§ 6.25 p.m.
§ VISCOUNT DILHORNE rose to ask Her Majesty's Government whether they will state why there was a delay of seven months in arresting Mr. Leslie Parkes on a charge of desertion after a bench of magistrates had refused to hand him over to the military authorities; on what grounds it was decided and by whom it was decided that the arrest should be made after such a delay; whether the summary of evidence disclosed a prima facie case, and whether the Minister of Defence gave instructions that the charge should be withdrawn; and to move for Papers. The noble and learned Viscount said: My Lords, I think I should begin by making it clear 776 that in moving this Motion to-night, I do so solely on my own responsibility. I do not speak for anyone but myself. I tabled the Question because I feel very concerned—and there are others who are very concerned—about the way in which the Government and the military have dealt with the case of Mr. Leslie Parkes. I converted the Question into a Motion by adding the words, "and to move for Papers", not because I have any intention of dividing the House—and I should like to say that now to relieve the Government Chief Whip of any undue anxiety—but to give me a right to reply and an opportunity to say, "Thank you" to the noble Lord who is to reply, if there should be any reason to do so. I have felt it right to raise this matter to-day in order to give the Government the opportunity (for which I hope they are grateful, although I rather doubt it) to explain certain matters which I find extremely puzzling, and to allay anxieties.
§ So far as I can ascertain—and I hope that the noble Lord, Lord Shackleton, will correct me if I am wrong—Mr. Parkes left his unit in Germany on or about December 25, 1965. He asserts that he left on completion of a three-year engagement, and that his discharge papers were to be sent on to him. If that is right, he must have entered on that three-year engagement late in 1962. According to two Sunday papers, the Army say that he joined in July, 1963, in which case he would not have completed a three-year engagement by December, 1965. I should not have thought it a matter of great difficulty to find out whether Mr. Parkes is right about this. If he is, he must have been in receipt of pay between the end of 1962 and the time in July, 1963, when the Army say he joined. However this may be, the fact that he left his unit in December, 1965, is not, I gather, disputed.
§ He was not arrested by the civil police until June 23, 1966—six months later—on the ground that there was reasonable cause to suppose him to be a deserter. Now there can be no doubt that that arrest was lawful. No one can dispute that the civil police were entitled, by Section 186 of the Army Act, to do that. Subsection (4) of that section provides that any person arrested on this ground must be brought before the 777 magistrates as soon as practicable. Section 187 says that unless the allegation of absence is admitted, the court has to consider the evidence, and if satisfied that he is subject to military law and that there is sufficient evidence to justify his being tried for desertion, it must either hand him over to the military or commit him to prison for them to collect him.
§ When Parkes was brought before the court, he was discharged. Presumably the Army had failed to satisfy the court that he was subject to military law, or that there was sufficient evidence to justify his trial for desertion. Which it was, I do not know. It has been reported that an officer concerned with the case has said, "We never had a chance to put forward our evidence against Parkes". The opportunity to do so was there in June, 1966, but apparently was not taken. If the evidence was not then immediately available, surely an adjournment could have been obtained. But there was no adjournment, and Mr. Parkes was discharged.
§ It has been stated in another place, in the Press and on television, that this discharge of Parkes was a finding of innocence. It was no such thing. Magistrates do not try persons for desertion. Their task, when an alleged deserter is brought before them and if he does not admit his illegal absence, is to consider the evidence and hand him over to the military if they are satisfied that he is subject to military law and that there is sufficient evidence to justify his trial.
The case is not tried by the magistrates. As my noble and learned friend Lord Goddard, whom I am glad to see here to-night, said in giving judgment in a case when he was a Lord Justice in a Court of Appeal, in 1942:
If the court is satisfied of those matters it cannot sentence a prisoner, any more than it could sentence a person charged with an offence beyond the jurisdiction of justices to hear and determine. It commits him to military custody for the purpose of his trial by military law, just as a civilian prisoner would be committed to assizes or quarter sessions.
After this discharge Mr. Parkes could have been brought before the magistrates the next day, the next week or the next month; and the magistrates could then, if sufficient evidence had been brought before them, have handed him over. But that was not done.
§ One of the odd, and perhaps one of the oddest, features of this case is that Mr. Parkes was not again brought before the magistrates. For seven months after this discharge nothing was done to secure his arrest. Why such delay? I know that it has taken the Minister of Agriculture seven months to inquire into allegations of cruelty in connection with the slaughter of animals, but why should the Army take so long? What is the explanation? Presumably, they had a case in June, 1966. Perhaps some further bit of evidence was required. Surely that should not have taken seven months. In these days it cannot take seven months to get Army witnesses from anywhere in the world. The Under-Secretary of State said on February 13 in another place that part of the delay was due to having to call witnesses from Germany. I do not understand that. It takes hours, not months, to travel here from Germany. And it cannot have taken seven months to decide whether the Army had a case to bring.
