HC Deb 17 February 1959 vol 600 cc204-28

3.35 p.m.

The Prime Minister (Mr. Harold Macmillan)

I beg to move, That it is expedient that a Tribunal be established for inquiring into a definite matter of urgent public importance, that is to say, the allegation that John Waters was assaulted on the 7th December, 1957, at Thurso, and the action taken by the Caithness Police in connection therewith. In the statement which I made to the House yesterday, I announced the Government's decision to set up this Tribunal under the Tribunals of Inquiry (Evidence) Act, 1921. I think that there was general approval of this decision.

My statement made it clear, and this, too, seemed to be generally accepted, that in accordance with our traditions, long supported by Members of all political parties, the decision of the Lord Advocate not to prosecute in this case was one for him alone, and that it will not be for the Tribunal to review this decision.

The Tribunal will, however, be able to make the fullest inquiries into the allegations that the boy was assaulted, and into the steps which were taken by the police to investigate and report on the case. The Tribunal will have the same power with regard to the attendance of witnesses and the production of documents as the Court of Session. It will have at its disposal the services of an advocate and also of a solicitor to make any necessary inquiries.

The right hon. Member for South Shields (Mr. Ede) yesterday suggested that it would be inappropriate for the Lord Advocate to present the case to the Tribunal on this occasion. I should like to inform him and the House that we intend to arrange for the case to be presented to the Tribunal by an advocate who has not been in any way concerned with the question of prosecution, and who will be selected in consultation with the Chairman. I should also perhaps remind the House that Section 2 of the Act of 1921 provides as follows: A tribunal …shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given; A similar Motion has been tabled in another place, and will be moved there on Wednesday. Once the Resolutions have been passed by both Houses, it will be for my right hon. Friend the Secretary of State for Scotland to appoint the Tribunal. I can, however, tell the House that we have in mind a Tribunal of three, the Chairman being one of Her Majesty's Scottish judges. The names of the members will be announced as soon as possible after the Resolutions have been passed.

3.38 p.m.

Mr. A. Woodburn (Clackmannan and East Stirlingshire)

I think that the House will be grateful to the Prime Minister for his statement today, and for the arrangements which he is to make with his right hon. Friend the Secretary of State for Scotland and the Chairman of the Tribunal.

There is one question which I should like to ask him, which may be due to my ignorance of the working of the Tribunal of Inquiry procedure. There are a number of people against whom allegations have been made, and, clearly, a Tribunal does not start with an acceptance of the guilt or innocence of any persons. I take it that any person who feels himself involved will be entitled to be represented by counsel, if he so desires.

3.39 p.m.

Mr. R. T. Paget (Northampton)

Before we agree to this proposal, I think that we should consider a little just what we are doing and just what sort of a precedent we are setting. I am sure that all of us were very moved indeed by what the hon. Member for Caithness and Sutherland (Sir D. Robertson) said to us recently, and, indeed, were equally impressed, but perhaps in another way, by the Lord Advocate's reply.

Let us consider for a moment what this proposal is, what will be the effect of a finding on two policemen, Mr. Gunn and Mr. Harper. This Tribunal will have to decide, in effect, whether these two men are or are not guilty of a criminal offence. If it is said that these two police constables are guilty, can they remain in the police force? Of course not. Their moral position as policemen will have gone. They will be condemned and will suffer the penalty.

The Government are, in fact, doing this. They are saying that two men, against whom no charge has been framed, who are unprotected by the rules of evidence, who are denied the shield of the presumption of innocence, are to be tried by an extraordinary Tribunal, the decision of which will be fatal and destructive to their careers and to their characters, and which will be far more damning than that of an ordinary legitimate court.

Mr. Speaker, I do not like extraordinary tribunals, as I think the House knows. I do not think that this is a just procedure. May I remind the House of words which were used in this Chamber over twenty years ago, by Sir Alfred Butt who, hon. Members may remember, was condemned by the "Jimmy Thomas inquiry," the Budget Disclosure Inquiry. These were this words: Conscious as I was of the grave injustice done to me, I knew I could rest assured … that the matter would not be allowed to remain where it is, and that I should have an absolute right to be tried in a court of justice, where my case could be tried alone, where I should have full notice of the charge made against me, where only properly admissible evidence would be given both for me and against me, but where no matters concerning other people of which I had never heard and whose very existence was unknown to me, would be introduced, with all the prejudice that such introduction might invoke. To my horror I learned yesterday for the first time that no such opportunity was to be afforded to me. There is to be no prosecution; my case is never to be tried. There was to be no prosecution, the Attorney-General had explained to the House, because the prejudice created by the Tribunal was such as to make a fair trial impossible.

Sir Alfred went on to say: I would ask right hon. and hon. Members to visualise the position in which I now find myself. I have been condemned, and apparently I must suffer for the rest of my life from a finding against which there is no appeal, upon evidence which apparently does not justify a trial, and there is now no method open to me by which I can bring the true and full facts, before a jury of my fellow-men. He added, a little later: If any good may come from this, the most miserable moment of my life. I can only hope that my position may do something to prevent any other person in this country being subject to the humiliation and wretchedness which I have suffered, without trial, without appeal and without redress."—[OFFICIAL REPORT, 11th June, 1936; Vol. 313, c. 415 and 416.] I, too, hope that those words, spoken over twenty years ago, may not be forgotten, and that we shall not lightly decide to place these two humble Scottish police constables, who have a right to trial and rights to justice, just as John Waters has these rights, in a position in which they may be condemned without appeal, without charge, without rules of evidence and without presumption of innocence.

