COURT-MARTIAL OF MAJOR CORY (Hansard, 17 December 1963)

HL Deb 17 December 1963 vol 254 cc123-30 123

§ 3.30 p.m.

§ THE LORD CHANCELLOR
My Lords, I think it would be for the convenience of the House if I were now to answer the Question put down by the noble Lord, Lord Russell of Liverpool, as my right honourable friend the Secretary of State for War is now making a statement on this subject in another place.
I am now in a position to inform your Lordships of the outcome of the inquiries undertaken by my right honourable friend and myself into the circumstances of the court-martial of Major Cory and the subsequent events, up to the hearing of his appeal by the Courts-Martial Appeal Court in April of this year; but as the statement is a long one I will, with the leave of the House, circulate it in the OFFICIAL REPORT.
In the light of all the circumstances my right honourable friend has decided to make an ex gratia payment of £7,500 to Major Cory. He has already received his pay and allowances for the whole period up to his voluntary retirement on August 1, 1963.
I regret having to inform your Lordships that the Judge Advocate who sat in the case has since been seriously ill. Upon the advice of his doctors he informed me that he would not be able 124 to sit again as a Judge Advocate. He is proposing to seek a transfer to other duties when he has fully recovered his health.

§ LORD RUSSELL OF LIVERPOOL
My Lords, I should like to thank the noble and learned Lord on the Woolsack for his reply, and I am sure there will be general satisfaction in your Lordships' House that Her Majesty's Government have decided to publish the results of the investigation.

§ Following is the statement referred to by the Lord Chancellor:

§ 1. Major P. R. Cory, R.A.S.C., commanded 60 Company, Royal Army Service Corps from its formation in England in July, 1958, until December 18, 1960. This Company has been from 1958 and still is a unit of 24 Infantry Brigade Group based in Kenya. Throughout his period of command, Major Cory personally operated the fund known as the President of the Regimental Institute's, being non-public monies to be used for the benefit of Corporals and lower ranks.

§ 2. The Queen's Regulations prescribe that the accounts of such a fund should be subjected to audit at regular intervals, which, in the case of Major Cory's unit, were three months by virtue of orders issued by the superior headquarters. It was Major Cory's duty as commanding officer to see that this regulation was complied with. Unfortunately it was not. Efforts were made to secure the production of the accounts of this fund to Brigade Headquarters during 1960 without success, and it must be admitted that there was some laxity of supervision by the head-quarters in this respect.

§ 3. Major Cory left the Company to return to the United Kingdom on December 20, 1960. In November of that year he appointed a board of officers to audit the unit funds accounts as part of the handover of the unit to his successor. This board found it could not complete its task in respect of the President of the Regimental Institute's Fund as the account for the quarter ending September 30 had not been audited. On December 15 two officers of the Company, appointed by Major Cory, began the audit of the accounts for the July to September quarter.

§ 4. The two officers who audited the September quarter did not make the prescribed check as to the sum which should have been held as a cash balance on September 30, 1960, and did not comment adversely on the account or report that it was not in order. The "handover" board started its audit on January 30, 1961, and on February 3 found that on the former date there had been a cash deficiency of E.A.S. 1655/58 (£82 15s. 7d.). The existence of this deficiency was confirmed in March by an independent audit board presided over by an officer of the Royal Army Pay Corps. In the course of these audits the accounts were found to be in a very confused state.

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§ 5. In early February, 1961, the new holder of the P.R.I. Account wrote to Major Cory, who was then in England drawing his attention to the cash deficiency which had been discovered and asking him to meet it. Major Cory's reply to this letter sought to explain the deficiency, but was not regarded as satisfactory. Grounds for suspecting that the account had been improperly conducted were revealed in March in the Report of the independent audit board; for example, cheques appeared to have been drawn to provide cash for the payment of bills when a sufficient cash balance appeared to have been available for that purpose.

§ 6. Major Cory's return from the United Kingdom was then requested. He returned to Kenya on the 6th May, 1961. He was not then asked for an explanation of the alleged deficiency of the accounts. On the 16th May he was placed under arrest on a holding charge. It was unfortunate that Major Cory was not asked to furnish an explanation before being arrested. The reason for the omission to do so was the belief that there were already valid grounds for concluding that the account had been operated dishonestly.

