HL Deb 30 May 1945 vol 136 cc265-76

2.11 p.m.

Order of the Day for the Second Reading read.


My Lords, I beg to move that this Bill be read a second time. The intention of the measure, as is indicated in its title, is to make all cases of treason and misprision of treason triable in the same way as cases of murder. Its provisions are absolutely confined to matters of procedure and it does not make any change whatever in the law as to what constitutes treason. The Bill is applicable to England, Scotland, Wales and Northern Ireland. The law of treason is embodied, as many of your Lordships will know, in a number of Statutes, many of them of considerable antiquity. These Acts of Parliament impose a number of procedural requirements and lay down rules of pleading and evidence which are entirely distinct from those prescribed for any other offence. For instance, it is required that at least ten days before the trial takes place the accused must be given in the presence of witnesses a true copy of the indictment and a list of the witnesses and jurors, giving their names and professions and their places of abode. So fat as a copy of the indictment and a list of witnesses is concerned, the ordinary procedure before the examining magistrate nowadays is sufficient to secure that the accused has had due notice of the names and addresses of the witnesses and the evidence for the prosecution. The list of jurors is a safeguard against the packing of juries, which is rendered impossible by the modern system of summoning juries. In addition it is also provided under the old Acts that no person may be convicted of treason except upon the evidence of two witnesses, both of them to the same overt act, or one of them to one and another of them to another overt act of the same treason. No evidence can be given of any overt act that is not expressly laid in the indictment.

This curious procedure dates, I am told, from the Act of 1695, but even at that time it caused immediate difficulties about which I need not weary the House. Your Lordships will have seen from the terms of the Bill that we are merely extending to treason generally a principle which, by the Treason Act of 1800, was applied to acts of treason consisting of the assassination of the King or any direct attempt against his life and person, that principle being that the procedure should be the same in all respects as in trials for murder. The Treachery Act, which your Lordships passed in 1940, and which covered one of the most serious forms of treason, directs that any person charged with offences under that Act shall be prosecuted on indictment and, if convicted, dealt with in like manner with persons convicted on indictment of murder. If that procedure was, in the opinion of Parliament, adequate for all cases of treason involving attempts on the King's life and for cases of treachery under the 1940 Act, it is the view of His Majesty's Government—and I venture to think also the view of your Lordships—that it would be also adequate for all forms of treason, and the Bill provides accordingly that this procedure shall be followed in every case. There seems to be hardly any justification for the retention of the archaic provisions of the very old Acts which I have mentioned. The ordinary procedure which is common in all our criminal courts—the rules of evidence, the practice of a Judge in directing the jury on the evidence—are such that will secure a scrupulously fair trial, and it is on these, and not on the obsolete procedural provisions of the old Acts, that the avoidance of wrongful convictions or of any other mischiefs must depend.

As cases of British subjects likely to be prosecuted for treason may arise in the immediate future, it is important that the law should be amended now so that cases can be heard without the necessity of complying with obsolete requirements, and with a sure certainty that there should be no hindrance to the speedy and effective prosecution of such cases as and when they arise. I repeat that the Bill is confined solely to matters of procedure, and it does not make any change whatever in the law as to what constitutes treason. Perhaps I may explain the two clauses briefly to the House. The first clause applies the provisions of the Act of 1800, which I have mentioned, to all cases of treason and misprision of treason, and enables any trial for treason which is held after the date of the passing of this Bill to follow the procedure of a murder trial. The second clause makes it clear that the old Statutes enumerated in the Schedule of the Bill, which are being repealed, are those which relate only to the matters of procedure. With these few words, I commend the Bill to your Lordships and beg to move that, it be read a second time.

Moved, That the Bill be now read 2a.—(The Earl of Munster.)

2.18 p.m.


My Lords, I am sure that all your Lordships will be grateful to the noble Earl for the very clear and lucid explanation he has given. This Bill originates, as your Lordships will observe, in your Lordships' House. It is therefore our duty, in the Opposition, to see that it does not go beyond the needs of the times, for we are now altering the law permanently. It may be all right to speed up procedure for some of the scoundrels we have been lucky enough to apprehend in Germany and elsewhere, but this is the law for keeps and I think it is our duty to see that it is justified and reasonable. My noble friends and I feel that that is the case. The principal practical change, so one of my noble friends who has had a long legal training assures me, is that instead of three Judges sitting in a trial for treason there is to be only one. I think that that is right. The noble Earl did not make the point clear, but I understand that that is the principal change in addition to the other matters with regard to the notification of the number of jurors and so on. Your Lordships will no doubt have noticed that the Bill does not affect the position of members of your Lordships' House who may be accused of treason or misprision of treason. Our procedure of trial by cur peers is unaffected.

