HL Deb 05 May 1966 vol 274 cc447-520

3.20 p.m.

LORD RUSSELL OF LIVERPOOL rose to call attention to the case of Christopher Swabey, former Lieutenant-Commander R.N., who was court-martialled in 1956; and to move to resolve, That in the opinion of this House Her Majesty's Government should set up an independent Commission to inquire into the circumstances of the case, and to advise whether, in their opinion, there has been a miscarriage of justice. The noble Lord said: My Lords, the Motion which stands in my name on the Order Paper to-day is not a stranger to your Lordships' House. It has been here twice before. On the first occasion, as your Lordships probably remember, it was introduced by the noble Lord, Lord Shackleton, and on the second occasion by myself; and I have decided, for reasons which I will explain later, to bring it before your Lordships a third time. I do not apologise for doing so, but in view of the fact that I know that there are certain criticisms against me for doing so I propose, if your Lordships will allow me, to give the reasons why I have felt it necessary to do so.

I should like first to make it clear that it is not merely because on both these occasions the Motion was defeated by a small majority ("a miss is as good as a mile"; and that cuts both ways), but for other reasons. On the first occasion, when Lord Shackleton's Motion was before the House, it happened that three of your Lordships who have for a long time been perturbed about this case—one of them was myself, and the other two are not present here to-day—were unable to be here. If we had been here, that Motion would have been carried by two votes, instead of defeated by one vote. But it is not merely that aspect that has caused me to raise the matter again: there was also the way in which the majority was formed on that occasion—and your Lordships can, of course, check this with Hansard, if you wish. Of the 36 who voted against the Motion on that occasion no fewer than 17 were Ministers, Parliamentary Under-Secretaries, Lords-in-Waiting and Whips; yet the Motion had no political significance whatsoever.

On July 21, 1965, I put my Motion down for the first time—and perhaps I may be allowed to explain why it was not done by the noble Lord, Lord Shackleton. During the interval there had been a change in Government, and at that time the noble Lord, Lord Shackleton, was Minister of State for the Air Force, and was responsible for replying in your Lordships' House on all Service matters. It is quite understandable that, in the circumstances, he was unable to bring forward the Motion himself. But I should like to make it quite clear that it was not because he had changed his mind. He had not changed his mind, and has still not changed his mind, about this particular case.

When I put my Motion down in July it was the first on the Table, and I had expected that it would be first Business after Questions on July 21. But there was a misunderstanding—I will not call it more than that—and while I was away I found that another Motion had been put in front of it. It was an important Motion, by the noble Lord, Lord Thomson of Fleet, about industrial relations, and, as it happened a great number of your Lordships spoke on that occasion. As a result, it was not until 7.38 in the evening that the debate on my Motion began. It was not until shortly after 11 o'clock that a Division took place, by which time six of my supporters had had to leave in order to catch their last train. That meant that instead of the Motion being carried by five or four votes, it was lost by four votes.

On that particular occasion something else happened which was responsible for the majority. At the end of the debate on the Motion introduced by the noble Lord, Lord Shackleton, 14 Members of your Lordships' House who were then sitting on the Labour Opposition Benches voted for it. On the occasion when I moved the Motion on July 21, of the remaining 12 (2 had died in the meantime) only one voted for the Motion, three voted against the Motion and eight abstained or stayed away, although I had written to them beforehand and said that I hoped they would support the Motion, as I did not imagine there was any reason why they should have changed their minds. I am not suggesting for a moment that any noble Lord has not a perfect right to change his mind on any subject. I have thought it necessary to go into all this merely so that your Lordships will perhaps understand and forgive me that I felt bound to put down my Motion once again, which I did on December 9. But that is another story.

Some of your Lordships know what happened then. To cut it short, I was taken ill, and the Motion was put down again for another date in December. Again there was a mistake, or a misunderstanding (if that is the right word), and a Motion was put down on December 20 to have my Motion taken second. Eventually, that Motion was withdrawn. It was put down by the noble Earl the Leader of the House, on my agreeing to have a conference with the then Minister of State for the Navy. That was arranged, and on January 20 that conference was held. With me were the noble Marquess, Lord Salisbury, the noble Viscount, Lord Brentford, Vice-Admiral BaillieGrohman and Mr. Swabey's solicitor. We saw Mr. Mayhew and raised a number of most important points with him. As we got no satisfaction whatever from this interview, and the Minister failed to deal, in our opinion, adequately with almost every point which was raised, I decided I had no other course but to put down this Motion a third time, in the hope that I might be able to persuade your Lordships, or at least some of your Lordships, on this occasion to judge the case on its merits, and not to let any other considerations affect the way you vote. And when I use the phrase "other considerations", I am sure that I do not have to explain what I mean.

I think that the best way in which I can approach this case is to deal, as briefly as possible—although I am sure that your Lordships will realise that it will take some time, particularly as some of us were not present at the other two debates—with the main reasons for asking Her Majesty's Government to set up an independent Commission, and to deal especially with the points which were raised at the meeting with the Minister to which, in our opinion, no satisfactory reply has been given. As many of your Lordships were not present at the earlier debate, I feel that before I can do that I must give an outline of what happened at the trial, of the events preceding and leading up to the trial, and of certain important evidence which has come to light since the trial and since the refusal of the Courts-Martial Appeal Court to grant leave to appeal.

In order to appreciate how it was that Christopher Swabey was convicted in Malta, in 1956, of an indecent offence against Sub-Lieutenant Havers, upon what I consider was most unsatisfactory evidence, it is necessary to go back to another court-martial, which was held a little over six years earlier, also in Malta, also at which Swabcy was accused—though at that time and on that occasion he was acquitted—of an indecent offence. He was, however, convicted upon another charge, which I will read: Conduct unbecoming the character of an officer in that he visited without cause the wheelhouse of H.M.S. 'Rowena' where two ratings one of whom was drunk were sleeping. For this he was dismissed the Service. However, on the review of the proceedings at the Admiralty, the Lords Commissioners of the Admiralty, as they were then called, were pleased to dissent from the finding of "guilty" and to annul the sentence.

The charges of indecency on this first occasion had been made by a couple of ratings, who incidentally were not asleep, who thought that they had been caught in flagrante delicto and chose that particular method of getting out of trouble by making counter-charges of a similar nature against Swabey. That has never been denied, and it has never been contested. Furthermore, the fact that the Lords Commissioners quashed the other charge surely indicates that they were satisfied that the charges of indecency, which were part of the same transaction, were entirely without foundation. It has been necessary to mention this previous court-martial because I am convinced that the wide knowledge of this case in Malta made it well nigh impossible for Swabey to have a fair trial there subsequently, and also that had it not been for the fact that the trial was a subject of conversation on board H.M.S. "Redoubt" just before Swabey arrived to take over command, of which there is ample evidence, the charges of indecency which became the subject of the second court-martial would never have been made.

To make this clear to your Lordships who were not present at the other debates, I am afraid it will be necessary for me to deal with this in some detail. I propose to read the evidence which supported these charges—it is exactly the evidence which was quoted by the noble and learned Lord who sits on the Woolsack on the occasion of the last debate—and then ask a question. The extracts cover the actions of Swabey between 6 p.m. and 11 p.m., which were the five hours he was on shore with Havers. In one bar Swabey stood very close to me and leaned against me. I was sitting on the highest stool in the bar"— incidentally, Swabey is rather short— and he was leaning with his crutch on my knee with his hands in his pockets fiddling with himself. That was the first part. This was taking place in a crowded bar with other people, including naval officers, standing by and one naval officer, a Lieutenant-Commander Blackburn, was standing next to Swabey and was talking to him the whole time. In another club Havers said that Swabey again rested his hand on my knee occasionally but not for long. During dinner I felt his leg touch me rubbing up against my leg. Then your Lordships will remember that there was an incident which was supposed to have taken place in a taxi on the way back to the ship, about which Havers said: He put his hand on my leg and moved it up and down…. I hit him. He gave a grunt and removed his hand. I called him a f—homosexual.

Is it really conceivable that Havers could have been so sure that Swabey was making advances, indecent advances, to him that he would have immediately reported these incidents as soon as they had returned on board unless he had previously heard something which would lead him to believe that Swabey was a man with homosexual tendencies? There is evidence, which there is no reason to disbelieve, in the form of an affidavit which was not available at the trial or when application was made to the court, and evidence which would be repeated on oath before an independent Commission, to the effect that a naval officer, Lieutenant-Commander Harvey, who was lunching on board "Redoubt" just before Swabey arrived to take over command of the ship gained a distinct impression, when talking to the officers in the wardroom in the ship, when all the officers were present, including Havers, that there was a hostile atmosphere regarding Swabey's appointment which had arisen on account of his previous court-martial which was being discussed during lunch. Harvey ended his affidavit by stating: There is no doubt in my mind that there was general knowledge aboard 'Redoubt' of Lieutenant Commander Swabey's previous court-martial before his arrival in Malta in March, 1956. Was it not that knowledge of the previous court-martial which led Havers to believe that what might otherwise have been dismissed without a thought was, in fact, an indecent assault and that his new commanding officer, who had previously been tried, as he knew, for a similar offence, was trying him out?

Is there not a great deal of truth in what the right reverend Prelate the Bishop of Chichester said, in the debate on Lord Shackleton's Motion in 1963? He said: The community may be lax (or charitable, if you put it that way) in its attitude to some vices; but there is no doubt that it is perticularly sensitive to any imputation of homosexuality. This is true everywhere. It is particularly true, as we should expect, in the circumstances of naval life. The mere suggestion of it creates at once an attitude of abhorrence and revulsion which tends to colour judgment and sometimes produces hysterical reactions. It is, moreover, a form of offence notoriously difficult to define: it covers not only acts but also tendencies or suggestions. This means that the very charge of it, even when it is rebutted, sets up a train of suspicion that is not likely to be eradicated. I know of no other offence equal to this in which the accused tend to be condemned in people's minds even before their case is heard and in which, even when they are acquitted, they will never, in the public view, be wholly exonerated."—[OFFICIAL REPORT, Vol. 247, col. 1068, 19/3/63.] Is there not a great deal of truth in that?

The noble and learned Lord who sits on the Woolsack said, on July 21 last year, when winding up for the Government, that this case was one which depends entirely on which of two men is telling the truth. He went on to say: There is no reason to suppose that one committee or two committees or three committees, hearing the evidence of the two men concerned six years after the event, would be any more likely to arrive at the truth as to which of the two was telling the truth than was the court-martial."—[OFFICIAL. REPORT, Vol. 268, col. 882; 21/7/65] That, in my opinion and in my submission to your Lordships, is a gross over-simplification. It was not just a question of which of these two officers was telling the truth. In order to acquit Swabey it was not necessary for the court-martial to come to the conclusion that Havers had committed perjury or, as the noble and learned Lord put it, "completely invented something that never happened at all". It was surely quite possible that Havers, with previous knowledge of Swabey's first court-martial, made a mountain out of a mole hill—the crutch against his knee, hands in trouser pockets, fiddling with himself, their legs touching under the dinner table, the incident in the taxi—and I do not think I really need to deal with each one of those matters. But these things are supposed to have happened in public in a bar, all except those in the taxi.

Do your Lordships really think that with Havers sitting on a high stool, and with a number of other people present Swabey would go over and rub his crutch against the man's knee? I think all those are rather strange things, and they are things that probably reacted on Havers because he was brainwashed about Swabey before he arrived. These things might have happened and been magnified or misconstrued on account of Havers's suspicions about him. How can he be certain? Why otherwise should he jump to such a conclusion? Nevertheless, the evidence in this case was, in my opinion, so flimsy that no court-martial of which I have had any experience—and I do not think I have to tell your Lordships that I have had quite considerable experience of courts-martial—would have regarded such evidence as supporting an indecent assault charge unless there was some reliable corroboration, and the only evidence which was put forward by the prosecution in this case as corroboration of Havers's evidence was Swabey's reaction when he returned on board when the accusation of indecency was made. Surely it is not difficult to imagine the shock with which Swabey heard these charges made. He had been through all this before, and knew the kind of things that people might be saying, and he must have known that there were many people in Malta who knew about the previous case. There must have come to his mind immediately, "There's no smoke without fire. Once a queer always a queer ", and many other remarks of that kind.

What in fact was his reaction? His reaction, according to the evidence, was this. To put it shortly, he was not unnaturally agitated and walked up and down the wardroom passage. He said that the sub-lieutenant had gone beserk. He said that he did not want it to go further, but he would mention the whole thing to Commander Davidson, who was still in command of the ship, in the morning. Lastly, he said that he had been all through this before and knew what it was all about. I should have thought that that was hardly the reaction of a guilty man. Surely this evidence of Swabey's reaction was just as consistent with his innocence as with his guilt.

The Courts-Martial Appeal Court, when refusing leave to appeal, said that this evidence could be considered as corroboration of Havers, as it undoubtedly could, and the Court left it at that. But, in my humble submission, they should have said that it was equally consistent with Swabey's innocence, and, as it was, the Court should not have acted upon it. One must surely ask oneself why it was that the Court regarded this as corroboration, and it can only be assumed that it was because they had no official knowledge of the first court-martial, because it was not mentioned by counsel for the defence at the trial. I think this was most unfortunate, as otherwise the Judge Advocate would have been bound then to warn the Court that Swabey's reaction was quite consistent with his innocence, and for that reason it could not be properly relied upon as corroboration of Havers's evidence; and that should have been the end, in my opinion, of the indecency charge.

There is another point that arises here and it does not need a lawyer to appreciate it; all it needs is a little common sense. Even if Swabey had been what the Court were asked to believe he was, is it likely, is it possible, is it conceivable, that he would have made indecent advances to an officer who was just about to come under his command in a small ship, and whom he had only just met; that he would have made these advances, first of all, in a public bar and then, subsequently, in a taxi which had no partition between the driver and the passengers?

With regard to corroboration, there was something else which does not appear to have been given due consideration, and that was the evidence of the taxi driver, Genovese, who contradicted Havers's evidence but corroborated Swabey's. The noble and learned Lord who sits on the Woolsack, I thought, tried to shrug off this evidence by saying that Genovese was the kind of witness who says "No" to everything. That is not quite true. I shall have more to say about Genovese later, but this must be said now. He stated at the trial, and as recently as last November repeated in an affidavit, and is willing to give it on oath before an independent commission, that he is certain that no fighting or shouting took place in the back of his car between the passengers that evening, because, if so, he would have noticed it. This is what he said: I know"— he states— that when I gave evidence nine years ago I said that the passengers did not fight and did not shout, and I am still certain and confirm that there was no fighting and no shouting while they were in my car.

The Courts-Martial Appeal Court, I think, said that the Judge Advocate, who was a very inexperienced member of the Prosecutor's staff, "did very well". I have studied the summing-up most carefully, and I am afraid, with great respect to the people who were on the Courts-Martial Appeal Court, that I cannot say more than that he might have done much worse. In my opinion, it was in what he left unsaid that he failed, and he should have told the Court on that occasion, but did not do so, that this evidence of Genovese contradicted Havers and corroborated Swabey.

So much for the facts. There is a lot more that I could say but I cannot keep your Lordships too long. I still have to deal with a number of important points, because these were raised at the conference that my friends and I had with the former Minister of Defence for the Navy, to which, in our opinion, he has not given a satisfactory reply. These are all matters which, in my opinion, should be—and of course would be—considered by an independent commission if one were set up.

