COURTS-MARTIAL (APPEALS) BILL

HL Deb 19 June 1951 vol 172 cc124-61

2.56 p.m.

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 DROGHEDA in the Chair]

Clause 1 [Constitution of Courts-Martial Appeal Court]:

On Question, Whether Clause 1 shall stand part of the Bill?

THE MARQUESS OF READING

Before we part with this clause, may put two questions to the noble and learned Viscount, in order to clear up certain doubts which are in people's minds? The first attaches to paragraph (d) of subsection (1) which refers to the appointment, as judges of the Appeal Court, of such other persons as the Lord Chancellor may appoint … That paragraph has been variously read: either, first, as confining the persons to be appointed to those with legal experience or, secondly, as being wide enough to admit of persons in the Services being appointed to membership of the court. I have always assumed that as this will be a court concerned with legal matters, and sometimes very important legal decisions, the intention was to confine membership of the Court to those with definite and considerable legal experience. In view of the doubts which have been raised, I should like an assurance to that effect, pointing out that the nomination of persons from the Services to deal with any particular matter in regard to Service conditions and customs can be met under Clause 8, which gives power, in case of need, to appoint assessors.

THE LORD CHANCELLOR

So far as I am concerned, I will gladly give a specific answer. The persons are to be such other persons as the Lord Chancellor may appoint I apprehend, as does the noble Marquess who has just asked me this question, that this is to be a legal court dealing with legal matters. The only persons I should contemplate for selection and appointment are persons (I use the words of the noble Marquess) "with definite and considerable legal experience." I should not think it right to appoint distinguished officers merely because they had knowledge of Service conditions or anything of that sort: I should look for lawyers, and try to get lawyers of a real, high degree of competence and standing.

THE MARQUESS OF READING

I had anticipated that those would be the lines of the reply given by the noble and learned Viscount. In view of the fact that there seemed to be some diversity of opinion, however, I thought it would be valuable to have an official and authoritative statement. My other question is this—and perhaps the noble and learned Viscount will give us his view on the matter. The question has been somewhat canvassed, whether persons of experience of military or naval law who are at the same time Members of another place—and it so happens that there are several who fulfil that qualification—would, without special statutory provision being made, be eligible for appointment to the court.

THE LORD CHANCELLOR

I will try to answer that question, too. I think it quite clear that anybody holding this office would be holding an office of profit under the Crown. That being so, I think Members of another place, if eligible otherwise for such appointments, would be disqualified from holding such office.

VISCOUNT MAUGHAM

May I add one word on the construction of Clause 1? It seems to me perfectly clear that, under that clause, a Lord Chancellor could appoint people with no qualifications whatever. I am bound to say that it never entered my mind that the present Lord Chancellor, whom we have the pleasure of seeing before us, would take any such step—but that is not the question. The question is whether some future Lord Chancellor might take quite a wrong view of what the House at present thinks would be his duty under this clause. I am fortified in that view from what we know happens in the United States of America, where judges have been appointed in high courts without any qualification whatever, because none is required by the Constitution. There might well be a Lord Chancellor here who might follow that example. I venture to suggest to the Government that, as we are all at one as to what should be the duty of the Lord Chancellor under this particular subsection, the Government should insert sortie words to show that it would be his duty to comply with what is laid down.

THE LORD CHANCELLOR

I have no objection to doing that. I should like to consider the matter, if I may, and, if I can find a suitable form of words, I will consider putting them down on Report stage. I have expressed what my intention is. I can hardly conceive that anybody holding this office would hold a different view. But as the noble and learned Viscount said, if we can find an appropriate form of words there is no harm in inserting them.

Clause 1 agreed to.

Clause 2:

Supplementary provisions relating to the Court.

2.—(1) For the purpose of hearing and determining appeals under this Part of this Act, or any matter preliminary or incidental to an appeal, the Court shall be summoned in accordance with directions given by the Lord Chief Justice with the consent of the Lord Chancellor, and shall be deemed to be duly constituted if—

1. (a) it consists of an uneven number of judges, not being less than three; and
2. (b) (subject as hereinafter provided) at least one of the number of judges of which it consists is a judge of the Court by virtue of paragraph (a), (b) or (c) of subsection (1) of section one of this Act.

3.0 p.m.

THE EARL OF SELKIRK moved, in subsection (1) to leave out all words from the beginning of the subsection down to paragraph (a) and to insert: 2.—(1) For the purpose of hearing and determining Appeals under this Part of the Act or any matter preliminary or incidental to an Appeal the Court shall, (a) as regards Appeals from cases heard in England and Northern Ireland, be summoned in accordance with directions given by the Lord Chief Justice with the consent of the Lord Chancellor; (b) as regards Appeals from cases heard in Scotland be summoned in accordance with directions given by the Lord Justice General, and (c) as regards Appeals from cases heard overseas be summoned in accordance with directions given by the Lord Chancellor and shall be deemed to he duly constituted if—

The noble Earl said: This clause deals with the manner in which this Court will be convened, and with the permission of the Committee I should like to take together this Amendment and the next which stands on the Order Paper in my name. I am not in any way wedded to them as they stand, but they raise two broad implications: first, in relation to a court-martial arising in Scotland, that the Appeal Court should normally sit in Scotland; and, secondly, that if it is desired to convene a court in Scotland or to act through it, then normally that will be done through the Lord Justice General. That is what I propose in my Amendments. I have taken Scotland as the example, but I realise that the implications behind this matter are very much wider. Indeed the two broad points to which I would like to draw attention are: first, the effect of distance between the site where the court-martial is held and that of the Appeal Court; and, secondly, that this court has wider powers than have ever been given to an ordinary court-martial, in that for the first time a court, which in genesis is a military court, has certain powers over a civilian.

I should like to develop those two points a little. In regard to distance, the further the distance between the accused and the Court of Appeal the greater, necessarily, the costs. I know that there is provision in the Bill for legal aid to be given, but nobody, I think, knows exactly how that will be applied, or the level at which it will come into force. At this stage I would say only that the further the accused is from the Court of Appeal the higher should be the level at which legal aid is given, because necessarily the costs are higher; and whatever his standard of income may be he will find the costs of the appeal more difficult to meet. I notice that in certain circumstances the accused may be called upon to pay not only his own expenses but also the costs of the prosecution. No doubt that power will be used on only very rare occasions, but, nevertheless, it is there. For that reason anything which diminishes the liability for costs is, to my mind, an advantage.

The second point, I venture to stress, is the importance of the relations between the accused and his counsel. Those relations should be full and confidential. As the Lord Chancellor so properly said on Second Reading: "It is not enough that justice should be done, but justice should be seen to be done." In other words, the accused should be satisfied that his point of view is adequately represented. Personally, I think that that will be difficult if the accused never has an opportunity of actually seeing the counsel and the solicitor who are going to represent him. For that reason, though I realise that Scotland's position is only a part of this business, I suggest that if possible the Court of Appeal should be placed as near as possible to where the court-martial took place.

May I now turn to a further point? In the case of contempt of court, this Court of Appeal is given power to fine or to imprison a civilian, a power never previously held by a military court. I am not for one moment suggesting that this Court would misuse the power; I am saying only that the situation has certain wide implications, and that the Court would be better advised to operate on such occasions as might be required, through the local criminal court. I am bound to say that we in Scotland should not very mach care for the Lord Chief Justice's warrant to run in criminal matters. If ever it were necessary for such action we should prefer it to be taken through the Lord Justice General. It is a situation which is unlikely to arise, but, with respect I suggest that the proposal in the Bill, even in the narrow sphere envisaged, creates a very bad precedent. For that reason, I submit two things: first of all, that a Court normally arising in Scotland—that is to say a Court convened by Scottish Command, or by the Admiral in charge of naval forces in Scotland, or by the two R.A.F. groups in Scotland—should normally sit in Scotland; and, secondly, if any case should arise where for any reason the Court thinks it necessary to issue a warrant, that that should be done through the Lord Justice General. I am sure he would be glad to give it his full support. I beg to move.