§ But at the end of this time, who decided that a further attempt should be made to bring Mr. Parkes to trial by court-martial? Was that decision reached by the Army alone, or was any Minister or the War Office consulted about it? I should like to know. I think that whoever made that decision must have felt, rightly or wrongly, that the Army had a very strong case. If it appeared to be a weak case, surely they would not have gone on with it after all that time. Presumably they knew after June, 1966, that Mr. Parkes was saying that he had completed his service in December, 1965. Did it really take seven months to find his attestation form and see what it was dated? Did it take seven months to find out whether he was in receipt of pay between the end of 1962 and July, 1963?
I think that a full and frank explanation must be given for this delay, and I ask that we should be told who was responsible for initiating the arrest of Mr. Parkes on February 9, over two years after he had left his unit. He was, apparently, induced to enter a police station, and was there arrested—this, I think, is significant and important—by the military. There is a special Part of the Army Act headed:
Provision relating to deserters or absentees without leave.
Section 186, which I have already mentioned, is the first section in that Part. Subsection (1) of that section provides for the arrest of a suspected deserter by a constable. Subsection (2) provides for the arrest of such a person by the military. And I ask your Lordships to notice these words particularly:
…arrest by the military where no constable is available.
§ Was there no constable available in the police station? When an alleged deserter has been arrested, whether it be by a constable, by the military or by anyone else, Section 186 requires, as I have said, that he be brought before the magistrates as soon as practicable. That, as I have said, was done when Mr. Parkes was arrested in 1966. Why was it not done when he was arrested in 1967?
§ This procedure is a considerable safeguard to the individual. I think I am right in saying that it has existed for a very long time—it may be even from the days of the press gangs; and I think I am right in saying that up until this case it has almost invariably, if not invariably, been used for the apprehension of deserters and absentees without leave. Were it not for the procedure provided by these sections, anyone, after years of life as a civilian, might suddenly find himself arrested by the military, kept in military custody and facing trial by court-martial, without ever coming before one of the ordinary courts of the land.
§ This is a question that I would particularly press the noble Lord to answer: Why was not the same procedure followed in 1967 as had been followed in 1966? If it had been, the Army would have had an opportunity of putting forward their case before the magistrates. If Mr. Parkes's arrest was effected under Section 186, then that section was not complied with in two respects: first, he was not arrested by a constable, when one was clearly available; and secondly, he was not brought before the magistrate.
§ But the noble Lord may say that he was arrested, not under Section 186, but under Section 74 of the Army Act. That section gives a general power of arrest by the military of persons subject to military law reasonably suspected of having committed a military offence. But it could be contended that these general powers in Section 74 do not override the 780 special provisions of Section 186 and 187 for dealing with deserters and those absent without leave. In view of those special provisions, it is, I think, open to doubt whether the arrest of a deserter by the military under Section 74 is lawful. If it is lawful, then Sections 186 and 187 lose much of their effect and importance. When an alleged deserter is arrested under Section 74 there is no need to bring him before the magistrates.
§ The military having failed to get the magistrates to hand Mr. Parkes over in 1966, was it deliberately decided to try to by-pass the magistrates this time by effecting the arrest under Section 74? If so, are we not entitled to know who decided to adopt these tactics? On the information now available, it certainly looks as if it was deliberately done this way for this purpose, and I hope the noble Lord when he comes to reply will say under which section of the Army Act the arrest was effected. If it was under Section 74, then it seems to me that there is a case for amending the Army Act to make it clear that in future, in this country, when a man is arrested for desertion or absence without leave he must be brought before the magistrates, as Section 186 requires, and not be deprived of his rights of appearing before one of the ordinary courts of the land.
§ When Mr. Parkes was in military custody photographs were taken of him handcuffed to a soldier in uniform, with another soldier armed with what looked like a pickaxe handle walking behind him. I am sure that that is not ordinarily the treatment to which an alleged deserter is subjected in the Army. No doubt the noble Lord can confirm that this is so, and I hope he will do so. Such treatment could only be justified when there existed very special reasons for it.
§ My Lords, Mr. Parkes was charged with desertion. It may be that, before that charge was preferred, things were done, both by the civil police and by the military, which ought not to have been done. But if that is the case it does not follow at all that the preferment of the charge was unjustified. No doubt those responsible for the prosecution thought they had a good case; otherwise, as I have said, after such delay one assumes they would not have gone on with it. Mr. Parkes may have, for all I know, a good case. Sometimes cases which appear 781 so good before trial do not appear so good when they are gone into at the trial.