The first one is the failure to hold a preliminary investigation. The noble and learned Lord who sits on the Woolsack said on July 21: … this is not a complaint which can be made in law…Except as to ratings, there is no need … for a preliminary investigation."—[OFFICIAL REPORT, Vol. 268, col. 875, 21/7/65.] I would be prepared to argue about that, because paragraph 173 in the Admiralty Memorandum on Naval Court-Martial Procedure seems to me clearly to indicate that a preliminary investigation should always be held. If I may, I will read it to your Lordships: The captain of the accused's ship decides whether to make an application for trial by court-martial after carrying out a preliminary investigation to the alleged offence or offences. Where some person other than the captain of the accused's ship is to be appointed to prosecute, that other person will usually be required to 'work up' the case from that point. He must, therefore, obtain notes of what was said by the witnesses at the preliminary investigation including any statements made thereat by the accused after being duly cautioned as a foundation for his preparation of a least a prima facie case against the accused. But even if the noble and learned Lord were right about that, about the fact that failure to hold a preliminary investigation cannot be raised as a matter of law, in my opinion in this case it is quite irrelevant. The object of my Motion is to try to get justice done to Christopher Swabey, and not to enter into a legal argument as to whether the rules of the game were followed.

The reason why I am raising this point now, and why it has been raised consistently at all discussions on this particular case, is that failure to hold a preliminary investigation was prejudicial to this accused. Mr. Justice Lawrence, who was then Sir Geoffrey Lawrence, in his submission to the Admiralty on this particular point, called it absolutely crucial", as indeed it was; and the noble Lord, Lord Ampthill, and I both dealt with it on July 21 in your Lordships' House, Sir Geoffrey then went on to say this, if I may read it to your Lordships: The circumstantial letter and the written statement of witnesses could not take the place of a preliminary investigation which is the equivalent of committal proceedings before justices in a civilian court. The committal proceedings are not only a constitutional safeguard of the liberty of the defendant—since he can only be committed if the justices are satisfied that there is a prima facie case against him—but in disclosing the case of the prosecution they enable witnesses on oath to he confronted in the presence of the accused who himself has an opportunity to cross-examine them or through his counsel.

Sir Geoffrey might have gone on to say that in the Army and Air Force a summary of evidence, which is the name for what I think the Navy call a preliminary investigation, must be taken in the presence of the accused, and it is only after considering the summary of evidence that the convening officer may convene a court-martial to try the officer or other rank as the case may be. Why should naval officers be the only class of Her Majesty's subjects who are, apparently, not entitled to the precaution of assuring that there is a prima facie case against them before their trial is held, with all the concomitant glare of publicity and the completely untested evidence of the prosecution witnesses only?

The noble and learned Lord may not know, but the Admiralty knew and have always known, that in 1949 a full preliminary investigation, with all the witnesses present and in the presence of Swabey, was ordered and carried out by the captain of H.M.S. "Rowena", and Swabey, of course, had the opportunity of cross-examining all the witnesses. In this case, in my submission to your Lordships, the failure to hold any preliminary investigation gravely prejudiced Swabey, The evidence in support of the indecent assault charge was so flimsy that if he had had an opportunity of confronting the witnesses, of cross-examining the witnesses, and of himself giving evidence, I think it is extremely doubtful whether any court-martial would have been convened.

Another reason why the absence of a preliminary investigation was very prejudicial to Swabey's trial was that, had there been one, Genovese could not subsequently have been called as a prosecution witness, and if there had been any shyness, awkwardness or fear on his part about repeating what he had already told Swabey in the presence of two independent witnesses, both of whom were naval officers, Mr. Grech, who defended Swabey, would have requested—and, surely, the request must have been granted—an adjournment of the inquiry so that one of these naval officers, both of whom were available at the time of the trial, could be called to substantiate what Genovese had said when interviewed. Also, there would have been no question—some of your Lordships already know this—of Genovese not recognising Swabey and Havers when they appeared at the court-martial in uniform, because he would already have seen them in uniform, of course, at the preliminary investigation. This point was raised at great length with the former Minister of State for the Navy by my friends and myself, and each one of us said something about it. In a letter which he sent to me, which he had promised to send answering our questions, there was no specific reference whatsoever to this point. The Minister merely stated that this and other points had been answered by the Lord Chancellors in the two debates, and that it was unnecessary for him to add to what they had said.

Another point which was raised at this meeting was why a young and inexperienced officer was appointed to act at Judge Advocate in such a vital trial. Why was Commander Fisher appointed as prosecutor and not as Judge Advocate? I think the whole purpose of having a qualified barrister on a naval station—I believe every naval officer knows this perfectly well—is to ensure that a legally qualified person is present to act at Judge Advocate. The Admiralty have been repeatedly asked to answer this question, but they have never deigned to do so. The deputation considered that they were entitled to an answer to this question, but they never received one. All the Minister said in his letter was: This is typical of the points which are now being raised and which, in my view, do not touch the merits of the case.

Normally an ordinary naval officer of some seniority would have been detailed to prosecute. It seems to me natural to infer—and I am going to give reasons for this, of course, later—that when Fisher appointed himself at prosecutor it was because of his expressed determination (and when I say "expressed" I mean that he expressed it) "not to let Swabey get away with it this time". Now there is evidence that he did say this, and it was given in two affidavits sworn by Mr. Grech, the second of which was made as recently as last September. In the first affidavit he had mentioned this; and then, in the second affidavit, he said: I formed the strong impression that the prosecutor was determined that Lieutenant-Commander Swabey should be convicted whether or not there was evidence to support it. In the first affidavit he had said, for reasons not expressed", but in this affidavit he went on to say: The reasons I had in mind were that within 40 hours of March 23, 1956, Commander Fisher telephoned me to inform me that I might be hearing from someone I had defended before; that at some time before the commencement of the trial— and his impression is that it was while waiting for the court to open— Fisher made a remark to me to the effect of, 'I am going to see that he does not get away with it this time '; that I formed the impression Commander Fisher was gunning for Christopher Swabey, but cannot be certain whether he did actually use those words, I am gunning for him'.

My Lords, when Mr. Grech saw the letter which the former Minister of the Navy wrote answering these points that the delegation had put to him, and from which I shall quote in a moment, he wrote a letter to the present Minister in which, among other things, he said this, which I should like to read to your Lordships: I trust that I have made it clear that I do not in any way retract the allegations made in my affidavit; that I am certain of them even at this distance of time, because I noted the remarks at the time they were made, had reason to remember them because no such remark has ever been made to me by the prosecutor in 18 years of courts-martial in all three Services, and because I passed the remarks on soon afterwards and committed them to writing. I am therefore supported in my recollection by the fact that when the matter was much fresher in my memory I had committed it to writing. With regard to Captain Fisher, I would suggest that the first time he could have been asked to state whether he had made such a remark must have been several years later, and there would be less reason for him to remember making such an expression of opinion, especially if it was made by him on the threshold of the court and immediately afterwards he had gone into court to open his case. As there can he no doubt that Captain Fisher has firmly denied making these remarks, I trust that he will not lack the courage to allow his name to be associated with the denial and to support the denial on oath, as he must necessarily do in view of the publicity which has been given to his denial and the manner in which the undertones of the way in which the denial is framed reflects on my veracity.

My Lords, the passage in the former Minister's letter which caused Mr. Grech to write that was this. This is what Mr. Mayhew said: You wrote to me three new affidavits which had come into your possession. In the first Mr. Grech alleged that some time before the trial the Prosecutor had remarked to the effect that he was going to see that Swabey did not get away with it this time. I have made enquiries into this allegation and am satisfied that Mr. Grech's recollection is gravely at fault, and that there is no foundation for what he says. Surely, my Lords, here there is a very definite conflict of evidence, and in my opinion that is another reason why there should be an independent commission. I must say that, in the circumstances, I am surprised that the Minister should feel able to state that he is satisfied that Mr. Grech's recollection is gravely at fault and that there is no foundation for what he says. In saying that, I should like your Lordships to know that I know Mr. Grech personally—not that that will impress your Lordships—and that in Malta he is very greatly respected and has a very high reputation both as a man and as a member of the Bar.

Now another matter which is, in my submission, highly relevant and very significant—and this also was raised at the meeting with the Minister—is some-thing that was said by the Prosecutor at the very end of his closing speech. This is what he said: To end on a somewhat personal note, at a recent court-martial I was approached by the President afterwards and he said, 'We were all quite sure that he did it, but the prosecution did not prove it'". Then Fisher went on to say: If you are quite sure in this case, then the prosecution has discharged its burden of proof. This was surely an extraordinary submission for a lawyer to make to the court, and amounted to telling them that, provided they felt sure that Swabey had indecently assaulted Havers, it did not matter whether or not the prosecution had satisfied them by the evidence. The Judge Advocate should surely have immediately drawn the court's attention to this palpable misdirection and told them, then and there, what the legal position was with regard to the burden of proof.

It is quite true—and I am not suggesting anything to the contrary that in his summing-up the Judge Advocate himself gave the court a proper direction; but even then he did not tell them, as he should have done, that what the Prosecutor had told them was not a proper direction. Doubtless he found it embarrassing to correct in public a senior officer who was also the head of his own office, and tell them that he had misdirected them on a point of law. But whom do you think the court necessarily believed? As the Prosecutor was legally qualified and well known, and the Judge Advocate was not, it cannot be safely assumed that the court followed the direction given by the inexperienced and unqualified Judge Advocate. It is surely more than likely that the court took this view: Well, Fisher is a barrister and must know what he is talking about. He said that as long as we are sure, that is all that matters."

My Lords, I am sorry to have kept you so long. You will be glad to know that I am nearly finished. The last matter to which I wish to refer relates to the fact that the prosecutor was seen in conversation with the President and members of the court in the ante-room prior to the opening of the trial; and there is no doubt that the Judge Advocate must have been present at that time. Evidence of this was given in an affidavit by Lieutenant-Commander Blackburn; and he came, with my friends and myself, to the Admiralty and repeated it in person at the meeting with the Minister. This is what he said in his affidavit and to the Minister: Immediately prior to the opening of the court I was astonished to see the prosecutor, Commander Fisher, in conversation with the President and other members of the court in the ante-room. I think this is a vital point and I should have thought that it was enough in itself to render the whole proceedings invalid; and for this reason alone I am surprised that the Judge Advocate of the Fleet, Mr. Ewan Montagu, did not advise that the proceedings should not be confirmed.

I should also have thought that the Minister, for the same reason, would still find it necessary to take the appropriate steps to upset the findings and the sentence of the court. I can assure your Lordships that such a thing would not be likely to happen in the Army or the Air Force. I should hope that it has never before happened in the Navy, and will never happen again. It must be remembered that the members of a court-martial are both judge and jury; and I am sure that your Lordships know what would happen if the prosecutor in a civil criminal case were seen talking to a member of the jury at any time before the verdict. It is also important that your Lordships should know that the evidence of Lieutenant-Commander Blackburn was unknown to the Courts-Martial Appeal Court in November, 1956, when they were hearing Swabey's application for leave to appeal.

Before I sit down, I should like to read to your Lordships an extract from the speech of the noble Lord, Lord Shackleton, during the first debate. I have told the noble Lord that I propose to do so and he has no objection. Towards the end of the debate he said this: I still feel there has been prejudice in this case and I think that it is prejudice that has gone on right the way through. It was suspicion of this, this fear of homosexuality, that led to the sub-lieutenant making his accusation … I think this prejudice has gone on all the way through and I believe it to exist in the Admiralty. I believe that the prosecutor and others in this case, although they were honourable men, thought that they had a guilty man and that this time they had a chance to 'nail' him. This is not the principle under which we conduct justice in this country. When it came to the review, there was equal prejudice in the Admiralty. I am told it was referred to the Judge Advocate of the Fleet and I am also told that one distinguished figure connected with the review of this matter is alleged to have said to the late Lord Bishop of Chichester:"— Dr. Bell, whom your Lordships remember and admire— 'Guilty the first time, guilty this '. Because of this prejudice an independent inquiry is necessary …"—[OFFICIAL RFPORT, Vol. 268, col. 1110; 19/3/63]

As your Lordships know I have considerable experience of courts-martial; and I do not think I have ever come across such a case more bristling with danger than this one. It seems proper to remind your Lordships—you will see why in a moment—that the Donovan Committee on the Functions of the Court of Criminal Appeal recommended in August of last year that that Court should be given an expressed power to allow an anneal against conviction where, upon consideration of the whole of the evidence, it comes to the conclusion that the verdict of the jury is unsafe or unsatisfactory. I am told that this recommendation is soon to be implemented—and the noble and learned Lord who sits on the Woolsack will be able to confirm that—and the same power would surely he given to the Courts-Martial Appeal Court. Unfortunately, it would be too late for Swabey to benefit from this very wise recommendation, which is long overdue because it was recommended as long ago as 1907 by F. E. Smith.

Any Courts-Martial Appeal Court, looking at this case, with all the evidence which would now be before it, could surely not possibly fail to come to the conclusion that the finding of the court on the indecency charge at Swabey's second court-martial was extremely unsatisfactory and frighteningly unsafe. But, my Lords, it is still not too late for your Lordships' House to come to the rescue, and to take the first step towards ensuring that Swabey should now have justice.

I must apologise for having kept your Lordships so long. I hope that you will support the Motion in the Division Lobby and thereby show your great concern at what, in my opinion and, I know, in the opinion of many of your Lordships, in the opinion of a large number of senior naval officers of high standing, in that of many officers who served with Swabey, and in that of many naval ratings who served under him and have expressed their concern, and, lastly, in the opinion of a growing number of the public, was a gross miscarriage of justice; which should be put right. I beg to move.

Moved to resolve, That in the opinion of this House Her Majesty's Government should set up an independent Commission to inquire into the circumstances of the case of Christopher Swabey, former Lieutenant-Commander R.N., who was court-martialled in 1956; and to advise whether, in their opinion, there has been a miscarriage of justice—(Lord Russell of Liverpool.)

4.7 p.m.


My Lords, shortly after entering your Lordships' House I listened to the opening stages of the second debate initiated by the noble Lord, Lord Russell of Liverpool, in his efforts to clear the character of Mr. Christopher Swabey. The noble Lord, in opening this debate, implied that there was some criticism in this House that he should have raised the issue for a third time. In my mind there is no such criticism. I am certain that no such criticism exists in your Lordships' House. The noble Lord is right to pursue his fight for justice for Mr. Swabey and I, for one, cannot criticise him for this.

But I would agree with him on one point: that this House has not yet given a clear verdict on this matter. As the noble Lord said, the Motion was defeated on the first occasion by one vote, and on the second by four votes; and although I do not accept his argument, because it is probable that as many people who opposed the Motion were away as those who supported it, nevertheless the findings of this House are unclear. For this reason I hope to-day that the verdict of this House will be clear-cut and final.

The nature of the case and the closely divided views of your Lordships imposed on me a moral duty to study with particular attention the whole of the documentation relating to the case of this unfortunate man whom, whether innocent or guilty, we all must pity. This I have done; and, in spite of the devoted efforts of the noble Lord and of a wide circle of Mr. Swabey's friends, I have satisfied myself that his case was fairly tried and that a correct verdict was given. Far more important than my view on this point is the finding to the same effect of the Courts-Martial Appeal Court, sitting under the chairmanship of the then Lord Chief Justice, Lord Goddard.

As I have said, there have been two earlier debates in your Lordships' House on this case, and the facts, at any rate as then outlined, are known to many of your Lordships. But there may he some of you who may not be familiar with them and who may wish me briefly to re-state them in fact, re-state all of them, rather than the rather selective choice of facts which the noble Lord used in opening this debate to-day. This I propose to do, leaving to my noble and learned friend the Lord Chancellor the discussion of the legal and administrative aspects of the case.

