ARMY BILL (Hansard, 19 April 1955)

§ THE SECRETARY OF STATE FOR AIR (LORD DE L'ISLE AND DUDLEY)

I should be keeping the noble Lord in undue suspense if I did not say right away that I cannot accept his Amendment, but I should like to explain to your Lordships' House a little more fully why I think it is unnecessary for me to do so; indeed, it would be disrespectful to the noble Lord if I did not do so, since he has come here this afternoon, with great eloquence, to defend Scotland and justice—not necessarily, very often, co-terminous phrases. In his remarks on Second Reading, the noble Lord informally gave me notice that he would raise this point on another occasion. I am sure that, both in England and in Scotland, we all wish to achieve the same end: that any officer or other rank in any Service (we are dealing to-day particularly with the Army) should not remain in open or close arrest, or in any form of custody, longer than is absolutely necessary for the prosecution of justice. I do not think there is any difference between us upon that.

The question is, how is it to be achieved? On Second Reading the noble Lord, as I understood, was endeavouring to persuade us that, if we adopted the Scottish code, at least for Scotsmen, they would be in a superior position in this respect. I have done my best to study the Law of Scotland as it applies to this particular point. In his speech on Second Reading (OFFICIAL REPORT, Vol. 192, No. 42, col. 295) the noble Lord said: Scottish law has made it impossible for any accused person to remain so long in custody without trial. If one reads Section 43 of the Criminal Procedure (Scotland) Act, 1887, there is 446 in fact a very important proviso at the end of that section to which, with great respect, I feel I ought to draw the attention of the noble Lord It says: It shall be competent for the High Court of Justiciary in any case brought before it under this section, upon it being shown to the satisfaction of the court that the trial of a person accused ought to be suffered to proceed after the lapse of 110 days as aforesaid, when the delay in prosecuting the verdict is owing to the illness of the accused or the absence or illness of any necessary witness, or the illness of a judge or juror"— then these are the important phrases— or any other sufficient cause for which the prosecutor is not responsible, to order the person accused, notwithstanding the expiry of the said period of 110 days, to be kept in custody with a view to trial for such further period or periods as to the said court may seem just. It seems to me clear that Parliament, in passing that Act, had it very much in mind, as indeed it was in the mind of my right honourable friend the Secretary of State for War, and as it is in my mind, that sometimes, in practice, delays, and even protracted delays, are inevitable.

So the law of Scotland does not make it impossible for a man to be kept in custody after 110 days. It provides in one way a means by which protracted custody can be looked at by higher authority. Under the Army Act as it now exists, as the noble Lord knows, a soldier (I use the word "soldier" to include both officers and other ranks) cannot be kept in custody for more than eight days without the fact being reported by that soldier's commanding officer to the competent authority—that is, the authority which is competent to convene the court-martial; and that has to be repeated every eighth day. Furthermore, the noble Lord knows that a soldier cannot be kept in close arrest for more than ninety days without a special procedure taking place: that is, under Rules of Procedure 1A, where he cannot be kept in close arrest for more than ninety consecutive days without trial unless a General or other officer authorised to convene a court-martial directs in writing that he shall not be released from close arrest. I will deal a little later with the question of close arrest, open arrest and custody, if I anticipate the noble Lord's intervention.

That is under the existing Act. This Bill proposes a somewhat altered procedure. It retains the system by which, if a man is not brought to trial or a court-martial 447 is not ordered to be assembled, his commanding officer has to report to the competent officer every eight days. But now, under the proposals which my right honourable friend hopes to put into the Rules of Procedure (I think this has been stated in another place in broad terms), it is proposed that the commander-in-chief of the soldier in question shall be required, after receipt of the eighth report and where it is proposed to keep the man in custody, to give a direction for the continuance of that man's custody and at the same time to inform the Army Council of such a direction. I submit that the object which the noble Lord seeks to achieve will be achieved by this means: that in a case of protracted custody the case will be brought before the highest competent authority to ensure that the man is brought to trial in the shortest possible time and shall not be at the mercy of any administrative delay.

I should like further to point out to the Committee that under Clause 53 of the Bill, which I now recommend to the House, any person, not necessarily the commanding officer or convening officer, who unnecessarily delays the taking of steps which it is his duty to take to investigate allegations or who fails to release an accused expeditiously, is himself guilty of an offence. So that in regard to delay there is quite a severe responsibility on those dealing with courts martial. That shows the spirit in which this Bill has been drafted and I think indicates the spirit in which my right honourable friend will make these regulations. Therefore, although by different paths, we pursue the same object, and I feel convinced that under these provisions everything that is administratively and practically possible will be done to see that soldiers are not held in custody longer than is necessary.

There is one further point about open or close arrest or no arrest at all. Clearly it is most desirable, as we all thoroughly agree, that nobody should be kept in apprehension longer than is necessary. My right honourable friend intends to review the procedure for keeping a man in close arrest, and I think I can say that as a result it is likely that the proceedings in both the Army and the Air Force will, if the Bills become law, be closely assimilated, and both will ensure 448 that the risk that a man may be kept in close arrest longer than is necessary will be reduced to a minimum. One further point. Under the power which my right honourable friend now possesses under the existing Army Act, and in anticipation that the new Bill will become law, he proposes to introduce such an improvement in procedure. So that he and I both hope profoundly that any administrative delays which may have taken place will be cured by a more up-to-date procedure and that the cases of men in protracted arrest will be kept constantly before the highest authority. For these reasons, I am afraid I cannot accept the Amendment proposed by the noble Lord.

§ LORD MATHERS

I had thought that to have this Amendment embodied in the Statute would be the surest way to make certain that the kind of event where a soldier was kept without trial for 114 days would be effectively avoided. The noble Lord has, however, gone a very long way by making the declaration that has just come from him, and, especially as this Amendment is not, as I have admitted, in the proper form to convey all that I intended, I feel that it would be churlish of me to press it. It has proved to be a useful vehicle for bringing forward this matter, and I am grateful for the pains that the noble Lord has taken to make clear what is to be the new position. My fear was that, by allowing the matter to go by default, the keeping of a man, even with the regular eight days' intimation of the fact that he was in custody, would simply become a matter of routine. I am glad that there is a point at which that routine is interrupted, at very nearly the sixty days that I propose in my Amendment—as I understand it, eight times eight days makes it sixty-four days.