GUARDSMAN GABRIEL

HC Deb 06 February 1967 vol 740 cc1113-22

The Secretary of State for Foreign Affairs (Mr. George Brown)

With your permission, Mr. Speaker, and that of the House, I wish to make a statement on Guardsman Gabriel.

I fully understand and, indeed, share, the strong Parliamentary and public feeling concerning Guardsman Gabriel's case, and I think that the House and country will wish me to make a statement clarifying the facts of the position as they now are.

Appeals from decisions of the High Court in Aden are heard by the East African Court of Appeal, consisting of three distinguished British judges. The Chairman of the Court, Sir Charles New- bold, has said that an important point of law had been raised in Guardsman Gabriel's case and that he would, therefore, be announcing later the reasons for the Court's decision to reject the appeal. Sir Charles Newbold will make this announcement on 13th February. It will then be for Gabriel's lawyers to consider with him the possibility of petitioning the Privy Council, in the light of the reasons announced by Sir Charles Newbold.

I should like to draw the attention of Members to the importance, in the interests of Gabriel himself, of the possibility of Privy Council proceedings being thoroughly studied, since there is no other way in which he could alter the present fact that he is a condemned murderer. The question of clemency arises only when there is no further possibility of Gabriel being cleared of the charge of murder.

I can assure the House that if and when the question of clemency does arise, it will be considered with the utmost urgency by the High Commissioner in Aden, as the representative of the Queen, and, in the last resort, by myself, to whom it would then fall in that event to advise the Queen on exercising clemency herself.

Several Hon. Members

rose—

Mr. Speaker

Order. Before calling hon. Members to ask supplementary questions, I wish to remind the House that the rule which forbids the discussion of a capital sentence while it is pending exists to avoid subjecting the persons responsible for advising clemency to the pressure of Parliamentary discussion. To the extent that those responsible offer the matter for Parliamentary discussion, the rule can and must be relaxed. I am, therefore, prepared to admit supplementary questions within the limits of the statement and related matters. However, the Foreign Secretary did not, in my view, touch on the circumstances which would be considered in advising on the exercise of the Prerogative of mercy, and questions dealing directly with that issue would not be in order.

Lord Balniel

We had no warning of the Ruling which you have just given, Mr. Speaker, but I understand that it is possible to put questions to elucidate facts arising out of the statement which the Foreign Secretary has made.

The right hon. Gentleman has made a statement on a matter of the utmost gravity, because it concerns a man whose life is at stake. I have two questions to put to him. The first is constitutional. Although the statement has been made by the Foreign Secretary, are we to understand that the courts in Aden are in no way regarded as courts of a foreign country but they are still regarded as courts of a Crown Colony? Further, who will ultimately advise the Queen on the Royal Prerogative? I understand from his statement that it is the Foreign Secretary.

Second, to a layman it is rather surprising that a Service man who is posted in this country or, for instance, to Germany, were he to have committed this crime, would not have been subject to the death penalty, whereas, purely because he has been in Aden, he is subject to the death penalty. Are not the Government responsible for this man's life wherever he may be posted? The House will look to the Government to ensure that the Service man does not suffer because British and Aden law are different.

Mr. Brown

Jurisdiction over the offence with which Guardsman Gabriel was charged was not transferred to the courts-martial procedure by the Order entitled the United Kingdom Forces (Jurisdiction by Colonial Courts) Order passed by the House in 1965, which made a distinction between offences committed on duty and those committed off duty. Offences committed on duty are triable by courts-martial but those committed off duty are not. That, therefore, is the situation.

The noble Lord asked whether the courts are Crown Colony courts. Yes, they are.

He asked also whether, in the end, because of the special situation, it is my responsibility to advise the Queen. Yes, Sir, it is.

Mr. Sydney Silverman

My right hon. Friend will realise that there are a number of questions which it would be inappropriate to deal with in this fashion at this time, but may I put to him two questions which, I hope, are in order.

Is he aware that it has always been the invariable practice of the Home Secretary to make up his mind very quickly whether to advise Her Majesty to exercise her Prerogative of mercy in cases where the final appeal might be a long way off or, possibly, indefinitely delayed. Does my right hon. Friend appreciate, therefore, that it might be desirable in everyone's interests that he should follow that practice if an appeal to the Privy Council takes a very long time, as almost inevitably it will?

Second, why, in the arrangements which were made, were no safeguards introduced to ensure that a young British soldier serving with his unit on foreign service is not exposed in the courts of the country in which he is serving to penalties to which he would not be exposed for a corresponding offence committed in this country? Is it not a fact that all the Visiting Forces Agreements which have ever been made in this country have taken steps to ensure that soldiers are protected in this way? My right hon. Friend will agree, I am sure, that we did not abolish the death penalty in this country in order to make British soldiers subject to it abroad.

