§ 2.44 p.m.
§ Amendments reported (according to Order).
§ Clause 1:
§ Constitution of Courts-Martial Appeal Court
§ 1.—(1) There shall be a Courts-Martial Appeal Court (in this Part of this Act referred to as the Court") whereof the judges shall be—
§ (d) such other persons as the Lord Chancellor may appoint, being persons appearing to him to he specially qualified for appointment as judges of the Court.
§ THE LORD CHANCELLORmoved, in subsection (1) (d) after "persons" (where that word first occurs) to insert: ", being persons of legal experience,". The noble and learned Viscount said: My Lords, may I take the first two Amendments together? The noble and learned Viscount, Lord Maugham, on the last occasion asked me what type of court I contemplated: whether it was to be composed of distinguished officers, with no legal training, or of distinguished lawyers. I think the noble Marquess, Lord Reading, asked the same question. It certainly is, and always has been, my intention that this should be a legal court dealing with legal problems, and I want highly trained lawyers to help me. The Bill, however, was ambiguous. Looking at the Bill, one could not tell which type of court was contemplated, and therefore I have suggested that we should put in the words on the Marshalled List in order to make the matter plain. I hope your Lordships will agree that this is an improvement. I beg to move.
§
Amendment moved—
Page 2, line 5, after ("person") insert (",being persons of legal experience,").—(The Lord Chancellor.)
THE MARQUESS OF READINGMy Lords, as the noble and learned Viscount has said, this matter first arose in answer to a question of mine, and secondly by reason of an intervention by the noble and learned Viscount, Lord Maugham. I am glad that the noble and learned Viscount 713 the Lord Chancellor recognises that the clause as originally drawn was ambiguous. We are grateful to him for that recognition and for having made the necessary change.
§ On Question. Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, I beg to move the second Amendment.
§
Amendment moved—
Leave out lines 6 and 7.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 2:
§ Supplementary provisions relating to the Court
§ (3) The Court shall sit in London except in cases where the Lord Chief Justice gives directions that it shall sit at some other place, whether within or outside the United Kingdom.
§ THE EARL OF SELKIRKmoved, in subsection (3) to leave out "in London except in cases where" and to insert "in such place as." The noble Earl said: My Lords, on the Committee stage I asked certain questions about the arrangements for, and the place of sitting of, this court. May I, with your Lordships' permission, take together the two Amendments which stand in my name? I do so for this reason; that the answer I received both from the noble and learned Viscount on the Woolsack, and from the Lord Chief Justice, was that the court should sit at forum conveniens, which I take to mean the most suitable place by which the ends of justice may be met. As this is not what the Bill says, it seems that it would be as well that the provisions in the Bill, should coincide as nearly as possible with the views held by the two noble and learned Lords who are most directly concerned in its operation. I am aware that so long as those noble Lords hold their present offices this Amendment is probably entirely academic, but no doubt in the passage of time both will vacate the offices they now hold, and it seems to me that the views they hold should to some extent be incorporated in the Bill. I therefore propose this Amendment, which leaves the venue of the court completely flexible and free in the choice of the Lord Chief Justice. I beg to move.
§
Amendment moved—
Page 3, line 15, leave out ("in London except in cases where") and insert ("in such place as").—(The Earl of Selkirk.)
§ THE LORD CHANCELLORMy Lords, the noble Earl has stated quite rightly what I and the Lord Chief Justice said. I understand that he is a little apprehensive lest, in specially mentioning London, there is a presumption that London shall be the place of trial unless other considerations are thought to outweigh that prima facie intention. We do not so regard the Bill. We want each case to be considered on its own merits. I have no doubt that London will be the place where the great majority of these cases will be heard, but as between London and Edinburgh there need be no presumption in either case. Each case will be looked at on its own merits. That being so, I advise your Lordships to accept this Amendment.
§ On Question, Amendment agreed to.
