HC Deb 02 May 1966 vol 727 cc1385-94

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Fitch.]

10.29 p.m.

Mr. Anthony Stodart (Edinburgh, West)

In presenting my case tonight, I want to be brief and severely factual and not to take up the time of the House unduly. May I first express my congratulations to the newly-appointed Under-Secretary of State for Scotland on what is, I think, his first appearance on the Front Bench in a Scottish debate, even though he is only holding a watching brief on this occasion.

I want to raise the case of a constituent, Mr. James Wyllie. The facts of the case are these. Mr. Wyllie was cited to give evidence in the High Court in Edinburgh in a case of alleged murder. He refused to take the oath and he was sentenced in that court on 21st December last to three years' imprisonment for contempt of court. I should like to make it absolutely clear that I regard this as a very serious offence and that I condone it in no way whatever. But, on 10th February, I received a letter from Mr. Wyllie in prison in Edinburgh. In this letter he made two points. He said that he had been told that he was in prison on a civil charge and thus could receive no remission for good conduct. In this case, of course, provided he qualified for it, that good conduct could mean one year. Secondly, he told me that in a letter received from the Ministry of Pensions and National Insurance on 7th February his war disability pension had been forfeited for the period of his imprisonment.

I wrote to the Minister of State, Scottish Office, raising the question of remission and, on 8th March, I received a letter from him in which he said: Rule 144, (3) of the Prison (Scotland) Rules, 1952, states that civil prisoners … I emphasise those words for the argument I am to develop— shall not be eligible for any remission and the Secretary of State has no discretion to grant it. From that I believe that even if one wished one could not escape the implication that this man is regarded by the Minister of State, Scottish Office, as a civil prisoner.

On 31st March, after I had written to the hon. Gentleman at the Ministry of Pensions and National Insurance suggesting that he should look at the case again in view of the fact that it was said to be a civil case, I received a letter in which he said: When a war pensioner is convicted of an offence, as distinct from being committed to prison for some other reason, his war pension becomes forfeit. With great respect to the hon. Gentleman, I must confess that I did not find that sentence entirely lucid, but I presume—he will correct me if I am wrong—that it draws a distinction between a crime and an offence. The letter goes on: Since you wrote, in view of the suggestion that Mr. Wyllie was committed to prison on a civil charge, we have been in touch with the Solicitor to the Secretary of State for Scotland, who has confirmed that contempt of court in Scotland is an offence under the criminal law. It would seem that the solicitor to the Secretary of State for Scotland is in direct conflict with the Minister of State, Scottish Office.

I now come to what I believe is the nub of the case I wish to put. It is that the Minister of Pensions and National Insurance has got discretion when it comes to exercising the forfeiture of war pensions after offences are committed. There is absolutely nothing whatever mandatory in the Royal Warrant about forfeiture. Article 62 makes it absolutely clear that complete and utter discretion lies in the Minister's hands.

I would urge three reasons why in this case discretion should be used. First of all, I doubt if any precedent exists by which the Minister could find a comparison with this case. I believe, from the pleadings and the petition to the High Court which I have examined, that there has been no similar case in Scotland since 1822. Secondly, there is this conflict—and I think it must be recognised that there is a conflict—between the views of the Joint Parliamentary Secretary and those of the Minister of State whom I have quoted in this matter, and in that I make no complaint because it mirrors very clearly the difference of opinion on this subject which exists among some of the most distinguished advocates and barristers in both countries.

The best description that I have got from a leading advocate on this subject when I asked him whether contempt of court is a civil or a criminal offence is that it is a civil offence which bears criminal sanctions. Certainly there is nothing whatever normal about the criminal procedure which operates in a case of contempt. There is no prosecution as we know it in Scotland by a procurator fiscal, and it certainly is, at best, right in the twilight world between the civil and the criminal.

I should like the Joint Parliamentary Secretary to tell me whether this pension would have been forfeited at all if the offence had been committed in either England or in that other civilised country akin to Scotland, Wales.

The third point that I want to put in my plea for discretion is this. If this man had committed this offence in England or in Wales, and if he had received the same sentence, he would without any doubt, under the Prison Rules of 1964 for England, qualify for a remission of sentence for good conduct, and thus he would at least receive his pension again after two years, provided he fulfilled the good conduct regulations, instead of three.

The purpose of discretionary powers is surely that they should be used in cases of particular difficulty, hardship or complexity. I hope that the hon. Gentleman will agree that this case fits into the last category for the reasons that I have given. I hope, therefore, that he will be able to say tonight that at least if he cannot give a firm assurance that he will exercise his discretion, he will perhaps receive further representations and arguments upon this matter, and thereafter perhaps will look at them and consider exercising discretion.

10.40 p.m.