Mr. Brown

Regarding what my hon. Friend says is the practice of the Home Secretary, I cannot believe—this is the very first time I have ever been in this situation—that it could possibly be in the interest of Guardsman Gabriel that I should make up my mind, much less publicly declare my conclusion, on a question of commutation of the death sentence when he still has an opportunity to clear himself of the charge. I should have thought that, in the interests of the man and his family, and, indeed, of the British Forces, we ought to allow the processes of law to take effect before I consider the quite hypothetical question of whether the death penalty should be commuted.

The question of what the courts of Aden can award by way of penalty and whether that should be brought into line with the present position in this country is a matter which I am well willing to consider, but I remind my hon. Friend that, in considering it, consideration must go further than the position of a young British guardsman; it would, of course, have to take into account the situation in Aden at this moment.

Mr. Thorpe

Is the Foreign Secretary aware that the House will be grateful to him for giving public confirmation of the present legal position in this case? May I ask him three short questions? First, although Guardsman Gabriel was represented by a distinguished member of the Kenya and English Bar, who is a silk, Mr. Georgiadis, should he feel that he wants his legal team strengthened by those with experience of Privy Council work, may we take it that finance would not be a bar? Secondly, as appeals to the Privy Council are sometimes delayed by as much as six months, can the right hon. Gentleman, without improperly interfering with the machinery of the Privy Council, do all he possibly can to expedite the hearing of such an appeal? Finally, although we hope that he will not have to consider giving advice in regard to the Prerogative, would he bear in mind the case of Alan William Norton in Jersey, in which the Home Secretary was faced with a precisely similar case and took a particular course of action?

Mr. Brown

On the first part of the question, Guardsman Gabriel has been having aid from the Army Legal Aid Fund. It is a hypothetical question, and I pass no judgment on the competence of the legal team looking after him, but if the position put by the hon. Member arose I am sure that there would be no difficulty. On the question of expediting the appeal, Sir Charles Newbold has not yet delivered his reasons for the judgment on what he calls an important point of law. Therefore, I do not want to put Guardsman Gabriel's lawyers under undue pressure so that they do not have adequate time to consider how they would deal with the matter. But the hon. Member may like to know that I have this morning been in touch with everybody concerned to ensure that the case does not hang around any longer than is necessary for the adequate defence of the guardsman, because one wants to see total justice done, with special regard to the interests of that unfortunate young man. The hon. Member also asked me about a previous case. Yes, I have that in mind.

Mr. Gurden

Is the right hon. Gentleman aware that, in spite of all my efforts, the guardsman's family, who are my constituents, have suffered great anxiety? Is he aware that some of this could have been avoided if the Minister of Defence had earlier made a statement on the lines of that made today? Secondly, would the right hon. Gentleman assure the House that there is no possibility under any circumstances that this man could be executed before all the processes have been gone through?

Mr. Perry

He would hang if you had your way.

Mr. Brown

There is no possibility.

Hon. Members

Withdraw.

Mr. Brown

This is too serious a matter for us—

Mr. Speaker

Order. I understand that the hon. Member for Battersea, South (Mr. Perry) said something he should not have.

Mr. Perry

I beg to withdraw that remark.

Mr. Brown

This is a very important case, in which we must balance two things, and I ask the hon. Member for Birmingham, Selly Oak (Mr. Gurden) to take that into account. We have not only to be fair beyond doubt to the young man concerned, but we must also be seen in the eyes of the world to be defending justice. We must also be careful not to seem to be leaning over for the one against the other, particularly in the circumstances in Aden at this time. I do not accept that a statement of this kind could have been made before. It simply could not have been made before Sir Charles Newbold had given notice of his judgment, and as the final responsibility for advising Her Majesty might come to me, I thought that I was the right man to make the announcement to the House.

Sir J. Hobson

Is not what the Foreign Secretary has said a departure from previous practice? Is it not the position that a conviction in a Crown Colony has normally always attracted the consideration of the Governor-General alone on the question of the exercise of clemency and mercy? Was not that the case in 1947 in the Gold Coast, when I think that the then Lord Chancellor advised on the division of responsibility between the Ministers of the Crown in the United Kingdom and the Crown as represented by the Governor-General in the Colony? Would the right hon. Gentleman consider whether this may not be a new departure and, if so, whether it is right?

Mr. Brown

Yes, Sir. When I came to office and discovered that Aden was on my plate and that the man on the spot was called a High Commissioner, I asked how this should come about. The answer is that Aden is a rather special case. There is not a Governor-General but there is a High Commissioner. Yet the Foreign Office is the responsible Department, and has been before, for Aden, and that is how it comes to me. We are making no departure from practice.

Mr. Lipton

In the twilight period through which Aden is now passing, can my right hon. Friend give an assurance that the legal or other status of British troops serving in Aden is no worse than that of British troops serving in other overseas theatres?

