they cribbed from the Lewis Committee, that it is not only necessary for justice to be done but for justice to seem to be done. In that respect the need for this Court-Martial Appeal Court is really somewhat stronger than would appear from that remark. I do not wish to disagree in any way with the findings of the Pilcher Committee, but there is one point which I am surprised has not been mentioned in that connection, and which might possibly give rise to injustices although I do not think it has. It is, nevertheless, right that this House should consider that matter.
There are cases in which a commander-in-chief himself may have an indirect interest in the findings of a particular court-martial. One can well imagine that if an accident has occurred and the accused is found not guilty, it is implied that the fault lies elsewhere, and the fault might lie in the fact that the commander-in-chief had failed to issue the necessary order or to give the necessary instructions for avoiding such an accident. When the commander-in-chief—who, of course, has no influence on the court-martial itself but merely appoints the president—comes to forward the findings of the court, and when, in accordance with present instructions, he puts his own comments on the findings, one can well imagine that he might, in certain circumstances, therefore, have some indirect interest himself.
The same might, indeed, be said also of the Admiralty. It might well be that the Admiralty, if an accused were to be found not guilty, might feel that that implied some omission on their part in the review or issue of the appropriate Admiralty instructions. I feel that the standard of naval justice has greatly benefited by the fact that the proceedings have been so largely conducted in public. Naval courts-martial, except in rare cases, have been conducted with open doors. Even in the matter of the administration of justice by summary means the commanding officer has to declare before the assembled ship's company that "publicly in the presence of the accuser and the accused he did investigate the matter."
When, however, it comes to a system of review which is appropriate to the Bill this matter ceases to be a public affair. 626 I feel therefore, that the Bill is more important than is implied simply by the suggestion that justice should not only be done but should be seen to be done. If I may I should like to quote an example. Once there was a case where one of His Majesty's ships had stranded and become a total loss. The commander-in-chief was on board that ship and at the ensuing court-martial—
§ Mr. Deputy-Speaker (Major Milner)
The hon. and gallant Member will appreciate that this Bill deals with appeals and not with courts-martial as such.
§ Captain Ryder
With respect, Sir, I was trying to point out the need for the Bill, and in support of my argument I was about to quote a case. If I may continue, it transpired that the admiral had come up on to the bridge and expressed his view as to how the ship should be navigated. The ship went on the rocks, and in the ensuing court-martial the Admiral rightly appointed one of his subordinates as president of the court. He had no other course. All members of the court were undoubtedly subordinate to him, as were the accused's friends as well as the accused himself.
The admiral was called as a witness for the defence and was cross-examined. The navigating officer was held by the court to blame. One can well imagine that the commander-in-chief was interested in the findings of the court. We were not, however, entitled to know what comments the commander-in-chief made when he came to forward the findings of the court to the Admiralty, but I hold that this example shows the need for a Courts-Martial Appeals Court.
I should also like to support the point which was put by my hon. and learned Friend on the question of Clause 27. The point will need to be investigated, but the Clause seems, on the face of it, when read alongside Article 53 (1) of the Naval Discipline Act, and Article 100, to limit the power of the Admiralty to quash the proceedings of a court-martial. The particular sentence in the Clause which raises this is:as regards the exercise thereof at a time before the making of an application for leave to appeal.Once the appeal is lodged it seems that the Admiralty are debarred from quashing the proceedings. The point should 627 be taken into consideration with the point made by the hon. and learned Member for North-East Leicester (Mr. Ungoed-Thomas), in respect to whether or not the appeal court should hear fresh evidence. Under the old scheme the Admiralty were in a position to take fresh evidence into consideration. Under the projected arrangement, once an appeal has been lodged fresh evidence will be debarred. That is an important point.
I want also to mention the effect of the Bill on the naval personnel from the Dominions. This matter should receive most careful consideration. It seems to be anomalous that there is no mention of the Royal Canadian Navy or of His Majesty's Royal Pakistan Navy. Further, in the event of a Dominion naval rating or officer being affected by court-martial on one of His Majesty's ships, the Dominion might well feel that they would prefer to have the final say rather than the matter be submitted to the Courts-Martial Appeal Court in this country. That point might receive the consideration of the Attorney General when he winds up the Debate.
The final point is whether these arrangements will be feasible in time of war. There should be no difficulty or objection from the Admiralty. Difficulties arise mainly from the Army. One can imagine circumstances arising rendering the operation of this Measure extremely difficult. I urge the Government to listen very sympathetically to that point of view. But I suggest that the difficulty should not be allowed to stand in the way of what is almost universally considered to be a necessary and desirable Measure, and that the Government should devote their attention to seeing what administrative requirements are needed to make sure that the Bill will operate. I support the Bill not merely as a refinement in the administration of justice in the Services, but as a Measure which is much needed.
§ 6.4 p.m.
§ Mr. Basil Nield (City of Chester)
At the outset I would point to what I think was an error in the mind of my hon. and gallant Friend the Member for Merton and Morden (Captain Ryder), an error which may be shared by other hon. Members. The maxim to which he referred is that justice must not only be done 628 but must be seen to be done, not that it should seem to be done.
As hon. Members pointed out, the question of an appeal from trial by court-martial has been considered by a number of committees during the last 30-odd years. I would remind the House that in 1919 a committee, under the chairmanship of Lord Darling, expressed the view in a majority report that the machinery for the review of court-martial proceedings and the right to petition, put the soldier in a better position than the person convicted by a civil court. Again, in 1938, the committee under the chairmanship of Mr. Justice Oliver, as he now is, did not recommend the setting up of a court-martial appeal court. It was in 1949 that the Lewis Committee made the recommendation on which the principal part of the Bill is based.
In considering the desirability of setting up this Court—for my part I think it is most necessary that it should be done—it is important to observe the system which obtains at the present time and I want to say a word or two about that, if I may. As several hon. Members have pointed out, there has always been this problem in this area of the law namely, to maintain the necessary discipline in the Services and to provide at the same time justice for those in the Services. It was pointed out in paragraph 11 of the Lewis Committee's Report, referring to the soldier:The tasks which he may be called upon to perform as a soldier, however, in the circumstances under which such tasks may have to be performed, call for a high degree of discipline. The maintenance of such discipline in turn requires a special code of law to define the soldier's duty and to prescribe punishment for breaches of it.That is one of the major problems in considering this matter.
After a not inconsiderable experience as a judge advocate during the war, and with some special knowledge of these matters, I think that one of the difficulties with which one has been faced is that there may be a clash of opinion between the civilian legal mind and the purely military mind. That has arisen many times, and it is material on this question of an appeal court. I should like to give two examples of the sort of difficulty which may occur.
In every theatre of war during the recent conflict there was a substantial number of cases of constructive desertion, that is to 629 say, the leaving of some special duty. The form it usually took was that the soldier would leave the battle and make his way back to the base area, there to hide. My experience showed me that in many of these cases the soldiers were in one of two categories. The first was the very young soldier, perhaps only a boy of 18, who had never had any battle experience, perhaps had not had a great deal of training, and could not stand it. In the other category were the seasoned soldiers who had been through so many battles that they could not stand any more. I am bound to say that to the civil legal mind, as mine was, it seemed hard that these men should be sent for long terms of penal servitude. Then one met the military mind, that of the battalion, company or platoon commander, which says, "Unless an example is made in such a case we cannot fight the battles we are called upon to fight."
Again under the Army Act there is created an offence called "losing by neglect." During the last war there were a number of cases of soldiers being convicted of losing their rifles by neglect in circumstances such as these. A soldier getting into a train at, for instance, Kantara on the Suez Canal to cross the Sinai Desert to Palestine would put his arm through the sling of his rifle and fall asleep by the window which, if any, would probably be down for coolness. When the train stopped an arm would come through the window, the rifle would be wrenched from the soldier and the thief would disappear into the night.
With my civilian legal mind, I thought it hard that that should be said to be neglect; but, again, the military view was that the weapon was vital and if it were lost the penalty must be paid. Those are some of the problems with which one is confronted. I agree with what has been said, that, however much we pray that there will be no more war, one must be ready to have a system which will operate in time of war when the Forces are so much expanded.
I want to deal for a moment with the present safeguards against injustice in order to see whether a Court of Appeal is needed. Let us assume that a man is convicted by a court-martial and sentenced. If I might digress for a moment, until very recently the finding and sentence of the court were not announced. 630 The Lewis Committee Report recommended that the finding and sentence should be announced, it being pointed out that the man is kept in great agony of mind if he does not know what has happened to him. I know that that has been put into force. I should like to say upon this subject—again, a matter of personal knowledge—that it is certainly right that that should have been done. On one occasion I was representing a man in Italy who was charged with murder. He was acquitted of murder but convicted of manslaughter and sentenced to only three years' penal servitude. He did not know the sentence and he hanged himself in his cell before it was promulgated.
In this matter there are existing safeguards. The review may be held at many levels—division, corps, army and here in London. I welcome the fact that the review should remain. Thereafter there is a right to petition. I have no doubt that the machinery of review and also the right to petition were the reasons which prompted the two earlier Committees to come to the view that no Appeal Court was needed, but, of course, times have changed and the Appeal Court is now suggested in the Bill. The Lewis Committee proposed an appeal upon a point of law, but the Bill goes further than that and gives the Court of Appeal a very wide discretion in almost any circumstances to allow an appeal if it is thought that justice requires it.
I have two suggestions in which the Attorney-General may be interested. Two conditions are required to be fulfilled before an appeal will lie. The first is that there must be leave to appeal. Under Clause 21 such leave may be granted by one judge of the court but if he refuses that leave the appellant has the right to go before the full court to apply again for leave. One of the dangers in this proposal is the question of vexatious and frivolous appeals. It is obviously quite wrong that the sort of Court which is proposed to be established should be confronted with great numbers of unmeritorious or unsubstantial matters. The proposal which I make for the consideration of the right hon. and learned Gentleman is that one judge should have the final right to give leave or to reject it. I believe that that would be a further safeguard against the sort of danger that I have indicated.
631 The other point is that before an appeal will lie the appellant must have presented his petition and the petition must have been rejected. Again, that is a sound provision, but, as was recommended as long ago as 1938—one of my hon. Friends mentioned it—the right is left for the convicted person to present petition after petition. The Oliver Report described it as "ad lib" and recommended that that should cease. I should have thought that this was a very good opportunity for putting an end to repeated petitions, unless, of course, fresh evidence is available.