Amendment moved— Page 3, line 1, leave out from beginning to end of line 6 and insert the said new words.—(The Earl of Selkirk.)

LORD GODDARD

I confess that I have considerable sympathy with the contentions put forward by the noble Earl. Whether this clause is in its most convenient form I do not know. When this Bill was before the House on Second Reading I did not disguise my dislike of it, and one particular thing which I dislike is the fact that I do not know, and cannot find out, what will be my position as Lord Chief Justice, and therefore as President of this Court, with regard to the Scottish and Irish judges. I have no jurisdiction over the Irish judges or the Scottish judges, and yet they are made members of the Court. When am I to call upon the Scottish judges? Am I to write to the Lord Justice General occasionally and say, "Will you send down a judge to sit in London?" Or am I to say, "I am going to give directions that this case shall be held in Scotland. Will you please man the court?" There is nothing in the Bill which says what will be the position of the Lord Chief Justice in England, except that he is to be President of the Court, and I think it puts me in an exceedingly invidious position. I have very considerable sympathy with the views put forward.

The difficulty that might arise in regard to committing somebody for contempt is not one of the things that I had envisaged. It is very unlikely that it will arise. But I think we shall soon reach some sort of impasse with this Bill if it becomes an Act. Scottish soldiers will be tried in England. They may desire to be tried in Scotland, and they may say that they do not see why they should not be tried by a Scottish judge. Am I to ask for judges to come down from Scotland? On the other hand, there will be English regiments stationed in Scotland. Am I to arrange with the Lord Justice General that the appeal shall take place in Scotland? I really do not know what the position is. As I say, one of the objections that I have felt in regard to this Bill all the way along is that it puts me into a very difficult position—in saying "me" I refer to my position as President of the Court. This is not one of the points which has received the attention which I venture to think it deserves. Nothing could be worse than that there should be any danger of the judges in England getting into difficulties with the judges in Scotland. I am sure that is the last thing that we or they would desire. But if anybody will tell me how this Bill is really to be worked—because, unfortunately, I am the person who has to work it—I shall be very glad. I support the noble Earl in his Amendment.

THE LORD CHANCELLOR

I do not think that the difficulty envisaged by the noble Earl who moved the Amendment and by the Lord Chief Justice is quite so great as they seem to think. I sometimes think that in these matters the less we try to tie ourselves by definite rules, and the more we leave it to common sense, the better. Very frequently, in my experience, a difficulty which we expect, does not arise. The administration of this part of the measure is to be in accordance with directions given by the Lord Chief Justice with the consent of the Lord Chancellor. The Lord Chief Justice and I have had to make directions in all sorts of matters. Sometimes they have been made by him with my approval, and sometimes, I think, by me with his approval. I am bound to say that we have never had any difficulty yet in coming to a satisfactory conclusion. This is what I visualise—and as the Lord Chief Justice is here he will be able to tell me if he thinks I have it all wrong. I do not want to have a definite set of rules as to when the Court is to sit in Edinburgh, and when it is to sit in London. I visualise, and I think the Bill clearly contemplates, that there will be a considerable number of hearings which will take place in Edinburgh. It is clearly for that reason that Scottish judges are made members of the Court. I should suppose that in a normal case, where a Court has been convened in Edinburgh it would probably be because the soldier concerned was himself in Edinburgh, and because the offence was committed there, and that from every point of view it was typically a Scottish case. I should imagine that in such case, generally speaking, the Court will sit in Edinburgh. And I should also imagine that the Lord Chief Justice will find that if he writes to the Lord Justice General—although he, has no power to command him—he will find in the Lord Justice General a very willing co-operator in making arrangements for the Court. I can well understand that it may be thought desirable to have sitting in Edinburgh one member who habitually sits in London. One wants to avoid anything which would tend to a type of jurisprudence developing and growing up in Edinburgh different from that which is applied in London. One would want also, therefore, by parity of reasoning, to have one of the Scottish members sitting in London.

In my view it would not be wise to fix this matter by rules. I do not think it would be advisable to have a rule whereby a particular type of appeal must be in one place or another. I think it is better to leave it to common sense and good judgment, to consider each case on its merits, and to decide in each case what is the forum conveniens. I imagine that that system will work. Of course, it will work only if there is real cooperation between the Scottish judges, between the Lord Justice General and the Lord Chief Justice. My experience (and I have to deal with the Scottish judges perhaps more than does the Lord Chief Justice at the present time) is that one always receives the fullest cooperation from them. So in my view there is no need to be concerned about difficulties which would arise if you did not get co-operation; you do get it, and you can confidently depend upon getting it. I believe that it will be better to leave matters it this way, so that the Lord Chief Justice will look at each case and will determine, having regard to the facts, whether it is an Edinburgh case or a London case; or, let me add, whether it is a Belfast case—it does not appear that the Amendment covers this last possibility. I think we shall find that if we follow the course which I have outlined, our difficulties will be surmounted, and that the machinery will work pretty smoothly.

I should also be opposed to this Amendment on another ground. No one seeks to alter the proposal, but under the Bill there is to be one Registrar of the Court. I have to appoint him, and it is an important appointment. If he is as good a man, as I hope he will be, he will be a tower of strength, both to the Lord Chief Justice and to myself. But he will be just one Registrar, and he will be in control in whatever jurisdiction proceedings may take place. Therefore, I think that the whole scheme will work happily if we leave it to the Lord Chief Justice, with my concurrence, to decide where an appeal from any particular court-martial is to take place.

The only other point with which I wish to deal is one which was raised by the noble Earl, Lord Selkirk—the point about the difficulty which may arise over getting witnesses. The procedure we have set out in the Bill is almost precisely the same as that laid down for the Court of Criminal Appeal. I believe that no difficulty has ever arisen in the Court of Criminal Appeal in this matter. Section 49 of our Judicature Act allows the High Court or the Court of Session to issue a subpoena whenever a witness is within the United Kingdom. I am told it is done if an affidavit is furnished that the witness's attendance is necessary. That, I think, answers Lord Selkirk's question. Failure to comply with the High Court's order is punishable by the Court of Session, or by the High Court of Northern Ireland, as the case may be. That is how the machinery stands at the present time. So far as I know, this machinery has never been brought into play in the nearly fifty years that the Court of Criminal Appeal has been working; but it is there. I hope that the noble Earl will not press his Amendment. The Lord Chief Justice has heard what I have said, and if he agrees that the way this scheme will be best worked will be by taking each particular case and considering which is the forum conveniens, perhaps that will reassure the noble Earl. If the Lord Chief Justice disagrees with me, of course he will state so now, so that I do not give the noble Earl a comfort and sense of security which is unreal. But I hope that what I have said—if the Lord Chief Justice does not dissent from it—will satisfy the noble Earl.

3.16 p.m.

LORD GODDARD

Naturally I shall be only too anxious to work this Bill when it becomes an Act with what the Lord Chancellor described as common sense and good feeling. Naturally one would wish to do so. But some of the noble and learned Viscount's remarks just now have made me think that this matter is a great deal more difficult than at first sight appears. He suggests—and I should suggest, too—that the best way of working this is to consider the forum conveniens; so that if the court-martial has taken place in Scotland the appeal should be heard in Edinburgh—subject, of course, to this: that by the time the appeal comes on, the unit to which the man belongs may have moved to England or may have gone overseas. I do not know how one will have to go to work in those circumstances; but that is a detail.

