ARMED FORCES BILL (Hansard, 14 December 1966)

§ The Attorney-General (Sir Elwyn Jones)
I beg to move, That this House doth agree with the Lords in the said Amendment.
Mr. Speaker, I think that it may be convenient for the House to take this and the next Amendment together.

§ Mr. Speaker
I have no objection if the Howe has none. So be it.

§ The Attorney-General
These Amendments arise, in part, from discussions in the House, and two Amendments which were moved in another place. The first Amendment is designed to correct what, on reflection, is thought to be a technical defect in the Bill, and to make a small but necessary drafting alteration.
The Clause, as we considered the matter in its earlier stages in the House, is intended to bring the Army Act, 1955, and the Air Force Act, 1955, into line with the Naval Discipline Act, 1957, and also with the common law, by providing that a person who has been tried by court-martial or dealt with summarily under the 1955 Acts shall not subsequently be tried by a civil court for substantially the same offence.
This is provided for by the substitution of a new Section for the existing Section 133 of the 1955 Acts. Subsection (1) of the new Section, as set out in the Bill as read the Third time in the House of Commons, is as follows: 133.—(1) Where a person subject to military law—

(b) has been charged with an offence under this Act,…and has had the charge dismissed or has been found guilty of the charge by his commanding officer or the appropriate superior authority, 614 a civil court shall be debarred from trying him subsequently for an offence substantially the same as that offence; but except as aforesaid nothing in this Act shall be construed as restricting the jurisdiction of any civil court to try a person subject to this Act for an offence."
It is thought now that there is a technical defect in the use of the words has had the charge dismissed". in that these words cover not only a case where a commanding officer or an appropriate superior authority dismisses a charge with which he has power to deal summarily, but also a case where the charge is a court-martial case which the commanding officer cannot deal with summarily, but which may be dismissed by him after preliminary investigation.
This preliminary investigation by an accused's commanding officer is provided for by Section 76 of 'the 1955 Acts, and applies to all charges whether they are triable summarily by a commanding officer or by court-martial. Section 77(4) of the 1955 Acts, however, provides that where a commanding officer has investigated a charge with which he has no power to deal summarily, he may nevertheless dismiss the charge if he is of opinion that it ought not to be further proceeded with. The words has had the charge dismissed in the new Section 133(1,b), before the Clause was amended, therefore cover the case of dismissal of a charge not only after a summary trial, but also after a preliminary investigation prior to trial.
In the civil courts the proceedings corresponding to the preliminary investigation by a C.O. of an offence with which he has no power to deal summarily are committal proceedings before a magistrates' court, sitting as examining justices. In a case where the magistrates have no power to try the charge before them summarily it is their function to decide, in committal proceedings, whether or not to commit the accused for trial by a higher court. If, in those circumstances, the accused is discharged by the magistrates he can nevertheless be charged later on for the same offence, because the committal proceedings do not, in law, constitute a trial.
It seemed quite reasonable that the dismissal by a C.O. of a charge which he cannot try summarily should none the less bar further proceedings under the 1955 Acts, because commanding officers 615 are responsible for the discipline of the units they command, but on further consideration it was thought that the dismissal of a charge by a commanding officer, where there has been no trial in the strict sense of the term, but only a preliminary investigation, ought not to bar the jurisdiction of the civil courts. This kind of approach was stressed in our consideration of the Bill in the House earlier.
It is in those circumstances that a Government Amendment was put down to provide for the replacement of the words: has had the charge dismissed by the words has had the charge dealt with summarily", so as to ensure that the new Section 133(1,b) shall bar trial by a civil court only where there has already been a summary trial—a proper and full trial, in the legal sense of the term—under the 1955 Acts.
This change, incidentally, will bring the 1955 Acts more closely into line not only with the common law, but also with the Naval Discipline Act, 1957, an Act which has given protection to the Navy for a very long time.

§ Sir Harmar Nicholls (Peterborough)
Ought not the words to be, "has had the charge dealt with summarily and has had the charge dismissed"?

§ The Attorney-General
Either found guilty or had the charge dismissed. It is not necessarily dismissed. If it has been dealt with summarily one way or the other under the powers given to the C.O. to deal with matters summarily as a full proceeding and not merely as a preliminary investigation, that disposes of the matter, and the soldier, in those circumstances, is immune from retrial before a civil court.
But the change will bring the Army and Air Force Acts into line with the Naval Discipline Act, 1957. Under this Act, Section 129(1) bars subsequent trial by a civil court for the same offence where a person has been acquitted or convicted on trial by a court martial or disciplinary 616 court, or on summary trial under that Act. The bar on trial by the civil courts imposed by that Act, therefore, applies only where there has already been a trial, and the Amendment applies the same principle to the 1955 Acts. This point was raised by hon. Members on both sides of the House at an earlier stage, and I apprehend that it will meet with the approval of hon. Members.
The drafting point covered by the second Amendment is simply the omission of the reference to the Air Force Act, 1955 or the Naval Discipline Act, 1957 in the new Section 133(1,b) and the words at the end of subsection (2) of the Clause. The bar on further trial by the civil courts imposed by each of the 1955 Acts and by the 1957 Act need apply only to persons previously tried under the particular Act concerned. The references to the other two Acts are therefore unnecessary, and the Amendment provides for their omission.

§ Mr. Humphrey Atkins (Merton and Morden)
I do not think that there is any difference between us on this provision and on what we are trying to do, We are trying to ensure, as the right hon. and learned Gentleman said, that the law shall provide that no person shall be tried twice for the same offence. The difficulty in this case seems to have arisen by the use of the word "dismiss" in the Army Act, 1955, which seemed to many of us to imply that, when a commanding officer had dismissed a charge, he had thoroughly investigated both sides of it and come to a decision.
The House will be grateful to the Attorney-General for explaining that this is not the case and that the words in the 1955 Act can mean, as, to a layman, they seemed not to mean, that the commanding officer has decided that he has no power to deal with a particular charge. We accept the explanation given by the right hon. and learned Gentleman and are quite agreeable to accepting the Lords Amendments.