HC Deb 22 October 1952 vol 505 cc1188-93
Sir D. Maxwell Fyfe

I beg to move, in page 13, line 14, to leave out from "be" to second "and", in line 16, and to insert: sufficient evidence, unless the contrary is proved, that the request has been made and of its effect. The Committee has accepted the Government Amendments to Clause 11, page 9, line 40, and page 10, line 26, and it would be convenient, without prejudice, to what may be the strict view of the law, for uniformity, if Clause 14 (1) made similar provision to that in Clause 11 (1) and (4). It is some concession to meet the points of view expressed, and, as a concession, I commend this Amendment to the Committee.

Amendment agreed to.

Mr. S. Silverman

I beg to move, in page 13, line 17, to leave out paragraph (b).

This paragraph provides that a document purporting to be a certificate under the hand of the officer commanding a unit or detachment of any of the forces of a country to which this section applies, stating that a person named and described therein was at the date of the certificate a deserter, or absentee without leave, from this force shall be admissible without proof as evidence, and in Scotland sufficient evidence, of the facts appearing from the document to be so certified.' There is no reason why this subsection should be in the Bill. This provides that the question whether an offence has been committed shall be settled by the certificate of the complainant without further argument or further evidence. It is inconsistent with the concessions which the Home Secretary has already made in other parts of the Bill to the objection which has been raised to this kind of certificate and its evidential effect, and the Bill would be no worse if the subsection were left out.

If the man is alleged to be a deserter or an absentee without leave there are in the Bill, without this subsection, sufficient powers to deal with him, and sufficient powers to make him subject to the jurisdiction of the courts of the service. One does object to providing that the certificate shall be conclusive in any case and certainly in a case where the certificate appears in the paragraph as liable to be conclusive evidence that the complainant or prosecutor is right without trial.

Lieut.-Colonel Lipton rose——

12.45 a.m.

Sir D. Maxwell Fyfe

I hope the hon. and gallant Gentleman (Lieut.-Colonel Lipton) does not mind my rising at this stage, because I do not think there is so much between us as might have appeared at first. The hon. Member for Nelson and Colne (Mr. S. Silverman) was worried, as he said on Second Reading, by the words evidence, and in Scotland sufficient evidence. I took the view, as he will remember, that "evidence" was equivalent to admissible evidence and, with regard to Scotland, I took further advice on the law of Scotland and found that the phrase "sufficient evidence" does not mean conclusive evidence. It meets the point that in Scotland there have to be two witnesses to any question of fact, and it is not sufficient evidence unless the number of witnesses are there.

However, I do not wish to dispute about what is the law. One is only too conscious of one's own mistakes. I intended to move an Amendment, in line 23, which introduces the words sufficient evidence, unless the contrary is proved. I would ask the hon. Gentleman to imagine the Clause with these words inserted, so that his doubt about the law is removed. Then we will come to the position that it is clearly open to the person alleged to be a deserter to deny that he is a deserter and if he does not support his denial by evidence it will be for the prosecuting authority to prove that he is a deserter. Put another way, this provision, to which the hon. Gentleman objects, will only operate in the case where it is common ground that the person is a deserter, and as was said a moment ago in our discussion, where it is common ground, there is really no harm in the certificate being used.

Mr. S. Silverman

In that case, what is the purpose of the paragraph? The right hon. and learned Gentleman is asking me to imagine it as he would later amend it. I have done so. May I, in return, ask him to imagine the Bill without the paragraph? What would be lost? The visiting forces would still be able to say that the man is subject to our jurisdiction, we are making a charge against him, and we are entitled to try him in our courts. Why should you have a certificate that he is already guilty.

Sir D. Maxwell Fyfe

The certificate would constitute evidence given by the prosecuting authority, to which there would be no dispute. That would be a convenient way of proving an undisputed fact. As the hon. Gentleman pointed out himself, you cannot make admissions in a criminal case and it is really a convenient method of providing that the objectionable teeth are withdrawn. That is how it seemed to us. It has now become a point of very small compass, as I think the hon. Gentleman will agree. I will have another look at this point to see whether it is necessary. I have given the reasons for thinking it is, but I will certainly have another look at the point and I hope that in the circumstances he will not press his Amendment.

