§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. MacArthur.]
§ 12.11 a.m.
§ Mr. Denzil Freeth (Basingstoke)
I want tonight to raise a question of principle—a question of principle which came to my notice from a particular case. While, on the question of principle, I understand that I am to be answered by my hon. Friend the Joint Under-Secretary of State for the Home Deparment, I rejoice that my hon. Friend the Under-Secretary of State for Defence for the Army is here, because the particular example from which I wish to proceed to the general principle came to my notice from a case which involved his Department.
The individual case concerned my constituent, Major Cory, who was court-martialled in Kenya in 1961 and found guilty after a trial lasting no less than 43 days. After he had served the sentence imposed by the court he finally succeeded in appealing against its findings to the Courts-Martial Appeal Court. This court quashed his conviction, severely criticised the prosecution during the proceedings of the court-martial, and criticised the summing up. A full resumé of the case will be found in Hansard for 17th December 1963, in columns 1049to 1059.
The essential point is that because Major Cory served his sentence in full before the Courts-Martial Appeal Court quashed his conviction the Government decided that he was entitled to an ex gratia compensation payment. As the House will know, the procedure in such cases is that which was announced by my right hon. Friend the Foreign Secretary, then the Home Secretary, on 2nd May, 1957, when he said:I have, however, decided that in future where a decision is taken to make an ex gratia payment out of public funds to a person who has been detained in custody as the result of an error not involving legal liability the advice of an independent person of standing should be sought on the amount to be paid."—[OFFICIAL REPORT, 2nd May, 1957; Vol. 569, c. 338.]In the case of Major Cory the decision to award an ex gratia payment was 1311 taken during the autumn of 1963. He was never informed of this decision, nor were his solicitors. This is why I have to say that the decision was taken "in the autumn" and not on a specific date. Until December, 1963, Major Cory's solicitors were still having what I might describe as desultory correspondence with the Claims Department of the War Office.
The main points, however, are, first, that Major Cory was never told of the Government decision to award him an ex gratia payment and, therefore, of the reference of the case to the Official Referee as the man of standing chosen in this instance to advise the Government. Secondly, Major Cory was never given an opportunity to submit to the person chosen by the Government as the adjudicator or adviser of the amount of compensation any statement of the damage which he had suffered.
The War Office put forward two Maginot lines of defence for the course of action. First, the Department stated that it knew all about the damages which Major Cory had suffered or incurred. Secondly, it stated, to quote a letter from my hon. Friend the Under-Secretary of State for Defence for the Army of 7th May last, thatThe procedure followed in Major Cory's case has been entirely in accordance with the arrangements announced in the House in 1957.This is where the particular reaches out to the general.
To take the first contention of the War Office—that it knew all about the damages that Major Cory had suffered or incurred—I am convinced that the War Office did not know all the damages which he had incurred. It knew part of his legal expenses. It did not know all of them, including counsel's fees. It did not know of all the difficulties he had experienced in gaining equivalent employment, or even employment at all, or the net loss of salary which, at the end of the day, he was suffering because the job which he got was bringing him in less than his Army position.
As to actual figures, the War Office had only two letters from Major Cory's legal advisers, neither of which really went into detail, not least for the reason which the first letter, of 6th May, 1963, 1312 stated—and I quote the letter from the solicitors to the War Office—thatno one in authority seems willing to discuss the matter with us.As justification, the War Office quoted the words from my hon. Friend's letter which I have just read.
The Home Secretary's announcement in 1957, however, said nothing about the aggrieved person not being told that his case would be referred to an independent person of standing such as the Official Referee. The announcement in 1957 did not state that no representations might be made by the aggrieved person to the person of independent stature so that he might be able the better to compute what he thought would be fair compensation. I ask my hon. Friend the Joint Under-Secretary of State for the Home Department: does she not consider that natural justice demands that somebody who is to be compensated should have the right to submit details of the damage suffered and the expenses incurred?
In a letter to me of 31st January this year, my right hon. Friend the Minister of Defence for the Army wrote:You will appreciate, however, that these assessments are not made by adding together a number of costed items, but on a broad appreciation of all relevant circumstances and on the assessor's experience of comparable cases.I appreciated nothing of the sort and I appreciate nothing of the sort now. Compensation, if one thinks about it, must nearly always be compensation for two things. First, it is for bodily pain and suffering or mental anguish which has been experienced.
