§ 4.35 p.m.
§ LORD SHACKLETON rose to call attention to the case of Christopher Swabey, former Lieutenant-Commander, R.N., who was court-martialled in 1956, and to request Her Majesty's Government to set up an independent commission to inquire into all the circumstances of the case and to advise whether, in their opinion, there has been a miscarriage of justice; and to move for Papers. The noble Lord said: My Lords, I fear I have a rather long speech to make, because it is necessary to inform your Lordships, so far as possible, of all the circumstances which have led to my putting this Motion on the Order Paper. I hope to justify my actions, but, at the same time, I appreciate that it is not possible for us to attempt in Parliament to retry a case that has been through the ordinary process of the law, and I would not have raised this matter were it not that there is grave suspicion of a miscarriage of justice in this case.
§ Many people have interested themselves in this case. The late noble Marquess, Lord Reading, himself took it up; the noble Viscount, Lord Brent-ford, who had hoped to be here to support the Motion to-day, was another, as was the late Lord Bishop of Chichester, and people throughout the country have grave concern about it. I would mention in particular Admirals who are well known, such as Admiral James, who has given me authority to mention his name, Admiral Baillie-Grohman, and others. I would make clear straight away that this case has nothing whatever to do with the Vassall case. I mention this because certain newspapers have been constantly ringing me up, trying to link this matter with the Vassall case and also with the First Lord, and so I should like to say that the events in question took place before the present First Lord took office. Though I know that he will stand and clearly 1049 make his own case, as is proper for a responsible Minister, I must take this opportunity to say that, in my dealings with him over this case, which have gone on now for many months, he has shown great courtesy—I would even say, great sympathy, if that is not a word which would compromise him. It is certainly not intended to affect his position in the debate to-day.
§ This is a case which involves an accusation of a homosexual offence. The fact that it was a very minimal offence, as I shall seek to show in the course of the debate, does not alter the fact. Whatever our views may be with regard to the law on homosexuality, I would not attempt to suggest—none of us would—that homosexuality or the practice of it in the Royal Navy, or in any of the Armed Forces, must not be a matter of great concern. But it is my contention that, by an extraordinary combination of circumstances, a man, Christopher Swabey, has been convicted of an offence of which I believe him to be innocent. I hope at least to throw grave doubts on the rightness of the decision.
§ There is a strange combination of circumstances in which this officer has been caught up, and I should like to tell your Lordships something of the background. I should mention, not that it bears on the case, that Christopher Swabey is a son of a very distinguished naval family—his father was an Admiral—and he himself had a distinguished career in the Navy until, in December, 1949, when he was serving in the Mediterranean station, he was accused of an offence involving a rating. This accusation led to a series of charges, alleging, at the alternative, indecent assault, the committing of an act of indecency, and he was duly brought before a court-martial and acquitted of these charges. I may say, having studied the circumstances, that it is quite clear that he was rightly acquitted because of the evidence of a marine sentry who was nearby at the time of the event and it was inconceivable that he could have committed the offences. Nevertheless, he was convicted of behaviour unbecoming to an officer, in that he was drunk in circumstances which were, to say the least of it, unfortunate, and for this he was dismissed from the Royal Navy. Subsequently, their Lordships quashed this conviction, as I believe they had no 1050 option but to do as a result of the other findings.
§ I will not bother your Lordships with the details, beyond saying that he was, in fact, completely cleared at the court-martial of any charges in any way connected with the indecency; and, subsequently, his conviction was quashed in relation to the other charge. I mention this charge because it is the key to the whole story: it is the prejudice that arose from this earlier trial which I believe has gone very deep indeed and has even influenced those in the Admiralty who have had to come to a conclusion on the matter. I think that is all I need say on this particular point.
§ Lieutenant-Commander Swabey (as he then was) returned to service in the Royal Navy, where he had a successful career, and in March, 1956, he was appointed to the command of H.M.S. "Redoubt", proceeded to Malta and arrived to assume command there on March 22, 1956. Although it was some six years since he had been in Malta, we have evidence that there was a good deal of knowledge, and some talk, of the fact that he had been in trouble before; and we also have reason to believe that it was not known that he had been fully acquitted of these charges. Indeed, although it would not rank as evidence in a court of law, there is good reason to believe that there was discussion on board H.M.S. "Redoubt" the evening before he took command in which it was mentioned that he had previously been in trouble, and that the trouble was of a homosexual nature.
§ Shortly after he arrived he issued a general invitation to the officers who were to serve under his command, if they wished, to come ashore and have dinner with him. That was a perfectly natural request, directed mainly in the direction of the first lieutenant, by any commanding officer wishing to get to know his officers. A sub-lieutenant accepted this invitation. I do not propose to refer by name to the sub-lieutenant in the case, or indeed to certain other names, but only to those who are, so to speak, witnesses for the defence in this matter. Lieutenant-Commander Swabey and the sub-lieutenant (and I would stress again that the invitation had been given generally to the officers) went ashore and visited a number of clubs. It was alleged that Lieutenant-Commander Swabey, six years 1051 after he had returned to a place with such ghastly memories for him, within a few hours of his return, went ashore with the intention of committing a homosexual offence.
§ The story of that evening has been pretty closely pieced together. But the fact remains that at the end of the evening, on his drive back to the ship with the sub-lieutenant, Lieutenant-Commander Swabey was accused by the sub-lieutenant in very strong language of being a homosexual; and, to Lieutenant-Commander Swabey's great astonishment, the matter was reported to the first lieutenant. It is not surprising, with the previous events in his mind, that Lieutenant-Commander Swabey became very agitated—and this is an important point, because the only corroboration of this offence is related to the agitation he showed when he was accused of it. Shortly afterwards, the necessary processes were set in train, and eleven days later Lieutenant-Commander Swabey was sent or given an envelope containing an application for his trial by court-martial by means of a circumstantial letter, and with it, I understand, was the summary of evidence.
§ I will not read out the charges, but they concerned one charge of indecent assault, one of drunkenness and one of making a remark to a junior rating which was prejudicial to naval discipline. This remark I will get out of the way, because it is a very natural one, although an objectionable one in the circumstances. In his agitation, he said to a rating on the bridge: "The sub-lieutenant has got a persecution complex"; and he also used naval slang to say that he was drunk. As soon as Lieutenant-Commander Swabey had had these charges read over to him he denied the allegation. He was duly tried by court-martial; he was convicted on the first and third charges, but not on the drunkenness charge, and was dismissed from the Service.
§ It is at this point that I wish to begin the criticism I have of the conduct of this particular court-martial. The problem confronting the lieutenant-commander and his advisers was whether to refer to these previous charges of which he had been acquitted—whether, in fact, they would be prejudicial to him; and they took, in effect, the wrong decision, 1052 as I shall seek to show, and did not refer to them at the trial. I am informed (I am no lawyer) that in any matter of an indecent assault, or any matter of this kind, it is very important in the eyes of lawyers that there should be some corroboration—indeed, it is almost essential if a conviction is to be obtained. In cross-examination a number of questions were asked which provided Lieutenant-Commander Swabey with an almost impossible task. They were questions of a kind which he would have been unable to answer convincingly without referring to the previous events. One witness was a taxi-driver. He gave evidence that he heard nothing. The allegation that there was a quarrel, and the allegation by the sub-lieutenant that a blow had been struck, were all denied by the taxi-driver.
§ We want to know how it is that an honourable man, as I accept the other officer in this case is, should have come to believe that a homosexual assault had been made on him. I should like to stress that this was of a very minimal kind. Lieutenant-Commander Swabey was alleged to have stroked his thigh over his trousers. One might say that, if he really had had too much to drink, he might equally have stroked a lamppost at that moment. None the less, I accept that in the circumstances this could be regarded as an act of indecency. We need to know how it was that a sub-lieutenant should have considered that he was in the company of a homosexual.
When the sub-lieutenant was cross-examined on this point he was asked why he did not leave Lieutenant-Commander Swabey's company at the beginning of the evening, when he alleged that these homosexual advances began. He said:
I was not prepared to do that, because if he was a homosexual, I was going to tell him so, and if he was a homosexual who had intentions towards me, I was not going to either compromise and say that his intentions were unwelcome or accuse him of being a homosexual and do nothing about it and then live with him in the same ship having him for commanding officer for the next eighteen months.
§ This might be thought a reasonable statement; but it was made in relation to events at the very beginning of the evening. I should have thought it quite extraordinary that anyone should think 1053 that a casual contact—which is little more than what was alleged; namely, that Swabey had leant up against him—was an act of a homosexual, unless there was already some reason on the part of the sub-lieutenant to believe that his commanding officer was prone to these tendencies. The reason, I would submit, for this belief (and lawyers will know what extraordinary things people believe in regard to indecent assaults) arose from the conversation, in which it was stated that Swabey had previously been convicted of a homosexual offence. I might add, in passing, that on no occasion, other than these two incidents, has there ever been any suggestion— and there are officers to testify to this—shat he had homosexual tendencies.
§ My Lords, I should like now to turn to the trial. In the circumstances, the complaint having been made against Swabey within 48 hours of his return to the same place where he had been tried for a similar offence only six years before, it was clearly essential that every step should be taken, not only to bring the proceedings within the four corners of the Admiralty's Rules, but also to see that he received a fair trial. The decision to hold the trial at Malta on the accusation which the sub-lieutenant had made, virtually made a fair trial impossible; because, I would submit (and again we have reason to support this view), many people in Malta were aware of the previous trials. The defence did not at that time know the extent of the rumour and gossip which existed in Malta about the earlier court-martial, but as certain affidavits which I have here, and which were not available to the court-martial, will show, there is no doubt that Malta began to buzz with recollections of the previous incidents.
§ The next point that I have to criticise is in regard to the composition of the court itself. I expect the court was composed and constituted under the rules, but it was surely quite extraordinary that the convening officer and prosecutor, a senior officer, a commander, a barrister, with long experience in the Navy, should have chosen the role of prosecutor for himself, and should have appointed as the deputy judge advocate a lieutenant with, I believe, little, if any, experience of courts-martial. This point is of import- 1054 ance, not because I wish to criticise the actual performance of the deputy judge advocate, but because I wish to criticise the relative lack of weight he would have in a naval court-martial, as opposed to the position of the full commander who acted as prosecutor. Indeed, this decision could not now take place, because the Admiralty have re-written Queen's Regulations, and have adopted in almost precise terms the recommendations of the Pilcher Committee—which, incidentally, had reported five years before—which made it quite clear that in every case of a complicated character, the judge advocate should be chosen from King's Counsel (as they were then known), other barristers experienced in the English criminal law, the Deputy Judge Advocate of the Fleet or former holders of that office; and that in cases of less difficulty and gravity, Staff Supply Branch officers should act. This officer, the deputy judge advocate, who I think quite clearly did well in the circumstances, was not qualified under any of those headings. The importance of this, of course, is in the weighing of the evidence on the part of the court.
§ The next point to which I wish to turn is the absence of a preliminary investigation. Here, I am in a difficulty, because Queen's Regulations are obscure on the subject. They require that there should be a preliminary investigation at which the witnesses will make their statements, and at which the accused will have an opportunity to cross-examine, if necessary with the help of a friend, who in this case would have been his own counsel. In this case there was no preliminary investigation, and the reason given, which was subsequently shown to be untrue, was that the ship was at sea. The effect of this was to prejudice the defence. I would submit that there ought to have been a preliminary investigation, and it is of great importance in regard to the line the defence would have taken in regard to this problem of corroboration. If there had been a preliminary investigation, those advising Swabey prior to the court-martial would have been able to judge the prosecution case, and would have immediately appreciated the emphasis which the prosecution had to place on the only piece of corroborative evidence—namely, the behaviour of Swabey on board H.M.S. "Redoubt" immediately after his return.1055
§ It is a fact that there was no corroboration other than his behaviour, and in these circumstances the absence of a preliminary investigation cannot be regarded as a pure technicality. Bearing in mind that the trial was to be held in Malta, the defence were placed in a very difficult position, since they had had no opportunity to consider the prosecution's case other than from the circumstantial letter and the summary of evidence. They had to decide whether to bring the 1950 court-martial to the notice of the court. If they did not, then Swabey's behaviour on returning to his ship must go unexplained. If there had been a preliminary investigation they might have taken a different line. I do not say that they would, but they might well have done. But in the event, they took the wrong decision. In the subsequent proceedings before the Courts-Martial Appeal Court it was ruled that if the court had chosen to consider Swabey's behaviour on board ship, the agitation which he showed, as corroborative evidence, they were entitled to do so. Therefore, I hope your Lordships will see the significance of this absence of the preliminary investigation. The absence of this knowledge prevented the defence suggesting in the cross-examination of the sub-lieutenant why he began so early in the evening to think that he was in the presence of a homosexual.
§ The next point with which I wish to deal is the evidence of the taxi-driver. I have here the actual statement that he gave to Swabey and some officers who sought him out in order to obtain his help as a witness for the defence. The statements which were made by both Lieutenant-Commander Braithwaite and Commander Prescott showed quite clearly that the taxi-driver denied utterly that anything took place in his taxi. All he said was, "You were merry". He was asked: "Did you see any scuffle or fight in the back?" He said, "No, Sir." He was then asked: "Can you be sure that nothing occurred?" He said, "Yes, Sir, your feet were up; you were asleep, Sir", and so on. The fact that the taxi-driver heard nothing, and the officers saw nothing was important evidence which corroborated Swabey, and was in conflict with the evidence of the sub-lieutenant. But this did not prevent the 1056 prosecuting officer, the experienced officer, from dismissing the evidence of the taxi-driver and suggesting that it contributed nothing at all. In this respect, the prosecutor was acting in contradiction to Queen's Regulations, where it is made perfectly clear that he must in fact behave with absolute fairness and, in particular, it is said that it is not part of the prosecutor's duty to press for a conviction but to establish the truth so that justice may be done.
