HL Deb 24 February 1953 vol 180 cc760-8

7.38 p.m.

VISCOUNT SIMON asked Her Majesty's Government whether their attention has been called to the report in The Times of 20th February that at the hearing of a petition for habeas corpus at Bielefeld on the previous day Mr. Scott Henderson, Q.C., counsel for one of the petitioners, instructed by an English solicitor, applied to the judge for leave to see his client who was in custody; that this application was opposed by counsel representing the United Kingdom High Commissioner on the ground that such an interview would prejudice investigations which were going on; that the High Commissioner's counsel claimed to be acting on precise instructions received from the Secretary of State for Foreign Affairs; that the judge, Sir Norman Edgley, Q.C., refused the application, on the ground that the High Commissioner might take objection; whether such instructions were ever given, or, if given, are withdrawn; and whether there is any justification for this departure from British tradition in the administration of justice.

The noble and learned Viscount said: My Lords, I regret that the matter I am raising in this Question should arise so late in the Sitting, but it was not possible to make other arrangements and I believe it would be inconvenient to my noble friend the Marquess of Reading if the Question was not put until a later date. I wish to state briefly the facts upon which my Question is based. A court has been set up in the British Zone in Germany, under an English Queen's Counsel as Judge, to hear and decide a petition for habeas corpus in respect of a man called Naumann. Apparently he has been for some time in the custody of the authorities. Mr. Scott Henderson, a well-known Queen's Counsel, is the counsel concerned. Mr. Scott Henderson applied to the court to see his client, who is in custody. Thereupon it was disclosed, as I read in the English Press, that instructions had been given from the Foreign Office that counsel should on no account see the prisoner. That is to say, the man was to be kept incommunicado. I do not know of any instance in my experience where such an application has been made to a court and has been refused.

In any case, the question I am raising is whether it is the fact that the Executive have issued such orders, and whether they still prevail; because it appears to me that, if that is so, we are in the presence of a case where the judicial duty of the court is being interfered with and dictated by the Executive. Such a thing has never been our practice, though it certainly was in the past the practice of some totalitarian States. The learned judge expressed the view, as I read in The Times, that it was neither reasonable nor in the interests of justice to refuse to allow counsel to see the prisoner. Counsel acting for the High Commissioner retorted that instructions in the most categorical terms had been given that such an interview should not take place. The Question which I have ventured to put on the Order Paper is to ask whether or not it is the fact that this instruction has been given; whether, if it has been given, it has been withdrawn; and whether there is any justification for this departure from British tradition in the administration of justice. I think it will be agreed on all sides that that is a rather important question.

I have heard it suggested that the answer to this question is to be covered by two Latin words: that the matter is sub judice, because it appears to be the fact that the learned judge made a modified order, with which Mr. Scott Henderson is not satisfied, and the matter is, therefore, under appeal to some appellate tribunal; and at the same time counsel for the High Commissioner is dissatisfied that the orders issued by the Executive should be so far disregarded, and he is also appealing. It is a complete confusion of ideas to suppose that the Question which I am putting has anything to do with the fact that there is an appeal. The Question I am putting is whether or not the Executive have claimed to interfere and to dictate in the action which should be taken by the court. It is a matter of complete indifference to me whether the order which has been made is subject to an appeal or not.

At this late hour I would venture to say merely this in conclusion. Surely, we all desire to show the Germans that if we set up a British court and allow British counsel to appear, we wish to follow the traditions of British justice; that it is not our system to allow a man to remain a prisoner in custody and, when we have set up a court to hear what he has to say, to tell him: "You may have your counsel," but then to give orders that his counsel shall not communicate with him. I submit that that is a most unwise course to take. I am sure that we all desire that the ordinary principles which are followed in every British criminal court should be recognised. I therefore venture to submit my Question, and to ask: Whether … at the hearing of a petition for habeas corpus at Bielefeld on the previous day Mr. Scott Henderson, Q.C., counsel for one of the petitioners, instructed by an English solicitor, applied to the judge for leave to see his client who was in custody;"— I am certain there is no lawyer in your Lordships' House who would ever have doubted what the answer to such an application would be— that this application was opposed by counsel representing the United Kingdom High Commissioner on the ground that such an interview would prejudice investigations which were going on; that the High Commissioner's counsel claimed to be acting on precise instructions received from the Secretary of State for Foreign Affairs; that the judge … refused the application on the ground that the High Commissioner might take objection.

