HL Deb 14 December 1915 vol 20 cc594-600

Order of the Day for the House to be put into Committee, read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Evidence of depositions of witnesses engaged on naval or military service.

1.The provisions of section seventeen of the Indictable Offences Act, 1848, and section seventeen of the Indictable Offences (Ireland) Act, 1849, and section fourteen of the Petty Sessions (Ireland) Act, 1851, which enable the depositions of witnesses in certain circumstances to be read as evidence at the trial shall, during the continuance of the present war, apply to depositions of witnesses who are proved to be unable to attend, having regard to the necessities of the public service, by reason of being actively engaged in the naval or military service of His Majesty, in like manner as they apply to the depositions of witnesses who are proved to be dead: Provided that no deposition shall be read in evidence under the powers of this section save with the consent of the court before which the trial takes place.

LORD PARMOORhad on the Paper an Amendment to leave out Clause 1 and to insert the following new clause— The depositions of witnesses who during the continuance of the present war are proved to be unable to attend the trial of an accused person, having regard to the necessities of the public service, by reason of being actively engaged in the Naval or Military service of His Majesty, may be read in evidence if it be proved that such depositions were taken in the presence of the person accused, and that he, or his Counsel or Attorney, had a full opportunity of cross-examining the witness, if such depositions purport to be signed by the Justice by or before whom the same purports to have been taken without further proof thereof unless it shall be proved that such depositions were not in fact signed by the Justice purporting to sign the same. Provided that no deposition shall be read in evidence under the powers of this section save with the consent of the Court before which the trial takes place and after reasonable notice to the accused person. The noble and learned Lord said: I have put down an Amendment to carry out what I thought was right and stated to your Lordships the other day—namely, that in a matter of this kind there should not be legislation by reference. It is particularly important in matters of Criminal Law that prisoners and others should know what the conditions are when they come to be tried. I submitted to the Lord Chancellor my suggested new clause in place of Clause 1, and he has agreed that the clause should stand in these words, which carry out the intention that I had in putting down my Amendment—viz.: "If, during the continuance of the present war, upon the trial of a person accused of an indictable offence it is proved that any person whose deposition has been duly taken before the justice or justices by whom the accused was committed for trial is unable to attend the trial having regard to the necessities of the public service by reason of being actively engaged in the naval or military service of His Majesty, and if also it is proved that such deposition was taken in the presence of the person so accused, and that (except in the case of a deposition by a witness on behalf of the accused) he or his counsel or attorney had a full opportunity of cross-examining the witness, then, if such deposition purports to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence at the trial without further proof thereof unless it is proved that such deposition was not, in fact, signed by the justice purporting to sign the same: Provided that no deposition shall be read in evidence under the powers of this section save with the consent of the Court before which the trial takes place." I propose to add the words "and after reasonable notice to the accused person." Having regard, however, to the concession which the Lord Chancellor has made, I do not intend to press the addition of these latter words unless the noble and learned Lord thinks they are proper to be added. Personally I think it is important that reasonable notice should be given to an accused person if depositions are going to be read against him. My words are purely for what I consider the fair protection of a prisoner, and I think all your Lordships would desire that in a change in the law of this kind, under special conditions, nothing should be done which should in any way prejudice the right of a prisoner to a fair and just trial. I will first move the Amendment in the agreed terms, and will then move to add the additional words.

Amendment moved— Leave out Clause 1 and insert the following new clause: If, during the continuance of the present war, upon the trial of a person accused of an indictable offence it is proved that any person whose deposition has been duly taken before the justice or justices by whom the accused was committed for trial is unable to attend the trial having regard to the necessities of the public service by-reason of being actively engaged in the naval or military service of His Majesty, and if also it is proved that such deposition was taken in the presence of the person so accused, and that (except in the case of a deposition by a witness on behalf of the accused) he or his counsel or attorney had a full opportunity of cross-examining the witness, then, if such deposition purports to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence at the trial without further proof thereof unless it is proved that such deposition was not, in fact, signed by the justice purporting to sign the same: Provided that no deposition shall be read in evidence under the powers of this section save with the consent of the Court before which the trial takes place."—(Lord Parmoor.)

THE LORD CHANCELLOR (LORD BUCKMASTER)

Your Lordships having granted a Second Reading to this Bill I was anxious to do all that I could to meet what appeared to me to be the important elements of Lord Parmoor's criticism, and with that view I drafted the form of words which he has now moved as a substitute for Clause 1 as in the Bill. I have never myself disguised the feeling that legislation by reference, wherever it can be avoided, is an undesirable thing. There are many cases where it cannot well be avoided without overloading the Bill with a large amount of matter which might make it a cumbersome and difficult thing to control, but in this particular case the amount added does not affect the Bill materially, and I am able that I am able to come to terms with the noble and learned Lord as to the form which the clause should take.

EARL LOREBURN

I am extremely glad to hear what the Lord Chancellor has said, and I think it will end this particular matter. May I suggest to the noble and learned Lord that Clause 4 of this Bill is a rather aggravated form of legislation by reference. I will not ask him to say anything definite upon this point now, nor need any proposal be made to-day; but I should like the noble and learned Lord to consider between now and the next stage of the Bill whether he cannot place in simple language the purport and effect of Clause 4. which now appears in a very obscure form. I am not asking that there should be any change in the proposals of the Bill, but merely that people should be able to understand by reading the clause what it means.