As the noble and learned Viscount the Lord Chancellor has pointed out, it would be most undesirable to have two sets of jurisprudence growing up, one in Scotland and one in England, with, possibly, a third in Northern Ireland. I ventured to point out to your Lordships during the Second Reading debate that I thought one of the objections to this Bill was that inevitably a body of case law would grow up around this Act, to he hurled at the heath of bewildered brigadiers when presiding over courts-martial. To prevent that, the Lord Chancellor suggests that one of tie Scottish judges should sit in England when the court is sitting in England, and, I suppose, by parity of reasoning, that one English judge should sit in Scotland when there is an appeal there. It seems to me that it will be somewhat unusual for judges to be changing about in this way. None of us knows how many appeals there will be under this Bill when it becomes an Act. If, whenever there is an appeal from a Scottish court-martial, I have always to send a judge up from England to Edinburgh, and whenever there is an appeal from an English court-martial one of the Scottish judges has to come down and sit in England, I think some difficulties and discontent may arise.

Naturally, there will be more appeals here in London than in Edinburgh. If I am to invite one of the Lords of Session to come down to nearly all appeals heard in England, in order to ensure that the jurisprudence goes parallel, and that contrary decisions are not given, then we must do it. But I would remind your Lordships that in Clause 2(3) there is a provision which says that the Court shall sit in London except in cases where the Lord Chief Justice gives direction that it shall sit at some other place. Obviously, the intention of the Act is that the Court should normally sit in London. If this is simply to be run by way of give-and-take, we may be able to work it; but I should like to know whether the noble and learned Viscount the Lord Chancellor thinks that the right way to work this would be for Scottish judges to come down and sit in London, and to have a similar arrangement in regard to the Northern Ireland Bench. I think this proposal is fraught with difficulties.

THE LORD CHANCELLOR

May I intervene again? I do not contemplate that Scottish judges should come to England, or that English judges should go to Scotland. I contemplate that the people I am going to appoint, who are going to be more precisely defined, although normally they will sit in England may sit in Scotland; and, similarly, those E appoint in Scotland may sit in England. I do not contemplate that that will be necessary in every case, or in anything like every case, but I thought it would be desirable to have that kind of nexus, to prevent jurisdiction developing on different lines. When the Court sits in Edinburgh, a Scottish judge will preside; and an English judge will preside when it sits in England. Nevertheless, on occasion it may be desirable to have one of the English persons I appoint (he may be a K.C., for instance) going up to Scotland, or one of the Scots coming to England. And there might be exceptional cases when it would be desirable that even a Scottish or Northern Ireland judge should sit in an English court. Sometimes it may be desirable to mix the personnel, so that each Court may sympathise and understand the point of view taken by the other Court. With that explanation, I hope that the noble and learned Lord, the Lord Chief Justice, will agree with me that it is better not to have this Amendment and to work the scheme on the lines I have suggested.

THE EARL OF SELKIRK

I am grateful to the noble and learned Viscount the Lord Chancellor, and to the noble and learned Lord, the Lord Chief Justice, for what they have said. I think I am fully met with the principle of the forum conveniens. I think that is the right principle, but I feel that if that is the case, it should not be necessary to include the words "shall sit in London … except …" Why not say that the court shall sit in forum conveniens, which seems suitable to the noble and learned Lord, the Lord Chief Justice? I think that the noble and learned Lords have to a great degree cleared up what has been worrying many people about the manner in which the Court shall be convened, and I shall not press this Amendment at the moment. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 agreed to.

3.25 p.m.

THE MARQUESS OF READING moved, after Clause 3 to insert the following new clause:

Application for leave to appeal.

(".—(1) A person convicted by a court martial may, when presenting to the appropriate authority a petition praying that his conviction he quashed, submit therewith an application in the prescribed form for leave to appeal to the Court in the event of the petition not being granted.

(2) Where such an application has been submitted with a petition, and the petition has not been granted, leave to appeal to the Court may be given or the application may be refused, where the appropriate authority is the Admiralty, by the Judge Advocate of His Majesty's Fleet, or, where the appropriate authority is the Secretary of State, by the Judge Advocate General.

(3) Where in accordance with the provisions of this section leave to appeal to the Court has been given or an application for leave to appeal has been refused, such leave or refusal shall be treated as having been given or made by a judge of the Court, and the provisions of section twenty-one of this Act shall apply accordingly."

The noble Marquess said: This is the most substantial of the Amendments which my noble friends and I have put on the Order Paper. It has one purpose and one only: that is, to expedite the procedure to be established under this Bill for the hearing of appeals. It is not intended to be in substitution for the procedure set out in the Bill, but to be an alternative course open to the convicted person. As the Bill stands, the existing procedure in regard to a petition by a person convicted remains, but over and above that he obtains under the Bill a right to apply for leave to appeal to the Court. That right can be exercised only at a time when either the time for the petition has expired or the petition has been rejected by the appropriate authority. What that involves is that the existing procedure by petition has to go forward to its final conclusion before the machinery for application for leave to appeal under this new procedure comes into operation. It seems to us that that order of events, the postponement of even the originating step of application for leave to appeal until the petition is entirely cleared out of the way by rejection, involves an unnecessarily complicated and dilatory procedure.

If this Court is to commend itself to the Service man, it is essential that it shall acquire as rapidly as possible the reputation of being not only efficient but expeditious. It is not right that a man who has been convicted should have to wait for a long period of time until he knows whether or not the sentence is going to be carried out or whether, as the result of an appeal to the new Court, the conviction may ultimately be quashed. He ought not to be kept in suspense any longer than is necessary for the carrying out of the proper procedure. Therefore, in order to speed that result, we suggest in our Amendment, not, as I say, in substitution for the present petition but as a corollary to it and contemporaneously with its institution, that it shall be open to a man who has been convicted at a court-martial to attach to his petition an application which, if the petition is rejected, automatically gives him leave to proceed with his application for leave to appeal to the Court. That would mean that the two documents would go forward simultaneously, if not as one document with an appendix; but, of course, the notice of appeal part would become operative only when the petition was rejected.

There are two subsequent stages in this procedure included in our Amendment. In the case of an application for appeal being attached to the petition, and only in such a case, we propose that the Judge Advocate of the Fleet or the Judge Advocate General shall have power either to allow the appeal or to reject it. Following upon that, we suggest that where the Judge Advocate of the Fleet or the Judge Advocate General has refused leave to appeal, there should be an appeal from him, not to the one judge who under the Bill deals with applications for leave to appeal, but to the full Court: in other words, that for that limited purpose, and for that limited purpose only—namely, for the granting of leave to appeal—the Judge Advocate of the Fleet or the Judge Advocate General shall be in the same position as a single judge of the Court examining applications for leave to appeal on behalf of the full Court.

The purpose of this particular part of our Amendment is that we do not want it to appear to the Service men that, if the Judge Advocate of the Fleet or the Judge Advocate-General has power to refuse leave to appeal, something like the old state of affairs is re-created, and all that happens is that a functionary, who may be regarded by them, however wrongly, as merely a departmental functionary of the War Office or the Admiralty, as the case may be, has exercised the power conclusively, and that no further steps can be taken. We have, therefore, thought it right to give this power of appeal from him to the full Court.

I have no doubt that it will be said that we are by this Amendment removing what it has rather become the habit to call one of the valuable filters through which these applications pass. That may be so. It may be that if our Amendment is adopted it will cast a heavier burden upon the actual Court. But, at the same time, when on the Second Reading I expressed some doubt about the aspect of over-burdening the Court, particularly in war time—the noble and learned Lord the Lord Chief Justice appeared to anticipate no particular danger to the procedure from that cause. It may be that this is not the best way of attaining the object that we have in view. I would say at once that we are not irrevocably attached to this particular scheme but what we are most firmly desirous of attaining is some procedure more expeditious than the rather cumbersome and dilatory procedure contained in the Bill as it stands.

