HC Deb 17 February 1955 vol 537 cc606-13
Mr. Elwyn Jones

I beg to move, in page 38, line 18, after "or," to insert "reasonably."

This is a new provision in the Bill. It relates to the power of arrest of a person subject to military law and suspected of having committed an offence. All that I desire to do by this Amendment, which I feel confident will receive the support of the Government, is to bring the words of this Clause into line with the traditional century-old association of "reasonably suspected," and to bring Clause 74 into harmony with the provisions of Clause 186. That deals with the power to arrest deserters and absentees without leave. The subsection says: A constable may arrest any person whom he has reasonable cause to suspect of being an officer, warrant officer, non-commissioned officer or soldier of the regular forces who has deserted or is absent without leave. Then in subsection (2) we find this: Where no constable is available, any officer, warrant officer, non-commissioned officer or soldier of the regular forces, or any other person, may arrest any person whom he has reasonable cause to suspect as aforesaid.

5.45 p.m.

The purpose of the insertion in Clause 74 of "reasonably suspected" is to make it quite clear that when a citizen of this country goes into the Army he still has rights. He is still free from arbitrary arrest, and I submit that the addition of the word "reasonably," although one of my hon. Friends on this side of the Committee may think it is a somewhat contemptible legal point, may not be one without significance.

Some of the great battles for liberty in this country have been fought around words like that, and I quite unashamedly move this Amendment because I do think it adds something, not a great deal, to the protection given to the soldier, and brings him into line with the civilian, and Clause 74 into line with the provisions of Clause 186.

The Solicitor-General

I think it might be for the convenience of the Committee if I said at once that we do not think that this is a contemptible point. In fact, we—in the other sense of "we" as Members of the Select Committee—discussed this matter and I remember the right hon. and learned Gentleman the Member for Rowley Regis and Tipton (Mr. A. Henderson) taking part in that discussion. We did not complete our consideration of the matter. Using "we" in the other sense, that of the Government, we think that the hon. and learned Gentleman is right, and we advise the Committee to accept the Amendment.

Amendment agreed to.

Mr. Elwyn Jones

I beg to move, in page 38, line 39, at the end, to add: (6) The substance of the offence shall be made known to the person arrested at the time when the arrest is made, unless the circumstances are such that the general nature of the offence must be known to such person at the time of arrest. Having achieved that vindication of the interests of justice, with the co-operation of the Solicitor-General, I hope he may regard this Amendment as merely consequential on that, although I cannot seriously argue that it is. But this is another endeavour to protect the soldier in the way that a civilian is protected. The more we instil into the minds of the Army authorities our idea that the soldier is a person with personal rights, and that he should be protected within the limits imposed by the necessities of discipline, and the more emphatically we assert that in this House and in this day and generation, the better it will be. The purpose of the Amendment is to bring military practice into line with civil practice.

In the Clause as it stands, there is no requirement upon those who put a soldier under arrest to notify him of the nature of the offence for which he has been arrested. That is a fault which was not in the old Army Act. I speak subject to correction on that. I do not think that the matter was dealt with at all in the old Army Act; I believe that the Act dealt only with persons charged, which, by the nature of the phrase, implies the notifying to the soldier of a charge and the nature of that charge.

It has been an ancient principle of this country that, as one of the judges has put it, a citizen is entitled to know on what charge or on suspicion of what crime he is seized. There is very good and abundant reason for that. Is not the right which the ordinary citizen has a right which we should give to the soldier as well? My hon. Friends and I are very conscious of the fact that in the Army there are restrictions on freedom. I do not want to overstate the point with which the Amendment is concerned, or its importance, but I believe it to be a point of some importance.

Only this week, the civil courts have emphasised the importance of correct behaviour on the part of the police authorities in regard to matters of this kind. Therefore, I submit that it is not unreasonable to impose upon the person arresting a soldier, whoever that person may be—he has, of course, to be an authorised person under the terms of the Statute—the duty of notifying the soldier at the time of the arrest of the general nature of the offence. He does not have to put it into technical language, but I submit that the soldier ought to be told as soon as possible the reason for his arrest.

