HC Deb 16 January 1968 vol 756 cc1743-52

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

10.14 p.m.

Mr. Kenneth Lomas (Huddersfield, West)

After a day of high drama, which will be remembered in the House for a long time, I am grateful for the opportunity of being able to raise the case of a former constituent of mine, Allen Clive Oldroyd. In a sense, I am glad that the House was recalled a day earlier than was expected, otherwise I might not have had the opportunity of being able to raise this issue this week. This is really a case of third time lucky, for I was unsuccessful on two previous occasions in my application for an adjournment debate in December.

I would apologise to the House for a rather severe cold which I have at the moment, and also for the short notice I have been able to give to the Under-Secretary of State about this case, but this has been entirely due to the fact that I was not aware myself until the weekend that I had this debate tonight.

Let me, then, set out the facts of this case as I know them. Allen Clive Oldroyd was born on 8th December, 1946. He would have been 21 just over a month ago. He was an only child. His parents own a small bakery in my constituency. I would emphasise that it is a very modest business. The parents were looking forward to the day when their son would take over the business they built up after he had qualified, and to fit himself for this task the son had undertaken a two-year full-time course at the Leeds College and had been successful in passing his City and Guilds examination. He was a very hardworking boy, and he would have been a credit to his profession as well as to his parents.

As a result of his efforts he was successful in gaining a scholarship given by the National Association of Master Bakers and went to Germany to serve an apprenticeship with a firm of confectioners in Dusseldorf. He had almost completed this course when, on 11th February, 1966, he was involved in a motor collision and was killed. A British Army vehicle was involved in that collision, and I understand that a board of inquiry of the British Army was set up and held in connection with this accident.

Those are the facts of this case, as far as I am aware.

Last August I received a letter from a firm of solicitors, Victor D. Zermansky & of Leeds, the solicitors acting on behalf of the parents, Mr. and Mrs. Oldroyd, in which it was stated that German lawyers acting on behalf of the English solicitors had made a claim arising out of the death of Allen Oldroyd and had been compelled to deposit with the lawyers in Germany the sum of £500 as a deposit against court fees, bond, and costs, and so on.

Mr. and Mrs. Oldroyd applied to their Trade Association for financial assistance in conducting their claim, but the association was not prepared to do so without some indication of the merits of the case. Through the English solicitors the British Army Director of Claims was asked to make available the evidence and findings of the board of inquiry. The Director refused this information.

I can do no better than quote part of the letter which I received from Victor D. Zermansky, dated 7th August, 1967, on this specific issue, as it sums up my own feelings entirely. It says: It seems to us to be unjust and appalling that if, for example, that court of inquiry has already shown conclusively that there is not blame attached to the accident the evidence is being kept away from our clients so that they have to indulge in expensive litigation blindfold without any real chance of success. Alternatively, if the evidence and findings of the inquiry does show any blame or claim it seems clearly unjust and unnecessary that our clients should be deprived of this information to assist them in their claims and that the whole civil action should be pursued at great length and great expense without full details of the collision which have already been investigated and are on record of the Army file. I sent this letter to the Under-Secretary of State on 14th August. I received a reply dated 25th August, part of which said: An inquiry was held about this accident but this was done entirely for Ministry of Defence purposes and was not in the nature of a judicial inquiry. The record of the inquiry is a confidential document which cannot be disclosed outside the public service and I am afraid that the details cannot therefore be made available to the solicitors acting on behalf of Mr. Oldroyd's parents. On 28th August, I wrote again to the Under-Secretary of State in the following terms: Although I appreciate that the inquiry was not a judicial one, it does seem to me that there could be no objection to allowing the interested parties to have a sight of the document so that some indication can be obtained as to whether it is worthwhile proceeding through the German courts. I am sure you will appreciate that my constituents are not in a position to find a considerable sum of money if the result is likely to go against them. In a letter dated 15th September, I was informed by the Under-Secretary of State that further inquiries were still being made into the case. On 21st September, I received a letter in which it was said: I should perhaps make it clear that it is not just in this case that the Army inquiries cannot be divulged; all such investigations are, as a matter of principle, regarded as confidential and are not disclosed outside official circles. In the case of Mr. Oldroyd moreover, since an Army vehicle was involved in the accident, it would not be proper for Mr. Oldroyd's parents to be influenced in any way by the Department. I cannot understand why this information should not have been made available. It was not so much a question of influencing the course of justice as of seeking to secure justice after having seen the evidence which had been offered at the board of inquiry.

