Clause 111.—(CONFIRMING OFFICERS.) (Hansard, 17 February 1955)

§ Mr. Elwyn Jones
I wish to say a few words about the provisions in Clause 111 as to who is to confirm the finding and sentence of any court-martial. With great respect to the distinguished gentlemen who laboured so long and ably upon the Bill, I would say that it seems regrettable that they did not seek to separate the officer who convenes the court-martial from the officer who confirms the finding and sentence of the court.
A major criticism can be made of the administration of Army justice because the officer who convenes the court is the same officer who decides whether there shall be a prosecution, and that officer 639 is also the officer who ultimately confirms the finding and sentence of the court. Taking an analogy from the proceedings in civil courts, the same officer is Director of Public Prosecutions, judge and Court of Criminal Appeal all in one.
I appreciate that there are difficulties in the field in regard to these matters, and one wants to avoid a duplicity of functions and spreading the burden too widely as between one officer and another; but there is a very strong case for requiring that the officer who has power to confirm the finding and sentence of a court-martial should be an officer one rank higher than the officer who convenes the court.
At the present time an officer, whether a brigadier or of any other rank, first considers whether there shall be a court-martial at all. If he thinks that the case is a proper one, and requires the court-martial of the soldier or officer, he then decides to convene a court-martial. Then, the trial is held, and in the event of there being a conviction it is the same officer once more—the officer who had to take the preliminary decision as to whether there should be a trial, and who has committed himself to a decision on the earlier part of the proceedings—who has placed upon him the responsibility of deciding whether there should be a confirmation.
This fault in the machinery of military justice—or, at least, one's anxiety about its failings—has been corrected to a certain extent by the legislation which enables appeals to be taken, in certain cases, to the Court of Criminal Appeal—that certainly reassures one to some extent. Nevertheless, I feel that in this Bill the Army authorities—the same thing may well apply to the Air Force Bill, which we shall be discussing later—should have made an effort to separate the identity of the general officer responsible for convening from the general officer confirming. Therefore, I ask for further consideration to be given to my submission, which is a matter of substance and importance, before we reach the Report stage.

§ Mr. Head
The hon. and learned Member for West Ham, South (Mr. Elwyn Jones) said at the outset that he felt worried because the convening officer was at one and the same time initiating proceedings and also acting as judge of 640 appeal. I should like to make it quite clear that he is not judge of appeal. The duty of an officer is, as convening officer, to satisfy himself that there is a case. Then, as confirming officer, his job is purely to see that the proceedings themselves were in order and properly conducted.
The question of appeal, however, still remains for the man who has been court-martialled, who can appeal against those proceedings. In his job of convening the court, therefore, the officer does not turn himself into a judge of appeal. He merely sees that the proceedings themselves are in order.

§ Mr. Elwyn Jones
Surely, the officer confirming can first, if he thinks fit, quash the conviction. He has powers of supervision over the conviction. In addition, he undoubtedly has power to reduce or remit the sentence. In both of those duties he exercises a judicial function. I hope I am not thought to be splitting hairs, but this is an important matter.
The officer who convenes the court is, in fact, exercising appellate functions when he confirms a conviction—unless the procedure has changed considerably since 1942–45, when I had some contact with these matters. Therefore, when he performs both those functions, confirming the conviction and considering whether there should be any variation of the sentence, he is surely acting in an appellate capacity.

§ Mr. Head
The hon. and learned Member has made that point, but I repeat that the man who has been court-martialled has the power to appeal. Furthermore, the sentence is reviewed. I feel that the position of the individual who has been tried is perfectly safeguarded.
If this procedure, which has been operating for a considerable time—I think quite successfully—werechanged, it would in many cases lead to considerable delay. Very often, especially under conditions of active service, it may be that in a local area or garrison there is only one officer who is qualified for these court-martial duties. One thing that has been borne in upon me during my period as Secretary of State has been the paramount necessity and aim of avoiding undue delays where court-martial proceedings are concerned. In view of the 641 rights of appeal and the review of proceedings, I do not think that there is any danger of injustice being done to the man. A change of this kind, duplicating these two functions, would be likely to give rise to considerable delays.