The facts are these. Christopher Swabey, then a lieutenant-commander, arrived in Malta on March 22, 1956, to take up his appointment as commanding officer of H.M.S. "Redoubt." On the following evening, before he had formally taken over command, he went ashore at 6 o'clock with a sub-lieutenant of the ship. When they returned, some time after eleven o'clock Swabey appeared to be extremely agitated and demanded of the sub-lieutenant that he should withdraw remarks which he had made on the way hack to the shin. The sub-lieutenant refused to do so; tried to see the first lieutenant, and, finding that he was not on board, went to his cabin, wrote out a formal complaint that Swabey had indecently assaulted him and handed it to the Officer of the Day. The complaint was investigated in the normal way and a court-martial was held on April 16–17, 1956.

Swabey was charged with three offences: one, indecent assault; two, drunkenness, and three, acting to the prejudice of good order and naval discipline in making an improper remark to a junior rating. The charge of indecent assault was heard separately from those of drunkenness and acting to the prejudice of good order and naval discipline. Swabey denied the charges, but was convicted of the first and third offences, and was sentenced to dismissal from Her Majesty's Service.

The prosecution evidence was to the effect that the two officers had visited various bars in Valletta, had then gone on to the club at Sliema and visited another bar before dining at a Sliema restaurant at about 9.30 p.m. They then took a taxi back to the ship, which was alongside the dockyard, at about 11 p.m. The sub-lieutenant said that throughout the evening Swabey had made peculiar and offensive contact with him, rubbing himself against him and so forth; and finally making an unmistakable homosexual assault in the last taxi ride, which the sub-lieutenant said he had repulsed with a blow and a pretty emphatic and seaman-like remark.

Evidence was given that Swabey was agitated when he got back on board, and tried to get hold of any written report that the sub-lieutenant might be making, although, of course, as he was not yet commanding officer of the ship, he had no authority for seeing it. Swabey denied homosexual conduct at any time during the evening. A retired commander (the noble Lord has mentioned this) who was in their company at the Sliema Club and one of the bars for an hour and a half, said that he had seen nothing irregular between them at the time. The taxi driver said that he had heard no fighting or shouting or anything unusual in his taxi.

I think your Lordships will agree that it is extremely difficult, in fact impossible, to summarise the proceedings of a trial in the time open to me to-day, particularly when there is a mass of detail in the evidence. The court-martial spent a whole day hearing and considering the evidence on the first charge. I have, as I said, studied the transcript with care. It presents an accusation which, if true, was an accusation of a minimal act of indecency, but nevertheless an act which is intolerable in a disciplined Service. Both officers had had a considerable amount to drink during the course of the evening, though neither was drunk; indeed, Swabey was acquitted of the charge of drunkenness. The sub-lieutenant, it was claimed by the defence, was uncertain of some of the details of the bars they had visited, but the hard fact is that he stuck staunchly to the main facts of his story, and to his complaint, under searching cross-examination.

The court-martial were in the not unusual position of judges or juries in having to decide which of two men, saying different things in sworn evidence, was speaking the truth. They would have observed that the sub-lieutenant was muddled about the locations of the bars and, indeed, had forgotten altogether one of the bars they visited. They would have observed that the taxi-driver did not corroborate the incident in the taxi. But they would have observed also the steadfast demeanour of the sub-lieutenant and his unshaken assertions, and they would have noted that Swabey's conduct immediately on his return to the ship was capable of providing corroboration of the complaint.

Now, my Lords, if we turn to the separate hearing of the second and third charges, the evidence here given, in my opinion, endorses and strengthens the corroborative evidence given on the first day. The evidence of the officers on board, and of the quartermaster, is quite clear-cut. Here we see a picture of a commanding officer-designate of a ship, first in a half-dressed condition, and then in his pyjamas, going to the wheelhouse and making slanderous remarks to a rating about one of his junior officers. He was also taking what steps he could to prevent the sub-lieutenant's report from reaching the retiring commanding officer when, I submit, the natural reaction of an innocent man would have been to prefer charges against the sub-lieutenant for assault.

It is no good Swabey's supporters trying to explain his actions at this time on the grounds of emotional disturbance. If Swabey had been disturbed, he would have been wiser to retire to his cabin until he was more in control of himself. And indeed, all the discussion to-day, and all earlier discussions on this case, seem to have concentrated, in the main, on the charge of indecency. The charge of an act to the prejudice of good order and naval discipline in making an improper remark to a rating, the third charge, has received far less attention. Sir Geoffrey Lawrence, in his plea, devotes just one paragraph to this charge out of many pages. In this he says that if the first charge should fall, then the third charge must fall with it. This I do not accept. After this disastrous evening, even if Swabey had been found not guilty of the charge of indecency, he could never have been left in command of H.M.S. "Redoubt".

It is for these reasons that my own study of the transcript made me think that the finding of the court-martial was entirely within the bounds of reasonable probability. I was not surprised, therefore, to read next that Swabey's petition to the Admiralty had been rejected, and next that his application to the Courts-Martial Appeal Court for leave to appeal had been refused. That petition and the application to the Appeal Court were based on assertions, which we have heard again to-day, that the court martial was probably prejudiced by gossip, and on a number of legal arguments, such as that the verdict was against the weight of evidence; that there were misdirections of law; that the Prosecutor's conduct was not up to standard; that the Judge Advocate was incompetent. As has been said in this House before, after careful examination of these assertions the Admiralty would have none of them, and, perhaps more important for your Lordships, the Appeal Court would have none of them either; and said so in forthright terms when Swabey's Counsel expounded them at some length before them.

As I said earlier, my Lords, I do not propose to deal with points of law: my noble and learned friend will do that. But I should like to say a few words on the assertion that there was gossip and prejudice. Swabey based this assertion on the fact that he had been court-martialled before, in Malta in 1950. He had then been acquitted of charges of indecency, but convicted of conduct unbecoming an officer, and dismissed the Service; in fact, the same charge, the third charge, mentioned in the 1956 court-martial. On review, the Admiralty, on that occasion, quashed the conviction and reinstated Swabey.

At the trial in 1956, Swabey's counsel—and he was an experienced barrister—made no reference to this earlier trial. My noble and learned friend dealt in the previous debate with the considerations which would have lead to this decision. But two lines of argument have developed from this situation and from the 1950 trial. First, Swabey said, in the petitions to which I have just referred, that general gossip about it prejudiced the minds of the court. It is true that some people may have recollections of it and that a few, a very few, had a duty to know of it. But there is no evidence at all that members of the court knew of it or remembered it, so that it can have had no effect upon their judgment. It is significant, I think, that no objection was taken at the time to the composition of the court. I will return later to the question of whether or not there was general gossip in Malta, particularly since this is a point which the noble Lord, Lord Russell of Liverpool, raised in the first part of his speech.

Accepting this first line of argument, a second, and rather inconsistent, line of argument was introduced after the Appeal Court had refused the application. Having said that it was unfair that the court-martial really knew all about his previous trouble. Swabey said in the next petition—which he made to the Queen—that it was unfair that they knew nothing about it (as his counsel had prevented them from knowing), because that prevented the court-martial members from understanding that his conduct on board was capable of an innocent explanation and was, in fact, due to his own bitter memory of the 1950 trial and the thought that, if the sub-lieutenant persisted in his allegations, he would be dragged through the agony of another court-martial. Your Lordships may think it odd that this line of argument was not introduced until he had reached the stage of his third petition. You may think it rather odd, also, that the same facts are used to argue in two different directions.

I will now return to the question of impact of local gossip on the fairness of Swabey's second court-martial. The noble Lord, Lord Russell of Liverpool, mentioned an affidavit signed by Lieutenant-Commander Harvey, the commanding officer of a sister ship to "Redoubt". This affidavit was made in 1963, seven and a half years after Swabey's second court-martial. In it, as the noble Lord, Lord Russell of Liverpool, said, he had a conversation with Lieutenant-Commander Davidson, who was the retiring Commanding Officer of "Redoubt", from which he gathered that before Swabey arrived all the officers in the "Redoubt" knew about the 1950 trial, and that as a result the sub-lieutenant's mind was preconditioned against him. Swabey's defence, arising from this, is that the so-called homosexual behaviour of which he was accused was no more than a figment of the sub-lieutenant's imagination arising from a preconceived view of Swabey's nature.

But there is another statement, which the noble Lord, Lord Russell of Liverpool, did not mention, and that is a statement made by the retiring commanding officer of "Redoubt", Lieutenant-Commander Davidson; and this statement was made only seven months after the trial. Lieutenant-Commander Davidson says that it was quite clear from his recollection that when he and Harvey met, seven and a half months after the trial, and discussed the particular case they both concluded that they knew nothing about Swabey; and when they happened to meet again, they confirmed to one another that they had known nothing about him. So there is another statement which completely counters the affidavit of Commander Harvey, which was made seven and a half years afer the trial—and this statement was made only seven months after the trial. He, as commanding officer of "Redoubt" at the time when Swabey was about to take over from him, would have had a clearer recollection of the position in the wardroom than Harvey would seven and a half years after the event.

So much, my Lords, for the influences that conditioned the sub-lieutenant's mind; and I think, also, so much for the reliability of men's memories after so many years. In my mind, affidavits produced eight to nine years after the event, and, indeed, withheld from the Department—since I gather that these affidavits have never been seen by any member of the Ministry of Defence—are documents which should hardly influence your Lordships in reaching your decisions to-day.

The noble Lord is asking that an independent Commission be set up to inquire into the circumstances of the case, and to advise whether there has been any miscarriage of justice. Ten years have passed since Swabey was court-martialled, and in that time memories must have become less precise and individuals must have passed from the scene. What can a Commission do that the Courts-Martial Appeal Court did not do? Three eminent Judges, sitting immediately after the court-martial was over, unanimously expressed the opinion that justice had been done to Swabey, and that his defence had been conducted with competence and fairness. Should we, after the passage of so much time, try to reject the view of the Appeal Court, formed when the evidence was fresh? It is for this, and the other reasons that I have given, that I ask your Lordships to reject this Motion.

4.25 p.m.


My Lords, I hope that your Lordships will allow me to say a few words in thanks to my noble friends Lord Carrington and Lord Longford for the kind observations they made about me in the course of the debate on the gracious Speech, and to thank your Lordships for the way in which those remarks were received. I have deliberately referred to the noble Earl, Lord Longford, as my noble friend, because we have been friends, despite political disagreements, for a great many years—ever since we were in the same house at Eton. I should like, also, if I may, to say how much I enjoyed my time as Deputy Leader of the Opposition, and to thank your Lordships for the kindness with which you treated me during that time. I enjoyed working with my noble friend Lord Carrington. Ours was a very happy association, and I am sorry that it has been severed in the way it has.

I feel that an ex-Lord Chancellor should, if he is required, sit judicially; and that I shall do. I felt some doubt whether it was right for me to continue, if I was going to sit judicially, to sit upon the Opposition Benches. It is, I think, accepted that a Lord Chancellor can sit judicially and in the Cabinet, and an ex-Lord Chancellor can sit judicially and be a member of the Shadow Cabinet. But I was not clear in my mind whether different considerations did not apply when he had ceased to be a member of the Shadow Cabinet. The precedents have been examined, and I am glad to say that there is a precedent for an ex-Lord Chancellor sitting judicially and on the Opposition Benches; and I intend to follow that precedent. But I do not think it would be right for me to take anything like such an active part in Party politics as I have done, and I shall not do so, although I shall miss it.

I have intervened to-day because this is a matter in which I was involved when I was Attorney General and also as Lord Chancellor. My noble friend Lord Carrington asked me to read the record of the court-martial, and to consider and tell him my views. No one who has read that record could regard this as anything but a very sad case. The conduct with which Commander Swabey was charged was really of a very trivial character, and if committed in civil life, and if convicted of it in civil life, would have been followed by very little punishment, if any. In civil life a trivial offence. But in the Navy, I think we should all agree that offences of this kind committed on a junior officer assume a serious character. We are not here concerned with the heavy penalties which Commander Swabey has suffered in consequence of his conviction; but we are concerned with that conviction. When I read the record for the first time (I have it here; it is a very long record of some 180 pages), I came to the conclusion that there was no valid ground for saying that an innocent man had been wrongly convicted. I have read again the whole proceedings in the 1963 debate, and I have not altered my conclusion. I saw no reason, and I see no reason now, to change my opinion.

We have heard to-day from the noble Lord, Lord Russell of Liverpool, complaints which have frequently been ventilated. There was nothing new that I could detect in anything he said. If those complaints were well founded, then indeed a great deal must have been wrong with this court-martial. But I hope your Lordships will know me well enough to know that, if in considering this matter as impartially as I could (and it was not really my duty to consider it when I considered it as Attorney General) I had felt any doubt about the propriety of this conviction, I should have had not the least hesitation in saying so.

I think even the noble Lord, Lord Russell of Liverpool, would accept that there was evidence before that court-martial which, if accepted by the court, would justify a conviction. There was, it is true, a conflict of evidence—there often is in criminal trials in a court-martial. If the evidence of the taxi driver had been accepted by the court as true, they surely would have been compelled to acquit. As the noble Lord who has just sat down has said, Sub-Lieutenant Havers gave a very detailed account of the events of that evening. He was strenuously cross-examined by a competent barrister upon his evidence. I do not myself think that there is any room for a third view: either he told the truth, or he committed perjury. From the evidence he gave I do not myself believe that there was any real room for his misinterpreting the conduct of Commander Swabey, if that conduct took place.

The choice the court had to make was whether to believe that sub-lieutenant or whether not to believe him; just the same choice that they had to make with regard to the evidence of the taxi driver. When considering the evidence of Commander Swabey they had, of course, to bear in mind the passage in his evidence which I cited in our last debate, when he admitted that he had an imperfect recollection of the events of that evening. It was for that court-martial to decide who was telling the truth, where the truth lay, just as it is for a jury in a criminal trial. It was for them to decide upon the credibility of the witnesses whom they had seen and heard. And, despite what the noble Lord, Lord Russell of Liverpool, has said as to his personal views there was evidence which, if accepted by the court-martial, was corroborative evidence. That was the opinion of the Courts-Martial Appeal Court. The noble Lord criticised the decision of that Court on that matter.


My Lords, could the noble Viscount say what the corroborative evidence was?


I am not going into detail about the evidence this time. I did so last time. What I am saying is—and the noble Marquess can contradict it if he wishes, although I think I am right—that this question of uncorroborated evidence was raised before the Courts-Martial Appeal Court by Sir Peter Rawlinson, then appearing as counsel on behalf of the accused Swabey. And Sir Peter Rawlinson would not fail to put forward every possible argument that could properly be put forward. The court held—and there can be no doubt about this—that there was evidence which, if accepted by the court-martial, was corroborative evidence. I rest on that. The noble Lord, Lord Russell of Liverpool, has sought to suggest that that Court was wrong. Of course, he is entitled to his own opinion. But here was a Court presided over by my noble and learned friend Lord Goddard, with two other High Court Judges, who, after hearing argument by counsel, reached that conclusion and expressed it. That ought not to be lightly brushed aside.

As the noble Lord has said, this is the third time on which we have debated this matter. The first time was at the instance of the noble Lord, Lord Shackleton. In 1963, speaking of the court-martial held in 1956, the noble Lord, Lord Shackleton, said that he appreciated that it is not possible for us to attempt in Parliament to retry a case that has been through the ordinary process of the law …"—[OFFICIAL REPORT, Vol. 247, col. 1048; 19/3/63.] To-day, at the very beginning of his speech, the noble Lord, Lord Russell of Liverpool, invited your Lordships to do precisely that thing. I again quote the words of the noble Lord, Lord Russell of Liverpool, He invited us To judge this case on its merits. On the information we have, the information put forward in debate, we are really in no position to judge this case on its merits.