So much for that aspect of the matter. It is, I believe, utterly wrong to use this procedure of tribunal as a means of short-circuiting the ordinary criminal law of the land. Least of all should we do so when there is other and available procedure by which the courts act, either by prosecution if that is considered proper, or by civil action.

I would say that there are two questions which seem to me to be fairly and properly raised by the original Motion in the name of the hon. Member for Caithness and Sutherland (Sir D. Robertson):

[That this House calls upon Her Majesty's Government to set up a Select Committee of this House to inquire into the case of John Waters and to advise this House whether the said John Waters was assaulted by certain police officers as alleged, and in what circumstances it was decided that no prosecution should be instituted.]

To summarise them, they are these: first, whether this boy was assaulted; secondly, whether the prosecution was hushed up.

The first is a matter which I do not believe it is right for this Tribunal to consider. It is the second one, the question whether the prosecution was hushed up, what happened after the point where it went to the Procurator-Fiscal, when it went to the Crown Counsel, when it went to the Lord Advocate, when new evidence and a new statement were brought to the Lord Advocate by the hon. Member for Caithness and Sutherland, when presumably that went down the line—what happened to it then? These are the kind of matters for which an inquiry is proper. These are the kind of matters which an inquiry is the only means of finding out, and it is these matters which are deliberately and specifically excluded by the terms of reference of the Motion.

I urge, Mr. Speaker, that we do not accept this Motion, and that we ask the Government to reconsider it.

3.49 p.m.

Mr. Ede (South Shields)

I want to thank the right hon. Gentleman the Prime Minister for the courtesy he showed me yesterday and for the statement he made about the way in which the lad Waters is to be represented should this Tribunal be held. I thank the right hon. Gentleman sincerely for the way in which he has handled that matter, and I hope that nothing I say today will be regarded as being a discourteous reply to the action he has taken.

I find myself unable to support this Motion. My hon. and learned Friend the Member for Northampton (Mr. Paget) has alluded to that tragic afternoon when a former Minister of the Crown and a private Member withdrew from our proceedings on the finding of that Tribunal. Sir, I was a comparatively young Member of the House in those days, but the punishment inflicted by the procedure applied to Mr. J. H. Thomas appeared to me to be so appalling, having regard to the history of that gentleman in this House, that I absented myself deliberately from the House on that day so that I should take no part in the proceedings. Therefore, the attitude I adopt towards this Motion is not something merely confined to the Motion.

Whenever we get into one of these difficulties, we fall back on this method of tribunals, and when the finding of the tribunal is received, Member after Member gets up to protest against the way in which some person or other, whom we did not have in mind when we started on the proceedings, has been maligned and smeared—to use a modern term— by evidence which he has had no opportunity to rebut.

In this connection, let us think of the last case—the gossip on the grouse moor, what a girl said on Woking station, a girl who had a brother who had achieved considerable fame and who had a chance at last of figuring in the newspapers as a person if not of fame at least of notoriety.

The whole business of this kind of thing, when we are faced with the results, is always repugnant to the House. In this case, an allegation was made by a father in a police station on 7th December, 1957, that his son, who was with him, had been assaulted by two police officers. That was accepted by the inspector in charge, but what happened after that we have not yet been able to discover, nor, in view of the way in which the Motion has been framed, shall we be able to discover it now. That is the important thing.

It may be that the boy suffers from hallucinations and that he was not assaulted by a police officer. A doctor's report has been submitted to the House saying what the doctor saw on the boy. There has been a statement by a woman who found the boy lying in the street and who took him in, bathed and washed him, and arranged for him to be taken to the doctor.

I cannot think that in England—and in this matter English law differs from Scottish law—there would have been other than a prosecution, quite possibly instituted by the police authority. As I understand, in Scotland a prosecution can be launched only with the assent of the Lord Advocate. When I was Home Secretary, I believed and practised this view of policy in the matter: if a police officer had in some way or other committed a breach of the recognised code of police duty in such a way that he was amenable either to a disciplinary tribunal or to a prosecution in the courts, in his interest and in the interests of relationship between the police and the public it was desirable that he should stand his trial in a magistrates' court and, if necessary, before such higher tribunal as the magistrates decided.

It is essential that in this matter of the relationship between the police and the public we should maintain the sound doctrine that a policeman, no matter how high or low in rank, is as amenable to the ordinary law of the country as any other citizen. If he commits a breach of the law, he should not be exempt from standing his trial like every ordinary citizen merely because he has been enrolled in the police force.

I have a Question on the Order Paper today, Question No. 114. I do not blame the length of supplementaries to Questions for its not being reached today. In it I ask the Lord Advocate a question to which I shall get an answer later in the day. I ask whether at any time he or anyone in his Department responsible to him took from Waters, or any of the other witnesses, a statement of what his evidence would be if there were a trial. I asked the question of the Joint Under-Secretary of State for Scotland last Tuesday and I was informed that if I wanted an answer I should put a Question on the Order Paper.