§ When a charge is preferred, whether it he of a criminal or of a military offence, it must be dealt with in accordance with the law. If the charge is of a criminal offence the Attorney General can stop the prosecution going forward by entering what is called a nolle prosequi. That is very seldom done, and only for very good reasons. If that is not done, then a charge of a criminal offence can be withdrawn only with the leave of the court; and it is done in open court, and the reasons for the withdrawal are made public. Has the Minister of Defence any powers given to him by law similar to those possessed by the Attorney General, powers which the Attorney exercises on his own responsibility and without regard for political consequences or to political pressures? I think the answer is, No. Perhaps the noble Lord will confirm that.
§ The position of a commanding officer when a man is charged with desertion is analogous to that of a magistrate hearing an indictable offence with a view to committing it for trial. His duty is to consider whether the summary of evidence discloses a prima facie case, and if he thinks it does he will remand a man accused of the serious military offence of desertion for court-martial. I wonder what would be said if the Home Secretary came down to the House of Commons and declared that, because of the circumstances surrounding a case—I ask your Lordships to note that phrase: "because of the circumstances surrounding a case"—he had formed the opinion that it should not go on and had told the magistrates of his view and persuaded them to dismiss the charge. If that happened, we should all, I am sure, regard it as very wrong and as a gross interference by the Executive with the administration of justice. But, my Lords, is not that exactly what the Minister has done in this case? It is this part of this case that worries me, far more than any other aspect of it, and I hope the House will forgive me if I spend a little time upon it.
§ Once a charge has been preferred, whether it be of a criminal or of a military offence, there are limits to what can lawfully be said about it. Nothing must be said that is likely to prejudice the 782 trial in favour either of the accused or of the prosecution. The same rules apply in relation to both military offences and criminal offences. I doubt whether they have been observed in this case. After Mr. Parkes had been charged, I saw a programme on television which, if I were now the Attorney General, would have caused me great anxiety, for I should have felt it my duty to consider whether I ought not to institute proceedings for contempt. I think it is very important—and I trust your Lordships agree with me—to maintain the rule that trials should not be prejudiced either in favour of the accused or in favour of the prosecution.
There was a great deal of fuss about this case in the Press and in another place. Then, on February 15, the Minister of Defence made a Statement in the House of Commons. He said—and I quote his words [OFFICIAL REPORT, Commons, col. 617]:
After considering all the circumstances surrounding the arrest of Mr. Parkes last week, I have come to the conclusion that he should be released from custody. His commanding officer has formally dismissed the charge of desertion made against him.
And later he said:
I informed the Commanding Officer of the conclusion I had reached and he decided to dismiss the charge.
So there can be no doubt that the charge was dismissed solely on account of the Minister's action. Did he instruct the Commanding Officer to take that course? It is in any event clear that that course would not have been taken but for the Minister's action.
§ I do not know whether the taking of the summary of evidence had been completed when this action was taken. If it had, did it disclose a prima facie case of desertion? If it had, and did not do so, then we should have been told that that was the reason for the dismissal. But we were not told that. The Minister has throughout carefully refrained from saying that Mr. Parkes was innocent of the charge. He reached his conclusion "after considering all the circumstances surrounding the arrest." I ask that we should be told what were the circumstances which led him to form his view and to take the action he did. The Minister alone knows what they 783 were. They have not been made public. I hope he has told the noble Lord who is going to reply. I can see no reason why he should not have been able to do so, and I hope that we shall hear them to-night.
§ Then I ask specifically whether one of the circumstances he considered was the fact that on the previous days there had been trouble in another place about this case. If this question is not answered, one can only assume that this was one of the circumstances, and perhaps the major circumstance. I wonder what was said to the Commanding Officer to persuade him—if that be the right word—to dismiss the charge. Section 77 of the Army Act gives him power to do so, where he has investigated the charge, if in his opinion it ought not to be further proceeded with. The clear inference from that section is that he should decide not on what anyone has said to him, but on what the investigation has revealed. And I stress the fact that the power to dismiss given by the section is exercisable only where the charge has been investigated.
§ I know that there is a Rule of Procedure, No. 12, which says that a Commanding Officer may dismiss a charge at any time if he is of opinion that it should not be proceeded with. But the Rules of Procedure cannot amend the Army Act, which provides that a charge can be dismissed only where there has been an investigation—not during it—and so the validity of this rule may be open to doubt. However this may be, there is nothing that I can find in the Army Act, or in the Rules of Procedure, which lends support to the view that a Commanding Officer can be instructed to dismiss a charge, either by a superior officer or by anyone else, even the Minister of Defence. And, if the summary of evidence discloses a prime facie case, it would seem very wrong if the Commanding Officer was told or persuaded to dismiss the charge.