I presume that this Bill has been brought in now—indeed the noble Earl suggested as much—in order to make provision for dealing with people like Joyce and Baillie-Stewart, British subjects who have committed treason abroad, and I understand that there is Statute law enabling us to deal with these people in British Courts. As this is a Home Office Bill and the noble Earl continues with much distinction to represent the Home Office, in spite of the upheavals we have had recently in the Government—I am, personally, very glad he does—I would like to take this opportunity to ask him what is happening about Colonel Roche, who was taken in Italy.


Colonel Rocke.


Unfortunately, I believe he is an Irishman.


My Lords, I happen to know Colonel Rocke. He is not an Irishman, although he was in an Irish regiment.


At any rate, he is a British subject. I was sympathizing with my noble friend when I said that "unfortunately" he was an Irishman. His offence in Italy seems to have been on all fours with that of Joyce in Germany, and there is no word yet, though he was taken some months ago, of his being brought to trial. If the noble Earl when he replies can give any information about that, I am sure that your Lordships will be glad to hear it. Otherwise, I know that my noble friends will, in accordance with our policy of facilitating Government business in these last stages of the present Parliament, be very glad to assist the further stages of this Bill.

2.21 p.m.


My Lords, any alteration in the law of treason is a matter of some importance, and I think that my noble friend who has just spoken has been right to treat the matter in that spirit. For my part, I think that this Bill is an admirable one, and carries out an object which is very much to be desired. It looks to me as though its main purpose was to ensure that people who are accused of treason should be tried in the best way possible, according to the up-to-date methods which obtain in this country. There are only two things which I should like to mention—not to press upon the Government, but to mention in the hope that the Government will consider whether they are worthy of any consideration, in order that future ages may not think that they have been entirely forgotten.

The first is this. Those who are accustomed to read English history will remember that the great majority of people in the past who have been accused of treason have been members of this House. I hope that that will not continue to be the case in the future, but I should be very pleased indeed if the powers that be would consider this an opportunity for removing one of the quite obsolete rights of privilege which we possess so far as regards the cases with which this Bill deals. The object of the Bill, as the language of it shows quite clearly, is that the Treason Act, 1800, shall apply in all cases of treason and misprision of treason, but it does not carry that out so far as we are concerned; and if any unfortunate or evil-minded person who was a member of this House were to be accused of treason, I think it is exceedingly desirable that the provisions of this Bill should apply to him.

A good many of your Lordships know that in these days trial by oar peers is a most unsatisfactory method of procedure. It costs a great deal of money. That noble hall which we occupied quite recently on a great occasion has to be fitted out for the purpose of accommodating the noble Peers who are the jury in such matters. The trial is one of great expense to the defendant, who may, of course, be perfectly innocent. I know that this is not the occasion for any wide departure on the questions of privilege which arise as regards members of this House, but it does seem to me that it would not be difficult to add a few words to this Bill to say that for the purpose of this Bill the privilege of Peers should no longer exist, leaving it in other cases to be dealt with in what I hope will be the not-very-distant future.

The other matter which I wish to mention—but only for consideration, because I have not had the opportunity of considering these points with the care and diligence which those concerned with the drafting of the measure have been able to give to them—is this. It has been quite properly said by my noble friend Lord Munster that the Treason Act, 1800, included a provision that the procedure in cases in which the acts of treason consisted of assassination of the King or any direct attempt against His life and person should be the same in all respects as in trials for murder; and in those cases the provision as regards indictment no longer forms part of our law. In that connexion, there is one thing which I should like to be quite sure has been properly considered. Under the law as it exists at present, supposing that there is an indictment for treason, the indictment must contain a statement of the overt acts of the treason or treasons; and it is provided that no evidence may be given of any overt act that is not expressly laid in the indictment. I am not at the moment satisfied—though I dare say my dissatisfaction is not founded on a very great knowledge of the details of the case—that it would be wise to repeal that particular provision. All the other provisions seem to me perfectly useless now and out of date, and the rules applicable to an indictment for murder might very well be applied to a case of treason.

But treason is a very special case. There might be quite a number of overt acts sufficient for the purpose of an indictment for murder which could not at the present time be stated with sufficient particularity, as I conceive, to justify the indictment as one for treason, as the law now stands; and it does seem to me that if we are going to sweep away these particular provisions, which are not, it is true, as necessary now as they used to be, we ought to consider very carefully whether there may not be defendants who are not properly informed of the overt acts, with the particulars in question, on which the indictment is founded. It is certainly desirable that no evidence should be given of any overt act which is not expressly laid in the indictment, and that might be the case, though I agree that it is not very likely, in an ordinary indictment for murder. Those are the matters which I should be glad to hear that the noble and learned Viscount on the Woolsack and other have considered. I should also be glad to hear that they will give not unfavourable consideration to the question of abolishing the privileges of the Peerage in cases of treason.