Those are my two suggestions. I appreciate that the Bill includes certain safeguards against the vexatious appellant, such as the right to make his sentence run from the dismissal of the appeal, and so forth, but that is where I think danger may be met and I have made two suggestions which may be helpful. In all the circumstances, I am quite certain that the right course has been taken here, and if there are matters of greater detail, which I am sure the Government would desire to be considered, then close scrutiny will be required upon the Committee stage.
§ 6.18 p.m.
§ Mr. Wills (Bridgwater)
I only intervene in the debate because for most of the last war it was my duty to deal with the administrative side of a very considerable number of courts-martial. The paramount necessity is that the Bill should not only be good on paper but that it should work and that its provisions should be reasonably easy for people who are not professional lawyers to understand and to advise other people upon. It is, of course, also necessary that the provisions in the Bill should work reasonably quickly as well, because it is not much consolation for an accused to find that his appeal has succeeded only when he has served his sentence. Above all, the provisions must be such as to make the Bill easily workable in time of both war and peace. I believe that it is in essence a very good Bill and that it is necessary.
There seem to be two new factors which ought to be taken into consideration when we think of the administration of military law these days. The first has been referred to previously in this debate. It is the factor set up by the large number 632 of National Service men who are at present in the Forces and who, on entering, feel that they ought not to have to give up their civilian legal rights on undertaking their military service. Of course their attitude might be rather different if war should break out. There is another consideration which arises when there is war, or when there is a threat of war, and men and women are conscripted into the Forces. During the last war, especially in the early years of it, I felt that people who were conscripted were for a long time, in mind at least, civilians in uniform. They brought into the Service all their civilian worries, all their civilian responsibilities. They had not, as is the Regular soldier, been completely absorbed in their duties in the Forces for some considerable time.
This Bill will make this class of person serving in the Forces feel that their civilian rights have not been abrogated. Of course it is true to say that these rights never were abrogated. They were always dealt with, in my view, with the highest degree of justice in the military Service of which I can speak. It has been said so many times that we have to make it clear that justice is done that I shall not say it again but I am sure that this Measure will go a long way towards ensuring this.
In the past, under the system as I knew it, great consideration was given to appeals both by the Department of the Judge Avocate General and by the military authorities responsible for considering them and qualified to give them that consideration. I know from experience that in the middle of harrassing and strenuous duties army commanders devoted much time and great thought to appeals and cases brought to them for consideration, for confirmation, or for review. It is right to say this because I do not believe that many people realise how great was the thought and worry which these cases caused in critical times. There is no reason to believe that the same consideration does not exist in the Forces now.
Reading this Bill carefully I find it easy to see it working in peace-time, but a little more difficult to envisage it working quite so smoothly in time of war when communications break down and records are difficult to keep, when records of proceedings pass through hand after hand and get very tattered after a few months in a 633 hot climate, and when individuals are moved from here to there without any regard as to whether or not they may be needed to give evidence before a Court of Appeal. According to Clause 2 the Court may sit in two or more divisions and outside the United Kingdom. I believe this will be necessary in war-time if this Bill is to be effective. Indeed, the Court will probably have to sit in widely separated places, and it is to be hoped that there will be available enough qualified people to compose these courts if we need to have more than two or three.
Clause 3 provides that a person who is convicted by a court may, with the leave of the Court of Appeal, appeal against his conviction within a prescribed period. I should like to know what period is contemplated, because even in peace-time there is bound to be some delay. A day or so ago I checked up on the present procedure when a man is tried by a district court-martial. I found that the proceedings of the trial first go to the confirming officer, that is probably at brigade. They then go to a district or its equivalent, who reviews and decides whether the sentence shall be suspended. Then they go to command and, from there, to the Judge Advocate General. That is the first time they are reviewed legally. I imagine that even in the most favourable circumstances this takes about a month. No man will consider appealing to a Court of Appeal until he has heard whether the department of the Judge Advocate General has found any snag. So in peace-time there is a delay of a month and in war-time much more.
It will also be of interest to an accused to know what will happen to him between the date on which his appeal is accepted and the date of the decision of the Court of Appeal. One assumes he will be serving his sentence then, unless it has been suspended. That may be a Committee point, but it is an important one to the man who is appealing. There are other difficulties which may beset the progress of the Bill in war-time because the courts have powers to order documents, exhibits and witnesses to appear before them. That may not be at all easy in war-time, especially if the offence happens in one part of the world and the Appeal Court is situated a long way away.
634 I point out these things not because I am against the Bill but because I want it to work, and it is better to recognise the existence of some small points which need improvement now rather than when it is too late. There may be a thousand appeals in a year in time of war. If these facilities are available and are advertised as being available, there is no doubt that they will be used in spite of the filters which come between the appellant and the Appeal Court. This will mean either a fairly large number of Appeal Courts or some restriction on the type of cases which can come before them. This, I think, would be wrong. All cases should be heard by these courts and the answer lies in more courts and in a greater flexibility in the people entitled to sit on them.
I welcome the Bill. It seems a proper and logical outcome of the different ways in which Service in our Forces is undertaken these days. The small points of criticism I have made in no way militate against my welcome to the Bill, which I think is necessary.
§ 6.28 p.m.
§ Mr. Higgs (Bromsgrove)
Hon. Members who have taken part in this debate will be well aware that the Appeal Court which this Bill seeks to set up will provide in very few cases indeed an actual hearing at which an accused person himself will be present, and much less frequently will it provide a hearing at which he will be able to call witnesses. I do not know that the general public, some of whom are to get the supposed benefits of this Bill in due course, will appreciate that, and it ought to be recorded lest undue hopes should be raised at this stage. It is true that the Bill will provide a court which will sit in public in theory, but in practice it will only be a new kind of review.
Already there are many stages at which proceedings are reviewed. They are reviewed by people with long experience of court-martial work, and the only addition which this Bill gives—although to those who have experience of tribunals it is an important addition—is that the review takes place in what is a public court. In that connection, perhaps the most important point which has been made in the debate so far is that if the Bill will not for any reason be practicable in war-time, we should say so now, and 635 that any reservations or exceptions which have to be made in war-time should be stated at this juncture. It would seem very cavalier treatment if in an emergency, when the citizen army was being mobilised and built up, it became apparent that there must be a number of exceptions to those who can enjoy the benefits of an appeal after being convicted by court-martial.
A second and, perhaps, even more important point is the effect on the Court of the time and distance element. It can be a most distressing experience for a unit to have in its guard room a soldier who is under sentence of death. I have known such units in remote places to wait with such a soldier in the guard tent for a period of several weeks. One by one the members of the unit, as N.C.O.s or men, take their turn on guard duty, and it has a considerable effect on the morale of the unit that there is such a man in the guard room. I have known it happen on many occasions. The man may be there a matter of weeks, or even a month or more, because the proceedings of his court-martial have to be sent for confirmation, perhaps, by a commander-in-chief whose G.H.Q. is a thousand or more miles away and who may himself at the time be on tour in his command.
Unless it will be possible in war-time, under the Bill, to have courts sitting in practically every command overseas, the period during which such a soldier must be kept in his guard room under sentence will be very much lengthened. Quite apart from the obvious hardship to the man himself, the effect on the morale of the whole unit can be considerable.
It is important therefore that the right hon. and learned Gentleman, when he replies to the debate, should give the considered opinion of the Government as to how the Bill will operate, particularly, in wartime and in overseas theatres of war. Is it intended that in a command overseas there shall be one of these courts permanently sitting? It would be very little help to have such a court for one month in every three or six months. If we are to take parallels from the late war, what will happen in the case of a soldier who is sentenced to death by a court-martial in a remote part of a command such as the Middle East? Abyssinia was 636 for a time under the command of G.H.Q. in Cairo.
Suppose a soldier is sentenced to death, or, for that matter, to any other severe sentence, by a court sitting in Abyssinia, and the commander-in-chief is in Cairo. The proceedings must go from Abyssinia to Cairo to be confirmed, and then back to the accused so that he may know that they are confirmed before he can present his petition. His petition then has to be considered. If it is not granted and the proceedings are not quashed, or the other relief which he seeks is not accorded to him, then the appeal begins to move. If there is no Appeal Court sitting in Cairo, the petition then has to go back to London, and from London back again before the result is known.
Particularly in the case of a death sentence, all this may lead to an intolerable delay. Questions of this kind must be very carefully considered. Obviously, we could set up in London now a Court which would work for the benefit of courts-martial in this country, just as the Court of Criminal Appeal works for Assizes in this country. That, however, will not be the test. In such a command as the Middle East—and I sat in the office of the Judge Advocate General and assisted in the review of proceedings during the war—we were getting 800 a month at the peak period—that is, very nearly 10,000 a year?—in the Army, in the Middle East alone, at one stage.
§ The Attorney-General
I thought that the hon. Member was referring to the number of cases sent up for confirmation or on a petition. Figures as to those would be much more instructive.
§ Mr. Higgs
That is true but, nevertheless, there were those 800 courts. The proportion of convictions to acquittals was, I suppose, something of the order of six or seven to one. That means that something like 7,000 or 8,000 persons a year were convicted in the Army in the Middle East alone.
637 I am not sure that I understand this aright, but I believe that a man who sends in a petition will in future inscribe his petition on the appropriate Army form containing the necessary particulars, and at the end a prayer that if his petition be not acceded to, then the matter be referred to the Appeal Court and his case submitted to appeal. If that is all that is necessary, every man who petitions will also appeal.
My recollection of the number of petitions which we received is that they were made in one in ten or twelve of the cases where the sentence was more than a month or so. If this thing goes through in the way in which it is at present before the House, there will be a considerable number of appeals in commands overseas, in many cases in the ignorant and misguided hope that the soldier who petitions and appeals will ultimately find himself in the law courts in the Strand with a period in Blighty as the reward of putting in an appeal.
Therefore, both the House and, in due course, the Committee should address themselves particularly to the working of this Appeal Court in overseas commands in wartime, and make sure that if any reservations have to be made, we should make them now rather than take anything away from the Act, as we hope the Bill will become, should war arrive.
