COURTS-MARTIAL (APPEALS) BILL (Hansard, 29 May 1951)

§ THE LORD CHANCELLOR

My Lords, I rise to move that this Bill be now read a Second time. As your Lordships know, this Bill establishes a Courts-Martial Appeal Court. It gives to a person convicted by a court-martial the right of appeal to that Court against his conviction. In my time, I have had considerable experience of courts-martial. I believe—and I think I should be confirmed in that belief by those who have had experience—that they have been a very fair method of deciding cases coming to court. I think that the justice which is administered by courts-martial compares fairly with the justice which is administered by judges and juries in civil life. In any system of justice administered by humans who are fallible, there may be mistakes, but I believe it right to say that the existing system of courts-martial has on the whole, reduced those inevitable mistakes to the minimum. On the other hand, although I believe that to be the fact, I am bound to say that, although justice has been done, I am not so sure that justice has always seemed to be done. Perhaps it was that in the old days the distinguished official known as the Judge Advocate-General combined in his name the word "judge" and the word "advocate," and people used to imagine, without stopping to think very much that the man responsible for the prosecution was also the judge deciding whether what was being done was being properly done—regardless of the fact, of course, that the Judge Advocate-General in those old days presided over two departments which he kept entirely separate—the department dealing with the prosecution and the department dealing with the review.

Of course, the court-martial system differed from the ordinary civil system in that, though there always was a review—and a review conducted by competent and careful people—yet it was not a review of the type which brought the convicted person into touch with his judges. There was not the open airing in court. There was not what has once been happily described as the "bound and rebound of argument" between the 877 judge and the counsel hearing the case. It was done behind the man's back. We all know—at least, I think we do—that if you give a decision, however right your decision may be, without giving the man convicted a right to come and argue his case, he is likely to be dissatisfied, whereas you might easily satisfy him if you gave him a chance to come and talk about it.

Certainly I believe there has been a very considerable feeling that we ought to do something to reproduce for our soldiers (and, after all, to-day our soldiers are civilians) the benefits and privileges which the ordinary citizens of this country have won—and when I say "soldiers" I include, of course, sailors and airmen, as well. So it came about that although there had been two Committees appointed, one presided over by the late Lord Darling and one by Mr. Justice Oliver, after this last war considerable agitation arose for something on these lines to be done. Indeed, it was that fact which led us to appoint a Committee presided over by the late Mr. Justice Lewis, and then, as that did not deal with the Navy, to appoint another Committee presided over by Mr. Justice Pilcher. Subsequently, in order to work out the scheme which those two Committees had produced, there came into being what I think is commonly called a working party of officials. The result is that the scheme which is embodied in this Bill is one which I believe has the assent and co-operation of all the Services, which alone is a remarkable achievement.

My Lords, may I just describe briefly what is the existing practice in the Army and Air Force? When a man is found guilty by court-martial, the proceedings are considered, and the findings and sentence are confirmed, or not confirmed (as the case may be), by the confirming officer. Then, if the findings and sentence are confirmed, the proceedings are reviewed by the Judge Advocate-General, whose function it is to see that the trial was in all respects fair and satisfactory. If he finds that there has been a miscarriage of justice, he advises the Secretary of State, or the Commander-in-Chief, that the proceedings should be either wholly or partially set aside. I want to stress that this is an automatic review; it does not depend upon whether a person has, or has not, petitioned. But 878 finally, of course, the person convicted by court-martial may submit a petition which may result in either quashing the conviction, or in commutation, mitigation or remission of the sentence. The Lewis Committee recommended that there should be substituted for the present system of confirmation and review by the Judge Advocate-General, a right of appeal for the soldier or airman on questions of law alone, and that the appeal should be against the findings of the court, and not against sentence. We have not followed the Committee's recommendation to do away with the system of confirmation and review, because we regard this as a swift and valuable procedure for detecting injustice; and, moreover, we consider that the retention of this system is desirable as a filter, because those cases in which the Judge Advocate-General advises quashing the conviction will not proceed further, and that will help to prevent the Appeal Court being encumbered with cases which should not have come before it. So under the Bill the appeal to this Appeal Court is in addition to, and not in substitution for, the present machinery.

My Lords, Clause 1 of this Bill pro-vides for a Court, consisting of the Lord Chief Justice and the puisne judges of the High Court, Scottish judges nominated by the Lord Justice General, Northern Ireland judges nominated by the Lord Chief Justice of Northern Ireland, and such other persons as the Lord Chancellor may appoint who appear to him to be specially qualified. The Court which the Bill proposes will be comparable with the Court of Criminal Appeal but will also have the advantage of having Scottish and Northern Ireland judges and other specially qualified persons.

Clauses 3 and 4 are very important clauses. The Bill allows an appeal against conviction only, and not against sentence. It does not limit the appeal to questions of law as suggested by the Lewis Committee. If a person has been sentenced to death and he desires to appeal against his conviction, application for leave to appeal must, in the first place, be made to the Court. In the case of a conviction not involving sentence of death, the convicted person cannot exercise his right of appeal until he has first presented a petition to the Admiralty or the Secretary of State praying that the conviction be quashed. He must either 879 be told that the petition has not been granted or he must wait until the expiration of a period prescribed by Rules of Court; then only may he appeal to the Court. The object of not allowing the convicted person to go to the Court in the first place, unless he has been sentenced to death, is to provide another filter which we believe will prevent the Court from being burdened with a certain number of cases which could be dealt with justly and expeditiously by the exercise of the prerogative powers. An important practical feature of Clauses 3 and 4 is that a person who wishes to present a petition or lodge a notice of application for leave to appeal and who is serving overseas may present his petition or lodge his notice locally in accordance with Rules of Court.

