BRITISH ARMY (FUSILIER MARSH) (Hansard, 12 February 1962)

§ Mr. Leslie Spriggs (St. Helens)
I wish to endeavour to persuade the Secretary of State for War to authorise the payment of compensation for the wrongful arrest of Fusilier Kenneth Marsh of the 1st Battalion of the Lancashire Fusiliers now stationed in Germany—or, if the Minister wishes to dispute the use of the word "arrest," perhaps we can agree on some other phraseology which will cover the taking away of a man's liberty. I would submit that even the Secretary of State for War might agree that it is not normal practice to get people out of bed after midnight in peace time, and especially a man who has been on sick leave.
Upon close examination it would appear that the Minister based his decision upon information which I must challenge. Even the Under-Secretary of State [has contracted it by the Answer given me on 13th December, 1961. Perhaps the House will bear with me while I refer the Under-Secretary of State to his correspondence and his right hon. Friend's Answer to me in the House some little while ago. If the hon. Gentleman wishes me to give way, I will.

§ The Under-Secretary of State for War (Mr. James Ramsden)
I have the extracts which the hon. Gentleman refers to, but I am not sure I have the complete HANSARD report. Perhaps the hon. Gentleman would remind me of the words.

§ Mr. Spriggs
Yes, I will. The hon. Gentleman replied to my letter on 10th November, 1961, and said: I find that Fusilier Marsh was granted leave from 30th July to 18th August. As his wife has told you, he fell sick while on leave and sent in doctors' certificates, the final one of which declared him fit to travel on 22nd August. His unit was notified of this and rejoining instructions should have been sent to Fusilier Marsh by the Record Office on 24th August. Due, however, to a most unfortunate oversight by a clerk, who, I am told, is no longer serving, these instructions were not in fact sent to him until he asked for them on 8th September. His unit, however, were unaware of this and had meanwhile 1084 posted him as being absent without leave from 22nd August, which entailed notifying the civil police. In accordance with the normal procedure, action was also taken to withdraw Mrs. Marsh's allowance book. However, as soon as Fusilier Marsh returned to his unit, steps were were taken to restore Mrs. Marsh's allowance book and as my private secretary told you on 5th October it was returned to her on 18th September. I am very sorry that this mistake occurred in the Record Office and I realise how distressing it must have been for Mrs. Marsh when her husband was arrested and then, to make it worse, her allowances were stopped. I now refer to the OFFICIAL REPORT for 13th December. I shall not weary the House by reading all the replies which the right hon. Gentleman gave me, but I will read the relevant parts, and if the Under-Secretary wishes to have the full account, I will give it him.

§ Mr. Ramsden
It is all right. I have it.

§ Mr. Spriggs
The right hon. Gentleman said: My hon. Friend has already written to the hon. Member, giving him a full account of the circumstances, but I am glad to take this opportunity of stating that no blame whatever attaches to Fusilier Marsh, and to express my own regret at this unhappy error. I must however, make it quite clear that Fusilier Marsh was not arrested, and I do not consider that there are grounds in this case for financial compensation. The right hon. Gentleman replied to a supplementary question: The hon. Member has had a full letter from my hon. Friend on this matter. I feel that to make an apology was the right action to take in this case. This was a complete mistake by a member of the clerical staff. When the fusilier was thought to be a deserter, the clerk informed the police. The police did not arrest Fusilier Marsh or detain him but they asked him to go to the police station to establish the facts. I very much regret this error. It was a simple human error for which I felt I should apologise, and I have done so."—[OFFICIAL REPORT, 13th December, 1961; Vol. 651, c. 446.] I cannot agree that that reply was satisfactory.
I have taken the trouble to examine the facts in this case. The Secretary of State feels that this is not a case in which compensation should be paid, but I assure the House that the distress caused to this soldier's wife, and to him when he had to leave her in such a distressed condition, were anything but a matter which could be light-heartedly passed off, as the right hon. Gentleman wished.
1085 I will read a paragraph from this young wife's letter. She said: Please Sir, try to help us, as all this worry is making me ill, and for my sons' sakes. I must not let that happen, because I love them so very dearly. Without doubt, this young woman was upset and terribly distressed when I met her, travelling home from Nairobi to do so.
Last week I gave up a free weekend, something I seldom have, to go to find out the facts for myself. I found that the facts as stated in the correspondence and on the Floor of the House were correct, but I will supply details. I had better give them this way because I am afraid that the hon. Gentleman will read his right hon. Friend's brief and I want the hon. Gentleman to discard the official brief in this human story and struggle for justice.
The police arrived after midnight and knocked up the family, which was asleep. When the fusilier reached the door, the police asked him if he was Fusilier Marsh. Upon being told that he was, the sergeant said, "I have a warrant for your arrest. I wish you to accompany me to the police station to give the inspector certain details." He did so. He gave the details to the inspector on arrival and even the police inspector could see the genuineness of the man's case. The inspector told him that he would check his story later that morning and that it had better be true. He asked the fusilier to see the officer in charge of the Territorial Army centre and to ask that centre to check with the police. After giving him a further warning that his story had better be true and saying that he believed him, the inspector told him that he could leave. In the early hours of the morning, this young soldier returned to his wife.
I have ascertained these facts, and if that is not arrest, I do not know what is. If that is how the Secretary of State bases his case of "no arrest" I submit to the House that here is a clear case where a man's liberty was taken from him. And it was a case which caused distress. Other people were concerned. This young couple and their children love the house but other families live there and when the police arrive with the intention of getting someone out of bed and to the front door they do the 1086 job very well, as most people will appreciate. Everybody in the house was awake and they all realised that a man was being arrested, a man with a clean record and a good character.
I am worried about how this sort of thing can happen and whether, even with this warning, it will happen again to other young men in the Services. If it does, will they be treated in the same way? There are cases to which I could refer where proceedings have been taken for wrongful arrest. I fear to tread on this holiest of 'holy ground and I shall not try to interpret the law. I know full well that there are hon. and right hon. Members here and elsewhere who are better qualified than I am to give a fair interpretation of the law, but I have tried to find out whether there is a right to sue the Crown.
I have read certain Sections of the Crown Proceedings Act, 1947. I have not attempted to interpret their meaning, but I am assured by some of my lion. and learned Friends that there is a possibility and that there is a right. I appeal to the Under-Secretary not to put me in a position in which I should be bound to advise my constituent to take that action. I should prefer that the Secretary of State or the Under-Secretary should agree to discuss this matter with the object of paying out a small sum. This young man and his wife do not want to make a fortune out of a complaint of distress caused by this error.
If compensation were conceded now in this place it would establish among National Service men, in the Regular Army, and among all who are serving in Her Majesty's Forces a real feeling that justice has been done and that Parliament is just as much concerned about their welfare as it is about the welfare of the rest of the British people. I appeal to the House and particularly to the Under-Secretary that it be seen beyond reasonable doubt that justice has been done. I am prepared to meet the Under-Secretary to discuss this matter if he is willing to meet me on the case as I have put it to him.