It is true—I have had a discussion on this matter with one or two of my hon. Friends—that what is more important is that the soldier should be dealt with quickly, and should not be detained under arrest for an avoidably long period of time. However, that is a quite separate protection, albeit a more important one. It is equally important that, in accordance with the practice of the ordinary law relating to constables and the ordinary citizen, the soldier should be entitled to be told at the time of his arrest of the general nature of the offence, unless, of course, the soldier is actually caught red-handed, for which contingency my Amendment provides.

The Solicitor-General

I should be just as enthusiastic as the hon. and learned Gentleman for maintaining the rights of the soldier to be told, in primitive language, what he is being run in for, and I am sure it is correct that that right should exist, but I should not be prepared to accept his Amendment. I will tell him why. First, even if we do not put it into the Bill that the soldier has the same right he has nevertheless the same entitlement as the civilian to be told what are the facts alleged to constitute a crime on his part for which he is being arrested.

However, there are two difficulties about enacting it. One is that one cannot put into a short subsection a treatise on the law. The Amendment contains one of the obvious exceptions to the right to be told for what one is being arrested: … unless the circumstances are such that the general nature of the offence must be known to such person at the time of arrest. The trouble is that that is only one of the necessary exceptions, which are many.

I do not know whether I can illustrate that frivolously. I am sure that the hon. and learned Gentleman's experience in these matters is wide, like mine, and so I will choose a civilian example. I recall an instance concerning a very respectable dance club shortly after luncheon. Some people were alleged to have been squirting soda water syphons down the dance hostesses' dresses and kicking holes in a drum. When the police came on the spot, the people set about the police in fine style and then ran away. I believe I have all my illustrations in that example. No doubt the policeman, having to act rather quickly, would have a good choice of "substance of offence." He might say that it would be some kind of assault, some kind of malicious damage to property, just being drunk or disorderly, or some disorderly behaviour, but it is not particularly desirable to require him to state at the time the substance of the offence as opposed to the facts in respect of which the people are being run in.

There are other necessary exceptions. If one violently assaults the person who is arresting one and it is dealt with by counter-attacking, plainly, one cannot require the person doing the arresting to give the reason for arrest at the time of arrest, for it is usually not physically possible, the circumstances being too lively. The same principle applies if the person to be arrested runs away. In other words, if we were to put an express enactment of this kind into the Bill we should have to list a number of exceptions.

The hon. and learned Member quoted a judgment. He will probably remember the speech of the late Lord Simon in the well known case of Christie and Leachinsky, in which the noble Viscount was not himself prepared to list the exceptions, because there arc so many. That is difficulty No. 1.

Difficulty No. 2 is this. In the case of the constable, to leave to the common law the obligation to state the cause of arrest when he arrests without warrant, and at the same time to put a statutory enactment into the Army Bill, would inevitably have the consequence that it would be said either that by enacting words we were seeking to add something to the common law or that by enacting words we were seeking to derogate something from the common law. It seemed to us to be wiser to leave the soldier's rights in this respect as they are in common law and not to enact anything.

I would remind the Committee that there is a provision in Queen's Regulations as they now stand designed to reinforce the necessary protection of the soldier's rights. It is in Regulation 561 (d), which provides that the commander of the guard will, at the request of any person received into custody, inform him of the rank and name of the person preferring charges against him or ordering his arrest and give to him a copy of the charge report as soon as he himself receives it. I am sure that the hon. and learned Gentleman and the Committee will bear in mind the provisions of Clause 53, which the Committee has already accepted, which in the context carries the protection substantially further.

In these circumstances, I ask the Committee not to accept the Amendment, because I think it would be wiser in the interests of the maintenance of the soldier's rights not to do so.

Mr. Hector Hughes

I am sure that the Committee will be very disappointed at the speech to which we have just listened. At the outset the Solicitor-General agreed that the soldier has the elementary right to be told what he is being arrested for. Then he proceeded to give reasons for not putting that right into the Bill, and I submit that his reasons are inadequate.