It may even be that, from this point of view of saving time, it would be wise and practicable to draw a distinction in procedure between courts-martial which are held in the United Kingdom and those which are held elsewhere. The danger of any considerable period of delay in courts-martial held in the United Kingdom is probably, to all intents and purposes, negligible; but we are greatly impressed by the possibilities of delay under the now proposed system in courts-martial which may be held in Korea. Singapore, North Africa or where you will, where, although the petition can be presented locally, it will be necessary for it to make its way home to the appropriate authority, there to be considered and decided upon, the decision communicated back to the theatre of war in which the man is serving, and only then the machinery put into operation for the application for leave to appeal. That seems to us too slow and too oppressive upon the man who desires to appeal.

As has been said, it is anybody's guess how many of these applications there are going to be. But I cannot help thinking that, except in an obviously frivolous case, anybody advising a Service man under the new conditions to be established by this Bill would almost inevitably say to him: "You have two opportunities here: one the petition, and the other the application for leave to appeal. You will be very unwise if you do not use them both." In those circumstances, the argument that if you have a contemporaneous procedure rather than a successive procedure you will add to the number of appeals, I, for one, do not believe will be found to be established in practice. That is the purpose of this Amendment. We attach considerable importance to the principle behind it, even though we are not pledged to the particular machinery which we have proposed. I beg to move.

Amendment moved— After Clause 3, insert the said new clause.—(The Marquess of Reading.)

VISCOUNT BRIDGEMAN

My noble and learned friend has explained the reason behind this Amendment so clearly that I should wish to support what he has said in only a few words and from the military point of view. The Lewis Committee, of which I was a member, made a considerable point in their Report—it is paragraph 83—of this question of avoiding delays. One saw it so clearly on the Lewis Committee, and I can see it beginning again in the discussions on this Bill, that as time goes on more and more people try to get the legal aspect absolutely right, and as a result we are in danger of reaching a position which, if one may say so without irreverence, will be the lawyer's delight and the soldier's despair.

I believe it is fair to say that the procedure envisaged in this Bill is largely modelled on the criminal appeal procedure. I am sure that that would be a good thing if the circumstances of the cases corresponded completely. It can perhaps be argued that a court-martial at home, in the circumstances surrounding it, fits fairly well the circumstances of a criminal appeal—although not exactly, because the witnesses in a court-martial are more likely to be posted overseas than are those who are concerned in a criminal appeal. But when we come to overseas courts-martial, the case is entirely altered. There, unless we are careful, with all our good intentions in this Bill, we may produce a state of affairs in which the delays are even worse than those of which the Lewis Committee complained, and where, owing to battle circumstances, cross-posting, invaliding home, and the rest, it becomes impossible to work this machine so as to avoid delay. For that reason, I warmly support this Amendment; and I would particularly say that, whatever may be the circumstances at home, the position overseas calls for an Amendment of the kind which my noble friend has moved.

THE LORD CHANCELLOR

Before dealing with the detailed provisions of this Amendment, I should like to remind your Lordships of something which you all know already. What is the structure of this Bill? We have left in all the existing machinery governing courts-martial: that is to say, after the court-martial there is the question of confirmation by the convening officer; after confirmation there is the review, which takes place in every case; after the review there is the petition, which can take place; and on the petition, by virtue of the prerogative right, His Majesty may be advised to take whatever course he thinks proper in regard to the matter. All that structure remains untouched. I think it was wise to do that because, as I have said frankly to your Lordships, none of us quite knows to what extent this procedure can work in time of war. We hope it will work; we believe it will work; but any man who asserts positively that he knows it will work is a very unwise and rash person. Therefore, I think it is right that we should preserve the existing machinery for that reason, and also because—and I say this without hesitation. as I have said before—in my experience of these matters the existing courts-martial machinery has worked very well. There have been defects, more of a matter of form than anything else, and in particular it is a weakness of the existing machinery that the person accused is not brought face to face with his judges. That is the main grievance against the existing system.

What we have done, quite deliberately, is to superimpose a new system on the existing machinery when the existing machinery has run its course and when the prerogative rights are exhausted. I say frankly to your Lordships that one of my anxieties about how this thing will work is whether or not the court will become clogged up with a mass of cases. The noble Marquess, Lord Reading, said just now that he understood that the Lord Chief Justice indicated that he was not concerned upon that point. I was a little surprised to hear that, because that is not my recollection of what the Lord Chief Justice said. I thought he was concerned about it. But whether he is or is not, he can speak for himself, and I have no doubt that he will do so. I confess that I am concerned about it. I am concerned—if I may borrow and use once again this overworked word "filter"—to see that all the titters are in good working order. I hope that the fact that after the review has taken place a petition has to be lodged before this machinery comes into operation will act as a filter.

In a large number of cases, after the review has confirmed the proceedings there is no petition. Long may that continue. I hope that when the petition is over, and all that is done with, there will be a substantial number of cases in which the person accused will not ask for leave to appeal. I hope so, although I do not know. Experience will teach us.

The first vice of this Amendment, as I see it, is that it makes it almost inevitable that wherever there is a petition so also there will be an appeal, because in effect this Amendment provides that where you make your petition you at the same time serve your notice of appeal. I concede the noble Marquess this point: I certainly do not want to have undue delay. He has a point in saying that this Amendment would tend to lessen the delay in the circumlocution which might otherwise take place. But think I am paying too big a price for that avoidance of delay if, at the same time, I am destroying (I must use the word again) the filter, because I shall tend to get my machine clogged up with cases. There was some substance in what the noble Marquess said about differentiating between courts-martial which take place overseas and courts-martial which take place in this country. Suppose you have a court-martial arising out of some incident at Aldershot. I cannot see any reason whatever why, when the petition has been finally disposed of and the prerogative rights are over and exhausted, there should be delay. If he wishes, the man can serve his notice of appeal and it can be considered. It is, of course, a different matter if the case comes from, let us say, Korea. I realise that point, and yesterday evening I was myself a little disposed to think that we might be able to do something on those lines. I have acquainted the Army Council with the trend of my thoughts, but at the present time I gather that they are not very favourably disposed to it, so I cannot commit myself.

I shall take an opportunity of seeing the Service Ministers and discussing the matter with them, to see what we can do. Without in any sense committing myself or the Government, it is possible that we may be able to provide machinery of this sort for courts-martial which take place abroad. It is possible that a scheme may be devised whereby a notice of appeal may be prepared at an early stage. It may be treated, to use the legal phrase, as an escrow until such time as the petition is dismissed, and if and when the petition is dismissed it can then be put before the court so that they may deal with it. That is a possible way out of the difficulty. I do not want in any way to commit myself.

I am quite sure that the principle advocated in this Amendment, to enable the Judge Advocate General or the Judge Advocate of His Majesty's Fleet to grant or refuse leave to appeal, is a bad one. What would the effect be? Leave to appeal is considered in this way. The Court consists normally of three judges. The judges allocate a certain number of cases amongst themselves (the public do not realise that His Majesty's judges at the present time are called upon to do a large amount of homework) and they take them home over the week-end and read them. By a matter of practice one judge reads the case, and one judge can say, "This is a proper case for appeal"; or he can say, "I do not think this is a proper case for appeal". If he says that it is not a case for appeal, then the accused person has the right to apply to the Court consisting of the three judges. In practice, where the single judge, on reading the papers, says he thinks it is not a proper case for appeal, in a considerable number of cases the particular applicant goes no further; and I hope that may continue to be so. If, as is provided here, the Judge Advocate General can give or refuse leave to appeal, consider what will happen. Prejudices die slowly, and he will be regarded, quite wrongly—to use the phrase of the noble Marquess—as a "departmental functionary". He will be considered as part of the Army machine, and he has refused leave to appeal. I think it is almost inevitable that when he refuses leave it will almost incite the person convicted to appeal. What is then provided by the Amendment?—that that appeal has to go before the full Court. By that method we shall not get the useful filter of the single judge. That will be destroyed, and the appeal will go to the full Court. I believe that that will cause delay. It would be a bad step and would make a difficult situation more difficult.

