Clause 3.—(RESTRICTION, AS RESPECTS CERTAIN OFFENCES, OF TRIAL BY UNITED KINGDOM COURTS OF OFFENDERS CONNECTED WITH VISITING FORCE.) (Hansard, 22 October 1952)

§ Mr. S. Silverman
I beg to move, in page 3, line 18, to leave out from "force," to "and," in line 19.
The words that would be left out are: or a member of a civilian component of such a force". I do not need to occupy the time of the Committee long on this matter because I covered some parts of it in the speech which I made on Clause 2. The Clause as a whole is the one that restricts the jurisdiction of our courts. The previous Clause gave jurisdiction to the service courts of the sending countries and this Clause correspondingly deprives our courts of jurisdiction in these cases.
I suggest that the jurisdiction of our courts might be excluded in the case of members of a visiting force or even of camp followers, but not in the case of members of an undefined civilian component of such a force. I do not know whether members of the Committee have had time in the intervals of the Committee stage to look at this evening's newspapers. I have here the "Evening Standard," and 1150 on the front page there appear these words: G.I. accused of killing three Britons in smash. British lawyer defends him. There is no objection to that.
Of course, I do not know if all that is true, but the allegation is that he drove a lorry at 55 miles an hour on a narrow road, collided with a car coming the other way, and killed all its occupants—three of them. He is now being tried for manslaughter, and I see he is to be adequately defended by a British lawyer on a charge of manslaughter.
I do not know, really, why in such a case a man should not be answerable to a British court. It is very difficult to understand why not, as British persons are giving evidence for the prosecution, and there may be persons giving evidence for the defence, too, when the turn of the defence comes, before an American court martial, and the witnesses, as distinct from the accused, are British citizens. There is nothing in the Bill to compel British citizens to give evidence in such circumstances before foreign courts. This may well not be done in many cases by reason of the reluctance of the relatives of the deceased persons, in matters arising out of these cases, decided in their own country not by their own laws and their own courts, but by foreign laws and by foreign courts.
But conceding, as one must do for the purposes of this Amendment, that it is right to do that in the case of a serving member of a foreign force, why in the world should we have to do it in the case of a civilian employed by the force? Why should not he, at least, be responsible in our courts for damage done in our territory contrary to our laws? Why is it necessary to clothe that man with this protection, and it is protection, otherwise it would not be demanded? Why should this protection be given, not merely to the members of the visiting forces, whom we have invited here, and to whom, therefore, we must give suitable facilities, but to all sorts of other persons?
I know that there is a definition Clause later—a Clause about "civilian components;" but it affords no kind of guidance to us. What it says is that if the sending country certifies on the passport that he is a member of a civilian component, and if some Department of ours—the Foreign Office or the Home Office? I do not know—agrees that it shall be so, 1151 then it shall be so. There is something in the agreement about it, but the agreement is not incorporated in the Bill.
I do ask the Home Secretary to think carefully before he rejects the Amendment. If we must deprive our courts of jurisdiction in the case of members of visiting forces that we have invited here, and designated in Clause 1, let us leave the matter there, and not go beyond that point. There is no reason why we should.
There is no real justification for doing that, and if there is any foreign country that demands it, let us be bold enough—and might one say, even at this day in this century, British enough?—to say, "You are asking too much. We will not give it you. If you do not like it, go away." If such facilities are granted, we ought to be certain we do not go beyond the strict and rigid limits that are necessary.

§ Mr. E. Fletcher
I should like to say a word in support of the Amendment moved by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). The inclusion of these words in Clause 3 is even more serious than their inclusion in Clause 2. I object, as my hon. Friend did, to their inclusion in Clause 2, which has the effect of giving these foreign service courts jurisdiction over the civilian component of such forces. I object to the exclusion of such persons from the jurisdiction of our courts, as the Bill is drafted and works out in practice.
We find, as my hon. Friend has pointed out, that there is reported in tonight's newspapers the case of an American soldier accused at a court martial of the manslaughter of a British subject and his two children. But there is no assurance within the framework of this Bill, as it now stands, that if an American soldier, or any other foreign service national, commits the offence of manslaughter for which he ought to be tried he will be tried for it at all. There is no guarantee about that.
Clause 2 gives the foreign service courts jurisdiction to try such offences but Clause 3 excludes the jurisdiction of our own courts. There is no certainty that such men will be brought to trial at all. Still less is there anything in the Bill which ensures that any such trial will be in public. It so happens that the court 1152 martial of which I spoke is being held in public and the Press are there, but there is nothing in Clause 3, or under the Bill, to ensure that if a foreign service court exercises the jurisdiction which Clause 2 gives it the trial will be held in public.
It might be held in camera under the French, Belgian or Dutch systems of law, which are totally different from our own. It might be held in circumstances which do not give the British public, or the relatives of British citizens killed or injured in that way, any satisfaction that there will be an inquiry at which they can be represented to elicit the truth of the matter. I regard that as one of the worst features of the Bill.
For that reason I support the Amendment, which will at any rate go some way to reducing that vice. It may be that a case can be made out for giving foreign courts-martial jurisdiction over the members of their forces, but why on earth should such jurisdiction be extended to a vague, indeterminate, indefinite body of civilian aliens who accompany such forces?
I hope that the Home Secretary will see the force of the argument that whereas foreign troops have to take part in manoeuvres and accidents may arise as a result, totally different circumstances obtain in the case of civilian components. Why should they be given the benefit of having their crimes tried by a foreign court, if tried at all? Why should the jurisdiction of our courts be ousted in those circumstances? I hope that the Home Secretary, in the further consideration he is going to give to this matter, will be able to accept the Amendment.