2.29 p.m.


My Lords, on behalf of noble Lords who sit on these Benches, I should like merely to express our agreement with the Bill now before the House. The procedure in cases of murder has been proved over so long a period of time, and is so generally acknowledged to be meticulously fair to the accused person, that I think nobody could take exception if, when accused of treason, he found the same procedure applied to his trial as is commonly applied to the trial of persons accused of murder. I will only add, if I may, one word of support to the suggestion put forward by the noble and learned Viscount, Lord Maugham, that in cases where a member of your Lordships' House finds himself in the unfortunate situation of being accused of treason the privilege formerly accorded to him of being tried by his peers, with all the expensive and elaborate machinery involved, should no longer be preserved in being.

2.30 p.m.


My Lords, as one or two of the points raised are rather of a technical character, perhaps I might be permitted to say a word before we read this Bill a second time. I think the broad consideration which shows that this Bill is fundamentally right may be found in this circumstance, that these archaic and really wholly unnecessary provisions, as we must regard them to-day, have already been got rid of in certain classes of treason. It was so, as my noble and learned friend Lord Maugham has just reminded us, in the Statute of 1800. Then, after the attempt was made, as your Lordships will recall, by some lunatic on the life of Queen Victoria, Parliament passed a further Act, not mentioned hitherto in this discussion—in 1842 or thereabouts—providing that where the treason took the form of any attack on the person of the Sovereign the proceedings should be the same as the ordinary proceedings in the case of murder. The real reason why these archaic and exceptional provisions were made, mostly at the end of the seventeenth century, was that, shortly before, there had been some cases of treason in connexion with one or two alleged conspiracies in this country in which Parliament, after a due measure of reflection, did not feel at all sure that some people had not been convicted, and put through the frightful punishment which then applied to treason, without adequate proof. Therefore Parliament proceeded to enact these special precautions, to make sure that such things could not happen again.

All that is completely and absolutely out of date, as my noble friend the Under-Secretary for the Home Office said. We start now with proceedings before a magistrate. They are public proceedings, anybody can go to the court who likes and the case will be reported as far as the newspapers report. Of course the magistrate's business is not to decide whether the man is innocent or guilty, but to make sure that the evidence is properly collected and that the prisoner knows what the evidence is. Not only that, but if the magistrate commits him for trial, that is, if the man has not got off at the first stage, one of the essential duties is to secure that the depositions, the record of what has been testified against him, with the name of every witness and every detail, is provided to the prisoner as well as, of course, to the prosecution. Really under modern conditions there is nothing to be said for these archaic forms and they are merely clogging and inconvenient, with no possible advantage to anybody, whether innocent or guilty. That is the broad reason for the Bill.

As regards the specific points which have been taken, perhaps I might just be allowed to say this. The noble Lord, Lord Strabolgi, was perfectly right when he said that in certain classes of treason—not in every case—the trial hitherto has been before three Judges. Take a case which we recall at the time of the last war—the case of Casement. He was tried before three Judges, I believe. I believe the right position is that in the case of treason committed abroad three Judges are used, but in the case of treason committed here the accused has often been tried by one Judge, and it would still be possible to have that alternative. There is nothing in the Bill which will prevent a trial by three Judges if an order is so made on a proper application to the High Court; on the other hand, it is perfectly proper for a trial to take place before one judge. I believe it sometimes has already occurred in this country. I would not say however that this is the main effect of the Bill. The main change is to get rid of all these requirements about lists and the like, mentioning thirty jurymen, which was very proper when the accused might think he would get a jury which was prejudiced against him but has no sense at all when you have a long jury list out of which you take the necessary people; merely by taking names out of a hat. Of course the accused still has the opportunity of challenging any name if he thinks that he would not give him a fair trial.