It was at that stage that it was suggested by the English solicitors that the whole matter should be referred to the Parliamentary Commissioner for Administration. But, as I personally had some doubts about the wisdom of such action or, indeed, whether a case like this fell within his scope, I decided to try once more writing to the Under-Secretary of State for Defence for the Army. I wrote to him on 25th September and said: It does seem to me quite indefensible that the parents should be placed in a position of having to put a considerable sum of money down without any indication as to the circumstances surrounding his death. I would ask you to reconsider this matter and at least allow the solicitors acting on Mr. and Mrs. Oldroyd's behalf to have a sight of the report of the inquiry so that they might be able to advise their clients whether or not to proceed with the case. In a letter dated 6th October from the Under-Secretary of State, I was again informed that inquiries were being made. Then, in a letter dated 27th October, he replied, saying: I am sorry that I cannot make an exception to allow the solicitors acting for Mr. and Mrs. Oldroyd to have a sight of the Army inquiries into this accident. You will understand, I am sure, that if my Department is to be fully informed on any matter on which it may require to take action, it must have full and frank advice on all aspects. It is for this reason that such reports are, as a matter of principle and without exception, regarded as privileged and confidential to the Department. As I had by that time appeared to have reached the end of the road, I decided to refer the case to the Parliamentary Commissioner for Administration on the grounds that this was not an Army complaint but a case in which a civilian had been involved with an Army vehicle. My submission was upheld by the Parliamentary Commissioner for Administration, who said in a letter which I received from him dated 28th November: I think it likely that I shall have to report to you that the Department's refusal of this information was the result of a policy rule which was correctly applied in the present case. I may record as a fact that the decision to apply the rule in this case is a hardship to the Oldroyds. But it is not a decision taken with maladministration. I accept that. I do not accuse the Department of maladministration in any sense. However, once it had been agreed, presumably by all parties, that because of this rule the Oldroyds had suffered hardship as a result of the policy, something should have been done about it. These rules in Departments are not sacrosanct. They are not golden rules—something that must never be changed or waived. I believe that in certain circumstances these rules are intended to be broken in the interests of elementary justice and in the name of common humanity.

It was for all these reasons, going back to August, when I first became interested in the case, that I decided to bring the matter to the Floor of the House. The hearing of the case was originally fixed in Germany for 8th November. It was later deferred until 13th December. I would point out that those hearings were to have been of a preliminary nature only. I have now been informed that the preliminary hearing took place on 10th January this year, but up to this afternoon the firm of English solicitors had not received from their agents in Germany any report of what had transpired.

The parents of Allen Clive Oldroyd are suffering, and have already suffered, very much. They have lost an only son. They have lost a son who was to have taken over the business from them in their years of retirement. That loss can never in any circumstances be replaced. Why should Mr. and Mrs. Oldroyd now be forced to risk what little capital they have left in an attempt to seek common justice? Already, they have been compelled to pay over £300 in funeral expenses for their son, and they are now expected to pay a further £500 into a German court for proceedings in the Federal Republic of Germany.

I ask my hon. Friend: cannot justice, in this case, be tempered with mercy and understanding? Can he not understand that this policy rule of his Department is inflicting a tremendous hardship on parents already deprived of their son? I appeal to him, finally, to allow the solicitors acting for Mr. and Mrs. Oldroyd to see the evidence given to and the findings of the board of inquiry into this tragic affair; to spare the parents unnecessary hardship and unnecessary heartache and unnecessary expense and let it be for them to decide whether they should pursue this case through the German courts.