There were other aspects of the performance of the prosecutor. He attempted to create prejudice in the minds of the court because Swabey, as he was perfectly entitled to do, accompanied by officers, had sought to find the taxi-driver. He also asked questions, as I have already remarked, and I have a copy of them here, which could be answered only by a reference to the previous case, which the prosecution knew perfectly well could not be brought into the hearing. Finally, he made a statement which, I am advised by those more expert in the law than I am, was a most improper one. In the final speech for the prosecution he said:
To end on a somewhat personal note, at a recent court-martial I was approached by the president afterwards and he said that, 'we were all quite sure that he did it but the prosecution did not prove it.' If you are quite sure in this case, then the prosecution has discharged its burden of proof.
I have been told by learned counsel that this might even be grounds in a civil case not only for telling the jury they must put it from their minds but even for discharging the jury. But, irrespective of that, nothing was said to correct this unfortunate and improper remark.
§ I have here an affidavit from one officer who accompanied Swabey during part of the evening and, incidentally, denied that anything happened during that evening; indeed he was invited to join them for dinner and it was only because he had another engagement that he was unable to be present. This officer, Commander Blackburn, D.S.O., was present at the court-martial. He reported to a room marked "Witnesses not seen", where he met a young lieutenant whom he had met previously. The lieutenant said he was to be deputy judge advocate and was extremely nervous because he had never carried out this duty before. 1057 Not surprisingly, Commander Blackburn was rather amazed at this.
During the trial the prosecutor, prosecution witnesses and two spectators were discussing the trial in the same room in Commander Blackburn's hearing. Commander Blackburn heard the prosecuting officer say:
I cannot see how they can possibly find Swabey guilty, but whatever happens I think he would be well advised to leave the Service.
During lunch on the second day of the trial, and after the verdict, the prosecutor, who was sitting next to Commander Blackburn, said that it was a very courageous finding, and when Commander Blackburn asked whether the court was going to continue with the other two charges he replied:
They will have to. The Admiralty will quash the finding on the first.
Commander Blackburn saw during the second day a celebration taking place among the prosecution witnesses. He suggests there was a general atmosphere of collaboration, which has also been brought out by another witness, a doctor who was present, who suggested that the drunkenness charge should be thrown out because he thought the evidence was altogether too pat. I could go on at considerable length about the details of the trial, but there are others of your Lordships who are familiar with the case and who will, in fact, be dealing with certain aspects of it.
§ I should like to turn very briefly to the events that followed. I have already mentioned that Swabey appealed to the Courts-Martial Appeal Tribunal, where leave to appeal was refused on a point of law particularly in regard to whether Swabey's agitation could be properly taken as corroboration. But, of course, the Courts-Martial Appeal Tribunal were not enabled to know what the reason for that agitation was. Speaking as a layman, I should have thought most people would be agitated if they had a charge like this thrown at them; that if someone had been engaged in a similar set of circumstances a few years before and could remember the agony of it, it was not surprising that he showed agitation. And the Courts-Martial Appeal Tribunal refused leave to appeal on the grounds that there was nothing wrong in regard to the summing-up and that the court could in fact accept his behaviour as corroboration.1058
§ Having been refused leave to appeal, representations were made to the Admiralty, as the reviewing authority, and ever since 1957 the matter has been going to and fro. From August 1, 1957, until October 24, 1958, there was discussion as to whether the Admiralty themselves would refer it back, and on one occasion the Admiralty gave an unequivocal promise that on terms which they had themselves stated they were prepared to refer it to the Courts-Martial Appeal Tribunal. But either they broke their promise knowingly or were so badly advised in law that they did not know, although Swabey's own legal advisers pointed it out to them, that the terms in which they proposed to refer it back to the Courts-Martial Appeal Tribunal were not possible ones. They even stated at one stage that they were going to brief counsel in regard to this matter. It never came through, but we have in writing their promise that it should be referred back.
§ After this disappointment further representations were made by the late Lord Bishop of Chichester and then by the late Lord Reading. The Admiralty considered them. On the last occasion they considered them for fourteen months, and it could be argued that the Admiralty in this matter were taking great care; but this would suggest either that they were not bothered or that they had genuine doubts, and it is because of these genuine doubts and because this case has had no opportunity of going to appeal that I am now driven to raise it in the House.
§ There is one other small example I will mention. I must make it clear that, although I do not wish in any way to make any imputations against the Royal Navy, I submit that the Admiralty have not behaved well in this case. I mentioned that the preliminary investigations or the absence of them is a cardinal point. The reason given for there being no investigation was that H.M.S. "Redoubt" was at sea, but I may say that this did not prevent the prosecutor from getting his statements. The Admiralty said they had no evidence that Swabey had been told that the reason there had been no preliminary investigation was that H.M.S. "Redoubt" was at sea. Swabey remembered definitely that at the time he was charged a letter was read to him giving this as the reason. But the Admiralty were unable to trace 1059 the letter and, indeed, when the officers who were present were asked, they denied that they had any recollection of it at all. It was not until some time afterwards that finally the officer concerned was run to earth—I may say that at one stage the Admiralty were looking for and found the wrong officer because he had the same name—and he clearly recalled that at the time he charged Swabey on April 4 he had read from a letter that some document could not be handed over because H.M.S. "Redoubt" was either at sea or had been at sea. This is several years after the event, but it does throw rather surprising light on the trouble which the Admiralty claim to have taken in this matter.
§ I would sum up that we are dealing with a man who was falsely accused in 1950 and this was established. He was found not guilty of the offences involving indecency. For the following six years he had a very good record. Within 48 hours of arriving in Malta, the place where he was accused before, the same thing happened again. The people in Malta—and we have all the evidence of this—remembered the first case; the affidavits show this. In those particular circumstances it was of abundant and outstanding importance that the trial should be conducted in a fair way.
§ I have already mentioned there was no preliminary investigation. There was an inexperienced lieutenant as deputy judge advocate. We have checked up with other officers, particularly in the other Services, and one familiar with military courts-Martial described this particular court-martial as a "complete pantomime". Why in this case did the prosecuting officer, who was the senior officer—why did this commander barrister make himself the prosecutor instead of the deputy judge advocate? This could not happen to-day because Queen's Regulations have been rewritten. I would suggest that the court-martial were aware of the previous case. I make no imputation whatsoever against the uprightness and intention of the officers of that court to do justice, but the fact is that they had only an inexperienced deputy judge advocate to straighten the balance for them. The only witness was the taxidriver, and he corroborated Swabey's story; and yet the prosecutor attempted to minimise this.1060
§ There are in fact many other points I could go into. It is obviously an unsual thing to bring a case of this kind to the House. I would not have done so had I not been convinced there had been a grave miscarriage of justice. In this I am fortified by the opinions of counsel and others I have mentioned already, Admiral James and Admiral Baillie-Grohman, and many other people who have been connected with this case. All we are asking is that some sort of attempt should be made really to look into all the aspects of the case in the light of the evidence I have mentioned—in the light of the admitted error on the part of the defence, but an error induced by the mishandling of the preliminary investigation. I am requesting the Government to set up such an inquiry. I am not even asking the House to resolve that a committee of inquiry be set up. If the Admiralty had been able to honour the undertaking that the case would go to the Courts-Martial Appeal Tribunal the matter would not have been raised here. I hope the Admiralty and the Government will consider this case sympathetically and will suggest they are prepared to see justice done. I beg to move for Papers.
§ Moved, That there be laid before the House Papers relating to the case of Christopher Swabey, former Lieutenant-Commander, R.N., who was court-martialled in 1956, and to the desirability of an independent commission being set up by Her Majesty's Government to enquire into all the circumstances of the case and to advise whether, in their opinion, there has been a miscarriage of justice.—(Lord Shackleton.)
§ 5.13 p.m.
§ LORD CARRINGTON
My Lords, the noble Lord, Lord Shackleton, and other Members of your Lordships' House have from time to time raised with me the case of Mr. Swabey. I know very well that the only reason the noble Lord has done so and the only reason why he has felt obliged to raise this case in your Lordships' House this afternoon is his fear that an injustice may have been done. I want to say at the outset that I have not the smallest complaint either that the noble Lord has raised this matter or about the way he has raised it. I would ask him to believe that it is just as much my concern as it is his to be sure that no injustice has been done to 1061 anybody for whom the Board of Admiralty have responsibility. I would also ask your Lordships to believe that the decisions which the Board have taken —and this is my responsibility—have not been taken without long and careful thought.
Perhaps it would be right if I started my remarks—which will be short, as my noble and learned friend the Lord Chancellor is also speaking in this debate and will answer the detailed points of law which the noble Lord opposite has raised —by making it clear what the responsibilities and the procedure of the Board of Admiralty are as the reviewing authority of naval court-martial. In every case after a court-martial, findings of guilty and sentences are reviewed as soon as possible after the records of proceedings are received, and whether or not there has been a petition. In conducting their review, the Board have the benefit of a report from the Judge Advocate of the Fleet, an experienced barrister, who will also have studied the proceedings. The primary duty of the Judge Advocate of the Fleet is to consider whether there are any legal defects in the proceedings, such as the admission of improper evidence or misdirection. But as a matter of practice he also draws the attention of the Board to any disquiet he may feel on matters of fact.
Any petition received is similarly most carefully considered. If it is rejected, or if the Admiralty do not complete their consideration of it within a statutory time limit, the person convicted can apply to the Courts-Martial Appeal Court for leave to appeal. Under Section 5—and I ask your Lordships to notice this—of the relevant Act, that Court will allow the appeal if it thinks that the finding of the court-martial is unreasonable or cannot be supported having regard to the evidence, or involves a wrong decision of a question of law; or that, on any ground, there was a miscarriage of justice.
Even if the Appeal Court dismisses the appeal, there is a possibility of a further appeal to the House of Lords. Thus the appeal procedure in these matters of Service law is very similar to that available under the ordinary law of the land. Furthermore, the Court-Martial Appeals Act, in Section 20, makes provision in certain circumstances for special reference to the Appeal Court by either the Judge 1062 Advocate of the Fleet or the Board of Admiralty, Additional to the procedure of review and appeal which I have described, it is still open to the convicted person to petition the Admiralty at any time, for it is the Board's invariable practice, even after they have fulfilled their statutory obligations to review, to give careful consideration to all such petitions, however late they may be received, provided only that they are not repetitive and not frivolous.
Although the Board of Admiralty are laymen, I think I have shown that, when they are fulfilling their responsibilities as a reviewing authority, they have ample legal advice available to them, to which they pay full regard. Apart from the constant advice of the Judge Advocate of the Fleet and the possibility of special reference to the Appeal Court, within the limits of the Statute the Board can, and in appropriate circumstances do, and in this case did, seek the opinion of the Law Officers of the Crown.
My Lords, these then are the powers and duties of the Board of Admiralty and their practice over and above their formal obligations. I think now that the House ought to know what in fact was done and how they fulfilled these responsibilities as reviewing authority in the case of Mr. Swabey. He was tried by court-martial at Malta, on the 16–17 April, 1956, on charges of indecent assault, of being drunk on board, and of acting to the prejudice of good order and naval discipline in making an improper remark to a naval rating. Mr. Swabey was defended at his trial.
§ LORD SHACKLETON
My Lords, I am sure the noble Lord the First Lord would not mind my interrupting him to say that the improper remark was not improper in a sexual sense.
My Lords, before the noble Lord replies, could I ask him whether it is a fact that when this case occurred the Appeal Court procedure had not been set up?
§ LORD CARRINGTON
My Lords, if the noble Lord will allow me to go on, I think he will see what did happen. Of course it was not an improper remark in the sense to which the noble Lord, Lord Shackleton referred.
Mr. Swabey was defended at his trial by a barrister practising in Malta who is a barrister of Gray's Inn and who had 1063 served for two years in the Judge Advocate General's Branch. He is a barrister who has had experience of court-martial work and has appeared many times for the defence at Navy, Army and Air Force courts-martial. He has handled many cases which have been concerned with charges of indecency, and had defended Mr. Swabey at his previous court-martial. He has the reputation of being an able and astute advocate.
As the result of the court-martial Mr. Swabey was found guilty on the first and third of these charges and acquitted on the second, and was sentenced to be dismissed from Her Majesty's Service. I realise that this sentence may seem severe in relation to the offence, but I would remind your Lordships that in the intimate conditions of naval life the strictest standards of personal conduct are necessary, and Mr. Swabey's offence fell into a category which must be regarded as incompatible with retention in the Service. The proceedings were reviewed by the Judge Advocate of the Fleet and the Board in the ordinary course; but before the review was completed, Mr. Swabey submitted a petition to the Admiralty on 12th June of that year. After careful consideration of the proceedings and the petition neither the Judge Advocate of the Fleet nor the Board saw any reason to dissent from the conclusions of the court-martial, and the petition was accordingly rejected on 16th July.
On the 26th July, 1956, he applied to the Courts-Martial Appeal Court for leave to appeal. The Lord Chief Justice of the day, Lord Goddard, Mr. Justice Hallett and Mr. Justice Ashworth, considered this application on 5th November, 1956, and refused leave to appeal after hearing argument on Mr. Swabey's behalf by Sir Peter Rawlinson, Q.C., the present Solicitor-General. On the 11th April, 1957, Mr. Swabey petitioned Her Majesty and, again after careful consideration by the Judge Advocate of the Fleet and the Board, this was rejected on 3rd June, 1957.
Since then the Admiralty have received a series of representations from Mr. Swabey, his mother, Lady Swabey, his solicitor and a number of people interested on his behalf, including the noble Lord opposite and others of your Lordships.
