HL Deb 26 October 1967 vol 285 cc1773-6
VISCOUNT DILHORNE

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

[The Question was as follows:

To ask Her Majesty's Government when the report promised in February, 1967, as to the proceedings by the military authorities and the conduct of the Minister for Defence in relation to Mr. Leslie Parkes will be published.]

LORD SHACKLETON

My Lords, I will arrange that my right honourable friend's Statement which was made in another place yesterday will be circulated in the OFFICIAL REPORT of your Lordships' House.

VISCOUNT DILHORNE

My Lords, while thanking the Minister for his reply to a Question which was tabled before the Minister made his Statement, and while not wishing to pursue the matter in detail, may I ask the Minister to confirm that no Minister is entitled by law to interfere with the course of military justice and no Minister, whatever his motives and however good—and I do not suggest the motives were not high in this case—is entitled to order a commanding officer to dismiss a charge?

LORD SHACKLETON

My Lords, I should like to consider rather carefully some of the implications of the noble Viscount's remarks, but I think I can give an unequivocal answer that a Minister cannot himself dismiss a charge or order that a charge shall be dismissed. I might also inform the noble Lord that his interesting suggestion regarding nolle prosequi is going to be examined further.

Following is the Statement referred to in Lord Shackleton's main Answer:

"On 9th July, 1963, Leslie Parkes enlisted in the Royal Army Ordnance Corps on a nine-year engagement. On 3rd December, 1965, as his general conduct was not satisfactory, he was given formal warning that if there was no improvement within three months he would be discharged from the Army. On 23rd December, 1965, he left his unit in Germany without permission, and on 24th January, 1966, was formally recorded as absent without leave. The civil police were notified and, when they interviewed Parkes, he said that he had been discharged from the Army. After reference to the military authorities they arrested him on 23rd June, 1966, and brought him before the magistrates under Sections 186 and 187 of the Army Act, 1955.

Sections 186 and 187 of the Act provide that the police may arrest a suspected deserter and bring him before the magistrates; if the magistrates are satisfied that the suspect is subject to military law and consider that there is sufficient evidence to justify his trial under the Army Act, they have him delivered into military custody. The police conduct these proceedings, though they obtain most of their evidence from the Army.

Parkes was brought before the magistrates on 23rd June and 7th and 21st July, 1966. An officer from his unit identified him, produced his attestation paper, and described how he was found to be absent. In the cross-examination the defending solicitor questioned the validity of the attestation. The police sought leave to call additional evidence but this request was not granted. Parkes then gave the evidence which was the subject of his subsequent conviction for perjury. He said that he had enlisted in December 1962, not July 1963—and for three years, not nine; and that in December 1965 his unit had allowed him to go home and had said that his discharge papers would follow. The magistrates discharged him—a decision against which there is no provision for appeal.

After the military authorities had collected all available evidence, the Army Legal Services advised that there was a case against Parkes, and the Ministry decided that he should be re-arrested in time for procedings to start on 13th February. The delay was partly due to the need to obtain evidence from witnesses who were in Germany and Aden, and partly to pressure of work on the Army Legal Services, which are under strength.

The present provisions in the Army Act regarding the arrest of deserters do not define clearly the respective functions of the civil and military authorities. The police have power to arrest a deserter under Section 186; but, in addition, the military authorities have power under Section 74 to arrest a soldier for any offence against the Act. In practice, the military authorities and the police co-operate in the arrest of deserters: usually the former arrest those who admit their identity as soldiers; the latter those who do not. The question whether the military authorities should rearrest a man who has been discharged by the magistrates under Section 187 has arisen only very rarely, although a footnote to that section in the Manual of Military Law states that a man can be rearrested under either Section.

It was more than 20 years since such a rearrest had taken place; in that case the surrounding circumstances were significantly different, and the man concerned, unlike Parkes, admitted that he was a soldier to the military police arresting him. In the Parkes case the disciplinary branch of the Ministry of Defence (Army) decided, on legal advice, that Parkes should be rearrested under Section 74.

