HC Deb 02 November 1966 vol 735 cc503-12

Question proposed, That the Clause stand part of the Bill.

Mr. Allason

I beg to move, in page 20, line 9, to leave out Clause 25.

The Deputy Chairman (Mr. Sydney Irving)

Order. The hon. Gentleman cannot move his Amendment. He can only vote against the Clause when it is put to the Committee if he wishes to do so.

Mr. Allason

I am grateful, Mr. Irvine. In Section 133 of both the Army Act and the Air Force Act, 1955, the doctrine is laid down that nothing restricts trial by civil court even though there may have been a previous military trial, but that when, in these circumstances, the civil court moves on to sentence, it should take account of the punishment already awarded to the man. This arrangement works well in allowing swift military justice in cases of breach of discipline whilst preserving the ultimate rights of the civil court to try the man.

The effect of Clause 25 is to withdraw from the jurisdiction of the civil courts a member of the Armed Forces who has had any military trial at all for substantially the same offence. Here, I take the word "substantially" to mean not a change in the normal civil law of autrefois acquit—exactly the same offence—but an offence of a similar character, depending on the circumstances being the same. This is relevant when we consider the very large number of military offences under the Acts.

Two considerations arise. First, there is the question of introducing the doctrine of autrefois acquit to a military trial to prevent a subsequent civil trial. The second is expanding the doctrine of autrefois acquit from exactly the same offence to substantially the same offence.

The principle of law with which we are concerned has been that civil law is dominant over military law and if this is to be changed the House should give it very careful consideration. But I do not think that there is any intention of changing the doctrine. Military law creates a number of military offences which are similar to civil offences but are considered the more serious because they are in relation to the Services and consequently more suitably dealt with by a military court.

For example, striking a superior officer clearly constitutes a civil offence but it has very important connotations with Service discipline and should be dealt with as a military offence. But this offence cannot be removed entirely from ultimate civil jurisdiction and therefore there are perhaps two solutions. The first is the present solution, under which autrefois acquit cannot be pleaded and therefore in consequence it is reasonable for a military trial to take steps, with the fact in the background that the civil law has not been flouted or that, at some stage, the civil law could impose its own will and try the offender. It probably would not do so but it could.

If we introduce autrefois acquit, the alternative means that military crimes which have a civil counterpart have to be reported to the civil authorities, who must say on each occasion whether or not they want to deal with the offence. This will be unsatisfactory. For example, if, in a matter of striking a superior officer, the civil authorities wished to deal with it as common assault, it would be highly unsatisfactory to both sides. That is an extreme example but one that we have to consider.

The present arrangements are as laid down by Queen's Regulations, paragraph 74. The general doctrine here is that, if a civil offence is committed, the decision as to whether it should be tried by a civil or a military court is made by the chief officer of police. The general principle is that offences which concern civilians or civilian property should be dealt with by the civil court and all other offences dealt with by the military court—that is, of course, with the exception of certain very serious offences which are excluded, if committed in the United Kingdom, from being tried by a military court at all. These include such crimes as murder and manslaughter with which we need not concern ourselves here.

5.45 p.m.

Queen's Regulations neatly skate round the principle by dealing only with civil offences, that is, those charged under Section 70 of the Army Act, which is the offence of committing a civil offence. It rules that the commanding officer will proceed on whether the personal property of a civilian is concerned and that if it is he will report it to the civil police. The same applies to a driving accident. Clearly, there is no need to report any other offences, and this is, of course, a common custom in the Services. If there is a case of drunkenness or fraud or stealing in connection with Service property, such an offence is dealt with without reference, to the civilian police at all.

Half the offences listed in the Acts have corresponding civilian offences. One looks at them at random. Section 43 concerns drunkenness; Section 44 concerns stealing Service property, while Section 45 covers stealing from a person subject to military law. Clearly, these are also civil offences. Section 46 deals with making away with equipment; Section 49 deals with dangerous flying; Section 50 with the inaccurate certification of aircraft; Section 51 with low flying and Section 52 with causing annoyance by flying. I do not know whether the latter is a civil offence, but it should be.

