HL Deb 14 September 1915 vol 19 cc795-804

LORD PARMOOR had the following Question on the Paper—

To ask the Lord President of the Council on whose authority it is determined whether an application shall be made for the hearing of a criminal charge in camera.

The noble and learned Lord said: My Lords, I understand that the Question which I am going to ask, and which is almost of a formal nature, will be answered by the Lord Chancellor, and I have already indicated to him that the words of the Question as it appears on the Paper are wider than I really intended. I desire to ask on whose authority it is determined whether an application should be made for the hearing in camera of a criminal charge under the Defence of the Realm Amendment Act of this year. Your Lordships will recollect that under an Act which received the Royal Assent on March 16 of this year the right of British citizens to the ordinary procedure of criminal trial was restored to them. It was restored with certain limitations, and it is in reference to one of those limitations that I wish to ask this Question. The limitation is contained in subsection (3) of Section 1, and is in these words— In addition and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings, if, in the course of the trial of a person for a felony under this Section, application is made by the prosecution, in the interests of national safety, that all or any portion of the public should be excluded during any part of the hearing, the Court may make an Order to that effect, but the passing of sentence shall in any case take place in public. I assume that no one would object to a power of trial in camera where an application was properly made that a case should be so heard in the interests of national safety. But we all regard publicity as the great sanction and safeguard of our legal liberties in this country. Our legal liberties do not depend on some of the high-flown theories that we find in Continental Codes, but on the constant insistence that as regards criminal proceedings they shall, except for very special objects and purposes, always he held in public and therefore subject to public opinion.

The Question I am asking is this. Who is it who decides in a particular case that it is in the interests of national safety that the hearing should be in camera? My own view is that if that decision is given and the responsibility taken by the Department of the Public Prosecutor there is really no safeguard that the true meaning and intent of the subsection will be guaranteed and carried out, because it almost follows that from the Public Prosecutor's point of view it might be advantageous in many cases to have the hearing in camera, not from the point of view of national interests but from the point of view of the prosecuting authority. If, on the other hand, the responsibility is taken by some Minister, such, for instance, as the Home Secretary, who would determine the matter on wide public grounds, then I for one should have no objection and should consider that the words of the subsection which I have quoted constituted a proper provision as regards the public safety.

I noticed not long ago a letter from the Home Secretary in which he stated perfectly accurately—as the Home Secretary would be sure to do on any legal point—the present position under the Defence of the Realm Amendment Act. He said— if a British citizen in time of war so acts that his conduct is likely to cause disaffection or to prejudice recruiting he undoubtedly renders himself liable to legal proceedings. There is no doubt that that is a correct statement of the law. It is a new law, part of what is sometimes called the panic law or the exceptional Law applicable to war time only. No such provision, for instance, was considered necessary during the Crimean War or during the Napoleonic period, although I apprehend that during the Napoleonic period the crisis as far as this country was concerned was at least as severe as it is at the present time. But the words "likely to cause disaffection or to prejudice recruiting" are extremely wide. In one sense, any criticism of the Government nifty be said to be likely to cause disaffection. In the same way, any criticism of the present method of recruiting may be said to interfere with and prejudice recruiting generally. In my own view, nothing has interfered more with what I consider our admirable system of voluntary recruiting than much that has been said and written as regards the compulsory system. I only throw that out as one of the points which make it exceedingly necessary that the authority dealing with this subsection should draw a line between fair criticism and matters that are really important as regards national safety. But for that I apprehend that Lord Chatham, in the American War, might have been subjected to prosecution, and certainly Mr. Fox during the Napoleonic period.

I am sure there is not a single member of this House who is not sincerely earnest in his desire to preserve the ordinary rights of public discussion and of public freedom in this country. Therefore what I ask the Lord Chancellor is, I think, in no sense a controversial question, for I believe we should all be agreed as regards the benefit of publicity on 1he one side and the necessity for restriction under very special conditions on the other. But until one knows with whom the responsibility rests and who actually gives the direction under which the prosecuting counsel acts, one does not feel sure that a wide power of this kind may not be used in a way which might be considered hardly fair in particular instances. Therefore I desire to ask the Lord Chancellor the Question which I have read, in order to know by what authority and on whose responsibility the decision in such cases is given.

THE LORD CHANCELLOR (LORD BUCKMASTER)

My Lords, it is a very simple and easy matter to answer the Question which has been placed on the Paper by the noble and learned Lord. I think your Lordships must all have felt in listening to the noble and learned Lord's speech that it was not merely the information that was asked for by the Question which he desired to obtain, but that he was seeking, I will not say to encourage, but to provoke a discussion on the merits of the Act of Parliament, under which this procedure exists. I say that for this reason, that an acute and learned lawyer like the noble and learned Lord could have found the answer to his own Question at once by looking at the Act of Parliament, which makes it perfectly plain that in all cases where a trial takes place in camera it can only so take place on the application of the prosecution, and, most important of all, that application must take place at the trial. He knows perfectly well that the application by the prosecution at the trial must be made with the sanction of the counsel for the Crown, the Director of Public Prosecutions instructing him, and, it may be, at the suggestion of any Department behind. It is perfectly impossible to say in any particular prosecution that any one particular person would be responsible for the application being made.