§ My Lords, it may be that if the Army had a case it should not have been brought after such delay. I express no opinion on that. But I note that Parliament has provided in the Army Act that, with few exceptions, charges of breaches of military law cannot be brought more than three years after the 784 alleged commission of the offence, but that this time limit does not apply in relation to desertion. So Parliament, when it passed the Army Act, obviously thought that desertion was such a serious offence that a man might be charged with it even three years after the desertion was alleged to have taken place, and here the period is not even two years.
§ But even if the charge should not have been brought in this case, that does not in any way justify the action of the Minister. What right had he to interfere? It does not matter to what pressure he was subjected in Parliament, in the Press or on television, or that he was invited to step in and stop the case, even if that invitation had been extended to him by the Prime Minister. What right had he to do so? On the facts as they appear to me it would seem that he had no right to act as he did, and that his action in telling the Commanding Officer to dismiss the charge was just as improper as would be the action of the Home Secretary in telling a bench of magistrates to do so. The Minister of Defence holds a high executive office in the Government. Am I right in thinking that no part of the duties of that office are judicial, or even quasi-judicial? He is a member of the Defence Council and of the Army Board, but his membership of those bodies gives him no right, surely, as an individual to interfere with the course of justice. If the noble Lord maintains that he was entitled to do so, then I ask that he should state from what section of what Act the Minister gets the power to do it.
§ In this country we have always set our faces against interference by the Executive with the administration of justice, and I hope we shall long continue to do so. Some years ago your Lordships may remember a prosecution was instituted with the consent of the then Attorney General, and later withdrawn on an application being made in the courts, on his instructions, for leave to withdraw. Then there were allegations that the prosecution was withdrawn as a result of political pressure. The Liberal Party proposed that a Select Committee should be appointed to ascertain the facts. That was resisted by the Government. On that occasion the Conservatives voted with the Liberals (unlike last night) and the Government was defeated—and so ended that Labour Government. I refer of course to the Campbell case, and I think 785 that the circumstances of this case, and in particular the conduct of the Minister of Defence, warrant the appointment of a Select Committee. It would find out whether he acted solely on his own initiative, and it no doubt would go into the matter very thoroughly.
§ I note that on February 13 an undertaking was given to investigate the circumstances of Mr. Parkes's arrest and the reason for the delay in arresting him, and to inform another place as soon as possible. It is now February 22. The investigation of the circumstances of his arrest should not take long. Are they not known already? Nor should it take long to find out why there was that delay. Indeed, the Under-Secretary of State seems to have known the reasons for it on February 13, when he said that part of the delay was due to having to obtain witnesses from Germany.
§ I note, too, that the conduct of the civil police is being inquired into, and it may be that when the noble Lord comes to reply he will say that the inquiries are not yet complete and that he cannot answer some of the questions I have asked. I hope that will not be the case, for I should have thought that by now he would be in a position to answer them, or most of them. But some of the questions I have asked do not appear to come within any of the promised inquiries and do not require an investigation to provide the answer. For instance, the noble Lord surely should be able to say whether Mr. Parkes was arrested under Section 74 or Section 186 of the Army Act, and whether the Minister of Defence has any power to stop the prosecution of a military offence once a charge has been made, and also what precisely were the circumstances to which the Minister had regard.
§ If the noble Lord cannot answer all the questions I have asked I hope he will at least give an undertaking that they will be answered in the near future. I make no apology for raising this matter to-night. If the facts be that the Minister interfered, as a member of the Executive, with the administration of justice when he had no legal right to do so, then one should surely draw attention to his conduct and condemn it. The noble Lord may be able to throw a different light upon the matter. He may be able to show that there was no impropriety of 786 conduct. But whether there was or not, I fear that what the Minister has done has caused great damage to the Army.
§ Owing to the action of the Minister the truth will never be determined by the court entrusted under our law with the task of determining whether or not Mr. Parkes was a deserter. Owing to his action the Army cannot show that they were justified in preferring this charge. I think that the Army have just cause for complaint, if they are not able publicly to justify the preferment of the charge, and they appear to have been condemned unheard. Also, owing to the Minister's action Mr. Parkes cannot show that he was found innocent of the charge. True it is that he has now been discharged from the Army. He says that he was discharged in 1965. The fact that he has been charged with desertion is known throughout this country; owing to the Minister's action he cannot say that he has been found not guilty. These appear to me to be the consequences of the Minister's action. I do not doubt for one moment that the Minister acted with the best of intentions, but good intentions do not warrant interference with the course of justice, and I hope the noble Lord will say whether I am right or not in thinking that these are the consequences of his action. I beg to move for Papers.