Mr. Brown

I think that the military authorities here are, generally speaking, in the circumstances of Aden, satisfied with the present position as defined under the Order of 1965 to which I referred. If there is any wish that I should discuss with my right hon. Friend whether this is still so, I would do so.

Sir Knox Cunningham

Can the Foreign Secretary say how he would adversely affect the guardsman concerned by advising the commuting of the death sentence; surely the guardsman can always appeal to the Privy Council against his conviction and sentence, whether it be death or a life sentence?

Mr. Brown

By announcing any decision to commute, which could be against as well as for, I would be pre-empting the decisions of the court as to whether he had committed an offence.

Mr. Sydney Silverman

Would not my right hon. Friend consult his right hon. Friend the Home Secretary to ascertain what the practice of the Home Office has invariably been in comparable cases where the appeal is not to the Privy Council but to the House of Lords? Has not the practice of the Home Office always been—and acceptably so to all parties—to announce, where leave to appeal to the House of Lords has been given, that in any event, whatever the result of the appeal, the sentence will not be put into execution? If this has been the invariable practice of the Home Office in appeals to the House of Lords, why should it not be my right hon. Friend's practice in a contemplated appeal, which is not yet an appeal, to the Privy Council? Does he not appreciate that this can be done without prejudicing the right of appeal or the result of the appeal in any way?

Mr. Brown

I hesitate to cross swords with my hon. Friend on the facts of this matter. He and I have been together in many a Division on the merits of this case. My information is that the Home Office does not announce a decision on the exercise of clemency while an appeal still lies. I am sorry that I must tell my hon. Friend that I understand that this is not so. But speaking for myself—my hon. Friend knows enough about me not to get too involved in this—I think that it would be very wrong while the guardsman still has an opportunity of clearing himself of the charge for me to seem, as it were, to comment on that to his disadvantage by announcing what I would propose to do about the sentence were it to be upheld.

Mr. Peyton

Can the right hon. Gentleman explain that? I do not understand how it could prejudice this man or deprive him of an opportunity of clearing his name if it were simply said at this stage that whatever the outcome he would not suffer the death penalty. Is he aware that my own impression—I put it forward without wishing to stress it too strongly—very much accords with that of his hon. Friend the Member for Nelson and Colne (Mr. Sydney Silverman) as to Home Office practice?

Mr. Brown

I will in that case look into what has been the Home Office practice, but I have been advised that it has not been as described by my hon. Friend the Member for Nelson and Colne (Mr. Sydney Silverman) and the hon. Member for Yeovil (Mr. Peyton). But I am bound to say that I think that it would be wrong for me to take the action suggested. I think that this is a matter to be judged when the legal processes have run their due course.

Frankly, as advised at this moment, although I will naturally reconsider, I have no intention of departing from the view that Guardsman Gabriel has courses of appeal still open to him and that, until they have been exhausted, I am not called upon, nor is the High Commissioner, to consider what advice we should tender Her Majesty.

Dame Joan Vickers

What is the position of the High Commissioner with regard to this? If he makes a decision, will he make it publicly or to the right hon. Gentleman'? If the right hon. Gentleman were to reverse a public decision by the High Commissioner one way or the other, this might make the High Commissioner's position in Aden very difficult vis-à-vis the population.

Mr. Brown

I recognise that this is a difficult position, and it worries me. However, I inherited it, and there it is. The High Commissioner may, in the name of the Queen, exercise clemency, in which case there is an end to the matter. He may, on the other hand, decide not to exercise clemency in the name of the Queen, in which case it is not an end to the matter because Her Majesty has a residual right and on that residual right I may advise her.

Mr. Eyre

Is the Foreign Secretary aware that, whatever the legal niceties, there is a strong feeling about this matter on the part of ex-Service organisations in Birmingham, which is Guardsman Gabriel's home town? These organisations firmly believe that a British soldier serving overseas should not suffer a penalty to which he could not be subject in this country. Will the right hon. Gentleman bear that view in mind in due course?

Mr. Brown

Yes, I will. But I ask the hon. Gentleman also to recognise that many people elsewhere in the world look to us to be obviously and very evidently on the side of justice and that mercy may come afterwards. Justice must be seen to be done as well as done, and simply to say that the British Legion or other ex-Service organisation do not like British soldiers facing up to this situation may give the impression that we place justice second. I beg the House to realise this and also to realise that the quality of mercy will most certainly rest with me thereafter.

I have had a chance to check my view of the position raised by my hon. Friend the Member for Nelson and Colne (Mr. Sydney Silverman) and the hon. Member for Yeovil (Mr. Peyton). The position is that where the Crown has appealed against judgment the Home Office has announced that it would exercise its right to advise Her Majesty about clemency, but that where the subject has appealed this has never been done.