THE EARL OF DESART

I should like some information as to the precise meaning of the words "naval or military service," because at some time or another that question may arise in an acute form. In the case of any one directly connected with either of the Services the meaning of the words is obvious, but there are others to whom the circumstances would apply exactly as if they were on active service abroad or elsewhere—for instance, a Red Cross doctor, a Red Cross orderly, or a nurse. The language in which the Secretary or Assistant Secretary of the Admiralty or Army Council is to certify is very precise, and I think it undesirable that any misunderstanding should hereafter arise. The meaning should be clear. It need not necessarily be done now, but perhaps the Lord Chancellor will be good enough to consider the point if he has not already done so.

THE LORD CHANCELLOR

I shall be very glad to do what I can to meet the view of Lord Loreburn. He will understand, of course, that I cannot make a definite. premise, but I will consider whether it is possible to make Clause 4 more comprehensible than it is at the present moment. I agree as to the desirability of that being done, Clause 4 being part of the permanent legislation of the country and not limited by the conditions of the war which affect other clauses of the Bill. With regard to the observations of Lord Desalt, I any not quite sure what it is that he desires. It is obvious that the words "actively engaged in the naval or military service of His Majesty" may be the subject of some uncertainty, and in order to make the matter perfectly plain it is provided in the Bill that those conditions shall be determined by a certificate signed by a Secretary or Assistant Secretary of the Admiralty or Army Council. It is left to the Secretary or Assistant Secretary to say whether the man is actively engaged in the naval or military service, and I do not see how it is possible to make the Bill more plain in regard to that.

THE EARL OF DESART

The wording of Clause 3 might be held to be a very strict limitation in this respect. These are not general words. I gave instances a moment ago in which all the considerations arise just as much as if the man were in the fighting line. Would it not be better to say "actively engaged in connection with naval or military service"? The wording at present in the clause is a very close limitation and does not give much scope. Or words might be added such as "or other indispensable service in connection with the war." I think the point is one that requires a little consideration.

LORD PARMOOR

I am afraid I am not in accord with what the noble and learned Earl has just said. As I understand the Bill, this is to have reference to people actively engaged in the naval or military service of His Majesty, and the certificate of the Secretary or Assistant Secretary is to be conclusive evidence of the fact. I hope the Bill will not be extended beyond the words which we find in it.

On Question, Amendment agreed to.

LORD PARMOOR

I now move to add to the new clause the words to which I have already referred— namely, "and after reasonable notice to the accused person." I desire that these words should be added in order that a prisoner should have reasonable notice of what is going to be done. The words are taken from the Act which deals with the depositions of persons who are in a dying condition, in which case it is required that reasonable notice should be given to the accused person. I hope the Lord Chancellor will think this a reasonable addition to the clause.

Amendment moved— At end of Clause 1 insert ("and after reasonable notice to the accused person").—(Lord Parmoor.)

THE LORD CHANCELLOR

I regret that I am unable to accept this Amendment. The present time is one in which any witness may be suddenly called away, and the fact that he is going may not be known until a few hours before he is summoned to leave the country. It may at the same time be of the utmost importance that the trial of a man charged with spying should be brought on without delay. In those circumstances I cannot consent to the introduction into the clause of words which would prevent the opportunity of using evidence by deposition if it had been found impossible to give reasonable notice to the accused. I may say that I have taken steps to place before the Home Secretary and the Public Prosecutor the view—which both of them entertained without my suggestion—that it is very desirable in all cases that such notice should, if possible, be given; and the noble and learned Lord can rest assured that notice will be given except in cases where that is impossible consistently with securing the ends of justice.

LORD PARMOOR

After the Lord Chancellor's statement that in all practical cases notice will be given, I do not wish to press my Amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

Clause 2 agreed to.

EARL LOREBURN

I move to insert a new clause after Clause 2. In cases of offences punishable by death it may be that the deposition may be the only material evidence against the prisoner. It is a very strong thing to inflict the punishment of death where the deposition read in evidence at the trial is not corroborated in some material particular by oral testimony. My suggested clause proposes that unless it is corroborated the punishment of death shall not be inflicted.

Amendment moved— After Clause 2 insert the following new clause: Where any person has been convicted of an offence punishable with death and depositions have been under the powers conferred by this Act read in evidence at the trial which have not been corroborated in some material particular by oral testimony, the punishment of death shall not be inflicted, but the Court may pass such sentence of imprisonment or penal servitude as it may think just."—(Earl Loreburn.)

THE LORD CHANCELLOR

I regret that I cannot accept this Amendment. The effect of the new clause would be that if a witness had proved a material and vital point against a man and he was the only witness upon that point and was unable to be present for any one of the causes which allow the deposition to be read, his deposition could not be read against the accused. It might well be that the evidence given was in respect of handwriting or some other important point which could not be corroborated by independent evidence. It would destroy the whole effect and value of this Bill to say that the deposition should not be read unless it was corroborated on the real point on which it was going to be read. The punishment of death is an ugly thing at best, and I should be sorry if it were thought that any one regarded it lightly or thought the case ought not to be abundantly established against a man before such a penalty was inflicted. I shall be glad, therefore, to modify the clause by providing that a man should not be condemned to death upon a deposition alone, and that if that were the only evidence the alternative punishment of imprisonment should be inflicted. If the noble Earl agrees to that, I will undertake to introduce after Third Reading an Amendment which will carry that out.

EARL LOREBURN

I am much obliged to the noble and learned Lord, and heartily accept his suggestion. My Amendment, though in a clumsy way, perhaps, really amounts to what the Lord Chancellor now suggests. I shall therefore be grateful to him if he will bring forward his Amendment at a later stage.

Amendment, by leave, withdrawn.

Remaining clauses agreed to.

The Report of Amendment to be received on Thursday next, and Bill to be printed as amended. (No.185.)