However, I have drafted an Amendment to this effect. If there has been a long and complicated case, which has been the subject of petition, and the Judge Advocate of the Fleet or the Judge Advocate General, though he thinks the petition ought not to be allowed, has come to the conclusion that there is a real case to argue and writes upon the papers: "In my view this is a case where there ought to be an appeal," I think it quite reasonable that the single judge should be able to have regard to that and say. "I will give leave to appeal." Your Lordships will see that I have provided that in Amendment No. 7 on the Marshalled List. It is in these words: 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. That will be a boon to the judge if there is a complicated question, say, of accounts—of taking money or something of that sort. It will save him having to read through a mass of papers. The Judge Advocate General can say "think leave to appeal should be granted," and the appeal will be heard before the full Court. But the effect of this Amendment is really to take the thing out of the hands of the judge. I think that would be a retrograde step.

On the whole I do not like this Amendment, but I will gladly consider any way possible of speeding up the necessary papers. If we were to accept the Amendment in the present form, however, we should, for the sake of some little celerity, be destroying some of the existing filters and safeguards; and we might bring about that very condition the idea of which fills me with alarm: that this Court in its early days would be clogged up with work. Therefore that is all I can say to the noble Marquess: that between now and the Report stage I will see whether I can do anything on the lines I have indicated. But I must not be taken as making any promise.

THE MARQUESS OF READING

That is as regards courts-martial outside this country?

THE LORD CHANCELLOR

Courts-martial outside. The only indication I have had so far, as I have said, is that the Army Council were not altogether happy; but so long as my position is preserved in that matter I will consider whether there is anything that can be done. I hope that this will give some satisfaction to the noble Marquess and that at a later stage I may be able to do something on the lines I have suggested.

LORD GODDARD

My Lords, perhaps I may offer a few observations on what has been said by the noble Marquess and by the noble and learned Viscount the Lord Chancellor. The scheme of the Bill as it exists at present is that a man shall first petition and, if his petition has been refused, may apply for leave to appeal. If the noble Marquess's suggestion were adopted, everybody who was presenting a petition would, of course, put in at the same time an application for leave to appeal. Why should he not? He would have everything to gain and nothing to lose. Therefore, it would, in effect, be saying that he could appeal without petition, because if the petition were dismissed, then the leave to appeal would go forward automatically. In the Court of Criminal Appeal there is a somewhat similar filter. At present, when a person desires leave to appeal (and there are an extraordinary number who do appeal, without any grounds whatever: well over 1,200 a year, I think), the case is always sent to a single judge first, unless there has been a certificate by the trial judge that it is a fit case. We find that about 25 per cent. of the people who apply for leave to appeal are content with the decision of the single judge. If the single judge gives leave to appeal, it goes to the court. If the single judge refuses, we find that about 25 per cent. of the appeals drop out. It is only recently that we have adopted this plan as fully as it is now in operation. All sentence appeals go to the single judge, and about 30 per cent. of the appeals are dropped if the single judge refuses. I should be sorry to see the noble Marquess's Amendment adopted, because I am certain that everybody would send in a notice of appeal with his petition, and it would then go forward as a matter of course if the petition were refused.

But, with all respect to the noble and learned Lord Chancellor, I do not think there would be any objection to the Judge Advocate, if he were refusing a petition, saying that in his opinion it was a fit case for appeal, because then he would be putting himself only in the same position as that in which a trial judge now stands in civil matters. A trial judge can always give a certificate that a case is a fit case for appeal. I do not see any reason why the Judge Advocate General should not also be able to say, "I reject the petition, but I will give a certificate that this is a fit case for appeal." It need not then go to a single judge at all. I hope and believe that at least as many courts-martial appellants as appellants to the Court of Criminal Appeal would be content with the dismissal of the petition. If an Amendment were agreed by which an application should not be sent forward with the petition—except possibly in foreign countries—but that the Judge Advocate General should have the right to say, "This is a fit case for appeal," it might, I think, be an improvement.

THE MARQUESS OF READING

I am obliged to the noble and learned Viscount, and to the noble and learned Lord, Lord Goddard, for their contributions to the discussion on my Amendment. I think it has become plain, from the discussion we have had, that there is a genuine desire everywhere to expedite the procedure so far as possible, and some consciousness that something might be done more than is done in the Bill as it at present stands to achieve that object. I realise that the noble and learned Viscount can give no assurance at this stage. But perhaps it would be possible that something of the nature that he indicated, differentiating between courts-martial which take place at home and those which take place abroad, could be introduced into the Bill—and I should welcome some further addition on the lines which the noble and learned Lord, Lord Goddard, has just indicated with regard to the position of the Judge Advocate General. If certain propositions of that kind can be considered between now and Report stage, with the object of seeing whether agreement among all those interested can be arrived at, certainly I should not wish to press my Amendment to-day. As it is my understanding that the noble and learned Viscount is prepared to discuss the matter further between now and the next stage, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 4 [Application for leave to, appeal]:

THE LORD CHANCELLOR

This is a drafting Amendment. I beg to move.

Amendment moved— Page 4, line 32, after ("which") insert ("an")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This, too, is a drafting Amendment. I beg to move.

Amendment moved— Page 4, line 33, leave out ("may he made") and insert ("must be lodged")—(The Lord Chancellor.)

On Question, Amendment agreed to.

4.2 p.m.

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: This is the Amendment which I indicated just now. It is to deal with this situation: the Judge Advocate General is not a member of the Court, and therefore he differs slightly from the trial judge of a court, who is a member of the Court of Criminal Appeal. Although I do not think it is appropriate that the Judge Advocate General should give leave to appeal, because we want to indicate that this Court is completely independent of any departmental function (if I may use that unpleasant phraseology about the Judge Advocate General) I believe that, where he thinks the case is a proper one for appeal, he should be able to give his opinion to that end—in spite of the fact that he has dismissed the petition; and may I tell those of your Lordships who are not trained in the law that that very often happens, and there is nothing illogical in it?

A judge may quite rightly say: "I think this petition ought to be dismissed." He may also say: "I think there is an arguable case on the other side." In such cases, the judge is often much happier if the case can be argued, and it is perfectly consistent for him to say: "I think the petition must be dismissed, and I shall so advise. At the same time, I shall be glad if this case can be considered by the Court of Appeal." If he does that, I do not see why it is necessary that that case should ever go before the single judge. It should be treated as though the single judge had given permission. Therefore, I have worded this Amendment in such a way as to take regard of the fact that, because the Judge Advocate General is not a member of the Court, and it is therefore harder for hits to give leave, if he indicates that in his view leave should be given, then, without more, the single judge to whom the case is passed will simply say: "I pass this on to the full Court, and the full Court can consider it." I think this may be a saving of time. I beg to move.

Amendment moved— Page 4, line 34, at end insert the said subsection.—(The Lord Chancellor.)