10.28 p.m.

The Under-Secretary of State for Defence for the Army (Mr. James Boyden)

I should like to start by thanking my hon. Friend the Member for Huddersfield, West (Mr. Lomas) for the courteous and sympathetic way in which he has dealt with this sad affair, and I should like to associate myself fully with his expression of sympathy for Mr. and Mrs. Oldroyd in the loss of their son. I can well understand the feelings that have prompted him to press the case since he first raised it in August of last year, and I am grateful to him for the clarity and vigour with which he has presented his arguments here tonight and in correspondence with me. Perhaps this is to be expected of my hon. Friend, who gives "arguing" as one of his recreations in his entry in "Who's Who?".

I think that I should mention at the outset that I am conscious of the need to step a little warily tonight and to pick my words with care, for I am aware that legal proceedings arising from the accident are going on in Federal Germany. I am sure that my hon. Friend who, as a justice of the peace has, perhaps, closer connections with the law than most, will understand why I say this. Nevertheless, I hope that what I have to say this evening will be of some help to him and to his constituents.

As we have heard, the facts are as follows. Mr. Allen Oldroyd was in Germany in 1966 on an industrial scholarship. On the night of 9th February, 1966, he was a pillion passenger on a motor cycle, driven by another young Englishman, which collided with a British Army staff car at a road junction near Mœnchengladbach shortly before midnight. Mr. Oldroyd was seriously injured. He was taken by ambulance to the Royal Air Force Hospital at Wegburg where, I regret to say, he died two days later.

The German police made a brief report on the accident. Their view was not favourable to the driver of the staff car: they apparently based this entirely on the fact that the motor cycle was travelling on the major road. But they interviewed only one witness, and as the report seems to have been made immediately following the accident it was understandably cursory. Certainly it did not deal with the question of visibility, which later inquiry has suggested may be relevant.

Despite the view they had apparently formed, however, the German police took no action to prosecute. This is not unusual. Where, as here, the German and British authorities have a concurrent right of jurisdiction, the primary right to exercise jurisdiction over a soldier who may have committed an offence arising out of the performance of his duty rests with the British authorities. Although the German authorities could make a request to prosecute a member of the British Forces for an offence committed on duty which involves the death of a civilian, they would ordinarily riot do so save in the case of the most exceptional crimes. Clearly nothing of that kind was at issue here. For this reason the question of disciplinary action or court-martial rested with the British Army authorities.

Army instructions require that an inquiry be held whenever a civilian is killed in circumstances of this kind, and in this case inquiries were made first by the Special Investigation Branch of the Army and subsequently by a board of inquiry, to which my hon. Friend referred. Perhaps at this point I might emphasise, though I know that my hon. Friend recognises this—he said as much in his letter of 28th August, 1967—that such inquiries are not of a judicial nature.

The Army is doing no more than exercising the right—indeed, the responsibility —of any large organisation to establish what happened, to seek to determine what action may be necessary to try to prevent a similar thing from happening again, and to decide what other measures, including disciplinary action, are called for. But these inquiries are essentially domestic. The rules on the taking of evidence and the examination of witnesses differ from those governing a judicial inquiry and, indeed—and I think that this is an important point—what is said at a Service inquiry cannot be used in evidence at a subsequent court-martial. These safeguards are essential if free and frank evidence as to the facts is to be obtained.

In the course of our own inquiries a number of witnesses were examined. The car which was in collision had been travelling in convoy and was second in turn to cross the road in question. There were, therefore, vehicles in front and behind, and there was also another car approaching the crossing from the other side. After a most careful consideration of the evidence provided by these additional witnesses, the appropriate authorities decided that disciplinary action against the driver of the staff car would not be appropriate. No disciplinary proceedings were therefore taken. But this did not preclude an action for damages in the civil courts, which is now in progress, as my hon. Friend has said.