§ 6.58 p.m.
§ THE MINISTER WITHOUT PORTFOLIO (LORD SHACKLETON)
My Lords, the noble and learned Viscount has deployed in solemn language a powerful statement which is bound to have carried some weight—indeed a good deal of weight—with your Lordships' House. When I saw him earlier he was good enough to say that he did not necessarily expect me to deal with every point that he raised, but that he was anxious to set these points on the record to ensure that they should receive due consideration. I can certainly give one general answer before I go on to deal with some of the particular points. These matters are receiving consideration, they are being inquired into, and they will be reported upon.
I will give answers to a number of points which I think will go some way to explain to your Lordships the unusual 787 nature of this case and the special difficulties that confronted my right honourable friend. I am grateful for one thing. Although the noble and learned Viscount levelled heavy charges at my right honourable friend, he in no way impugned his personal honour or his good intentions in the matter, and in this respect there is a great difference between this and the Campbell case.
We are debating this question at a time when there is a departmental inquiry in being, and I must say straight away that I was unaware that the noble and learned Viscount was going to suggest that there should be a Select Committee. However, I shall not comment on that suggestion to-day. This departmental inquiry is looking into a number of events. This is a picture of a whole series of interlocking events and procedures and, if I may say so, even accidents, connected with the arrest of Mr. Parkes. My right honourable friend is extremely anxious to establish exactly what happened at each stage of the case and what lessons should be learned from it, and he has given a personal undertaking to report upon this in another place.
The second general point I must make is that for reasons that will be apparent—and I do not think the noble Viscount will disagree with me in saying this—I have to be circumspect in what I say about the merits of the case itself. The charge against Mr. Parkes was never brought to trial, and it is certainly not my intention, nor do I believe would your Lordships wish it, that I should use the privilege of your Lordships' House to develop arguments either for the prosecution or the defence in a trial which never took place—and indeed this was part of the burden of the noble Viscount's complaint, that the trial never took place. I shall try to be as brief as possible about the history, and to say only what is factual and, I hope, acceptable. I acknowledge that there are points of law and of judicial procedure to which the noble Viscount attaches importance upon which I am not qualified to pass judgment. Subject to those reservations, the story is as follows.
According to the enlistment documents held by the Army, Mr. Parkes enlisted in the Army in July, 1963, for a term 788 of nine years. At the end of 1965 he was serving as a Private soldier with the 10th Ordnance Field Park in Germany. On December 23 he—and here I use a neutral expression—departed from that unit and made his way back to England under his own arrangements and did not subsequently return to it. About a month later, Mr. Parkes was formally posted absent without leave. The civil police were notified in his home town of Stoke-on-Trent. They did not see him for some time because he was employed elsewhere, but eventually they did interview him at his home, and he told them that he was not an absentee because he had been discharged properly from the Army before he left Germany. He said that he had no papers but was taking steps to obtain them. This account was reported back to the authorities, but the Record Office insisted that Mr. Parkes was an absentee, and in July last year he was arrested by the local civil police and brought before the magistrates.
The arrest was made under Section 186 of the Army Act 1955 and the magistrates' hearing was under Section 187. If the arrested person does not admit that he is illegally absent—and let us face it, in a very large number of cases of deserters and absentees there is no denial—the magistrates have to consider the evidence and any statement made by him. If they are satisfied that he is subject to military law and that there is enough evidence to justify his trial under the Army Act 1955 for desertion or absence without leave, they must deliver him into military custody. If they are not satisfied, they must discharge him. The procedure employed by the magistrates is much the same as the procedure employed by examining magistrates in determining whether a charge for an indictable offence should go for trial at either quarter sessions or Assizes.
Where an arrest is made by the civil police the Army authorities have no status of any kind in the matter. They are not parties to the proceedings. So far as there can be said to be parties, the parties are the police on the one hand and the arrested man on the other. The military authorities cannot be represented in the proceedings. On one or two occasions where it might appear that the Army legislation and regulations might need to 789 be explained to the magistrates, the magistrates have permitted a representative of the Treasury Solicitor to be present in court, but solely as amicus curiæ. He does not represent the Crown or the Ministry of Defence.