This case has been through the ordinary process of law, reviewed by the Admiralty, considered by the Judge Advocate of the Fleet, and by the Courts-Martial Appeal Court. That Court. I would remind your Lordships, is bound by the terms of the Courts-Martial (Appeals) Act 1951, Section 5 of which provides that the Court shall allow the appeal if they think that the finding of the court-martial is unreasonable or cannot be supported having regard to the evidence or involves a wrong decision on a question of law or that, on any ground, there was a miscarriage of justice … As I have said, that application for leave to appeal was argued by Sir Peter Rawlinson, and it follows that if, on this application for leave to appeal, the Courts-Martial Appeal Court had thought that there was any ground for thinking that the finding of the court-martial was unreasonable, or could not be supported having regard to the evidence, or that there was on any ground a miscarriage of justice, they would inevitably have granted leave to appeal, for no one, and no court, wants to see an innocent man wrongly convicted. But, having heard argument from Sir Peter Rawlinson, they refused it. As I said, he argued that there was no corroborative evidence. They rejected that argument. He put forward most, if not all, of the arguments we have heard in these debates. I repeat: surely it is inconceivable that the Court would have refused leave if they thought there was any valid ground for supposing that there was a miscarriage of justice. So, my Lords, the ordinary process of law was exhausted, and for the third time in debate your Lordships are being invited to say that there are grounds for supposing that there was a miscarriage of justice, and to say—because it follows from that that—the three Judges who sat on the application were wrong.

I do not intend to review in any detail to-day the evidence given in the case. I have already done that on two occasions, and I do not intend to-day to deal at all with any of the points mentioned in the latter part of the speech of the noble Lord, Lord Russell of Liverpool. A great deal of his speech was, it seemed to me, directed to minor parts. Whether or not the Prosecutor made some observation that he should not have made in the purlieus of the court seems to me to be of no significance at all. The prosecution does not decide whether a man is guilty or not. As to the performance of the Judge Advocate, I was sorry that the noble Lord repeated criticisms that have been made before, when the Courts-Martial Appeal Court went out of their way to praise the summing-up given by that Judge Advocate.

I was astonished by the firmness of the noble Lord's observations with regard to the final observation of the prosecution counsel at the close of the prosecution's speech. I must say that I see nothing improper at all in what he said. What he said was, "If you are quite sure, then the prosecution have discharged the burden of proof." I do not intend to spend time on those matters. There is, I think, a very big issue, a constitutional issue. There is no restriction, of course, on the matters your Lordships can discuss and debate, but I feel I should express my doubts as to the propriety of the course taken by the noble Lord, Lord Russell of Liverpool, now on two occasions. If, after conviction by a jury, an application to the Court of Criminal Appeal for leave to appeal was refused, I am sure your Lordships would be the first to say that it would be wrong for this House to debate upon, and to vote upon, whether the Court of Criminal Appeal have come to the right conclusion. Surely that is what the noble Lord is asking us to do to-day in relation to the Courts-Martial Appeal Court, also constituted of Judges of the High Court, for he is asking us to say that the Courts-Martial Appeal Court was wrong in refusing leave to appeal. I feel that this House, in its debating capacity, should not assume judicial functions, and it is because this Motion really invites us to do that, that I myself doubt its propriety. It is the second time that the noble and learned Lord, Lord Russell of Liverpool has asked the House to do so, and the House has twice rejected the Motion. Is it right that we should be asked to consider it again? Are we to be asked to consider it each Session? If so, that would seem to be somewhat of an abuse of the procedure of this House.

In fact far more than the ordinary process of law has been gone through in relation to this case. Two Lord Chancellors have considered it, and though they sometimes have disagreed in the past, and no doubt will disagree in the future, in approaching this matter entirely independently, never discussing it together, they have separately reached the same conclusion. Many Ministers of different Parties have considered it, and I have no doubt impartially and to the best of their ability, and have reached the same conclusion. I know that Commander Swabey and his friends have been most persistent, but persistence is no proof of innocence. No doubt many of your Lordships have been written to, as the noble and learned Lord, Lord Russell of Liverpool, has revealed, to come and support his Motion to-day. I must say I wonder how many of those who have come have read the whole of the record. The fact is that not only the Courts-Martial Appeal Court but the Ministers who have had to consider this case have reached the conclusion that there is no ground for saying there has been a miscarriage of justice. I would ask your Lordships to reject this Motion and to make it clear that this House should not be troubled with this matter again.

4.42 p.m.


My Lords, I am rather sorry that my noble and learned friend Lord Dilhorne took the line of challenging the propriety of this Motion now before your Lordships' House. I am quite sure that it is the first occasion on which such a line has been adopted, and I am equally sure that neither my noble and learned friend Lord Russell of Liverpool, nor any of us who are supporting him in this Motion, would wish to be associated with any action that contained any impropriety to your Lordships' House.

I should like to approach this matter on a rather different line from that which has been followed so far in the speeches to which we have listened. I should like to tell your Lordships how it came about that I myself became associated in this matter. It happened originally in a purely political capacity, because I happened to be the Member of Parliament for the constituency in which Commander Swabey and his mother lived. It came to me as an ordinary constituency matter, and it was brought to my notice by a very old and exceedingly respected friend who is known to many Members of your Lordships' House, Admiral of the Fleet Sir William James. He had been into this matter in some detail, and of no man can it be said that he has a greater admiration and affection for the traditions and loyalties of the Royal Navy than Admiral James. And he had come to the conclu- sion that, in the interest and the honour of the Royal Navy itself, this matter should be further inquired into.

Secondly, the case was brought to my notice by another very old friend of most of your Lordships here, of whose integrity I think we are all proud, the late Bishop George Bell. He approached the matter from an entirely different point of view, and did so from his personal knowledge of the Swabeys and his judgment of character, and his confident assurance that Commander Swabey was not a person against whom these accusations could possibly be sustained. I quite agree with the criticism that I am sure my noble and learned friends will make, that that is not evidence; on the other hand, it is some guidance to us as to whether or not the probabilities in this case are true.

That evidence was supported by that of others, including Vice-Admiral Baillie-Grohman, another of my then constituents, whose knowledge of court-martial cases in the Royal Navy is exceedingly extensive, and who himself was absolutely convinced that there had been a miscarriage of justice. In those circumstances I undertook to see what I could do to try to raise the issue.

By that time I had joined your Lordships in this House. In, I think, the usual Parliamentary fashion I did not rush into publicity in this matter, but pursued it in correspondence with the appropriate Ministers; and the line which was adopted by the then First Lord of the Admiralty was entirely in accordance with the line which we have heard from the Government to-day and from my noble and learned friend Lord Dilhorne. Circumstances, unfortunately, then arose—they had nothing to do with this particular case, and carried no disparagement to the case—which caused me to be unable to continue to take any leading part in it. Commander Swabey's friends therefore came to me and said, "Find us somebody else competent and with integrity who may be interested in seeing that right is done and justice is achieved".

I looked around your Lordships' House and my eye fell upon the noble and learned Marquess, Lord Reading, and I approached him about it. Lord Reading adopted a different line from the one I had taken; I, being a solicitor, naturally wished to see my client, to take a proof of his evidence, so to speak, and to go into the matter on a personal basis. Lord Reading, being a barrister, wished no such thing. He examined the matter purely from the paper point of view and, I think I am correct in saying, never saw Commander Swabey. However, he arrived at exactly the same conclusion as I had done, and we both believed that there had been a miscarriage of justice. He was pursuing the matter when, as your Lordships will recall, his untimely death supervened.

Then Commander Swabey's friends again turned to me and asked me to find another leader in your Lordships' House. So I looked around again, and I thought to myself "Well, the law has not done very much good so far; perhaps we had better try another tack". My eye fell upon my noble friend Lord Shackleton, and I sought to interest him in the subject. It is a remarkable thing, I think, that so many eminent people, of absolute impartiality and integrity, have been sufficiently interested in seeking justice that they have taken up this case and been to an infinite amount of trouble to inform themselves in detail about the whole of the case, reading those voluminous papers to which my noble and learned friend Lord Dilhorne has referred, and forming their own judgments and conclusions.

Lord Shackleton pursued the matter with very great vigour, very great energy and complete conviction in the justice of his cause, until the unhappy day when he went into the Government. That we must forgive him for. But it did, as one can well understand, preclude his further participation in his advocacy of this particular cause. And so it was that my noble friend Lord Russell of Liverpool came into the matter in that particular capacity, and again I would repeat the fact that that learned gentleman of impartiality and integrity has again come to exactly the same conclusion as we had—namely, that there is every probability, to put it no higher, that there has been a miscarriage of justice in this case.

That is a circumstance which I do wish to impress upon your Lordships. My noble and learned friend Lord Dilhorne has stressed the fact that every Minister who has examined this case has come to the same conclusion, namely, that there has been no miscarriage of justice. But I would stress also to your Lordships that it is inevitable, and it is no slur upon the intensity with which they have carried out their investigations and observations, that the bases from which they have sought their conclusions have all stemmed from the same source, which is the legal advice which they have received from the Naval Law Division in the Admiralty. And we all know so well that once a legal department, or in fact any lawyer, has formed a conclusion and given his advice, and that advice has been acted upon, it is exceedingly difficult and very rare indeed for them ever to feel justified in changing their opinion. Therefore, I think it is fair to put against the argument of my noble and learned friend Lord Dilhorne, that all Ministers have arrived at the same conclusion, the fact that all these impartial and independent gentlemen and noble Lords whom I have named—and they have been followed subsequently by many others, including my right reverend friend the Bishop of Chichester—have all equally, from their own independent and impartial researches, arrived at the same conclusion, but the opposite one, that at the very least there is a grave probability of a miscarriage of justice having taken place.

It is for this reason that this Motion seeks your Lordships' agreement, not, as my noble and learned friend Lord Dilhorne said, to override the Court of Criminal Appeal or the Courts-Martial Appeal Court, and not to act in a quasi-legal capacity and function as a branch of the Judiciary, but to recognise the possibility that there may well have been, on any of the many grounds which have been put forward before your Lordships to-day, a miscarriage of justice, and for that reason to set up, as your Lordships are fully entitled to do, an independent and impartial investigation to advise your Lordships, and to advise the Government, too, whether or not a miscarriage of justice has in the opinion of the investigators taken place.

There were various other comments which I had honed to lay before your Lordships, but I think it would very largely be by way of repetition of what Lord Russell of Liverpool has already said. I do not wish to detain your Lordships, still less to bore you, but I would ask your Lordships this question: what harm can be done by the acceptance of this Resolution? At the least it will respond to the hopes expressed by very senior Naval officers in determining that the Royal Navy shall not only ensure justice but shall be seen to ensure justice with regard to courts-martial, and it will remove such stain from the Royal Navy's honour as is left by all these doubts that have been put before the public time and again concerning the right and propriety and justice of this court-martial; and, upon the other hand, it will ensure that, whatever else may have happened in the past, Commander Swabey shall be satisfied that his case has received the fullest investigation and that one way or the other, whichever the decision may lie, justice will then at least have been done.

4.55 p.m.


My Lords, I think we ought to be very gratefult to the noble Lord, Lord Russell of Liverpool, for his perseverance in bringing up this very difficult case once more. He has not approached me; no one has approached me. I am totally impartial. Whether your Lordships think by the time I have got halfway through my speech that I am totally unprejudiced, remains to be seen. I do not know anything about Commander Swabey beyond what I have read in the report of last July's debate, which unfortunately I was not able to attend. Nor can I feel certain now whether he is innocent or guilty. But I have for years been a fitful student of the nature of that object of veneration called the national or public interest, in the name of which so much truth has been mislaid, so many lives embittered, and into the shadow of which the former Lieutenant-Commander strayed on that reckless evening ashore.

The union of a host of administrative officers and public servants, with an embedded line of filing cabinets, produces among its offspring a service monster which can be as relentless in its civilised way as the ancient Minotaur in the centre of its labyrinth. It is this agent of the national interest, this sub-human bureau-monster, to whose record during my own lifetime I should like to refer for a few minutes. I think that that is relevant and fair, because, after all, Commander Swabey's own record has been subjected pretty thoroughly to scrutiny during the last ten years. For all its air of rectitude and impartiality this agent will stick at almost nothing in order to avoid what is called in service vernacular "carrying back the can". This avoidance is considered to be in the public interest. In almost any line of business an agent is not expected to be magnanimous, nor is he paid to deal in sentiment. He is there for one main purpose, which is to defend and advance the interests of his employer. So it is with this bureau-monster agent. It is necessarily so, and we have got to live with it. But I think we ought to be very watchful.

I am, of course, not referring to the individuals who serve it, who are the mouthpieces of it, and who are for the most part good and true men, warmhearted and decent even as we ourselves. No, my Lords, I am only referring to the System that controls our and their public lives as part of the hierarchy of Government. In the ranks—where I served at the very bottom for a fair time and consequently had some fairly close contact with injustice, which the officers, who had never themselves been through the ranks, bless them!, did not know much about—we used to say, when some more than usually awful muddle arose, It's the System, chum." Dickens's Mr. Bumble said on one occasion that the law was "a ass." It is my opinion that, in respect of certain appeals against dismissals from the Services, the System is not so much an ass as a cad; and that if the public knew some of the things that were done in their interest they might be willing occasionally to forgo a small percentage of it.

The fact that we all believe in justice need not preclude some of us who have caught a glimpse of it from believing also in injustice, in the sense that we know that it exists, even in the unlikeliest places. And the fact that injustice has not always been widely seen to have been done makes it all the more important that we should keep a lively lookout for it.

I can recall four cases, two of which, occurring in the stress of battle where judgment is necessarily swift and harsh, I will not dwell on. I refer to General Gough in 1918 and to Admiral North in 1940, who were both refused a chance to clear their names. It is true that General Gough got an interesting semiofficial vindication, but no adequate recompense, many years later, through Mr. Lloyd George—I think it was in one of his war memoirs that 'he fully exonerated the General. But five Admirals of the Fleet failed to persuade a later First Lord of the Admiralty to allow any inquiry into the dismissal of Admiral North. But that was in war time.

The other two are the Douglas-Pennant and the Invergordon cases, the one concerning the Air Ministry and the other the Admiralty. If I may, I would remind your Lordships of them. Miss Violet Douglas-Pennant, having had her entirely voluntary resignation as first Commandant of the Women's Royal Air Force in 1918 not accepted because, as she was told, of her value to the Ministry, was quite suddenly dismissed twelve days later, because, as she was told, of her gross unpopularity. In the short interval, there had been a change of command above her. Within a year her persistence procured her an inquiry. She lost her case. The whole story makes curious reading, and many high names are involved. It must have been considered by the authorities to be of national importance that she should lose, because the telephone line between her solicitors and her counsels' chambers was tapped. This, by the way, was not in war time. No one but the System would ever have known of it, had not a civil servant put his sense of fair play before his loyalty to the national interest and sent a verbatim transcript to the solicitors. Deep waters, my Lords, and deadly! Obviously, it was sheer madness to embark upon them 47 years ago.