Perhaps at this point I might remind my hon. Friend that the Army authorities, in investigating alleged offences and deciding whether or not disciplinary proceedings should be taken against serving personnel, are governed by Statute and by sub-statutory rules. Here there is the strictest impartiality and the fact that civil proceedings for damage may be contemplated against the Department is quite irrelevant to such considerations.

It was in connection with that action that my hon. Friend wrote to me on 14th August, 1967, enclosing a letter which he had received from the firm of solicitors acting on behalf of Mr. and Mrs. Oldroyd. That letter explained that a previous application to the British Army Director of Claims to make available the evidence and findings of the board of inquiry had been refused, on which the solicitors commented, as my hon. Friend said, that it seemed unjust that if the board of inquiry had already shown conclusively that there was no blame attached to the accident, the evidence was being kept away from their clients so that they had to embark upon expensive litigation blindfold without any real chance of success.

That was an ex parte view; but it shows a concern for their clients' interests, with which one must have much sympathy. It is indeed the nub of the case which my hon. Friend developed in further correspondence with me and on which he has spoken with feeling tonight. But the fact is, as I have already explained, that an Army board of inquiry does not constitute a court in any judicial sense, and its findings and recommendations do not constitute a judgment but are only the basis for deciding whether a charge should be preferred under military law against a soldier.

The proceedings of a board of inquiry are not, therefore, the kind of thing envisaged; they could not be expected to show conclusively that there was no blame attached to the accident—if, indeed, any accident is ever entirely blameless—as they were addressed only to one side. But to suggest that refusal to disclose these proceedings deprived my hon. Friend's constituents of a fair chance of successfully pursuing their claim is, with great respect, nonsense.

The witnesses to the accident are available alike to both sides, and the usual course would be to seek statements from them on which the strength of the case can be assessed. Moreover, my hon. Friend will appreciate that in this civil action which his constituents were then contemplating, the Ministry of Defence or its servants would be defendants, and, whatever our sympathy for his constituents' position, it would have been quite wrong to divulge information so as to enable them to judge whether it would be worth their while to sue us.

My hon. Friend will not, I am afraid, have found what I have said so far very helpful, though I hope that it will have served to make our position clear.

Mr. Lomas

Will my hon. Friend give way?

Mr. Boyden

I am just coming to the heart of the matter, which may help my hon. Friend. Although I cannot, for the reason I have explained, agree to make the reports of our inquiries available, I shall gladly give what help I properly can. I appreciate that litigation abroad is not easy, and there may be difficulties of communication which make it hard to assemble the facts. I am, therefore, prepared to let my hon. Friend have from our files, if his constituents have not already got them, a note identifying the German police report and the names of the witnesses we interviewed. I cannot, of course, make any of them available. The report is not mine, and the witnesses must act for themselves. But it is in no one's interest that evidence should be withheld, and if the solicitors concerned would still find it useful to get in touch with the military witnesses, arrangements can be made through Departmental channels, and I shall see that this is done.

I think that this might go some way to help my hon. Friend and his constituents. I certainly take his point about the Parliamentary Commissioner, but the policy of the Army Department is a policy clearly laid down, and there is no question of maladministration.

Mr. Lomas

I am most grateful for the kind offer which my hon. Friend has made, which, I am sure, will be taken up by the solicitors. The only point I wished to make is that the solicitors, in the interests of Mr. and Mrs. Oldroyd, were trying to find some way to avoid the possibility of them losing £500. They had no intention of using the board of inquiry evidence or findings in a judicial sense. They wished merely to gain from them some idea as to whether it was worth while proceeding with the case in, as my hon. Friend has said, what might well be a difficult situation in Germany. That was the only reason—to look at the findings in order to decide whether it was worth while taking the case through the German courts. I am most grateful for the offer which my hon. Friend has made.

Question put and agreed to.

Adjourned accordingly at twenty-two minutes to Eleven o'clock.