I think it would be well, now that this question has been raised, that your Lordships should permit me to recall to your memory the exact conditions under which this power of hearing in camera takes place. The original Statute for the Defence of the Realm practically provided that every offence should be tried by Court-Martial, the only exceptions being cases which were trivial and which might be tried by Courts of summary jurisdiction. It was then that the Act was passed this year which provided that a case which was triable originally under the first Statute by Court-Martial might be tried by a civil Court with a jury and when so tried the offence should be treated as a felony, the object of that being to enable a bill of indictment to be presented to the Grand Jury without going through the formality of proceedings before the magistrate. In that case there is a provision that, if the prosecution thinks it in the public safety that the proceedings should take place in private, application may be made to the Court, and it is for the Court to determine whether or not the public should be excluded front the trial. The question as to who instigated or instituted the application to the Court is, I submit to your Lordships, a matter of no moment at all, because the Court decides, and not the prosecution, whether the public shall be admitted or shall be shut out. Consequently no advantage whatever would be gained by asking any Government Department to consider a matter which strictly, I suggest, is hardly one for their consideration. Those who have charge of the proceedings have before them all the evidence and know its tendency, and are best able to form a judgment as to whether the publication of the documents or the disclosure of the evidence might tend to prejudice or imperil the safety of the realm. In those circumstances application can be made to the Court, and the Court can exclude the public from its proceedings. That applies to cases where the offence was to be tried as equivalent to a felony.

By a subsequent Order in Council two other classes of cases have been included. One is where the competent naval or military authority, in their discretion, think that the trial should take place before a Court of summary jurisdiction. In that case, again, the prosecution is at liberty to apply to the magistrate who is hearing the case for the same leave, and the magistrate may accept or refuse the application as he thinks right. The third case is more important. Originally power was given to the competent naval or military authority, if they thought right, to enter any place where they believed that matter was likely to exist the publication of which would be dangerous to the safety of the realm, or would prejudice recruiting, or in any way affect the relationship between His Majesty's Government and the Governments of foreign Powers. In those cases there was power to enter and to seize printing, presses, and other material and to destroy them. That was modified by an Order which provided that there should be power to go to a magistrate and apply for a search warrant, and that when the documents had been seized under this search warrant the person who was respondent to the proceedings should be called before the Court to show cause why these things should not be destroyed. In this case again power was given to the Court to declare that the discussion of the whole proceedings should take place in private, and once more that application was at the instance of the prosecution.

The noble and learned Lord said that he did not desire to discuss tote wisdom of the Statutes. I am bound to say, having once more carefully considered them, that the only surprise they give rise to in my mind is surprise at their moderation. I am astonished that, when we stand in the peril and jeopardy in which we find ourselves to-day, when we not only have to fight the foe in the open field hut know that their spies are in every land intriguing to enmesh and entangle every Government, we have found it possible to proceed under the comparatively mild and benevolent legislation which has been established.

LORD PARMOOR

My Lords, I should like to say, in answer to the Lord Chancellor, that questions of policy have been raised by him which certainly were not raised by me. If his view is, as I understand it to be, that the present legislation is insufficient —that is not my view—then I assume that the Government will take the responsibility of introducing legislation of the character which they think necessary, and not too moderate, having regard to the views which the Lord Chancellor has expressed. I can only say for my part that if legislation of that kind is introduced I shall do my best to oppose it at every possible stage, because I believe that you only promote some of the evils to which the Lord Chancellor referred by attempting too drastic legislation against the feelings of large masses of the people of this country. After all, we are the heirs of free opinion, and there are many people in this country who still believe in the maintenance of free opinion. We all, of course, regret the existence of spies, but it may be that the doubt and feeling of insecurity to which the Lord Chancellor referred is more advanced, as I think it is, by the absence of publicity to a certain extent and the absence, as I consider, of truth in matters which the Government disclose, than by allowing free discussion according to the old principles of free opinion. I have been led into that digression by what the Lord Chancellor said.

The noble and learned Lord has not given any satisfactory answer to the Question which I asked. It is, of course, quite clear that the prosecuting counsel makes the application to the Court, but when an application is made on the ground of national safety it is very seldom that the application is otherwise than favourably entertained. I do not consider that the prosecuting counsel is the person to decide whether or not particular documents or particular matters can be disclosed consistently with national safety. That national safety is an essential element I do not suppose any member of your Lordships' House can doubt for a moment, but the question I asked was, Who took the responsibility? I regret to hear that it is taken by the prosecuting counsel. Though the Lord Chancellor says I am acute lawyer enough to know, I do not at all agree with what he said. I should have thought that the prosecuting counsel in a matter of this kind acted on instructions. My question was, Who gave the instructions? I cannot imagine that it is the duty of any counsel to get up and what I may call invent a case of public or national safety. He acts on instructions, and I ash, Who is responsible for those instructions? I regret to say that I have had no answer.