LORD GODDARD

I would remind the Lord Chancellor, if I may, of one thing. He said that the difference between the Judge Advocate General and a judge giving leave to appeal is that the judge who gives a certificate that the case is fit for appeal is a member of the Court of Criminal Appeal. It is not so in every case, however, because a chairman of quarter sessions can do it, and a recorder can do it. And they are not members of the Court of Criminal Appeal. I do not quite understand the object of this Amendment. If the Judge Advocate General, in dismissing a petition, says: "I consider that this is a fit case for appeal." why should not the appeal at once lie to the Court, and not have to go to the single judge who, according to the Amendment, would fall to be really a rubber stamp, as I think? I am suggesting that the "rubber stamp" might be taken out, and that if the Judge Advocate General or the Judge Advocate of the Fleet expresses the opinion that it is a fit case for appeal, the appeal should go to the Court straight away. That is all I have to say about it.

THE MARQUESS OF READING

In view of what the noble and learned Lord, Lord Goddard, has just said, and in view of the suggestion made during the dis- cussion on the earlier Amendment, that we should have talks on the point between now and the next stage, would the noble and learned Viscount the Lord Chancellor consider withdrawing this Amendment at this stage, with a view to taking it into our general conspectus of the situation between now and Report? It may be that in its present form this Amendment will not fit into any wider settlement that we might reach between now and then.

THE LORD CHANCELLOR

I am quite ready to do that. I thought it right to put down this Amendment, so that your Lordships could see what I had in mind. By all means let us discuss it later, and if it would be more convenient for the discussion that this Amendment should not be in the Bill I gladly accept that suggestion. Having indicated the sort of thing I had in mind, I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 4, as amended, agreed to.

Clause 5 agreed to.

Clause 6:

Powers of the Court in special cases.

(3)Where an appellant has been convicted of an offence committed under circumstances involving the higher of two degrees of punishment, and it appears to the Court that the court-martial ought to have found him guilty of the offence as being committed under circumstances involving the lower degree of punishment, the Court may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial a finding of guilty of the offence as being committed under circumstances involving the lower degree of punishment and pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence as they think proper, being a sentence warranted by the relevant Act for the offence when committed under circumstances involving the lower degree of punishment.

(4)Where, on an appeal to the Court against a conviction by an army or air force court-martial, the Court are satisfied that a finding ought to have been substituted, by virtue of powers conferred in that behalf by the Army Act or the Air Force Act, for the finding of the court-martial, they may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial such a finding as, in their opinion, ought to have been so substituted and pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence as they think proper, being a sentence warranted by the relevant Act for the offence specified or involved in the substituted finding but not being a sentence of greater severity.

THE LORD CHANCELLOR

This is a drafting Amendment. I beg to move.

Amendment moved— Page 5, line 32, at end insert ("by which he was tried")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved, in subsection (3) after "punishment" (where that word occurs a second time) to insert: or (b) an appellant has been convicted of an offence and it appears to the Court that the court-martial by which he was tried ought to have found him guilty of the offence subject to exceptions or variations;". The noble and learned Viscount said: Perhaps it would be convenient, if I am not breaking the rules of order, to discuss this Amendment together with the next three which stand in my name.

In Clause 6 of this Bill, your Lordships will see that there are four subsections dealing with this sort of matter—I am not concerned for the moment with subsections (5) and (6). Subsection (2) deals with this sort of case. Where the trial court, for instance, has found a man guilty of murder, and the Court of Appeal think that a verdict of manslaughter is the appropriate decision, they may substitute a verdict of manslaughter for the verdict of murder, it being plain, of course, that all the ingredients of manslaughter are already to be found in the decision of murder. Subsection (3) deals with this sort of case—I will give an illustration, because I think that makes it easier to follow. If a man strikes an officer, the gravity of the offence depends upon whether or not he is on active service. Suppose that at the court-martial the soldier has been convicted of striking an officer on active service, and that the appellate court come to the conclusion that the service in question did not constitute "active service" they can then substitute a verdict of "striking him while not on active service," with the appropriate penalty for that offence, which is, of course, a lesser penalty.

Subsection (4) was intended to deal with the case where there has been failure to amend the charge sheet. The charge is, perhaps, lo the effect that a man has stolen £100, and the decision is that he has stolen £95. The charge sheet ought to have been amended, but was not. That is the sort of case with which subsection (4) was meant to deal. On going into this matter carefully, it has been considered that subsection (4), which was inserted in some haste in another place, is not satisfactory, in that it overlaps both subsections (2) and (3); and it has therefore been decided to strike out subsection (4) and to alte7 subsection (3). The substance of subsection (4) is brought into subsection (3), which now comes under two limbs. The Amendment amounts to little more than a drafting matter, but that is the explanation as to why it has been done. Accordingly, I beg to move the first of these Amendments. As I say the next three Amendments really follow one on the other. Number 12 is to leave out subsection (4), and numbers 9, 10 and 11, put into subsection (3) the points that were previously to be found in subsection (4).

Amendment moved— Page 5, line 34, at end insert the said paragraph.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move the next three Amendments with which I have already dealt.

Amendments moved—

Page 5, line 38, after ("punishment") insert ("or, as the case may he, guilty of the offence subject to exceptions or variations");

Page 5, line 41, leave out from ("offence") to end of line 42, and insert ("specified or involved in the substituted finding, but not being a sentence of greater severity");

Page 5, line 43, leave out subsection (4).—( The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 6, as amended, agreed to.

Clauses 7 to 9 agreed to.

Clause 10:

Legal aid to appellants.

10.—(1) The Court may at any time assign to an appellant a solicitor and counsel, or counsel only, in any appeal or proceedings preliminary or incidental to an appeal in which, in the opinion of the Court, it appears desirable in the interests of justice that the appellant should have legal aid and that he has not sufficient means o enable him to obtain that aid.

4.12 p.m.

THE EARL OF SELKIRK moved to delete "or counsel only." The noble Earl said: After the weighty subject we have been considering, this is a very small point. Clause 10 deals with the granting of legal aid to appellants and it says that the Court may appoint solicitor and counsel, or counsel only. I submit that it is highly unsatisfactory in a high Court of this nature that counsel should be appointed without solicitor. It is our normal practice in Scotland, even in courts of first instance, never to appoint counsel without solicitor. I believe that is not so in England. It seems to me, however, that in such a Court as this, no appellant could be adequately represented unless he had the services both of solicitor and of counsel. I know it is within the discretion of the Court and I am quite certain the Court will use their powers widely; but none the less, if we leave in the words which I suggest should be removed we shall be suggesting to the Court that Parliament thinks that an appellant is adequately represented by counsel only. I beg to move.

Amendment moved— Page 8, line 29, leave out ("or counsel only.").—(The Earl of Selkirk)

LORD GODDARD

I hope the noble Earl will not press this Amendment, because it would establish a great difference between the court-martial Appeal Court and the Court of Criminal Appeal. If counsel and solicitor had to be granted in every case in the Court of Criminal Appeal the expense to the country would be enormous, and there is no reason for it except in a very limited number of cases. The ground that is generally put forward on appeal is that of misdirection. One of the most usual pleas put is, "My counsel would not do what I told him to do in the court below," or "I pleaded guilty only because my counsel made me plead guilty." Nowadays there is never any gratitude to counsel. But, quite seriously, I would say that in ninety cases out of a hundred there is no necessity on appeal to grant the services of a solicitor because there is no case to be worked up. Nearly always the question is on a point of law which has emerged or one of misdirection, and counsel can argue that without the assistance of a solicitor. Indeed, he would not take any notice of the solicitor if one were appointed. The serious objection that I see to this proposal is that in the Court of Criminal Appeal we do not grant the services of a solicitor unless there is overwhelming necessity for it, and it would be rather difficult and invidious if two different practices were to grow up: that in courts-martial appeals the services of a solicitor would have to be given, whereas in the Court of Criminal Appeal they would not.

THE EARL OF SELKIRK

Perhaps I can relieve the noble and learned Viscount of the necessity of replying. If it is of the slightest use to the Lord Chief Justice that I should do so, I am perfectly satisfied to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clauses 11 to 13 agreed to.