I submitted two Questions to the Table. One asked the same question as Question No. 114, of the Secretary of State for Scotland. The Table refused it on the ground that the Secretary of State for Scotland said that he was not responsible and that as he had said he was not responsible, I could not ask him a Question. I do not accept the view that the right hon. Gentleman has no responsibility. Last week the Under-Secretary said that he regarded the Tribunal proposed this afternoon as inappropriate. This afternoon the name of the Secretary of State appears on the Motion, but the name of the Lord Advocate does not.

I cannot help thinking that, in spite of anything which was said yesterday, the House is entitled to know some of the proceedings which the right hon. and learned Gentleman the Lord Advocate took. He stands very much in the position of the old Grand Jury in England. The Grand Jury in England had to call before it all the evidence for the prosecution in a case before it could say that there was "No True Bill". It did not have to concern itself with the defence. What it had to do was to decide whether there was a prima faciecase for prosecution. If there was, the case was brought before a jury at quarter sessions or assizes, and a decision was there reached in accordance with the rules of evidence.

In this sort of case the Lord Advocate occupies very much the same position in Scotland. We ought to be certain that all the evidence submitted by the hon. Member for Caithness and Sutherland (Sir D. Robertson)—and we understand that there were 17 witnesses whose names the hon. Member submitted—was examined before the Lord Advocate decided that there was no case on which a prosecution could be based.

I hope that even at this stage it may be possible not to proceed on the lines now suggested, in view of the always unsatisfactory nature of the position in which we find ourselves at the end of the proceedings of these tribunals. If there were a prosecution it would now, but not after today, still be possible to get the case put before the appropriate court in Scotland, resulting in a satisfactory result, whether conviction or acquittal according to the evidence.

I want to call attention to an article by the political correspondent of The Times,in today's issue. It says: The fact that such an inquiry is to be held is regarded in Government circles as enough to rule out the possibility that any prosecution could be brought in the light of the tribunal's report to Parliament. The point is made"— apparently this is in Government circles, whatever that might mean, and I am not trying to foist this opinion on to right hon. Gentlemen who sit on the Front Bench opposite— that it would not be impossible to empanel a jury that could be reckoned to have been uninfluenced by reports of the tribunal's proceedings. I think that that last sentence alone makes it important that this case should be tried according to the rules of evidence and that a prosecution should be instituted in the Scottish courts. I regret —and I say that quite sincerely—that I am unable to support the Motion now before the House.

4.1 p.m.

Mr. Philip Bell (Bolton, East)

I am bound to associate myself with the remarks of the hon. and learned Gentleman the Member for Northampton (Mr. Paget). I found them short, concise and entirely convincing. To me it came as a shock that my hon. Friends on this side of the House, who have long and properly taken a pride in their struggle against administrative tribunals, should, where there is a case of an assault charge against a policeman, think it necessary that a special tribunal should be set up.

I can see no reason why the matter should not go by the ordinary processes of law, if necessary by civil action or criminal action, for the results would be exactly the same in either case. There may be something to be said for having this form of Tribunal to deal with the actions taken by the Caithness police, once it is found that anything wrong has been done.

I associate myself entirely with what the hon. and learned Gentleman has said, all the more so because—and I say so with respect—I am proud that we share the same profession.

4.2 p.m.

Mr. J. Grimond (Orkney and Shetland)

I think that there are many hon. Members who share the misgivings of the hon. and learned Gentleman the Member for Northampton (Mr. Paget) and the hon. and learned Gentleman the Member for Bolton, East (Mr. Philip Bell), but what else could we have done? It may be that we should have some other procedure but, speaking as a layman, I know of no other procedure.

The fact is that after this case had become common knowledge through the newspapers, and many allegations had been made both in this House and outside, it would have been exceedingly unfair not only to Waters but to the Caithness police to leave the matter as it then stood. So I think that the first lesson is that we may need some other procedure but, at the moment, we have no other procedure for righting this sort of situation.

The second part of the speech made by the hon. and learned Member for Northampton and, I understand, supported by the hon. and learned Member for Bolton, East, raises the question whether it would be right or proper for this Tribunal of Inquiry to inquire into why a prosecution was not brought. We have been told on high legal authority that it is quite contrary to precedent and that it would be improper to inquire into the reasons why the Lord Advocate exercised his discretion to prosecute or not to prosecute in this case.

Many of us feel that long before this matter reached the Lord Advocate certain evidence must have emerged and that there must have been a long chain of inquiry, and so on, about which we are in doubt. I think that the House is entitled to ask for some guidance from the Law Officers both of Scotland and perhaps of England, first, as to whether this Tribunal of Inquiry, which it is proposed to set up to inquire into the action taken by the Caithness police, should inquire into the action taken in relation to the prosecution, or merely into the action taken in connection with the investigation of the allegations; and, secondly, if it is not to inquire why a prosecution was not instituted, whether we shall leave this matter in a satisfactory way.

4.5 p.m.

Mr. Ronald Bell (Buckinghamshire, South)

The hon. and learned Gentleman the Member for Northampton (Mr. Paget) has expressed the anxieties shared by many hon. Members on both sides of the House. If this matter goes to a Division, I shall vote for the Motion, but I shall do so because I do not see how, having reached this position, we can do anything else.

I hope that when this inquiry is over the House will take some opportunity of considering in a general context the advisability of this procedure. Each time we use it, hon. Members on both sides of the House, in the debate which usually follows, express their dissatisfaction and anxiety—I think that that is the right word—about what goes on during this procedure.