§ Mr. Paget
I would put the case for this Amendment a great deal more narrowly than either of my hon. Friends. I cannot see why it is necessary to restrict the jurisdiction of our courts to a much greater extent than is provided for in the agreement. The agreement provides for exclusive jurisdiction in only two cases.
Where the offence is an offence against the law of the sending country but not of the receiving country, then there is exclusive jurisdiction for the sending country. If, on the other hand, it is against the law of the receiving country and not of the sending country, then there is exclusive jurisdiction for the receiving country.
1153 But in all other cases there is concurrent jurisdiction, and in all the cases which are set out in Clause 3, which excludes the jurisdiction of the British courts altogether, the agreement provides that the jurisdiction shall be concurrent. It is quite true that the agreement provides that in these cases—although (a), (b) and (c) are a little wider than the agreement—broadly speaking the primary jurisdiction shall rest with the sending country. In those cases one probably has in mind America.
But why should we go beyond that and remove all jurisdiction from our courts save in the exceptional circumstances where the sending country notifies that it is not going to prosecute and the relevant official under subsection (3) gives his certificate, I cannot think.
I feel there may be a case for doing so in respect of actual members of the visiting services. We have had our attention drawn to a manslaughter case. I do not agree with my hon. Friends entirely on that. I feel that where a foreign soldier is driving on duty and that position arises it is better and more convenient for everybody if he is tried by his own courts, even if that involves British witnesses giving testimony in an American court martial.
Where it is a civilian merely attached to the American forces, or any other visiting forces, however, surely it is far more desirable that the trial then should take place in our own courts. I cannot believe that if a civilian driver, some chauffeur employed by the American forces, killed two or three British subjects and we approached the Americans and said, "This is the sort of case in which we feel we ought to try the man" the Americans would cause the slightest difficulty. But here we debar our courts from such jurisdiction.
So far as operating the agreement is concerned, there is no difficulty. In the ordinary case coming within this Clause the Attorney-General cannot start proceedings in our courts and leave the visiting forces to start proceedings in theirs. The matter can be dealt with perfectly well administratively and it seems quite gratuitous to go beyond the agreement and exclude jurisdiction.

§ The Attorney-General
I will, if I may, deal in order with the three different presentations of what is rather 1154 the same point. First, the hon. Member for Nelson and Colne (Mr. S. Silverman) is really objecting to the civilian component being included at all. All I can say about that is that the agreement quite clearly puts the civilian component—we are not discussing for the moment exactly what that means, that is another matter—upon the same basis as military personnel. After all, I cannot do more than accept the argument put forward by the hon. and learned Member for Northampton (Mr. Paget) just now. So far as the military personnel are concerned, unless we are going to repudiate the agreement, we must apply it to them.
10.45 p.m.
With great respect to the hon. Member for Nelson and Colne, I would say that that must be the answer, that the last Government entered into this agreement and we are loyally honouring their word. We cannot see any justification for any differentiation between the two cases. That is the broad point on why the civilian component should be included. The answer, briefly, is that the Government of this country has agreed that it should be.

§ Mr. S. Silverman
With great respect, I cannot quite follow the first part of that answer. I feel certain that if the hon. and learned Gentleman himself, when asked to advise on the agreement, had come to the conclusion that the agreement made by the previous Government was in any particular unjustifiable, he would have had no difficulty in reopening negotiations and legislating for a better arrangement.
It is no answer, on the first occasion which the House of Commons has had of looking at these matters, to say, "Never mind how right or how wrong it may be or how justifiable or unjustifiable, you, the previous Government, did it, and therefore everyone is bound." If he wants to defend the agreement on its merits, that is one thing, but he cannot defend or justify it on the ground that someone else did it.

§ The Attorney-General
If the hon. Member had been kind enough to wait, I was about to say that that was the first reason and I think it is a good one.

§ Mr. Silverman
It is a very bad one.

§ The Attorney-General
I cannot agree with the hon. Gentleman. In a matter 1155 of this kind I feel I have solid support from the right hon. Gentleman I see opposite me at the present moment.

§ Mr. Ede
I stand by what I did, but the right hon. and learned Gentleman has to satisfy his own conscience, and mine is far too weak a conscience for him to rely on.