In all these cases, military trial would be a subsequent bar to civil trial on the same facts. If I am right in my assumption, autrefois acquit as applied here would bar a civil trial for the offence of stealing from the public, which would be the offence of stealing on precisely the same facts. The forces must argue that they must have the right to try military offences, but I do not see that any military regulations can positively give them that authority. Equally, I cannot see how the Lord Chancellor could issue an omnibus fiat that any offence falling within a section other than section 70 must be tried by a military court. I do not see how he would have the power to do this. We must maintain the dominance of civil law where an act is both a military and a civil offence. Such a case must first be offered to the civil power.

One can appreciate the difficulties with a serious offence. A Service fraud, for example, would clearly have been exhaustively investigated by the Service, but if a case of fraud is reported to the police, they will undoubtedly wish to investigate it very carefully themselves. That would be highly unsatisfactory, because it would be preferable for a Service fraud to be dealt with by the Service itself. With minor offences, such as a minor assault in barracks, or drunkenness, again the civil police would have to be informed, and they might well wish to investigate the whole case, and thereby do a great deal of damage to military discipline.

The present system causes no difficulty. It might be said that there could be difficulties with visiting forces, but we have had visiting forces in this country for a long time now and there have not been any great difficulties in this regard. That is not a sufficient ground for making this fundamental change in the relationship between military and civil law. The change is bound to obstruct the smooth running of military discipline, and I hope the Government will have second thoughts about it.

Mr. Percy Grieve (Solihull)

I do not share the apprehension of my hon. Friend the Member for Hemel Hempstead (Mr. Allason) about the effect of Clause 25. Having read it with some care, I feel that I must give it a welcome. In effect, it performs an act of justice for the Army and the Air Force of which the Navy for a long time, and possibly always, has enjoyed the benefit.

Section 129(1) of the Naval Discipline Act, 1957, which is set out on page 10 of the Special Report of the Select Committee, says: Where a person subject to this Act is acquitted or convicted of an offence on trial by a court martial or on summary trial under section forty-nine of this Act, a civil court shall be debarred from trying him subsequently for the same offence… The Army and Air Force did not enjoy that benefit and on the face of it it was clearly unfair that the soldier or airman should be in danger of being put in jeopardy twice for the same offence. In practice, it was highly unlikely to arise, and I have never known such a case in my experience, but clearly this apparent injustice between the Services should be righted.

The word "substantially" in Clause 25(1) caused me some difficulty at first. The test of autrefois acquit or autrefois convict might be said to be that a man can say to the court before which he is appearing that he has been either convicted or acquitted of the offence for which he has been brought before that court, or that he could have been convicted or acquitted of the offence which was an element in the offence for which he was originally tried. I hope that I have put it clearly in lay terms.

The question which one automatically asks is whether the word "substantially" enshrines that rule and conveys it to those who have to interpret the Clause. I think that it does. The subsection says: …a civil court shall be debarred from trying him subsequently for an offence substantially the same as that offence… I think that in the circumstances "substantially" will be interpreted by the court in the sense in which the courts have interpreted the rule as between ordinary criminal courts of the land before.

I have only one reservation about this, and I put it by way of question, because I am not at all clear why subsection (2,c) puts a summary conviction by a commanding officer into a category different from that of conviction by court martial. Subsection (2,a) provides: a person shall not be deemed to have been tried by a court-martial if confirmation is withheld of a finding by the court-martial that he is guilty of the offence… That is obviously sound and logical. It would clearly be right for a person to be able to plead autrefois acquit or autrefois convict if the original finding had not been upheld on review.