There are one or two minor matters of principle which are worthy of criticism. It is provided that in an appropriate case the Judge Advocate General or the Judge Advocate of the Fleet may be asked for his view. Like one of my hon. and learned Friends who has spoken, I agree entirely that it would be taking away the whole purpose, or, at any rate, part, of the Bill if somebody who had been responsible in some way for the conduct of the court-martial should have private access to the Court which is to investigate the matter on appeal. Surely, if the view of the Judge Advocate General upon any point is required, his proper course is to appear himself or by counsel before the Appeal Court and express his view in public so that the accused, or counsel who is representing him, may deal with the arguments which the Judge Advocate General raises.
The same clause—Clause 18—goes on to provide something else which I regret 638 almost more: that is, that in subsection (2, b) the rules of the Court may make provision:for requiring … the Judge Advocate General to procure from any member of the court-martial … a report giving his opinion upon the case or upon any point arising therein,and so on. It would be very regrettable if any junior officer detailed for court-martial duty were to go to the Court knowing that as a result of his activities that day he might be called upon by the Lord Chief Justice in England to account for the proceedings which had taken place at that trial.
I believe ail regimental officers regarded courts-martial as something of a mystery and that it was one of the mysteries of military life they took most seriously and conscientiously. I believe they tried harder in this respect than in any other to do with the moral or welfare side of Army life to do their duty with all sincerity, but I think that to a junior officer sitting on a court-martial the feeling would be detrimental if he knew that some day he might be called upon by the Lord Chief Justice to account for the way in which the proceedings had been conducted, and I hope that in Committee careful consideration will be given to that subsection.
Lastly I refer to a small matter in the constitution of the Court itself. We have been asked to consider the analogy between this Court and the Court of Criminal Appeal. I have no doubt that every member of the bench of the Court of Criminal Appeal has had long and varied experience as a Judge of Assize. He has sat many times trying such cases which he now has to consider on appeal. There is provision in this Bill in Clause 1, subsection 1 (d) for the Lord Chancellor to appoint otherpersons appearing to him to be specially qualified for appointment as judges of the Court.I imagine it is the intention there to appoint learned counsel who have had this experience of court-martial work. I hope that is the intention and I wonder whether in Committee we ought not to go as far as to say that, since judges of the High Court, who will constitute the remaining members of the Appeal Court in the ordinary way, have no experience of court-martial work, there should be at every sitting of the Appeal Court at 639 least one other person appointed by the Lord Chancellor who has himself had experience of court-martial work.
I wonder also whether one of the reservations we ought to make now against war-time, is that in overseas command on active service it ought not to be a requirement that a judge should be a member but that the whole of the Court should be composed of persons appointed by the Lord Chancellor, who will no longer be connected with court-martial work, but who as members of the Judge Advocate General's staff have had experience of it in the past. I believe that is the one objection—that it will be found that High Court judges will not be numerous enough to go round.
The fact that I may have practical suggestions and criticisms to make, does not detract from the approval which I, like my hon. Friends, have for the Bill. The fact that there should be an appeal seems a great addition to our traditions of justice, and I conclude by expressing the hope that the Secretaries of State of the three Services will ensure that the decisions of this Court, which become binding decisions on courts-martial, together with rulings which the Judge Advocate General may make, shall, in future, be circulated in an easily accessible and comprehensible form to all those who have to convene, come before, or sit on courts-martial.
§ 6.44 p.m.
§ Mr. J. C. Maude (Exeter)
Following the extremely interesting speech of my hon. Friend the Member for Bromsgrove (Mr. Higgs), I wish to put the query what one has to do in war-time? Listening to the early part of the debate, I could not help thinking back to the time when I was sitting on the Lewis Committee—which is years ago now, because the period of gestation at the War Office is so very protracted—when we wondered what would happen if war broke out and whether it would be necessary for the Government of the day to spring on the public some entirely different method of getting appeals heard or, indeed, of abolishing them altogether.
I am inclined to think that what has just been spoken about has been the most interesting thing said this afternoon. May I suggest that it is impossible to tell whether almost any system of justice is 640 going to work in the next war. For instance, we take our minds back—as we are all old enough to do—to the arrangements made during the last war for the assizes to be taken round the country in case of invasion. That was a most charming bit of legislation most carefully thought out, but mercifully, the Germans never landed. If, in fact, they had landed, I had visions of the clerks of assize scuttling round with all their books and boxes and I believe it would have been a hopeless breakdown. I am inclined to think that the only thing is for the Government to have something up their sleeve and that the public will not mind at all so long as it was the best thing that could be devised.
If one looks at Clause 2 (2), one sees that if the Bill becomes law the court to be set up has power of fission—the Court may sit in two or more divisions.Supposing one wanted to arrange for a court to sit in the Far East, I see no difficulty whatever in having a division and the court sitting out of the United Kingdom, because in Clause 2 (3) it says that the court shall sit outside the United Kingdom if the Lord Chief Justice directs that it shall so sit.
But I agree with my hon. Friend that it is a nuisance that the court must contain apparently what I would call at least a High Court judge—I am not attempting to ignore the dignity of the Scottish judges by using that expression—and it would seem there is no necessity to insist that one of the three judges, as is provided in Subsection (1), should be the Lord Chief Justice or a puisne judge of the High Court. In fact, what should happen, is for the Lord Chief Justice of the day, who is well able to deal with the matter, to arrange for himself or one of his brother puisne judges to preside in London and not outside Great Britain. One would assume that would be a matter of arrangement between himself and, perhaps, the Lord Chancellor, but if that requirement were done away with, we know the Lord Chancellor would no doubt make excellent arrangements.
The whole object is that the appointments should be first class and not second class, and I am not sure whether it would be advisable to hint, or suggest or doubt the matter I heard thrown out this afternoon in this House that possibly members of the staff of the Judge Advocate General 641 should be appointed to the position. I think it is best to say nothing about that. I am inclined to think that in certain circumstances they might be admirable, but in other circumstances the Lord Chancellor might think they were not suitable.
I move to the question of vexatious appeals, which does rather alarm me, because in the Court of Criminal Appeal, as the Attorney-General knows only too well, it is a great nuisance that Parliament has saddled the judges, by the Court of Criminal Appeal Act, with a tremendous number of thoroughly tiresome applications for leave to appeal. One has only to go there on a Monday morning to see what is happening, and how they manage to deal with these matters year after year with the consideration which they show is sometimes astonishing; there is no doubt that there are a vast number of absolutely hopeless appeals and hopeless applications for leave to appeal in particular. This Bill gives leave to appeal, and I see a possible flood of applications for leave to appeal. But that will not happen if the lower part of the heirarchy, that is to say, the Army or Air Force authorities, interfere before that is done.
Of course, a petition has to go in before those concerned can go to the Court. If on petition the Judge Advocate General's Department or the other Army authorities have done something about it, then an appeal may not follow. I am a little afraid that we may get a situation in which, to save a great deal of trouble, the Judge Advocate General's Department or the other military authorities may wish to compromise, which is a bad thing. My reason for saying that is that my experience teaches me that magistrates often do not impose sufficiently heavy sentences because they are afraid of their decisions being upset on appeal. It is a most peculiar state of mind, but they are afraid—I do not know why. I recollect a very distinguished Lord Justice of Appeal telling me, "I do not care what the Court of Appeal say now that I am appointed a High Court judge, I shall just do my duty." I see a possibility here of compromises being made on the way up to the Court and a weakening of the authority behind the original court.
I wish to draw attention to Clause 5 (1) because one of my hon. and learned Friends spoke about the point this afternoon. Without having looked up the 642 matter, it appears to me as though that provision gives exactly the same powers as the Court of Criminal Appeal has. I apologise for having not looked up the point, but if that is so, all well and good. The provision about questions of law and if the court thinks:that the finding of the courts-martial is unreasonable or cannot be supported having regard to the evidence…seems to be exactly what we are accustomed to; that is excellent. But I must confess that it is not, in my submission, sufficient to prevent frivolous applications for leave to appeal simply to arm the court with the powers which are set out in Clause 4 (3). There it says:Where the Court dismiss an application for leave to appeal they may, if they consider the application to have been frivolous or vexatious, order that any sentence passed upon the applicant in the proceedings from which it was sought to bring the appeal shall begin to run from the day on which the Court dismiss the application.I believe that is not enough, and I will give my reasons for saying that.
I do not believe it is the same as our civil law where this is more or less the present power—rather less than more. In the Army, as I understood the matter when hearing evidence given to the Lewis Committee, it is extremely important that there should be certainty and speed, etc. I was very much impressed by my hon. Friend who talked about the delay that will possibly be involved where men are under sentence of death. That seems to me to be quite horrifying.
I can imagine a situation during operations, say in the Far East, where it would be quite appalling, from the point of view of the commander in the field if there were tremendous delay owing to the ordinary and inevitable delays of the law and the delays which I see simply cannot be avoided under this Bill? When there is an army in the field such as, for example, in Burma, hon. and gallant Members of this House—I put this forward seriously for their consideration at a later stage as well as now—may feel the greatest anxiety as to whether the necessary disciplinary pressure will be available by means of the punishments that can be imposed which can be rapidly carried out, or whether there is not considerable danger of having no power to punish rapidly.
I know that such suggestions as that which I am about to put forward are 643 hateful, but when I was trying to learn about this matter before this debate, it was pointed out to me by two distinguished officers that it will be very important, for example, where it is necessary to apply the death penalty because of, say, desertion in moments of appalling crisis, if it is to be found that the man concerned cannot be executed or that it cannot be made certain that he will receive a really heavy sentence rapidly—
§ Mr. Maude
I hear my hon. Friend say "not for desertion"; I am anticipating. If we are engaged in a war very different from what we have so far experienced, the House may well think it right and may well feel it extremely necessary to have very rigorous powers indeed. I suggest humbly to the military Members of this House that they will find it a most fearful nuisance if the legalistic gentlemen have managed to get matters delayed week after week, maybe for many months, and they are incapable of getting a final decision as to a sentence of death or imprisonment that has been imposed. That would be a very grave matter indeed.