§ The Attorney-General
I will say no more about the first reason, which I think a lot of people will regard as a good one, but I do not agree that this is not a perfectly justifiable provision. In the case of our own Army Act we make a definite provision and provide for the application of military law to people who are not strictly military personnel.
We know that visiting forces, including our own, are likely to have people with them who are not citizens of the receiving country. They are for all practical purposes a part of the visiting forces. In those circumstances it does not seem in the least unreasonable that they should be covered.
As regards their content, I do not think it would be in order to say more than a word about that. The view we have taken so far, which I would commend to the Committee, is that if the Home Secretary is the person who decides, we shall be very safe there.
The hon. Member for Islington, East (Mr. E. Fletcher), while he did not object to the whole provision, was more specific and made the objection that there was no provision for public trial. I think we have to leave that to diplomatic means. We know what the present powers are and we have no reason to suppose that they will not continue.
If there is any reason to suppose that there is some hole-in-the-corner business going on, there are means of dealing with the situation; and, in fact, the situation is already being dealt with for, although it is entirely irrelevant to the Clause, the hon. Gentleman read from an evening paper the story about a trial. It is therefore difficult to understand why he should be apprehensive.

§ Mr. E. Fletcher
Is the hon. and learned Gentleman saying that courts martial of all N.A.T.O. countries are held in public?

§ The Attorney-General
I am saying that I find it difficult to believe that any 1156 other country would not hold a court martial in public in this country—at any rate, more than once. I think we ought to be more realistic about these things.
The hon. and learned Member for Northampton (Mr. Paget), who said he was putting a much more narrow point, discussed the actual application of these provisions and, as this is a subject which we must all understand clearly, I hope the Committee will forgive me if I remind them how the thing works. If there is concurrent jurisdiction, the agreement lays down quite clearly what is to happen.
In the first place, whether we are dealing with a member of the forces or of a civilian component, under paragraph 3 of article VII of the agreement, The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component … This is what paragraph 3 (c) says: If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. That is the duty under the Agreement, and if the State did not so notify, a breach of the international agreement would be committed.
There is the further provision that The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance. That covers the case where, for some reason or another, our Government consider that it ought to be regarded as a case where there should be a waiver of jurisdiction and that our courts should be allowed to try the case.
We are relying upon good will and co-operation between the authorities, and if there should be a case in which some very great public feeling is aroused, there is no reason at all why our authorities, who are in close touch with the visiting authorities, should not urge them to allow us to exercise jurisdiction. If we are to work together, if we are to have visiting forces in this country, we must rely upon close co-operation, and therefore we have this flexible arrangement.
It is not right to suggest that we ought to contemplate cases in which the visiting forces will claim jurisdiction and 1157 then do nothing. One could create all sorts of cases; one could say, for instance, "What will happen if, as soon as the offence took place, they put the man in an aeroplane and sent him back to America?" We must assume that they will not do things like that, otherwise it is no good entering into international agreements. I ask hon. Members to bear that in mind when considering this question; we must assume that people will behave in a reasonable way.
Finally, may I remind the Committee that this provision does not apply only one way round. It also applies in our own case. A great deal has been said about what the public would like and would not like in this country, but may I remind hon. Members that the public would like to know that the Government have taken care to look after our own men when they go into other countries?

§ Mr. Strachey
Is there to be reciprocity on this? If there is, the hon. and learned Gentleman's argument applies, but only if there is reciprocity.

§ The Attorney-General
There is no reason to obtain reciprocity unless it is provided for here.

§ Mr. Paget
If the Attorney-General will forgive me saying so, he has not dealt with the primary point which I made. That is, that since the agreement provides for concurrent jurisdiction, why should we exclude our jurisdiction by this Clause. By purely administrative methods we can give the primary right to try to the visiting forces. I find it hard to see why we should go further than the agreement and exclude the jurisdiction of our courts altogether.

§ The Attorney-General
I am sorry. I am afraid I stopped short at that point. I thought it was not necessary to go further with the explanation. In comparing the agreement and the Clause, I ought to have added that, just as I said in the case of the agreement that there is provision for waiver, so if one looks at Clause 3 and turns to page 4 it will be found that in a case where, under paragraph 3 of Article VII of the agreement, the State having the primary right decides not to exercise jurisdiction and so notifies the authority of the other State, then under Clause 3 (3) of the Bill there is provision that if the appropriate authority of the sending country notifies the Director of 1158 Public Prosecutions, the Lord Advocate, or the Attorney-General of Northern Ireland then matters may be dealt with in the courts in this country.
With great respect, I thought that provided for the point once one accepts the proposition that where there is primary jurisdiction and there is to be a primary and secondary right, the primary right is within the discretion of the sending force, and it is its duty to notify if it is not intending to exercise jurisdiction.