§ The Under-Secretary of State for War (Mr. James Ramsden)
The hon. Member for St. Helens (Mr. Spriggs) has put 1087 his case with great care and sincerity, and I shall do my best to answer all the points that he put to the House.
It might help if I begin by trying to set out the facts as they concern the part played in this affair by the soldier himself, by the police, by the soldier's unit and the Record Office involved. in sequence, so far as I can, and as clearly as I can.
Fusilier Marsh was granted leave in the United Kingdom from 31st July to 18th August last year. During his leave he fell sick and quite rightly and properly on 17th August forwarded a certificate of sickness to the Officer-in-Charge of Infantry Records at Exeter. Records received the certificate on 21st August and signalled the unit in Germany to the effect that the soldier was sick on leave.
That was quite right, but in addition to signalling the unit Records ought to have acknowledged the receipt of the certificate of sickness from the soldier, and instruct him what he ought then to do, but they omitted to do this.
Fusilier Marsh, when he heard nothing from the Record Office, wrote to it again, and this time, because he was better, said that he was fit to travel from 22nd August and asked for instructions how to get back to his unit. This letter was also pigeon-holed by the Record Office, quite wrongly. Appropriate action has been taken to remove the clerk responsible for these two oversights from the job in which his failure to discharge his responsibilities attributed to the sequence of events that followed.
To complete the story with regard to the Record Office, it was not until Fusilier Marsh had been to his local Territorial Army centre on 8th September, and it had rung the Record Office, that the case came to light and instructions were sent by registered post. Then, in accordance with these instructions, Fusilier Marsh rejoined his unit on 13th September. This is what ought to have happened at the start, and it was certainly not Fusilier Marsh's fault that it did not happen.
I go back now to what was happening in the unit. The unit acted perfectly correctly throughout. It knew from Records that the soldier was sick on 1088 leave. On 29th August the unit signalled Records to ask for the latest report on Fusilier Marsh's fitness. Records replied saying that he had reported fit to travel as from 22nd August, and asked the unit to confirm the date he arrived.
As he had not arrived, the unit took absentee action, which is normal practice. It involves publishing a Part II Order, and notifying the Paymaster, and the civil police nearest the home of the absentee. The Paymaster withdrew Mrs. Marsh's allowance book, as the hon. Gentleman said. It was restored on 18th September, as soon as the true position became known.

§ Mr. R. T. Paget (Northampton)
Was this authorised by an officer in the unit?

§ Mr. Ramsden
The Paymaster is notified by the unit, and according to the normal practice withdraws the allowance book.

§ Mr. Charles A. Howell (Birmingham, Perry Barr)
Is the order signed by an officer or by a clerk?

