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

§ Mr. Elwyn Jones
A similar point to that with which we are here concerned arose on the Army Bill. Clause 111 states that the confirming officer is, in effect, the officer who convenes the court-martial; and this does seem to indicate a serious difficulty in the administration of justice both in the Army and in the Royal Air Force. It really means that the same officer is at once the officer authorising the prosecution, convening the court, and examining the proceedings of the court in order to consider whether the conviction shall be quashed or not; and secondly, to consider if there should be any variation in the sentence.
So, in one and the same officer, we have, to use a civilian analogy, the Director of Public Prosecutions, the trial judge, and the Court of Criminal Appeal all combined. That is a trinity of duties providing a multiplicity of responsibilities and of loyalties. Let us not forget that loyalty is prominent here. How is the officer to be loyal to each of his three tasks; to each of the expectations that 733 these three functions require him to sustain? The temptation as convening officer is for him to sustain a conviction; the inclination is great on appeal to see if something can be done to mitigate the conviction, and it really does put the one officer into a most difficult position.
The answer which was given on behalf of the Army to this complaint was that it might be very difficult administratively, or in the field, to find reasonably accessible another officer to act as second officer for confirmation. I must admit that I am not familiar with the structure of the Royal Air Force, and I do not know if that argument would be valid in its case, but if it is, I hope it is a really valid objection; for if this gesture could be made, it would be an important assurance of the complete fairness of proceedings by way of Air Force courts-martial.
We have in recent years had the benefit of the provision of appeals to the Court of Criminal Appeal, and that is a very important change which has made this point, perhaps, not quite so important now as it was during the last war, when that privilege was not available. But as things stand I feel, with great respect to the distinguished colleagues of ours who were on the Select Committee, that it is a pity that the opportunity was not taken then to strike a blow in this way.
The difference between the Army and the Air Force structure of administering justice and the civil structure is considerable. In the civilian set-up there is the office of the Director of Public Prosecutions, which is under the Attorney-General, quite a separate body from the judges and quite separate from the Court of Criminal Appeal. There is a tendency in the Army and in the Air Force for all these things to be mingled up in some perplexing manner all together.
The soldier, sailor, or airman—or officer, for that matter—who comes into the hands of this curious machine is not always reassured that there is the necessary division of function between prosecution, trial, and the processes of appeal which he is accustomed to find in civil proceedings—a division of functions which manifestly ensures that justice is done and which goes to maintain that confidence of the ordinary citizen in the administration of justice in this country which is such an admirable feature of our lives.
734 I therefore ask that serious consideration should be given to this matter, and I hope that the Under-Secretary may be able to say that in this respect, at any rate, the Air Force will do better than the Army finds it is administratively able to do.

Mr. Ward
The first of the two points that arise is that there is a very real difficulty about units serving in out-of-the-way places or small detachments, where a good deal of delay would be caused if an officer of appropriate rank and standing had to be found when already the convening officer, of the right rank and standing, was present. Secondly, this procedure has been the practice ever since the Royal Air Force started in 1919, and there has never been any suggestion of abuse or cause of complaint. I really do not think that the point is a strong enough one to justify an alteration in the Bill.

§ Sir Patrick Spens (Kensington, South)
I should like to make these few remarks in view of the point taken by the hon. and learned Member for West Ham, South (Mr. Elwyn Jones). In both the Army and the Air Force procedure, unlike the civil procedure, there is the procedure for review. The review can be made by any officer superior to the confirming authority; it can be done at his own option, and it must be done if a petition is presented. Then, there is the procedure for appeal. I think, therefore, that a man is very well protected against any possible bias one way or the other by the confirming authority.

§ Mr. Hale
Surely, the right hon. and learned Member for Kensington, South (Sir P. Spens) has missed the point. As I understood it, the observations of my hon. and learned Friend the Member for West Ham, South (Mr. Elwyn Jones) were directed mainly to the question of the field general court-martial. If they were not, I would agree with the right hon. and learned Member for Kensington, South, because in two Clauses later in the Bill we have procedure for review in the sense of provision for confirmation.
I see no objection to that at all. In that respect military law is much better than civil law. Normally in the Army the confirming officer would be the brigade commander, who would have no interest in the matter except to set up a tribunal to investigate something that 735 had happened in his command. The sentence would go from brigade to division, to corps, to Army headquarters and to the War Office. It would be open for each authority to confirm and magnificently open for each authority to reduce the sentence, or indeed set it aside. But now we are dealing with this unusual conception of a field general court-martial.
This is a classical example of a case where, because something is unusual, we should not dismiss it. If the law is carefully administered a field general court-martial occurs very rarely. Only in circumstances and under the authority of certain officers of a certain rank, authorised by Clause 84 of the Bill, can they be held. The authorised officer must certify that it is not reasonable or practicable to deal with the matter by the ordinary process of court-martial.
Then we get the difficulty that, because that same officer set up the field general court-martial, there is no possibility of the matter being reconsidered above if an irrevocable sentence has been imposed. The field general court-martial has been held precisely because the military conditions are difficult and the situation of the unit so remote, and because of those same conditions there is no confirming officer available. I sincerely hope I am wrong, but I have not found anything in the Bill which suggests otherwise.
If this is so, we have an officer in a lonely spot who sets up a court-martial. He determines its constitution and can sit on it with other officers, and can then confirm the sentence when, because of the difficult military situation, there is no prospect of a review. If that be so, and I hope that I am wrong, clearly this is a matter for a little more consideration. It is, of course, difficult. The situation of a lonely unit is inevitably difficult and the necessity of taking urgent action may unfortunately be all the more urgent on that account.

§ Sir P. Spens
I think the sentence that would worry the hon. Member would be a sentence of death, and, if a sentence of death is confirmed by an officer below the rank of air vice-marshal, it … shall not be carried into effect unless approved by an officer not below the rank of air vice-marshal or by a naval or military 736 officer of corresponding rank, being a naval or military officer commanding the command in which the person under sentence was serving at the date of the sentence.

§ Mr. Hale
I am much obliged to the right hon. and learned Gentleman. I did not say that the only sentences that worried me were sentences of death, but I did speak of the carrying out of irrevocable sentences as a matter which loomed large in my mind. The reviewing and confirmation of sentence is a matter of great importance.
I should like to ask the Minister what happens when a sentence is passed by a field general court-martial and it is confirmed and then the situation is altered when the unit concerned comes into contact with headquarters again. Does the Bill provide for reconsideration automatically in those circumstances? I know that the Minister will say that there is always an inherent power in the Ministry to reconsider any sentence from time to time, but is there automatic power to consider it once the opportunity comes and the forces are reassembled?

Mr. Ward
As I understand it, it may do at any time by review. I do not want to be too dogmatic about it, but I would interpret those words as meaning when the unit came back into headquarters.