§ Mr. E. Fletcher
I beg to move, in page 3, to leave out lines 20 to 22.
This Amendment is designed to leave out subsection (1, a). On this occasion I want to make a quite narrow but important point. The Amendment is designed to eliminate from the Clause ousting the jurisdiction of the British courts offences committed by foreign service personnel in the course of their duties. The effect of Clause 3 is to oust the jurisdiction of the British courts where the offence is committed against foreign personnel, and where the offence is committed against the property of a foreign State.
I can see a considerable amount of force in the argument that where an offence is committed against a member of a foreign force in this country, or against the property of a foreign force, it may be well that in those cases the foreign service court should have jurisdiction. But the case is totally different where the offence is committed not against a foreigner or his country but against a British subject. It is that class of case which is really causing the greatest concern among those who are troubled about this Bill.
Therefore, I should like to exclude from Clause 3 any offence committed against a British subject, even though it is committed in the course of duty by a member of a foreign force. The only possible justification that the Home Secretary can have for putting that provision of the Clause in the Bill is that it was covered by the agreement. It goes very much further than the agreement, and in a very relevant particular.
11.0 p.m.
In the agreement, article VII, para. 3 contains these relevant words: Offences arising out of any act or omission done in performance of official duty. 1159 I would not mind that so much—although I would not be very happy with it—but why must the Government on every conceivable occasion try and extend the language of this agreement to the detriment of British subjects? Why must they enlarge the ambit of these words to the much wider form of words where an offence is committed in the course of duty as a member of that force? Let me give an example. Take rape, for example, by a foreign soldier against a British girl. If one looks at the language of the agreement, nobody could possibly suggest that the offence of rape arose out of an act done in performance of official duty. But in the Bill there is reference to offences "committed in the course of duty." The Home Secretary demurs. Could it not be argued that rape was committed in the course of duty?

§ Sir D. Maxwell-Fyfe
There has been a Workmen's Compensation Act since 1897, and I think this phrase was used in it. Is the hon. Gentleman really arguing that someone who committed rape could say that he was acting in the course of his employment under the Workmen's Compensation Act? I wish he would develop it; it is the most interesting argument I have heard for years.

§ Mr. E. Fletcher
Surely the Home Secretary has read the debate which took place in another place? The matter was argued there at great length by Lord Jowitt in C. 468 of the OFFICIAL REPORT of another place. Lord Jowitt said, For instance, we all remember the case many years ago of the shocking incident at the Horse Guards at Whitehall where two girls were taken in, went in, or were lured in—"—

The Deputy-Chairman
Is the hon. Gentleman quoting from a debate in another place?

§ Mr. E. Fletcher
I was.

The Deputy-Chairman
Then that is out of order.

§ Mr. E. Fletcher
I have done so before in accordance with a direct Ruling from one of your predecessors, Mr. Hopkin Morris, but I will not quote the exact words. I will content myself by repeating that a very distinguished member of another place, an ex-Lord Chancellor, 1160 having given this instance, went on to say it could well be argued that that offence arose in the course of duty because the accused were on duty at the time. Therefore, their offence could under this Bill be triable and only triable by an American court martial. Is that desirable?
Let no one think this argument is far-fetched. I would refer the Home Secretary and other hon. Members to what was said by another distinguished Lord in another place—Viscount Bridgeman—in c. 472 of the OFFICIAL REPORT of another place. Hon. Members who are interested can look it up. He did not think it was at all a far-fetched argument.
So far as I can judge from the arguments on which this Bill was based in another place, it was recognised that one of the consequences likely to flow was that under this Bill an English girl ravaged by an American or other foreign service man in this country might find that she had no chance of bringing the man to justice in a British court, but would have to have that case tried before an American or other foreign court martial.
Is that desirable? Is it desirable that it should even be possible? But it is possible. No one can imagine it desirable that a victim should in those circumstances be deprived of the right that she is clearly entitled to, of having the case tried by a British court.
Therefore, in all seriousness, I would ask the Home Secretary why it is considered necessary to have any doubt about the matter. Why should he not confine himself to the textual words of the agreement, which cannot give rise to doubt? Why use phraseology which is vaguer and wider, and which can give rise to doubt of that kind?

§ Mr. S. Silverman
I only wish to say one word because of the intervention of the Home Secretary, who seems to have remembered one half of a Clause in the Workmen's Compensation Act, and forgotten the other half. There are two things necessary—not one. The first is that it arises in the course of duty, and the other that it arises out of duty.
My hon. Friend the Member for Islington, East (Mr. Fletcher) says both these requirements should be present if we are to exclude the jurisdiction of the British courts whereas under this Clause only one of them is necessary. There is 1161 nothing laughable—there is nothing very amusing if the offence of rape is committed against one of our citizens by anyone, and it does not render it any more amusing if it is committed by a member of a foreign army. There is no reason why we should be amused. These things do occur, and when they do, they are not funny.
It is perfectly possible that such a thing might very well happen in the course of a man's duty, and if it did, then clearly it would not arise out of his duty. But what my hon. Friend is saying—and I think saying with overwhelming force—is that in offences which arise perhaps in the course of duty and do not arise in any conceivable sense out of that duty, there is no case for the exclusion of the jurisdiction of our courts.