Similarly, subsection (2,b) provides: a person shall not be deemed to have had an offence taken into consideration by a court-martial in sentencing him if confirmation of the sentence is withheld or the sentence is quashed". By the same reasoning, that is good sound sense. However, subsection (2,c) provides: a case shall be deemed to have been dealt with summarily by the commanding officer or appropriate superior authority notwithstanding that the finding of that officer or authority has been quashed, or the award of that officer or authority quashed or varied, on the review thereof". There may be, I do not know, some good reasons for this distinction, but on the face of it I cannot see what they can be, and I would be grateful if the Government could explain why it is thought necessary to put a summary conviction by a commanding officer into a category different from that of a conviction by court-martial in the making of what on the whole is an improvement in the law.

The Attorney-General (Sir Elwyn Jones)

The Committee has already been informed that Clause 25 applies the common law principle, that a person may not be put in jeopardy twice for the same offence, to the law of the Army and the Air Force. If the Clause is accepted, it will mean that a Service man already tried by a Service court will no longer be placed in jeopardy of similar criminal proceedings in the civil courts. As was pointed out by the hon. and learned Member for Solihull (Mr. Grieve), that principle already applies to the Navy and the Committee may well think that the time has come for parity of treatment for all three Services.

It may well be that the basis of the distinction is that the Navy has always been adored, but the Army has always been feared. I recollect a refrain which is attributed to King James I: God and the Navy we adore In times of danger, not before. The danger passed, all is requited. God is forgotten and the Navy slighted". In this regard, the Navy for a long time has been given the ordinary protection of the principle of the common law that one cannot be tried or punished twice for the same offence. The Committee may think that justice is here being done, but, as the hon. Member for Hemel Hempstead (Mr. Allason) suggested, it is right that we should look carefully at this proposal.

I am satisfied and the Government are satisfied that it will not in fact in any way damage the good relations now existing between the civil and the Service authorities. In broad terms, the hon. Member for Hemel Hempstead has indicated what the arrangements are, but it may be convenient if I briefly remind hon. Members how matters now work. Commanding officers of all three Services are instructed by Queen's Regulations that the decision whether a Service man who is accused of an offence against the civil law should be tried by a Service authority or by a civil court is one for the chief officer of police in England and Wales, or the Procurator Fiscal in Scotland. Commanding officers are instructed to report to the police at the earliest possible moment allegations that Service men under their command have committed any of the offences of treason, murder, manslaughter, treason felony and rape, any assaults which might give rise to charges of murder, manslaughter and rape, and any case in which the property or person of a civilian is concerned, except where the civilian desires the case to be dealt with by the Service authorities.

6.0 p.m.

The position is quite clear, if the civil authorities desire to deal with the matter, in those circumstances they can. When the proposal which is incorporated in Clause 25 was discussed, I am told that the Home Office asked that Queen's Regulations for the Army and Air Force should contain a statement that in the case of offences against civil law appertaining to the use of public highways and road traffic, the decision whether to pursue the matter in a civil court or leave it to be dealt with by the military authorities should be one for the chief officer of police concerned.

That was agreed by my right hon. Friend the Minister of Defence, and the existing arrangements will ensure that prosecutions can be conducted by the civil authority and the police if they wish to do so. It has been pointed out that dangerous driving is a serious offence involving a risk to the public, and all cases concerning this charge should be brought before a civil court, even if the offence is committed on duty or in purported obedience to orders. I am satisfied, and I hope that the Committee will be, that this proposal, which is really directed to doing justice to the members of the Army and Air Force, is justified and will have no damaging consequences to the civil arm of the law.

May I add this reassuring qualification. The Clause does not affect the right of the citizens to bring civil proceedings against the Service man. That additional bulwark in our legal system has always been an important safeguard of the rights of the individual. Indeed, financial compensation to the wronged party rather than punishment of the wrongdoer is often more acceptable to the wronged party. Without being too cynical about the matter, that is the situation which presently exists, and it is perhaps not a bad thing in many cases.