1064 These representations have all been fully considered and the Board and their advisers have carefully weighed every argument that has been put forward on Mr. Swabey's behalf. There were a variety of bases for these petitions and representations, most of which have been raised by the noble Lord opposite in his speech this afternoon; and for reasons which I will explain in a moment to your Lordships I do not propose to go into them in detail myself. It will suffice to say that these representations culminated in a deputation led by the noble Lord, Lord Shackleton, which I received in November, 1961.
At our discussion the deputation went over all the points which caused them to doubt the justice of the finding against Mr. Swabey, and their case as a whole was presented by Sir Geoffrey Lawrence, Q.C. It was quite clear at my discussions with Lord Shackleton that he recognised that no fresh facts had come to light after the court-martial. What he asked me to do was again to look at the facts as they were at the time of the proceedings and the circumstances in which the court assembled and gave their judgment. He asked me, as the reviewing authority, to look behind the rules of procedure and consider whether in the broader sense justice had been done. The court, he said, had chosen to look at the matter one way, but that was not the only way in which it could or should be regarded. In effect, the noble Lord and his friends were asking me to do what the Courts-Martial Appeal Court exists to do—as I explained earlier in my remarks about Section 5 of the Act—and they had already done it when they considered the application for leave to appeal and found no grounds for granting it. Nevertheless, although I could perhaps have left it at that—
§ LORD SHACKLETON
My Lords, I must, I am afraid, correct the noble Lord. He keeps on linking Section 5 of the Act with the proceedings for leave to appeal. Section 5, which he mentioned, which gives the grounds on which the Court shall allow the appeal, has nothing whatsoever to do with the decision to give leave for appeal. My contention is that the Court has never had an opportunity to consider the case in full. It is the noble Lord who is using Section 5.
§ THE LORD CHANCELLOR (LORD DILHORNE)
My Lords, may I intervene? I cannot imagine the Courts-Martial Appeal Court refusing leave to appeal when it is their duty to allow an appeal on the grounds mentioned by the First Lord, and when they read and considered the whole of the proceedings.
§ LORD SHACKLETON
My Lords, if I may intervene again on this point, this really is the nub of the whole case. They read the proceedings, but they had before them none of the Affidavits or the explanation which has come to light.
§ LORD CARRINGTON
Perhaps I could leave that point to be dealt with by my noble and learned friend on the Woolsack, because I had gone on to say that nevertheless, although I could perhaps have left it at that, I do not wish you or he to think that because I have this afternoon omitted to mention many points of detail I overlooked this request. I have looked at the picture of the case that he and his friends presented and the effect of his detailed criticisms as a whole. Indeed, because I was most anxious to make sure that neither my predecessor nor I had overlooked any point or failed to give proper weight to their combined effect I decided, notwithstanding the decision of the Courts-Martial Appeal Court, to seek the opinion of my noble and learned friend on the Woolsack, who was then Attorney-General. Not only was he familiar with the legal aspects of the case, but he has, of course, an immense experience not only of the law and justice generally but also of courts-martial.
I asked him whether he would be good enough once again to look at the whole of this case and, from his experience, to advise me whether he thought there was any justification for the Board of Admiralty to interfere in this case. He not only studied the proceedings afresh, but also the representations of Sir Geoffrey Lawrence which Sir Geoffrey had, at my request, put in writing. My noble and learned friend subsequently informed me that he had read the transcript and could find no ground on which the Board of Admiralty would be justified in interfering in this case. It is because he has studied this case with great care that I have asked him, and he has been good enough to agree, to take part in this debate.
1066 Although your Lordships will welcome the participation of my noble and learned friend in this debate, and although he will deal far more authoritatively than I could hope to do with the legal aspects of this case, I must emphasise that the responsibility for the decision to leave the court-martial findings unchanged rests with the Board of Admiralty, and hence with me as First Lord. Your Lordships will, I hope, realise the special care which my colleagues and I have taken to obtain the highest legal advice before reaching our own conclusion. It is not so very difficult to say that a given set of facts is capable of more than one explanation, or when a court accepts one explanation that another is not tenable. But, my Lords, when we discuss a court's finding afterwards we are at a disadvantage, for the witnesses are not before us and we do not hear them give evidence. In this respect the court is in the best position to decide where the truth lies.
And I cannot agree that an independent commission should be set up. It is the duty of the Board of Admiralty to satisfy itself, and for me as their head to satisfy myself that all the views, petitions and representations were fully weighed and justly considered, and I am so satisfied. If it were desirable that such matters should be referred to an independent body I could imagine no one more independent than the Lord Chief Justice and his brother Judges sitting in his appeal court, and Mr. Swabey's case has been before them.
I realise that the Board's decision will disappoint noble Lords who, with no thought other than to see that justice is done, supported Mr. Swabey over a period of years. I realise, too, that the consequences of this decision for Mr. Swabey are distressing; but I have sought to show this afternoon that this decision has been reached only after deep and prolonged consideration by my predecessor and myself. As Minister at the head of the Board of Admiralty I have three duties to perform in cases of this kind: first, to see that no innocent man suffers; secondly, to maintain naval discipline; and thirdly, to uphold the law of the country. I have come to the conclusion that in this case it is my duty to uphold the finding of the court-martial.
§ 5.32 p.m.
THE LORD BISHOP OF CHICHESTER
My Lords, I wished to put my name down in support of this Motion, and I hope that I may continue to speak, in spite of the words uttered by the First Lord, not because I wish to go over the details of the case set out by the noble Lord, Lord Shackleton, but because for the past five years I have been familiar not only with those details, but with the person directly concerned. Furthermore, I remember the closing words which have just been uttered—that an innocent man should not suffer. I have seen the disastrous effects of this judgment upon the whole family, and their own passionate desire to have the opportunity of putting the case fairly before the world.
I was aware from the start that my distinguished predecessor in Chichester, Bishop Bell, with all his judgment and integrity, had been profoundly convinced, after going into the facts, that there had been a miscarriage of justice which should be reviewed, and that he had made certain representations to the Admiralty. Had he been here now in my place he would have been urging this today with far more weight and authority than I could give it. Even, however, without the knowledge over the past five years which I possess, I am still sure that a candid study of the facts would have brought me to the same conclusion: that if this decision is allowed to rest, it will be inflicting not only a real injustice upon an individual, but also a slur, where we should least want it to be, upon the Navy itself. It is indeed the case of one individual; but it involves in principle other individuals—individuals fighting for their own rights against the whole array of the State in all the weight of its organised authority.
It might be said: what is one man here or there over and against the stability and confidence of the whole community? If we were to go to such lengths as to analyse and review again the individual situation, would there not be a danger of involving many other people, or of upsetting the general balance, with all kinds of unforeseen repercussions? Even if, indeed, there is some element of doubt, is it wise to disturb past judgments or to try to undo what has been done? That could easily be argued, and I well believe that before the last speech many of your 1068 Lordships, who know nothing of the person or the facts in this case, and who have listened to their presentation here for the first time, might have been tempted to feel, whatever the true situation was then, that what is done is done; that no good can come out of reopening the issue. Yet I believe that this issue is important for more than the individual. Whatever the appearances may be, however strong a presumption of guilt, if the rights of an individual to have a properly conducted hearing are not safeguarded, or if there is a real suspicion that justice is not being done to his full opportunity of defence, then here is something which in the end concerns not only the well-being of this or that person, but the confidence of the community as a whole. First, then, I would ask your Lordships to regard this as something more than an individual case.
The details of the case have been emphasised, and no doubt bits will be drawn out by other speakers. The conduct of the trial contains many aspects which have been criticised by distinguished lawyers and distinguished naval officers. For my part, I cannot avoid the impression that the conduct of this case, however formally correct, has been coloured by past history and by the nature of the alleged offence. The community may be lax (or charitable, if you put it that way) in its attitude to some vices; but there is no doubt that it is particularly sensitive to any imputation of homosexuality. This is true everywhere. It is particularly true, as we should expect, in the circumstances of naval life. The mere suggestion of it creates at once an attitude of abhorrence and revulsion which tends to colour judgment and sometimes produces hysterical reactions.
It is, moreover, a form of offence notoriously difficult to define: it covers not only acts but also tendencies or suggestions. This means that the very charge of it, even when it is rebutted, sets up a train of suspicion that is not likely to be eradicated. I know of no other offence equal to this in which the accused tend to be condemned in people's minds even before their case is heard; and in which, even when they are acquitted, they will never, in the public view, be wholly exonerated. I am in no way wishing to underestimate the gravity of such offences where they occur, but 1069 what I have said means that every possible care should be taken before such charges are made; and when they are made—having, as they will, so drastic an effect on the accused—the procedures of trial ought to make doubly sure that the execution of justice is beyond reproach.
In the case that we are discussing the facts do not suggest that—for a variety of reasons: the place; the circumstances; the events themselves; the past history of the accused, and the partial (but only partial) knowledge of that history which many on the spot possessed at the time, if not also the existence of personal preconceptions about it. All these, and more, added up, I believe, to an accumulated weight of prejudice which affected the issue. I can only quote, as I am entitled to do, a part of a letter from the First Lord (then Lord Selkirk) to Bishop Bell. This was written in the last month of Bishop Bell's life, when he was taking up this issue. In regretfully declining to stake it further himself, Lord Selkirk said:I would like to add this: for an offence of this nature I regard this incident as minimal. I have not formed the impression that there was necessarily any intention to commit an offence on going ashore nor would it appear to me that there was any intention of doing anything more serious than the offence actually committedI submit that that comment, unless there was other evidence not present at the trial, sheds some light on the trial itself and on the justice of the verdict which was reached; and it justifies the plea that an inquiry into this matters concerns the honour not only of one individual servant of the Navy, but of the Navy itself.
If any young servant of the Navy might claim full rights to justice, surely it might be urged in this case. Here is a young man, himself a lieutenant-commander, whose father, Sir Carlisle Swabey, was an Admiral of long and distinguished service, and whose only brother died on active service with the Navy during the war. The Navy is in his bones. Therefore his dismissal from it, quite apart from the particular offence connected with that dismissal, has been especially bitter. I myself know him well and can testify that he is a perfectly normal young man —normal in his relationships, in his pursuits—who has given no indication of the tendencies with which he was charged.
1070 I have mentioned Bishop Bell's own firm conviction of his innocence and his own declared readiness to uphold his plea. I could cite numerous others of his acquaintance and neighbourhood who would support this. But if it be thought that such knowledge gained from recent years in civilian life cannot be substantiated by messmates or friends at sea, I would refer again to the affidavits which have already been cited, and especially to one by Lieutenant-Commander Rossling, who goes back to the days of their cadetship at Dartmouth and to the shared life of the gun room later. He said this:He had been on all these occasions a perfectly normal officer, messmate and friend with, the tastes and interests of the ordinary healthy-minded naval officer. In the close confines of the mess-life of small ships, I feel sure that if there had been any doubt about his character, I would have known it. However, at no time did I ever feel that his relations with officers and men were other than perfectly normal. Had I the least suspicion otherwise I should have been at great pains to avoid further contact with him".The affidavits—which could be produced—of other naval officers who have served with him elsewhere, express this same confidence in his integrity. There are others who were involved in the proceedings at Malta in 1956, who have equally put on record their own shocked surprise at the verdict, and their own continuing conviction of his innocence and the harshness of this sentence.
All that I should have expected from my own knowledge of Mr. Swabey during the past five years, but the strongest evidence of all, in my judgment, has been his own determination to fight this case. He and his family—and I know this indeed from a close observance of them—have for seven years lived in the shadow of this incident and have worked to dispel it. They have knocked constantly at the doors of the Admiralty; they have been listened to; they have been sent away with promises, some hopeful, some vague. I cite from another letter to Bishop Bell, one sent in 1958 by Lord Selkirk, who said:I confirm … our willingness that the case should be the subject of a Special Reference to the Courts Martial Appeals Court and that the Petition, together with any further Submission Swabey's legal advisers care to make, would be made available to the Court.I do not know whether that undertaking is still open. It is a promise that has been made.
1071 This family have involved themselves in considerable financial costs which they can ill afford. He himself has not been able to give his heart fully to any other occupation while this doubt about his character has been unresolved. Most of all, when it might have been much easier for him to give up this struggle, and to hope that in due course the whole matter would be forgotten, he has faced the glare of publicity and its inevitable consequences in his determination to vindicate himself. I am sure your Lordships will realise how painful even such a debate as this must be to the family most directly concerned. All this does not seem to me the behaviour of a guilty man. Rather I think it proceeds from one who is convinced of his innocence, and is buoyed up by that, even to this point.
It might be said that this in an isolated event, and that 1956 is a long time ago. So it is—for those who stand outside or for those who have not been personally affected by it. But for those inside, or for the man who has lived with it and centred his years on the objective of a fair review of his case, 1956 is still here. Where there is any suspicion of injustice, time does not really eradicate it. It only allows it to fester, and perhaps to breed. So it has been brought to this moment. And, my Lords, we are not asking for a pre-judgment of this issue, but that it should be fairly inquired into. We recognise that it is a hard thing to ask your Lordships to come to any conclusion yourselves; harder still to ask of the Government or the Admiralty any step which might seem to involve or impugn other people. Yet we must stand firm on this point. If there is any suspicion of injustice, or if there is any substance in the case that has been put forward on his behalf over the years, then the Government would do a greater service to us all, and to the Navy, if, without passing any opinion on what such an inquiry would reveal, they accepted a moral obligation to set up an inquiry, rather than leave this suspicion unremoved both from him and from the Service of which he was a member.
§ 5.46 p.m.
§ LORD AIREDALE
My Lords, I will detain your Lordships for only a few minutes. to mention one general point 1072 which nevertheless, I think, has very particular reference to the case which is now under discussion. This is under the heading of what is to happen next. Supposing the request of the noble Lord, Lord Shackleton, were to be acceded to, supposing a further inquiry were to take place, and supposing it resulted in a finding that a miscarriage of justice might have taken place in this case, then what would be the remedy? So far as I know, the remedy, and the only remedy, would be what is called a "free pardon" under the Royal Prerogative. The question I myself wish to ask is whether "free pardon" is the proper expression for a remedy for a miscarriage of justice, bearing in mind that, but for the miscarriage of justice, the accused person would never have received any sort of pardon; he would have received an acquittal.