Here, I agree, a general assessment alone is possible and applicable. The compensation is also for a loss which may either be such a thing as loss of liberty, as in Major Cory's case, where a general assessment alone is possible, but it can also be an actual loss of money, a pecuniary loss or actual extra costs incurred. Surely, these are in almost every case ascertainable.
When my right hon. Friend the then Home Secretary made his announcement on 2nd May, 1957, in answer to a Question from the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes), the hon. and learned Member went on in a supplementary question to 1313 ask my right hon. Friend whether he wouldgo a little further by giving accused persons an opportunity of adducing evidence and by changing what is now an ex gratia grant into something of the nature of compensation which would bear a direct relation to the wrong which the acquitted person had suffered.My right hon. Friend replied, rather typically:That is going too wide. We must be content with small mercies as we get them."—[OFFICIAL REPORT, 2nd May, 1957; Vol. 569, c. 339.]In fact, the hon. and learned Member's Question referred to evidence and argument about how a possible miscarriage of justice had occurred and its magnitude, that is to say, where there can be no actual computable liability.
This is also borne out by the further exchanges between the hon. Member for Nelson and Colne (Mr. S. Silverman) and my right: hon. Friend, and when my hon. Friend the Joint Under-Secretary replies I hope that she will make it absolutely clear that where it is agreed that some compensation should be paid, whether because of a moral or a legal liability, then surely there is nothing in the then Home Secretary's reply, nor anything in logic, to deny the normal right of an aggrieved person to submit an itemised statement of the losses suffered or the expenses incurred in that connection.
It is no answer at all to say that the Department concerned has submitted its knowledge of these things to the assessors because, even with the best will in the world, no one Department knows all the facts and every fact of a particular case. In Major Cory's case, it most certainly did not, and it is surely an unwarrantable assumption to claim that in all cases it will. Hon. Members are very well aware that justice demands that justice is not only done, but is seen to be done.
An ex gratia payment is made by the Government where there is no legal liability but a moral liability, and the very essence of reference to the Official Referee or some other independent person is to obtain a fair assessment; but how can a fair assessment be made without all the facts? I ask my hon. Friend to put that to her right hon. Friend. Furthermore, an ex gratia payment always contains an element of generosity on the part of the Government: it shows 1314 the Government's desire to compensate for a wrong which it has inflicted, but a wrong which cannot be the subject of a suit in the courts. Surely the whole aim of the exercise is to satisfy the aggrieved person, to do the right and just thing, and to provide compensation which is not only fair, but which is recognisable as such.
Yet this cannot be the result so long as the aggrieved person still feels aggrieved, and so long as independent persons who have examined the matter feel that he is right to feel aggrieved, that he is right to remain in an aggrieved state. One cannot have fair compensation so long as the aggrieved person is not, first, told of the decision of the Government to grant an ex gratia payment and of reference to an independent person such as the Official Referee, and secondly, is not permitted nor even asked to submit a full statement of total losses, damage, and expenses incurred. I do not ask that the aggrieved person should have the right to state his case in person to the Official Referee or whoever is acting as the assessor. The Official Referee would not be apportioning blame, but he should have all the facts so that a fair and proper assessment could be made.
I ask for sense and open justice, and I would remind my hon. Friend that there is a political side to this. The Government at present quite often pay out quite generous compensation, but because of a feeling of injustice which is left, do not gain credit for their generosity, but only odium for their unfairness.
In 1957, the Government set up the Franks Committee on Administrative Tribunals and Inquiries and in the following year, the Tribunals and Inquiries Act was passed and, in this case which I have submitted tonight, I believe that the Government could take a further step along this road of setting right the balance between the individual and the Government machine.
I hope, therefore, that my hon. Friend will be able to announce tonight a change in the machinery or, if not, at any rate will be able to think about it again in time for an announcement to be made before the General Election, even if only in the Conservative Party's election manifesto.
1315 Let justice not only be done, but be seen to be done. If I may make a purely Conservative quotation, Disraeli said, in 1851:Justice is truth in action.If the whole truth is not known, and if all the facts are not known and are not accepted as being known, then there can be no justice. That there shall be true and open justice in such cases is my plea tonight.