§ Mr. M. Stewart
This is, I think, the only part of the Bill in which the power of the British courts to deal with the offence is set aside where the person suffering from the offence is a British subject. I think that we are all prepared to see the point of giving the visiting forces jurisdiction where the offence complained of entirely concerns them.
Apart from the kind of offence referred to by my hon. Friend the Member for Islington, East (Mr. E. Fletcher) I must ask the Attorney-General if he will consider the kind of situation to which I referred in the few remarks I made on the Second Reading of the Bill. Suppose a situation arises in which a number of ill-advised people throw stones at a building occupied by a visiting force, and the commander of the force orders the men under his command to move those people away, and they go out and perhaps carry out those orders recklessly and imprudently, and British subjects are injured and possibly killed.
I am not a lawyer, but in that case I should have thought that beyond any doubt it would be assumed that that offence was committed in the course of duty, and there would arise the very difficult question that sometimes arises about the acts of our own soldiers in Germany, whether a man was doing strictly what his duty required him to do, or whether he had acted recklessly or even maliciously far beyond what his duties required. It might create a very unpleasant situation between the United States and ourselves if something like that 1162 were to happen and the American soldiers in question could not be brought before any British court.
I can see one reason for making such an arrangement: that already suggested by the learned Attorney-General, and that is that if we concede this to visiting forces here we can claim it for our own soldiers abroad. In certain circumstances and in some countries I would be happier to see those of our men who are charged with offences tried by British courts-martial rather than by the civilian courts of those countries.
It may be felt that by giving this concession we are buying something of value. If that is the argument I can understand it up to a point. I should like to know, however, if there is any other argument for this exclusion from British courts in regard to the trial of persons who have injured or killed British subjects. Is there any reason, other than reciprocity, to justify this arrangement?
As a layman among lawyers I should like to know what would be the position under this Clause if a member of a visiting force, possibly when in uniform but clearly off duty and in his free time in the evening—so far as a soldier can be said to have free time—becomes engaged in a brawl with a British subject, perhaps in a public house, and strikes and injures him. Would such an offence be dealt with in British courts or would the jurisdiction of British courts in such a case be excluded by the working of this Clause? I should imagine that the Clause means that such an offence would be triable in a British court but I should like to be reassured on that point.

§ Sir D. Maxwell Fyfe
I have great pleasure in reassuring the hon. Gentleman to the extent of my own view. I cannot imagine that the view could be taken that the incident of the brawl in the public house would be in the course of duty. I am sorry if I gave a wrong impression to the hon. Member for Nelson and Colne (Mr. S. Silverman) earlier. It was not the offence which gave rise to any amusement: I realise the seriousness of it.
It was rather the curious juxtaposition—which I think struck us all—of duty and rape, and I am sure that the hon. Member will not misunderstand what I said. The point that I had in mind was the kind of cases with which 1163 he is very familiar, in which it is not only a question of "arising out of" his duty, but of whether a workman has been held to step out of the course of his duty by committing acts of an extraordinary character.
11.15 p.m.
We must go back to the more fundamental points to deal with the series of arguments which the hon. Member for Islington, East (Mr. E. Fletcher) has put before the Committee. The first point—which, of course, he recognises—is that we have to give effect to article VII (3) and to the words to which he has referred the Committee, namely, offences arising out of any act or omission done in pursuance of official duty". I have considered the point which he put, which is that the words arising out of any act or omission done in the performance of official duty. are less wide than in the course of duty as a member of that force. I must confess I am totally unable to appreciate his argument, or its basis.
I must say in fairness to the argument that it had not occurred to me before he put it that it could be suggested. I will willingly look at it again, but I am afraid I should not be honest with the Committee if I did not give my present reaction, which is that, having heard his argument develop, I cannot see how it arises. However, I will willingly have a look at that point.
Then I think one ought to deal for a short time with "duty"—assuming now that the phrases are the same and we want to give effect to the agreement, which most of us do. Is it a good criterion? Should we adopt it as a criterion or not? That is a point we have to put to ourselves. I respectfully put it to the Committee that it is a good criterion.
I do not know if the hon. Member for Fulham, East (Mr. M. Stewart) would bear me out from his experience at the War Office, but speaking from my own personal experience and not from figures, I should have said that of the thousands of court martial proceedings which I have seen the vast majority concerned true Army Act offences. I think that is a correct recollection. That is 1164 not to say there are not other offences but in selecting one's criterion one should establish the main category and the great majority would be true Army Act offences.
Then, when one considers what is the test that springs to one's mind from the point of view of the obligation and work of the officer commanding the forces, he is responsible for the general good behaviour and the state of his troops, but his primary responsibility is the way his troops behave and carry out their work when on duty, and the discipline maintained there. I ask hon. Gentlemen tonight, or before we receive this Bill again, to consider whether they can really envisage an alternative criterion.
I think that the hon. Gentleman the Member for Islington, East really admits that criterion. He would have liked to have made some inroads into it, but we have to take into account the other safeguards which arise in the Bill. Therefore, I do commend to the Committee the conception which was introduced and agreed to by our predecessors in office, of duty being taken as the test. I commend that, as I say, because I find it very difficult to find objections to it as a test, or to find a true alternative.