A "free pardon" is an expression which has come down to us from our ancestors, to whom it was a particularly convenient expression, when one bears in mind that it was anathema to them so much as to entertain the idea that there could be a miscarriage of justice at all. Right down at least to the beginning of the nineteenth century the courts were supposed to be infallible, and nothing was to undermine that assumption. Therefore, it was convenient to use the expression "free pardon", because in that way the plight of the convicted person could be alleviated without the fine notion of the infallibility of the courts being in any way undermined.
But we have moved on a long way from that position. We now freely admit that a miscarriage of justice can occur, although fortunately it is a rare thing in this country. But the remedy that we use upon these occasions is still the free pardon. We still call it, and, in my submission, in these days miscall it, a "free pardon". Its effect is abundantly clear, and I cannot do better than quote a few lines from Sir Frank Newsam, who was Permanent Under-Secretary of State for the Home Department from 1948 to 1957. In his book, The Home Office, he says:A Free Pardon wipes out not only the sentence or penalty, but the conviction and all its consequences, and from the time it is granted leaves the person pardoned in exactly the same position as if he had never been convicted.1073 Having made that categorical statement, the author appears to have some qualms, because a few pages later he says:The view is sometimes expressed that a Free Pardon, which seems to imply forgiveness for a crime committed, is not really an appropriate instrument in cases where it is shown that the person concerned did not commit the offence of which he was convicted, but",says the author,the effect of a Free Pardon is in general well understood.My Lords, well understood by whom? If it means well understood by constitutional lawyers, I am perfectly happy about it: but is a free pardon well understood by the man in the street? I have difficulty in believing that it is. I believe that the mart in the street gives to ordinary words their ordinary, everyday meaning, and that when he hears that somebody has been granted a pardon he supposes that a wrong has been committed and that he has been forgiven. The victim of the miscarriage of justice is going to be much more concerned with the opinions as to what his free pardon means which are held by his fellow human beings, among whom he lives, than with the opinions of constitutional lawyers; and it will be no comfort to him, or very little comfort to him, to know that it is written in the books that a free pardon expunges all trace of guilt if that is not well understood by his friends and by the people around him.
Therefore, my Lords—and this is all I have to say—I am asking whether the time has not come to add one more expression to those expressions under the general heading of the Royal Prerogative of Mercy. We already have the free pardon, the conditional pardon, the remission of sentence and the reprieve. Can we not also have an expression which denotes an ultimate acquittal in those cases where a miscarriage of justice has occurred and the convicted person has been wrongly deprived of that acquittal which he ought to have received at the court which tried him?
§ 5.54 p.m.
§ LORD AMPTHILL
My Lords, I must apologise for the fact that my name did not appear on the list of speakers. This was due to some misunderstanding in the Clerk's Office, and I must express my gratitude to the right reverend Prelate 1074 for letting me precede him. My Lords, I do not know Christopher Swabey or his family; nor do I know any of the people directly concerned in this distressing case. In fact, I knew nothing about it at all until I saw on the Paper the Motion set down by the noble Lord, Lord Shackleton. As a retired naval officer, I am naturally concerned at anything which affects the Navy, its officers or men, and I therefore spoke to the noble Lord. From what he told me, from what I have subsequently learnt and from the consultations I have had, I feel no surprise that the noble Lord, whose humanity and sympathy is so well known, has thought it right to put this Motion down. In fact, I think we should be grateful to him for doing so.
I also felt very strongly that it was my inescapable duty to intervene in this debate. I am satisfied in my own mind that there is a real danger here that there has been a serious miscarriage of justice. It all happened six or seven years ago, so the present First Lord and Board of Admiralty are in no way directly responsible. Nevertheless, it is clear from the speech which the First Lord has just made that he and the Board of Admiralty have reviewed this case with, if I may use the expression, extra special care. Nevertheless, I am still convinced that there are many circumstances surrounding this case which need further looking into. Like most naval officers, I have always considered that a naval court-martial gave a fair deal, and that any irregularities or unfairnesses which might arise would be taken care of by the reviewing authority at the Admiralty, who, as your Lordships know, have power to quash the proceedings. We have progressed—or, at least, I and most naval officers thought we had —since the days of the unfortunate Admiral Byng.
In a case of this particular nature it is doubly important to ensure a fair trial, to ensure that justice not only should be done but should be seen to be done. I do not wish to repeat in detail all the facts of the case which have been so ably presented by the noble Lord, Lord Shackleton, but I shall, I fear, have to repeat some of the things which he has said, because I wish to give them perhaps a slightly different emphasis. Christopher Swabey, a comparatively senior officer 1075 appointed to command one of Her Majesty's ships, was the subject of a most serious accusation by a very junior officer in circumstances in which it was well-nigh impossible to obtain corroborative evidence. In other words, it was the word of this junior officer against his senior officer. If ever there was a case where the greatest care, very special care, should have been taken, this was it.
I must say that when I first heard the details of this case I was forcibly reminded of a story, a true story, which I was told when I was a very junior midshipman. The officer in charge of midshipmen in the first ship which I joined, generally known as "the snotties' nurse", had the responsibility of instructing us in all the matters upon which we needed guidance, and he told us this story to illustrate the point which he was making, and the one which I have tried to make—namely, the special care needed in any case where sodomy was or might be involved.
The story was that Lieutenant A (as I shall call him) was lying in his bunk one morning, half awake, when the curtains of the cabin door were pulled aside. The ship's boy, a boy rating, rushed in, pulled his trousers down and began to shout, "Sentry!Sentry! Lieutenant A is assaulting me". The Royal Marine sentry appeared almost at once. Lieutenant A remained calm in his bunk, he kept his head, and when the sentry appeared ordered him to fetch the P.M.O., the principal medical officer. This was done, the matter was soon disposed of and this rascally boy, I am glad to say, was dismissed His Majesty's Service, as it was then—it was long ago. Lieutenant A was a strong disciplinarian. He was at that time officer of the boys' division, and no doubt this perverted boy thought he might get his own back for some disciplinary action taken against him. I have never forgotten Lieutenant A's advice, nor this extraordinary story. It has stood me in good stead from time to time.
Unfortunately, Christopher Swabey, if he did not lose his head at the time this accusation was made by the sublieutenant, was, as your Lordships have heard from the noble Lord, Lord 1076 Shackleton, extremely agitated, and, to put it shortly, lost control of the situation. He probably made some foolish remarks, Your Lordships must remember that the time was late at night and that the only officers on board were the first lieutenant, a comparatively junior officer, and a midshipman. Many of us in our time have returned on board after a merry evening ashore. How many of us, even if we had been fortunate enough to receive such good advice as my fellow snotties and I had from Lieutenant A, would have kept cool, calm and collected and dealt with this unpleasant situation as it should have been dealt with? The fact that Christopher Swabey did not do so was, in my opinion, no proof that he was guilty of the accusation made against him; although the prosecution so used his remarks and behaviour. This was, in fact, the only corroborative evidence they had, or thought they had.
However, my main criticism of this court-martial lies not in the fact that Queen's Regulations and Admiralty Instructions were ignored, but in the way they were implemented. The first point I wish to make (and it has already been made by the noble Lord, Lord Shackleton) was that the convening authority elected a very junior and comparatively inexperienced officer as the deputy judge advocate. This I believe to have been a gross error of judgment. This officer, as the noble Lord, Lord Shackleton, has said, had never previously undertaken the duties of a deputy judge advocate. If your Lordships will bear with me for a minute, I would point out that Queen's Regulations and Admiralty Instructions, Article 2125, lays down the duties of the judge advocate and I would ask your Lordships to consider whether, in fact, this junior, inexperienced officer, who had never undertaken the job before, could possibly hope to deal with all that Queen's Regulations and Admiralty Instructions lay down for him to do. This is their advice to the court:The judge advocate shall, whether his opinion is asked or not, advise the court to the utmost of his knowledge and ability, not only on questions relating to Naval law and to the procedure of courts-martial, as they arise but also on every question of doubt or difficulty with reference to Common Law and Statute Law, to the law and rules of evidence and to the rules and regulations of the Service generally.1077 Further, he is to be impartial and protect the accused. He may, with the permission of the president of the court, put to any witnesses such question as may appear necessary to elicit the truth. Finally, before the closing of the court for consideration of its findings the judge advocate shall advise the court on all legal issues arising out of the trial and shall deal in particular with the burden of proof, the ingredients of the offence and, where necessary, the question of corroboration. I submit that this officer was quite incapable of doing it. He was a junior. He was not even what they call a starred Supply Officer.
My second point is the question of the prosecutor. This officer was the superior of the officer selected as deputy judge advocate. He was most experienced in court-martial procedure, a qualified barrister and, as the deputy secretary to the Commander-in-Chief, responsible for courts-martial matters in the Fleet. He was cast, or cast himself, in the role of prosecutor; and this, I submit, was another gross error of judgment. Your Lordships have heard from the noble Lord, Lord Shackleton, some details of how this officer conducted his duties and it is unnecessary for me to repeat them. But in Queen's Regulations and Admiralty Instructions, Article 2127, has this to say about the duties of the prosecutor:It is thus no part of the prosecutor's duty to press for a conviction, but to establish the truth so that justice may be done. Establishing the truth may or may not be the same thing as pressing for a conviction but it is not the same thing as pressing for a conviction at all costs.My Lords, I now wish to refer to the officer of the court. From the affidavits which have been mentioned, particularly that of Commander Blackburn, I think it is clear that this officer either ignored or did not understand the written instructions which he received. It is clearly laid down in Queen's Regulations and Admiralty Instructions, Article 2123, subparagraph (5):The president shall appoint an officer to be officer of the court, and shall give him such orders as may be necessary for the due transaction of the business of the court.In my submission, he did not perform his duties properly. Remarkably enough —and this is another unsatisfactory feature of this case—the officer selected for this responsible and important duty 1078 was himself to be court-martialled the next day. He was so court-martialled and, I understand, was dismissed the Service. I do not know his offence, but surely he was a strange selection as officer of the court.
To me it is not surprising that a senior naval officer, Commander Blackburn, whose affidavit I have seen (I have it here) said in his affidavit:As a Naval officer with considerable experience of courts-martial I was completely appalled at certain incidents connected with Swabey's court martial.I must say that I, too, am appalled at what is revealed in this officer's affidavit, at the way in which this court-martial was convened and conducted. I have consulted senior naval officers on the retired list with far longer and far greater experience than I have. They have told me that in their careers, extending in some cases to 40 years, they have never applied for a court-martial on any officer or man without first holding a preliminary investigation on board to hear what the accused had to say. This is certainly my own experience, much more limited though it is. I have had to take part in such preliminary investigations in one capacity or another.
I have studied Queen's Regulations and Admiralty Instructions as carefully as a layman can, and I must say that, while some doubt is cast on whether Queen's Regulations and Admiralty Instructions really call for a formal investigation, I myself read section 3 of Article 1908 as applying to both officers and men. It says this:Forman investigation of offences can, when service and circumstances permit, be deferred until the day following that of the commission of the offence. All charges"—and this is the important part, my Lords,are to be investigated fully on the quarterdeck or other suitable place in the presence of the complainant and the accused who, as well as the witnesses, are to be heard fully and with impartiality.In the Swabey case no such preliminary inquiry was held, though it was thought desirable (as the noble Lord, Lord Shackleton, mentioned) to send a senior officer, a commander, to read a letter to Swabey, the contents of which, I understand were to the effect that it was impossible to hold a preliminary investigation because H.M.S. "Redoubt" was at sea. The ship's log has been 1079 checked and shows that the ship was not at sea to such an extent as to make a preliminary investigation impossible. What is even more strange and even more unsatisfactory, to me, is that the Admiralty have since said that they are unable to trace this letter or any copy of it. Yet the name of the officer who read it to Swabey is known. The noble Lord, Lord Shackleton, has also referred to this unsatisfactory aspect of the affair.
I think that I have said enough to claim with truth that the conduct of this court-martial leaves a most unpleasant taste in one's mouth. In fact, to quote a senior officer, with whom I discussed it last week, "It frankly stinks"—if your Lordships will forgive me fore using such a strong expression. Personally, I have no doubt that Christopher Swabey is the victim of a grave miscarriage of justice. But apart from Swabey himself, the unsatisfactory nature of these proceedings casts a serious reflection on the honour of the Navy and the reputation of its courts-martial. They compare most unfavourably with current Army and Royal Air Force practice, and this weekend I took the opportunity of discussing this aspect of the matter with a barrister who had just returned from Germany and is thoroughly experienced in Army and Air Force courts-martial there.
For these reasons, I support the noble Lord, Lord Shackleton, in his request for an independent commission to be set up to inquire into this matter, and I feel certain that all people who love the Navy will feel the same way. I hope that the noble and learned Lord who is to reply for the Government, despite what the First Lord has already said, will see his way to accepting this Motion, which I am sure is in the best interests not only of poor Christopher Swabey but also, in particular, of the Service itself. If the Government find themselves unable to accept the Motion and the noble Lord, Lord Shackleton, decides to test the matter in the Division Lobbies, I will support him.
§ THE EARL OF LONGFORD
My Lords, I wonder whether the noble Lord, the First Lord, would allow me to put one question before the debate proceeds. It is a question that lies within his own responsibility. In his view, as unfolded to us earlier, is there one further step 1080 open to this gentleman, if the House accepts the view of the noble Lord to-day?
§ LORD CARRINGTON
I think not, my Lords. I think that all the due processes of law have been gone through.