This case emphasises its defects. At least on the last two occasions of the Lynskey Tribunal and the alleged Bank Rate leak what the Tribunal was inquiring into was some kind of possible misconduct by public men which would not be any sort of criminal offence and could not, therefore, be investigated in the ordinary courts. If there was to be ventilation and investigation into it all, some extraordinary tribunal had to do it.

This is quite different. This is a suggestion of a criminal offence and I cannot but be very unhappy, for the reasons which the hon. and learned Gentleman put and which I will not repeat because he put them so well and so shortly, at people's reputations being put in peril in this rather informal way.

I am sorry that Waters, or his father, did not see fit to take the ordinary remedy of a British subject and issue a writ—there is legal aid for those who are not sufficiently well-equipped with money to proceed on their own—and deal with this matter in the ordinary way in the ordinary courts. However, that has not been done and a great deal of public attention has been drawn to the matter. There is a Motion on the Order Paper and, therefore, I think that we must go forward, but because I am going to support it I wanted to let the House know in what state of mind I support it. I hope that this matter will be properly inquired into once we have finished this particular use of this procedure.

4.7 p.m.

Mr. Leslie Hale (Oldham, West)

I listened to the speech of my hon. and learned Friend the Member for Northampton (Mr. Paget) and I agreed with it in all but one very vital sentence to which I will refer later. I have expressed before my detestation of these tribunals and my profound regret that sometimes we have found it incumbent upon us to use procedure in which the rules of evidence do not apply.

I have expressed before the feeling that it is an astonishing thing that to get a man convicted of a crime we must have sworn and direct evidence, but we can bring against a public servant an accusation which may break him for life on the basis of hearsay, of gossip, of tittle-tattle and of drawing inferences. I regret that very much. For once I find myself in the position, if the Prime Minister will permit it, of defending him and saying that he should be congratulated sincerely by the House on having taken a prompt decision on this matter. The House ought to consider what possible steps were open to the right hon. Gentleman.

The dilemma with which we are faced is a very real one and I disagree with my hon. and learned Friend when he says that the remedy of prosecution or a civil action is still open. As I see it, it would be most improper now for a prosecution to be initiated by the Lord Advocate against his view, and certainly not by anyone else. I do not think that the remedy of a prosecution is open and, even if it were technically open, it would, in the circumstances, be too late and difficult to use that procedure.

I disagree with the hon. and learned Member for Bolton, East (Mr. Philip Bell). A civil action never was a remedy. This vital advice was given to Sir William Gordon Cumming, in the baccarat case, "Go into court and defend your own reputation where the whole onus of proof is different, the issue to be decided is different and the court has to consider the question of damages." A civil remedy, if ever it was open, could not provide a possible answer.

We are left to consider a situation in which we have to face one supreme and important fact. Once these facts were called to the attention of the House, very properly, very moderately and very clearly by the hon. Member for Caithness and Sutherland (Sir D. Robertson) —who enjoys a reputation among hon. Members on both sides as one who is unlikely to overstate a case and who would take a course of this kind only in the belief that he was serving the interests of justice—the police were virtually condemned.

An inquiry became as necessary in the interests of the police as in the interests of the boy. We cannot hush the matter up without leaving the two policemen labouring under an imputation which is about as grave as can be made against a police officer. A charge has been made in public and spread all over the land, and the police officers are entitled to be defended.

What are the possibilities? There is this rather wretched, hybrid form of Tribunal. I speak here subject to correction by the Law Officers, and I have not checked it up, but I believe that there is no obligation upon the Tribunal to say, "We will hear hearsay evidence." So far as I know, it is within the power of a Tribunal in this sort of case to say, "This is a substantially judicial matter upon which evidence will be available, so we will limit ourselves to the hearing of sworn evidence."

If it is possible for the Tribunal to take that course, I hope that it will do so. It can certainly take the line that it will start with sworn evidence, and not decide to hear anything else unless it declares a special reason for so doing, which reason arises from the facts. That seems to offer one limitation to the objections raised to the setting up of a Tribunal.

Another course is to set up a Select Committee, or a special Committee of the House. I am not sure that the House ever distinguishes itself as a judicial tribunal. In any event, speaking from memory, in the last lamentable examole, the case of George Edalji, I believe that it is now acknowledged that a gross miscarriage of justice was perpetrated, when a man was sent to a long term of imprisonment in Rugeley, in 1899–1900.

After he had served for three years, the Home Office set up a committee which decided, partly upon the evidence of a Mr. Gurrin—who was also concerned in the Adolf Beck miscarriage of justice, and another later case—that George Edalji was innocent, but that he had contributed to his guilt by writing the anonymous letters which led to his arrest. The Law Society put him back on its rolls, and it was only after another thirty years that, at a trial in Wednesbury, a man was convicted of writing the anonymous letters and made a detailed and formal confession of their authorship.

I do not want to reopen any recent wounds of the Leader of the House—indeed, I am not quite sure whether I am not blaming him falsely, and whether it was not during the period when the present Lord Tenby was Home Secretary —but the one-man inquiry into the case of Timothy John Evans was not regarded as a very satisfactory form of procedure by anyone who took the trouble to read that elaborate and most remarkable account of the proceedings.

