§ Mr. Elwyn Jones (West Ham, South)
I beg to move, in page 22, line 36, at the end to insert:
(2) The rules as to the admissibility of evidence to be observed in proceedings before courts-martial shall be the same as those observed in civil courts in England, and no person shall be required in proceedings before a court-martial to answer any question or produce any document which he could not be required to answer or produce in similar proceedings before a civil court in England.
The words of the Amendment are identical with those in Section 99 (1) of the Army Act. Its purpose is to require naval courts-martial to observe the same rules of evidence as are at present observed in the civil courts and Army courts-martial. During the course of the debate we have heard more than once of the importance of making the provisions relating to the various Armed Forces similar. It is very important to secure uniformity of procedure as far as possible for the three Services and the equalising of the legal systems applying to each of them.
§ 8.0 p.m.
§ Indeed, it has been said more than once in the course of the debate that the justification for a particular Clause is to be found in the fact that it also appears in the Army Act. I call that principle in aid in support of my Amendment. I want the learned Attorney-General, if he will, to say why this provision which exists in the Army Act in regard to the rules of evidence is not included in the Naval Discipline Bill. I cannot conceive why it should not be included. In view of its exclusion, will the Attorney-General tell the Committee what rules of evidence are to apply?
§ I apprehend that reference may be made by the right hon. and learned Gentleman to the intention to deal with this matter by means of general orders issued by the Admiralty, but why such a procedure, why not include it in the Bill? Why not include a simple state- 458 ment in the Bill of the kind which exists in the Army Act and which I have embodied and set out in the Amendment? Why should the Admiralty be privileged to make these rules of evidence in some special general order, as it were round the corner? Why does the Admiralty think it necessary to take to itself powers that the Army does not find necessary at all?
§ The curious thing about Clause 58 is that in subsection (3) there is reference to the Bankers' Books Evidence Act, 1879. That is a small piece of technicality in regard to the rules of evidence which those who are responsible for the Bill have thought it necessary to introduce. But if it is desirable to introduce what is comparatively insignificant and is largely formal, I maintain that it is essential to provide for that which is far more than formal.
§ After all, the rules of evidence which are applied in our criminal courts embody the wisdom and experience of many generations. They are, in many cases, for the protection of the accused person. Generally, the rules of evidence applying in criminal trials operate for the benefit of the accused, for example by the exclusion of hearsay and of statements which are not made voluntarily. Are these rules not to be applied in naval courts-martial.
§ I suspect that the secret of this matter may well be the devoted feeling which the Admiralty has for the circumstantial letter. Unfortunately, I have not had the privilege of appearing at a naval court-martial, but some of my learned friends in the Temple have and they have always expressed amazement at what is included within the ambit of the circumstantial letter. The proceedings start with it. One of my friends appeared in a receiving case. The kind of evidence in the circumstantial letter was what the cook told the petty officer and comments about conversation in the mess between persons whom the prosecution had no intention in the world of calling to give evidence.
§ As to the rules of ordinary courts excluding statements not made voluntarily, the kind of matter which appears in the circumstantial letter is a statement as to the captain going to the accused and saying, "I am not having this stealing on the ship. What did you do with the boots?" And the answer to that threat finds its way into the circumstantial letter. It is 459 true that the letter does not generally include a statement of previous convictions, but there is no reason why it should not do so as far as the regulations go. One of these days we might well find an energetic prosecutor including that, too, in the circumstantial letter.
§ It always astonishes me how the Navy has managed to get away with it through the centuries. The poor Army has been badgered and buffeted for its court-martial irregularities, and no doubt sometimes they have existed. I suppose that it is the supervision exercised by the House of Commons that has been responsible for constant alertness in regard to Army courts-martial, but the Navy gets away with it all the time and may well get away with it again. The irrelevancies and inadmissibilities of matters in the circumstantial letter may well continue to be a black mark, as I deem them to be, upon the administration of justice in our country for our citizens.
§ It may well be that the Attorney-General will call in aid some particular difficulties of convenience, due to the nature of service in the Navy and may say that there may be some special need for admitting what is normally inadmissible. But when one comes to think about it, most courts-martial, certainly in peace time, are heard ashore. Most courts-martial of any serious character do not take place at sea. I understand that they are reserved for trial when the ship returns to port. Therefore. that argument of convenience does not seem to be an impressive one.
§ The final matter that I desire to submit to the Committee is that at the moment the provision of the courts-martial appeals procedure seems to make it desirable that there should be some degree of uniformity in such fundamental matters as the rules of evidence. As I understand it, that is another ground for making the rules of evidence for the Navy the same as the rules of evidence for the Army. I see no reason in the world why there should be this differentiation. particularly by reason of the fact that on the whole the rules of evidence, as I have emphasised, are to the advantage of the accused and are in some respects, despite the technicality of some of them and the irritation that they often cause to the layman, an important part of the liberties of the subject.460
§ The Attorney-General (Sir Reginald Manningham-Buller)
I am sure the hon. and learned Gentleman will agree with me that many of our rules of evidence at the common law and Chancery and in our civil law do not find their origin in any Statute. They have been built up by case decisions and there is only a small section of our law of evidence which has a statutory origin.