Then there was the case of Rear-Admiral Wilfred Tomkinson, in temporary command of the Atlantic Fleet at Invergordon in 1931, and set fair in his career for some of the highest posts in the Service. Soon after the so-called mutiny over the national pay cuts, which many of your Lordships will remember, he received the warm commendation of the First Lord of the Admiralty and of an ex First Lord, in Parliament, as well as of the First Sea Lord, by letter and in person, for the action he had taken, for his promptitude, despatch and great common sense.

If I may, I will just bring in a personal note, because one day about that time, just after Invergordon, I was talking to the Admiral's brother, whom I knew well, and I remember saying to him, much to his surprise, that I was afraid that Invergordon would mark the end of brother Wilfred's career. I was already acquainted with one of the unwritten rules of the System: the one regarding the necessity for scapegoats in the national interest. Five months later, with his battle cruisers in the West Indies, Tomkinson read, in a Press wireless, that another Rear-Admiral was coming out to relieve him. In answer to his perhaps sharpish inquiry, a letter came to the effect that he had committed a serious error of judgment in omitting to take decisive action at Invergordon when dissatisfaction had begun to show itself among the sailors; and that if the situation had been well handled, instead of being allowed to drift, the Board considered it unlikely that the outbreak would have ever occurred. During those five months there had been a change of First Lords, though not of Governments, and perhaps of one or two Sea Lords, who seem to have held an opposite view to that of their predecessors. All the subsequent efforts of Admiral of the Fleet Sir Roger Keyes, later Lord Keyes, and others, in and out of Parliament, could get Tomkinson no inquiry at all. He had been selected, a bit late, to "carry the can"; and so he carried it.

Surely, my Lords, there is something to be anxious about in these decisions and reversals. The generations pass by: the System, with all its temptations of half-hidden power, remains. I do not see how it is possible that likes and dislikes do not play their parts. I am not suggesting that the Swabey case is comparable in detail or importance with those that I have cited. Swabey was not, for instance, first highly commended and then punished. Also, he had his courtmartial—no delay about that; a boon which Admirals have begged for in vain. But it may be that his case also contains its share of clashing personalities, far enough in the background to be out of sight of a leaning-over-backwards-to-befair court-martial, if I may quote broadly from words used in the July debate.

Speaking diffidently as a civilian, albeit one who has been a lifelong lover and admirer of the Navy, I must say that they seem to have been rather a jumpy lot that night in Malta. I may be quite wrong, but I should have thought that this incident of a common bar-crawling evening by two young naval officers, even if homosexual indecency did emerge from the fumes, might have been settled by a senior officer in private, and less dramatically than by arrest and court-martial. Or is that dead against Service regulations? Worse things have surely happened at sea and been taken in the Navy's stride, without the nation being called in to be shocked.

If, as I read in one of the speeches (I think it was Lord Ampthill's speech) in the previous debate, it was considered on board that neither of the men was sober enough or (and I quote) "in a fit condition to be seen" by their superior officer that night, then I do not see how either of them could at any time be in a fit condition to be believed on the subject of the night's adventures. I am sure that I should not expect to be, after such a night. They can hardly have been in a state to tell the difference between what was termed an "offensive contact" and a soused mackerel. Yet at the court-martial Lieutenant-Commander Swabey was found innocent of the charge of being drunk on board and guilty of indecent assault. But, as I say, I speak with great diffidence about these professional matters.

The damage, my Lords, has been done. What lies at the back of it none of us really knows. But I hope that noble Lords will not think that the case is now so stale that things had better be left as they are. The natural boredom of the public with a thrice-regurgitated grievance in Parliament is what this bureaucratic monster counts upon to keep his victim out of sight and mind. I am sure that all who heard or read it were impressed by the admirably fair speech of the noble and learned Lord, the Lord Chancellor, last July, and marked especially the argument at the close—which the noble and learned Viscount, Lord Dilhorne, repeated—about the imprudence of appointing a Committee to decide whether or not the highest court that could decide the matter was wrong. Yet I cannot think that nothing further should be done. I cannot overlook the suspect record of the System, and I cannot help feeling, also, that people are still too easily knocked off their judicial balance by the exciting word "indecency", which ought to be shoved back into its proper place in the queue of not unpardonable transgressions.

My Lords, in spite of all the cogent arguments against reopening the case, I believe that an independent inquiry—and that is all that is asked for—would set many doubts at rest, and at the same time afford this ex-officer, and his unfortunate family, the prospect of at least a late sip of mercy.

5.14 p.m.


My Lords, so much has been said about this case in three debates that I find it difficult to say anything new. What do feel is that many of your Lordships are not familiar with the naval court-martial. Therefore, I think the only thing I can do is to give you a couple of my experiences in that respect, because I think that to a certain extent they bear upon this particular case. I have been three times the accused's friend, that is to say, responsible for the defence; and, of course, I sat on many courts. I am not so "up" on the subject as is Lord Russell of Liverpool, except that I do not think he has ever sat on a court.


My Lords, I am sorry to interrupt the noble Lord, but he is wrong. Of course, I have sat on courts-martial. I sat on a court-martial during the First World War.


I am sorry for the error. I should not have thought, from the noble Lord's speech. that he had done so. What I was going to say was that I should like to give my impressions, because I feel that those who are not familiar with naval courts-martial would rather have been led to believe that it is all gold lace, harsh justice, seniority and prejudice—that is what seems to have been brought out.

The particular case I want to refer to occurred in 1917, at Scapa Flow. I was then a Lieutenant-Commander gunnery officer on one of the then Fleet battleships. Two of our chief petty officers were to be court-martialled for conspiring with other ships over the question of pay; and, of course, pay has always been rather a nuisance with the Royal Navy. It was a very important case in war time, and Lord Beatty, who was then Commander-in-Chief, appointed a court-martial of twelve Post Captains and an Admiralty President, and a very senior barrister was engaged to come from London for the defence.

Two days before the court-martial commenced, the barrister who was to defend suddenly said he could not come—whether he did not like Scapa in war time, or what happened, Is do not know. At any rate, the two chief petty officers came to me and asked me to conduct the defence. This horrified me. In the first place, I have always been frightened of Admirals. I am not a legally minded chap, and so I said, "I don't really think I am suitable for this job. Surely you can get somebody else from around the Fleet". They said, "No, we should like you to do it". So I went along to my captain to ask whether he thought I should refuse. He said "Have they insisted on you?" I said they had." Well, then, "he said, "it is your duty to do it." So I got a book on law from the library, and with the aid of two accused I prepared a defence. Of course, a court-martial is always a solemn occasion; we fire an 8 a.m. gun, and all the members come on board with a naval guard and so on.

When the court had assembled and I took my seat, the Admiral President said to me, "Young man, we know you have only just come into this. If there is any help or guidance the court can give you, do not hesitate to ask." That was a good start for a lieutenant-commander, anyway. I managed to clear the court twice for members to consider the legal points that I raised from my little book on law. My two accused were delighted and thrilled, and thought that I was doing wonders; and then, of course, they were found guilty, which I am afraid they were. Then I had to call evidence as to character; and when I got up, one of the Post Captains on the court said to me, "Why haven't you called your captain?" I replied, "Well, I think that it would be rather difficult for the captain to give evidence on two of his sailors". He said, "If I were you, I would call your captain." So I called my captain. Unfortunately, he had gone back to his ship, and could not give evidence. After the court was over, this Post Captain who had asked me the question came up to me and said, "Do you know your captain would have said that they were the two best chief petty officers on the ship?" I believed I looked a little downhearted at that, but then he said, "It is quite all right, because I was able to tell the court what your captain would have said." Is there anything of seniority or prejudice in that example?

The other example I would give is from the opposite point of view, and that is when I was sitting in a court as a captain. The court assembled to court-martial a young man of about eighteen or nineteen who had struck a chief petty officer in the eye—a very serious offence against discipline, of course. When the young man was brought in, he came in between two Royal Marines and stood there. He glanced round the court with some hostility, and I felt that that was not too good a start for him. So I told the defence, "Let him have a chair, and let the two guards go back a bit". At that his whole attitude immediately changed, and he became an ordinary sailor again.

There was no doubt that he had struck the man in the eye, and there was nothing more to say about it. But at the end, when the defence had finished, we felt that the defence had not brought out a proper motive for the action; and it was very important to bring out a motive, because the punishment depended on it. So I asked the young man, "Did you have a grudge against this chief petty officer? "He replied, "No, Sir." I then asked him, "Did you know anybody in the ship who had a grudge against him?", to which he replied, "I do not think there was, sir." Then I said, "Were you happy in your ship?", and he said, "Yes, sir, quite happy." Finally. I asked him, "Well, why the hell did you do this?". He replied, "It was a fit of temper, sir"; and he said it so sincerely, so simply, that the court, in its subsequent decision on punishment, realised that it was no real lack of discipline; it was a fit of temper. So we gave him the least punishment we could, six months' detention—which should have been a year's imprisonment, I suppose. But we suspended the sentence, so that if he went another six months without doing anything wrong the matter would all be forgotten.

When I got back to my Commander-in-Chief he said to me, "This was a gross case of indiscipline, and it seems to me that you have treated the man very lightly". So I said to him, "Sir, you did not see or hear this young man, and that is the most important thing of the lot ". I then explained the case to him—and, in fact, the C.-in-C. was a man who greatly favoured suspended punishment—and he entirely agreed with me. The point I want to make is that a court-martial is not just a legal court; it is a humanitarian place which tries to help the defence. It tries, if necessary, to help the prosecution, but generally the prejudice is towards helping the defence. Those are my arguments.

With regard to this case, the point I want to make is this. The accused did not object to any of the court, so if he had any complaint it would surely be on account of prejudice. There was no error in law. The noble and learned Lord, Lord Goddard, said that the summing-up was admirable. The accused must have agreed with the line taken by the defence; at least that is my experience, for I certainly consulted my accused about that. The vital factor is seeing and hearing the evidence. That is the most vital thing of all. Unfortunately, of course, it is impossible to reconstitute a court-martial. On those grounds, and on those grounds alone, I shall certainly reject this Motion. The only inquiry which I think can be made in this case is into the integrity of four First Lords and two Lord Chancellors, so I shall vote against the Motion.

5.23 p.m.


My Lords, I hope that the fact that I spoke on the last occasion will not make your Lordships think that I ought not to speak again tonight, particularly as the noble and learned Lord the Lord Chancellor, in his very persuasive speech, referred to me by name. The second part of his speech, in which he was dealing with the legal position and in which he was advancing an argument which was advanced by the noble and learned Viscount, Lord Dilhorne, earlier on to-day, to the effect that when a decision has once been formally made by a competent court it ought to be accepted even if it is a wrong one, contained a proposition which must appeal to every lawyer. I was very much in- fluenced by it at the time, and it very nearly caused me to go into the other Division Lobby. But I did not think that he quite persuaded me, and having since read his speech more than once in Hansard, I feel that this is one of those exceptional cases—which, thank goodness, the history of English law is studded with!—when a further, so to speak, ex curricula attempt should be made to secure that justice has in fact been done.

I felt that the noble and learned Lord's argument on this part of the matter was, if he will allow me to say so, much more effective than that part of his speech in which he analysed the facts of the case. If he had persuaded me that on the facts of the case the prosecution had brought home its case against Swabey, that would have been the end of it and I should have voted with him. We must remember, of course, and I hope every noble Lord in the Chamber will remember, that it is perhaps the most fundamental proposition in the whole of English criminal law that the prosecution has to satisfy the tribunal, and to satisfy it beyond reasonable doubt, that the accused man is in fact guilty. I must say that I felt there were a number of weaknesses in the noble and learned Lord's argument, though I fully agree that it was a most persuasive one, and one which showed very considerable sympathy towards the unfortunate Swabey, which has not always been shown by others who have taken part in these debates.

I should like to refer to what I thought were some of the weaknesses in the noble and learned Lord's analysis of this position. He started off, and it was a very pertinent observation, by saying that Swabey invited the other officers on his ship to go with him to dinner in Valletta on that particular evening. Only the one sub-lieutenant accepted the invitation, and the noble and learned Lord very pertinently observed that it is most unlikely, especially in the light of the fact that they met another officer whom Swabey invited to go with them, that he had, so to speak, set out on what one might call a homosexual expedition. Of course it is quite possible that the man may have given way at a later stage, and the noble and learned Lord might have said, as has often been said, that alcohol does in fact remove sexual inhibition. It is quite clear that these two young men were going about from one public house to another over a period of something like five hours. Here, I think, is one of the points which is not sufficiently appreciated by the noble and learned Lord, and I very much agree with what was said by the noble Earl, Lord Baldwin of Bewdley.

Even if the actual charge of drunken- ness was not proved against Swabey by the court-martial, it is pretty clear that both of these men were pretty much under the influence of drink before that evening was half over. It is a very well-known fact, which is better known to the noble and learned Lord with his long experience at the Bar, that very many men who have been much under the influence of drink are really quite incapable of remembering accurately what occurred when they were in that state, but their imagination enables them to reconstruct things that have never happened at all. Everyone in this Chamber must frequently have come across cases of that kind, and I do not feel that sufficient importance has been attached—and I entirely agree with the noble Earl, Lord Baldwin of Bewdley, that a great deal of importance ought to be attached—to the fact that both of these young men were so much under the weather as regards alcohol during, at any rate, the latter part of that evening.

Two important points which were stressed by the noble and learned Lord in his speech are very much affected by this point, and one of these, at any rate, was underlined by the noble and learned Lord, Lord Russell of Liverpool. I think to some extent they explain what happened. Obviously, in the unsteady state in which he must have been long before this evening was over, Swabey may have had a good deal of physical contact with Havers. It is obvious, for example, that as the taxicab went round the bends and the corners a man in that state would naturally put his hand out to steady himself, and his hand might very well have come on the other man's knee. These things, I should have thought, leap to the eye, and obviously explain a great deal of what happened during this evening. Secondly, Havers, in his fuddled condition, could easily and quite honestly have put a mistaken construction on these incidents; and he was the more likely to have done this, as the noble and learned Lord himself pertinently observed at column 878 [Vol. 268] of Hansard, if he had known about the previous court-martial. The noble and learned Lord said: … if he did, he would expect that homosexual advances were going to be made. Now it is perfectly clear from the extracts from the proceedings at the court-martial which my noble friend Lord Shackleton read out on the first occasion—I will not bother your Lordships with them—that Havers was perfectly well aware of this. The point was put to him, why he did not object, so to speak, at an earlier stage, and he said, in effect, that he wanted to have it out with Swabey if he was in fact going to do anything of the sort. So it is obvious, I should have thought, that these officers had been talking about Swabey in the mess, and that is probably the reason why most of them refused to accept his invitation. Does it not leap to the eye that Havers had in effect said to himself, "I will go with the chap and I will stand up to him"? Then, as they have more and more drink and these physical contacts take place in the sort of way I have described. Havers comes to the conclusion that they are in fact homosexual assaults and determines that he will show him up. In such a state of mind he might very well mistake accidental physical contacts for homosexual advances.

There are two further points which arise out of this same state of drunkenness or semi-drunkenness. First of all, the case must largely have been tried on the basis of word against word, and again the noble and learned Lord emphasised this more than once in the speech to which I have referred. For example, at column 874 he said: It is therefore a case in which many things depend entirely on which of the two is telling the truth". But, again, it is very difficult for very many men to tell the truth about what happened when they were in a drunken condition. I have no doubt at all that Havers was trying to tell the truth. Indeed, it is quite impossible to believe, as the noble and learned Lord himself emphasised, that he would have committed perjury against a brother officer, with the effect of destroying his career, as a matter of intention and of deliberate perjury. His inebriation seems to me to explain his evidence perfectly well. The antithesis of his completely inventing something, as the noble and learned Lord said, seems to me to be quite a mistaken one. He was not deliberately inventing anything at all: he had just mistaken something that had happened and, fitting it in, in his fuddled mind, with his preconception about homosexuality, he very easily constructed the story.