§ EARL ALEXANDER OF HILLSBOROUGH
My Lords, how does that compare with what we heard quoted by the right reverend Prelate, the Lord Bishop of Chichester, that there was some assurance given that the case could proceed to a Court-Martial Appeal Tribunal?
§ THE LORD CHANCELLOR
My Lords, may I deal with that when I come to reply, whether further proceedings, if any, can be taken?
My Lords, I did not intend to take part in this debate to-day, but I have been very disturbed by what I have heard from many of your Lordships and, as a retired naval officer, I feel that I should like to support my noble friend Lord Shackleton in his submission. I feel that if there is any doubt at all about whether there has been a miscarriage of justice, we ought to go a little further in this case and have an independent commission as the noble Lord suggests.
§ 6.15 p.m.
THE LORD BISHOP OF DURHAM
My Lords, I wish to support the Motion standing in the name of the noble Lord, Lord Shackleton, calling attention to this distressing case. Nearly seven years have passed since the court-martial took place in Malta. Throughout these long years Mr. Swabey and his most gallant mother, herself the widow of a distinguished naval officer, have struggled unremittingly to have the case reopened and reconsidered, in order that their good name might be vindicated, his innocence of the charge established and all suspicion of injustice removed.
Those of us who know Mr. Swabey and his family find it very hard indeed to believe that he is a man capable of the charges that have been laid against him, and I submit to your Lordships that Mr. Swabey's conduct throughout those seven years has not been that of a guilty man, but rather the reverse. Where there is a court conviction and 1081 a man's conscience agrees thereto, his whole instinct is to retire into obscurity and hope that the whole thing will be forgotten. Mr. Swabey's gallant struggle has been inspired and sustained throughout by the firm conviction of his innocence of the offence and the invincible desire and determination to rescue his honoured name from the stigma of disgrace, and to vindicate justice.
It does not need a very vivid imagination to realise the terrible strain and anguish of those seven years. Lady Swabey, believing passionately in her son's innocence and unshakable in her determination to do all in her power to clear her name, has overcome her natural shyness and shrinking from publicity in her efforts to find those who would help her to get the case reconsidered. Friends and sympathy she has found in plenty and, as noble Lords who have spoken before me have shown, she has enlisted a great deal of assistance. How gallant and marvellous the faith, the courage and the power of victory which have actuated mother and son throughout this agonising struggle!
For centuries we as a nation have cherished our pride in the Royal Navy, in its great traditions, in its high reputation for discipline, efficiency and rectitude. We know that this springs from the high sense of duty and honour which pervades all ranks of the Service, and is maintained especially by the jealous zeal of commanding officers for the high standing and honour of their command and for it to be free from any suspicion of that which is unworthy and vicious. I submit that this very zeal, laudable indeed as it is, can on occasions lead to excess and consequent serious mistakes and injustice. In this fallen world which we inhabit, there is no one and no institution, however noble and venerable, that is infallible. The best of us can err and make serious mistakes. A court for the determination of justice must demand that all who are concerned with the case must free their minds from prejudice, from the effect of any gossip or preconceived notions, and be governed entirely by the evidence submitted to the court. While this duty cannot be urged too strongly, it must remain in many cases—and this is one of them—a counsel of perfection, human nature being what it is.
The case of Mr. Swabey has been brought before your Lordships' House as 1082 to the very seat and home of impartial justice. What the Motion asks is that we shall recognise the fallibility of human concerns, and that, with the best intentions in the world, injustices may have occurred. Where, as in this case, grounds have been put forward for believing that mistakes may have been made, an important fact has been unknown or undisclosed at the time of the trial, it is surely only in accordance with our sense of justice, honour and fair play that the matter should be reinvestigated.
Some of your Lordships no doubt recollect a play that ran for some time in a London theatre entitled The Winslow Boy. You remember how that play (I believe it was founded on fact) depicted the case of a boy expelled from school on a charge of theft. His parents beggared themselves, grew old before their time, striving with every nerve to clear and vindicate their son's name. At long last, when their financial resources had run out, their efforts were successful and the boy was cleared of the charge. Then it seemed that the play was going to end in an anticlimax. Was it all worth it? This boy had forgotten it, and had settled down at another school. He was far more concerned with the pictures and his pursuits than this thing which was a bygone event in his life. The parents were ageing, and their resources had gone. Was it worth it? Was it worth all the publicity and dragging it out into the limelight again? The answer was this:It was worth it a thousand times, for it was a manifestation of our British tradition that in case of need and in a court of justice the full weight of our laws and justice could be exercised to establish the honour of one small boy.
§ 6.21 p.m.
§ BARONESS ELLIOT OF HARWOOD
My Lords, I will not detain your Lordships for more than a minute. My interest in this case is not personal, and I do not know the Swabey family. My interest in the case has been aroused by a letter that I received from a friend whose opinions I very much value, who is herself the wife of an admiral and has been closely associated all her life with the Navy. These people are deeply concerned that justice not only should be done but should be seen to be done. In this case, doubts have been expressed in this House and outside. I listened carefully to what the First Lord of the Admiralty said, but 1083 I still feel that, to avoid the suspicion that justice is not being done, the answer in this case would be an inquiry. I very much hope that the First Lord and the Admiralty will realise that those of us who are interested in, and concerned about, the case want only to see that justice is done and that suspicion is completely eliminated. An inquiry would do this, and I very much hope, in spite of what the First Lord has said, that an inquiry will be granted.
§ 6.23 p.m.
§ LORD WALSTON
My Lords, when I first came into the Chamber I had no intention of intervening in this debate, but I hope your Lordships will bear with me if I detain you for a few minutes longer. I came here, I think and hope, with a completely open mind, having heard little of the case beforehand, and with the desire to hear as much as possible. Of course, we have not yet heard everything; we have what I suppose one could almost call the final cases for the prosecution and the defence still to be put. But, subject to anything which we may hear in the final two speeches, it seems to me clear that in this case there is a great deal of doubt whether justice has been done.
Several noble Lords have spoken of the actual character of Mr. Swabey, and several have expressed the opinion that he is undoubtedly innocent. I do not think we should pay too much attention to that. My own sympathies are in that direction, but I feel that it would be clearly wrong for us to attempt in any way to sit in judgment as to whether the accused is guilty of this offence, as the court-martial found him, or innocent, as many noble Lords believe. After all, we have so far heard only one side of the case, and probably we shall hear only one side of the case. Surely, what we must concern ourselves with is not whether Mr. Swabey is innocent or guilty, but whether the circumstances of the court-martial were such that he had a fair trial.
There seem to me to be four, or possibly five, points which have emerged during the course of the debate which make it abundantly clear that the trial was not fair in the way that a normal layman considers a trial to be fair. If I may say so, with all respect to the 1084 noble and learned Lord, the Lord Chancellor, I am in some ways rather sorry that it is he who is to wind up this debate, because by reason of his profession and his office he is naturally constrained to reply in the manner of a lawyer, whereas this case, surely, should be regarded in a much wider and more human manner than in the actual legal defence of a certain position that has been taken or the opposition to that position.
The various points which have emerged and which seem to me important in this context of whether the court-martial itself measures up to our standards of what should or should not be are these. In the first place, the court-martial took place in Malta, the scene of the previous trial six years earlier, where by all common-sense standards, it is highly unlikely that a completely unprejudiced trial in a completely unprejudiced atmosphere could take place, particularly in a place such as Malta. To move this into a civilian context, if a man was to face trial in a small provincial town, somewhere in England, where he had been accused of a serious crime which was the talk of the town only six years previously, undoubtedly the trial, on his application, would be removed to a large city further away in order to obtain a complete lack of prejudice on the part of those taking part. That seems toy be the first reason to cast doubt upon the correctness of this particular court-martial.
There is then the fact, outlined by my noble friend Lord Shackleton and amplified by the noble Lord, Lord Ampthill, that no preliminary investigation took place. Was that strictly in accordance with Queen's Regulations? I do not know whether it was or not; but, again, a strong query arises in one's mind. There was, further, the question (here perhaps we are getting a little more technical) of the action of the prosecutor, which may have been contrary to Queen's Reguiations, in his dealing with the evidence of the taxi-driver. There was, fourthly, the matter mentioned both by my noble friend and by the right reverend Prelate the Lord Bishop of Chichester, concerning the promise given by the Admiralty that there would be some further action in this matter—a promise which, apparently, has not yet been fulfilled.
1085 Finally, the thing which sticks in my gullet—again, I emphasise, as a layman—is the situation where the prosecutor was a senior officer and the deputy judge advocate was a very junior officer who had been appointed by his senior officer, the prosecutor; this must lead to an extremely awkward situation in the trial itself. And, above all, there is the fact that, had this trial taken place some years later, such a situation could never have arisen because of the recommendations of the Pilcher Committee which have now been adopted. Indeed, had the recommendations of the Pilcher Committee, which reported in 1954, been accepted more speedily, they would have been enforced by 1956, and this state of affairs would never have arisen.
Therefore, it seems to me that a clear case has been made out, not necessarily for the innocence of Christopher Swabey, but for the fact that his trial did not measure up to the particular and very special standards of justice which all of us in this Chamber would like to see. I know it is an extremely difficult thing for any individual to go hack on a decision that he himself has taken publicly in the past; it requires the greatest amount of courage to do that. It requires even greater courage to go back on a decision which has been taken, not by himself but by those for whom he is responsible, by those to whom, as their head, he owes loyalty, and by his predecessors to whom he also owes loyalty. It requires far more courage on the part of the First Lord now to say, "I made a mistake," than if he had been the one directly concerned as an individual. I believe he has courage, and I hope he will be convinced by what has been said by your Lordships to-day to exercise that courage.
§ 6.33 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, I agree with the noble Lord, Lord Walston, that it is not for your Lordships this evening to judge whether or not Christopher Swabey was guilty of the offence for which he was convicted at the court-martial in Malta. All that the noble Lord, Lord Shackleton, is asking is that there should be yet one more review of the facts of the case, and of the surroundings of the case, to see whether or not conviction was just. I think it is only by a very full reading, as I have myself attempted to make, of 1086 the transcript of the court-martial, the circumstantial letter with the summary of evidence with it, the Memorandum of Sir Geoffrey Lawrence to my noble friend Lord Carrington, and of various affidavits and other papers in the case, that the full flavour of this matter can be judged by anyone interested in it. Nevertheless, noble Lords this evening have put forward many of the salient points which lead one to suppose that an injustice did take place.
It is not necessary to recapitulate any possible defects in the prosecution's handling of their case, in the final remarks in the final speech of the prosecutor, or in his dismissal of the taxi-driver's evidence which supported Swabey as being of no assistance. Nor perhaps is it particularly of importance to stress again, although it is a matter of some concern, the relationship between him and the deputy judge advocate in the matter of rank and the effect that this may have had upon the court, the prosecutor being so much senior to the deputy judge advocate. It is perhaps important only in this respect. If one reads the transcript of that court-martial and, in particular, the summing-up of the lieutenant who acted as deputy judge advocate, one finds it difficult to see how that summing-up could have been more fair, more full or more accurate than it was. That being the case, at first sight it seems difficult to disagree that any irregularities that had taken place before that summing-up were corrected by the impeccable way in which the deputy judge advocate made his speech to the court. Nevertheless, this does not take account of the rank and the difference in emphasis that the words of either of those two men may have had upon the senior officers of whom the court consisted.
Even if these irregularities—which are important, but perhaps not any one of them is crucial—together add up to a considerable amount of evidence to cause concern, the real burden of this case goes back to the court-martial in 1950 which took place in Malta. There is evidence that the court-martial which then took place was widely remembered in Malta in 1956. In fact, I do not think it is too strong to say that the island became a sort of conversational hornets' nest when Lieutenant-Commander Swabey, as he 1087 then was, was again charged in similar circumstances to those of 1950. I think there is at any rate considerable reason to suppose that the ship's company of H.M.S. "Redoubt" knew about it before their new commanding officer arrived, and there is also considerable reason to suppose that the officers who constituted the court-martial also knew about it. Whether or not they knew the full facts is another matter, but that there had been a court-martial upon a charge of indecency is, I think, something that was well known in the island.
The result of this knowledge had several effects. Swabey's counsel knew about it, of course. He knew about the 1950 court-martial, because he had himself defended in it. However, he did not appreciate how widely it had been remembered, and he decided not to introduce it as part of his defence. Although I hate to say this, I think in so doing he committed a grave error of judgment, as it turned out. I think he may have had very good reason for his mistake at the time because, as your Lordships will remember, there had not been that preliminary investigation when he could have had a chance, on Swabey's behalf, of cross-examining the witnesses whom the prosecution intended to bring to the court-martial, to test the case and which way it lay.
Nevertheless, I think it is fair to say that the summary of evidence attached to the circumstantial letter could leave no doubt that the prosecution's only evidence of corroboraton must be Swabey's conduct on board the ship when he got out of the taxi, because it is clear from the taxi driver's evidence that he was not going to support any of the sub-lieutenant's allegations of what took place in the taxi. So the mistake of the defence may have been one contribution to this situation, and so too, I believe, was the knowledge by the members of the court-martial. This, of course, is the matter to which my noble friend Lord Ampthill referred, the venue of the court-martial itself. The very fact that it should take place in an island where this knowledge was so widely known must be something gravely damaging to the chances of an acquittal.
The deputy judge advocate dealt in four parts with the evening in which these 1088 events took place, and he dealt with them in that way for the purposes of corroboration. First of all, he said, there was the period when the two officers left the ship until they got into the taxi to come home again. During that period, he directed the court-martial, there was no corroboration of any of the allegations made by the sub-lieutenant. Then came the taxi ride home, and in this also, I think, not expressly but by implication, he directed the court that there was no corroboration of the sub-lieutenant's evidence, because, although the sub-lieutenant said that he had shouted loudly and angrily at Swabey, and had hit him, the taxi-driver had given express evidence that he had heard and seen nothing. Moreover, the taxi-driver had given evidence that Swabey was sitting with his feet up on the seat behind him; and this, for some reason, was categorically denied by the sub-lieutenant. It has nothing to do with the case, but it is a very strange conflict of evidence, and at that stage there was nothing which corroborated the allegation made by the sublieutenant.