§ Mr. Ramsden
The Paymaster is notified by the unit orderly room staff, but the officer takes responsibility.
When Mrs. Marsh's allowance book was sent back she was able to draw what she had been prevented from drawing earlier, and she quite rightly suffered no loss because the withdrawal was due to a mistake.
The civil police also took what is for them the normal action to investigate the report of a soldier being absent without leave. They went to see him to make inquiries. They called late on Saturday night; actually at a quarter past twelve on the morning of Sunday, 10th September. They asked Fusilier Marsh to go with them to the police station to sort the position out and verify the facts, and he did so. His explanation was accepted, and he was told to keep in touch with the police and with the Teritorial Army Centre.
The hon. Member said that when the police got there they said that Fusilier Marsh was under arrest, or words to that effect. I can only tell the House that that is not my information. The police, according to their normal practice, following their duties under sections 186 and 187 of the Army Act, went 1089 to satisfy themselves what the position was and to ask this soldier for his explanation. He gave it to the sergeant who called, and the sergeant then asked him if he would accompany him to the police station, so that the explanation might be further checked. This was done by the superintendent, the explanation was accepted, and Fusilier Marsh was given certain advice as to what he should do on the following day.
As my right hon. Friend said in reply to the hon. Member's Question, Fusilier Marsh was at no time arrested. I am sorry that in my letter I referred to the distress of his wife at his being arrested. I used the word in a loose sense. and there is no question of an arrest having been made by the police. The fusilier was asked to go along with them to substantiate his reason for absence, and he did so to their satisfaction.

§ Mr. Paget
What would have happened if he had said that he would not go? When the police pull a man out of bed after midnight and tell him that he is wanted at the police station, is the hon. Member seriously telling us that that is not an arrest?

§ Mr. Ramsden
It is the duty of the police to make inquiries. I know that a quarter past midnight is a late hour to go to a house, but this was Saturday night, and there is quite a little activity going on in most cities even as late as a quarter past midnight on Saturday. The police had to go as soon as they conveniently could when they got this information, and at a time when they could be reasonably sure of finding the man at home. He was quite willing to volunteer an explanation, which was a genuine one. Had he not been prepared to co-operate the police might have had reason to suppose that he was a deserter. But that is a hypothetical point. As it was, he gave a ready explanation and justified himself, and was in the clear.

§ Mr. Paget
Did the police tell him that if he did not want to go to the police station he did not have to?

§ Mr. Ramsden
I have no information that they told him so. I do not see that that point necessarily arose. The soldier went along, and we have 1090 no reason to suppose that he was unwilling to give the explanation which eventually cleared the matter up, from his point of view.

§ Mr. Spriggs
When the hon. Member wrote to me and said he was sorry that the fusilier had been arrested, if he did not mean "arrested" what did he mean?

§ Mr. Ramsden
My right hon. Friend, and I, too, this evening, have made it quite clear that the fusilier was asked to go along to the police station to assist the police in their inquiries. This is quite a common thing to happen and, in the event. I suggest that the police acted correctly, and that the result was to clear up the situation.

§ Mr. Paget
But did not the hon. Member also act correctly in interpreting this as an arrest?

§ Mr. Ramsden
No, Sir; it was certainly not an arrest, and if the hon. and learned Member will allow me to complete my case I may be able to satisfy him further.
The hon. Member for St. Helens has said that he would like Fusilier Marsh to be able to prosecute my Department, or, if that is not possible, for me to agree to pay him some compensation, but I must repeat what my right hon. Friend said, namely, that we have no power to pay Fusilier Marsh any compensation. He did not lose any sum of money. There was no identifiable loss, as I told the hon. Member in reply to his Parliamentary Question.
The hon. Member asked me whether Fusilier Marsh had any right to sue the Crown and cited the advice of his hon. and learned Friend the Member for Northampton (Mr. Paget). The hon. and learned Member's advice is quite right. It coincides with such legal advice as I have been able to obtain. It is that Fusilier Marsh would be in a position to sue the Crown. But I must further tell him that my advice is that in this case the action would be most unlikely to succeed. It may well be that the House, not being a court of law, is not the place to argue the rights and wrongs of that proposition, but what is certain is that the hon. Member's constituent has a right to sue, should he wish. Having said that according to my advice he would be most unlikely to succeed in 1091 that enterprise, I can only repeat that the right is open to him and that if he wishes to take it, no doubt he could apply for legal aid were that necessary. But short of that being done, I am afraid that my right hon. Friend is in no position to offer to make any compensation along the lines that the hon. Member suggests, because there was no question of Fusilier Marsh having been arrested at any time.
I quite see that the hon. Member may maintain that the Fusilier and his wife underwent a certain amount of personal indignity in being visited by the police at a late hour, got out of bed—if they were in bed—and asked to accompany the police to the station. One can make a little too much of this. It is not uncommon for the police to have to make genuine inquiries. My right hon. Friend has apologised, not in the least lightheartedly, as the hon. Member sug- 1092 gested, but with great sincerity, and I repeat that apology tonight. It is no light thing, I hope the hon. Member will accept, for a Minister to acknowledge a mistake on the part of his Department such as led to this chain of events. My right hon. Friend and I have acknowledged the mistake which happened and we have offered our apologies to the hon. Member and his constituent, and I hope that they feel that this carries the genuine weight that it should carry.
I hope that as a result of the debate, and of the hon. Member having aired the case, it will be even more clearly realised that Fusilier Marsh is in no way to blame and that the hon. Member feels a little more satisfied on his account.