§ 7.38 p.m.
§ LORD RUSSELL OF LIVERPOOL rose to call attention to the case of Christopher Swabey, former Lieutenant-Commander, R.N., who was court-martialled in 1956, and to move to resolve, That, in the opinion of this House, Her Majesty's Government should set up an independent Commission to inquire into the circumstances of the case and to advise whether, in their opinion, there has been a miscarriage of justice. The noble Lord said: I should like first of all to explain why it has been thought necessary, by some of those who have been gravely disturbed by this case of Christopher Swabey for a long time, to raise it again in your Lordships' House after a lapse of over two years, although I must make it clear that the greater part of this delay cannot be laid at our door. I should also like to deal in advance with a criticism which I know will be made, because it has already been made to me personally; namely, why, nearly nine and a half years after this court-martial took place, is this finding being questioned, and why is Christopher Swabey not content, or not prepared, to accept the opinion of those who have already reviewed the proceedings, that there are no grounds for saying that there may have been a miscarriage of justice?
§ The first reason is this. It is one more step in the long battle which Swabey has been waging to clear his name, for he knows that he did not commit this offence. Is it likely that he would have gone on fighting for more than nine years, spending a very large sum of money which he can ill afford, if he were guilty of that offence? He is not a fool, and I can assure your Lordships that he is not doing it for publicity. He knows perfectly well that had he been content to accept injustice the whole matter would have been 815 forgotten by the public many years ago. As for his friends, they have never believed that he was guilty of the offence. I would submit to your Lordships that this determination on his part to fight on is the greatest proof of his innocence.
§ The second reason is that since our first debate on this question more evidence has come to light regarding the knowledge of the first court-martial—about which you will be hearing later on—the first court-martial in Malta, and the fact that there was considerable talk about it in Naval circles, both before and during the second trial. The third reason why it is only right and proper, in my submission, that there should be an independent Commission is that it would throw some light on certain aspects of Naval court-martial procedure which require independent investigation, not merely because of this case but for the benefit of others who may find themselves in a similar position in the future.
§ I would make it clear, in case any of your Lordships think otherwise, that those who are supporting Swabey are not just a bunch of cranks, busybodies and do-gooders who are never satisfied with anything and are only out to make trouble. They include several Members of your Lordships' House who have great knowledge and experience. Some of them are Bishops, some are lawyers, but last and by no means least, a number of them are senior Naval officers, including a distinguished Admiral of the Fleet. All these people I have just mentioned have known all about this case for a long time. They know exactly how many times the case has been considered in the Admiralty by various First Lords, but they are still of the opinion that it should form the subject of an independent inquiry by a completely independent body, which up to the present it has not been.
There are a number of reasons for our holding this opinion. As I have no intention of keeping your Lordships for too long at this late hour of the day, I propose to deal with only some of them and I leave others to be dealt with by other Members of your Lordships' House who are going to speak later. First and foremost, I think, is the fact that the whole background of this case, including its venue, have made it almost impossible, or did make it almost impossible,
for there to be a fair trial, and to make this understood I am afraid it is necessary for me to go back to the first court-martial of Swabey, which took place in 1950. In 1950 Swabey, who had then been in the Navy for a little over seven years and had seen service in several ships, was convicted by a court-martial at Malta of—and I read the words of the charge:
conduct unbecoming the character of an officer in that he visited without cause the wheelhouse of H.M.S. "Rowena" where two ratings, one of whom was drunk, were then sleeping
The same court acquitted him of other charges alleging indecency, but they convicted of the unbecoming conduct charge and dismissed him from the Service for the simple reason that there was no other sentence they could pass upon that charge.
It seems to me highly improbable, to put it at its very lowest, that the court which convicted Swabey upon that charge, which, as you will hear later, formed part of the same incident as the indecency charges—particularly as at that time not only did he have a completely unblemished service record but he had impeccable confidential reports from all the Captains under whom he had served, and I have seen those reports—would have done so had it not been for the unfortunate prejudice left in the minds of the members of the court by the charges alleging indecency, though in fact they found them unsubstantiated and acquitted him of them. In support of this argument. I should like, with your Lordships' permission, to quote from the speech made by the right reverend Prelate the Bishop of Chichester in the debate in 1963. He said this:
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."—[OFFICIAL REPORT, Vol. 247, col. 1068, March 19, 1963.]
I imagine that many of your Lordships would agree that there is a great deal of truth in what the right reverend Prelate said on that occasion.
§ But in this case I think there is still more to be said. These other charges of indecency, the charges that were considered by the first court-martial together with the charge of unbecoming conduct —and I have never heard this denied by the Admiralty or the Navy Board as it is now called—were made by a couple of ratings who thought they had been caught in flagrante delicto and chose that particular method of getting out of it by making counter charges of a similar nature against Swabey. It only remains for me to say in regard to that court-martial that the Lords Commissioners of the Admiralty on review of the proceedings were pleased to dissent from the finding of guilty and to annul the sentence. I think the fact that they did so surely indicates that they were satisfied that the charges of indecency, which, after all, were part of the same transaction, were entirely without foundation. It is this wild accusation, Swabey contends—and I, for one, entirely agree with him—which forms the whole basis of the accusation made against him in 1956 which led to his trial by court-martial, the trial which is the subject of the Motion standing in my name on the Order Paper.