§ 7. The investigation and preparation of the case against Major Cory was carried out under the direction of an officer of the Army Legal Service assisted by the Special Investigation Branch of the Royal Military Police and by the Royal Army Pay Corps. Prior to Major Cory's return, a national serviceman, Corporal Sleep, was ordered to start on a thorough investigation of the a: count which took over four weeks. Corporal Sleep was a qualified chartered accountant and had then had seven years of general accountancy experience. There was then no Royal Army Pay Corps officer with professional qualifications available in the Command. Corporal Sleep, as a chartered accountant, was thought to be the best qualified person available to make the detailed examination of the account.

§ 8. The Summary of Evidence was begun on 22nd June and, the evidence of the prosecution witnesses having been taken by 24th June, Major Cory sought and was granted an adjournment to enable him to examine the documents in the case. Some four weeks were taken up with this examination. At the end of it, Major Cory did not offer any explanation of the allegations made against him. He was fully entitled to refrain from doing so. Thus the Summary of Evidence was not completed until the 19th July, 1961.

§ 9. In the light of conclusions drawn from the results of the investigation of the account by Corporal Sleep and of the other investigations, a charge sheet was prepared containing 16 charges covering a period from the 30th November, 1958, to the date of Major Cory's departure for England on the 20th December, 1960. The prosecution was ready for trial by the 26th July, 1961. At the request of the Defence the trial was postponed until the 25th September.

§ 10. When the trial started no copies of certain relevant exhibits were available for the use of the Court and Judge Advocate. The failure to provide copies of the accounts of the President of the Regimental Institutes' Fund must have made it difficult to follow and 126 understand the opening of the case for the prosecution. Photographs of the accounts were available after the first week of the Trial. Before the trial the defence had been offered a copy of the account of the P.R.I. fund but declined it.

§ 11. Between the 16th May and the 25th September, 1961, Major Cory was at liberty except for seven days following the preferment of the holding charge when he was in open arrest and for three days during the taking of the summary when he was in close arrest.

§ 12. The trial lasted for 43 days. It should have taken far less time. There were a number of factors which accounted for its length. It is not possible to state them in order of importance. Together they led to a trial of excessive length, such as to constitute a heavy burden on all taking part.

§ 13. Normally a court-martial sits for six hours or so a day. The average hearing during this trial lasted 4½ hours. Regard must be had to climatic conditions. The Supreme Court of Kenya sits for five hours a day, and it is not unreasonable to expect that a court-martial in Kenya should sit for those hours. While sitting for longer hours would have shortened the total length of the trial, it would be wrong to conclude that this was the main cause of the trial taking so long.

§ 14. The greater the number of charges in a charge sheet, the greater is the time likely to be taken in their investigation. It is for those responsible for the preferment of the case, to decide how many charges should be preferred. Here the charges covered a long period of time. It is to be doubted whether at the outset of the case the burden cast on the prosecution and on the defence of being required to deal with so many separate charges, the majority of which required the close examination of figures, was sufficiently appreciated.

§ 15. It cannot be disputed that the trial proceeded at a very slow pace, and some criticism may be made on this account. However, it must be borne in mind that it was incumbent on the Court and the Judge Advocate to allow the prosecution to present its case fully and to give the accused every opportunity of testing the case presented by the prosecution and of dealing with it. But that there was some avoidable and unnecessary prolixity it is not possible to deny.

§ 16. Of the 16 charges preferred against Major Cory one was included in the charge sheet as a result of an oversight and was withdrawn before the case started. On three charges the defence succeeded on a submission that there was no case to answer on the evidence. On five charges the accused was acquitted. He was thus convicted of 7 out of the 15 effective charges preferred. All the 15 charges were the subject of the closest examination which occupied a great deal of time.

§ 17. The 16th charge alleged forgery, and the prosecution sought to establish that the two signatures on the account indicating that it had been audited were forged. They were purported to be the signatures of a man by the name of "Futcher" or "Fletcher". The 127 prosecution sought to prove that no such man existed. They relied on an immigration officer to prove that no such man had been in Kenya and on some of Major Cory's fellow officers to show that he was not known in the Company. However, it became clear that a man could easily have entered and been in Kenya without the knowledge of the immigration authority. Also several witnesses, two of them officers in the Company, testified to having met a man who could have been Futcher. At first sight therefore the matter cannot have been sufficiently investigated before this charge was preferred, but enquiries had in fact been made by the prosecution, before the trial, of several officers of the Company, including one of those who later gave the contrary evidence; all these officers had denied having ever met anyone who might be Futcher.