LORD COURTNEY OF PENWITH

My Lords, I rise with the greatest possible reluctance to add a word or two to this discussion. I confess that I am moved not so much by the anxiety of my noble and learned friend to know whether the application to the Court is made by the prosecuting counsel on his own responsibility or on the responsibility of instructions given to him by the Home Office. That is the question which the noble and learned Lord opposite desired to put, and which the noble and learned Lord on the Woolsack essayed to answer. As I say, I am not so much concerned with that. But I am very much concerned with the spirit and the language of the speech of the Lord Chancellor in answering the noble and learned Lord. In this very difficult and important matter in which we are engaged surely we must all feel very strongly the desirability, if possible, of maintaining every safeguard of publicity in the conduct of any prosecution in one of the Courts of Law.

I submit that a case should be made out to the satisfaction of some judicial person as to the necessity of abating the publicity which is our greatest safeguard of justice. I gathered from the answer given by the Lord Chancellor that that was secured by the Statute and the Order in Council made under the Statute, but I am bound to say that it is not clear to me that it is so secured. It is not clear to me that in practice the conduct in the cases that have arisen has been quite up to the level of the conditions laid down by the noble and learned Lord. The Lord Chancellor says that the prosecuting counsel makes the application and that the application must be determined by the magistrate—or by the Court, whatever the Court may be—and that the Court has the power of declining to accede to the application. That is all very well, but some case, one would suppose, must be laid before the magistrate for his decision—some prima facie case, showing that there is danger in publicity, which the application for the restriction of publicity is based upon. The action of the magistrate should be founded upon proof brought before him of the danger of publicity.

In the few cases that I have noticed which have been held under this Act and the Orders made upon it, I have not observed that there has been any attempt to put before the magistrate evidence as to the danger involved in permitting the usual publicity. But I am glad to think—proud to think—that in some of the cases that have occurred the subsequent action of the magistrate has demonstrated that we are maintaining the old principles of our Constitutional Law, and that no danger such as is involved in the present dreadful struggle, and no fear of the crowd of spies who seem to have excited the mind of the Lord Chancellor, has prevented the magistrate from applying himself pretty strictly to an examination of the documents brought before him and coming to the conclusion that the application was not worthy of confirmation. The fact that magistrates have been able to arrive at that conclusion is in itself, to my mind, a very damning condemnation of the action of the Executive in bringing these special applications before them. If the magistrate, on examination of the documents which are said to involve these dangers, has conic to the conclusion that no such dangers are involved, surely there is a great burden of disproof laid on the prosecuting authorities to show that they were not led astray by excited alarms and by misguided fancy in instituting an application which had so lamentably failed. Observe that the whole thing turns on the examination of documents which were open to the prosecuting counsel. It is, I say, a great condemnation of the Executive Government that they should have taken the step of making the application, and the fact that they have failed is the worst vote of censure which could be passed upon them in such a question. I am of opinion that in no stress of anxiety should our old Constitutional guarantees of liberty be in any way abated. I would not have entered at all into this discussion —which I take part in, as I said at the commencement, with great. reluctance—had not the language which was used by the Lord Chancellor inspired me with anxiety as to the temper in which prosecutions of this kind might be instituted and conducted.

LORD ST. DAVIDS

My Lords, I rise because I think it would be unfortunate if the speeches of Lord Parmoor and Lord Courtney were answered only by the Lord Chancellor, by a member of the Government, for that might be taken to mean that the bulk or a great many of the members of your Lordships' House were in favour of the views which those two noble Lords have put forward. I cannot think for a moment that that is the case. The noble and learned Lord opposite (Lord Parmoor) has on more than one occasion, if my memory serves me right, tried to weaken the provisions of those Acts which were brought forward for the Defence of the Realm. I remember his moving Amendments on several occasions—

LORD PARMOOR

Hear, hear.

LORD ST. DAVIDS

And he has told us to-day that in his view those Acts are already too strong. With the exception of Lord Courtney, I do not believe that the noble and learned Lord opposite has a single sympathiser in this House in the view that he takes. I believe the view which was put forward by the Lord Chancellor represents the feelings of us all. The noble Lord who sits by me (Lord Courtney) talked of the "safeguards of publicity." He said that the safeguards of publicity that are dear to us all must be maintained. My Lords, Lord Courtney and Lord Parmoor are dealing with other days. What were the safeguards of publicity for? They were to prevent poor individuals from being oppressed by richer people; to prevent the poorer classes being trampled down by other classes; to prevent subjects who were weak being trampled upon by a strong Government. In old days there was meaning in the "safeguards of publicity." But we are now in other times. We are not now afraid of a tyrannous Government. Some of us would like the Government to be even stronger. We are not afraid of one class trampling upon another class. All classes in this country are at present engaged in one cause and thinking about one thing in the main, and one thing only. We are not thinking about any class or any individuals. I submit that all this talk about the safeguards of publicity is now out of date; it is absurd. It may be relevant in one year or in two or three years from now. But to-day, my Lords, it is nonsense. What we have to think about to-day is the safety of the country, and that is what every one is thinking about out of doors. I have risen to say these few words because I believe they represent the view with which most of us sympathise, and because in my opinion it would have been most unfortunate had the speeches of the noble and learned Lord opposite and of Lord Courtney been answered by a member of the Government only.