The civil police co-operated to the extent of inducing him to go to a police station, where he was arrested by the Military Police on 9th February, 1967. The methods of his arrest were criticised, and the Chief Constable instituted an investigation. Since Parkes himself refused to make any complaint about the part played by the police in his arrest and the investigation did not disclose any other administrative or procedural fault, the Chief Constable has decided that no formal disciplinary action can ensure, but the cirticism has been noted and the officer concerned has been given suitable advice.

Since Parkes's original unit was overseas, he was held, as is normal, in the depot of his Corps—the R.A.O.C. depot at Blackdown. Parkes was confined in the guardroom. The depot is an exposed, unfenced camp, where there have been several escapes, so the commanding officer decided that Parkes should be handcuffed when moving about the camp, but not in his cell. It was impossible to keep photographers out of the camp, and photographs of him handcuffed and escorted by guards armed with pick helves were published. After being charged before his commanding officer, Parkes was remanded for a Summary of Evidence, which an officer of Army Legal Services started to take.

The case had now attracted considerable attention in Parliament and the Press. It had several features which suggested that the public interest might be better served if it proceeded no further. The way in which Parkes had been induced to go to the police station was open to criticism. The publication of photographs showing him hancuffed seemed likely to be prejudicial to him. There had been a long delay before each of his arrests—nearly 14 months had passed since he originally left his unit, and the preparation of a court-martial would have taken a further month or so.

Above all, there were doubts about the propriety of the action to arrest under Section 74 of the Army Act a man who had been discharged by the magistrates under Section 187. Even though such arrest was lawful, it seemed contrary to the public interest that a man who had been discharged by a civil court under one Section of the Act should be rearrested for the same offence by military procedures under a different Section of the Act. Taking all these factors into account, I therefore decided that Parkes ought to be released from custody and discharged from the Army forthwith.

In arriving at this decision, which I recognised would automatically involve the dismissal of the charge made against him by the military authorities, I was concerned to avoid the greater harm which I believed the public interest would have suffered if the case had been allowed to proceed—a concern widely held at the time and expressed in the House of Commons by the right honourable and learned Gentleman the Member for Marylebone (Mr. Hogg) on 14th February. In the absence of any military analogy to the civil procedures of 'entering a nolle prosequi' or 'offering no further evidence' there was no more satisfactory means by which the proceedings could be brought to an end.

On 15th February, 1967, Parkes was told that the case against him had been dropped, and that he was released from arrest. The next day he collected a temporary certificate of discharge from the Army; he received a final certificate of discharge with effect from 15th February. The commanding officer later endorsed the charge sheet, 'Case dismissed'.

Parkes was subsequently arrested by the civil police on charges of perjury arising from his appearance before the magistrates in June-July, 1966. On 24th July, he pleaded guilty at the Stafford Assizes to five charges of perjury, and was sentenced to 12 months' imprisonment. His application for leave to appeal against the sentence was rejected on 5th October, 1967.

Some of the circumstances which together persuaded me that Parkes should be released arose from minor errors of judgment which have been brought to the attention of those concerned. But the case has revealed inadequacies in the law as it now stands, which I am sure the House would wish to see corrected.

There is a lack of clarity in the existing law in two fields: first, in the circumstances in which the respective powers of arrest under Sections 74 and 186 of the Army Act should be exercised; and, second, in the way in which military disciplinary procedures may be stopped once they have started—in particular, where a man has been released from custody, as in this case. When the Army Act is next reviewed, consideration will be given to redefining the respective civil and military powers of arrest of absentees and deserters, and to providing, in the course of military disciplinary procedures some analogy to the civil processes of 'offering no further evidence' or 'entering a nolle prosequi'.

Meanwhile, instructions have been issued to Army Home commands, and incorporated in Queen's Regulations, that suspected deserters and absentees should not be arrested under Section 74 of the Army Act unless they admit that they are soldiers, and also that, where suspects have been arrested by the civil police and discharged by the magistrates, they should not be rearrested in the United Kingdom (except Scotland) under Section 74."