Now comes this interesting point raised by my noble and learned friend Lord Maugham. I am sure he will suspect that this is a point which has been considered in connexion with the framing of this Bill. It is very much in my mind and if I had the opportunity—it is naturally a matter of uncertainty—when the occasion comes for introducing new legislation, one of the matters which I had planned was to secure that we should get rid of what I regard as this perfectly grotesque privilege of the Peerage altogether. I have lived during the war in considerable anxiety, tempered by my knowledge of the high character of all your Lordships, lest it should be my misfortune to sit there in the Royal Gallery in a special character and your Lordships would be required to attend, wearing robes, in order that a member of the Peerage might be properly tried—not necessarily for murder but for any felony. Most fortunately, hitherto such lapses as have occurred in the ranks of the nobility during the war have all been in the nature of misdemeanours, and we were able to avoid any extremely expensive and extremely inconvenient procedure. I would like to assure my noble and learned friend therefore that this has been by no means overlooked.

The Bill is a Home Office Bill and we did come to the conclusion—and I was consulted about this—that really it would be better to deal with this specific point in a more general Bill. We have to remember that the last time a Bill was promoted in this House by the then Lord Chancellor, by Viscount Sankey, to get rid of this quite ridiculous privilege of the Peerage to be tried for treason or felony by their peers, the proposal was rejected by the House of Commons. There may be some among your Lordships sitting in this peaceful and non-elective Chamber who are conscience-stricken when I remind them that if they then sat in the House of Commons they may have resisted this very proposal. But coming here, they have learned wisdom. And I certainly would give the most firm assurance to my noble and learned friend that as far as it is within my power I shall hope to induce the Government to introduce legislation in the next Session.

I cannot say more, because that of course depends on electoral developments and the general situation. But it is in my mind and it is one of the things we have talked of together for a long time. I am sure that we should get rid of it on every possible ground. My advice to the House would be that we should not have two bites at it, because of course really inconveniences are far more likely to arise in connexion with other charges than with those matters which are dealt with in the present Bill. That is my view of the position, but if the Under-Secretary will agree with me we will certainly take the opportunity of discussing this in the course of conferring with the noble Lords who raised the point. I do not suppose anybody has made up his mind fixedly. I think the argument is rather in favour of keeping this Bill to the single purpose of getting rid of purely archaic matters of procedure connected with treason. I do not think your Lordships will differ on that at all.

There was one other question raised by my noble and learned friend Lord Maugham. He just raised tentatively the question whether or not, if we repealed the ancient provisions which required every overt act to be set out in the indictment, we were not perhaps introducing the possibility of some laxity. That is the substance of what my noble friend asked, not indeed criticizing the proposal, but merely asking the question. I think the answer really is that now we have got a comparatively recent Statute, the Indictments Act of 1915. There is a general provision in it that every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information to him as to the nature of the charge. As my noble friend well knows, Judges presiding at these trials are strict about this and will not allow anybody to drag in new matter without notice being given to the accused, which is only fair.

There is just one point I should make on the matter of the privilege of Peers. This Bill could not possibly affect that as it stands because, as you will have noticed, all that this Bill says is that "A. B." if charged with treason can be tried under the same procedure as if charged with murder.

2.42 p.m.


I should like to raise a point of order with the noble and learned Lord Chancellor. I understood he was going to consult the noble Lords concerned in the matter to see whether the Bill should be amended in the way suggested by the noble Viscount, Lord Maugham. My point of order is that it would be quite impossible to deal with the question of the Peerage in this Bill. The whole Bill would have to be withdrawn altogether. This deals only with the question of treason and misprision of treason and not with the other offences for which your Lordships are entitled to be dealt with by your peers. It does not deal with bigamy, felony and so on, and it would be utterly impossible to deal with those matters without withdrawing the Bill.


I did not suggest it should.


The matter was rather sprung on us by Lord Maugham and I hope it is not proposed, if we give Q Second Reading to this Bill, to make any such attempt.


I think the noble Lord has a little misunderstood, not myself but what the noble Viscount, Lord Maugham, said.


He has entirely misunderstood me.


The noble Viscount, Lord Maugham, was not suggesting that in this Bill we should get rid of the whole privilege of the Peerage. He was suggesting that so far as treason and misprision of treason are concerned we should, in respect of those offences, get rid of the privilege of the Peerage. My own view is that we should get rid of it altogether. If anybody has any strong feelings on this matter—I am sure the Home Office would agree with this—we would like to receive those views because we shall certainly not shut our minds in advance to such a proposal.


I thank the noble and learned Viscount on the Woolsack for what he has said, and I am afraid my noble friend Lord Strabolgi entirely misunderstood what my desire was.


My Lords, there is one further point before the question is put to your Lordships. I think it would be for the convenience, certainly of the Government and of your Lordships, that we should pass this Bill through the remaining stages to-morrow afternoon. Subject to what your Lordships would say, that is the course I suggest to the House.


What about Colonel Rocke?


That will not arise on this Bill.

On Question, Bill read 2a, and committed to a Committee of the Whole House.