Clause 14 [Suspension of death sentences]:

THE LORD CHANCELLOR

This and the next Amendment are both drafting. I beg to move.

Amendment moved— Page 10, line 44, leave out ("made") and insert ("lodged").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Amendment moved— Page 11, line 1, leave out ("made") and insert ("lodged").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 14, as amended, agreed to.

Clause 15 [Restitution of stolen, &c., property]:

THE LORD CHANCELLOR

These two Amendments are similar to those I have just moved, and accordingly I beg to move.

Amendments moved—

Page 11, line 40, leave out (made") and insert ("lodged").

Page 11, line 41, leave out (made") and insert ("lodged").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 15, as amended, agreed to.

Clauses 16 and 17 agreed to.

Clause 18:

Furnishing, on appeal, of proceedings of court-martial, &c.

(2) Rules of court may make provision, in the case of any such appeal or application as aforesaid for requiring the Admiralty or the Judge Advocate General to procure from any member of the court-martial by which the appellant or applicant was convicted, or from the person who officiated as judge advocate at the trial by the court-martial, 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 is, or may he, material for the purpose of dealing with the appeal or application, and to furnish the report to the registrar in accordance with the rules.

4.16 p.m.

THE MARQUESS OF READING moved, in subsection (1) after "proceedings of the court-martial" to insert "and the petition presented by the person convicted." The noble Marques said: This is a small Amendment and I hope the noble and learned Viscount will find himself able to accept it. The clause provides that certain papers shall be placed before the Court of Appeal. As the Bill stands, these papers are merely the proceedings of the court-martial. We have thought it right to suggest that in addition to those documents the Court of Appeal should have before it the petition containing the man's reasons which he originally presented and which has now been superseded by the appeal procedure. With that simple explanation I beg to move.

Amendment moved— Page 12, line 37, after ("court-martial") insert ("and the petition presented by the person convicted").—(The Marquess of Reading.)

THE LORD CHANCELLOR

I see no reason at all to oppose this Amendment. I am not certain whether the Amendment is in perfect form, as a mere matter of drafting, because there is no petition in a case of sentence of death. But, subject to my looking at it from the point of view of seeing whether the form is correct or not, I will accept the Amendment at this stage.

THE MARQUESS OF READING

I am much obliged to the noble and learned Viscount.

On Question, Amendment agreed to.

THE MARQUESS OF READING

This Amendment is similar to the preceding Amendment, and accordingly I beg to move.

Amendment moved— Page 13, line 3, at end insert ("and the petition presented by the person convicted").—(The Marquess of Reading.)

On Question, Amendment agreed to.

THE MARQUESS OF READING moved, in subsection (2) to omit— any member of the court-martial by which the appellant or applicant was convicted from.

The noble Marquess said: We have put down this Amendment at the moment with the purpose merely of raising something in the nature of a discussion upon subsection (2) of Clause 18, because, frankly, we cordially dislike the procedure which is there suggested. To begin with it says: Rules of court may make provision, in the case of any such appeal or application as aforesaid for requiring the Admiralty or the Judge Advocate General to procure from any member of the court-martial by which the appellant or applicant was convicted, or from the person who officiated as judge advocate at the trial by the court-martial, a report … May I ask, incidentally, would it be the Judge Advocate-General or would it be the Secretary of State? It seems to me doubtful whether the Judge Advocate-General has, in those circumstances, any control over members of the court-martial at all. But that is rather an incidental point. The real substance of our objection is that, as this clause appears in the Bill, it would be open to the Court to disregard the President of the court-martial. I am not suggesting that they would do it, but one wants to safeguard the position. After all, this will be a Statute which will go on the book and remain for many years, and one wants to ensure that the Court shall not have power to short-circuit the President of the court-martial. It seems to us that it will be quite permissible for the Court of Appeal, if it wishes, to ask for reports from members of the court as well as from the President. What does not seem right to us is that it should be open to the Court to leave out the President and to go direct to another member of the court. We have, of course, to guard against a situation in which, when, for some reason, a report is called for, the President may have gone sick or have been killed, or may have been transferred to some other theatre of war which is inaccessible. But, providing communication can be obtained with him with reasonable facility, we think that, whatever other member of the court is approached, the President ought in all cases to be asked for a report.

This point was disc4ssed to some extent in another place. It was there suggested that the right way to meet the difficulty was to reconstitute the court. I am bound to say that that seems to be an extremely clumsy method, and in many cases it would probably prove impossible to operate. You cannot be sure of being able to collect again from all over the place officers to whom any kind of pleasant or unpleasant thing may have happened in the interval and to re-form the court. You can certainly ask for a report from the members but, in our submission, in doing so it should always be assumed that you ask for a report from the President if he is in a position to be asked for one. It was suggested, again in another place, that it might be desired that a member of the court should be asked for a report in cases where it was suggested on the appeal that undue pressure had been brought to bear by the President upon a junior member of the court. It might he that in a case of that sort a report would be required from the member, but surely that is essentially the kind of case where one would ask the President, whose own conduct is challenged, for a report, with no less certainty than one would ask the junior officer. It does not seem right to us that perhaps a junior subaltern should be asked for a report about what had happened at a court-martial, and that the President, who might be very much his senior officer, should be entirely left out of account.

We have not put down any specific Amendment. It is not, I agree, a very easy matter to draft one which would meet the point and create the situation which we desire. We hoped that by putting down an Amendment in this form we should obtain from the noble and learned Viscount the Lord Chancellor some expression of his opinion, some statement of his reaction to the clause as it stands, and, we hope, some ground for expectation of a more reasonably conceived procedure, before we get to the Report stage. I beg to move.

Amendment moved— Page 13, line 6, leave out from ("from") to ("the") in line 8.—(The Marquess of Reading.)

4.24 p.m.

VISCOUNT BRIDGEMAN

Once again I should like to support my noble friend in the Amendment which he has proposed. I feel that the wording of the clause as it stands, making it possible for a report to be called for from a member of the court-martial other than the President, is wrong in two ways. In the first place, it is undesirable from the military point of view, for all the reasons which my noble friend has given. In the ordinary way, should the Judge Advocate General apply for it, the President can supply all the information that the Court of Appeal require to deal with any points that arise. If there were a chance of bypassing the President, and going to some other member of the court-martial for a report, it seems to me that it would be establishing a procedure which would be most undesirable from a military point of view and likely to produce little result from the legal point of view.

The second objection is that you can read into the Bill an invitation to do something which is militarily undesirable. Even if it is necessary, on occasion, to obtain a report from a junior member of a court-martial, it is surely unusual in a Bill to invite anyone to do so. I submit to the noble and learned Viscount the Lord Chancellor that this right to obtain a report is inherent in the ordinary power of command. If necessary, the Judge Advocate General—or whoever the appropriate officer may be—can make the request to the General Officer Commanding, or whoever is the commanding officer, the President or a member of a court-martial. That can be done, I submit, without any special provision in this Bill. And I have no doubt that it would be clone in cases where such procedure was warranted. For these reasons I hope that the noble and learned Viscount, having listened to what has been said, will give this matter consideration before the next stage of the Bill is reached.

THE LORD CHANCELLOR

I confess that I am rather sympathetic to the arguments which have been adduced. It is not very attractive to me to contemplate that you shall pick and choose in this way and leave the President altogether out of account. I realise that it may be necessary to send for reports from any members of courts-martial. The noble Lords do not question that: they merely say that, if it is necessary, then, provided the President is available, it is desirable to ask him. I confess that the bent of my mind also is rather that way. I will look at this point, if I may, and perhaps the discussions which we are to have between now and the Report stage will extend to this matter also, and we may find we can devise something to put in here to meet the situation.