§ 12.26 a.m.
§ The Joint Under-Secretary of State for the Home Department (Miss Mervyn Pike)
My hon. Friend the Member for Basingstoke (Mr. Denzil Freeth) has been very persuasive in his speech and has explained very fully the reasons which have led him to raise this subject tonight. He has, as we all know, taken a very close interest in this case and I am sure that we all appreciate his concern to see that justice is done not only to Major Cory, but also to others who may find themselves in a similar position.
To put the debate in its context, I should like to remind that House again—and very briefly—of the circumstances of the case which my hon. Friend has used to illustrate his argument. Major Cory, an officer in the Royal Army Service Corps, was convicted by a general court-martial in 1961 of misappropriation of regimental funds. He was sentenced by the court to be cashiered and to serve two years' imprisonment, but the sentence of imprisonment was later reduced by the military confirming authority to one year.
Subsequently, he appealed, and on 9th April, 1963, after he had completed the prison sentence, the Courts-Martial Appeal Board quashed the conviction on the grounds that there had been a miscarriage of justice. The Appeal Court made a number of criticisms of the conduct of the proceedings, which have been fully considered by my right hon. and learned Friend the Lord Chancellor and my right hon. Friend the Minister of Defence for the Army but do not immediately concern us tonight.
Following the quashing of the conviction, Major Cory was reinstated in the Army and received back pay and allowances in full, but, in addition, my right 1316 hon. Friend then the Secretary of State for War decided that a further payment should be made ex gratia from public funds in consideration of the hardship caused by the conviction. Having reached that decision, he invited one of the Official Referees of the Supreme Court to consider the facts of the case and to advise him on the amount of the ex gratia payment.
Finally, after a full examination of the facts and the advice received from the Official Referee, my right hon. Friend authorised payment to Major Cory of £7,500. This was in addition to the back pay and allowances which he had already received. It is, I gather, my hon. Friend's view that this is not enough. He considered that the award did not take sufficient account of either the disgrace or the additional expenditure caused to Major Cory by his conviction, and that more adequate payment might have resulted if Major Cory's solicitors had had an appropriate opportunity of putting his case to the independent assessor.
As the House will realise, it is not for the Home Secretary or me to answer for the decision in Major Cory's case, and, indeed, my hon. Friend does not expect me to do so. He is not concerned tonight to reopen that particular case, but with the general question of the procedure for determining the amount of the ex gratia payment which is made to a person wrongfully convicted.
In referring the case to an independent assessor my right hon. Friend the Secretary of State for War was adopting the procedure which has for some years been followed by the Home Office in civil cases and it therefore falls to me to explain its nature and purpose. The first point that I want to make clear is that we are not here considering the payment of compensation in satisfaction of a legal liability, and this, of course, my hon. Friend has made equally clear.
A person who has been detained contrary to the law has a legal claim to damages for false imprisonment and his remedy is to proceed in the civil courts where his claim may be judicially examined and determined and an award of damages be assessed. But there is no question of false imprisonment in the legal sense in a case of a person who 1317 has been detained in pursuance of a lawful order of the court, even if the decision is subsequently found to be wrong. Any payment from public funds which may be made to such person is made as an act of grace, and there is no right to claim it.
The decision whether to make such an ex gratia payment is essentially one for the responsible Minister. It is only in exceptional circumstances that a Minister will feel justified in authorising payment, but it is not necessary for me to discuss tonight the grounds on which payments are made.
In Major Cory's case my right hon. Friend the Secretary of State for War decided that there were grounds for making ex gratia payment, and what is now in issue is solely the procedure for deciding what the amount of the payment should be. There is, of course, no obligation on the Minister concerned to seek outside advice on this. For many years it was the practice for the amount of payment to be assessed by the Department itself, in consultation with the Treasury, on the basis of all the available information including any representations by or on behalf of the person concerned.