So we have the possibility of an inquiry by three Members of the House, or by learned counsel, sitting as they do behind closed doors—at any rate, some of the evidence given before the Henderson Tribunal was given behind closed doors— or by this Tribunal, headed by a High Court judge and two distinguished counsel, whose sole function is to ascertain the facts, as they must now be ascertained.

I had very great sympathy with the suggestion made by my hon. and learned Friend that the Tribunal's terms of reference were too narrow, but when I expressed that sympathy I had not read the exact words of the Motion. I think that the words the action taken by the Caithness Police widen the matter a little because, if the procedure is the same as that which operates in England an investigation into the action of the Caithness police would involve an investigation of the action of the police in refusing to prosecute.

Mr. Paget

The procedure in England is for the police to prosecute, but the police never prosecute in Scotland; it is the Procurator-Fiscal who prosecutes, and he is not part of the Caithness police. We cannot inquire into the action of the Procurator-Fiscal.

Mr. Hale

I should think that the Prime Minister would readily agree that the most important part of the inquiry will concern the question why, if there were a substantial prima faciecase, that case was not presented? I should have thought that that was a more fundamental and vital matter than the other, and I hope that the Prime Minister can give us an assurance that nothing in these terms of reference is designed to preclude the Tribunal from inquiring into the question why a case was not presented.

Some of my hon. Friends will recall one classic case in this connection, which I hope the Prime Minister will read before he goes to Moscow. I refer to the case of Oscar Slater and its consequences, which not so many remember, to the fate of Inspector Trench, who tried to call the attention of the Scottish police to the innocence of Oscar Slater and finally made a statement to the Press concerning evidence which had been suppressed. Inspector Trench was driven from office and prosecuted on a faked-up charge. His name was cleared by the Tribunal before that faked-up charge was brought, but he was left to drift away and die an honourable death in the war a year or two later, unhonoured and uncleared by the public at large. That blot still rests on the name of justice.

Much as I detest these tribunals, and without withdrawing a word of what I said in the debate on the Bank Rate Tribunal, I have come to the conclusion, beyond any reasonable shadow of doubt, that the dilemma which faces us arises primarily from the continued existence of quasi judicial-political legal officers—they are not to be criticised, because they have to exercise this extremely difficult and often conflicting duty—and the fact that we have this fantastic situation where, instead of having a Minister of Justice who is responsible politically and legal officers who are responsible legally, we try to combine their functions.

That is the dilemma with which we are faced, and I have no hesitation in saying that in those circumstances the remedy proposed by the Prime Minister is the best one. It is the proper course to take, and the Prime Minister should be congratulated for having broken down any possible obstruction and taken it as soon as possible.

4.17 p.m.

Mr. Charles Doughty (Surrey, East)

I seldom find myself in agreement with the hon. Member for Oldham, West (Mr. Hale), but I agree with most of what he has said today, apart from the conclusions he has arrived at as a result of his researches into history. We must consider the position in which we find ourselves. Allegations have been made that a criminal offence has taken place, and the people who make these allegations must be ready to substantiate them before any tribunal before whom they may be called. The names of serving police officers have been mentioned in this House, and they are entitled to have their honour cleared, if it should be cleared.

I say nothing about the merits of the case, because I know nothing about them, but it is very dangerous for any hon. Member to say—as I regretted hearing the hon. and learned Member for Northampton (Mr. Paget) say—that there should be a prosecution. That is exactly what we must fight against, after matters have been discussed in this House and a certain amount of heat has been engendered. We should not say that a prosecution of anybody—whether or not he be a Member of the House—should follow, because, whether or not it is true, it is bound to be said throughout the country that a prosecution was initiated or, in another case, withdrawn, upon political pressure.

When the day arrives when prosecutions are brought or withdrawn, or can even be said to be brought or withdrawn, by reason of political pressure, the administration of justice in this country, of which we are so proud, will begin to break down. Therefore, in this case, there should not be a criminal prosecution.

Mr. Paget

Owing to political pressure a Tribunal is to be set up. That Tribunal is to decide, on much less fair terms, whether these two men are guilty of a crime. Its decision will punish these men. How can that be said not to be a prosecution? Further, how can it said that it does not arise from political pressure?

Mr. Doughty

When I talk about a criminal prosecution I refer to a criminal prosecution in our criminal courts. That is a point that we must exclude from any discussion in this House.

I raised a supplementary question yesterday, after the Prime Minister's statement, when I said that it would be a bad day for this country when our Scots or English Law Officers, who have a political and a judicial function, had to explain to the House their reasons for action which they took solely in their judicial and not political capacity. When they are explaining a Bill which is going through the House they can be questioned and criticised, and their suggestions can be divided against, but when, in reference to action which they take in a judicial capacity, they say, "I took the following decision," even if hon. Members disagree I would ask them not to suggest that any impropriety has taken place. If they do make such a suggestion they will be straining the sanctity of the correct judicial system in this country.

That being the position, the course advocated by the Government is the only one open to the House. Any form of inquiry which is now held must be open to criticism. Some people will say that it was set up only because of political pressure, as clearly is the case when no criminal prosecution has been brought.

A Select Committee would be most inappropriate. In my opinion, this is the only course which we can take to bring an end to rumours and accusations which cannot be answered by those concerned. Whatever the truth may be, I hope that it will be discovered and published by this experienced Tribunal.

