Clause 12.—(DISOBEDIENCE OR THREATENING SUPERIOR OFFICER.) (Hansard, 2 May 1957)

§ Mr. W. Wells
I beg to move, in page 4, line 32, to leave out from "officer" to "or" in line 33.
The Clause deals with wilful disobedience of a lawful command of a superior officer, an offence which is punishable with dismissal with disgrace from Her Majesty's service or any less punishment authorised by this Act. which can include a term of imprisonment up to two years. The question posed by the Amendment is whether certain words shall or shall not remain in the Clause.
The words creating the offence are these: Every person subject to this Act who— (a) wilfully disobeys any lawful command of his superior officer, whether given or sent to him personally or not… The words to be left out are: whether given or sent to him personally or not. The connotation is that in the normal course of events, when a man is charged with wilful disobedience, the prosecution must clearly show that it was wilful disobedience to an order of which the recipient was conscious. If he was not conscious of the existence of the order he could not clearly have been wilful in his disobedience, but a man is presumed at law to intend the consequences of his acts, and, therefore, the word "wilful" does little more in this case than apply the presumption.
The words which by the Amendment we seek to leave out water down the burden that lies on the prosecution to establish the receipt of the order. If we leave the words out, the prosecution will have to prove that the order was communicated to the mind of the accused. If the order was sent to the accused's subordinate, the prosecution, of course, would inquire whether he transmitted the order. If he failed to transmit it, the prosecution would fall to the ground. if he transmitted the order, prosecution, other things being equal, would lie.
As I was saying, the conclusion of these words: whether given or sent to him personally or not 420 leaves it rather dangerously open, on one view of them, for the prosecution simply to rest content with establishing that an order was sent out. Whether it was sent to the right person and what steps were taken to communicate it to the mind of the intended recipient might become relevant. On another view of the matter, and it is probably the view that is intended, it simply states what is almost too obvious to require statement—that the fact that an order may be sent to a man in his official capacity rather than in his personal capacity, and that an order is sent to a man's office or ship or wherever it is rather than to the place where he is at the moment does not necessarily exempt him from responsibility.
It seems to us that these words are rather ambiguous and that the Clause stands perfectly well without them, and that they introduce a possibly dangerous ambiguity. When words are not necessary, it is always wiser to omit them. I hope that that is what the Committee will do with these words.

§ Sir P. Spens
This point was raised in the Select Committee on the Naval Discipline Act by my hon. and learned Friend the Joint Under-Secretary of State for the Home Department. He raised the question whether these words were sufficiently specific and he said: …I am wondering if the Admiralty could reconsider it from this point of view, whether it might not be drawn so widely at the moment that it is a question of sending but not of reception? The Judge Advocate of the Fleet commented: So that he could not wilfully disobey unless it reached him? My hon. and learned Friend replied: Yes. unless he knows about it. and the Judge Advocate of the Fleet replied: Yes, I think that is the answer. I have read all the Report and I do not think that that point ever entered again into our deliberations. Therefore, if there is ambiguity in the framing of the Bill, it is possibly a matter that ought to be reconsidered.

§ Mr. Soames
Perhaps there is some misunderstanding about this. We are all in agreement that we do not want the Bill to be drawn in such a way that a 421 man can be convicted if he has not received the order, and we also wish to be certain that there is no doubt left whatsoever that if it is transmitted to him, other than personally by the commanding officer, and he has received it and refused to obey it, that that should be punishable.
The reason for this addition is largely peculiar to the Navy. It is owing to the number of orders that are given over the broadcast system in the ships, where they are heard throughout the whole ship. Orders might be given either to the whole of the ship's company or part of the ship's company. They might emanate from the captain or one of his representatives, but could not be considered to have been given personally to an individual. It is to cover that, on the one hand, and, on the other hand, a message being sent by hand by the commanding officer or by word of mouth through a messenger from an officer to a subordinate, that these extra words are included. It was thought necessary to include them in order to remove any misconception that may have existed. I am advised that they put beyond all doubt what the situation is, and that it would be better for these words to remain in the Bill.

§ Mr. Wells
Does the hon. Gentleman concede that the mere fact that a multiplicity of orders are given increases the danger that an individual may miss a particular order? Does it not add to the necessity of having these words very tightly drawn? I might well be wrong, but I should have thought that without these words the Clause would be a perfectly good one and would achieve the Admiralty's purpose, with which I do not quarrel. It seems to me that if the matter cannot be solved now, at any rate we should have a look at them, particularly in view of the fact that the right hon. and learned Member for Kensington, South (Sir P. Spells) has pointed out that the matter was left in a rather unsatisfactory way in the Select Committee. I must take full responsibility for that, as I was a member of the Committee.
I hope, therefore, that the hon. Gentleman will be able to have another look at the words and to give an undertaking to do so before we reach the next stage Motion made, and Question proposed, of the Bill. That the Clause stand part of the Bill.

§ Mr. Soames
I will certainly give an undertaking to have a look at the words. We are all seeking the same thing. The only information that I have is what I have given to the Committee. I am advised at present that it is thought necessary to include the words, but I will certainly have a look at them before the Report stage.

§ Mr. Wells
To see whether other words can be found?

§ Mr. Soames
I thought that the object was to leave them out.

§ Mr. Wells
Yes, either to leave them out or find other words.

§ Vice-Admiral Hughes Hallett
These words do not appear in the Act which we are now amending. I should very much like to know whether, in practice, any prosecutions have failed on the ground that the order was transmitted by messenger or by loudspeaker.

§ Mr. Soames
I will certainly look into that.

§ Mr. Steele
I want to add to what has been said so that there shall be no confusion about the intention. We on this side of the Committee do not disagree with the intention as outlined by the Parliamentary Secretary, but we are doubtful about the form of words. We think that the words at the moment lend themselves to a much wider interpretation than the interpretation which the hon. Gentleman himself would like to see placed upon them. If the Parliamentary Secretary is prepared to look at them again we shall be quite happy.

§ Mr. Soames
I can assure the Committee that we do not seek a wider interpretation than the one I gave, which is that a superior officer sends a message by broadcast or by word of mouth or by hand and the man should be considered to have received it, if it is proved that he has, and that it counts as a lawful order which he must obey. We do not seek to go further. There is no mystery about it. If we can tidy the matter up before the Report stage we will have another look at the words.

§ Mr. Wells
On that undertaking, I beg to ask leave to withdraw the Amendment.

§ Mr. J. P. W. Mallalieu
Clause 12 (b) states that a person who uses threatening or insulting language to, or behaves with contempt to his superior officer… shall be liable to a certain penalty. I found in my short time in the Service that there was a pretty widespread belief, and certainly a widespread assertion, that when men were in action—and only when they were in action—it was the custom of the Service that one could swear at one's officers. Has that any real foundation in truth?

§ Mr. Soames
It is certainly not the intention of the Admiralty to write it into the Naval Discipline Bill.