COURT-MARTIAL (NEWSPAPER COMMENTS) (Hansard, 1 February 1951)
HC Deb 01 February 1951 vol 483 cc1074-9
Sir G. Jeffreys

(by Private Notice) asked the Attorney-General whether his attention has been drawn to the fact that the "Daily Express" newspaper is proposing to take a public opinion poll on the merits of the unconfirmed finding and sentence recently passed by a court-martial in Korea on Private Fargie, and since this court will thereby be held in contempt what action he proposes to take.

The Attorney-General (Sir Hartley Shawcross)

Yes, Sir. I have given anxious consideration to this matter and cannot help thinking that the legal status of these proceedings has been misunderstood. Once a court of justice has concluded its proceedings and a final decision has been given, that decision is rightly open to public criticism and attack, but it is equally important that so long as a case is sub judice, nothing should be done which may directly or indirectly tend to influence those whose duty it is to reach a judicial conclusion upon it.

As my noble Friend, the Lord Chancellor, stated recently in another place, a case tried by court-martial remains sub judice until confirmation is complete and any comment in the meantime is improper. Not only must the confirming authority be completely unfettered in arriving at its decision by any outside pressure, but it must be remembered that the confirming authority may send a case back to the court-martial itself for reconsideration of the finding and sentence or either of them.

It follows that any attempt to organise public opinion in a manner calculated to influence either the confirming authority or the court is improper and may constitute both a contempt of court and, in certain circumstances, a public mischief. I am, therefore, considering what action should be taken in this particular case.

Sir G. Jeffreys

Is the right hon. and learned Gentleman aware of the harm which is being done through the publication of some Press comments on this and other courts-martial, and that both the discipline of the Service and the confidence of sentries in carrying out their orders are being undermined by the spread of these stories and the comments upon them? As a court-martial is an open court, would it not, in future, be advisable, before announcing or when announcing the findings of the court, to publish the charges in each case and a brief summary of the evidence given on which the findings have been arrived at?

The Attorney-General

I shall give consideration to the second part of the hon. and gallant Gentleman's question in consultation with my right hon. Friend the Secretary of State for War. So far as the first part of the question is concerned, I agree that this is a most serious matter. In certain foreign countries trials are commenced or even partly conducted by means of popular and ill-informed clamour, but in this country judicial trials are conducted by those who are appointed to try cases in accordance with the law and on the sworn evidence before them.

Mr. Churchill

As I understand the position from the right hon. and learned Gentleman, the confirmation of the court-martial sentence is an integral part of the sub judice proceedings of the trial, and all the free comment, which is perfectly legitimate after the sub judice phase, must be withheld until then.

The Attorney-General

The right hon. Gentleman has stated exactly the position as I conceive it to be. When the proceedings are concluded and a valid decision has been given and confirmed, then, as a judge once said, the court itself is on trial and proper comment may be made. Until that stage, any comments on its merits are wholly improper and undesirable.

Mr. Bellenger

Although the House will accept completely the answer given by my right hon. and learned Friend to the particular question put by the hon. and gallant Gentleman opposite, is he not aware that there is a deep public concern at the legal interpretation or the legal implications of this trial, and that it may be necessary, later on, to take up the matter in this House?

The Attorney-General

That is exactly the kind of comment which, I think, is very much to be deprecated at this stage. I have no doubt that such public feeling as may exist about this matter is based on inadequate information of the evidence before the court. It was, I think, only last Monday that we were considering, on the Courts-Martial (Appeals) Bill, whether it would be proper to give the right of appeal against sentences to the new Court of Appeal to be established in these matters, and it was, I think, the general consensus of opinion in this House that the court-martial itself was the most proper body to decide what, at the time and in the circumstances existing at the place of trial, was the just sentence to impose.

Sir H. Williams

On a point of Order. As I and other hon. Members have Questions down with b regard to this particular case, may I ask, Mr. Speaker, in view of what the learned Attorney-General has told us, whether you think it is desirable that these Questions should be taken off the Order Paper?

Mr. Speaker

I would like to look at the Questions, and then I would know exactly what they were. At the moment, I cannot answer that question off-hand.