In my submission, the fact that both these opposing witnesses, on whose evidence the whole case evidently turned, were pretty drunk made the need for corroboration all the more necessary—I should have thought absolutely essential. What was put as corroboration—the subsequent remark of Swabey about hoping that the case would not go on, and that sort of thing—was perfectly consistent with his innocence, as the noble and learned Lord, Lord Russell of Liverpool, has emphasised, if one remembers this earlier court-martial.

The Courts-Martial Appeal Court have ruled, as the noble Viscount, Lord Dilhorne, told us, that this was sufficient corroboration. I wish that they had given their reasons for so thinking, because it is a view held by many lawyers that when something is as perfectly well consistent with innocence as it is with guilt, it cannot be effective as corroboration. It may well be that as this evidence had not come out at the court-martial, the Court felt that they were not able to take this aspect of it into their consideration, and it may be that it was for that reason that they ruled that, technically, there was corroboration here.

There was, of course, one piece of completely independent evidence—the evidence of the taxi-driver—and I think that that ought to be in the minds of everybody when we go into the Division Lobby about this case. I thought, again, that the noble and learned Lord brushed off rather too easily the evidence of the taxi-driver. He said it was rather curious, because the man could not recall the two officers. Is that so strange? After all, this occurred at 11 o'clock at night, in the dark. What the man did remember, and evidently remembered perfectly clearly, was the actual incident; the fact that he had had these two officers in his taxi-cab. His evidence to the effect that nothing untoward occurred was entirely consistent with what Swabey said about his being in a somnambulent condition, and was completely consistent, as the noble and learned Lord said, with the evidence given by Swabey. So, on an analysis of the evidence as it was put before the court-martial, it seems to me that the prosecution not only failed to establish their case beyond reasonable doubt, but even failed to establish it at all.

Having said that, my Lords, I should now like to return for a minute or two to the other point—that of not pursuing matters of this kind beyond the point at which the law normally stops them. It is to the interest of the State that there should be a finish of litigation. That is a very well-known and wise maxim of the law, and it is one which, as I said at the beginning, greatly impressed me in the argument of the noble and learned Lord on the previous occasion. But it is not an absolute rule, and I think that that is the important point here. He himself quoted a case in which he had struggled—unsuccessfully, it is true—to get an exception established to this rule. He told us how he went to the Lord Chief Justice about the case of a man who he was quite satisfied had been wrongly convicted, and how he went from the Lord Chief Justice to the Home Secretary and from the Home Secretary to the Lord Chancellor of the time about it. Now why did he do all this—in effect, breaking the policy which he was advocating to your Lordships' House? Why did he do it if this rule about not taking a case beyond what is formally allowed is to be dogmatically applied?

The answer is that in certain circumstances further investigation can be held. The Home Secretary has powers, within certain limits, to order a new inquiry; and it was because Mr. Gerald Gardiner knew about this that he was trying to work on the Home Secretary in order to get such an inquiry so that that justice, which he knew had not been done, might in the end be done. Indeed, we have just been witnessing, the whole country has been witnessing, the rehearing of a murder case, the original trial of which was perfectly normally conducted, and in which an appeal to the Court of Criminal Appeal was dismissed. We have been paying very close attention to the Evans case over the last months; and why?— because there was a very profound feeling in the country that there had been a miscarriage of justice. Therefore, the case did not stop within the ordinary formal rules but has gone to a new investigation. That is all that we are being asked for here.

Of course, the Evans trial is not peculiar. Some of the earlier cases have been even more important. There was the famous case of Adolph Beck, in which a number of mistakes were made: the man was in prison for years but was afterwards released. Mistakes have been made, and it was these that led to the passing of an Act of Parliament setting up the Court of Criminal Appeal. There was the case of Steinie Morrison. The noble Earl, Lord Baldwin of Bewdley, produced a number of cases—not legal cases—in which mistakes have been made: great citizens of the State have been unjustly treated. Therefore, while it is a wise general rule that these cases should not be pursued beyond the normal limits which the law allows, every now and then one finds a case in which it is fairly obvious that something has gone wrong in the ordinary way of justice. And this is the case in which Parliament itself not only is entitled to intervene but has a duty to intervene, in order to see that justice is secured.

Incidentally, the point has been made that influential people have intervened on behalf of Swabey and that it would be unfair to the generality of convicted persons, who are not so well placed, that he should be given some special advantage. Surely, my Lords, this is a mistaken view. Surely the only test is whether there is grave doubt as to whether a miscarriage of justice has taken place. Mr. Gerald Gardiner, Q.C., when he put his services so generously at the disposal of this man who was wrongly convicted, did not refrain from doing so because he thought that other people were not going to have a similar advantage. All he could see was that an injustice had been clone which he wanted to put right. That is what the noble Lord, Lord Russell of Liverpool, has seen. He has reason to fear that a grave injustice has been done, and he thinks that it ought to be put right.

In conclusion, I ask your Lordships to remember that the appeal to the Courts-Martial Appeal Court, which was emphasised so much by the noble Lord, Lord Winterbottom, and again by the noble and learned Viscount, Lord Dilhorne, is an appeal only of a very limited character. The noble and learned Viscount, Lord Dilhorne, read out the sort of conditions which the Court is entitled to take into consideration. It is not entitled to hear and see the witnesses; the proceedings are not in the nature of a re-hearing; the Court is concerned only with whether the formalities have been properly carried out, whether evidence has been wrongly received, whether some mistake has been made in the conduct of the trial and matters of that kind.

If Swabey had been tried by an ordinary bench of magistrates, he could have appealed to quarter sessions and the case would have been heard all over again, with all the witnesses summoned and the court able to see them. But Lord Goddard and his fellow Judges did not see any of the witnesses; they could not; they were concerned only to see whether the court-martial trial had been effectively carried out. That is not a real appeal, in the sense that the matter can be effectively gone into again. Without such an effective re-investigation of the case it is not really possible to see that justice has been done. That is what we are asking for—not that this House should try this case again, but that this House should insist that a proper inquiry be made, in order that justice may be done and may be seen to have been done. The result may be that the decision will be upheld; it may be that the decision was wrong. We await with confidence the result of this Vote and of that decision.

5.47 p.m.


My Lords, may I say at once that I have read all the papers connected with this case, and may I also say at once that I agree with every word of the speeches of the noble and learned Viscount, Lord Dilhorne, and the noble and gallant Admiral of the Fleet Lord Fraser of North Cape. I wish to speak very briefly and as a Naval Officer, not, of course, as an expert in law which I am not.

As your Lordships know, this is the third time that this case has been to this House. It has been to no fewer than four First Lords of the Admiralty and their advisers, it has been to the Lord Chief Justice of England, and it has been closely examined by two Lord Chancellors. On every occasion, and by all those who are best qualified to judge, it has been turned down. It has been argued by Mr. Swabey's advisers and supporters that his case was prejudiced since there was no preliminary investigation. While I agree that part of the procedure before the trial left something to be desired, it has been shown that Mr. Swabey received the cirsumstantial letter and the summary of evidence and so on in plenty of time for his trial. In my view the trial was in no way prejudiced in this respect.

It has been argued, as was pointed out to-night by the noble and gallant Admiral, Lord Fraser of North Cape, that the members of the court themselves were prejudiced; yet, when given the opportunity at the beginning of his trial, Mr. Swabey objected to none of them. I do not intend to go through all the points of the case again; it has been done by others more competent than I. I think I need only say now, with great respect, that if one has doubts about the case all one needs is to read, or re-read, the speech of the noble and learned Lord the Lord Chancellor at the end of the debate last July. There it is all set down clearly and as fairly as it is humanly possible to be.

I know that not long ago a few distinguished and very senior Flag Officers wrote to the Press supporting Mr. Swabey's plea for another inquiry. I know that Admirals are nearly always right, but they are still, thank goodness!, human beings, and not all of them are right all of the time. I think it is very important to remember that there probably are—indeed, I know there are—other distinguished Flag Officers who have not written to the Press and who hold the contrary view. A few moments ago I said that I was no expert on legal matters; that is very true. But during my time on the Active List I served, like other noble Lords, on many courts-martial and I was president of not a few. Since I retired I have been a magistrate for ten years. With that experience behind me, I have learned what a very fair trial is given by naval courts-martial. They are scrupulously fair. And I have also learned, which is common knowledge of course, that it is very dangerous to dispute a verdict unless one was at the trial and heard all the witnesses as they gave their evidence.

My Lords, I believe that Mr. Swabey and his advisers are most unwise to continue to pursue this matter. If they had left it as it was at the end of the trial ten years ago it would have been forgotten long ago, and Mr. Swabey, certainly, and the Navy, probably, would have been much better off. By bringing it up now they are only keeping alive what must he a very unhappy memory for Mr. Swabey, and they are, at least, tending to damage the Admiralty's high reputation. My Lords, I cannot agree that an independent Commission should be set up to inquire into this case again.

5.52 p.m.


My Lords, I want to say only a word or two on a topic which is on the fringe of this debate. As I understand it, what Commander Swabey is hoping for, if things go well for him from now on, is something which is called a free pardon under the Royal Prerogative. The effect of it will not be a pardon, in the sense in which we understand that term in ordinary language nowadays. The effect of a free pardon is very well stated in five lines by Sir Frank Newsam, for many years Permanent Under-Secretary of State at the Home Office, in his book entitled The Home Office. He says: A free pardon wipes out not only the sentence or penalty, but the conviction and all its consequences, and from the time it is granted places the person pardoned in exactly the same position as if he had never been convicted. I submit that that does not sound very much like a pardon, in the sense in which we use that term in ordinary language nowadays.

I believe that this term has come down to us from our ancestors, because before the beginning of the 19th century the conception of a miscarriage of justice and of the fallibility of the court was something which could not be openly admitted. It was too precious, in the eyes of our ancestors, to maintain that the courts were completely infallible, and therefore it was convenient for them, when they were in their hearts satisfied that a miscarriage of justice had taken place, to compensate the victim by giving him what was called a free pardon; which was some sort of compensation to him without undermining the good reputation of the courts.

We have now got past that conception. We now admit that the courts are fallible, just as human beings in every other walk of life are fallible. And for this reason I should have thought, that the time has come when this quaint expression of a free pardon, which is used to denote something which is total exoneration, could be abolished. The present Administration has shown its anxiety to modernise the law, to reform it and make it comprehensible to the ordinary man. I suggest that you do not make it comprehensible to the ordinary man if you take a victim of a miscarriage of justice and say that you have granted him a pardon. What the ordinary man will think has happened is that the man has committed an offence and, for some reason, has been let off. If you wish to make it known that you are exonerating him, and finally acquitting him totally of the offence with which he was originally charged, you cannot do it by using this quaint old expression "free pardon"; and I hope that we shall very soon have seen the last of it.

5.55 p.m.


My Lords, I shall not detain the House for more than three minutes. I should like to say that I entirely agree with the noble Lord, Lord Ashbourne, about the fairness and the impartiality of the naval courts-martial. I do not want to deal with the charges on which Mr. Swabey was found guilty. But there are certain aspects of this case which have disturbed me. Mr. Swabey was tried by court-martial and found guilty. He went to the Courts-Martial Appeal Court which agreed with the decision of the court-martial. Minister after Minister has investigated this case over ten years, and they have supported the findings of both courts. This is the third time the case has been before the House of Lords, and on the two previous occasions your Lordships endorsed the findings of the court-martial. Now we are being asked for an independent inquiry. What further can be accomplished by an inquiry, after ten years, I cannot understand.

The issue I would raise, and I may be creating a discordant note in your Lord ships' House, is this. I wish to ask, would this case have had such an inquiry in the House of Lords if this man had not had influential friends and been an officer? Could an ordinary able seaman, or a petty officer, have had such access to the House of Lords as this officer has had, after being found guilty by his fellow officers in a court-martial? Many cases are heard under naval regulations every year which never reach the House of Lords. The procedure is gone through and the verdicts are accepted.

I wish to put it to your Lordships: are we now to have a class position, and deal with offences under naval law in one way for officers, if they have friends who can state their case in the House of Lords, and in another way if the person concerned is from the lower deck; that if you are on the lower deck you take your medicine, because you have no influential friends to raise your case in the House of Lords? To me this is the big problem which has arisen out of this case. I consider that the case now before us for the third time is a real abuse of the procedure of the House of Lords. I shall vote against the Motion, because I believe that if it were carried, seamen on the lower deck would say that if you are an officer there is one law for you, and if you are from the lower deck, you accept what is coming to you.

I think the time has come—I say this both to my own Front Bench and to the Opposition Front Bench—when this case ought no longer to be allowed to come before your Lordships' House, because I think that it has received terrific ventilation. Every avenue has been explored on this man's behalf in your Lordships' House, and I believe that the time has come when we have to say to those who support it that it has been fairly tried. Minister after Minister has investigated it, and the time has now come when the case ought to rest and be finished with. I hope that to-night the message will go from this House to the lads in the Navy that the law for the Navy is for all ranks, and that there is not something for officers and something different for the lower deck. I shall support the Government to-night if they oppose this Motion.

5.59 p.m.


My Lords, I rise briefly to support the opposition to this Motion, and particularly to express my wholehearted agreement and support of the speeches of the two gallant Admirals with which our debate has been enriched: the fascinating speech of the noble and gallant Lord, Lord Fraser of North Cape, and the admirable speech just delivered by my noble friend Lord Ashbourne. The only reason why I intervene is that, like a few of those present, and in common with the noble and learned Lord on the Woolsack, who will conclude the debate, I spent a whole weekend some time ago in reading the entire voluminous proceedings in this case.

Let me explain how that came about. I was present at the first debate when this matter was raised, a debate opened—and I thought most persuasively opened—by the noble Lord, Lord Shackleton. I listened carefully to every word on both sides on that occasion, and I then voted against Lord Shackleton's Motion. I do not pretend that there were not things said in the course of that debate which troubled me and made me wonder whether perhaps further investigation was needed; but on the whole I was convinced, even on that occasion, by the points raised for the opposition. Then my noble and learned friend Lord Dilhorne, when it seemed likely that the matter was again going to be raised in this House, asked me whether I would read the whole of the proceedings, and if I came to any conclusion, would express that conclusion in the debate that was then expected. That debate did not occur.

On the second occasion when the matter was raised I was unable to be present. Now, of course, my recollection of all those papers is not as good as it was on the morrow of my having read them. But I can say quite clearly what were my conclusions. My first conclusion was that I had not then (and I have not now) the slightest idea what I should have decided, had I been a member of that court-martial: because, of course, I had not seen the witnesses, noted their demeanour, heard their examination in chief and cross-examination, or had any of the other advantages of a trial which enables a court to come to a conclusion on the facts. Secondly I came to the conclusion that there was no criticism that I could find which could be offered against the conduct of the trial, and nothing to make me doubt that the members of the court had behaved responsibly and done their best, realising that the whole career and future of a fellow officer was involved.

My third conclusion was that you could not possibly find that there had been a miscarriage of justice without forming a conclusion most adverse to the honour of a fellow officer who was the principal witness against the accused. I give this as an example of the difficulty in which everybody is placed. All know perfectly well that, where there is a conflict of evidence, the court often has to decide who is telling the truth and where justice lies. The only thing that any sort of appellate tribunal could decide was whether there had been something wrong with the trial; whether the members of the court had misdirected or misconducted themselves in any way. In the moving and fascinating account which we had from the noble and gallant Lord, Lord Fraser of North Cape, he gave a description of the attitude of a naval court-martial, which I am bound to say coincides entirely with the impression that I have always derived from my naval friends who have given me their impressions and their experiences in naval courts-martial.