§ THE EARL OF SELKIRKMy Lords, this Amendment is consequential. May I take this opportunity of thanking the noble and learned Viscount for accepting these Amendments? I beg to move.
§
Amendment moved—
Page 3, line 16, leave out from ("Justice") to ("whether") in line 17, and insert ("shall direct").—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§ Clause 4 [Application for leave to appeal]:
§ The LORD CHANCELLORMy Lords, perhaps I may take this and the next Amendment together, for the purposes of discussion, though of course I will put them separately. The first Amendment and the first half of the second Amendment are merely drafting points. The reason for re-drafting part of subsection (1) of Clause 4, and putting part of it into the new subsection (2) is twofold. First, the subsection is at present infelicitously drafted; secondly, by dealing with local lodging in a separate subsection we make Clause 4 similar to Clause 3 in this respect. For these reasons, we thought it desirable to make this drafting change. The real point of the second Amendment is to make it possible to transmit by wireless or any other means the information contained in an application for leave to appeal. One cannot say how often use is likely to be made of this provision, but it is desirable to do everything we can to speed up the hearing of an appeal, and it occurs to us that there may be some 715 cases in which the necessary particulars can be conveyed either by wireless or cable. Consequently, if that is done we propose that that shall count as though the application for leave to appeal had been submitted in the ordinary way. I beg to move the first of these Amendments.
§
Amendment moved—
Page 4, line 25, leave out from ("appellant") to end of line 30 and insert ("and lodged, within the prescribed period, with the registrar, being an application in the prescribed form and specifying the grounds on which leave to appeal is sought and such other particulars, if any, as may he prescribed.").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, I beg to move the next Amendment.
§ Amendment moved—
§
Page 4, line 30, at end, insert:
( ) Rules of court may provide that, in such circumstances as may he specified in the rules, any such application as aforesaid which is lodged with such person (other than the registrar) as is specified in the rules shall be treated, for the purposes of the last foregoing subsection, as having been lodged with the registrar.
( ) Where an application for leave to appeal to the Court is lodged with a person other than the registrar in accordance with rules of court having effect by virtue of the last foregoing subsection, it shall be the duty of that person—
THE MARQUESS OF READINGMy Lords, on the Committee stage I think our main preoccupation was to do everything possible to expedite procedure. Although this particular procedure will not be frequently resorted to, it may be that there will be cases in which it will be necessary, and from that point of view we welcome its introduction in the Bill.
§ On Question, Amendment agreed to.
§
THE LORD CHANCELLOR moved, after subsection (1) to insert:
( ) Where an appellant convicted by a court-martial held outside the United Kingdom
716
duly presents a petition under the last foregoing section and, before the expiration of the period within which an application for leave to appeal to the Court against the conviction is required by subsection (1) of this section to be lodged, the appropriate authority for the purposes of subsection (2) of the last foregoing section receives from the appellant such an application accompanied by a request that that authority will forward the application to the registrar in the event of its being decided not to grant the petition, it shall be the duty of that authority to comply with the request and accordingly, the right conferred upon the appellant by subsection (1) of the last foregoing section shall, if it has not previously become exercisable, become exercisable on the happening of that event.
§ The noble and learned Viscount said: This Amendment is put down to try to expedite the hearing of the appeal without doing away with the filter, if I may use that much overworked term. What we propose is that, in the case of a courtmartial outside the United Kingdom(those are courts-martial in which there is danger of substantial delay), the person affected may prepare his notice of appeal and deliver it via the appropriate authority, so that immediately the time is ripe for the hearing of the appeal—that is to say on the dismissal of the petition—the application for leave to appeal, which on this hypothesis, is only waiting in its proper pigeonhole, may be pulled out and put into operation. We believe that in that way we shall be able to avoid a substantial period of delay, and enable the man concerned to get everything ready beforehand. It is for that reason that we have put forward this Amendment. I beg to move.
§
Amendment moved—
Page 4, line 30, at the end insert the said subsection.—(The Lord Chancellor.)