Mr. Paget

Before this question is left I should like to reinforce a little what my hon. Friend said, because there seems to be considerable substance in it. If a man is, in fact, a deserter the only certificate which I should have thought was necessary in order to detain him would be a certificate that he was a member of the forces and that it was proposed to bring a charge against him. Surely it is preferable to do it in that way than for the force that is to try him—and presumably presume him innocent until he is proved guilty—to issue a certificate that he is guilty before they put him on trial.

Mr. Bing

It seems to me that this adds further confusion and makes further difficulties. Does the certificate have to decide that the man is either a deserter or is absent without leave? Those who have had the misfortune to deal with Army law know that there does not seem to be a great difference between these two cases. Is it a defence, when a certificate is produced to say that a man is a deserter, for him to say, "I am producing evidence to show that I am absent without leave"? He may say that it was his intention to return after six months' absence to attend to private business.

It is that sort of argument which is very familiar to anyone who has had anything to do with courts-martial. It seems to me that paragraph (a) covers everything which the Minister wants. Paragraph (a) refers back to Clause 13 and if anyone is suspected of any offence under Clause 13, which deals with absentees and deserters, he can be brought in with that certificate. Why should there have to be a separate certificate saying that a man is a deserter or an absentee? Does the certificate have to say that he is alternatively a deserter or an absentee, or may be one or both? The whole thing seems to me, on the basis on which it is drafted, to be very unclear and to lead to the sort of undesirable argument which, while good for the legal profession, is not necessarily valuable in the administration of justice.

I hope that the right hon. and learned Gentleman will look at the question again and see whether there is any force in the various points which have been put forward. I should have thought that the point was entirely covered by paragraph (a) and that paragraph (b) merely adds considerably to the confusion without making anything clearer or giving any further powers.

Lieut.-Colonel Lipton

I should like to refresh the memory of the right hon. and learned Gentleman on a point which has relevance to the Amendment which we are discussing and the Amendment to which the right hon. and learned Gentleman directed our attention, which he will, presumably, be moving a little later. It is a point relating to political refugees. In connection with a previous Clause the Minister was good enough to say that he would consider the matter to see whether a further Amendment should be introduced on the Report stage.

I want to put this question to him in connection with the Amendment to which he has already directed our attention as affecting the Amendment moved by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). The Minister is to move, in page 13, line 23, to leave out from the beginning, to "of," in line 24, and to insert: sufficient evidence, unless the contrary is proved. If a deserter or absentee without leave claims to be a political refugee in what manner, or by which court, is that fact going to be established? How is the contrary to be proved by the person who is claiming to be a political refugee? Surely it will not be possible for him, and it would be highly undesirable, to attempt to argue that case before a court constituted or under the jurisdiction of the visiting force?

That would surely have to be decided in the courts of our own jurisdiction. This could not be a subject of legal argument in one or other of the extraterritorial jurisdictions that are being created by the Bill. I do not ask the Home Secretary to give a specific assurance on this point now beyond the following, that he will undertake to examine this point between now and the Report stage, subject to any further comments he may have now.

If he will undertake to consider this point it will help to remove what I imagine may be a difficulty in the kind of dispute or argument that may arise if and when the same man is described by the commanding officer of the visiting force as a deserter or absentee without leave, and at the same time making an application to the Home Secretary asking that he should be treated as a political refugee.

Sir D. Maxwell Fyfe

I will certainly consider the point which is cognate to the point I have already promised to consider. With regard to the general points which I have already promised to consider, I would ask those hon. Gentlemen interested to consider the importance of Section 154 (2) of the Army Act. I will gladly consider the matter before the Report stage.

Mr. S. Silverman

We gladly accept the assurance of the right hon. and learned Gentleman, and, in turn, I am sure that my hon. Friends will be equally prepared to consider what he has asked. In view of his assurance, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Sir D. Maxwell Fyfe

I beg to move, in page 13, line 23, to leave out from the beginning, to "of," in line 24, and to insert: sufficient evidence, unless the contrary is proved. If the Committee does not consider it discourteous, as I have already dealt with this point, perhaps they will allow me to move this Amendment formally. I have already asked them to consider paragraph (b) with the Amendment in.

Amendment agreed to.

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