In passing, I will just refer to Clause 27. Your Lordships will be aware that the Royal prerogative powers in court-martial cases are of two kinds. There is the prerogative of mercy, which enables the sentence to be commuted, mitigated or remitted, and there is the prerogative power to quash a conviction. The prerogative of mercy will not be affected by this Bill, but the prerogative power to quash will be curtailed from the time when an application for leave to appeal to the Court against conviction is received by Registrar. That is an essential part of the structure of the Bill, and your Lordships will appreciate how that provision is linked with the provisions of Clauses 3 and 4. Clause 7 allows an appeal from the Court-Martial Appeal Court to the House of Lords upon a certificate being given by the Attorney-General. In this respect the Bill follows the Criminal Appeal Act of 1907. Clause 9 allows an appellant, if he wishes, to present his case in writing, instead of presenting it orally. I may observe here that Clause 11 provides that an appellant shall not be entitled to be present before the Court except where he is given leave, or the Rules of Court give him the right. Your Lordships will, of course, appreciate that it would be quite impracticable to give Service men an absolute right to be present in all cases, because that would often require their repatriation or removal from a theatre of war.

The intention is that appellants who have previously had legal aid provided by the Service authorities shall continue to 880 have legal aid so provided. There may, however, be cases in which, for one reason or another, an appellant has no legal assistance, and Clause 10 enables the Court to give him such assistance. The purpose of Clause 14 is to ensure that a man who has been sentenced to death shall not be executed until he has had an opportunity of appealing to the Court and, if necessary, to the House of Lords. There is, however, an important proviso to sub-section (1) of this clause, which is based upon a recommendation of the Lewis Committee. This allows the authority confirming a sentence imposed by Army or Air Force court-martial to certify in appropriate cases that it is essential, in the interests of discipline and for the purpose of securing the safety of the force with which the person sentenced to death is at present serving, that the sentence shall be carried out forthwith. That, of course, is a most exceptional case.

My Lords, a number of clauses in this Bill are modelled on provisions in the Criminal Appeal Act. Amongst them is Clause 21, which enables the powers of the Court to be exercised by a single Judge in granting leave to appeal, extending the period within which an application for leave to appeal may be made, and in a number of other cases. The only other clause in Part I to which I need refer is Clause 26, which provides that a person who, at the time of his conviction by a naval court-martial, was borne on the books of a ship of the Royal Australian or Royal New Zealand Navy which was not at that time placed at the disposal of the Admiralty shall not have a right of appeal. Were it not for this clause, the Bill would confer a right of appeal on such people. That would clearly be most inappropriate, and it would be highly inconvenient to have such appeals coming to a court which will normally sit in London.

With regard to Part II, its main purpose is to give statutory effect to the complete independence in the discharge of their judicial functions already enjoyed by the Judge Advocate of the Fleet and by the Judge Advocate-General and his staff of judicial officers. In accordance with the recommendations of the Lewis Committee, the Judge Advocate-General's office was reconstituted in 1948. His judicial Department was then put under the Lord Chancellor. The responsibility for the Judge Advocate of the 881 Fleet was thereafter also transferred to the Lord Chancellor. Clause 30 provides for the appointment of both permanent and temporary judicial staff in the Judge Advocate-General's Office. The remaining clauses of the Bill prescribe the qualifications of the Judge Advocate-General and his staff, provide for their tenure of office—which is similar to that of the county court judges—and make provision for their salaries and pensions, which I trust will ensure—because this is fundamental to the scheme—that we can secure the services of lawyers of skill and experience who will inspire confidence in the minds of the public and in the minds of those serving in the Forces.

Some doubt has been expressed as to whether the scheme laid down by the Bill will work in war time. I do not believe that anyone can give an absolutely certain answer to that question at the present time, but we shall learn by experience. I think it will depend, first, on the adequacy of the staff of the Judge Advocate General and, secondly, on communications. I myself hope and believe, as do those who advise me—and they have given much thought to this matter—that this scheme will be found to be workable in war time. But any man who positively asserts what will happen in contingencies such as that is extremely unwise. If it is found that the scheme which we are now laying down is not workable in war time it will be for the Parliament of that day to make whatever alterations are necessary. I would point out that we are not altering the existing review system which, as I have already said, has stood us in good stead in the past; we are superimposing upon it the appeal system, which I hope and believe will be found sufficiently adaptable to work in time of war. I trust that before there is any question of war we shall have a certain number of years in which we may find out how the scheme works, and I do not doubt that in those years we shall find where the shoe pinches and where we may have to make some alterations and some modifications.

My Lords, that is the scheme. In these times, when so many of our men and women serve with the Forces, there is a special reason for giving to those in uniform rights which will certainly be no less than those enjoyed by civilians. I think that there is therefore a real reason to 882 welcome this Bill, and I hope that it will make an important contribution to the development of our legal system. The Bill does interfere with the Royal Prerogative at various stages, and I must therefore tell your Lordships that I have it in command to acquaint the House that His Majesty the King, having been in-formed of the purport of this Bill, is prepared to place the Prerogative of the Crown, so far as it is affected by the Bill, at the disposal of Parliament. I beg to move that the Bill be now read a second time.