All the fears he has voiced in moving his Amendment are, I am glad to be able to assure him, without foundation. The rules of evidence applicable in naval courts-martial are, subject to the one point to which I will refer later, precisely the same as the rules of evidence in our ordinary criminal courts and rules of evidence before Army and Air Force courts-martial. The same principles apply, the same rules apply, and the Courts-Martial Appeal Court is there and would correct any serious departure from observance of those rules. Those rules of evidence have been applied in naval courts martial for a very long time but there has never been in the Naval Discipline Act a statutory provision of the character that the hon. and learned Gentleman now wishes to see inserted.
There was in the old Army Act a statutory provision similar to the one to which he has made reference, and the backgrounds to the two Acts have led to slightly different contexts in that respect, but there is no material difference with regard to the rules of evidence. I hope that the hon. and learned Gentleman will accept that from me. The real difference between the Army Act and the Naval Discipline Act in this connection is that in Section 198 of the Army Act, as he will see, there has to be, because of the general rule which is made statutory by Section 99 (1), special statutory provision for the receipt of certain kinds of documentary evidence.
One consequence of that is that it is not an easy matter to vary the kind of documentary evidence which can be produced by certificate, or in various ways. without altering the Act of Parliament. On the Pilcher Committee one thing we had to consider—and I speak as a former member of it—was the necessity of proving before naval courts-martial documentary evidence which was unlikely to be the subject of any dispute. The hon. and learned Gentleman will see we recommended that a great deal more use 461 should be made of machinery whereby those documents could be produced in evidence without the necessity for securing the attendance of some witness, maybe from miles away, formally to produce it.
As the hon. and learned Gentleman knows, we have adopted in recent years a somewhat similar procedure with regard to non-controversial evidence in the criminal courts. It is true to say that in the Navy, where there may be crews changing and ships travelling long distances apart, there is really a greater need for making provision for the reception of documentary evidence than there is in relation to Army and Air Force courts-martial. If, of course, a trial has to be delayed because a witness cannot be produced merely to submit a document, it is greatly to the detriment of an accused person. I can assure the hon. and learned Gentleman that as regards rules of evidence generally there is no difference between the Services. I can also assure him that. without accepting his Amendment, the rules of evidence in our ordinary courts are, and will continue to be, generally observed before courts-martial.
What the Bill proposes is that there should be a somewhat flexible machinery whereby one can make provision for certain documentary evidence. I hope I have convinced the Committee that there is a real need for facilitating the reception of documentary evidence which is not likely to be disputed. That provision is by General Orders which are referred to in Clause 58 (1), and power is given by them to make the directions under Section 7 of the Bankers' Books Evidence Act, to which the hon. and learned Gentleman referred. As he sees, those General Orders are not to have effect until they have been approved by Her Majesty in Council in pursuance of a report of the Judicial Committee of the Privy Council. That is an important safeguard against there being any risk of a general rule making a radical departure from our ordinary rules of evidence.
§ 8.15 p.m.
§ I myself would say that consideration by the Judicial Committee is a sufficient safeguard. The hon. and learned Gentleman made a good many observations about the circumstantial letter. I do not know whether he has ever seen one? I 462 do not think I have, but I heard much about it when we were sitting on the Pilcher Committee. I was surprised by his statements as to the content of a circumstantial letter, because it takes the place of an opening speech by the prosecution. There are some advantages, and maybe there are some slight disadvantages, in that system.
§ One advantage is that the accused knows before the trial exactly how the case will be put by the prosecution. But no one can suggest that a circumstantial letter is evidence. It is nothing of the kind. In fact, when the circumstantial letter comes before the court-martial, the judge advocate is there and he is under the duty of reading the charge sheet and the circumstantial letter. Before reading that letter he has to warn the court that it is anex partestatement of the facts as the prosecution believes them to exist, that some of the facts may be in dispute, that some of the evidence on which the prosecution relies may be inadmissible, and that some of the witnesses may not testify to some of the matters which the prosecution expected they would. The facts set out in that letter could consequently only be regarded by the court as a statement of what the prosecution expects to prove.
§ That may detract somewhat from the attractiveness to the court of the circumstantial letter, but one thing is clear, that no naval court-martial could for one moment regard the circumstantial letter as evidence of anything. Therefore, with respect to the hon. and learned Gentleman, I do not think it is necessary for me to say more about that.