4.22 p.m.

Mr. Niall MacDermot (Lewisham, North)

Before the House makes up its mind upon this important question, I want to make a few observations upon the scope of the inquiry and its procedure. The Motion asking for a Select Committee to inquire into the case asks the Tribunal to advise this House whether … John Waters was assaulted by certain police officers … and in what circumstances it was decided that no prosecution should be instituted. It is suggested that the terms of reference of the Tribunal which it is now proposed to set up should be to inquire into the allegation that John Waters was assaulted on the 7th December, 1957 … and the action taken by the Caithness Police in connection therewith. That excludes from the inquiry any consideration of the question why the decision not to prosecute was taken.

As has been pointed out, it is not for the Caithness police to decide whether or not to prosecute. All that they did was to report the matter to the Procurator-Fiscal. The Prime Minister yesterday informed the House of the decision taken to set up this inquiry, and he enunciated two principles underlying that decision. The first was that a decision whether or not a person should be prosecuted is a matter for the prosecuting authorities to decide without political pressure.

I entirely endorse and support what has been said upon that subject. It is a matter of principle which would be subscribed to by every lawyer. It is a matter of pride to us that our administration of justice is so free from and independent of any kind of political pressure, and we want to maintain that situation.

Before the Tribunal begins its activities, it should be made clear what the application of the principle that I have enunciated means to the fate of the two police officers concerned. Does it mean that whatever conclusion the Tribunal may come to they will not be prosecuted? That is what it ought to mean. Political pressure to set up this Tribunal has undoubtedly been brought, and it should be made clear at the outset that whatever may be the result the police officers, as such, will not be prosecuted.

I do not think that we can carry the matter so far as to say that whatever may be the result they shall remain police officers. Quite clearly, that is something that would have to be decided by the persons responsible for the police force. It shows the kind of deep waters we get into as soon as we start examining this kind of problem.

Mr. Philip Bell

Surely it is quite impossible for these officers to be prosecuted after the inquiry. If there is any possibility, surely they could refuse to answer any questions at the inquiry.

Mr. MacDermot

I do not know whether they would be entitled to claim that privilege at the inquiry or whether they can be compelled to give evidence. Certainly, if the rules of evidence as known in English courts are to apply they could not be compelled to give evidence.

The fact that the decision whether or not a person is to be prosecuted is a decision which must be free from any kind of political pressure surely does not mean that the decision can never be called into question. It is a decision of an official of the Crown who is responsible, through the Government, to the Crown. Surely it is our function, as Members of the House of Commons, to watch over the activities of all officers of the Crown and see whether they are exercising their functions and responsibilities properly.

The Prime Minister's second principle was that public confidence in this case has been disturbed and that it is necessary to set up an inquiry to find out the true facts and allay that lack of confidence. If the Prime Minister thinks that that lack of confidence extends only 10 the activities of the Caithness police, he is mistaken. The public are also gravely disturbed, from what they have heard so far about this case, that those responsible decided not to prosecute. The decision not to prosecute took two stages, as was explained to the House in the Adjournment debate by the Lord Advocate.

The first stage was that, when this matter was reported to the Procurator-Fiscal by the Caithness police, he decided that it was of sufficient importance and gravity to refer it to the Crown Office and to take the opinion of Crown counsel. Crown counsel advised, on the information then before him—we do not know what that was or what instructions he received—that no prosecution should be taken.

The second stage was that, after the hon. Member for Caithness and Sutherland (Sir D. Robertson) had collected no fewer than 17 statements from witnesses, and submitted them to the Lord Advocate, the Lord Advocate reconsidered the whole case in the light of those statements and decided to support the decision which had already been taken on the advice of Crown counsel. In spite of all those statements, which I think anyone will agree constituted a strong prima faciecase, he decided not to prosecute, because of circumstances which were known to Crown counsel and to himself but which did not form part of those statements.

If public anxieties about this matter are to be allayed, it is not merely necessary that any Tribunal that looks into it shall inquire into whether the two police officers did assault John Waters, or whether the Caithness police acted properly in the matter, or whether they tried to hush it up. The public will also want to know what information was available at the time when the decision was taken not to prosecute.

I am not suggesting that either the Crown counsel who gave advice or the Lord Advocate should be brought before the Tribunal to be cross-examined as to the reasons for their decision. I do not think that that would be a proper procedure, and it is not the one that I am advocating. I suggest that we should be assured that all the information that was available to Crown counsel and the Lord Advocate shall be made available to the Tribunal and also that the Tribunal shall be free to comment as to whether it thinks that a prosecution ought to have been brought. Then the House will be in a position to decide whether the decision not to prosecute was rightly taken or wrongly taken and, if it was wrongly taken, what are the consequences which should flow? So much for the scope of the Tribunal.

I share the anxieties which have been voiced by my hon. and learned Friend the Member for Northampton (Mr. Paget) about the procedure of these tribunals, as, indeed, nearly all lawyers do. It is something which is foreign to our judicial system. They are by nature inquisitorial. The criminal law as administered in many continental countries is inquisitorial. The court conducts the inquisition.

Mr. Charles Panned (Leeds, West)

On a point of order, Mr. Deputy Speaker. A previous Speaker once complained to the House that he could not hear the hon. Member who was speaking. I cannot hear my hon. Friend at the moment because of noise coming from the other side. Will you restore order, Mr. Deputy-Speaker?