Mr. Ian MacArthur (Perth and East Perthshire)

The House will be grateful to my hon. Friend the Member for Edinburgh, West (Mr. Stodart) for raising the case of Mr. Wyllie tonight. Two issues arise from what he has put to us. The first concerns the question of the remission of sentence. As I understand it, Mr. Wyllie's conduct during his sentence of three years' imprisonment can earn no remission whatever because it so happens that contempt of court is one of the offences for which the Scottish prison rules allow no remission. This is in marked contrast with the prison rules in England where sentences for contempt of court are subject to remission. Therefore, Mr. Wyllie has been sentenced to what in England would have been 4½ years' imprisonment, and a sentence of this severity for this offence is unique. There must be a strong case here, at the very least, for a review of the Scottish prison rules on this aspect.

The second issue is the loss of Mr. Wyllie's war pension. I appreciate that this is a perplexing problem, but the decision hinges on the Minister's letter to which my hon. Friend has referred. I shall amplify the extract which he read. The Minister said, in his letter dated 31st March, We have been in touch with the Solicitor to the Secretary of State for Scotland, who has confirmed that contempt of court in Scotland is an offence under the criminal law. Mr. Wyllie's pension is, therefore, subject to forfeiture in the same way as those of other pensioners committed to prison for a criminal offence". The loss of Mr. Wyllie's pension, therefore, follows from the belief that his offence is a criminal offence and not a civil offence. It follows also from the Minister's letter that, if Mr. Wyllie's offence were not a criminal offence, there might well be room for the exercise of the discretion which is allowed to the Minister under the Royal Warrant.

With great respect to the Minister, I question the definition of Mr. Wyllie's offence as a criminal one. I agree that it comes within the ambit of the criteria applying to a criminal offence, in so far as it was, apparently, calculated to pervert or, at least, to hamper the course of justice, and no one can condone that. But there are special features which distinguish it from a criminal offence as we know it.

First, there is no charge. Second, there is no prosecutor to move for a sentence. Third, there is no opportunity for a plea in mitigation. Fourth, there is no provision under the Summary Jurisdiction Act or the Criminal Appeal Act for an appeal. Application for review can be made only by resort to what is known as the nobile officium, which, as the hon. Gentleman will know, is the inherent power of the court to see that justice is done.

Surely, the Minister will recognise that these are important differences which distinguish this offence from a criminal offence as we know it. At the very least, there must be room for doubt, and, if there is room for doubt, the hon. Gentleman will agree that there is a strong case for exercising the discretion which is then open to him in regard to the continued payment of Mr. Wylie's war pension.

10.43 p.m.

The Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance (Mr. Harold Davies)

The hon. Member for Edinburgh, West (Mr. Stodart) and his hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur) have raised a case tonight involving important issues of law. When the hon. Member for Edinburgh, West appeals to me as a Welshman to solve problems of Scottish law and important issues of that kind, he is treading on dangerous ground. Some of the issues which he raises are moral issues going very much beyond the scope of an Adjournment debate, in my humble submission, Mr. Speaker, and, although he touched on them in his speech, he will not, I am sure, expect me to deal now with those or with wider and complex legal considerations. I am sure that you, Sir, would call me to order if I were to attempt to do so.

Mr. Stodart

Why?

The Secretary of State for Scotland (Mr. William Ross)

Because the hon. Gentleman is asking for a change in the law.

Mr. Davies

I submit that it would be out of order for a Member of Parliament to ask for the findings of a court to be dealt with in an Adjournment debate like this when, in fact, changes in legislation would be required.

Mr. Ross

Yes. That is why my hon. Friend is answering, not I.

Mr. Davies

It is my task to deal with the two specific points which the hon. Gentleman constructively and ably put before the House—the question of the withdrawal of Mr. Wyllie's war pension while he is in prison and the question of the remission of his sentence. These are two separate questions and I shall deal with them separately.

First, the question of war pension. Mr. Wyllie served in the Army for just under two years between 1960 and 1962, when he was invalided for a duodenal ulcer. He was awarded a pension at the 20 per cent. rate for that condition. This pension was in payment when he was committed to prison.

The hon. Gentleman has given a full account of the circumstances which led up to Mr. Wyllie's receiving last December a sentence of three years imprisonment at the High Court in Edinburgh for refusing to give evidence in a trial for attempted murder. I do not need to go over these circumstances again; they are on the record and are common ground. Suffice it to say that he was convicted and payment of his war pension was suspended. It will remain forfeit for so long as he is in prison. When he comes out it will be put back into payment.

The hon. Member has expressed the view that Mr. Wyllie should not have been deprived of his pension and that, in the unique circumstances of his case, my right hon. Friend should have exercised special discretion to exempt him from the normal rule. That is the nub of his argument. I do not think that the hon. Member wishes to question the propriety of the rule itself. It is well understood that a war pension, like many other forms of public pension, is not paid during imprisonment which results from conviction for a criminal offence. This has been the invariable and accepted practice over the years and it is based on a specific provision in the Royal Warrant.

We temper the rule if the pensioner is married by paying half his basic pension, together with dependants' allowances, to his wife and children whilst he is in prison. Moreover, if a pensioner has been committed to prison for some other reason than a criminal offence—for example, for non-payment of a judgment debt—then his war pension is not forfeit. But it has always been regarded as right that there should be some limitation of the State's liability in respect of a pension paid wholly from State funds if the pensioner is guilty of criminal behaviour which society regards as serious enough to call for imprisonment, during which time he is, of course, maintained, fed and clothed at the public expense.