One hon. and gallant Member said this afternoon that this Bill will now provide greater guarantees for liberty than anything which civilians have at present. In my submission, that is absolute and complete nonsense, the reason being the system called the jury system. The hon. and gallant Member who made that remark, and who urged that there should at last be an appeal, had forgotten that point when he made his speech. Nevertheless this Bill is a great step forward. I do not believe, however, that it would be right to let this opportunity go by without saying seriously, not jokingly as I did at the beginning of my speech, that it must surely never happen that so long as we are all agreed a delay such as there has been in this matter should ever be repeated. I noticed that the Secretary of State for War defended the delay, I thought tactfully and without in any sense overdoing it. Nevertheless such delay cannot fail to draw forth this comment: we started our work in November, 1946, and various little instalments dropped from the War Office, which I admit, and 644 which I think were admirable, but from 1947 to 1951 has gone by. It has taken all these years for this House to reach this question of a Court of Appeal.
If hon. Members will look at the Report of the Lewis Committee—and we were a strong Committee—[HON. MEMBERS: "Hear, hear."] I understand the point of that friendly mockery, but I was thinking about Mr. Justice Lewis, Viscount Bridgeman, Air Marshal Sir Philip Babington and Sir Theobald Mathew, the Public Prosecutor, and contemplating those names I think one may say it was a strong Committee. I am not trying to minimise the Pilcher Committee, about which we have also heard a great deal. If one looks at the Report of the Lewis Committee one will find that the delays that have taken place in connection with these legal proceedings have been really formidable.
I am not at all pleased to think that the sensible thing to do is to retain our dear old friend "review"; because, listening to the evidence, I came to the conclusion that there is a tremendous opportunity for waste of time and staff in the Judge Advocate General's Department, with review here, and review there—review all the time. It is all tremendously careful and very nice, and so on, but I believe there is a tremendous waste of time with endless piffling cases that really do not need to be reviewed at all being gone through by learned and gallant gentlemen in offices here, there and all over the place during the war. It really might conceivably be avoided.
I hope, if we do get this Court of Appeal, of which I am all in favour, we shall find that during our lifetime we never have to come and complain any more—either by setting up a committee which is able to make valid complaints, or by coming to this House—and have all the delay such as one finds when investigating such matters in the Army and Air Force. I bless this Bill and I am grateful to the Government for it. It must have been done in spite of some opposition somewhere. Where it was I do not know, but there must have been something blocking the way year after year. We shall never know who it was, and perhaps it does not matter now, but it is a very good thing that they will never go on blocking an appeal any more.
§ 7.2 p.m.
§ Mr. Lionel Heald (Chertsey)
I do not propose to detain the House for more than a few moments. But I feel there is perhaps this justification for my speaking very briefly, that I do not find myself able to claim that I was a member of either of those famous committees, or of the Judge Advocate General's Department. In that respect I think I differ from the majority of those who have addressed the House this afternoon. It may perhaps be that those hon. Members who occupied those important positions were not speaking with the freedom with which it is possible for someone to do who has not enjoyed either of those privileges; and therefore it may be helpful if I, as someone in that position, say that I welcome this Bill most warmly.
I feel that not enough has been said regarding the importance of the principle which is contained in the Bill. One of my hon. Friends said the only difference was that there would be a public court. That does not seem to me to illuminate sufficiently clearly the essential fact that now it will be possible for a man to be represented in court and have the arguments put forward and dealt with—and answered if they need to be answered on the other side—instead of having the present system.
While I feel bound to say that, I do not think it is right merely to say that the effect of this is to ensure that justice is seen to be done. It does in fact remedy the state of affairs which has lead to injustice in a number of cases. The Secretary of State for War knows of one case which I need not trouble him with, but which arose quite recently, and caused me to press very hard for action to be taken in the way of instituting this appeal.
I would say at once that the Judge Advocate General, that very distinguished officer and lawyer who is to deal with this matter, is put in the position under the existing system that he has his petitions drafted, it may be by a defending officer. No one appears to argue the case, and anyone who has sat in any kind of judicial capacity will know the difference it makes if a man is not represented. I therefore feel that it will make a tremendous difference in that way. Facts are overlooked by officers responsible for drafting these petitions who have not had legal experience, and I am sure there are 646 many cases where that has had a very serious effect. Therefore I feel that in providing for a full appeal the Government are doing something of real value for a man who finds himself in the terrible position of having been convicted, with perhaps a heavy sentence, and who feels that everything has not been said which might have been said on his behalf.
The only other matter to which I would refer is the question of application. I venture to say, in no disrespectful way, that I wonder whether in the operation of the Bill the difficulties of war-time have been carefully considered. There is no evidence at all of that in the Bill. We know from examples which have been given how very difficult it is likely to be to have some far distant theatre of war and the provision that one High Court judge must be a member of the court; remembering also that under Clause 4 of the Bill there must be an, application for leave to appeal, which presumably would have to come to this country first. I suggest for the consideration of the. Government that it might be possible to, deal with the matter in this way: to introduce a series of Clauses, if necessary', which would give some definite application of the principles of this Bill in wartime and take into account those circumstances.
It is not unfair to suggest that that has not been considered so far. Several points have already been mentioned and I could mention one or two more, but it would not be appropriate at this moment and they might cause difficulties in wartime. I ask that before the Committee stage, consideration might be given to this matter with a view to having a definite provision relating to the principles of this Bill in war-time. If that is done I would strongly support this Bill.
§ 7.7 p.m.
§ Lieut.-Colonel Lipton (Brixton)
It is not without significance that on the very day the Prime Minister found it necessary to announce a vastly increased de fence programme, this House should immediately thereafter proceed to the discussion of a Bill which increases the protection accorded to men in the Forces who may find themselves in difficulty, who may be suffering under a sense of grievance and who may wish, therefore, to exercise the right of appeal which under this Bill becomes, for the very first time, available to them.
647 Preceding speakers have dealt at some length with the technical difficulties which may arise in connection with the operation of this Bill. They have endeavoured to forecast how the machinery set up under this Bill would operate in war-time. I do not propose to delve into the sort of future circumstances which I hope will never occur so far as the outbreak of war is concerned. I propose to devote a few minutes to discussing the practical application of the procedure outlined in this Bill under peace-time conditions.
Under Clause 4 (1), leave to appeal can be granted only if an application has been made in the prescribed form and within a period and in such a manner as will be laid down by regulation. I hope that the period within which the appeal is to be lodged will be considered reasonably by the Lord Chancellor; that this period will not be unduly short, because by reason of Service conditions it may not always be possible, even in peace-time, to present an appeal within a prescribed period, if that prescribed period is too short.
The other matter to which I wish to refer is that this appeal must be put forward in the form of a petition, and the only grounds on which the appeal is likely to meet with any success are outlined in Clause 5. They are mainly that the finding of a court-martial was unreasonable; the decision was wrong in law, or that there had been a miscarriage of justice. The preparation of a petition based on one or other, or more than one or other, of these grounds, is not a document which the Service man may find it easy to draft. I should like to know what facilities in the preparation of a petition will be available to a man who wants to appeal.
The whole question of whether or not an appeal will be heard depends upon whether the petition sets out reasons which, in the opinion of the court, give the man a chance to appeal. I know that Clause 10 provides that the court may assign to the appellant a solicitor or counsel in matters not only relating to the appeal but to the proceedings preliminary or essential to an appeal. In other words, on paper, an appellant has the right to some measure of legal aid in the preparation of the petition which will go to the court and on the basis of which it will 648 be decided whether or not the appeal will be heard.
I do not know how that will work out in practice. How will the court know that a man wants to appeal until he has notified the court by means of this petition that he wants to do so? I know that the Attorney-General will tell me that under Clause 10 (4) the registrar can, without any application having been made by the appellant, grant a certificate of legal aid; but how will the registrar know whether a man wants to appeal or whether he ought to appeal? What will be the machinery which will ensure that the Court of Appeal or the registrar will know automatically what has happened in all the courts-martial which have been held arising out of which an accused man may wish to exercise the right of appeal?
There is a further obstacle. It is laid down that before a person is granted legal aid there will be something in the nature of a means test, somewhat similar, I presume, to the inquiry already specified under the ordinary Legal Aid Scheme. That may take up a certain amount of time, and it is another point in favour of extending the period within which the appellant may wish to exercise his right of appeal. These are purely technical questions. It is one matter to put on to the Statute Book a Measure which we think will serve a useful purpose and it is quite another matter for the appellant—the man who has been convicted in court-martial proceedings—to find ways and means of exercising his right of appeal with any reasonsable prospect of of success.
Subject to those points, I, like other hon. Members, welcome the introduction of this Measure, which will go some way towards removing what has been a grievance for a considerable time. I hope that the Attorney-General will be able to deal with at least some of the questions I have raised, because it is on the practical working out of the appeals system that the merits of the bill we are discussing stand or fall.
§ 7.15 p.m.
§ Brigadier Head (Carshalton)
It is with some diffidence that I intervene for a few moments in this discussion. I was a member of no distinguished committee and I have had no legal training. I feel 649 that my intervention rather reverses the saying and that I am the pigeon among the cats so far as this Bill is concerned. I do not think that any soldier could make a very worth-while intervention in this debate, except possibly a member of the Inns of Court Volunteers. I welcome the Bill. There are only two points about which I should like to question the Attorney-General. I hope that he will not think me discourteous if I leave before his reply. I am due at a meeting at 7.30, and I think that I am already inevitably late.
My first question is on a matter which has been mentioned by several hon. Members who know much more about this subject than I do. I refer to the question of how the Bill will operate in war. It seems to me that it would be unfortunate if a system which works well in peace broke down under the stress of war, and if under those circumstances and at a later date, some amendment had to be made to the principle. It is likely that that would then meet with considerable opposition and it would be considered that privileges allowed in peacetime were altered in war.
Unless the Attorney-General can convince me that this system will really work from a practical point of view, I suggest that there might be a case in Committee for putting in some Clause which would allow of an affirmative Resolution or something of that kind to be passed in the event of war, in case it did break down. It seems to me as a layman that this is likely to place a considerable strain on the judges concerned, and although they were likened to destroyers forced along at full speed, I would point out that when destroyers are forced along at great speed they show signs of strain, they lose their speed and periodically they have to go to dry dock to have something done to them to which, perhaps, I had better not refer.