§ Mr. Ede
I cannot help thinking that the intervention of the right hon. and learned Gentleman in the speech of my hon. Friend the Member for Islington, East (Mr. E. Fletcher) really does point to the way in which this matter could be solved. Surely we want both the considerations which are contained in the workmen's compensation provisions, stipulating not merely in the course of duty but arising out of duty.
My hon. Friend quoted the incident at the Horse Guards, but anyone who has ever mounted guard or been a sentry or has been appointed to look after a door that has been newly painted or to some other of the very high military duties that fall to the lower ranks, must know the problem that confronts him when a number of rather stupid females of all ages hang around and pass comments on his personal appearance and the way in which he walks from point to point and the way in which he stands at ease, and compare him with the Guards or some other people whom he, being a mere infantryman of the line, regards with the utmost contempt.
1165 He knows the difficulty that confronts him and the way in which one thing leads to another. I will be quite frank. I have been a sergeant of the guard and I have been a sentry. This is not the confessional, but I have seen things happen—unknown to the officer of the guard.
Let us be quite certain of this. The right hon. and learned Gentleman talks very learnedly about the officer and his position, but it is the non-commissioned officer, the lance-corporal without pay and people like that, who are confronted sometimes with very difficult situations of the kind I have indicated, and with things which happen in the course of duty that do not arise out of duty.
That is the kind of thing with which my hon. Friends are concerned, and I think that, within the terms of the agreement, it ought to be possible to apply the criterion the right hon. and learned Gentleman wanted to apply in the middle of my hon. Friend's speech. I acquit him entirely of trying to make fun out of an offence, but in his suggestion he did raise a perfectly good point and it does indicate a way in which a solution may be found.
It would not really justify their being taken out of the jurisdiction of our courts, merely because a fellow says, "I was on duty at the time," because, after all, if he happens to be on active service it is astonishing how often he can be on duty when the military police want to "crime" him. I say that as one who has been a military policeman in his time. I suggest to the right hon. and learned Gentleman that it is a practical point which deals with the kind of thing that can cause the utmost ill-feeling towards troops who happen to be stationed in a district, whether they are British or alien, when they do something which offends the general propriety of that district.

§ Sir D. Maxwell Fyfe
I shall willingly have a look at the words in the agreement and the words we have used, and consider the problem that has been raised.

§ Mr. E. Fletcher
On that assurance, confident as I am, knowing the right hon. and learned Gentleman, that he will look into the matter, particularly in view of what my right hon. Friend has said; and 1166 being conscious that this is a real problem which may affect a great many people, and knowing that he does not want to go one whit beyond what the agreement requires him to, I will, expressing gratitude for the assurance, ask leave to withdraw the Amendment.

§ Mr. S. Silverman
I beg to move, in page 3, line 26, to leave out "had" and to insert "was."
This is a refinement of the same point. We begin by exempting from the jurisdiction of our own courts members of visiting forces. That having been done we go on to exempt the camp followers of such forces. Not content, we go a stage further, and include civilian component units attached to such forces. But in case there should, by some oversight, be anyone left out of the net and within the jurisdiction of our courts, we now have another class of person exempted.
Not merely need one not be a member, camp follower or member of a civilian component unit, but if one has any relevant association with the visiting forces then the jurisdiction of our courts is ousted. I should have thought that there is some limit to the extent to which we are prepared to oust our own jurisdiction for offences committed on our own territory. I do not know what "relevant association" is. Relevancy is usually defined as something that is associated with something else.
I am not sure that the words "relevant association" are not redundant. If it is relevant it is an association, and if it is an association it is relevant. It must mean somebody not covered by the previous definition; it is not someone who is a member, camp follower or member of a civilian component unit, but is someone else provided he is in some sort of contact. What sort of contact? What is the degree of association, because in some remote sense we all have some association with the visiting forces.
If we are to stick to the principle of not doing more than is actually required to give effect to the defence arrangements, out of which, and out of which alone, there arises any cause for the Bill, if there is to be any limit at all, I suggest that this category of persons in "relevant association" with the forces is a category which we might well keep 1167 within the jurisdiction of our own courts, if only out of mercy for our judges by giving them something to deal with.

§ The Attorney-General
I wonder if the hon. Member has considered the definition Clause, Clause 12? It says, in subsection (2): References in this Part of this Act to a person's having at any time a relevant association with a visiting force are references to his being at that time a person of one or other of the following descriptions, that is to say,—

(a) a member of that visiting force or a member of a civilian component of that force;

(b) a person, not being a citizen of the United Kingdom and Colonies or ordinarily resident in the United Kingdom, but being a dependant of a member of that visiting force or of a civilian component of that force."