Then came the arrival on board and Swabey's agitation, and, as it was put to the court-martial, his attempt to hush up the matter; and it was left to the court in the light of the explanation he put forward to decide whether this was the act of a guilty man or of an innocent man wrongfully accused of a dishonourable offence. There was a fourth stage, which does not concern this debate, which occurred three or four days later, when Swabey approached the sublieutenant to ask him about some details of what happened that evening.
What might have been the difference if the defence had brought forward into their case the question of the previous court-martial and its acquittal of the accused; or, let alone its acquittal, the fact of the court-martial itself? During the first stage of the evening, might it not have been thought that the sub-lieutenant, as a member of the ship's company, who had, it is believed, been discussing the previous case, would have been predisposed to interpret to Swabey's detriment any accidental conduct that might have occurred during that period of the evening and of which he gave several instances? Might it not have been thought that this was the reason why he was so rapid in 1089 jumping to the conclusion that he was dealing with a homosexual? In the second instance of the taxi, if the court had in mind that there was a possible predisposition on the sub-lieutenant's part, might they have rejected, as reject they must have done, the taxi-driver's evidence and taken as the full truth that of the sublieutenant?
Thirdly, when the two men arrived on board would it necessarily have been the same if, instead of the explanation which the defence was able to give to the court for the agitation of the accused and his attempt to hush this up, the full facts had been known? The explanation given was:I thought the sub-lieutenant had made some irresponsible statements and I was not prepared at that time to take any action. I thought that next morning he would probably withdraw the charges.That was the only explanation which the defence, in those circumstances. could give. But if the full facts had been known, might not a very different interpretation have been placed on that agitation and the attempt to hush it up? I think that that might well have been so. And in that case might not the result have been very different?
I have put forward a paradox in a way. I do not think I can possibly be heard to argue that the court, on the one hand, was prejudiced because it knew of the court-martial, but, on the other, that the result was wrong because the true explanation of the only corroborative evidence was not known to the court. I do not put it in that way. It is one thing to say that because the senior officers on the court had heard something vaguely about a previous court-martial for an indecent offence in connection with the accused it must have had an effect on their minds; it is a different matter to say that if the full legal effect of the circumstances of that court-martial had been brought to their attention in the context of the corroborative evidence—which it was not—they would necessarily have come to the same conclusion. This is a slightly difficult point to have to explain but I hope your Lordships see that there is a very true distinction between what they vaguely knew in the back of their minds and the circumstances that would have arisen if they had had 1090 the legal effect of the previous court-martial explained to them when they were considering whether or not the agitation was corroboration of an indecent offence.
What are the remedies? My noble friend Lord Carrington has already said that the Admiralty reviewed this case not once but, I think, several times. There has been much reference to the Courts-Martial Appeal Court. This, I think, is not a matter which is quite so simple as my noble friend Lord Carrington made out, because, first, this case never got to the Courts-Martial Appeal Court at all: it was rejected before the full case was ever argued. The grounds for appeal were, first, misdirection and, second, that the court might have been prejudiced by the knowledge of the previous court-martial. But the Appeal Court had before them (because the Admiralty had sent it to them), the full transcript of the proceedings at the court-martial; and, as I have already said, if you read the transcript alone, without taking account of the differences in seniority of the officers, without taking account of any of the background, without any knowledge, so far as I know, except what was given in the grounds of appeal, of the previous court-martial (and there was very little in the grounds of appeal about that), it is very difficult to see where in law the court-martial went wrong. But it was upon that ground, upon the fact of misdirection by the deputy judge advocate, that the leave to appeal under Section 4—and not, as my noble friend said, under Section 5—was refused, and they never proceeded at all to deal with the suggestion that the court was prejudiced by knowledge of the previous occasion.
§ THE LORD CHANCELLOR (LORD DILHORNE)
My Lords, I do not know if the noble Viscount has seen the notes of the argument that took place before the Courts-Martial Appeal Court, but it was certainly argued on the grounds of prejudice.
VISCOUNT COLVILLE OF CULROSS
I am very grateful to my noble and learned friend. That is one of the few pages I have not seen. I understood that the decision was made solely on the first ground of the appeal, and that although my right honourable friend the Solicitor General (as he is now) attempted to 1091 argue on the second ground, the Court would not hear him on it. This, at any rate, is the information I have.
There were various later stages. There was the Petition to the Queen, which was again sent back to the Admiralty; and there was the strange incident (to which my noble friend Lord Carrington never referred at all) of the long period over which the Admiralty were prepared—and said so in numerous letters—to refer this case back to the Courts-Martial Appeal Tribunal, under Section 20 of the 1951 Act. The reason this has never happened may have been that it was bedevilled by technicalities. Nevertheless, for about six months the Admiralty were prepared to do this, and there has not been any explanation from my noble friend Lord Carrington why, in the end, they decided to the contrary. It is, I think, a very significant thing that, two years after the event, the Admiralty were still at any rate so unsure of the case that they were prepared to send it back to the Appeal Court.
One noble Lord earlier this evening (I think it was the noble Earl. Lord Longford), asked whether there was any further legal step which could be taken, and my noble and learned friend on the Woolsack said that he would deal with this point. I believe that I am right in saying that there is. I have already referred to Section 20 of the 1951 Act, and, so far as I can discover by my researches, there is no time limit on reference by the Admiralty to a Court under the special requirements to that section. This is what the Admiralty was prepared to do in 1958 and I believe that they could still do it now. Nevertheless, I believe that this course would have a grave flaw. The terms of Section 20 say that a reference could be madewhere any matter appears to the Admiralty not to have been brought to the notice of the court-martial at the trial".The only thing that could be said to fall into that category is the error of judgment on the part of the defence in failing to bring before the court the details of the previous court-martial and acquittal in 1950.
I have already said—or at any rate implied—that it would be wrong, where the defence has made the mistake of trying one line in order to clear the 1092 accused and has failed, that your Lordships or anyone else should ask for the adoption of extraordinary methods of bringing the matter back before the courts so that another line of defence can then be tried to see if that is more successful. I do not believe that that would be the right way to deal with the law in this or any other case, and I believe that that would be the only effect of a reference under Section 20 of the Act. Nevertheless, unless my noble and learned friend can persuade me that the Courts-Martial Appeal Court considered, as was open to it under Section 5 of the 1951 Act, that there had been some miscarriage of justice, on the grounds of prejudice in the minds of the Court, that matter cannot now be reopened anywhere except before an independent Commission such as the noble Lord, Lord Shackleton, is asking your Lordships to approve.
Such a course is not, I believe, objectionable in any way. I do not think this matter has ever been before the Courts-Martial Appeal Court. I do not believe that it could ever go before it now, because time has run out. Nevertheless, if there is any analogy with an ordinary criminal appeal, this is one of the things with which the phrase "miscarriage of justice" is closely concerned. In an ordinary case it would be because, for instance, a jury, before they came to their verdict, had some improper previous knowledge that the accused had been convicted of some offence. In such a case it would be open to the Court of Criminal Appeal to uphold an appeal on those grounds. These seem to be exactly similar circumstances, in so far as similarity can be translated into naval courts-martial. This, I submit, is a very considerable ground for doubt, and it is something that I should have thought was well worth taking up again and looking at afresh and impartially. For these reasons I support the noble Lord, Lord Shackleton, in asking your Lordships to agree to the appointment of an independent Commission.
§ 6.52 p.m.
§ THE LORD CHANCELLOR
My Lords, I have listened carefully to everything said by your Lordships in the course of this debate. I want, if I can, to reply to the various points made. I do not accept the role cast for me by 1093 the noble Lord, Lord Walston, who indicated that my speech would be the final speech for the prosecution. I am not here as a prosecutor. Nor, when I considered the record of these proceedings, was I concerned at all to sustain the conviction; I was concerned, as I think everyone who has considered these proceedings has been, to see that there was no injustice, no miscarriage of justice, and that nothing went wrong which would invalidate the trial.
The criticisms made to-day have covered a wide range, for they have covered not only the evidence at the trial, (the conduct of the prosecutor, the conduct of the judge advocate, but also the conduct of the officer of the court who leads the witnesses in and out. I was glad indeed to hear the words fall from the lips of the noble Viscount Lord Colville of Culross, that in his view the summing up of the judge advocate was impeccable. I entirely agree with him. I was sorry to hear the noble Lord, Lord Ampthill, criticise that officer on the ground of his youth and inexperience, when in fact I do not think anyone has criticised the way he conducted himself on that occasion. What is more, when the matter came before the Courts Martial Appeal Court the Lord Chief Justice commended his summing up.
If I may put on one side yet another objection that has been raised in the course of the debate by the noble Lord, Lord Shackleton, and by the noble Lord, Lord Ampthill, they said, with great force and vigour, that there had been no preliminary investigation and that prejudiced the defence. I am sure if the noble Lord, Lord Ampthill, thinks back he will recollect it has long been the practice in the Navy not to have a preliminary investigation in relation to the trial of an officer by court-martial.
If I may, I will remind your Lordships of what the Pilcher Committee on Naval Courts-Martial, on which I had the honour to serve, had to say about it. That Committee completely endorsed the naval procedure of not requiring a formal preliminary investigation to be held in the case of officers, who can be tried only by courts-martial. The accused must be brought before the captain or other suitable officer and given an opportunity to reply to the charges. He must also be given in good 1094 time before the trial a document informing him of the rights of an accused person, the charge sheet, the circumstantial letter, which is another way of expressing a written copy of the speech for the prosecution, the list of officers from whom the Court may be formed, and a list of prosecution witnesses and summaries of their evidence.
All that was done, I understand, in this case. So that there is no ground for saying at all that the accused was not aware of what was being said against him, and I agree with the noble Viscount, Lord Colville of Culross, that any competent lawyer—and he was defended by a competent lawyer—on reading through that summary would realise that the only evidence the prosecution were likely to rely on as evidence of corroboration was what took place after the two individuals concerned got out of the taxi-cab. Therefore, I would say, with the greatest respect to the noble Lord, Lord Shackleton, that there really is not much substance, if indeed any substance, in the contention that the lack of a preliminary investigation deprived the defence of foreknowledge of how the case for the prosecution would be put.
Before I go on to deal with the various criticisms of the actual conduct of the court proceedings, I think I really must—I hope your Lordships will bear with me—remind your Lordships a little more of the evidence that was given at this court-martial. As I say, I do not wish to appear to be prosecuting in the least. But if your Lordships are to reach a right conclusion in this issue, one must not only hear the case put forward most skilfully, as indeed it was, and persuasively by the noble Lord, Lord Shackleton; one must also look to see how the case was presented and of what it consisted on the other side. I would say, if I may, that when I first read right through these proceedings some time ago, I read them through with the greatest care—I can assure your Lordships of that—and I came to the conclusion (some of your Lordships disagree with me) for reasons I shall seek to give, that there really was no case for supposing there had been a miscarriage of justice. And before this debate I read through the whole transcript more than once again. I remain of that opinion, and I think there is no reason for supposing there was a miscarriage of justice.
1095 The history goes back, as the noble Lord, Lord Shackleton said, to the first court-martial. I need not deal with that. The noble Lord, Lord Shackleton, talked of it as being the key to the whole story. He spoke of prejudice. The right reverend Prelate spoke of prejudice; I think he spoke about a whole mass of prejudice. When one considers first of all the position of the court, a naval court-martial is a very differently constituted body from a field general court-martial. It consists of very senior and experienced officers. The role of the judge advocate at a naval court-martial is slightly different from that of the judge advocate at an Army or an Air Force court-martial.
Let me go back, if I may, to the history, and put it, if I can, accurately and impartially for your Lordships' consideration, and as shortly as I can. In 1956 Lieutenant-Command Swabey was appointed to H.M.S."Redoubt". He joined that ship on Thursday, March 22, at Malta. The next evening he invited the sub-lieutenant concerned in the case to go ashore with him, and that invitation was accepted. The accused said that he invited others to go ashore with him and they refused. The noble Lord referred to that: he said he invited the whole wardroom. Mr. Swabey has sought to put reliance upon the fact that he invited others to go with him as contradicting what he said was the main charge of the prosecution—that Swabey went ashore with the intention of committing a homosexual offence. But that was not the case for the prosecution, and the fact that Swabey invited others to go ashore, and that the sub-lieutenant accepted, does not tend to show who was or who was not telling the truth about what happened thereafter. They left the ship together shortly before six o'clock. They thereafter proceeded to visit a number of places, and in the course of the evening they each consumed a considerable amount of liquor. As your Lordships have heard, that led to Swabey's being charged before the same court-martial with drunkenness, and he was acquitted of that charge.
During the same evening they went to various bars and met another naval officer in whose company they spent a considerable time. But the sub-lieutenant testified that during the course of their visits to these various bars he 1096 thought that Swabey was behaving oddly, in this respect: that Swabey sat very close to him, put his hand from time to time on the sub-lieutenant's knee and, when Swabey was standing up and the sub-lieutenant was there, Swabey stood very close indeed to him and leaned against him; and on one occasion when the sub-lieutenant was sitting on a stool, Swabey, according to the sub-lieutenant, behaved in a way which I shall not detail to your Lordships but which, if true, certainly revealed homosexual tendencies. It really is not correct to describe that evidence, as the noble Lord, Lord Shackleton did, as just nothing more than "casual contacts".