Mr. Wyllie claimed in a letter he wrote to us before he approached the hon. Member that his offence in refusing to give evidence was not criminal but civil and that for this reason his pension should not have been withdrawn. This point was also taken up by the hon. Member when he wrote to me about Mr. Wyllie's case at the end of February.

I then caused specific inquiries to be made of the Solicitor to my right hon. Friend the Secretary of State for Scotland, and it is clear that grave contempt of court of this kind is an offence under the criminal law in Scotland. I am advised that the same position obtains in England. There is no doubt that Mr. Wyllie was committed to prison for a criminal offence, not a civil one, and in these circumstances my right hon. Friend had no option but to regard his pension as forfeit in the same way as those of other pensioners so committed.

Mr. Stodart

The hon. Member is aware that in the opinion of the Minister of State this man was in prison but could not get a remission because remission was not available to civil prisoners. Presumably the advice given to the Minister of State was that this man was a civil prisoner. I am sorry to have intervened if the hon. Member was about to deal with that point.

Mr. Davies

I will deal with that point if I get the time to do so coherently. The hon. Member suggested that Mr. Wyllie's sentence was a harsh one and that we are adding additional punishment by taking his pension away.

Mr. Stodart

I did not say that.

Mr. Davies

I accept the hon. Member's statement. But, in any event, it would not be for me to say whether the sentence was harsh. I would only say that the case in which he refused to give evidence was a particularly brutal one of attempted murder. And I can assure hon. Members that there is no question here of additional punishment. As I have said, it is a question of some limitation upon the community's liability in the case of prisoners. I think that this is clear if we think of offences such as treason or crimes of violence or cruelty. In the case of offences such as these, I think that public opinion would revolt against the continued payment of a pension, particularly in view of the special character of payments made under the War Pensions Scheme. I know that other offences are less heinous, though they are nevertheless crimes against society.

The hon. Member argued that Mr. Wyllie's offence was forced upon him by fear to some extent and did not arise from criminal intent at all. I can express no opinion about that. But I can add that the test is whether the pensioner, having been found guilty of an offence, is serving a term of imprisonment in pursuance of a sentence of a court, and my right hon. Friend would be put in an impossible position if she were herself called upon to weigh the merits of the sentence which a court had imposed. I am sure that the hon. Member appreciates that. I am afraid that I have to tell him, therefore, that there are no grounds on which, in fairness, we could make a distinction in Mr. Wyllie's case and that his pension will remain forfeit until his release, when, of course, in the light of his disablement at the time, it will be restored to him.

I should like to turn to the question of the sentence imposed upon Mr. Wyllie and the fact that such a sentence does not attract a remission in the normal way. I must emphasise that in dealing with this matter I am replying on behalf of my right hon. Friend the Secretary of State for Scotland, and I think that at this stage I should again remind the House—because it does have relevance to any possible future action by my right hon. Friend—of the serious view which was taken by the Lord Justice-General in his comments on this case and which is reflected in the sentence imposed on Mr. Wyllie.

Under Rule 144(3) of the Prison (Scotland) Rules, 1952, it is clearly laid down that prisoners who are imprisoned for contempt of court shall not be eligible to earn any remission of the period of imprisonment ordered. At the same time, the Rules laid down that any prisoner imprisoned for contempt of court shall receive all the privileges to which a civil prisoner is entitled. These include the right among others to have, if he so wishes, his own food and clothing sent into the prison. This does not mean that a prisoner imprisoned for contempt of court is a civil prisoner. The section of the rules applying to civil prisoners also applies to other categories of prisoners and practice suggests that it has been considered in the past that the grant of these additional privileges may have been made because the prisoner committed to prison for contempt of court has been denied remission.

I am informed that determinate sentences for contempt of court are extremely rare. Before the case which is the subject of tonight's debate, there is no trace of a similar case occurring in the present century. However, there was an occasion as far back as 1889 when the advice of the then Lord Advocate was sought regarding the powers which existed for the release of persons commited for contempt of court before the expiry of the sentence imposed.

The view then, and it is one to which my right hon. Friend the Secretary of State still has regard, is that contempt of court is peculiar in that it is an offence against the proceedings of the court and any period of imprisonment is imposed as the court's view of the punishment necessary to purge that contempt.

It can therefore be argued that, having expressed such a view, only the court can be expected to allow any variation in the original term of imprisonment imposed. However, it would be open to the Secretary of State where he considered it justified to approach the court and, with its agreement, to release the prisoner before the expiry of the original term. My right hon. Friend is of course aware that this procedure would be open to him if at any time he thought that Mr. Wyllie's release before the end of the three years' sentence imposed upon him could be justified. That is the position as far as we can take it this evening.

Question put and agreed to.

Adjourned accordingly at five minutes to Eleven o'clock.