In this case, while the police were producing their evidence—mainly, of course, evidence provided by the Army authorities—to the court, it became apparent that Mr. Parkes's solicitor was proposing to make a contention of an unusual kind, which appeared to involve consideration of the provisions of the Service legislation and regulations, particularly those relating to enlistment and discharge. The Treasury Solicitor accordingly instructed an agent, a solicitor at Stoke, to appear as amicus curiæ in the proceedings, if the court would permit it. The court did in fact permit it, but in that capacity it was not possible for the solicitor himself to produce evidence except at the court's invitation. At the resumed hearing Mr. Parkes gave evidence that he enlisted in 1962 and not 1963. He further said he enlisted for three years and not nine years. He gave evidence of the circumstances in which he left Germany, from which it might be inferred his absence was not without leave. I do not know whether it was contended that he had been discharged.
The enlistment papers held by the Army were put to him in court, and he said they were not those which he had signed. His wife was called and gave evidence that she had understood he was due for discharge in December, 1965. His sister and a friend of his gave evidence that they had seen him in uniform in 1962—that is, before the enlistment papers produced in court showed him to be enlisted. Since the police case had closed, the magistrates court would not allow evidence in rebuttal of Mr. Parkes's evidence to be given. Their decision was: "The prosecution have not proved the case to our satisfaction. The defendant will be discharged." I am sorry to have spent so long on this, but I thought it important to set it out. I am not going to say more about the magistrates' hearing. It is, of course, one of the points in the Departmental inquiry in which it is necessary to establish whether the matter was competently handled by the Record Office as regards the evidence they provided for the police.
790 The civil police then withdrew. They issued a statement, which was carried in The Times, that they were taking no further action but that they understood the military authorities had power to arrest and court-martial Mr. Parkes if they wished. This was indeed the view held by the Army. They relied on a footnote—and I agree it is a footnote to Section 187 which is printed in the Manual of Military Law and represents an opinion of military lawyers which I am bound to say has stood the test of a long time. The footnote says:The proceedings before the magistrates do not amount to a trial for the purposes of Section 134, and the person discharged may be subsequently re-arrested under Section 186 or under Section 74 and tried if there is evidence to justify it.I am bound to point out to the noble Viscount that the High Court has held that under the corresponding provisions of the Army Act 1881 there was power to re-arrest a deserter, notwithstanding under this section a previous discharge by magistrates.
§ VISCOUNT DILHORNE
My Lords, I never challenged that—indeed, it was one of the main parts of my speech that he could have been brought back before the magistrates the very next day and further evidence adduced. What I am saying and querying is this: when there has been a failure to get him committed by the magistrates, is it right then to have recourse to Section 74, which does not give him any right of appearing before the magistrates at all?
§ LORD SHACKLETON
My Lords, the purport of what I have been saying is that it was permissible, and indeed has been accepted by military lawyers for a long time, that, notwithstanding appearance before magistrates, a person may be arrested under either section. The noble Viscount was, of course, Attorney General when the 1955 Act was passed, and this has been in the Manual of Military Law, and he must surely have been aware of it.
§ VISCOUNT DILHORNE
My Lords, the noble Lord really must not seek to place upon me responsibility for the accuracy of footnotes in the Manual.
§ LORD SHACKLETON
My Lords, I think it is almost inconceivable that a matter of such importance to lawyers 791 should escape attention. I am surprised that it should have escaped the attention of the noble Viscount, or indeed of his advisers. But I do not wish to make much of this; it was he who was making much of it. I am only stating that this is the law as it has been interpreted for a long time. I am not suggesting that this footnote has the force of law, but I am saying that there are good grounds for regarding it as sound.
The key word, of course, is "evidence". There must be evidence to justify further proceedings. The military police then set about collecting that evidence. The noble Viscount asked me whether there was evidence as to whether Mr. Parkes was paid in the time in which he claimed he was in the Army, and in which the Army authorities claimed he had not joined. I have not that evidence. It would, of course, be negative evidence. But I will say a little more on evidence. It is a fact that throughout his engagement he was paid at the rate of a soldier on a nine-year engagement.
The military authorities took a long time, several months, to collect their evidence. They collected statements from 45 witnesses, both civilian and military, in this country and abroad. Having built up what they regarded as a cast-iron case, and having taken legal advice, the military authorities arrested Mr. Parkes, relying for power of military arrest on Section 74 of the Army Act. He was subsequently taken to the Royal Army Ordnance Corps Depot at Black down, and charged with desertion, contrary to Section 37 of the Act.
Before I go on, there is one thing that I should like to dispose of, and I am sure your Lordships would wish me to do so. That is an accusation that has been made—not in your Lordships' House—to the effect that the Army hounded a man vindictively and unnecessarily instead of accepting the magistrates' decision. Certainly this is no part of the noble Viscount's case, whatever the legal position may have been. I do not have to await the final inquiry before rejecting that view. There is a plain duty to enforce the law, and whether the police are civil or military they are bound to go on if the law permits and if they have evidence. The Army Act is as much part of the law of 792 the land as any other Statute enacted by Parliament, and it is not for the police to pre-judge the trial. Throughout this matter the Army acted deliberately and in good faith and, whatever the outcome, this much at least should be on the record.