Then I would ask your Lordships to consider the position. If what the sub-lieutenant said was true as having happened up to that moment of time, it was—was it not—an extremely awkward and difficult situation for a young man of twenty-three, in the company of a man who was to be his commanding officer in the next few days. The conduct which formed the basis of this charge against Swabey took place, according to the sub-lieutenant, in the taxi on the way back to their ship. The sub-lieutenant said that in the taxi, Swabey sat very close up to him, indicating that he was closer than was necessary, and that just before they got to the ship the conduct took place which he described in detail and which I would venture to say, without fear of contradiction, if it did take place, clearly amounted to an indecent assault. What was the sub-lieutenant's immediate reaction? According to his evidence, it was (he was sitting on Swabey's left) to hit across his body with his left hand and to hit Swabey in the face, with the result, according to the sub-lieutenant that Swabey then removed his hand from the sub-lieutenant's body. That is a summary of the sub-lieutenant's evidence up to that point.
It has been asserted before, and again to-day, that the sub-lieutenant may have known about the previous court-martial. Whether that be the case or not, I do not know. But assume for the moment that he may have known. Would that lead to his giving false evidence? It is one thing to know some gossip about another officer; it is quite a different thing, surely, for an officer of the Royal Navy to go before the court and testify on oath as to 1097 conduct of the kind that this sub-lieutenant described. This sub-lieutenant, whatever gossip he had heard, did not know Swabey until he joined the "Redoubt" the day before, and no ground has been put forward in any of the discussion to-day, or in any of the representations that have been made, which would justify the conclusion that this young officer of the Royal Navy invented this account of what happened in that taxicab, or the conclusion that he committed perjury.
It may be that during the visit to the bars the sub-lieutenant came to the conclusion more readily than he would otherwise have done on account of gossip about Swabey, if he had heard it, that Swabey was behaving oddly. Let us make that assumption. But that assumption does not explain at all the evidence of the sub-lieutenant as to the conduct in the taxi. The issue before the court-martial was the question of fact; did that happen or did it not? When the case came before the Courts-Martial Appeal Court the Lord Chief Justice, when he had dealt with the application for leave, said it was just a question of fact with no question of law involved. Swabey, of course, in his evidence denied it. It is not often that indecency takes place in front of witnesses, and to resolve such a conflict of evidence as there was in this case, and to arrive at the truth, one has to look at the surrounding circumstances and the subsequent conduct of the parties. The noble Lord, Lord Shackleton spoke repeatedly as if it were the accused's agitation which—
VISCOUNT COLVILLE OF CULROSS
My Lords, I am sorry to interrupt my noble and learned friend, but he has left out of account altogether the question of the fact that there was a third person present at the time of this alleged offence-namely, the taxi-driver, who supported Swaibey.
§ THE LORD CHANCELLOR
My Lords, the noble Viscount says that. I am going to deal with the taxi-driver in due course. On one view he is a most important witness—I recognise that. I hope that I shall cover the whole of the evidence; I will certainly try, and if I have not covered the various points I hope that I shall be interrupted. But I was going to deal with the taxi- 1098 driver. I certainly do not ignore that evidence and I mean to come back to it. But one has to look at what happened afterwards, and a great deal of stress was laid by the noble Lord, Lord Shackleton, on the agitation of the accused, as if the agitation were regarded by the court as corroboration, when, in fact, it was due to his previous court-martial and nothing else. My Lords, it did not depend just on agitation. Let us see what happened, and see what reaction one would normally expect.
According to the sub-lieutenant, after he had struck Swabey he said to him: "You are a (something) homosexual"—using an adjective not infrequently used in the Royal Navy. He then accused Swabey of pestering him the whole evening, and said to Swabey that he would tell his first lieutenant. Swabey's reaction to that was to say: "What the hell are you talking about?". Then, just after they had got out of the taxi, Swabey said to the sub-lieutenant: "Take back what you have just said"; and the sub-lieutenant refused. They then went on board, and Swabey, when they had got on hoard, again said: "Take back what you have said". Again the sub-lieutenant refused. Then Swabey said to him, "You will have your name in the paper about this". That was a summary of the sub-lieutenant's evidence on that part of the case.
Swabey, in evidence, agreed that the sub-lieutenant had made this accusation, but he said he had made it first in those words on board ship. Apart from the dispute as to the place where those words were uttered, there was no dispute as to their being said. There was no dispute, therefore, that immediately after leaving the taxi this accusation was made by a sub-lieutenant against his future corn-mantling officer—an accusation of a most serious character in respect of any naval officer, quite apart from anything else, and an accusation which Swabey in the light of his past experience must have taken most seriously: if the sub-lieutenant was telling the truth, an accusation made very soon after the indecent conduct; if Swabey was telling the truth, an accusation made by a junior officer without a shred of foundation. And all Swabey did was to ask him to take it back, and then, when he would 1099 not do so, said to him, "You will have your name in the paper about this".
When they got on board the sub-lieutenant went to see the first lieutenant, who was not then on board, and the sub-lieutenant went to his cabin and wrote out a statement of complaint, alleging indecent conduct. The officer of the day gave evidence. He said that Swabey was agitated when he came on board, and that in his presence Swabey invited the sub-lieutenant to take back what he had said, and the sub-lieutenant refused. It was not just agitation. That was the action taken by the lieutenant-commander, the commanding officer designate, in response to this serious accusation, which, if he was not guilty, was wholly unwarranted and wholly unjustified.
Evidence was given that Swabey tried to see the written complaint made by the sub-lieutenant that night, that Swabey had said to the officer of the day that the sub-lieutenant had gone berserk, and that Swabey had illustrated this by waving his arms about above his head. In his evidence Swabey said that nothing had happened that evening to distinguish it from any other evening. One does not know, of course, what view the court formed of this part of Swabey's evidence. They may have thought that this statement made by him was some confirmation of what the sub-lieutenant said had happened in the taxi, some confirmation of the sub-lieutenant's having hit him.
The first lieutenant went on board just after midnight, saw Swabey, who was then in his pyjamas, and what Swabey said to him your Lordships may think is not without some significance. He did not say, "A monstrous accusation of homosexuality has been made against me by a sub-lieutenant", or any, words to that effect. All he did was say that he did not see any reason why this should go any further. There was no indignant denial, but he said he did not want it to go any further and that if it did go any further there would be a lot of trouble. It was that conduct on the part of Swabey upon which the prosecution relied as containing some corroboration, if that evidence was accepted, of the sub-lieutenant's evidence.
I now come to refer to the taxi driver, who was called as a witness. Quite clearly, if his evidence was accepted 1100 by the court it was strong evidence in favour of the accused, because he said that nothing had happened in the taxi. I have read his evidence several times. I do not know what view the court formed of it. It is open to them to decide whether or not to accept the evidence of a witness depending on whether or not they think he is telling the truth. It is conceivable here that they did not think the taxi-driver's evidence was worthy of any credence at all. He was a Maltese taxi-driver. I am not criticising him on that account, but what was curious was that when he came to the court-martial he was repeatedly asked whether he recognised either the sub-lieutenant or Swabey. He had seen Swabey twice, not only that night, but later when Swabey came back to see him, and this Maltese taxi-driver did not recognise either of them, although he was, as I have said, repeatedly asked. I do not think that in assessing this case we can assume that the court, who heard that witness, thought it right to attach credence to what he said. I have thought it right as this matter has been raised—
§ LORD SHACKLETON
My Lords, before the noble and learned Lord the Lord Chancellor leaves that point, he will surely, in fairness, point out to the House that people in civilian clothes do look different from the way they look in uniform. On the first occasion Swabey was in civilian clothes.
§ THE LORD CHANCELLOR
I have no doubt people do look different in civilian clothes from the way they look in uniform. He had seen Swabey twice, that night and on another occasion when Swabey had gone up to him and sought to remind him of this journey to find out from him what he was prepared to say about it. Yet when he came to court this taxi driver, despite that conversation with Swabey, did not recognise him, and, when pressed to do so, did not recognise either of them.
I am making the point that it may be difficult to reach the same conclusion as a court in regard to a witness whom one has not heard give his evidence and whom one has not heard cross-examined. The only point I am making is that, in considering whether or not there has been a miscarriage of justice, one at least ought to 1101 recognise the possibility that the witness was patently unworthy of credence, and I can see nothing wrong in the prosecutor's commenting on the nature of the evidence given. I will come to the prosecutor, who has been the subject of attack, in a moment.
Swabey, as my noble friend the First Lord has said, was represented by an able barrister. Many who have spoken in your Lordships' House have revealed that they have read the shorthand note; but, of course, what that record does not, and cannot, show is the demeanour and attitude of the witnesses and how they stood up to cross-examination. If there is any hesitation or pause before an answer is given, that does not appear on the shorthand note. This court-martial, composed as it was of senior officers, saw the witnesses, heard their answers, and the way they were given. They had to decide whether the evidence given by the sub-lieutenant as to the conduct in the taxi—because that was the subject of the charge—was true. If it was not, then, of course, it was false evidence of a serious character, and they had to consider whether the conduct of the accused was that which was to be expected of an innocent superior officer wrongly accused by a very junior one of a very serious offence. They were told by the judge advocate that they must be satisfied of the accused's guilt if they were to convict him, and, if they were not so satisfied, they must acquit. They convicted.
I will not say any more about the evidence given before the court. I would not have said so much if I had not felt it necessary in my endeavours to satisfy your Lordships that the view I have formed, and the view formed by the Judge Advocate of the Fleet and others, is perhaps, after all, the right one, and that there was no miscarriage of justice. The Judge Advocate of the Fleet saw no ground for interfering with the verdict.
An application was made for leave to appeal to the Courts-Martial Appeal Court. That application was made, as your Lordships have been told, by the present Solicitor General, on behalf of the accused. My Lords, I understand—and I have a note of what was said on that application—that he put forward a number of points. He outlined the facts, 1102 dealt with the construction of the taxi and stressed the fact that there was no partition between the taxi-driver and the back of the taxi; he commented on the various parts of the summing-up, and then he dealt with the question of corroboration. Having done so he went on to the second point: that there was a defective summing-up, and then said that the verdict was against the weight of evidence. The Court then indicated that they had considered this point and were not prepared to give leave on that submission. He then made a point with regard to the prejudice introduced by Swabey's earlier conviction. If one looks at the application put before the Court, one sees right in the foregound the allegation that the court were prejudiced against him. Then my honourable friend referred to the smallness of the Malta station—the same point, really, that the noble Lord has made—and to the gossip possibilities in Malta.
My Lords, if I may I will conclude on that by saying this: that the Lord Chief Justice, unlike the noble Lord, Lord Ampthill, said that the judge advocate had done very well. After hearing all the submissions and dismissing the application, it was said by the Count that it was a question of fact only: did the court-martial believe the sub-lieutenant or not; that there was no question of law involved; that the summing-up was very good. I ask your Lordships to note that they said they had also read with anxious care the evidence.
My noble friend the First Lord reminded your Lordships of the terms of Section 5 of the Courts-Martial (Appeals) Act, 1951, and, if I may, I will also remind your Lordships again, shortly, of its provisions. It provides that:… the Court shall allow the appeal if they think that the finding of the court-martial is unreasonable or cannot be supported having regard to the evidence or involves a wrong decision of a question of law or that, on any ground, there was a miscarriage of justice.If those conditions are satisfied they must allow the appeal. I will come later to what was said about bias. The Court, as the Lord Chief Justice said, had considered the transcript with anxious care and they refused leave to appeal. My Lords, if there were any ground for supposing that there had 1103 been a miscarriage of justice, that the verdict was against the weight of evidence, I do not believe for one moment that that leave would have been refused. If there had been any justification for the kind of allegations of misconduct in the conduct of this court-martial which the noble Lord, Lord Ampthill, thought it right to make, I cannot believe that the Courts-Martial Appeal Court would have refused leave to appeal.
My Lords, I will now, if I may, say just a word or two about the individual complaints. A complaint has been made about the selection of a senior officer as the prosecutor. I do not myself know that so much importance need be attached to seniority, or to how junior an officer is. What matters is what he says, and how he conducts himself. I seem to remember, from sitting on the Pilcher Committee, that it used to be laid down that the captain of the ship should prosecute, and very often the defending officer was an officer of the ship junior to him.
I must say that I see no reason for criticising the conduct of the prosecutor. The noble Lord, Lord Ampthill, read out passages from the Queen's Regulations and Admiralty Instructions about his duties. I read, and I have read more than once, the whole shorthand note. I do not think that if a criminal case came before the Court of Criminal Appeal and a barrister appearing for the prosecution had behaved in the same way as the prosecutor before this court-martial, he would have been subjected to the slightest criticism. I can see no warranty for the suggestion that the prosecution went out of its way to press the case, to secure a conviction. I can see no justification for that kind of allegation.
Then, my Lords, so far as the hearing in Malta is concerned, perhaps I can just deal with that quite shortly. Of course there was a risk, with a hearing in Malta, that, between the time the charges were made against him and the hearing, there would be gossip. I wonder what the gossip would have been if he had been brought back from Malta for a court-martial in this country, or anywhere else. I wonder, too, whether there was not a lot of gossip not only in Malta but throughout the Navy after the incidents had happened in 1104 1950. My Lords, these officers forming the body of the court were responsible officers, sworn to deliver a true verdict according to the evidence; and I must say that I am rather surprised at the way in which suggestions have been put forward of prejudice on their part. For I do not believe that they, any more than anyone else, want to see an innocent man convicted, and I do not believe that any naval officers want to enter into any kind of conspiracy—as one noble Lord suggested—to see that a man is convicted, unless the case against him is proved.
After the Courts-Martial Appeal Court hearing, my noble friend asked me, as he told your Lordships, to read the proceedings and to give him my views. I did, my Lords, and I adhere to them now. I must tell your Lordships that I really cannot find any valid ground for the contention that the verdict was wrong. It was for the court to make up their minds who was telling the truth, and if they had thought that the accused was, then surely they would have found him not guilty. Unless they were satisfied by the evidence that this indecent assault had taken place—and to be satisfied of that must mean that, having seen and heard the accused, they did not believe him—they were not justified in convicting. Again and again, courts are told that the case must be proved beyond all reasonable doubt. Can anyone suppose that the senior officers of this court would ignore that advice?