As my hon. Friend said, my right hon. Friend the Foreign Secretary, when he was Home Secretary, felt this to be unsatisfactory, and in 1957 he initiated the present procedure for reference to an independent assessor. This procedure, which has been followed in appropriate cases ever since, is entirely informal. It is the practice for the Department to send to the assessor a comprehensive memorandum setting out the reasons which have led to the decision to make an ex gratia payment and all the circumstances relevant to the assessment of the amount; these include any representations received from or on behalf of the person concerned. These papers are considered privately by the assessor, who then makes a recommendation to the Minister on the amount to be paid. The Minister is not bound to accept this recommendation and the ultimate responsibility for the amount of the compensation remains his, but I must admit that I know of no case in which an award of less than the amount recommended by the assessor has been made.
1318 The use of the Official Referee in the case of Major Cory has, I think, led to some misunderstanding which I would like at this point to try to remove. The assessor acts in a wholly personal capacity, though he is usually the holder of a judicial office. His services are, moreover, entirely voluntary, and I should like here to acknowledge the services so willingly rendered by those whom the Home Secretary has asked to help him in this way. The assessor is not always the same person. In cases of persons convicted summarily we have consulted a senior stipendiary magistrate. In other cases we have invited the opinion of a chairman or deputy chairman of quarter sessions or of one of the Official Referees of the Supreme Court.
In Major Cory's case my right hon. Friend the Secretary of State for War decided to refer the case to an Official Referee, and here I should explain that in his judicial capacity the Official Referee is concerned with the assessment of damages in civil courts, and his experience is clearly invaluable in advising on a claim for compensation such as arose in this case. But—and this is where, I think, there may have been scope for misunderstanding—the Official Referee doss not act in these cases in his judicial office, and the reference to him in no way implies that the case has been referred for judicial determination. He is simply asked for a personal opinion on the facts, and there is no question of his exercising any formal functions.
My hon. Friend argues that the aggrieved person should have the right, if he wishes, to put his own case for consideration by the assessor. I am sure that no one would disagree with this, and there is provision for it in the present procedure. It is open to the person concerned or his solicitor to send to the Minister a full statement of the considerations which he thinks should be taken into account in determining the amount of the payment, and this will be placed before the assessor. In Major Cory's case, for example, all the correspondence received from the solicitor on his behalf was referred to the assessor. I do not think that it would be appropriate or helpful to provide for, as my hon. Friend suggested, a personal hearing by the assessor.
§ Mr. Denzil Freeth
Will not my hon. Friend agree that there is a difference between the case where the amount of compensation is going to be decided by the Minister himself and where protracted negotiations, as very often happens, go on, as with the Claims Department of the old War Office, and the case where the matter goes to somebody outside the Department to make a once and for all judgment? One of my greatest complaints about Major Cory's case was that at no stage was he ever given to understand that the matter had gone to an assessor for his independent advice, so that a total statement of the case could be made. The solicitors were under the impression that they were still arguing with the War Office, first, whether there should be any compensation, and, secondly, the whole question of a long wrangle over the amount that the Claims Department was accepting. This is the matter of which I complain.
§ Miss Pike
I agree. This is the nub of my hon. Friend's argument. But I wanted to put the whole procedure forward to show that, in normal cases, it has been found that it gives the opportunity for all the facts to be put before the assessor.
My hon. Friend has made the point very forcefully that, in cases like this, where negotiations are protracted, it is possible that, because of ignorance of the fact that an ex gratia payment is being considered, the full facts of the case are possibly not put forward by the aggrieved person or his solicitor.
1320 I stress that we have not had any criticism of this procedure in the past, because it has been felt that, in stating the claim in the first instance, the full facts had been put forward and that it is open to the solicitor at any point in the procedure to put in more facts or additional evidence should he think it necessary.
My hon. Friend's point is one that we must look at again. There is no doubt that, to see that justice is being done, it is important that the aggrieved person should know he has the right and opportunity to put the full facts of his case and claim for compensation before the Assessor.
My hon. Friend would not wish me to given an undertaking tonight except to say that I have taken the point of his argument. It is a very forceful one and I am sure my right hon. Friend will consider it and, in the light of what has been said, take steps to ensure that, in future, the procedure in these cases is as fair as we can possibly make it.
§ Mr. Freeth
Will my hon. Friend also undertake to put to the Home Secretary that the whole procedure should be laid out completely and clearly, so that at any stage the aggrieved person or his solicitor knows what is likely to happen and what his rights are?
§ Question put and agreed to.
§ Adjourned accordingly at twenty-three minutes to One o'clock.