I very much hesitate to say so, but I believe that on this occasion the hon. Member may have missed something. The object of that is to prevent it being necessary to set out about 10 lines of print every time the expression "relevant association" appears in the Bill.

§ Mr. Silverman
I am very much obliged, but I do not think that is correct. Members of visiting forces are already covered and so are civilian components. So, if we are to understand by "relevant association" only Clause 12 (2) we are left with dependents, and "relevant association" only means "dependent." What we are doing is to exempt not only forces, components and camp followers, but wives and children. Why in the world should we?

§ The Attorney-General
I am sorry, I am afraid both of us have not got it right because the object of Clause 12 is that "relevant association" includes all those. Therefore, when we use "relevant association" in another place it means to say we are covering not only members of the forces or components but also any person not being a citizen of the United Kingdom and so on.
I may be wrong, but if I may say it first, the hon. Member may explain where I am wrong. One has to go back some thousands of years to the story we may remember hearing with the reference to sackbut, psaltry, dulcimer and all kinds of musick. 1168 A lot of others were mentioned. We remember sometime in our youth that being rendered as "Band as before." Instead of having to say what is meant every time we use this phrase, if we say "relevant association" and then look at the definition we find what it means.

§ Mr. Silverman
Without replying to the argument, I think I have made clear the point I want to make about that part of it.
What is clear now that the hon. and learned Gentleman has directed our attention to the definition Clause, is that whatever else "relevant association" means it includes the dependents of the members of visiting forces and of the members of the component civilian units. So, unless we adopt the Amendment I am proposing, not only will all the men be exempt from the jurisdiction of our courts but so also their wives and their children.
Why is it necessary to do that? The hon. and learned Gentleman has very lucidly drawn my attention to a great many definitions. He said nothing in justification of including wives within the exclusion from the jurisdiction of our courts.

§ The Attorney-General
I think again, although I am not quite sure, that the hon. Member has missed the target. Clause 3 (1, b) refers to the person against whom the offence has been alleged to have been committed and not to the person who committed it.

§ Mr. Silverman
I do not see why. What we are doing is to specify this class of person, namely the wives of persons who are already here, and say that if offences are committed against them then that is something with which our courts shall not be concerned. Again, I ask why?

§ The Attorney-General
It is true that what we are dealing with here is the kind of case where an offence is committed by a member of a visiting force against one of the other members of the force or against one of his dependents. It is in the agreement that if an American soldier, for example, is involved in some unfortunate matter in his married quarters, he should be tried by an American court and not by ours. I think there is a good deal to be said for that.

§ Mr. S. Silverman
I beg to move, in page 3, line 35, to leave out from "country," to the end of line 36.
In view of the decision which the Committee has already reached, I do not want to take up further time on this point I want to leave out the words or of a person having such an association as aforesaid. I want to limit the exclusion of our jurisdiction to the other class and to leave out the reference to relevant association.

§ The Attorney-General
I do not think I can add anything to the discussion we have already had on this subject.