§ 18. The prosecution was severely criticised by the Courts-Martial Appeal Court for having failed to produce numerous missing documents, mostly supporting books and vouchers for entries in the P.R.I. Account. Many searches were made both before and after the trial for documents alleged to be missing. Major Cory in his evidence stated that shortly before he left the Company he deposited many of these documents in a letter tray containing a pile of vouchers, letters and other papers in an unmanned room in the Company head-quarters during the weekend. The searches made both by the prosecution and defence after the trial failed to produce any of these or any other material documents.

§ 19. During the hearing of the appeal by the Courts-Martial Appeal Court, Major Cory produced a document which he said he had found after the trial. This document was a questionnaire completed by the two officers who formed the audit board for the audit of the account for the Quarter ending September, 1960, and which purported to show that all the necessary vouchers and supporting books had been produced at that audit. The Courts-Martial Appeal Court reached the conclusion in the light of Major Cory's evidence that this document had not been available at the trial. Information obtained since the hearing of the appeal, both from the prosecution and from the counsel for the defence at the court-martial (neither of whom was available during the hearing before the Courts-Martial Appeal Court), shows that this document was made available by the prosecution to the defence at the trial. It was not put in evidence by the prosecution as it was not admissible in evidence against the accused. It was not put in evidence by the defence, but it was available to be put in if the defence wished to do so.

§ 20. A considerable amount of time was occupied during the trial in argument and evidence about the alleged missing documents.

§ 21. The causes of the excessive length of the trial can be summarised as follows:

(a) the average daily sitting of the court was short;
(b) the number of charges preferred, the majority of which involved separate transaction or a separate series of transactions;
(c) the difficulties which arose as a result of the allegation by the defence that material books and vouchers were missing;
(d) the detailed examination of the accounts over a long period;
(e) undue prolixity; and
(f) the preferment of some charges without sufficient investigation and preparation, and the failure to provide copies of relevant exhibits for the use of the Court at the start of the trial.

§ 22. It would seem that the prosecution may not have fully appreciated the difficulties which were bound to arise both in relation to the question whether material documents were missing and in proving beyond reasonable doubt charges based on accounts, in relation to transactions effected a considerable time ago when the accounts themselves were in a very confused state.

§ 23. The 15th charge alleged a general deficiency of E.A.S. 1954.24 (£97 14s. 3d.). The respondents in the course of the hearing of the appeal did not seek to sustain the conviction on this charge and the Courts-Martial Appeal Court expressed the view that it should not have been preferred as it appeared to them that it was possible to trace occasions on which, if there was fraudulent conversion, individual sums comprised in this general deficiency had been converted. If the matter had been argued, it could have been shown that the alleged general deficiency consisted of monies which could not be shown to have been misapplied on a particular date.

§ 24 As a result of the evidence given at the trial, Major Cory was convicted on this charge not of fraudulent conversion of E.A.S. 1954.24 (£97 14s. 3d.) but of 928.78 (£46 9s. 0d.) shillings. While it is not uncommon for the amount charged as a general deficiency to be amended in the light of the evidence given, it is regrettable that, in estimating the amount of the alleged general deficiency, some amounts were included which could not be substantiated by the evidence.

§ 25. The summing-up was very long and diffuse and in many respects unsatisfactory. It was the subject of severe criticism by the Courts-Martial Appeal Court.

§ 26. Major Cory's conviction on five of the seven charges on which he was found guilty was confirmed by the General Officer commanding East Africa Command and the sentence was reduced from two years' to one year's imprisonment.

§ 27. Advice prior to confirmation was obtained, as the Queen's Regulations require, from the Judge Advocate General's Office.

§ 28. Major Cory later submitted a lengthy petition to the Army Council asking that the convictions should be quashed. This petition was rejected by the Army Council after receipt of advice from the Judge Advocate General.

§ 29. The Courts-Martial Appeal Court having decided that the appeal should be allowed on other grounds did not find it necessary to decide whether the findings of the Court-Martial were invalidated by reason of the general conduct of the trial and the nature the summing-up.