My Lords, during the war it was my duty for some time to act as judge advocate on many courts-martial. None of them, I should perhaps make clear, were naval courts-martial. But one thing I can bear witness to, and that is this: that those who sit as members of courts-martial are imbued, as magistrates and other judicial officers are, with a keen desire to do justice based upon the evidence, to arrive at the right verdict, and there really is in my belief no ground for thinking that this court-martial was not seeking to discharge its duties properly; for thinking that it would return a verdict without being satisfied of the accused's guilt.
I think there are two further matters—perhaps there are more—with which I should deal. There are the allegations with regard to the gossip in relation to Swabey's earlier trial. In his application 1105 for leave to appeal, Swabey asserted that it was likely that the members of the court knew of his earlier misfortunes, and so were biased against him; and that was a ground put forward for appeal. Your Lordships will mark that it was alleged they knew of this earlier behaviour. He did not object to any member of the court sitting, as he was entitled to do. This ground, as I have told your Lordships, was considered by the Courts-Martial Appeal Court and rejected. He then petitioned on the ground that the members of the court did not know of his previous troubles, asserting—an assertion made today—that, if they had, they would have drawn different inferences from his conduct on board ship that evening. Your Lordships will note the inconsistency of these pleas. The noble Viscount, Lord Colville of Culross, drew attention to them, and had, I thought, some difficulty in dealing with them.
§ The LORD CHANCELLOR
The noble Viscount says not: I thought he was finding it rather difficult. But the prosecution were not, of course, entitled to, tell the court of these earlier proceedings. The defence could have done; and it is said here in your Lordships' House that a mistake was made in not doing so. Swabey was defended by a very experienced barrister, and he decided not to inform the court of this. No doubt it was a very difficult decision. He may perhaps have felt that reference to these earlier proceedings might do more harm than good. He may have thought, too, that while what had happened before might account for Swabey's agitation, it did not really provide an explanation for his conduct, as distinguished from his agitation.
All that Swabey did was to ask that the matter should go no further; to ask the sub-lieutenant to take back what he had said. My Lords, is this the reaction to be expected of an innocent lieutenant-commamder, the commanding officer designate, whether or not he has been before a court-martial before on an indecency charge? Is this the reaction to be expected of such an officer, innocent but wrongly accused of homosexuality by a sub-lieuteniint? Would one not expect 1106 the lieutenant-commander's immediate reaction to have been at least to order the sub-lieutenant to his cabin and to tell the sub-lieutenant, when he persisted in his accusation, that he would report his conduct? Now, my Lords, Lieutenant-Commander Swabey did nothing of the sort. His omission to do so may well have been regarded by the court-martial as significant. It was the sub-lieutenant who immediately lodged the complaint.
Of course, in every case that is fought out there are two sides. This case, as your Lordships have said, is a distressing case, and one feels all that was said by the right reverend Prelate, with its harsh consequences so far as Lieutenant-Commander Swabey is concerned. But, my Lords, at the same time, I must say again that I cannot myself find any ground for saying that there has been a miscarriage of justice, or for saying that the court-martial came to the wrong conclusion. Nor can I believe that a commission to inquire into what has been the subject of independent inquiry and investigation on many occasions would now serve, these many years later, any useful purpose. We have in the courts of this country every day conflicts of evidence, and it is the task of the tribunal which sees the witnesses, which sees how they give their evidence, to make up its mind as to who is telling the truth. That was the task of this court-martial, and it is not possible, really, for us, on looking at the record of what was said, and not having heard the witnesses give their evidence, to say that, if we had heard that evidence, we should have reached a different conclusion.
It may perhaps be too much to hope that I have satisfied the noble Lord who moved this Motion and those who have supported him that there really is no good ground here for reaching the conclusion that, on a decision of this question, there has been a miscarriage of justice. If there is no good ground for that, then indeed no further inquiry, after all these years, is warranted. My Lords, no one wants to see a person wrongly convicted, and I am sure—and I am certain your Lordships will accept it—that if any of those whose duty it was to read these proceedings and consider them carefully had thought that there was any real doubt about the result, not one of them would have had the slightest hesitation 1107 in saying so, and in saying that the verdict could not stand. These have been proceedings which have been considered by the Board of the Admiralty more than once, by the Judge Advocate of the Fleet, by the Courts-Martial Appeal Court—your Lordships remember that they read the shorthand note with anxious care—and also, although it may not count much with your Lordships, independently by me, and as impartially and fairly as I have been able to do it. None of those whose duty it has been to read these proceedings have come to the conclusion that there is any ground for interfering with the verdict, and I would ask your Lordships to attach some weight to this unanimity of view.
I think I have really dealt with most of the points—I hope I have—which have been put before your Lordships by various speakers who have interested themselves, perfectly properly, in this case. It is difficult for this House to act, when it is sitting in its corporate capacity like this, as a final court of appeal. All I can say is this: that all I have heard to-day does not make me change my view. I see no reason for thinking that any further inquiry is required.
The noble Lord, Lord Airedale, asked a question of me on which I should like briefly to touch—namely, as to the use of the term "free pardon". It is a term of considerable antiquity. The word "free" is to show it is not conditional; and the word "pardon" may be considered perhaps in some degree inappropriate. At the same time, I do not think there is really any evidence that those who are the fortunate recipients of a free pardon do not know that it means that the conviction and all its consequences are wiped out, and that they are to be regarded as being in the position of having been acquitted at trial.
There is one point more with which I should deal—and I apologise for detaining your Lordships for so long. That is the question whether there can be any further reference to the Courts-Martial Appeal Court. I see great difficulties about that, as the noble Viscount said. I was asked to advise some considerable time ago, I think before even I saw the whole record, on whether a reference in certain terms could be made. I had to advise that, in my view, the Admiralty 1108 could not refer on those terms. Their powers to make a reference, to which the noble Viscount drew attention, are not without limit. I doubt now very much indeed whether a further reference could be made under the Act now in force.
So one comes down, in conclusion, to this Motion. If the investigations which have been made do not satisfy your Lordships, I must say I regret it; but if your Lordships desire to press this matter and to vote on the Motion, then it is worth considering just what the terms of the Motion are. They are somewhat of an anti-climax. The Government are askedto set up an independent commission … to advise whether … there has been a miscarriage of justicein the opinion of that Commission; and thento move for Papers".That is the Motion before the House. My Lords, I am sure my noble friend the First Lord would not have hesitated to say that this verdict should not stand if he had felt, on a careful review of the evidence, that there was any ground for thinking that the court-martial had come to the wrong conclusion, or had been actuated by bias or by prejudice. It is the easiest thing to say, and these are charges which can easily be made; but in this case, my Lords, my submission to your Lordships is that there is no justification for them.
§ 7.40 p.m.
§ THE EARL OF PERTH
My Lords, before the noble and learned Lord sits down, I wonder whether he will help me on one point. It is this. The right reverend Prelate the Lord Bishop of Chichester read out a letter from Lord Selkirk which I understood said that Lord Selkirk undertook that there would be a submission of this case to the Court of Inquiry. This must have shown at that time that the noble Earl, Lord Selkirk, thought there were grounds for such an inquiry. Did that inquiry take place? If not, why not?
§ THE LORD CHANCELLOR
My Lords, I have not—and your Lordships would not have expected me to—seen all the correspondence which passed with the noble Earl, Lord Selkirk, in relation to this matter: but I thought that the right reverend Prelate was referring to 1109 some statement by the noble Earl, Lord Selkirk, about making a possible reference to the Courts-Martial Appeal Count. That was my recollection. If that was so, there was consideration of that. As I have said, I had to say that such a reference would have been, in the terms in which it was proposed, ultra mires. I do not think it went beyond that, but—and I ask your Lordships to pay considerable attention to this and to attach weight to it—the whole of the Courts-Martial Appeal Court (all three Judges) read these proceedings when the matter came before them on an application for leave to appeal. They said they read it with anxious care. If they had thought there was any substance in any criticism made before them, then they would have given leave to appeal.
§ THE EARL OF PERTH
My Lords, would it be proper to ask the right reverend Prelate to read once again his quotation from the letter by Lord Selkirk?
THE LORD BISHOP OF CHICHESTER
My Lords, I was going to ask if the noble Lord, Lord Shackleton, had a copy. I have at the moment surrendered that reference to Hansard.
§ 7.42 p.m.
§ LORD SHACKLETON
My Lords, I am very grateful to your Lordships, not only those who have spoken but those who have listened, and I am grateful to the noble and learned Lord for his promise not to act as a prosecutor. It is not time for me now to reply to the many points made by the noble and learned Lord. I would say, however, first of all, that there is still conflict on a number of points. On the question of preliminary investigation, I have with me an affidavit from a naval officer, an admiral of distinction, that never in his twenty years of service had he ever allowed a court-martial without ordering a preliminary investigation. It may be that the noble and learned Lord has a greater knowledge of the Navy than this admiral, but I will not press that.
When it comes to the conduct of the application for leave to appeal, the version I have had is a very different one from that that the noble and learned Lord has given to your Lordships' House. There is no transcript at all of the proceedings, and I have been told by counsel in this case—whose names have been mentioned and one of whom is no longer able to 1110 advise me as he is a Member of the Government—that the court was intensely hostile; that it was thrown out on a narrow interpretation of points of law; that, furthermore, the court had no opportunity to consider the affidavits, some of which have been referred to; and, indeed, that it was on a technicality that it was rejected. Section 5 of the Act does not come into it because we never reached Section 5.
We have listened to the extremely pleasing account of the proceedings and of the high-mindedness of those concerned with the court in Malta. There was reference also to the defence counsel—a man of distinction—and I think the noble Lord, Lord Carrington, referred to him. I have his affidavit here. His affidavit is as condemnatory of any proceedings in a court as anything I believe anybody could have read. I agree with the noble and learned Lord in making no accusations against the deputy judge advocate, but there is a point which the noble and learned Lord perhaps does not appreciate: rank does count in these matters, as does position and influence in regard to some of the statements of the prosecution. I am astonished that the noble and learned Lord can, in fact, pass without adverse criticism some of the remarks that have apparently been made by the prosecutor in this case.
We believe there has been a gross miscarriage of justice. I think the argument that the noble and learned Lord used with regard to corroboration could equally be used the other way. What Swabey said might be precisely the things that an innocent man would have said. I would suggest that he was less than fair to the argument of the noble Viscount, Lord Colville of Culross, who, in fact, explained that there is a difference between knowing a man is possibly guilty or suspecting him of being guilty of a previous offence and not necessarily relating that to agitation and conduct. I thought the noble and learned Lord was less than fair in regard to that matter.
I will not detain your Lordships longer. I still feel there has been prejudice in this case and I think it is prejudice that has gone on right the way through. It was suspicion of this, this fear of homosexuality, that led to the sub-lieutenant making his accusation.I 1111 have evidence in the transcription here that during the journey back to the docks, when this accusation was made, he had no recollection of events that took place, events vouched for by not only the taxi-driver but the policeman at the dock gate. I think this prejudice has gone on all the way through and I believe it to exist in the Admiralty. I believe that the prosecutor and others in this case, although they were honourable men, thought that they had a guilty man and that this time they had a chance to "nail" him. This is not the principle under which we conduct justice in this country. When it came
§ to the review, there was equal prejudice in the Admiralty. I am told it was referred to the Judge Advocate of the Fleet. I am also told that one distinguished figure connected with the review of this matter is alleged to have said to the late Lord Bishop of Chichester: "Guilty the first time, guilty this". Because of this prejudice an independent inquiry is necessary, and I therefore propose to press my Motion to a Division.
§ On Question, Whether the said Motion shall be agreed to?
§ Their Lordships divided: Contents, 35; Not-Contents, 36.1111
|Alexander of Hillsborough, E.||Effingham. E. [Teller.]||Rusholme, L.|
|Amherst of Hackney, L.||Elliot of Harwood, B.||Snackleton, L.|
|Ampthill, L.||Gosford, E.||Shepherd, L.|
|Boyd-Orr, L.||Hawke, L.||Strabolgi, L. [Teller.]|
|Burden, L.||Lawson, L.||Strang, L.|
|Champion, L.||Longford, E.||Strathcarron, L.|
|Chichester, L. Bp.||Lucan, E.||Taylor, L.|
|Chorley, L.||Mar and Kellie, E.||Teynham, L.|
|Colville of Culross, V.||Peddie, L.||Walston, L.|
|Cowley, E.||Perth, E.||Williams of Barnburgh, L.|
|Crook, L.||Rea, L.||Williamson, L.|
|Durham, L. Bp.||Robertson of Oakridge, L.|
|Albemarle, E.||Devonshire, D.||Jellicoe, E.|
|Allerton. L.||Dilhorne, L. (L. Chancellor.)||Lansdowne, M.|
|Atholl, D.||Dundee, E.||Long, V.|
|Bossom, L.||Ferrers, E.||Lothian, M.|
|Boston, L.||Fortescue, E.||Mabane, L.|
|Carrington, L.||Furness, V.||MacAndrew, L.|
|Chelmer, L.||Goschen, V. [Teller.]||McCorquodale of Newton, L.|
|Chesham. L.||Grenfell, L.||McNair, L.|
|Conesford, L.||Hailsham, V. (L. President.)||Newton, L.|
|Craigton, L.||Hastings, L.||St. Aldwyn, E. [Teller.]|
|Denham, L.||Horsbrugh, B.||St. Oswald, L.|
|Derwent, L.||Howe, E.||Waldegrave, E.|
Resolved in the negative, and Motion disagreed to accordingly.
§ House adjourned at three minutes before eight o'clock.