My other question is on a minor matter, but from the point of view of those who sit on courts-martial I believe it to be of some importance. I ask for some assurance that when this Bill is on the Statute Book it will be consolidated with the Army and Air Force Act so that the one volume will be complete, and the unfortunate soldier, airman or sailor concerned will not have to go through 650 two volumes and check every decision and discussion by reference to them. I do not know whether the Attorney-General has seen an up-to-date copy of the Army Act. It looks rather like a telephone directory which has been gummed and placed in contact with confetti at a wedding. It is a most astonishing document. Unless it is incorporated with this Bill, the Service men who have to interpret the Measure now before the House will have a difficult job.
§ 7.19 p.m.
§ Mr. Blackburn (Birmingham, Northfield)
I apologise to you, Mr. Speaker, and to the House for the fact that, owing to the necessity of earning my living, I have not been able to be here, as I should like to have been, throughout the debate, and that I have not been able sufficiently to assess the particular matters upon which I wish to speak. I only address the House because I sat upon the original committee—the Army and Air Force Courts-Martial Committee presided over by Mr. Justice Lewis. A great deal of work was done by that Committee.
Without desiring to transgress the bounds of order, I should like to point out that the present Bill is grossly and utterly inadequate. It utterly fails to keep the promise made by the Minister of Defence in the last Parliament to implement legislation in the last Parliament—not in this—to fulfil the findings of the Committee of which I had the honour to be a member. We are dealing with the Courts-Martial (Appeals) Bill today, and it would not be appropriate for me to express any considered opinion upon it, because a Bill of this kind requires very careful consideration, and I was notified only on Thursday, or perhaps Friday, last that this Bill was coming up for Second Reading today. I am not, therefore, able to make any comment about it. [Interruption.] I said that I did not know until last Thursday or Friday that the Bill was to have its Second Reading today. The hon. Gentleman who sits on the Front Bench and who is trying to torpedo me, may perhaps be interested to know that I was perfectly correct in what I said. I was notified only on Thursday—actually, it was Friday morning—last week that the Bill would be discussed today.
§ Lieut.-Colonel Lipton
Will the hon. Gentleman allow me? The hon. Gentleman is in exactly the same position as almost every hon. Member of this House.
§ Mr. Blackburn
That is a perfectly fair point, but I did feel that, as a matter of courtesy to the House, I should mention it, because, in the case of one who sat upon the Committee for a long period of time, it does take some time to put oneself in the position in which one was before. In my case, unlike the hon. Gentleman on the Front Opposition Bench, I was on that Committee for two or three years, and I remember being promised that legislation would be introduced in the lifetime of the last Parliament.
§ The Parliamentary Secretary to the Admiralty (Mr. Callaghan)
Everybody here has to earn his living, and if the hon. Gentleman has no better contribution than that to make, he had better not make it.
§ Mr. Blackburn
It appears to me that the hon. Gentleman should direct any necessary comments to the Attorney-General, who is known to be hardly less effective in offensive power than himself. Otherwise, his remarks appear to be singularly inapt.
I was apologising for not being able to comment as well as I should like to do upon this subject, but I wish to make certain points of considerable substance. The first is that, so far as this subject is concerned, in this country in general it is the most sacred rule of our jurisprudence and of our system of civilisation that no one shall have his liberty taken away from him, or his land or his property, except by the lawful judgment of his peers, or by the law of the land. That goes back to 1215; it was the principle established in Magna Charta, and in a long period of time it has become fully understood. It is the rule that no person shall be convicted of murder or manslaughter, or whatever it may be, unless there are 12 jurymen and those 12 jurymen, as a matter of fact, decide that he is guilty.
An exception to this general principle has been granted the case of court-martial procedure, because people there are serving in the Armed Forces. The 652 essential principle of courts-martial is to recognise the requirements of discipline and justice. I fully appreciate that we are now dealing—
§ Mr. Speaker
The hon. Gentleman cannot discuss the principles of courts-martial on this Bill. We are discussing the Court of Appeal now.
§ Mr. Blackburn
I quite agree, and I am coming to the point, which is that in Clause 2 (4) it is stated that(4) The determination of any question before the Court shall he according to the opinion of the majority of the judges of the Court hearing the case.The position at the moment is that the majority of the judges in the Court below hearing the case, are able to find a man guilty of murder, and a man may be found guilty of murder and may be hanged by a vote of three to two, if he has the misfortune to be a member of the Armed Forces—if he volunteered, instead of remaining a private subject. Under this Bill, that particular provision remains the same. Under this Bill, when the matter goes to the Court of Appeal under Clause 2 (4), once a man is convicted of murder or manslaughter, or whatever it may be, that conviction may be upheld by a majority of two to one. It is my submission that that is a most serious matter. Whether it has been argued today or not, it is a matter which certainly ought to be argued, and one which lies heavily upon the conscience of the Attorney-General—
§ The Attorney-General
Yes, it is. I know that if I were to deal with the matter which the hon. Gentleman says lies heavily upon my conscience, I should be ruled out of order, as you, Mr. Speaker, indicated at the beginning of the debate. The hon. Gentleman, who did not have the time to be present during our earlier discussions, did not hear you rule that we were not allowed on this Bill to deal with the question of the constitution of courts-martial, but he is now raising questions about the constitution of courts-martial, and I respectfully submit to you, Sir, that it would enlarge our debate far beyond the scope over which it has been permitted to range.
§ Mr. Blackburn
I do not wish to deal with the point of order. I want to say that it was the unanimous recommendation of the Committee on which I sat—
§ Mr. Speaker
I have already said that we cannot discuss the proceedings of the Committee. We are dealing with a Court of Appeal, and I think the hon. Member is rather enlarging on what he ought to have said.
§ Mr. Blackburn
I was dealing with Clause 2 (4). May I invite you, Mr. Speaker, to read the subsection? [Interruption.] If the right hon. and learned Gentleman had had the good manners to listen to what I was saying, he would know that I said, perfectly clearly, in the first place that, so far as the junior court is concerned, it is a court which decides by a majority vote, and, so far as the Appeal Court is concerned, that again has to be a court which decides by a majority vote. I have already said that, and perhaps the Attorney-General may have the good manners to read it in HANSARD, even if he does not listen to what I am saying. I was dealing with the subsection in relation to that point, and I was saying that he must take account of the nature of the court from which the appeal is taking place.
§ Mr. Speaker
I do not think that is necessary. After all, we are dealing with what this Court of Appeal can do, not with what other courts-martial have done.
§ Mr. Blackburn
With great respect, I ask leave to put a point of very great substance. Assuming that this Parliament were now laying down the principles upon which the Court of Criminal Appeal was to be created, this House would be seriously concerned with the way in which the case was originally heard, and it would be completely in order for me to refer to the nature of the trial in the other court.
§ Mr. Speaker
I do not think so. The hon. Member is referring to the Court of Appeal, and I do not think that would come into it. It may be another matter to discuss, but not here.
§ Mr. Blackburn
I was not attempting to discuss the nature of the original court for its own purpose. I was merely pointing out that we have the background of the fact that there is a court which, un- 654 like any other court, is one in which there may be a verdict of murder given by three to one. I am now addressing my remarks, in obedience to your Ruling, Mr. Speaker, to the mere question of the Court of Appeal itself, and I say that, having regard to that, surely the Court of Appeal itself ought to be unanimous. If we allow contrary recommendations, and if we allow three people against two to find a man guilty of murder, throughout the whole of the English-speaking world—
§ Mr. Manningham-Buller
On a point of order. At the beginning of this debate, Mr. Speaker, I raised a point of order as to the scope of the debate, and you ruled that it would not be in order to discuss the other recommendations of the Lewis and Pilcher Committees apart from the recommendations embodied in this Bill. The hon. Member below the Gangway has repeatedly tried to raise in discussion the question whether the finding of an original court-martial should be unanimous or by a majority, and also tried to tie it on to the Court of Appeal; but, in fact—and it is a subject on which I should like to make some observations myself—if he is allowed to make those observations, it will gravely prejudice those who want to raise the matter later in another debate.
§ Mr. Speaker
Under Clause 2 (4), we cannot go back to what any other court has done. This is merely a rule for the Court of Appeal.
§ Mr. Blackburn
I was interrupted, Sir, in the middle of a sentence, and if I may repeat the sentence, I hope I shall not be ruled out of order. I was saying that, so far as subsection (4) is concerned, and having regard to the fact that in the court below—
§ Mr. Speaker
We cannot have regard to the court below; we must have regard to this Court of Appeal and to no other.
§ Mr. Blackburn
Regardless of the procedure of the court below, whether it be by a majority decision or not, in my submission it is utterly wrong that a majority of judges should be able to decide in relation to an individual that he should be found guilty or not guilty. As I say, that appears to me to be utterly wrong.
655 So far as appeals are concerned—and I will deal only with them, that being the point to which we are restricted—I suggest that whoever is conscripted today, at whatever age, ought to have exactly the same rights in law as the ordinary individual who is not conscripted. And I want to go further, because there is a very great principle involved. There are people who volunteer, although it is very unfashionable today to volunteer; people are not encouraged by the Government to do so, because the Government like conscripts to perform their purposes. But whether they are conscripts or volunteers—and I personally prefer the volunteers—they are surely entitled to be treated just as well in respect of any offence that they commit as any civilian in this country, and they are surely entitled to be treated as well in the matter of appeals as any individual in this country.
§ Mr. Hylton-Foster
I wonder whether the hon. Gentleman could help me? I do not understand why this warrior is more ill-treated under subsection (4) than he would be if he were a civilian. My recollection is that the same rule applies to the civil Court of Appeal.
§ Mr. Blackburn
The hon. and learned Gentleman is taking a very unfair advantage. He knows perfectly well that I am prohibited by a rule of order from referring to the basic—
§ Mr. Speaker
The hon. Member is not discussing the Bill at all; he is discussing the general principle of our law, which seems also to be out of order.
§ Mr. Blackburn
If I may say so, Mr. Speaker, I was discussing the exact terms of this Bill; I was referring to appeals, and to appeals only, and I am still determined to stick to your Ruling, which was that I should only discuss the matter of appeals. I must admit that I am in great embarrassment owing to the fact that your Ruling prohibits me from referring to the nature of the proceedings from which the appeal lies.
§ Mr. Speaker
The hon. Member was not here when I gave the Ruling, and I am not to blame for that. He is to blame for not being here.
