COMMONS AMENDMENTS (Hansard, 29 October 1952)

THE LORD CHANCELLOR
My Lords, I beg to move that this House do agree with the Commons in these Amendments.

§ EARL JOWITT
My Lords, the difficulty here arises on the last Amendment. If I understand it aright the position is as follows. Speaking broadly, under Clause 3 of this Bill an offence committed by a member of a visiting force in the course of his duty is not liable to be the subject of a trial before our courts. I believe that is the substance of it. There may be exceptions. What I have always been anxious about in this procedure is that there should not be a sort of battledore and shuttlecock between the two courts. There should not be uncertainty whether the case should be tried by the Service courts of the United States or 1077 by the courts of this country, because I can imagine nothing which is more likely to establish difficulties than our courts in this country granting what I suppose would be writs of prohibition and the like to the Service courts of the United States. I think that would be undesirable. I also think it is very undesirable that, if a man is to be tried, there should be real reason for doubt as to which court he is to be tried by.
As the Bill stood, we made the matter simple, because we said that a statement or certificate issued subsequently by the appropriate authority was to be conclusive evidence of the fact that the alleged offence was committed by the man in the course of his duty as a member of that force. Now we have altered that. I quite understand the reasons which have impelled the alteration, but I am very anxious that, because we have made the alteration, we shall not fall into the difficulty I have indicated. Instead of making the certificate conclusive evidence, we have made it sufficient evidence unless the contrary is proved. I think we can leave out the bizarre cases; the common case will be one of driving a motor car and causing damage; dangerous driving, or driving while under the influence of drink, or running, someone down, committing manslaughter and so on. The difficulty arises whether the soldier has driven that motor car in the course of his duty or whether, to use a phrase familiar to lawyers, he took an army vehicle "on a frolic of his own," and it is not easy to decide which of the two is right. I want some certainty that we may know beyond a peradventure which court is going to try this man, if he is in this country and is accused of manslaughter.
Suppose the Service courts take the view that what happened was, broadly speaking, in the course of the man's duty, and that he argues the contrary and says it was not in the course of his duty but was a little adventure of his own. The point is taken; the Service courts convict him. Then, having raised the point, he can come to our courts here and ask our courts to grant a prohibition against the Service court on the ground that he is prepared now to establish the contrary—that is to say, that he was not acting in the course of his duty. If I understand the matter aright—and I do not think 1078 this is a fanciful case; it might well arise—our courts will have to embark on the question again, and if they think it proper they will grant a prohibition to that Service court and say, "You ought not to have dealt with that case." I am not saying we should not accept this Amendment—we have to. But I should like to be reassured that this very practical difficulty will not arise. I am anxious that we should have a clear line of demarcation in order that we may know which court is going to try the case. I do not think we should have this battledore and shuttlecock between the two courts. I shall be grateful if the noble and learned Lord the Lord Chancellor will tell me that my doubts are unnecessary and that there is no ambiguity. If he will do that I shall be perfectly happy; but in any case, as I have said, we quite realise that we have to accept this Amendment.

THE LORD CHANCELLOR
My Lords, I think I can allay my noble and learned friend's anxiety. The question of a certificate is irrelevant to the jurisdiction of the court of the visiting forces. It arises only where a man is brought before a court of this country and it is said that he is a member of the visiting forces or that he has committed an offence in the course of his duty. When the Bill left this House we made the certificate of the authority of the visiting force conclusive of the fact that he was a member of the visiting force or that he had done that act in the course of his duty as a member of that force. We thought that was the best way to cut the knot, and not to let it be a matter of issue before the English court whether he was or was not a member of the visiting forces or had committed the act in his capacity as a member of that force. That was objected to by the noble and learned Earl in this House, and by members of the Opposition in another place, who said that it should not be left to the ipse dixit of an officer of the visiting force to say whether the man was a member of that force or not and that what he had done had been done by him as a member of that force. It should be made only prima facie evidence, which could be displaced by his own evidence. Therefore we have altered the Bill to give effect to that suggestion and have made the certificate not conclusive but sufficient evidence until it is displaced. I hope that that explanation 1079 entirely meets the objection of the noble and learned Earl. There is no question of going from one court to another, or anything of that kind.

§ EARL JOWITT
My Lords, under Clause 3 (1) (a) of the Bill our courts have no jurisdiction if the alleged offence was committed "in the course of duty." Now, of course, the wording is to be arose out of and in the course of his duty as a member of that force… Our proposal was that the certificate should be conclusive evidence of that fact. If the certificate can be displaced it is doubtful whether or not the matter comes under Clause 3 (1) (a). There may be a conflict between the courts, the issue being whether the act was committed in the course of the man's duty. You have not now a binding certificate but only a provisional certificate, which can be objected to, and there might be an argument as to whether or not the act was committed in the course of his duty. You might have a case of an American soldier, when the American court would deal with it, and you might argue by prohibition in our court by saying, in effect, "You ought not to have dealt with this case; we shall now show that the certificate was wrongly given." I am afraid that the Lord Chancellor has not quite removed that doubt.

THE LORD CHANCELLOR
I am sorry that I have not quite removed the noble and learned Earl's doubts. Where a soldier who is an alleged member of a visiting force is brought before a United Kingdom court a certificate could be given, according to the Bill as it originally stood, by the officer of the visiting forces, saying, "This is a member of a visiting force." That, when this Bill left this House before, was conclusive. Now, the man is brought before a court in the United Kingdom and that court can say, "No, it is not conclusive; we will show that the certificate is wrong." That is the only result of the Amendment. I do not think it should do more than give pleasure to the noble and learned Earl, since it gives effect to the suggestion he made.