The Solicitor-General first said that one cannot put into a Bill a treatise on the law. No one is asking that a treatise on the law should be put into the Bill. My hon. and learned Friend the Member for West Ham, South (Mr. Elwyn Jones) is asking that this elementary right shall be assured to the soldier in statutory form instead of being left at large under common law.

The Solicitor-General went on to cite an extreme case, that of a dance club where some people after lunch, and, no doubt, in an inebriated state, made a row and kicked holes in a drum. That is too obvious a case. I want to draw the Solicitor-General's attention to another kind of case. Let us suppose in that same dance club somebody has missed his overcoat, and some perfectly respectable soldier is arrested on that charge. Is that soldier not to have the right of being told why he is being arrested? Surely, if he is not told, that might lead to a breach of the peace.

If an ordinary man is arrested without knowing why he is being arrested, he is likely to resist arrest. As we all agree that that elementary right exists, I see no reason, from the Solicitor-General's speech, why this elementary right should not be enshrined in the Statute. It does not involve writing a treatise on the law.

6.0 p.m.

I agree with my hon. and learned Friend the Member for West Ham, South that this Amendment is not consequential on the previous Amendment, but it accords with natural law and with common sense. It is wrong that the person arrested should not be told why he is being arrested in 99 out of 100 cases. If he is not told, he might resist arrest and that might result in a breach of the peace.

I can see no reason why he should not be told, and I see no reason why that requirement should not be put into the Bill, instead of there being an argument as to what is the man's right in common law. I accordingly support the Amendment, and I hope that it will be accepted by the Committee.

Mr. Wigg

I very much hope that the Solicitor-General will not give way to the pleas of my hon. and learned Friends, because the Amendment would not strengthen the rights of the private soldier. The position seems to be misunderstood. If a soldier is placed on a charge, his greatest safeguard is that the matter will be investigated at the earliest possible moment by the commanding officer under the provisions of Queen's Regulations, which provide that charges shall be investigated without delay.

It might be possible, although it is very unlikely, that a commanding officer would behave in such a grossly improper fashion as to hold up the submission to a convening authority of an application for a summary of evidence. But here again the rights of the soldier are already adequately safeguarded, because if the soldier has been remanded for a summary of evidence—I am now speaking from memory—for more than eight days, that must become a matter of special report.

If my hon. and learned Friends are not satisfied with the present Regulations, they would be serving the interests of the private soldier much more adequately than they now are if they sought to strengthen Queen's Regulations, rather than rely on the Army Act. Again I would plead with them to remember that they are not dealing with lawyers. They are dealing with officers and soldiers of whom 99 per cent. are honest and honorable men, anxious to do their best—perhaps a smaller proportion are intelligent men—and they have to rely on the information which is available to them.

That information consists of the Manual of Military Law and its footnotes, and Queen's Regulations. Of the two, Queen's Regulations will be more readily understood by the investigating officers and by the soldiers concerned. I therefore plead with my hon. and learned Friends that, in the interests of the men whom they are seeking to assist, if they are not satisfied, they should approach the Government with a view to the amendment of the existing Regulations, rather than amendment of the Bill.

Mr. Elwyn Jones

In view of the observations of the Solicitor-General, I am disposed to take the view that he is quite right, if I may say so with respect, in saying that the Bill as it stands is sufficient in conjunction with the common law, from the protection of which, of course, the soldier is not deprived. The matter about which I felt anxiety is covered in general terms in Clause 53.

I was not entirely happy about that, which was the reason I put the Amendment on the Order Paper. But the reference to paragraph 561 (d) of Queen's Regulations is more impressive, and it comes pretty near to the point I had in mind. In those circumstances, not because I agree with the different view which my hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes) is taking about the rights of the soldier as against the rights of the military authority, but because I think that the rights of the soldier are adequately protected, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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

Clauses 75 and 76 ordered to stand part of the Bill.