I should also refer briefly to the way in which Mr. Parkes was arrested. The military police asked for the assistance of their civil colleagues when they arrived in Stoke-on-Trent. There has been a good deal of public discussion about the means by which Mr. Parkes was induced to go to the police station where the military arrested him. It is the subject of a Home Office inquiry, and your Lordships will not expect me to say more about it to-day. I need not remind your Lordships of the sensation and public concern aroused by the arrest. Mr. Parkes had the benefit of the energetic support of his Member of Parliament, and the newspapers were in full cry. Black down Camp has no perimeter fence—in fact a public road runs through it; so there was a double hazard of too much opportunity to escape and too much exposure to Press photographers.
This was the situation which presented itself to my right honourable friend the Secretary of State early last week. I do not think I am breaking the doctrine of Ministerial responsibility when I say that, although he had not heard of the case before then, of course he accepts his responsibility as a Minister; and the noble Viscount will not expect me to answer his questions as to who specifically was responsible or carried out the executive action. There is, of course, a great deal of disciplinary traffic in the Service Departments, and I think it is rare for proceedings to be authorised at a high level. Whether this was the sort of case which should have been considered on a higher level is one of the matters under investigation.
My right honourable friend had a great many factors to consider. I have made it plain that the Service had acted scrupulously over each separate stage in the procedure. But that is not the whole picture. There were a good number of unusual features, not all of them free from doubt. There was the delay, to which the noble Viscount has referred, six months before the first arrest and seven months before the second. Again 793 I will not discuss whether the delay was avoidable or not—it is under investigation—but it is an important matter in a case of this kind. Then there was the magistrates' decision, and two important questions which followed: whether, despite what I have said, the footnote in the Manual was right in saying that there could be further proceedings; and whether, in fact, it was right to make a military arrest under Section 74, rather than ask the civil police to repeat the procedure of the first arrest. Was it right, indeed, to make a military arrest in a police station? These are points both of law and of propriety. They are being considered, and my right honourable friend will say what he finds.
Thirdly, there were the events surrounding the arrest itself, and the trick by which it was accomplished, whatever one's judgment of the motives. Then there were the conditions in which Mr. Parkes was held in custody, the handcuffing and so on, to which the noble Viscount referred. Fifth, there was the publicity from photographs, which would hardly be conceivable in the corresponding time before a civil trial and which might in themselves be prejudicial to Mr. Parkes's interests. Finally, it was known that preparations for a court-martial might in the ordinary course take at least a month after the arrest, and it would be necessary to keep the man in close confinement for that additional time. All these points were considered by my right honourable friend, and together they led him to decide that it would not be right to proceed further.
This leads us, I believe, to the last controversial point, which is the question of the Minister's power to intervene at that stage in the ordinary process between the charge and the court-martial. I will take this as far as I can to-day, and although I shall not be able to give full satisfaction on all the points, I hope that I shall establish a measure of agreement. We need only look at the Secretary of State's constitutional position in relation to the Armed Forces, and to Her Majesty's Letters Patent which took effect on April 1, 1964. It was under these Letters Patent that the Defence Council was constituted. It was given command, under the Queen, of all the Armed Forces. Incidentally, perhaps I may correct the noble and learned 794 Viscount on one point. In certain circumstances there is a quasi-judicial, or indeed judicial, role in the matter of petitions which amounts almost to an appeal court, but this is not significant to the case he is arguing to-day.
§ LORD SHACKLETON
I was, in fact, speaking about the Defence Council. It was given command, under the Queen, of all the Armed Forces. Accordingly, the Defence Council can give orders to any member of the Armed Forces. The Letters Patent provide that any duties of the Defence Council may be performed by any two members. Noble Lords who have had experience as Service Ministers will be well aware of this arrangement.