THE MARQUESS OF READINGMy Lords, this Amendment deals with a point which we raised in much the most substantial of our Amendments on the Committee stage. Perhaps therefore, it will not be out of place if I take this opportunity of thanking the noble and learned Viscount who sits on the Woolsack for the manner in which he has met us after discussions behind the scenes on all Amendments to this Bill. Substantially, the Amendment now in the Marshalled List gives us all that we want. As I said in connection with the last Amendment. we were mainly concerned with avoiding delays and the necessity of repeated plying, backwards and forwards, between 717 say, Singapore and Korea and this country. I suggested on the Committee stage that it was nothing like so important in the case of courts-martial held in this country, where the volume of delay was likely to be negligible, but that in the case of courts held abroad it might become a matter of very great importance. The suggestion that we should divide the two categories emanated originally—I must say this in order to give credit where it is due— from the noble Earl, Lord Selkirk. The Amendment now on the Marshalled List meets our point absolutely, and we are obliged to the noble and learned Viscount the Lord Chancellor for having accepted responsibility for it.
VSCOUNT BRIDGEMANMy Lords. since I was associated with my noble friend in the discussions behind the scenes, perhaps I may be allowed to add one word to say how glad I am, front the operational point of view, that the noble and learned Viscount who sits on the Woolsack has seen fit to put forward these two Amendments. They will, I think, go a long way towards making sure that all those who are accused will have the same advantages, so to speak, at their trial, irrespective of the operational conditions in which they are serving. Until this Amendment was put forward, there was a real risk that, whereas the trials of men at home stations might go through with reasonable speed, the cases of those who by chance committed their offences at foreign stations, or in theatres of operations abroad, might be dealt with very much more slowly. The intention of all of us is that everyone who is accused shall have the same chance and the same prospect of a quick decision on his trial, wherever he may be serving. I should like to add my thanks to those of the noble Marquess to the noble and learned Viscount for what he has done in this regard.
§ On Question, Amendment agreed to.
§
THE LORD CHANCELLOR moved, after subsection (2) to insert:
("( ) In considering whether or not to give leave to appeal the Court shall have regard to any expression of opinion made by the Judge Advocate of His Majesty's Fleet or the Judge Advocate General that the case is a fit one for appeal, and, if any such expression is so made, may, without more, give leave to appeal.")
§ The noble and learned Viscount said: My Lords, this is an Amendment which 718 I moved on the Committee stage, but the noble Marquess Lord Reading asked me not to press it at that time, in order that we might see it in its setting as part of this scheme. I put forward the argument in support of this Amendment on the last occasion, and I need not repeat it to-day We do now see the Amendment in its setting, and I think it is desirable that we should have it in the Bill. I beg to move.
§
Amendment moved—
Page 4, line 34, at end insert the said subsection.—(The Lord Chancellor.)
THE MARQUESS OF READINGMy Lords, our suggestion on this matter was that the Judge Advocate of the Fleet or the Judge Advocate General should himself have the right to grant leave to appeal. But I see the force of the noble and learned Viscount's argument. He does not want to give even the appearance of any possible form of departmental interference in these matters, and he feels that the whose of the proceedings should be left in the hands of the court. So far as we are concerned, we are content to accept that position. This may probably be a piece of pedantry, but I do not know what is meant by the expression "without more." It is not a very usual expression to find in a Statute, and leaves one, I think, a little in the air. "Without more" what? "Without more inquiry or investigation" might have given a little more precision than the words which at present appear; but that, as I say, is probably to suggest a pedantic addition.
§ On Question, Amendment agreed to.
§ Clause 8:
§ Supplementary powers of the Court
§ 8.—(1) For the purposes of this Part of this Act. the Court may, if they think it necessary or expedient in the interests of justice,—
§ (b) order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to he conducted in the prescribed manner before any judge of the Court or before any other person appointed by the Court for that purpose, and allow the admission of any depositions so taken as evidence before the Court;
§ and may issue any warrants necessary for enforcing the orders or sentences of the Court.
