HC Deb 22 October 1952 vol 505 cc1183-8
Sir D. Maxwell Fyfe

I beg to move, in page 9, line 40, to leave out from "be," to the end of the line, and to insert: sufficient evidence of the fact so stated unless the contrary is proved. This is an Amendment designed to meet the criticism which was made during Second Reading, that it was left entirely to the authorities of visiting forces to say conclusively whether a person is a member of a visiting force. I think it is clear that this Amendment allows evidence to be heard in rebuttal of a certificate from the appropriate authority of the sending country to the effect that the person is a member of a visiting force. I think I ought to say specifically that in my view the result is that on application for habeas corpus a person could insist and call evidence that he is not a member of a visiting force and so not subject to the jurisdiction of a visiting force by virtue of his membership.

As is shown by the Order Paper, I propose to move a similar Amendment in regard to Clause 11 (4), which deals with proof of the question of whether an offence was committed in the course of duty. I should like hon. Members opposite to realise that I have paid attention to what they said on Second Reading and I hope that they will think that I have met their point reasonably and fairly.

Mr. E. Fletcher

I think that all of us on this side of the Committee will regard these concessions which the Home Secretary has announced as being most valuable. He has met most handsomely the criticisms which were made about the Clause on the Second Reading. He has put down words which are a great improvement on my own attempt at drafting, words to give effect to the substance of our criticisms.

I think the Committee may now congratulate itself that the whole position has been completely transformed. No longer is this Bill open to the criticism that any of us, for example, might find ourselves subject to a certificate of a commanding officer to the effect that we were a member of a visiting force and bound by that ipse dixit. Equally, no longer are British Forces bound absolutely and completely by a certificate of an official of a foreign force that a particular individual is on duty at a particular time. In both cases, the individual in question now has recourse to the ancient and valuable right of habeas corpus in order to establish his liberty and claim his freedom.

Amendment agreed to.

Mr. S. Silverman

I beg to move, in page 10, line 9, to leave out from "court," to end of line 10, and to insert: be receivable in evidence but shall not be accepted as conclusive evidence of any fact therein stated unless the person specified in the said certificate admits the truth of the said fact. The purpose of this Amendment is to make certain that the admission of the document in evidence shall only apply where the fact certified in the certificate is not disputed. Lawyers will appreciate that one cannot make admissions in criminal cases. It is necessary to prove every fact relevant to the charge. Therefore, it may be necessary to prove formally certain things and where the fact to be proved is not disputed it is eminently proper that there should be a certificate, that the certificate should be receivable in evidence, and the fact formally proved.

What we were all against on Second Reading, and what I hope we are all against now, is making the essential elements in the charge provable merely by a certificate incapable of challenge. One must look at the Clause to see what the position is if the Amendment is not adopted.

The Clause deals only with the question of evidence and subsection (2), to which this is an Amendment, provides that For the purposes of this Part of this Act a certificate issued by or on behalf of the appropriate authority of a country, stating, as respects a person specified in the certificate,—

  1. (a) that on a date so specified he was sentenced by a service court of that country to such punishment as is specified in the certificate, or
  2. (b) that he is, or was at a time so specified, detained in custody in pursuance of a sentence passed upon him by a service court of that country or pending or during the trial by such a court of a charge brought against him, or
    3. 1185
  3. (c) that he has been tried, at a time and place specified in the certificate, by a service court of that country for a crime so specified,
shall in any proceedings in any United Kingdom court be conclusive evidence of the facts so stated. It ought not to be conclusive evidence. It should be capable of challenge and rebuttal and should not be evidence at all unless the fact is, from the point of view of the defendant, an admitted fact. The same principle has been discussed in other parts of the Clause about other matters and it is not necessary to dilate on it. I am sure that the principle is accepted and whether the particular words I have chosen commend themselves to the right hon. and learned Gentleman or not I am sure he will be prepared to give effect in spirit to it.

Sir D. Maxwell Fyfe

We considered very carefully whether the course I have mentioned with regard to subsection (1) was really necessary. Subsections (2) and (3) seem to us to be largely matters of history and record. There was another reason. If we allowed them to be the matter of debate and discussion in the case where the person specified does not admit the truth of the said fact, I felt it might involve the United Kingdom court in questions of foreign procedure, and that that was undesirable because the visiting forces' court given the power to exercise jurisdiction ought to be able to exercise it in these regards without interference.

I hope that the hon. Member will reconsider the matter from the points of view I have mentioned. I have met views expressed on subsections (1) and (4), and I do not think that in this matter, which is so largely a matter of history, there is anything like the urgency which there was in the subsections which I have mentioned. I therefore hope that he will not press the Amendment, or that he will have another look at the situation and consider whether it is worth while raising it at a later stage of the Bill.