§ Mr. Blackburn
I appreciate that, Sir, and I accept the condition put forward, but I am still entitled, I submit, to deal with the matter of appeals from courts-martial. I say that in the present circumstance the Attorney-General ought to have insisted on safeguarding the rights of individuals who are conscripted or who volunteer, who are at the moment being subjected to disciplinary proceedings in the Armed Forces and who are suffering quite contrary to the unanimous recommendations of Committees whose recommendations the Government have already promised, but failed, to fulfil.
Therefore, I ask the Attorney-General to make an announcement in order to indicate here and now that he regards this as an utterly inadequate Bill, and that he will try to deal with the recommendations of those Committees and fulfil the promise which was made and which has already been broken. Secondly, I ask him whether he will reconsider the whole Bill and also say that, in so far as questions of fact as distinct from law are concerned, so long as the existing situation remains in the lower courts, he will amend Clause 2 (4) in order to ensure that the whole of the judges hearing the case must decide the appeal until such time as the unanimity rule in the lower court has been established.
I appreciate that this has been an exceedingly difficult matter for me to raise, and that, unfortunately, I have in some ways found myself at difference with you, Mr. Speaker, on the point of order, to your Ruling on which, of course, I bow. But it is a most embarrassing position for me, seeing that I was on the Committee in question and that the Government promised to implement that Committee's Report, that, though the Report is now before the House, I am unable to discuss it. I am grateful to you, Sir, for your indulgence, and I wish to end by saying that I think it is about time the Attorney-General implemented the promise he made on behalf of the Government in the last Parliament.
§ 7.39 p.m.
§ Mr. Gage (Belfast, South)
On this quasi-military occasion I am happy to think that my acting, unpaid and very temporary position of speaking last on this side of the House coincides with an 657 occasion when we can congratulate the Government on presenting a good and useful Bill to which we on this side of the House can give our support.
The debate has, I think, well exemplified what my hon. and learned Friend the Member for the City of Chester (Mr. Nield) said, is the central problem in all matters of this kind, namely, the reconciliation of the requirements of justice with those of discipline. Those hon. Members who have taken part in this debate have very naturally emphasised, according to their experience, either one or other of those concomitants of the courts-martial system. But the real difficulty is to reconcile the two. I entirely agree with the hon. and learned Member for Leicester. North-East (Mr. Ungoed-Thomas), that they are not at all incompatible, but it is not always easy to reconcile them. Neither can be ignored and neither must be over-emphasised to the detriment of the other.
When first I had such experience as I have had of courts-martial, I confess that, like many others trained in the great traditions of English common law, I was slightly startled by some of the things I found. Many of them have been put right by administrative action by the Government. At first, I was inclined to think that the military outlook was well reflected in the perhaps unconsciously humorous remark of a president of a court-martial, who said to a young barrister who was defending, perhaps rather tediously and taking a number of technical points, "Sir, I would remind you that you are not in a court of justice now." But as I gained experience, like my hon. and learned Friend the Member for York (Mr. Hylton-Foster) I found that members of courts-martial were just, humane and anxious to arrive at a right conclusion.
§ Mr. Blackburn
On a point of order. The hon. Member for Belfast, South (Mr. Gage), for whom I have great personal admiration and whom I would not interrupt on personal grounds, has been allowed by you, Mr. Speaker, to express a general opinion on courts-martial. I was ruled out of order because of the hostility of the Attorney-General the moment I raised the general issue.
§ Mr. Speaker
The hon. Member has no right to say he was ruled out of order because of the hostility of the Attorney- 658 General. The hon. Gentleman must control himself.
§ Mr. Blackburn
In relation to the words, "because of the hostility of the Attorney-General," I was not for one moment intending to make any reflection upon you, Mr. Speaker.
§ Mr. Blackburn
I beg your pardon if I did, Sir, but the point was that the moment I raised this issue, a point of order was made by the Attorney-General.
§ Mr. Speaker
The hon. Member for Belfast, South (Mr. Gage), was addressing the House and I should like to hear his argument. He was only opening it and I hope he will not exceed the legitimate bounds of order.
§ Mr. Gage
What I was going to say was that quite naturally, public opinion tends to be focused on some cases where there appears to be manifest injustice and most of us forget the hundreds of thousands of cases tried by courts-martial during the war in which the accused had a trial which, I am quite certain, was at least as fair as any he would have had in the criminal courts. In considering a Bill of this nature it is important to remember that some of us, particularly lawyers, are inclined to forget the disciplinary aspect.
By far the largest proportion of cases tried by courts-martial are concerned solely with disciplinary offences, with which a civilian will not normally be concerned at all—desertion, absence without leave, insubordination, and so on. I should say they form something in the order of 80 per cent. of the cases tried by courts-martial. And if one is to have an efficient Army or Navy one cannot ignore the point of view of the captain or Army officer who is mainly preoccupied in having a disciplined body of men on whose fighting capacity he can rely.
We must see that within this framework of discipline the essential principles of justice are preserved. I think the Government have succeeded in doing that. Many might feel that the power of dealing with or reviewing sentences might have been left to this court, but to anyone who has acted on courts-martial it must appear that the Government are 659 right in deciding that the Appeal Court is not necessarily at all the best means of considering sentences for offences which are of a purely military or naval character. Indeed, the punishment of the purely military offences presents a problem of its own.
I was concerned at one time with a great number of cases of desertion. I was very interested in observing the way in which these cases were punished. Some were sent back to rear areas for trial. In most of those cases the punishment was comparatively minor. One can well understand people in rear areas feeling reluctant to impose severe punishment. But there was one division which dealt with all these cases in courts convened in the division and composed of officers of the division. I do not think I ever saw a case in that division in which offences were punished by less than 15 years' imprisonment. They were exceedingly heavy, and many were reduced later.
I was very much perturbed about these sentences and so, indeed, was my commanding officer, so I went to all the units concerned. The commanding officers and other officers of those units made it quite clear, and indeed I was able to see it myself, that everyone in the unit, officers and men, were in favour of these heavy sentences. They pointed out that if a man had gone absent his place had to be taken by another man. The deserter was left in the comparative security of 13 Echelon for quite a time, awaiting trial. In the meantime there might be two or three attacks and a number of men in his section might be killed, including the man who had taken his place. The commanding officer said, "That man is living in comparatively greater comfort and certainly in greater security and he takes the view that he is 'the wise guy.' Unless severe punishment is inflicted, other men will start thinking and doing the same thing."
I quote that, not to prove any particular point of view, but to show the extreme difficulty of punishment in Service matters. If it is difficult within the Service, one can well understand how incomparably more difficult it would be for a civilian court in London to deal with it. It would particularly arise in naval matters with regard to hazarding a ship, or something of that nature.
660 As to offences of a purely civil character, such as fraud and so on, with which the courts might be able to deal, my experience was that they were always more lightly punished by courts-martial than they would have been punished by a comparable civil criminal court. I cannot recollect a single case in the Services of an ordinary civil crime in which the Court of Criminal Appeal would have desired to interfere with the purpose of reducing the sentence. Therefore, I entirely agree that the Government have taken the right course in confining the Court of Appeal to simply hearing whether a conviction can be sustained or not.
A number of hon. Members have spoken about the difficulties that may be experienced under this Bill in times of war. My hon. and gallant Friend the Member for Carshalton (Brigadier Head) has said there ought to be some provision in this Bill to suspend it in time of war. I am bound to say I entirely disagree. Of course, we all understand that there may be difficulties, but in my view that is no reason for putting into this Measure some machinery for supension. Personally, I think that the difficulties in war-time are not nearly as great as are imagined. For one thing, the man himself need not be present at the hearing of the appeal. The courts-martial proceedings are all that are required and they come back to London in any event. They did so from Malta during the war. They come back reasonably quickly, and so long as the accused has competent advocates arguing the appeal there is no real reason why he should be present.
Only a very small number of courts-martial cases will be appealable under this Measure at all. I should think that of the cases which I saw myself during the war, less than one per cent. contained a difficult point of law of the sort that one would bring before a Court of Appeal of this nature. As for the case which my hon. and gallant Friend the Member for Merton and Morden (Captain Ryder) told us about concerning the admiral, I do not think for a moment that such a case could possibly be brought before the Court of Appeal. There will not be a great number of these cases brought before the Court.
The important point is that if we admit the necessity for this Measure in time of 661 peace, as we do, it is required all the more in war when there are serving in the Forces hundreds of thousands of young men who never wanted to be soldiers, sailors or airmen, who never wished to make themselves amenable to military law, and just because there is a war on, should not be deprived of the elementary right of having their appeals heard.
Indeed, one would have thought that the Measure would be required more in war than in peace, because obviously in war-time courts-martial have to deal with a greater variety of cases than they do in peace-time, and there is more likely to arise the type of case that one might well want to bring before the Court of Appeal and which would be peculiarly appropriate to be brought before it. I do not see any great difficulty in time of war, and I certainly would not agree to the introduction into this Bill of any provision for suspension.
We have also had pointed out to us the possibilities of delay in these appeals. I do not visualise a great delay in the actual hearing of the appeals, although I should like to support what has been said about the single judge giving leave to appeal, and, if he refuses it, there being no right of going to the full court. I think that is a sound argument, and I think it would tend to reduce delay. Further. I should like to fortify what my hon. and learned Friend the Member for York has said about the place where delay may occur—namely, in the preparation of the cases by the registrar for the Court. They come from the Judge Advocate General's office, and they will require a certain amount of preparation by the registrar. I think that can be got over by giving the registrar an adequate staff to present the cases to the members of the Court. That is a possible bottleneck, and it is one which the Government should bear in mind.
In any event, the excellent practice that was largely followed in the last war of suspending sentence will, I think, prevent a man suffering any undue hardship in not having his appeal quickly heard. A great number of sentences are suspended, and the higher military authorities are always very strongly in favour of suspending a soldier's sentence if only for the reason that they can get a man back to some useful job instead of having to keep him behind the lines where he takes up 662 a lot of room and wastes time and causes expense. I think that will militate against any injustice occurring if there is delay.
My hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller), referred to the number of reviews. Indeed, there seemed to me to be an unnecessary number of reviews of proceedings after they have been confirmed. I remember that we tried to cut out the divisional headquarters. We had a review at Army headquarters, and again a review at general headquarters, followed by a review at the War Office. I really think that proceedings of courts-martial, once they have been dealt with by the confirming authority, might go direct to the War Office. That would hasten matters in regard to an appeal.