I respectfully put the Question, knowing nothing whatever about the circumstances and not having the smallest sympathy with any malpractices that may have been going on. Were such instructions ever given? If given, do they still stand? And, where is the justification for this departure from the British tradition in the administration of justice? I will only add this. I can quite understand that the regulations in the British Zone may justify arresting a man and keeping him untried and not brought before a court for a considerable time, but what I cannot understand is how we could set up a tribunal, allow counsel to appear for a man and then tell counsel that he is not entitled to interview the person who is in custody. It is not an uncommon method, as I believe, in some countries, but it has never been, and I hope never will be, the British tradition. I beg to put my Question.

7.48 p.m.

THE MARQUESS OF READING

My Lords, the noble and learned Viscount who has just addressed the House has somewhat airily waved aside the whole question of the matter being covered by the two words to which he referred, sub judice. Let me see for a moment what the position is. The position is that this particular man was detained under an order made by the High Commissioner for interrogation. There is no charge at this moment against him: he has been detained for interrogation. There are, therefore, no proceedings against him at all. But when he, at his own volition, started the proceedings for habeas corpus, application at the end of the first day's hearing was made on his behalf by counsel. The learned judge took a view and made a suggestion about that application which in the end proved unwelcome to both parties—both to the petitioner and to the respondent. The result of that proceeding is this—and this is how the matter stands to-day: that the substantive proceedings, the habeas corpus proceedings, have not been decided and will not be decided until the preliminary point has been settled as to whether or not Naumann is to be allowed to see his counsel. That stands for the moment aside.

As to the point about whether or not Naumann is to see his counsel, as I say, the judge made a suggestion as to conditions upon which Naumann might see his counsel. Those conditions were unwelcome to the representatives of both parties, and both parties appealed. That appeal will, presumably, in the not very distant future, be heard by two British judges. The question, and the only question, they have to decide is whether this man is to be allowed to see his counsel. I bow always deferentially to the vastly greater legal knowledge of my noble and learned friend, but to say that in that situation no case of the matter being sub judice applies seems to me to be a very remote doctrine.

VISCOUNT SIMON

May I point out to my noble friend that my Question is whether these instructions were given by the Foreign Office?

THE MARQUESS OF READING

I realise that, and if the noble and learned Viscount will give me a moment I am coming to that point. All I am saying is that one is in a difficulty here in answering a long Question, containing a number of details, when this particular matter is at the stage I have indicated.

The position as regards the question of counsel is very much, if not exactly, as the noble and learned Viscount says: First of all, the counsel for the petitioner made his application, and the judge then invited counsel for the respondent to agree to the application. Counsel for the respondent refused, on the ground that he had definite instructions from the United Kingdom High Commissioner that he was to take that course. A certificate was produced, signed by the acting High Commissioner, the purport of which was that investigation of the activities of this particular man—and this was the sole reason for which he was in detention at all—was vital to the security of the Allied Forces in Germany, and that to grant the application of counsel for the petitioner would be prejudicial to that investigation. If there had been a charge at that stage, the position would have been very different, but there was not a charge: there was simply this interrogation. The interrogation was necessitated by the need to protect the security of the Allied troops. In those circumstances, the High Commissioner, I submit quite rightly, gave the certificate to protect the security of the Allied troops. The judge did not accept that, and the matter continued on the lines on which we are already agreed. That was done. Counsel did take that objection. He did produce that certificate and he did it on instructions. And those instructions still stand, in the circumstances and for the reasons for which they were originally given. My right honourable friend the Foreign Secretary was consulted and he supports the attitude adopted by counsel and the use of the certificate.

I hope that when the noble and learned Viscount starts a comparison between these proceedings and happenings in totalitarian States he is not suggesting that either the conditions of detention or the methods of interrogation which have been carried out in this case bear any relation to what happens in totalitarian States. It is the security of the Allied Forces which is at stake in this matter. It is for that reason, and for no other, that this move was originally made; and in the interests of that security my right honourable friend has considered it right to support the action of the United Kingdom High Commissioner in saying that, in the circumstances, it is undesirable that counsel should be given the opportunity which he would have if there were a criminal charge, and which he will have if ultimately there is a criminal charge.

7.55 p.m.

EARL JOWITT

My Lords, I certainly would not suggest, and I am sure the noble and learned Viscount, Lord Simon, never meant to suggest, that there is the slightest similarity in outlook between Mr. Eden and Sir Ivone Kirkpatrick and any of the totalitarians. We know them both; and of course, we know that there is not. I also know Mr. Scott Henderson, a man for whom I have the highest regard, as I am sure has the noble Marquess. I do not know much about the facts of this case, and I certainly do not want to rush into dangerous territory. But may I ask this? I can conceive a case under, for instance, Regulation 18B of the last war, where habeas corpus was brought. I can conceive that the Home Secretary might say simply: "I have a statutory power to intern anybody I like, and in the case of this man I do like." That being so there can be no possible point of fact. Assuming that all the necessary preliminary steps have been taken, about which we used to argue, of course that is an adequate return to the habeas corpus. Directly it becomes necessary to elicit any fact, or may become necessary to elicit any fact, in order to deal, not with a charge but with the question of detention, it seems to me that it is really rather shocking that there should be any hesitation at all in granting to counsel the right to see his client.