Mr. Deputy-Speaker (Sir Gordon Touche)

If the hon. Member cannot hear his hon. Friend, perhaps the hon. Member for Lewisham, North (Mr. MacDermot) will speak a little louder.

Mr. Pannell

If I may say so with respect, Mr. Deputy-Speaker, that was a rebuke to my hon. Friend, who was speaking quite loud enough to make himself heard. I was speaking about noise from the other side of the House, which prevents him from being heard. Will you cast your rebuke on that side of the House, where it belongs?

Mr. Deputy-Speaker

The hon. and learned Member for Lewisham, North was addressing me and I could hear him quite well. I am sorry that he could not be heard by the hon. Member for Leeds, West (Mr. C. Pannell). I hope that we shall conduct the debate now as quietly as we have done.

Mr. MacDermot

I am sorry if hon. Members are not interested in what I have to say. If they are not, I suggest that they should conduct their conversations somewhere else.

I was commenting upon the inquisitorial nature of proceedings which arecon-ducted by this procedure. Our method of conducting criminal cases in this country is on the basis of examination and cross-examination. That entails having two sides to the case, one side which presents the evidence and the other side which probes, cross-examines and questions it to discover the truth of it. The great difficulty which is involved in this procedure is that counsel conducting the inquiry has to try to perform both functions, to examine and cross-examine the witness.

I made some comments upon this subject in the speech which I made in the Bank Rate Tribunal debate, and I do not wish to repeat them at length. Many lawyers agree that this procedure puts counsel in an altogether impossible and invidious position. It is not merely a matter of the political issues that are involved. If counsel knows that it will be his duty to cross-examine a witness, it is very embarrassing and difficult for him to examine him in chief first. Indeed, the Attorney-General explained to us, in relation to the Bank Rate Tribunal, that the reason why, contrary to the normal rules of examination in chief, he conducted the whole of the examination in chief by means of leading questions was that he knew that he had to cross-examine the witness on a statement which he had made and that it was only by leading him through that statement that he would be able subsequently to conduct that cross-examination.

The result was that the examination in chief was not conducted fairly and properly. The essence of examination in chief is that leading questions are not asked and the witness is allowed to tell the story in his own words. He may depart from the statement he has previously made and the court then hears, in his own words, his statement on oath. He is cross-examined on that. That cannot be done under this procedure.

The solution which I suggested at the time of the Bank Rate Tribunal, and which I respectfully put forward for consideration again, is that there should not be one but two Crown counsel involved. Both of them should be quite politically independent. The function of the first should be to lead the evidence, that is to say, to examine in chief all the witnesses who are not represented by counsel. The function of the second should be to conduct the cross-examination. If we adopted this procedure we should get nearer to the procedure with which we are familiar in our courts.

Mr. Paget

It would still be a bastard procedure.

Mr. MacDermot

It still would be a bastard procedure, as my hon. and learned Friend the Member for Northampton calls it. It is not a procedure which any of us like.

However, if we are to adopt this procedure I suggest that we should try to modify the procedure which was adopted in the earlier tribunals so as to give not only to the public at large, but to the persons concerned in the Tribunal and the witnesses, the sense that they are getting a fair hearing and that the matters are fairly and squarely being presented to the Tribunal.

4.35 p.m.

Mr. Douglas Johnston (Paisley)

I share the dislike, which has been expressed on both sides of the House, of inquiries under this Act. I should have much preferred this matter to be investigated by complaint, on indictment or criminal letters being presented against the two police constables. In view of the opinion formed by the Lord Advocate as to the adequacy of the evidence, that was clearly impossible. Accordingly, we are in the dilemma that we either must do nothing or set up an inquiry.

An inquiry under the Act is better than a loose inquiry by a single individual or by the House. Many of the difficulties which were experienced in other inquiries under the Act, such as the Bank Rate Inquiry, are not likely to be experienced In this inquiry, because there is a precise allegation. There is an allegation of assault. Counsel appointed by the Chairman of the Tribunal will lead the evidence on, as it were, a charge of assault. Then those counsel instructed by the police constables will cross-examine. The matter will proceed, so far as the assault is concerned, as if it were a criminal trial on a charge of assault.

On the other matter—that is, what action was taken by the Caithness police —I again assume that the counsel appointed by the Chairman will lead the evidence as to the action taken and that there will be cross-examination by counsel appointed on behalf of the Chief Constable. I do not think that in this case we will be left with the difficulties with which we were presented in the other inquiries. It is absolutely essential that we must inquire and we must clear the police, if the evidence justifies them being cleared. In any case, we must satisfy the public that they should have confidence in the police and that, if circumstances make it necessary, the conduct of the police can be examined.

4.40 p.m.

The Prime Minister

I think that the House will feel that the debate we have had on the Motion has been of very considerable value. It is encouraging to us all to feel, at a moment when our minds are filled with great problems between nations and with the vast political issues that we have to think about, that the House turns, and properly turns, and tries to do justice to, individuals.

I see many of the difficulties that have been raised. I know that the House will forgive me if I try to approach them from the layman's point of view. I am not sufficiently acquainted with all the technical problems, especially with the divergencies between English and Scottish law.