A question was asked about the use of the words, …substantially the same as that offence. and the hon. and learned Gentleman who raised the matter may be reassured when I tell him that the words are based on words used in another place in the case of Connelly v. The Director of Public Prosecutions to describe the common law principle of autrefois convict. We have taken the language from the decision of the House of Lords sitting judicially in that matter, and I think that it meets the needs of the situation.

I was asked about the apparent distinction between (2,a) and (2,c). The reason for that is that there is a difference between the withholding of confirmation and the process of quashing. The finding and sentence of a court-martial are not effective until they have been confirmed. Under normal principles, the court may be dissolved at any time before the trial is completed and a fresh court convened for the trial of the accused. If the finding of guilty of a court-martial is confirmed and is subsequently quashed, either by a reviewing authority or the Courts Martial Appeal Court, then a retrial is barred, just as it is if a finding of guilty by a C.O. or the appropriate superior authority is quashed, unless the Courts Martial Appeal Court or the Army or Air Force Board quashed the finding on the ground that fresh evidence was available.

That is the explanation of the difference between (2,a) and (2,c), and I hope that it provides an explanation satisfactory to the Committee. Accordingly I commend this Clause to the Committee.

Mr. Allason

The learned Attorney-General has told us what the present arrangement is regarding the reporting to the police of offences against the civil law, but he has not dealt with the important point of what is to happen in cases where a military charge lies but there is a parallel civil offence. In these circumstances, have all of these offences to be reported to the civil law? They are not reported at the moment, and it seems that it would make appalling difficulties for military discipline if every offence which has a corresponding civil offence has to be reported, with all the consequent difficulties that I have described, of the police coming along and taking long statements from witnesses, purely in order to find out whether they are to take the matter into their hands.

There is also the fact that there is often a long delay before there is a decision in civil trials. A military trial is, I will not say nasty and brutal, but it is certainly swift. It is of the greatest importance to have quick trials, people should not be left waiting about because there is a possibility that the civil law will want to try the case.

The Attorney-General

As I understand it, the position is that most of the cases that we are considering will not affect civilians. If civilians are affected, the instructions to commanding officers are quite clear, and I have indicated them. They are that the offence should be reported to the police and a decision whether to proceed in respect of it is one for the chief of police to take. If the offence relates to military personnel only, in respect of their military duties, save for motoring offences to which I made special reference, then presumably the military authorities would proceed. I cannot imagine that the civilian power would have any grounds for complaint.

The position is perfectly clear. If civilians are affected then the duty of the Service authorities is to report the matter to the police authorities so that they can decide whether to proceed. In the ordinary event the proceedings would take place in a civil criminal court. With regard to the aspects of delay, and with respect to the hon. and learned Gentleman, I think that he has over-stated the case about the length of delay in bringing ordinary cases to trial. There has been great improvement in this in recent years and it is not a factor which need cause the Committee concern, although naturally the Lord Chancellor and the rest of us are very anxious to press on with speeding up the bringing of cases to trial. I am very reassured to hear from him that courts martial procedure has apparently speeded up. It seems to have improved since the days when I was in the Army.

Mr. Allason

I was referring to summary trials, which are the essential feature of Army discipline. The vast majority of trials are summary trials, and it is very desirable that they should be dealt with speedily.

The Attorney-General said that there will be no requirement to report to the civil authorities cases which do not concern the person or property of civilians. This means that the whole concept that the civil law is superior to military law is given up and that in future military law will be on an equal footing with the civil law in cases where no person or property of a civilian is concerned. Therefore, in future, jungle justice will stand on equal terms with civil justice.

The Attorney-General

Save for the unhappy reference to jungle justice, which I must enthusiastically and immediately repudiate, the hon. Gentleman's summary is accurate. Even in the days when I was in the Army, I do not think that it was jungle justice.

Question put and agreed to.

Clause ordered to stand part of the Bill.

Clauses 26 and 27 ordered to stand part of the Bill.