719
§
THE LORD CHANCELLOR moved, in subsection (1) after paragraph (a) to insert:
(b) order the taking of such steps as are requisite to obtain from any member of the court-martial by which the appellant was tried or the person who officiated as judge advocate at the trial a report giving his opinion upon the case or upon any point arising therein or containing a statement as to any facts whereof the ascertainment appears to the Court to he material for the purposes of the determination of the case;
§ The noble and learned Viscount said: My Lords, now we come to another set of Amendments. Your Lordships will remember that the Bill as drafted provides that the court shall have the right to ask for a report from any member of the court-martial. It struck the noble Marquess, Lord Reading, and those who came with him to see me—and I must say that it struck me also—as being rather odd to have this part of the Bill as originally drafted. Normally, I should suppose, one would ask for a report from the President of the court-martial. Other members of the court also might be asked, but it would be rather odd deliberately to leave out the President and ask other members of the court-martial for a report. So we have put the matter right by this Amendment, which provides that, normally, and so long as there are no obstacles, the President is to be the person from whom a report of what has taken place at a court-martial shall be obtained. Of course, it is made plain that you may, if you so desire, ask other members of the court-martial, too. That is the effect of this Amendment. I beg to move.
§
Amendment moved—
Page 7, line 21, at end insert the said paragraph.—(The Lord Chancellor.)
THE MARQUESS OF READINGMy Lords, the effect of these two Amendments is entirely to remove the objection which we raised at the earlier stage. There is additional cause for gratitude on our part, inasmuch as that after we had failed to produce a draft which seemed likely to meet the end which we desired to achieve, that has now been done for us in the form in which the Amendment appears in the Marshalled List.
§ On Queston, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment goes with the one which we have already discussed. I beg to move.
§ Amendment moved—
§
Page 8, line 6, at end insert:
("Provided that the Court shall not make an order under paragraph (b) of this subsection for the purpose of obtaining a report from a member of a court-martial other than the president thereof unless they also make such an order for the purpose of obtaining a report from the president or are satisfied that the obtaining of a report from him is impracticable or would involve undue delay.")—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 18 [Furnishing, on appeal, of proceedings of court-martial. &c.]:
§ THE LORD CHANCELLORMy Lords, now we come to a group of Amendments which are merely drafting. I beg to move the first of them.
§
Amendment moved—
Page 12, line 37, leave out the third ("the") and insert ("any").—(The Lord Chancellor.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, I beg to move the next Amendment.
§
Amendment moved—
Page 13, line 2, leave out ("and").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, I beg to move the next Amendment.
§
Amendment moved—
Page 13, line 3, leave out the third ("the") and insert ("any").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, I beg to move the next Amendment.
§
Amendment moved—
Page 13, line 5, leave out subsection (2). —(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 19 [Duties of registrar and others with respect to appeals. &c.]:
§ THE LORD CHANCELLORMy Lords, with regard to this Amendment, the words "a hearing," suggest that there should be a hearing in court. Of course this thing is very often done without hearing anyone at all. It occurs to us that the words "the determination" are more appropriate. I therefore beg to move.
§
Amendment moved—
Page 13, line 17, leave out ("a hearing") and insert ("the determination").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, the next Amendment is consequential on the one we have already passed. I beg to move.
§
Amendment moved—
Page 13, line 33, leave out subsection (3).— (The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment is drafting. I beg to move.
§
Amendment moved—
Page 17, line 6, after ("before") insert ("the receipt by the registrar of").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment is also a drafting Amendment. I beg to move.
§
Amendment moved—
Page 17, line 8, leave out ("is received by the registrar") and insert ("or the receipt by him of particulars of such an application furnished in pursuance of paragraph (b of subsection (3) of section four of this Act, whichever event first occurs,").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.