12.30 a.m.

Mr. S. Silverman

I quite agree that there is a difference between this Amendment to this subsection and the corresponding Amendment in the earlier subsections. Whereas the other was a substantive point, this is not, and there is that degree of difference between them. All the same, I commend to the consideration of the right hon. and learned Gentleman that the same principle should apply. If the thing is right in itself, it does not matter that it is not quite so important in this case as in the other case, and the same safeguards might as well be introduced. I agree that the mischief aimed at is nothing like as grave as that aimed at in the corresponding part of the other subsections, but no harm would be done in making the same Amendment as that which we made before.

I do not propose to press the matter at this stage, however, and I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. E. Fletcher

I beg to move, "That the Chairman do report Progress, and ask leave to sit again."

I think the Home Secretary will be the first to acknowledge that we have made considerable progress with the Bill and, speaking on behalf of my hon. Friends, I would say that he has been extremely conciliatory in the sense that he has made a number of concessions to meet points which were raised during Second Reading. On the other hand, the right hon. and learned Gentleman recognises that this is a vitally important Bill and that, as he himself said during Second Reading, it is a difficult Bill which merits the closest scrutiny of the House in Committee.

We have been engaged on the Bill since about five o'clock—for about seven-and-a-half hours—and the discussion has, not unnaturally, been confined to a relatively few Members, who have taken a special interest in the matter. Apart from the Home Secretary and the Attorney-General, no hon. Member has spoken from the Government benches during the Committee stage. I make no complaint about that at all, but I feel that we have now reached a point at which it would be asking too much of the Committee to continue with the remaining Clauses at this hour of the night.

We have still to consider an entirely new section of the Bill, namely, the new Clauses relating to civil liabilities. So far we have been dealing exclusively with matters of criminal jurisdiction, giving criminal jurisdiction to foreign courts, and ousting the jurisdiction of our own courts. The remaining parts of the Bill, with which we have still to deal, are of an entirely different nature, namely, the ways in which the rights of British civilians should be protected in respect of torts which may be committed by members of foreign forces, civilian components, and dependents. I think it is obvious that any thorough and careful examination of the remaining parts of the Bill must take a great deal of time.

I am sure that it is the wish of the Home Secretary and his supporters, as it is the wish of my hon. Friends on this side of the Committee, that we should not scamp consideration of this Bill, but should ventilate matters which are of great public interest. I hope the Home Secretary will agree that this would be an appropriate moment to adjourn.

Question put, and negatived.

Sir D. Maxwell Fyfe

I beg to move, in page 10, line 26, to leave out "conclusive evidence of that fact," and to insert: sufficient evidence of that fact unless the contrary is proved. This is the other Amendment to subsection (4) which I mentioned. I did explain to the Committee that it does the same service in regard to the certificate in respect of whether an offence was committed in the course of duty. It is another concession, making that certificate only sufficient evidence of the fact, and adding the words "unless the contrary is proved." It makes another concession in this Clause.

Amendment agreed to.

Motion made, and Question proposed, "That Clause, as amended, stand part of the Bill."

Mr. Bing

I apologise for the rather late hour of my return. Like some of my hon. Friends, I felt that after a few hours away from the Committee for sleep I would be able to turn rather more adequately to other matters before the Committee. I do not think we ought to part with this Clause without some discussion about it.

I take the view that it is an impertinence to the Committee to ask it to continue to discuss this Bill at this late hour. Had I been fortunate enough to catch your eye, Mr. Colegate, when the question of reporting Progress was raised, I would have been able to express the view that it is unfortunate that we should be asked to discuss this matter at this hour. But the Committee has decided otherwise. Therefore I must ask the Committee to bear with hon. Members who want to discuss the matter before us, some of them no doubt at length.

It would have been better if a measure which is taking away from British citizens a great deal of liberty could have been discussed at a time when hon. Members were fresh, and when there more present and we could have had some contribution from hon. Members opposite.

The Temporary Chairman

The hon. and learned Member must confine himself to the Question that the Clause stand part of the Bill.

Mr. Bing

I appreciate that. I was about to make the point that it seems undesirable that we should take an absolute view of certificates in this fashion. I am under the difficulty—and I apologise to the Committee—that I was not here for some of the discussion of the matter, but it should not be left without a few more words from the right hon. and learned Gentleman.

Clause, as amended, ordered to stand part of the Bill.

Clauses 12 and 13 ordered to stand part of the Bill.