From what I read in the Press—the noble Marquess may say that I am wrong—I gather that it was stated that it was necessary to call witnesses. Now witnesses deal with facts, and if it is necessary to call witnesses there must be some fact in dispute. If there is some fact in dispute, I am at a loss to understand how an instruction of this nature could have been given, because, so far as I humbly know, that is entirely alien to our whole tradition. I must say that I entirely agree with the noble and learned Viscount, Lord Simon, that however convenient other methods may be, I am perfectly certain—and I am sure the noble Marquess agrees with me, too—that one of the greatest assets we have is the way in which we administer justice. And the more we show other countries what our traditions are, the better for everybody concerned. Therefore, while not wishing to touch on any doctrine which is sub judice at all, I should be very much happier to feel that, on reflection, the noble Marquess was able to say that the instructions given to counsel representing the United Kingdom High Commissioner—on the assumption that I am right about there being some element of fact—would be withdrawn.

7.58 p.m.

LORD LLEWELLIN

My Lords, it sems to me very odd that a counsel who is properly appearing for a man should not be allowed to see him to take his instructions. I have some small experience in the courts here. I sit as chairman at quarter sessions, and if counsel is instructed, even at the last minute, we adjourn the case until counsel has been able to take instructions from his client. How it makes it more difficult to get instructions when there is no charge than when there is, I do not for the moment know, Of course, what it depends on is whether a man who is one of Her Majesty's counsel is regarded as a man who can be trusted to see his client without in any way prejudicing any of the future investigations. I also happen to know Mr. Scott Henderson. He has practised on the circuit before me, and I certainly should have no hesitation in allowing him to see his client to take the necessary instructions. I do hope that this matter can be locked at again in that light, so that, when it comes to the issue, it cannot be said on one side that counsel for one party was, so to speak, acting with his hands tied because he had not been allowed to take proper instructions from his client.

8.1 p.m.

THE LORD CHANCELLOR (LORD SIMONDS)

My Lords, may I add a few words? With every sentiment that has been expressed, of course we all agree; but I think that there is one aspect of the case that has not been fully appreciated. Here is a prisoner who is one of seven prisoners arrested in rather dramatic circumstances; and all his documents were taken in order that he might be interrogated and his documents examined. He was allowed no communication with anybody, and will be allowed no communication with anybody until the matter has been fully investigated and he has been put on trial upon a charge, if it is thought fit to charge him. In those circumstances, I would ask your Lordships to consider whether the adventitious circumstance that he then invokes the jurisdiction under proceedings similar to habeas corpus entitles him to claim to put himself in a position in which he can get into communication with the outside world.

Let me say at once that of course everybody trusts Mr. Scott Henderson. We all know him, and there is no more honourable man alive. Is it proposed that Mr. Scott Henderson should have a privilege which perhaps a German counsel should not? Would the noble and learned Viscount. Lord Simon, say at this crisis, when this man is perhaps nearing the end of his interrogation, when the examination of his documents is nearly over, and when the time is coming when he may be charged, that he should be at liberty to communicate with a German counsel? Who knows who that German counsel may be? Naumann is likely to choose somebody who is associated with him. That is just what we want to avoid. I venture to think that when the noble and learned Viscount speaks as feelingly as he does about the traditions of British justice, he wholly ignores the circumstance that we are here in the position of an Occupying Power. We have arrested a man whose activities threatened the security of the State. We are entitled to keep him, to use Lord Simon's own word, incommunicado until our investigations are complete, and to deprive him of any intercourse with those with whom he has been associated, whether they be lawyers or others. If such a man then chooses to invoke the jurisdiction of the British Court by issuing a Writ in the nature of habeas corpus, those are circumstances which differentiate it altogether from any tradition of British justice or British administration of justice with which we are familiar.

Let me say this. I cannot conceive—although I speak of course without the book—that here there is any question involved except the simple question of law: whether, under the Statute of Occupation, the detention was authorised. Although again, of course, I make no sort of suggestion against Mr. Scott Henderson, I can see that a pretext might easily be invented by which not Mr. Scott Henderson but some German counsel might get into touch with these prisoners, which is the last thing we want. So I do beg noble Lords—although I share with them their veneration for the traditions of British justice—to suspend judgment in this case and to believe that perhaps the Secretary of State, who shares the sentiments that we share, did not take this step except upon very full justification.

House adjourned at six minutes past eight o'clock.