Mr. Paget

Can the learned Attorney-General tell us whether there is any precedent for proceedings against any person for contempt of a court-martial taking place outside this country, and whether there is indeed any power to bring such proceedings?

The Attorney-General

I have no doubt that there is ample power to bring them. There are certainly precedents for persons taking proceedings for contempt of court in respect of a court-martial at common law, and special procedure is provided under Section 126 of the Army Act which does not in any way prejudice the right to proceed at common law for contempt of court. This is a British court of justice, and I have no doubt that the High Court will protect it against contempt.

Mr. Somerset de Chair

Can the learned Attorney-General make it clear that, irrespective of this particular case, any private who carries out his duty on active service to the best of his ability will have—

Mr. Speaker

That does not arise out of this Question. This matter concerns the conduct of the "Daily Express" and nothing else.

Mr. Sydney Silverman

In view of the point of order made a moment or two ago by an hon. Gentleman opposite and your ruling thereon, Mr. Speaker, and now that the Attorney-General has declared that these proceedings are in fact sub judice, would not in fact any Question on the Order Paper on this matter be out of order?

Mr. Speaker

I thought that was a hypothetical question. I should like to see the Questions first. I cannot say in advance.

Earl Winterton

On a point of order. You and your predecessors, Mr. Speaker, have constantly held that no questions can be asked about a case in an ordinary court of law which is the subject of appeal, and I understand that the Attorney-General has stated, with all the authority attaching to his office, that this particular case is in exactly the same position as that of a case which is going before the Court of Appeal.

Mr. Speaker

I know the position perfectly well, but is it not reasonable that I should be allowed to see the Questions first. I do not know what they are about.

Earl Winterton

May I say, Mr. Speaker, that I am in no way commenting on your Ruling, which would be a most impudent thing to do. I was asking you to give a Ruling on a matter of great importance—whether the two cases are not exactly the same in view of what the Attorney-General has just said, and whether this matter is not in the same position as a case that may go to' the Court of Appeal?

Mr. Speaker

If a Question merely mentions the name Fargie and has nothing to do with the proceedings of the court-martial, it would be in order. I must ask that I be allowed to see the Questions and allowed to decide.

Captain Ryder

In view of the important Ruling given by the Attorney-General, may I ask whether it is not a fact that the Admiralty have a right to quash court-martial proceedings at any time? Will he say, in these circumstances, at what precise moment the case ceases to be sub judice?

The Attorney-General

The hon. and gallant Member is asking me a hypothetical question, and I am always a little loath to answer a hypothetical question. But this, at least, is clear. There can be no doubt about it that until the decision and sentence of the court-martial has been confirmed the matter is unquestionably sub judice. I think that the case is really a fortiori to the one put by the noble Lord. There is at present no valid decision or sentence. That only arises when confirmation is given by the confirming authority. If there is a decision after that to quash a conviction made valid by the confirming authority, other considerations might arise; but they have not arisen so far. I prefer to confine myself to the categorical statement that, until confirmed, the proceedings are sub judice.

Sir Peter Macdonald

I wish to raise the same question as that put by the hon. and learned Member for Northampton (Mr. Paget), and that is in regard to a court-martial held outside this country. Is it not a fact that any Army or Royal Air Force court-martial comes under the jurisdiction of the Judge Advocate General, and that it is therefore valid in whatever country it is held?

Mr. Speaker

I really think that we are getting very wide of the subject. This Question deals with the conduct of the "Daily Express," and nothing else. We now appear to be discussing the whole question of courts-martial, which is a subject we discussed the other day.

Mr. McAdden

If I understood the Attorney-General correctly, his criticism of the "Daily Express" was based on the fact that they ventured to comment on the case before the proceedings have been confirmed. May I ask whether he remembers the Linsell case? Did he issue any rebuke to the Press for their comments on that case, or was not his failure to rebuke them on that occasion a justification for the Press considering that they were entitled to comment upon this case?

The Attorney-General

I was not asked any question about that matter at that time, but I did preface my reply today by the statement that I thought possibly there had been a misunderstanding about the legal status of court-martial proceedings which had not yet been confirmed.

Mr. C. S. Taylor

In view of the fact that court-martial proceedings are sub judice until after confirmation, may I ask whether every effort will be made to expedite the confirmation procedure in this case?

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