If the proceedings against Parkes were to be dropped and he was to cease to be a soldier, three things were necessary. First, he must be released from custody; secondly, he must be discharged from the Army; and, thirdly, the charge of desertion against him must be dismissed. Taking a person into custody under Section 74 is an executive act. It is open to any superior officer to order his release from custody. The dismissal of a charge by a Commanding Officer, however, is not something which he can be ordered or instructed to do. The authority rests entirely with him. The fact that Mr. Parkes had been discharged from the Army did not mean that the court-martial could not have gone on. The Commanding Officer is empowered by the Rules of Procedure to:dismiss a charge at any time during his investigation if he is of the opinion that it ought not be proceeded with further.The noble and learned Viscount cast doubt on this particular Rule of Procedure No. 12, and questioned whether it was ultra vires. I can only say that it is a statutory rule, made in 1956 under powers conferred by the Army Act of 1955. None the less, the point he has made is one which I have noted and which, clearly, will need to be further considered. In exercise of the power under Rule of Procedure No. 12 the charge has been dismissed before the formal investigation; that is to say, the taking of a summary of evidence was concluded. I shall not miss the noble Viscount's final point.
795 That is what happened—subject, as I have said on two or three occasions, to checking at the inquiry which is now in progress. I have endeavoured to ensure that what I have said to your Lordships has been entirely accurate; though I must confess that there has not been very long to check all the points. On the one hand, it was an ordinary, and as it was thought, routine procedure of a Special Investigation Branch investigation leading to an arrest. On the other hand, the culmination was a collection of unusual and controversial circumstances which, taken as a whole, led the Secretary of State to the conclusion that there were serious doubts about the justice of proceeding further. I think he was justified in reaching that view, and that it was in fact a courageous act on his part.
Let me reaffirm that the means by which the release was effected (and, incidentally, although this may not cut much ice with the noble and learned Viscount, my right honourable friend was, of course, advised to do so by a right honourable gentleman, learned in the law, the Member for Marylebone, who is well known to us, speaking in another place), and Mr. Parkes was discharged from the Army, were, according to the advice I have had, and in my own view, constitutional and did not in any way exceed the powers provided by law.
My Lords, I recognise that there are some aspects of this case, including one to which the noble Viscount devoted a great deal of attention, which I have not been able to cover in full, and the noble Viscount has conceded that this is inevitable at this stage. I will ensure that my right honourable friend will take all these things into account, including the points raised about the method of dismissal of the charge and the important judicial and legal aspects of that. I am sure that he will take fully into account everything the noble Viscount has said to-day, and that there will be a full explanation given of his action in what, clearly, has been a most difficult case, in which I am sure it has been his intention—and certainly this has been my view from studying the facts—to act in accordance with the law and the proper procedure. But this is an opinion which will subsequently have to be studied when he gives a full explanation of these events.
§ 7.26 p.m.
§ VISCOUNT DILHORNE
My Lords, having put down a Question I converted it into a Motion for Papers in order to have the opportunity of making a reply and, as I said in my speech, saying "Thank you" to the noble Lord if there was something to thank him for. I think there is, and I am grateful to the noble Lord for the very full reply, as full as he could make it, to the questions I have asked. I am also grateful to him for his undertaking that questions which I have raised will be carefully considered. I assume it follows from that that in due course, and I hope it will be as soon as possible, they will be answered.
There are only two matters to which I should like to refer. The first is that I have never suggested that Mr. Parkes could not have been rearrested. So far as that is concerned I am in entire agreement with the footnote. I myself have never known the procedure of using Section 74 for the arresting of deserters in this country or people absent without leave, and I think it raises a serious question.
§ LORD SHACKLETON
My Lords, may I interrupt the noble Viscount to say that there are, I am told, a number of cases where it has been used even after the previous arrest.
§ VISCOUNT DILHORNE
That may be so. All I was saying was that I had not known of such cases. I think that the policy of using Section 74, whatever the legal position may be, when there are those express provisions compelling his production before the magistrates, the civil court, before he goes into military custody certainly ought to be reviewed. I myself think that it is certainly open to doubt whether, in view of the existence of Section 186, an arrest of a deserter is lawful under Section 74.
With regard to the conduct of the Minister, the noble Lords said that he could not deal with that fully, and I quite understand. But I am grateful to him for his disclosure of the reasons for which the Minister acted, which were expressed by the Minister in the word "circumstances" I will consider them. I will express no opinion now on whether those "circumstances" in any way justify the withdrawal of this charge. The second question, on which I must admit I am not 797 satisfied at present, is whether, even if they did, the Minister had the right to take the action he did. The noble Lord has referred, as I did, to the Defence Council. Of course, two members can act for the Defence Council. But the noble Lord did not go on to say that this was action taken by the Defence Council. Indeed, the Minister in another place made it quite clear that it was his own personal conclusion on which he himself had acted. I do not want to pursue this matter now; opportunities no doubt will arise in due course. I feel that the raising of this matter has been thoroughly justified, and I conclude by again expressing my thanks for the way in which the noble Lord has answered me, although I know that in regard to some of the questions I raised he had only short notice, and I agree that some of them would be extremely difficult to answer in the course of a debate. I beg leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.