Various noble Lords have taken the view that, if there has been a miscarriage of justice, we should take every step we can to remedy it. Of course, that is true. But we cannot go on to assume that there has been a miscarriage of justice if the court has proceeded in a way with which we cannot find any fault. While I pay tribute to all my noble friends who on this and other occasions have taken the opposite view to that which I am now putting forward (I do not for one moment doubt their humanity), I doubt the wisdom of their action and the advisability of this House reviewing legal decisions on non-legal grounds. It seems to me that there would be no end to it.

Nor, quite frankly, do I understand why this matter comes before this House for a third time. I could understand and have sympathy with the noble Lord, Lord Shackleton, when he brought the matter before this House for the first time, although on that occasion, for reasons which I then thought were right, and which were confirmed when I read the full proceedings, I voted against his Motion. But I cannot see that the mere fact that the majority decision of this House was a small one was a ground for raising it again. But it was raised again, and again it was decided—


My Lords, I am sorry to interrupt the noble Lord, but I made it perfectly clear that the size of the majority had nothing whatever to do with my raising it a second time. I said that, even though it was a small majority, "a miss is as good as a mile"; and that that principle works both ways. I then gave, as the noble Lord will have heard, if he was listening, my real reasons for raising the matter a third time.


I am sorry if I misunderstood the noble Lord. When he mentioned the size of the majority, I imagined that he thought it relevant.


I specifically said that it was not relevant, and that it was not my reason for raising the matter again.


I heard the point, and perhaps I missed the disclaimer. I fully accept that the noble Lord now thinks it is completely irrelevant. But if it is so completely irrelevant, then I do not see at what point this series of appeals to this House is to cease. While I am wholly in favour of action taken in either House of Parliament to remedy a situation when it is thought that there has been a miscarriage of justice, or that some personal rights have been injured—I have had experience of this both in another place and here—I am not in favour of trying to use either House to re-try a case, or to set up some tribunal to re-try a case, when it has been tried already and where we can find no fault in the procedure that has been adopted.

There is also the point of the futility of what is now proposed. How could a body set up now possibly decide whether there has been a miscarriage of justice, if by that is meant investigating all the facts afresh? The evidence is not available. If it means merely considering whether the various courts have done their job in a proper way, then I say that such an inquiry is wholly unneces- sary, because we have the Courts-Martial Appeal Court, and the conclusions of successive Lord Chancellors and First Lords; and, whatever opinion we may have of them as statesmen and politicians, we all credit them with common humanity and a desire to do justice. I cannot believe that it is either in the interests of this House, or in the interests of any of the persons concerned that this matter should be repeatedly raised in this way. If this Motion is pressed to a Division, Is shall confidently vote against it.

6.12 p.m.


My Lords, I had decided not to speak at all in this debate, not because I have changed in any way the views I had formed on the Swabey case, but because your Lordships had twice rejected the case which had been put forward on behalf of Lieutenant-Commander Swabey, though by small majorities. I felt, therefore, that I was precluded from taking up any further time of the House. But the matter having been raised, I feel I must intervene for a very few moments just to say this.

Having heard all the legal arguments on the various occasions when your Lordships have discussed this matter, and having been with the noble Lord, Lord Russell of Liverpool, and the noble Viscount, Lord Brentford, on a deputation to Mr. Mayhew, I still remain convinced (like, I may say, a considerable number of very distinguished naval officers in that Service, Sir William James, Captain Augustus Agar and many others) that Lieutenant-Commander Swabey, whether he committed an offence or not, on the evidence available ought not to be convicted. That I would say, with great deference to the noble Lord, Lord Ashbourne, is what worries us. It worries us to feel how doubtful are the issues which are raised in this case, perhaps more than in others of the same kind.

What the noble Lord, Lord Winter-bottom, said in his very moderate and thoughtful speech has not, for me at any rate, altered the view I had formed. There were certain plain facts in this case which still remain and which still influence, at any rate, my own judgment. The noble Lord did not dispute—at least I did not think he disputed—the fact that there was no preliminary investigation in this case at which Lieutenant-Commander Swabey could, if he had wished, have questioned the witnesses for the prosecution. That, I understand, is the usual practice in the Navy, as in the other Armed Services of the Crown. But that particular practice was omitted here, and I believe that that put him at considerable disadvantage.

Then there was the second fact. There was no evidence against him at all, except that of a junior naval officer, who was himself admittedly considerably worse for drink at the time of the incident with which the case was concerned, and whose mind was almost certainly pre-conditioned by gossip and an earlier case in which Lieutenant-Commander Swabey had been acquitted without a stain on his character. The noble Viscount, Lord Dilhorne, said that there was other corroborative evidence. But when I challenged him he could produce none.


My Lords, that it not the case. I could have lengthened my speech a great deal by dealing with the evidence which could count to corroboration. I had done it on a previous occasion. It is in Hansard, and I do not think the noble Marquess would really want me to repeat it all over again. I will say to him, as he has given way to me, that there was ample evidence which the court-martial could treat as corroborative, and that the Courts-Martial Appeal Court found to be the case.


Could have found as corroborative—not was definitely corroborative. I am going to deal with this point.


If the noble Marquess would give way to me again, I would say that the Courts-Martial Appeal Court cannot express a view as to whether or not a court-martial ought to have accepted certain evidence. All they can say, when this kind of point is taken, is that there was evidence which, accepted by the court-martial, would count to corroboration.


. I am going to deal with this point and I hope I shall be able to satisfy the noble Viscount. The young officer's evidence, on which the prosecution alone relied, was not borne out, as has been said by Lord Chorley and others, by the driver of the taxi, who was expected, I think, to be the main witness for the prosecution, but who had in effect to be jettisoned because he had heard nothing at all to confirm the statement of the young officer, although he was sitting within two or three feet of those two officers. To me, at any rate, it is inconceivable that a man who was sitting as near as that could have heard nothing at all of what was said to be a violent brawl in his taxi. To my mind, that diminishes the force of the whole evidence of Sub-Lieutenant Havers.

I do not for one moment suggest, as I think some noble Lords have said this afternoon, that that means that I think Sub-Lieutenant Havers deliberately lied. I am quite certain he did not. But what is equally true is that there is no doubt that Sub-Lieutenant Havers was in a highly excitable condition during the ride back, and I think it is very likely that he may have exaggerated something which was entirely harmless into something which, because of his foreknowledge, appeared to him to be of a homosexual nature.

Now I come to what I think was the corroborative evidence to which the noble Viscount, Lord Dilhorne, was referring. Nor am I impressed by the argument to which the prosecution seemed to attach so much importance, that Lieutenant-Commander Swabey's agitation was a sign of guilt. The Courts-Martial Appeal Court, if I remember aright—and he will correct me if I am wrong—took the view that if the court-martial regarded Commander Swabey's agitation as a sign of guilt, they were entitled to do so.


My Lords, the noble Marquess asked me to interrupt. My recollection is that that is not entirely accurate. It was not just his agitation—it was the whole of his conduct.


Certainly his agitation was the chief factor. I read all the evidence.


I would not say that it was only his agitation. Some significance was to be attached to what he said, and to what he did not say.


A great case was made, and by the noble Viscount himself, of the agitation which Lieutenant-Commander Swabey showed. Of course, the Courts-Martial Appeal Court were perfectly entitled to say what they did, but I think we are equally entitled to take a different view and to think that the agitation shown by Lieutenant-Commander Swabey was compatible with innocence. Surely, any one of us sitting here in this House this afternoon, and placed in the hideous position in which Lieutenant-Commander Swabey was put, would show signs of the most violent agitation, even if we were completely innocent. I do not believe that anybody would have shown calm British phlegm in such circumstances as that. I repeat that I do not know whether Lieutenant-Commander Swabey was innocent. I do not think any of us can know. But I do not believe he should have been convicted, and I hold the view most strongly that he should, at any rate, have the right which I think any Englishman in such circumstances should have: the right of appeal.

I still cannot understand why that right was not conceded where a man's whole professional life was at stake. The only reason we are asking for this inquiry is that there was no right of appeal. If he had had the right of appeal and the case had been tried, this situation would never have arisen. Nor, my Lords—and this point has been raised by many speakers in the debate—nor can I accept the argument that a matter which has already been before the courts precludes it from being raised here. We are proud, and justly proud, of being the highest Court in this country, and I certainly think it is our duty to protect British justice.

I do not know what view your Lordships will take, but if we were to take the view that there had been what amounted to a miscarriage of justice, then I think it would be our right and our duty to say so. I believe there are real grounds, in the interests of the Royal Navy itself, for a further inquiry. In the words used by the noble Earl, Lord Baldwin of Bewdley, it would set many doubts at rest, and I still appeal to the Government to think again and to accept that course, which I am sure is in accordance with all the rights of justice. After all, there is a very old saying about justice, that not only must it be done but it must be seen to be done. In the minds of very large numbers of people in this country, in this case it has not been seen to be done, and I think an inquiry should be set up to set their doubts at rest.

6.23 p.m.


My Lords, may I say one word before the noble and learned Lord the Lord Chancellor replies, as I was absent on the two previous occasions on which this case was debated? I was not in fact the first First Lord to look at this—it was the noble Lord, Lord Cilcennin, who was followed by the noble Viscount, Lord Hailsham, now Mr. Quintin Hogg—but I looked at it in the spring of 1957. Of course, in those days I did not know that it would be examined three times by the House of Lords, by two future Lord Chancellors or by four of my successors in office; but one thing which stood out, and struck me at that time, was that there was no case which received more attention than this case did at that time. The reason is the same, I think, as the main theme which has gone through to-day's debate. It was an extremely sad case for the reason that the offence at its worst was absolutely minimal and the punishment, no matter how minimal the offence, was inevitable. Those were factors which I think would make anybody look at the case with the utmost care; and I believe it has been looked at ever since with the utmost care for that very reason.

6.25 p.m.


My Lords, I think that since we last discussed this case no new material fact has been discovered, and therefore there is not a great deal more I can do this evening than in substance to repeat what I said last year. But, of course, it would not be courteous not to reply to the observations made by noble Lords to-day.

If I may take first a point which is perhaps a little way away from the main question we are discussing, and is a point which was raised in the last debate by the noble Lord, Lord Airedale, I should like to say something about the expression "Free pardon". I do not think that on the last occasion I gave him a very coherent reply. I think the answer is that although to-day it is quite true that in ordinary parlance "pardoning" means "forgiving", the use of the expression "Free pardon" is very old and does not mean that at all. It operates on the conviction and not on the convicted person. It is intended to wipe out and remove his conviction. The form it takes is this (omitting the formal parts): and to grant him our free pardon in respect of the said conviction, thereby pardoning, remitting and releasing unto him all pains, penalties and punishments. The word "free" is used to show that the pardon is not conditional. But I agree that, although this old use of the word has always been followed, it is not very apt, perhaps, to describe what most people understand by it; and my right honourable friend the Home Secretary is considering whether some alternative phrase might not be used. I think there is some difficulty in deciding what exactly the phrase ought to be, and it may be the noble Lord would be good enough to convey to my right honourable friend any view which he has on that point.

The noble Viscount, Lord Brentford, said that a number of distinguished Naval officers were convinced that Commander Swabey was not a man who would have done this, but, if I may say so, this is fairly common form in matters of this kind. As noble Lords who heard me express views on the Bill introduced by the noble Earl, Lord Arran, will remember, I am the last person to have any anti-homosexual bias. I have always felt sorry for homosexuals and thought that society treats them too toughly. But when a man is convicted of a homosexual offence it is quite common form to have witnesses called as to character who say, "I worked alongside him for two or three years. I never had the slightest idea he was homosexual. I never thought he would do a thing like this, and apart from this isolated occasion he is a very good chap". It is not something which is always apparent, even to those who know a man well.

I do not know that I had better follow the noble Earl, Lord Baldwin of Bewdley, in what he said about the system. There may well be in official quarters a tendency, once you take a view, to go on taking it thereafter, but of course Ministers are there to control officials and it is the fact, as the noble Earl, Lord Selkirk, said, that this case has been quite independently considered, first, as I think he said, by the noble Lord, Lord Cilcennin, then Mr. J. P. L. Thomas, First Lord from 1951 on, I think; then by the noble Earl, Lord Selkirk; then by the noble Earl, Lord Jellicoe, and then by the noble Lord, Lord Carrington—these, after all, are men we all know—and, finally, by the noble and learned Viscount, Lord Dilhorne.

Mr. Mayhew told me that he had heard this was a troublesome sort of thing and he said to his officials, "Now I do not want to hear anything about the case at all until I have read the transcript". And that is what I did myself. I would hope the House would believe that all those of us who have read the transcript in that way have done our best to apply our minds dispassionately to it and not caring about what any previous person has thought. I came new to it. Why should I care two hoots what a previous Conservative Administration had done? My noble friend Lord Shackleton raised the question originally, and if I had found some point which the noble and learned Viscount, Lord Dilhorne, had missed I could have said "Well, here you are. This was raised from the Opposition and you never get justice under a Conservative Government. This is a very bad case. Now you are going to get justice under a Labour Government". But we all have to act honestly, and I really could not say, having read the transcript, that I thought that any case had been made out.

The noble Earl, Lord Baldwin of Bewdley, also said that both the officers had had too much to drink to be believed. A good many observations have been made by noble Lords during the course of the debate, if I may say so, perhaps under this misapprehension. I can well understand noble and gallant Admirals feeling that if you read a transcript you are quite entitled to make up your own mind as to whether, if you had been there, you would have convicted or acquitted, but appellate courts, with their experience, know only too well how disastrous it is to re-try a case on the transcript. It was for the court-martial to decide whether either of these officers had drunk too much to be able to remember.

The defending officer, who was a much more experienced man than either the Judge Advocate or the prosecuting officer (he had been a Judge Advocate himself), had now left the Navy and was in practice as a barrister in Malta and much in demand in court-martial cases because of his no doubt justified reputation for getting people off. He had much more experience than the prosecuting officer or Judge Advocate. He subjected Lieutenant Havers to very searching cross-examination without getting anywhere at all, because this young man was perfectly clear in his recollection. But we all know, from reading a transcript of a case in which one has been, how a man may say something which seems from the transcript perfectly natural, though everybody in the court knew that he was not telling the truth; and you may have the opposite—something in the transcript which does not sound very likely and yet everybody who was in court saw that he was obviously an honest man and telling the truth. It was for them to say. Nobody could tell from the transcript whether or not whatever quantity these men had had to drink had affected their memory.

I should like to join in the tribute paid to courts-martial by the noble Lord, Lord Fraser of North Cape. My experience of courts-martial is infinitesimal compared with his, but I think it is the experience of all those who have taken part in them that they are extremely fair tribunals, having no wish to convict a brother officer if they can help it. The noble Marquess, Lord Salisbury, was entitled, having read the transcript, to take the view that if he had been there he would not have convicted. But, of course, this is really the point that I have ventured to make just now.