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§ 30. If it had been necessary for the Courts-Martial Appeal Cour: to decide whether the summing-up was of so unsatisfactory a nature as to necessitate the non-confirmation of the findings or the quashing of the convictions, it would seem likely, from the general tenor of the judgment in the case, that it would have been held that the summing-up was of such a character that the findings should not have been confirmed and, if the findings had been confirmed, that the convictions should be quashed.

§ 31. Major Cory's legal defence costs before the Court-Martial amounted to £600 of which £400 came from public funds by way of legal aid. In January 1962 the War Office granted legal aid to Major Cory in connection with the preparation of his petition to the Army Council and his application to the Courts-Martial Appeal Court. Payments amounting to £56 10s. 0d. were made to his London and Nairobi solicitors.

§ 32. The Courts-Martial Appeal Court expressed its concern at the length of the interval between the conclusion of the trial and the hearing of the appeal. The Court-Martial ended on November 24, 1961, the findings were confirmed on January 20, 1962, and sentence was promulgated on January 22. The interval between the conclusion of the trial and the confirmation of the findings was mainly taken up in transcribing the proceedings, transmitting them to Landon and obtaining the advice of the Judge Advocate General's Office. A copy of Major Cory's petition to the Confirming Officer reached the London Office of the Judge Advocate General on December 7 and the transcript of the proceedings became available there on December 12. A supplemental petition was received on December 21. Confirmation advice was despatched from London by airmail to Nairobi on January 10. The task of advising the Confirming Officer involved reading the transcript of 1,400 pages, examining individually findings of guilt on seven charges all concerning intricate details of accountancy and dealing with over 60 separate points raised in the petition and supplemental petition. The period of 28 days taken over this task included Christmas. It cannot be considered unreasonably long.

§ 33. Section 3 of the Courts-Martial Appeal Act 1951 and rules made under the Act provide that no appeal lies to the Courts-Martial Appeal Court unless a petition to quash the conviction has first been presented to the Army Council and either 60 days have elapsed from the presentation or the petition has been rejected. Courts-Martial Appeal Rules allow 60 days for the submission of the petition in the case of trial outside the United Kingdom. Major Cory submitted his petition on the 22nd March (after 59 days); he was informed by the Army Council of the rejection of the petition on the 18th May (57 days later). The petition ran to 29 pages. Advising on it involved a fresh perusal of the 1,400 page transcript. At the time the Judge Advocate General was also personally engaged in giving advice on nine other petitions.

§ 34. An application for leave to appeal was lodged by Major Cory's legal representative with the Courts-Martial Appeal Court on the 24th May, 1962. From that date the speed 130 of further progress was in the hands of Major Cory's legal representatives who did not lodge the grounds of appeal until eight months later.

§ 35. From the end of the trial until the time of promulgation Major Cory remained in Kenya under close arrest but not in prison, and this period counted towards the serving of his sentence. He was imprisoned in the United Kingdom from the 22nd January until 24th July, 1962, when he was released, having served his sentence subject to remission for good conduct.

§ 36. After Major Cory had been released from prison his advisers had their own reasons for wishing to put off the hearing until they had had a great deal more time to prepare the appeal. Legal aid was granted by the Courts-Martial Appeal Court on the 26th July. The grounds of appeal were lodged on the 25th January, 1963, and on the 14th March an application was received on behalf of Major Cory for leave to call seven witnesses. When the appellant's case was ready for hearing it proved impossible, owing to heavy pressure of work, to constitute a court of three judges to hear the case, which was expected to last a week, until the 4th April.

§ 37. There is no power to suspend a sentence pending the determination of an appeal petition by the Army Council. Nor is there any power to grant bail pending the determination of an appeal to the Courts-Martial Appeal Court. The conferment of these powers would require legislation. There are many practical difficulties in granting bail to service personnel. In this case it would have made little difference if a power to suspend sentence or to grant bail had existed. It is most unlikely that the powers would have been exercised except possibly by the court a few weeks before Major Cory was in fact released from prison.

§ 38. In conclusion it should be stated that the course of events as revealed in this case was wholly exceptional. The Judge Advocate-General's office and the War Office will make every effort which lies within their power to avoid the recurrence of a similar case in future.