I will also look into the question whether it is appropriate that the Judge Advocate General should have this power. I may be that this is a power which should not be his, and which should be reserved to the Court itself. If that is right, I think it should appear in the Bill. There would be no sort of inherent jurisdiction. This Court is a creation of the Statute, and the Statute must contain this power. It might be undesirable to have the Judge Advocate General put in the Bill in this way at all. I visualise circumstances in which he might be functus officio. Your Lordships will realise that I am only thinking aloud, as it were, to show you what is passing through my mind. It might be that there would be circumstances in which the Judge Advocate General would have nothing more to do with the matter at all, and that it would be for the Court to act. If noble Lords will allow me to leave it in that way, I will see whether we can get something rather more satisfactory than this Amendment. I realise that it is not by any means an easy matter to draft an appropriate provision, but I will do my best, if noble Lords are agreeable to that Course.

VISCOUNT MAUGHAM

Perhaps the noble and learned Viscount the Lord Chancellor, in considering what sort of wording may be appropriate, will bear in mind that in most court-martial cases, or at any rate in a great many, there is no report of what took place, what witnesses were called and what evidence was given. I have been distressed by the fact that in a large number of trials under the ordinary Army warrant for crimes against the laws and usages of war, which have been so numerous on the Continent, there has been no way of knowing what took place, apart from the decision, except from what the Judge Advocate General has said in reference to the case. That is a most unfortunate circumstance, and it may be desirable that some person—I will not say whether it should be the President or some other person—should have a right to make a report of what took place and of the decision reached. Perhaps the noble and learned Viscount will bear that in mind when considering the form of the substitute clause.

LORD MERRIMAN

I had not intended to intervene, but I should like to ask the noble and learned Viscount for information. There was a time in the last war but one when I had something to do with this sort of procedure. I have never heard of a court-martial in which there was not a record of the names of witnesses, and of the evidence which they gave, and I strongly suspect that the noble and learned Viscount, Lord Maugham, is mixing up some form of military court in occupied territory with court-martial procedure under the Army Act.

THE LORD CHANCELLOR

That is so. What the noble and learned Viscount, Lord Maugham, said seems to have reference to military courts in occupied territory. In the majority of courts-martial a shorthand note is taken of everything that takes place; and where there is no shorthand note, a full note is made by the President of the Court, so that in the Court of Appeal we always have the necessary material.

THE MARQUESS OF READING

I think our action in putting down this Amendment in this form, in order to raise discussion on it, has amply justified itself. In view of what has been said, and in the expectation that in subsequent discussions we may be able to arrive at some more acceptable formula, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 18, as amended, agreed to.

Clauses 19 and 20 agreed to.

Clause 21 [Exercise of certain powers of the Court by a fudge thereof]:

THE LORD CHANCELLOR

This is a drafting Amendment. I beg to move.

Amendment moved— Page 14, line 34, leave out ("may be made") and insert ("must be lodged").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 21, as amended, agreed to.

Clauses 22 and 23 agreed to.

Clause 24 [Interpretation of Part I]:

THE LORD CHANCELLOR

This Amendment is to describe the Judge Advocate General in precisely the way in which he is described in the letters patent by which he is appointed. I cannot think there will be violent hostility to this Amendment from any quarter of the House. I beg to move.

Amendment moved— Page 15, line 42, leave out ("reserve and auxiliary") and insert ("auxiliary and reserve").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 24, as amended, agreed to.

Clause 25 [Operation of provisions of Part I relating to appeals]:

THE LORD CHANCELLOR

This Amendment and the next two, if I may take them together, are all designed to make the clause apply to special references to the court under Clause 20. They are little more than drafting Amendments. I beg to move.

Amendment moved— Page 16, line 27, at end insert ("against convictions by courts-martial and the provisions of this Part of this Act relating to references to the Court, in cases of convictions by courts-martial, of the findings of the courts-martial").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is also a drafting Amendment. I beg to move.

Amendment moved— Page 16, line 28, leave out ("apply to persons convicted") and insert ("have effect in relation to convictions").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is the third of the drafting Amendments to the clause. I beg to move.

Amendment moved— Page 16, line 31, leave out ("apply to persons convicted") and insert ("have effect in relation to convictions").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 25, as amended, agreed to.

Clause 26 [Exclusion of appeals from certain Dominion naval courts-martial]:

THE LORD CHANCELLOR

As now drafted, Clause 26 does not apply to special references under Clause 20 of the Bill. This Amendment would prevent a reference under Clause 20 when the person convicted was at the time of conviction by a naval court-martial borne on the books of a ship of the Royal Australian or Royal New Zealand Navies which was not at the time placed at the disposal of the Admiralty. As it now stands, the clause is defective, and the Amendment is little more than drafting. I beg to move.

Amendment moved— Page 16, line 40, at end, insert ("and the provisions of this Part of this Act relating to references to the Court, in cases of convictions by courts-martial, of the findings of the courts-martial shall not apply in the case of any such conviction as aforesaid").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 26, as amended, agreed to.

Clauses 27 to 32 agreed to.

Clause 33 [Salaries of Judge Advocate General and assistants]:

On Question, Whether Clause 33 shall stand part of the Bill?

VISCOUNT MAUGHAM

I should like to put a question on Clause 33 to the noble and learned Viscount the Lord Chancellor. I observe that the Judge Advocate General and persons appointed under this part of the Act may be called, for example, from Scotland to London; and if the case is a long one, considerable expense may be incurred. It seems to me, though I am open to correction, that there is no provision for the remuneration of these people for payments such as are given to a judge of assize when he is on assize.

THE LORD CHANCELLOR

I think the noble and learned Viscount will find that this comes under Clause 1, subsection (3), which says that, with the approval of the Treasury, which, of course, is necessary. I can arrange to make travelling and subsistance allowances.

VISCOUNT MAUGHAM

If the noble and learned Viscount is satisfied with that, I am content.

Clause 33 agreed to.

Clause 34 [Pension of Judge Advocate General]:

4.40 p.m.

On Question, Whether Clause 34 shall stand part of the Bill?

LORD ROCHESTER

While independent of Party affiliations, I am by and large a supporter of the present Government, although I have felt at times there was something rather sinister and disquieting about their attitude on some moral and ethical issues, and I have therefore not hesitated to criticise the Government in your Lordships' House on occasions. But I feel that makes it all the more incumbent upon one to commend and eulogise their work when opportunity offers. On the Motion, therefore, that Clause 34 shall stand part, I desire to express appreciation of the Government's action in their undertaking such essential and overdue legislation as this Bill provides. I am especially glad to note the contents of this and the immediately preceding clauses, because I believe with the fullest conviction that the personal equation is fundamental to this scheme. Clearly it is of crucial importance that the emoluments of the office, and especially the pension rates attached to the position of Judge Advocate General, should be such as to secure the services of lawyers of skill and insight. Otherwise we cannot expect to secure men in future of the calibre of the present holder of the office, with his legal training and military experience. I desire, therefore, to thank the Government, and especially the noble and learned Viscount the Lord Chancellor, for the care and precision with which they have dealt with this matter in the Bill.

THE LORD CHANCELLOR

I am grateful to the noble Lord for what he has said. I am also glad to have the opportunity of saying that I entirely agree with his view that it is a most unwise policy to try to get people to occupy the great office of Judge Advocate General "on the cheap." We must get men who are really capable of fulfilling that immensely important office. We are most fortunate at the present time in our Judge Advocate General, and I hope that he will be with us for a long time to come. However, I am sure that when it comes to appointing someone new it will be wise that we should be able to make the office attractive to the man, and not impose upon him, while he is holding that position, which should occupy his whole attention, great personal and pecuniary worries.

Clause 34 agreed to.

Remaining clauses agreed to.

House resumed.