§ Mr. E. Fletcher
I beg to move, in page 4, line 5, after "country," to insert: or where within one month after the commission of the offence no proceedings to deal with the case under the law of the sending country have been commenced. This Amendment is vital if justice is to be done. It is designed to secure that any crimes committed in this country whether by a member of the visiting service forces or not, are brought to justice. Here again my chief complaint is that the Bill goes much further than the agreement requires the Government to go.
The Agreement provides that in certain cases the American courts martial have exclusive jurisdiction, necessarily so where it is a matter affecting military discipline. Then there are cases in which, according to the Bill, there is concurrent jurisdiction between the American service courts and our own British courts. That is what the Bill says. In article VII, paragraph 3, of the agreement, it is stated: In cases where the right to exercise jurisdiction is concurrent the following rules shall apply:— Then it says that the proper military authorities of the sending State shall have the primary right to exercise jurisdiction in certain cases where there is an offence against the person or property of the foreign army, or where the person involved commits an offence in the course of his duty. In other cases even though the offence is committed by members of the foreign army our own courts have the primary right.
After the reference to concurrent jurisdiction and the statement that one tribunal should have the primary right, 1170 one would have expected to find that, if the tribunal which has the primary right fails to exercise that right, then the other tribunal which has concurrent jurisdiction could exercise that jurisdiction. Unhappily, there is no such provision in the Bill. What we find in the Bill is a different framework.
Clause 3 provides that the jurisdiction of the British court is ousted in all cases where, under the agreement, a foreign service court has the primary jurisdiction. There is then a provision that the foreign military authorities can, if they wish, waive their primary jurisdiction. There is also a provision that in certain cases the British court shall have jurisdiction if the Director of Public Prosecutions certifies that the foreign court does not propose to deal with the case.
This Amendment is designed to ensure that, where a crime is committed, at least one court—and only one—in the case of every crime shall bring the offender to justice; and I should have thought that that was not asking too much. Clause 2 confers jurisdiction on the foreign courts. Clause 3 ousts the jurisdiction of the British courts. There is nothing in the Bill—nor could there be—to compel the foreign tribunal to try a case.
What I am anxious to secure is that if the foreign tribunal fails to bring an offender to justice and fails to waive its right to do so, then that offence shall be tried and heard and determined in a British court. I am anxious to secure that for two reasons—both in order that the interests of justice may be served and the offenders brought to trial and in order that those more intimately affected—the victims—may have the satisfaction of seeing that justice is done.
That is the short and simple purpose which this Amendment seeks to achieve, and I think it will be conceded that unless there is such a provision in the Bill, there will be no guarantee that offences committed by members of foreign forces are in every case brought to trial. I believe it may well be that this is a casus omissus from the agreement. If so, it is all the more necessary that it should be dealt with, and, moreover, as the Home Secretary and the Attorney-General already appreciate, there is nothing in the agreement which is inconsistent with my Amendment.
1171 They will also accept the view that the phraseology in the agreement, particularly in article VII, paragraph 3 (c), is highly ambiguous. It says, If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. They may waive their jurisdiction. But I am concerned with the case in which they do not. They may want to make inquiries and to report to their own Government; there may be a number of circumstances which make it either impossible or undesirable for them to reach a conclusion about whether they will try the man.
The agreement provides that the authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State to waive this right, but, of course, there is no obligation upon them to waive it, and therefore it is not inconceivable that there will be circumstances in which an offence, perhaps a serious offence involving loss of life or injury to British subjects, goes untried or there is considerable delay before any trial takes place.
11.45 p.m.
Therefore my Amendment is designed to provide in such a case that if no proceedings have been brought to deal with the case under the law of the sending country within a month, our own courts shall be entitled to hear and determine the case. I suggest a month because that seems to be a reasonable interval between commission of the offence and initiation of proceedings.
I do not rigidly adhere to a month; the period could be six weeks or two months. I am only concerned to secure that after a court of primary jurisdiction has had a reasonable opportunity to try the case or to waive jurisdiction, if it declines to do one or the other, the British courts shall have jurisdiction to deal with the offence.

§ The Attorney-General
I should like to deal with this point explicitly. One has to bear in mind that under the agreement there is a definite obligation undertaken by both parties to the agreement to notify the authorities of the other party as soon as practicable if the party which 1172 has primary jurisdiction decides not to exercise jurisdiction. In proceeding to enact legislation to enable us to ratify this agreement we must assume that the States concerned will behave in a proper and reasonable way. If we are going to consider the possibilities from the point of view suggested we must apply the principle of the pound of flesh.
With the greatest respect, the Amendment would be entirely nugatory if people are going to behave in that way, because it says, where no proceedings to deal with the case … have been commenced. All that would be necessary would be for them to begin proceedings technically and not to pursue them and the whole thing becomes nugatory. I do not take that example because I suggest they would do that; but if it is to be assumed that people are not going to comply with their obligations one is entitled to test the matter in that way.
Let us look at the matter the other way round. We have our forces in a distant country. Is it really desirable that we should make provision that if within a month a matter is not dealt with the other country is to have jurisdiction? I am not prepared to agree to anything of that kind.
This is a matter, as we see it, in which it will be necessary to have consultation and friendly arrangements with the authorities of the visiting forces. I would remind the Committee of what I have said, namely, that if we are to have visiting forces in this country we must be able to rely upon their behaving reasonably. I have little doubt that we shall be able to do so.
When we come to make arrangements with individual countries there are a number of points which we shall have to discuss and settle. I would hope that we shall be able to arrive at some arrangement with them for some kind of time limit. Under this Amendment, or any similar Amendment, it would be simple for a visiting force to take some technical step to defeat its object. It would be better to leave the matter to the good sense of those concerned.

§ Mr. Paget
I wish to draw attention to subsection (4), which states: In relation to cases where the charge (by whatever words expressed) is a charge of attempting or conspiring to commit an offence, or of aiding, abetting, procuring or being accessory to, or of being art and part in, the commission of an offence, paragraphs (b) and (c) of subsection (1) of this section shall have effect as if references in those paragraphs to the alleged offence were references to the offence which the person charged is alleged to have attempted or conspired to commit or, as the case maybe, the offence as respects which it is alleged that he aided, abetted, procured or was accessory to, or was art and part in, the commission thereof, and references in those paragraphs to persons in relation to whom, or property in relation to which, the offence is alleged to have been committed shall be construed accordingly. This subsection Clause beats all limits for unintelligibility. Is there not some limit in the drafting of enactments?

§ The Attorney-General
I should have thought that, although accusations are sometimes made with some degree of fairness against those who have to draft these very difficult provisions in a great hurry, this was a case where there is no difficulty in understanding what it means, except in one respect. I have this sympathy with the hon. and learned Gentleman. He and I suffer from the same trouble in this case. The expression "art and part in" is entirely new to me, because of my ignorance of Scottish law, where, I am told, it is commonplace. If that is the trouble, I hope he will withdraw his objection.