There are, however, one or two matters, with which I should like the Attorney-General to deal. As has been pointed out, Clause 27 provides that if there is an application for leave to appeal, from the moment the application is made there is no prerogative right to quash the conviction. I hope that that prerogative might be retained if only for the reason that it would tend to reduce the burden on the Court of Appeal. These cases are very carefully reviewed. If there is a ground for quashing them and it is recommended to His Majesty that they should be quashed, I should have thought it would be much simpler to have them quashed even after leave to appeal has been made and incidentally, in a case which is going to be quashed there will almost certainly be an application for leave to appeal, because clearly there would be an obvious flaw in the proceedings. I should have thought that that would relieve the burden on the Court of Appeal.
I imagine that some difficulties might arise there with regard to naval courts-martial because, as I understand it, the Board of Admiralty have the right to quash a conviction at any time, and that is not a prerogative right in that it does not flow from the King. In the Army it does. The Board of Admiralty can quash a conviction on their own. Therefore, if the Clause is left as it is it will be possible for the Board of Admiralty to quash cases where there has been an application to appeal while it will be impossible to do the same thing in the Army. That might give rise to difficulties. That is a matter into which the 663 Attorney-General ought to look because it seems to me that that is a safeguard to the soldier of which he should not be deprived.
Another matter which I regard with some misgiving is in Clause 18, and it relates to a point which was raised by my hon. and learned Friend the Member for York. I regard with some misgiving the Court asking the judge or the Judge Advocate General for their opinions in a case. As I think every hon. Member has said, a great deal of the dissatisfaction which was felt about courts-martial, after the proceedings had passed from the hands of the confirming authority, was about the way in which matters were handled in private. Nobody knew what had happened. Nobody knew whether the arguments which had been carefully written out in the petition had, in fact, been considered. We, of course, knew that they had, but the ordinary soldier did not know. He had no ruling on them, and he regarded the matter as being carried on privately and away from the public eye.
That gave rise to a great deal of misgiving and I am inclined to think that, if we retain the provision whereby the Judge Advocate General can still give an opinion or a report on the case, this misgiving will continue. I think the right hon. and learned Gentleman might well consider that point and might consider, too, the question of obtaining a report from a member of the court-martial. I know it is useful to have a report and that the Court of Criminal Appeal often finds it useful to have a report from a recorder or someone of that nature, but here we are dealing with military matters and we have to make allowances for what is, perhaps, the rather suspicious mind of the soldier, particularly in regard to lawyers. I do not know whether the provision will give any great advantage to the Court and it might be as well to abandon it.
Another matter to which I should like to refer is that there might well be some limitation of the numbers of petitions which can be presented. I believe people are still presenting petitions concerning cases from the 1914–18 war—on no new facts and on no new law. These petitions are still coming in and still have to be dealt with. Now that there is to be 664 a Court of Appeal I do not think there would be any great hardship if we said that no one could petition His Majesty more than, say, twice or three times.
Incidentally, my hon. Friend the Member for Bromsgrove (Mr. Higgs) said no doubt it would all be written out on an Army form. I can tell him that it is almost the only thing in the Army for which no Army form is provided. It is left to the ingenuity of whoever is concerned to make the petition up. I should also like to ask the right hon. and learned Gentleman about the question of the prescribed period. We should like to know when the prescribed period will be laid down because, until it is laid down, this Bill cannot operate. It is important to know what the period is likely to be. If we are not told what it is likely to be, at any rate we should be told when we are likely to hear what it will be, because the Bill cannot come into force until we know that.
Finally, I should like to touch on a subject which has been mentioned before in this House—that of the salaries to be paid to the officers in the Judge Advovate General's Department. I mention it as a lawyer with all delicacy. All I would say is that the best system in the world can break down if it is badly administered. It is highly important that the salaries should be such as will attract able and promising barristers to this very important work. That has been stressed in all the reports. I am sure the right hon. and learned Gentleman has it in mind and that I do not need to press the point.
On the whole, these points of criticism—if points of criticism they be—are minor. Hon. Members on this side of the House welcome the Bill. We all regret that we are entering on a period when the affairs of the Services must increasingly preoccupy our minds, but at least it is a happy augury for the future that, at the outset of this period, we are debating a Measure which is wholly to the good in that it gives to the soldier, sailor and airman an elementary requirement of justice which he has so long been denied.
§ 8.5 p.m.
§ The Attorney-General (Sir Hartley Shawcross)
We have had a very interesting and quite wide debate on this not unimportant little Bill and I should like, 665 if I may, to say at once how grateful I am to hon. Members on both sides of the House for the contributions they have made to our discussions. Inevitably, some of the points raised were of a technical nature which we shall have to consider more fully in Committee, but we shall certainly give consideration to them and, even if we are not prepared to accept them, we shall at any rate come prepared to argue them when the Committee stage is reached.
Indeed, on matters of principle, with one possible exception, I think there was no real difference between any of the hon. and hon. and learned Members who spoke in the course of our discussion this afternoon. It was said by the hon. Member for Northfield (Mr. Blackburn), in a characteristically unhappy speech, that this Bill was totally inadequate, but I think other hon. Members on both sides have agreed that it was the recommendation to establish some kind of Court of Appeal which formed the basic proposal both in the Report of the Committee under Mr. Justice Lewis and in the Report of the Committee under Mr. Justice Pilcher.
§ The Attorney-General
I do not know that the fact that the hon. Member for Northfield said so himself really adds very much to our knowledge on this or any other subject.
§ The Attorney-General
Something was indeed said from the other side of the House about the delay which has occurred before the presentation of the Bill, but I do not know that we can justly be accused of any undue delay in the matter. Although it is true that both committees favoured an appeal to one tribunal or another, there were significant differences between them as to the kind of tribunal which ought to be established, and we had to give a good deal of thought to that. Indeed, I believe it is the case that within comparatively recent times there have been four different committees which have expressed varying views both on the question of appeal and on other questions relating to court-martial procedure and, looking back over the years, do not think this Government can be 666 singled out for having treated their recommendations in an especially dilatory way.
After giving most careful consideration to the reports of the two main committees, we felt that it would probably be right, as the hon. and learned Member for Northants, South (Mr. Manningham-Buller) himself said, to go rather further than either committee had gone in the constitution of the new Court of Appeal. By this Bill we have proposed the establishment of a Court presided over not by a special judge, such as the Judge Martial contemplated by one of the committees, but presided over by one of the ordinary judges who sit from day to day trying criminal cases in the civil courts of the country and who form from week to week the membership of the ordinary Court of Criminal Appeal.
There is no doubt that what we are doing in this Bill will involve a fundamental change in court-martial procedure and it should, in itself, result in the gradual disappearance of some of the defects and criticisms which have hitherto arisen. It is, of course, true, as hon. Members have said, that the two committees made various other recommendations which we have not been able to canvass today, and when I say that this. Bill deals with the most important of the matters with which the committees dealt, I do not for a moment want to belittle their other recommendations.
§ Mr. Blackburn
On a point of order. I was ruled out of order, Mr. Deputy-Speaker, in making a speech which related to the subject of the major and much the most important recommendations of those committees. As I have been ruled out of order in expressing an opinion on this subject, is it not out of order for the right hon. and learned Gentleman now to express an opinion on it?
§ Mr. Deputy-Speaker (Colonel Sir Charles MacAndrew)
It is rather difficult for me to judge, for I did not hear the previous Ruling, but, in my view, the Attorney-General is perfectly in order.
§ The Attorney-General
I am expressing no opinion, as a matter of fact. I have not expressed one, and I do not propose to express one. I was merely 667 going to state what, I think, is an obvious fact, that when this new Court gets into operation we shall be in a much better position to judge in regard to some of the recommendations that have not already been implemented, and how far it is desirable to implement them. The working of the new Court of Appeal will give us practical knowledge and practical experience of some of these matters which will be of the greatest value to whatever Government may have to deal with the further questions of court-martial procedure later on. We want to see first this basic principle implemented, and to see how the new Court will actually work in practice, and I think that that experience will help us a great deal in dealing with the practical difficulties which have been canvassed at ether times in other places.
One matter to which the hon. and learned Member for Northants, South, referred in his speech, and to which a great many other hon. and learned Members have also referred, is the question of the right of petition. It is a wide matter, and there were many aspects of it touched upon in the course of our debate. There was, for instance, the point made by the Member for Belfast, South (Mr. Gage), and made earlier, I think, by other hon. Members, in regard to the possibility of cutting down the right of petition. We did give some consideration to that—to the possibility that the right might be limited either in point of the numbers of petitions that could be presented or in point of the time in which a petition could be made; but we thought, on the whole, that could not really properly be done. The subject has an inalienable right to petition his Sovereign, and this right of petition is really only a manifestation of that general right possessed by all members of the public. It is a matter of prerogative, and we thought that it would be an undesirable precedent to limit it in the way that has been thought possible in some of the speeches made from the other side of the House.
But this will, of course, be appreciated, that once a notice of appeal has been given—I am coming back in a moment to the implications of that—once notice of appeal has been given and the matter has come within the cognisance and the 668 jurisdiction of the new Court of Appeal, there will no longer be a petition to quash the conviction, because that power to quash by virtue of the prerogative will have gone, having been transferred by His Majesty from himself through the Army Council or the Admiralty to His Majesty's judges. He may still be petitioned, of course, because his prerogative of mercy will remain and the prerogative of pardon will remain. We do not see how it would be right in the case of a soldier, any more than in the case of a civilian, to limit the right of petition that there may be in respect of those two prerogatives.
§ The Attorney-General
That, I think, is, again, really an example of prerogative power delegated to the Admiralty. I think it is derived from the powers originally delegated to the Lord High Admiral, and the position that we apprehend is and is intended to be in the Bill is that it should be exactly the same in the case of petitions addressed to the Admiralty as in those to the Army Council or to the Air Council.
We did, of course, give a good deal of consideration to the question whether the review system should be maintained at all, and there were arguments both ways in regard to it. The Lewis Committee, in favouring the establishment of a Court of Appeal, thought that the existing system of review should go. The Pilcher Committee, on the other hand, took the opposite view. We concluded that the maintenance of the existing review system would facilitate the working of the appeal machinery, and that, at the same time, it would provide an additional safeguard for the soldier, sailor, or airman who was found guilty by a court-martial.