§ We cannot accept the Amendment as it stands, because while it is largely declaratory it makes no provision for the reception of documentary evidence, which is very important. We could possibly draft an Amendment which would embody the principle to which the hon. and learned Gentleman has referred and yet permit of this flexible procedure for the admission of documentary evidence. I am not saying that that is not possible, but I can assure the hon. and learned Gentleman that there is absolutely no need for it, because the main principles of the rules of evidence in our criminal courts are the rules of evidence which have been applied for years, and which 463 will continue to be applied, in naval courts-martial.
§ The only difference between the rules in our ordinary criminal courts and the rules before naval courts-martial is that, owing to the special procedure which will be taken for the admission in evidence of documentary evidence, we shall before naval courts-martial not require the attendance of so many witnesses merely to prove formally that this is the return of this or that or of some kind or another. In the Army there is statutory authority for certain kinds of evidence. In the Navy there is the authority of General Orders made with the approval of the Judicial Committee. It really is essential that there should be provision for that.
§ I hope I have said enough to allay the anxieties of the hon. and learned Gentleman, to assure him that it really is not necessary to make any Amendment on the lines he suggests, and to assure him that his fears as to what might otherwise be, if those fears were justified, certain very curious practices at naval courts-martial, are not justified.
§ Mr. W. Wells
The whole Committee should be indebted to my hon. and learned Friend the Member for West Ham, South (Mr. Elwyn Jones) for raising this point and for putting down this Amendment. At the same time, most of the anxieties which my hon. and learned Friend raised in my mind were removed by what the right hon. and learned Gentleman had to say, particularly about the circumstantial letter. On this side of the Committee we have no wish to encumber the administration of naval discipline, and in view of what the right hon. and learned Gentleman has said, I hope that my hon. and learned Friend will feel it right to ask leave to withdraw the Amendment.
§ Mr. Elwyn Jones
Although I am reassured by the observations of the Attorney-General about the circumstantial letter—I am glad to discover that it is prefaced by considerable discouragement to the members of the court from paying any attention to it whatsoever—
§ Mr. Elwyn Jones
I am grateful to my right hon. Friend for that contribution, but it would be a very dramatic development of the procedure of the ordinary criminal courts if prosecuting counsel were to say, "I am about to open the case. I may make a lot of inadmissible observations and refer to inadmissible evidence which I have no intention of proving and, therefore, you need pay no attention to a single word that I am saying."
§ Mr. Elwyn Jones
That happens to the best of prosecutors, if I may say so.
In spite of the assurance about the circumstantial letter, I am still not entirely happy about this matter. I fail to see why the Naval Discipline Bill should not include a provision to deal with documentary evidence. Of course, one wants to eliminate any unnecessary formality in the formal proving of documents, for example, to prove an order has been given or that a document has been in the custody of the appropriate officer. Matters of that kind can clearly be provided for to eliminate unnecessary expense in proving what is merely formal.
That has been done in the Army Act for the needs of the Army, and, I believe, similar arrangements were made for the Air Force. I should have thought that the Royal Air Force faces similar problems of geography and position and difficulties as does the Royal Navy in these matters. As, in any event, General Orders have to be issued to deal with these matters, I ask again: why not now and in the Bill? After all, the kind of problem which is to be contemplated is not a varying or changing problem. Clearly, the kind of difficulties can be anticipated now and I must invite the Attorney-General and the Admiralty to look at this matter again.
I am not convinced—although, of course, I shall not press this matter to a Division—by the view that this is a matter which can properly be left to General Orders. As I understood from the Attorney-General's speech, we may take it that the ordinary rules of evidence, when the Bill comes into operation, will apply. That is reassuring, but 465 I should find it even more reassuring if that were embodied in a Statute as part of our statute law as applied to the Navy.
I know that it will involve much work and I am always very sorry to suggest anything of that kind to what must be a very overburdened Department, but, nevertheless, I invite the Attorney-General to give further consideration to the matter.
§ The Attorney-General
I have listened carefully to all that the hon. and learned Member has said. I hope that he will consider what I sought to say in reply to him. I am not convinced that there is any need for a declaratory provision of this kind—it is meant to be declaratory. There is nothing between us about what should happen in courts-martial and there may be disadvantages in making declaratory provisions.
There is a very strong case for the procedure in the Bill for making provision for the reception of documentary evidence. It would be a pity to lose the flexibility of this procedure by making statutory provision in a Bill for reception of only certain classes of document. Bearing in mind the practice heretofore of naval courts-martial and the practice at present and the fact that there is now the Courts-Martial Appeal Court to see that the rules of evidence are observed, there is no need to lengthen the Bill by declaratory provisions of the sort envisaged by the hon. and learned Gentleman. Without entering into any undertaking to do anything about it, I will certainly give further thought to the matter and perhaps have a word with the hon. and learned Gentleman on another occasion.
§ Amendment, by leave, withdrawn.
§ Clause ordered to stand part of the Bill.466
§ Clauses 59 to 69 ordered to stand part of the Bill.