As to corroboration, I do not suppose your Lordships will want me to go all over again what I said last time as to the law as expressed by the Courts-Martial Appeal Court. All that Court had to decide was whether the conduct was capable of amounting, in law, to corroboration. It was for the courts-martial to decide on the facts whether it did. Apart from anything else, it was said here that he was trying to get the thing hushed up, and going around saying, Need it go any further?", which on the face of it is not the sort of conduct one would expect from an innocent man. As to the taxi-driver, the noble Marquess said that the taxi-driver did not appear to have heard this violent brawl. If I may say so, things get somewhat exaggerated. In the words of the noble Lord, Lord Russell of Liverpool, there was fighting and shouting; now it has become a violent brawl. The only evidence at all of anything active happening in the taxi was from Sub-Lieutenant Havers, because the taxi-driver said that he did not hear anything and Commander Swabey said that nothing happened at all. If one is going to call it a violent brawl, that must be drawn from the evidence of the sub-lieutenant. Nobody else said that anything happened.


May I interrupt the noble and learned Lord? Am I not right in saying that the taxi-driver was called as a witness for the prosecution, and that they then dropped him?


He was called as a witness for the prosecution. It is ordinarily the business of the prosecution to call all the relevant witnesses. As between the prosecution calling a witness and an accused having to call him, it is of great advantage to have him called by the prosecution, because if the defence call him they cannot cross-examine him; they are bound to accept what he says.

What actually happened in the taxi—I should not have thought it amounted to a violent brawl—was this. And I quote from the evidence of Havers: Will you tell the court what happened in the taxi?—Lieutenant-Commander Swabey was talking, making perfectly ordinary conversation, but he was sitting very close to me and his knee was rubbing up and down against mine. What did you do?—I moved away, and then later, just before we reached the ship, he put his hand on my leg and moved it up and down in a stroking movement. Which side of the taxi were you sitting?—On the left-hand side. In the back?—Yes, Sir. Therefore, which hand did he use?—His left I should say. Will you try and demonstrate to the court exactly what he did with his left hand? [The witness sat down and moved his hand up and down along the top part and underneath the top part of his thigh.] What did you do as a result of that?—I hit him, Sir. Will you again sit down in that chair and describe how you hit him?—He was sat on my right and I swung my left fist at his face. [The witness was seated and swung his left fist across his body at face level.] What did he do?—He gave a grunt and removed his hand. Did you say anything at this time?—I then said You're a homosexual and been pestering me all the evening and I shall tell my first lieutenant. And then he added that in front of "homosexual" he had inserted a nautical adjective. You may call that "fighting and shouting", or "a violent brawl". But first of all as to sound, whether, if you slap a man's face in traffic, a taxi driver would hear it or not I do not know, but if it is a blow like that it does not make a noise.


In view of what the noble and learned Lord the Lord Chancellor has said, I withdraw the words "violent brawl". But I still think that a man two feet away would notice a man slapping another furiously in the face.


They are not slapping each other, and there is nothing about" furiously". Havers hit Swabey with his fist and called him a homosexual. He does not say that he was shouting. Commander Swabey' evidence was that— Nothing of this kind ever happened at all. I was asleep in the taxi all the time. I never touched him at all. He never said anything to me. He never struck me. He made no allegation against me at all until we got on to the ship". That brings me to another point which the noble Lord, Lord Chorley, and others raised, about the prospects of Sub-Lieutenant Havers having misconstrued something which happened. Surely if that is the measure of the dispute between them how can it be a question of misunderstanding? You cannot imagine that you hit somebody in the face and call him a homosexual without anything of the kind happening at all. If it did happen, Commander Swabey must be telling lies when he says: This is a deliberate complete invention. I was asleep. I never touched him. He never spoke to me. He never hit me. He never made any allegation against me. Somebody in this case is lying. I have felt throughout that it is not quite right to regard the case as one in which the only person's reputation at issue is Commander Swabey's. I am not an expert in ethics, but I wonder whether it is more wrong, or worse, to do, if he did it, what Commander Swabey is alleged to have done—as trivial an indecent assault, if it was one, as can be imagined—or to invent a wicked charge against a brother officer and then commit perjury in support of it. There was no reason why he should. I can well understand that in a small ship men sometimes get up against one another. "A" might think that he has a genuine grudge against "B", and because he cannot clear that may feel justified in alleging something against him. This cannot be a case of that kind at all. Sub-Lieutenant Havers had never seen Commander Swabey before; he could have no possible grudge against him of any kind.

The noble Lord, Lord Chorley, said that the taxi-cab might have gone round a bend and that that might have thrown Commander Swabey against the sublieutenant. This is just the sort of point which I have no doubt Mr. Grech, a very able counsel, took. But who would know best about how a taxi-driver in Malta drives—one of your Lordships sitting here to-night, or naval officers in Malta? This is the very reason why you cannot have a fairer tribunal than a court-martial, because the members are people who know all the local circumstances.

The noble Lord, Lord Chorley, was wrong in saying that Havers had heard about the previous court-martial. There is no evidence of that at all anywhere. Seven and half years later, a Mr. Harvey made an affidavit in which he said that he had lunch in the mess on the ship that day, and that he thought there was something about the atmosphere: I recall a distinct impression that there was an uneasy atmosphere in respect of Lieutenant Commander Swabey's appointment, and I assumed"— this is seven and half years later— that this had arisen on account of his previous court-martial, which was mentioned in the wardroom on the 'Redoubt'. I repeat, this is seven and half years after the event.


My Lords, on the first debate may I direct the attention of the noble and learned Lord to Hansard where Lord Shackleton says that Lieutenant Havers was asked why he did not leave Lieutenant-Commander Swabey's company at the beginning of the evening, when he alleged that these homosexual advances began. He said: 'I was not prepared to do that, because if he was a homosexual, I was going to tell him so, and if he was a homosexual who had intentions towards me, I was not going to either compromise and say that his intentions were unwelcome or to accuse him of being a homosexual'."—[OFFICIAL REPORT, Vol. 247, col. 1052; 19/3/63.] It seems to me that it is quite impossible to say that he had not got this knowledge, in the light of what he said in answer to that question.


No; that is not so at all. I do not know whether the noble Lord has ever read the transcript. There is rather a difference, I suggest, between noble Lords who have spent hours reading this transcript, many of them more than once, and noble Lords who have not had that advantage. What the noble Lord is referring to is a passage in the cross-examination of Sub-Lieutenant Havers when he said that when these practices started—practices to which he had already referred—he was suspicious that he was a homosexual, but he never suggested for a moment that he knew anything at all about the previous court-martial.

The only point in the whole case which has ever troubled me, as I said before, is whether, if the court-martial had known about the previous proceedings, they might not have thought differently about, for example, Commander Swabey's subsequent conduct. But the difficulty is that friends of Commander Swabey have always tried to run two lines. Before the Courts-Martial Appeal Court, and in their Petition of Appeal, their great complaint was that the court-martial had known about the previous court-martial. As to that, the court said that there was no evidence about that, and of course there was not. They were invited to say that, because of rumours of one thing or another, the court-martial must have known about the previous case. Only after the proceedings before the Courts-Martial Appeal Court and here in your Lordships' House have they sought to run the opposite case. They have said that Commander Swabey was prejudiced because the court-martial did not know about the previous court-martial; and they have said, that if they had known about the previous court-martial then they would have taken a different view of his subsequent conduct, because they would have realised that somebody who had been court-martialled before naturally would be nervous and upset if there was a prospect of his being court-martialled for the same thing again. But, as it seems to me, they cannot have it both ways, and say both that he was prejudiced because the court-martial did know about the previous case, and, secondly, that he was prejudiced because they did not know about his previous case.

Whether they were to know or not was, in any event, entirely a matter for the defence. The prosecution of course would not have been allowed to refer to it at all. The defence could have referred to it if they had thought that, on balance, it would be to their advantage to do so. I said last year that I thought it was open to question whether the experienced barrister who was defending him was right or not right in not saying, frankly, that there had previously been a court-martial at which he was entirely acquitted, and it was because of the previous court-martial that he was upset on this occasion; and it might be that if Sub-Lieutenant Havers had known about the previous court-martial he might have misconstrued something which was done. But this was entirely for the defence counsel to decide and, in the exercise of his discretion—it was his case, and he knew a great deal more about it than I do—he evidently thought it would not be wise to bring out the facts in relation to the previous court-martial. It was entirely a matter for him to decide.

Lastly, there is one entirely separate point with which I am especially concerned and which I must make. It is this. We have a system of law and of the courts to try alleged criminal offences. We have, over the years, evolved what we think is every proper precaution in regard to an accused person, to prevent an innocent person from being convicted; and some think to-day, rightly or wrongly, that, on the whole, the balance swings down too much in favour of the accused person. Having done that, we then usually provide for a right of appeal—in this case to the Courts-Martial Appeal Court; in some cases, of course, matters might come to your Lordships' House. But, when all the rights and procedures have been carried out according to law, when there has been no defect in procedure and nothing has gone wrong that could be appealed, so far as you can appeal, it would, I suggest, be dangerous if either House—I say "either House", because if this House can do it the other House can—were to set up a Commission to decide whether the House of Lords was right, or whether the Court of Appeal was wrong, or whether the Courts-Martial Appeal Court was wrong. There is, after all, great merit in finality. Here, if this Motion was carried by one vote to-night, friends of Sub-Lieutenant Havers might raise it again; and then the decision might be the other way by two or three votes; and it is difficult to see where this would end.

I agree that there might be a most exceptional case. The noble Lord, Lord Chorley, quite rightly pointed out that we have done this quite recently. But this was the Evans case where, as everybody would agree, no jury could possibly have failed to convict on the evidence before them. But then, how often do you have a case in which the principal witness for the prosecution, after the accused man has been hanged, is found to have murdered a number of women in exactly the same way, and who then proceeds to murder his own wife, who was the second principal witness for the prosecution, and is duly convicted and hanged for that?

Whether people think that Evans was responsible for that murder, or whether Christie did it, we should all agree that no jury which knew about Christie what we know now would ever have convicted Evans. But this is a most extraordinary and unusual case, when all that appeared to be the facts at the time of the trial turned out to be the exact opposite.

But, apart from that, I would urge your Lordships to say that, unless in a case you have new evidence of an extraordinary character, it would be most unwise to set up a Commission. Of course, the Admiralty, if there were some new evidence or some point of law-which there is not—or if they thought it expedient (which is a wide word) could refer this again to the Courts-Martial Appeal Court. But that is a matter for the Minister of Defence to decide, not for me or for anyone else. Apart from that, if you have a Commission, what powers is it to have? No Commission ordinarily set up by this House has the right to subpœna witnesses, or to bring the taxi-driver back from abroad.

I can only repeat what I said last year. There was no error of law. There was no defect in the proceedings. This sort of case is always worrying. It is like any affiliation case: there are two people alive who know what the truth is. Other witnesses may come forward to speak on various points, but there are only two who know the truth. If you find that the man is the father of the child, you may be doing him a grave injustice; if you do not find that, you may be doing the girl a grave injustice.

This, at the end of the day, was one of those cases, and it was for the court-martial to decide. The court heard what was an admirable summing-up, pointing out that this is the sort of charge which is very easy to make but very difficult to refute; pointing out what in law could amount to corroboration, but saying that it was entirely for the court to say whether it did; pointing out that the onus throughout was entirely on the prosecution and that if there were any reasonable doubt the court ought to acquit. The court, having heard the case, convicted. That being so, and there being nothing wrong in law and no defect in procedure, I invite your Lordships to reject this Motion.

6.53 p.m.


My Lords, I will not keep your Lordships for many moments longer. Anybody who does not know all about this case by now must either have been asleep, or in the bar, or somewhere else. There is one thing I want to say, which is a personal matter, and as it has been said I am not going to sit down under it.

I was very sorry for the noble Lord, Lord Winterbottom. At the beginning of his speech he kindly said that nobody made any criticism of my bringing this matter forward. I nearly interrupted him to tell him to be careful, because I thought it would not be long before someone actually did that. I was not particularly surprised at the quarter from which it came, but, as I have been accused of impropriety, I should like to assure your Lordships, in case any of you do not know, that I have been a Member of your Lordships' House for 46 years and I admire and honour its traditions as much as anybody else in this House. I have no objection to your Lordships saying on this occasion that I was guilty of an error of judgment, but I will not admit that it was an impropriety. I do not have to answer that accusation in my own words, I am glad to say, because the famous French historian, Guizot, did it for me over a hundred years ago, when he said: I look down on the prosecution from the summit of my disdain. There are just one or two things that I will say before I sit down. I wish that the noble Lord, Lord Blyton, had tried to keep class out of our discussion. He gave the impression that there were two laws, one for the naval officer and one for the rating. The answer, as a matter of fact, is Yes. But it is not exactly the answer which I think the noble Lord expected to get, because the two laws are that officers do not necessarily have preliminary investigations, whereas

ratings do. I think perhaps if the noble Lord were a naval officer he might not think that that was a differential law that was likely to help him very much.

With regard to the case itself, I shall not deal with any of the points. I think it is a perfectly simple matter, and I put it this way. I am going to ask the House to divide, and your Lordships will vote for one of two reasons: either, you are not happy about the result of the trial of Swabey, in which case you will vote for the Motion; secondly, you will vote against the Motion if you are quite satisfied that Swabey indecently assaulted Havers, and that it was proved by the evidence. I do not want anything more than that; I do not want any outside considerations whatever.

6.59 p.m.

On Question, Whether the said Motion shall be agreed to?

Their Lordships divided:—

Contents, 36; Not-Contents, 64.

Ampthill, L Croft, L. Monson, L.
Arran, E. Dudley, L. Mowbray and Stourton, L.
Audley, B. Durham, Bp. Napier and Ettrick, L.
Baldwin of Bewdley, E. Effingham, E. Reay, L.
Boothby, L. Emmet of Amberley, B. Russell of Liverpool, L. [Teller.]
Boyd-Orr, L. Greenway, L.
Brentford, V. Grimston of Westbury, L. Salisbury, M.
Byers, L. Hawke, L. Savile, L.
Chichester, Bp. Keyes, L. Strathcarron, L.
Chorley, L. [Teller.] Lilford, L. Terrington, L.
Clifford of Chudleigh, L. Merrivale, L. Teynham, L.
Colwyn, L. Milverton, L. Ypres, E.
Colyton, L.
Ailwyn, L. Forster of Harraby, L. Morrison, L.
Airedale, L. Fortescue, E. Raglan, L
Ashbourne, L. Fraser of North Cape, L. Rea, L.
Auckland, L. Gardiner, L. [L. Chancellor.] St. Aldwyn, E.
Bessborough, E. Goschen, V. St. Helens, L.
Beswick, L. Gridley, L. St. Just, L.
Blackford, L. Haire of Whiteabbey, L. St. Oswald, L.
Blyton, L. Henley, L. Sandford, L.
Boston, L. Hilton of Upton, L. [Teller.] Selkirk, E.
Bowles, L.[Teller.] Horsbrugh, B. Shepherd, L.
Burden, L. Hughes, L. Simmonds, V.
Carrington, L. Iddesleigh, E. Snow, L.
Champion, L. Ironside, L. Stonehaven, V.
Clwyd, L. Kennet, L. Strabolgi, L.
Colville of Culross, V. Kilmarnock, L. Strang, L.
Conesford, L. Lambert, V. Strange of Knokin, B.
Daventry, V. Leatherland, L. Stuart of Findhorn, V.
Derwent, L. Lindgren, L. Thurlow, L.
Dilhorne, V. Longford, E. Wells-Pestell, L.
Falkland, V. MacAndrew, L. Williamson, L.
Falmouth, V. Massereene and Ferrard, V. Winterbottom, L.
Ferrers, E.

Resolved in the negative, and Motion disagreed to accordingly.