On the first point raised by the right hon. Member for East Stirlingshire (Mr. Woodburn), it is for the Tribunal to fix its own procedure. We may take it that it will, of course, allow those who are concerned to be represented by counsel. I have no doubt that. as regards the laws of evidence—although under the Act it is not actually forced to apply the strict laws of evidence—the Tribunal will try to apply them in the proper way.

We turn to the question which was first adumbrated by the hon. Member for Orkney and Shetland (Mr. Grimond) and admirably set out by the hon. Member for Oldham, West (Mr. Hale), which was: what are we to do? That was the dilemma with which I was confronted. Exactly what I thought would happen has happened. After the desire which was raised, by the Motions in the House of Commons, great discussions in the newspapers, and the great blare of modern publicity, to defend the interests of the boy, having attained that, we naturally turn to the other side, and say, "Yes, but what about being fair to the police? What about those two men?" That is right and proper, too. We must be fair all round.

In the situation which has created itself, with these Motions, discussions and Questions in Parliament, and the great newspaper campaign, the police were in a sense publicly charged before the bar of public opinion. We cannot just say, "That has not happened", because they remain charged. I felt that the right thing to do was to find the proper method, or the only available method, of getting justice and fairness all round.

What are the methods? The first— proposed by the Motion, and threatened perhaps by an inconvenient Parliamentary situation, and even by a bad or unsatisfactory Division. I might have yielded and instructed the Lord Advocate to start a prosecution. Had I done so, I would have erred against the first rule that the Prime Minister and the Cabinet owe to Law Officers placed in their semi-judicial position. They have neither the right to instruct a prosecution to begin nor, for any reason whatever, to instruct that it should cease. I remember very well that I referred in passing yesterday to a great Parliamentary situation which arose from confusion about that. I will not put it higher than that.

The hon. Member for Oldham, West pointed out, and it is true, that the position of these Law Officers, a very ancient position coming down to us through the ages, is a little anomalous, in that they have a double function. They have to be members of the Government and help the Government with legislation while serving the House of Commons in its work. They also function as officers of a Ministry of Justice. That is the situation which I found, and I cannot alter it without big, far-reaching revolutionary changes. Therefore, it seemed to me that the only thing to be done was, as hon. Gentlemen have said on both sides of the House, in the situation as it existed and had been created, was to use some machinery of inquiry.

What is the machinery? The Act under which the Tribunal was set up was passed in 1921, because the machinery of a Select Committee was not found to be very satisfactory, and I do not think that it is one which Parliament wishes to repeat. The Tribunal is, in the main, a way of calling attention to the matter, but I do not think the House of Commons wants to get into this judicial kind of inquiry itself, whether as a whole or whether by Select Committee. This method of inquiry was set up nearly forty years ago to fill a gap, as it seemed. There might still be the position, as there once was, in which the Law Officer rightly felt that no prosecution should take place, but that was not to say that the public might not feel that something ought to be cleared up.

In that position the system of inquiry has been developed. It has had its faults and its critics. I admit that the right hon. Gentleman the Member for South Shields (Mr. Ede) has pointed out that this is a much narrower issue and that we are not dealing with a great number of rumours and all sorts of stories. The Tribunal ought, therefore, to be able to avoid some of the difficulties and dangers which have followed from other inquiries. The whole question is: is the course of action we are taking the right one? Indeed, is it the only one, the only alternative to doing nothing. I do not think we ought to instruct a Law Officer to launch a prosecution if he thinks it wrong to do so.

Mr. Paget

Does the Prime Minister say that he is not launching a proceeding that will have all the results of a prosecution?

The Prime Minister

Prosecution, in the wider and not technical sense of the word, has been carried out by the T.V., the newspaper and by the whole machinery which has brought this matter and these two men before the bar of public opinion. The only method is to ask this tribunal to find out what happened. When it has made its report, the House and the country will be informed of the facts which took place.

The Tribunal is rightly, properly and constitutionally instructed to find out what took place, what the facts were and what the police did about it. I do not think that it is the proper judge of whether or not the officers formed a right decision. That is not the duty of such a Tribunal and we should not ask it to do it. I am not saying that the Law Officers of the Crown stand different from any other Ministers, in the sense that they are ultimately responsible to the Crown and to Parliament. Parliament is the proper place, if their conduct is to be arraigned. If the Tribunal told us what happened that night and subsequently, and what the police did about it, that would be the best method we can now adopt.

It is a difficulty and a dilemma, but this is the only way out. The alternative is to do nothing and to let the agitation go on. I do not think that that would be better for the administration of justice in Scotland, or for the lives and careers of the policemen who are involved. I hope, therefore, that the House will feel that, while we are not unconscious of certain weaknesses of the position, this is the best method to adopt.

Mr. MacDermot

Can the right hon. Gentleman give us an assurance that all the information that was available to the Lord Advocate and to counsel for the Crown, the information on which it made its decision, will be made available to the Tribunal?

The Prime Minister

All the information for which the inquiry asks will be made available to it, but I must leave it to the Tribunal to carry out its own investigation.

Question put and agreed to.

Resolved, That it is expedient that a Tribunal be established for inquiring into a definite matter of urgent public importance, that is to say, the allegation that John Waters was assaulted on the 7th December, 1957, at Thurso, and the action taken by the Caithness Police in connection therewith.