Under the civil system applying to ordinary civilians the decision of a bench of magistrates or of a jury which convicts the defendant is, of course, final and automatic, apart from any appeal: there is no question of any confirmation. However, in the Army and the Air Force—not, as a matter of fact in the Navy—it has always been the practice that, whether 669 there is a petition or not, the proceedings of courts-martial are subject to careful scrutiny before a conviction is confirmed. We think that that is a safeguard that it is right to maintain, because although the soldier or airman may not present a petition there may be circumstances, in what is a much more technical, detailed system of trial than that in the ordinary civil courts of this country, which ought to be brought to notice and which ought to invalidate the proceedings. So we maintain the system of confirmation in the cases where it already exists.
We think, in regard to the case of review, which exists, of course, in all three Services, that that also is a safeguard which ought to be maintained. Again, there may be difficulties which can be dealt with at once by the reviewing authority and which will avoid the necessity either of notice of appeal, if given, or of the matter going before the Court of Appeal at all. We are relying on the maintenance of that system, as operating, as a means to filter and reduce the number of cases which would come up to the Court of Appeal on application without leave to appeal.
§ Mr. Manningham-Buller
The right hon. and learned Gentleman will say, I hope, that consideration will be given to reducing the number of reviews that normally take place—reviews at every single stage?
§ The Attorney-General
I was going to say that that point was raised by the hon. and learned Gentleman and by the hon. Member for Belfast, South: and we shall certainly give consideration to that point. As at present advised, it seems that it may be possible to make some arrangements whereby, after confirmation, the papers go to the ultimate reviewing authority, thereby saving delay and, no doubt, the great expenditure of labour which must be involved in reviews right up the hierarchy to the top.
That leads me to another point which was raised by the hon. and learned Member for Chertsey (Mr. Heald) and the hon. and gallant Member for Carshalton (Brigadier Head) and, indeed, a number of hon. Members on the other side of the House, as to whether this system was going to work in war-time. Now, that, obviously, is an exceedingly difficult question to answer. It would be difficult to 670 answer in regard to our ordinary civil administration of justice—whether it was going to work satisfactorily in time of war. Even in the last war, as the hon. and learned Member for Exeter (Mr. J. C. Maude) pointed out, we had a statute. I think it was called the War Zone Courts Act. I had some duties under it. It would have resulted in considerable modifications of our ordinary system of criminal trial in the event of the war situation in this country making that system difficult to maintain.
It is difficult to envisage what conditions would be in this country or in other theatres of war if, unhappily, another war should occur. I think it would be very difficult for us in this Bill to provide in advance for special machinery to meet a situation at which at present we can only guess. Indeed, I would be sorry to think that we should not be able to maintain the system of justice which we hope to apply by this Bill. It may be so, and if the situation develops in that way we shall have to deal with it as best we can. We hope that the system we are seeking now to lay down will be able to operate efficiently in war-time.
It is difficult, of course, to calculate how many appeals there are likely to be at a time of total mobilisation, but the best estimates we have been able to make—and they are really little more than guesses—are that the number of appeals are likely to be something between 1,000 and 2,000 in the course of a year.
§ The Attorney-General
Applications for leave. We base that estimate to some extent on past experience. In the year ending August, 1944, for instance—this was not a peak year but it happens to be the latest year for which we have got figures—there were about 40,000 courts-martial in the Army and Air Force, and there appear to have been about 1,000 petitions, apart from those against sentence only, and under this Bill appeals against sentence will not arise. In the civil court, the Court of Criminal Appeal experience is curiously similar. In the last year for which we have statistics the number of convictions on indictment was 19,450 and there were 557 appeals, so that it looks as if there are about 2 per cent. The maximum number of courts-martial in 671 the peak period of the war was 54,000 in a year.
Assuming the number of applications for leave to appeal did not exceed the number of petitions—and the probability is that it would be very considerably less—we think that the Court constituted in this way would be able to cope with the work which would arise. As has been pointed out, the Court could sit in divisions, and in some cases it would be able to go abroad, although I do not apprehend that that will be at all the normal course. I should not think that there would be any question of the Court sitting permanently or for a month or two at a time in Middle East Command, or whatever happened to be an important theatre of war. It is easy nowadays to get the papers back to London.
Under this Bill there is no necessity for an appellant to be present in court, and I would have anticipated myself that the number of cases in which it would be necessary for the Court to travel abroad might not be great, but there is power under the Bill to sit abroad, to sit in Scotland or to sit in Ireland. My hon. Friend the Member for Ayrshire, South (Mr. Emrys Hughes), asked that question. On those occasions one member of the Court will be a Scottish or, perhaps, an Irish lawyer.
The hon. and learned Member for York (Mr. Hylton-Foster) and others asked me about the effect of Clause 18, which enables rules of court to be made permitting the Court to call for a report from the Judge Advocate General, or even from members of the court-martial itself. I will not, in view of the fact that the hon. and learned Member for York warned me not to, say that this is based on the precedent of the Court of Criminal Appeal Act. I could have given that answer, but I agree respectfully with the hon. and learned Member that it is not a very good answer.
I go further and say that I have listened to and been impressed by the arguments that have been advanced in regard to the necessity of this power, at any rate under subsection (2, a) which enables a report to be obtained from the Judge Advocate General. I cannot quite see the utility of that report in the circumstances which are now to be brought about. There may be cases in which it would be useful, as the 672 hon. Member for Belfast, South, said, to have a report from the Court itself about some misunderstanding which it is desirable to clear up. Even that I shall be glad to look into again, and, without giving a pledge in regard to paragraph (a), I must say that my views are very similar to those expressed by hon. Members opposite, and that we shall also consider paragraph (b) before the Committee stage.
The hon. Member for Belfast, South, referred to the question of appeals against sentence. We felt that in the case of sentences imposed by courts-martial the Court of Appeal would not be the court best qualified to review the sentences that had been imposed. There will, of course, remain the prerogative right in the Army Council, the Air Council and the Board of Admiralty to review sentences from time to time, but we considered—as I think most hon. Members opposite did—that the court-martial itself was the tribunal best able to judge whether the sentence imposed was one which was proper having regard to the military situation, the conditions of discipline, and so on, at the time and in the place where the sentence was imposed.
There was then a question asked by a number of hon. Members about the effect of Clause 27 on the prerogative. I have already said something about that aspect of the matter, but I think there was a little misunderstanding as to the circumstances in which the prerogative power to quash the conviction would go. The scheme of Clause 3 is to require tile petition to the Army Council, the Air Council or the Board of Admiralty to be presented first, and there is no question, as one hon. Member suggested, of having a paragraph at the foot of the petition in which it could be said, "If this petition is not granted I hereby give notice of appeal." The first step, and the only step which the convicted man can take at the beginning, at the first stage, is to present his petition. Then a certain time is allowed to go by in which the reviewing authority can consider the petition and make up its mind whether or not it will exercise the prerogative of mercy.
It is only if the reviewing authority has not given its decision to exercise or not to exercise the prerogative to quash within a certain time, which will be fixed by regulations, that the right to give notice of application for leave to appeal 673 arises. What that period should be we have not finally decided, but we had in mind a period of 90 days, so that if no decision had been given on the petition within 90 days the soldier should have a right to give notice of his application for leave to appeal.
In the great majority of cases, of course, a decision will have been given on the petition in a much shorter period than that. That decision will either have been to exercise the prerogative and to quash the conviction, in which case no further question arises, or will have been not to exercise the prerogative. It is at that stage, and at that stage first, that the right to apply for leave to appeal arises. There is, therefore, nothing in this machinery which prevents the exercise of the prerogative to quash the conviction on the first petition.
It is true that if the prerogative is not exercised on the first petition and a convicted man then makes application to the Court of Criminal Appeal, he cannot subsequently put in another petition to secure the exercise of that prerogative. I think it is quite clear that, in the first instance, there will be a petition, that on that petition the appropriate authority will be entitled to exercise the prerogative, and that it is only if the authority does not decide to exercise the prerogative and the matter is transferred, or may be transferred to His Majesty's judges, that the prerogative power will go. It will go in the case of the Army Council, the Air Council and of the Board of Admiralty.
Then there was the final point raised by the hon. Member for South Belfast that it might be provided, in order to ensure that the Court shall not be swamped by applications, that one judge alone should be entitled to have the final decision in regard to leave to appeal. We shall consider that, certainly, but at present we have thought that as we are trying to establish a Court assimilated in all possible ways, mutatis mutandis, to the Court of Criminal Appeal we ought to maintain the same rule as that Court practises in regard to this matter so as to enable an application for leave to go to the Appeal Court. As hon. Members know, if the application does go to the full court it is treated as a final appeal in practice and does not involve still further hearing by that court. We think that it is better to rely, as a deterrent against 674 frivolous appeals, on their power to make the sentence date from the determination of the appeal, which would probably mean adding three, four or more months to it. That and the provisions of Clause 33 as to costs will probably be sufficient to discourage frivolous appeals.
There is a point which was raised by the hon. and gallant Member for Merton and Morden (Captain Ryder), in regard to the admission of fresh evidence. The position as to that will be that while the matter is at the stage of petition, the first stage, the Army Council, the Air Council, or the Board of Admiralty, or whatever the reviewing authority may be, will continue to possess whatever right it now has to hear fresh evidence. Once the matter goes to the Court of Appeal, that Court will enjoy the right now possessed by the Court of Criminal Appeal to admit fresh evidence. It is a right which is very rarely exercised, but it will be there in case of necessity.
I have picked up in a rather disjointed way the matters which were raised in the course of the discussions. Many other matters of detail can be talked about upstairs. We shall welcome the help of hon. Members in improving the machinery of the Bill. At this stage I merely commend the Bill to the House as one which, in the sphere of military law, is of considerable importance. It will not only ensure that justice is done, as I believe in the vast majority of these court-martial cases it already is, but, by providing an appeal to a Civil Appeal Court, will manifestly make it seen to be done.
§ Question put, and agreed to.
§ Bill accordingly read a Second time.
§ Committed to a Standing Committee.