§ Between 1950 and 1956 Swabey's conduct had never been called in question. Had it not been so it is certain that he would not have been appointed by the Admiralty to command H.M.S. "Redoubt", as he was in March, 1956. The fact that he was considered suitable to command a small ship of this kind raises another point which, in my submission, is entirely in his favour and quite indisputable. The greater part of his previous service had been in small ships. Had he been a person of homosexual tendencies, is it inconceivable that this would not have been known to at least some of the officers who served with him, and would it not have been a subject of general conversation on the lower deck? Most of your Lordships have, I know, served in one of the Services and many of you must know that this is true. 818 People of that kind almost invariably give themselves away in one way or another, and the word quickly goes round.
Not only has no one who served with Swabey ever thought for a moment that he was not normal but many have specifically sworn to the contrary. One of them, Lieutenant-Commander Rosling, who knew him when they were cadets together at Dartmouth and later served with him at sea in a small ship, said this about him in an affidavit:
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, having a deep loathing of any form of perversion.
That is not all. There are other Naval officers and a number of Naval ratings who also served with him and have said—and are willing to repeat upon oath—that they never had any reason to believe that he was not a perfectly ordinary person, and that they had never once heard a breath of scandal about him.
I am once again going to ask your Lordships' permission to read a letter which was written to Swabey on February 5, 1965. It was completely unsolicited, and it was written by this man because he had read something in the Daily Telegraph
Dear Mr. Swabey—You may not remember me but I was on board 'Bleasdale' until 1948 and I was latterly your navigator's yeoman.
I was shocked to read in the Telegraph yesterday of the dreadful ordeal which you have been subjected to. I cannot believe, as a fairly responsible member of the lower deck—where scandal is always the most prolific—I would not have known of the peccadilloes even of the officers. Never was there any mention of scandal as far as you were concerned, and all the ratings, myself particularly as I had more to do with you than the others"—
he was navigator's yeoman—
held you in esteem. If another inquiry is held I, for one, would gladly repeat this on oath and I am sure other shipmates whom I could contact would do the same. Please do not hesitate to contact me if you think I could be of any assistance. Otherwise, may I send you my heartfelt wishes for a successful conclusion to the case to enable you to clear your name.
Surely for this reason, if for no other, there should be an independent commission of inquiry, so that this kind of evidence can be heard and considered entirely objectively by a body which is in no way connected with the authorities who have so far investigated this case.
§ There is now ample evidence that the officer whom Swabey was relieving as commander of H.M.S. "Redoubt" was handing over his ship with considerable reluctance, and that in conversation with another officer, Lieutenant-Commander Harvey, who was then in command of H.M.S. "Bastion" and stationed in Malta, had mentioned the fact that Swabey had been court-martialled on a previous occasion. On the day that Swabey was due to arrive on H.M.S. "Redoubt". Lieutenant-Commander Harvey was aboard and, after talking with the other officers, he left with the distinct impression that there was a hostile atmosphere regarding Swabey's appointment; and next day Harvey was again on board H.M.S. "Redoubt" and he left the ship convinced that there was general knowledge on the part of all the four officers, including Sub-Lieutenant Havers, whom you may know was the officer who was later to complain of an indecent assault upon him by Swabey. This would doubtless explain what would otherwise seem to be inexplicable—namely, that Swabey's conduct on the night in question should have appeared to Havers to be the approach of a homosexual.
§ What evidence there was in any event was so flimsy that I am certain that no court-martial of which I have had any experience—and I officiated as Judge Advocate at hundreds of them during my service with the Judge Advocate-General's Office—would have regarded such conduct as Swabey's as indecent assault without there being some reliable corroboration. And the only evidence which was put forward by the prosecution to corroborate the evidence of Havers was Swabey's reaction when he returned on board the "Redoubt" and Havers made the accusation of indecency. This evidence was, as you will hear later, in my opinion, just as consistent with Swabey's innocence as with guilt.820
§ Now it is not difficult to imagine the shock with which Christopher Swabey heard these charges made. He had been through all this before, and the kind of things that people might say, and would be saying—and he must have known that there were many in Malta who knew about the previous court martial—must have come to his mind immediately: "There's no smoke without fire", "Once a queer always a queer", and many other remarks of a similar nature. What, in fact, was his reaction? To put it shortly, he was, not unnaturally, agitated, and walked up and down the ward-room passage. He said that the sub-lieutenant had gone berserk. He said that he did not want it to go further, but he would mention the whole thing to Lieutenant-Commander Davidson, who was commanding the ship at the time, in the morning; and lastly, he said that he had been all through this before and knew what it was all about.
§ One must surely ask oneself why it was that the court found that this was corroboration; and it can only be assumed that it was because they had no official knowledge of the previous court-martial, because it was not mentioned by the defending officer at the trial. This was, in my opinion, a most unfortunate decision, but I will be dealing with it in a few moments. Had this decision not been made, the Judge Advocate at the trial would have been bound then to warn the court that Swabey's reaction was quite consistent with innocence, and for that reason it could not be properly relied on as corroborating Havers's evidence; and that should have been the end of the case.
§ But surely there is another point that arises here, and it does not need a lawyer to appreciate it. All it needs is ordinary common sense. Even if Swabey had been what the court were asked to believe, is it likely, is it possible, is it even conceivable that he would have made indecent advances to an officer who was just about to come under his own command in a small ship, and whom he had only just met—that he would have made them, first of all, in a public bar, where he is supposed to have put his leg up against the leg of another officer, and then subsequently in a taxi which had no partition 821 between the driver and the passengers, on which occasion he is supposed to have put his hand out on to the leg of Lieutenant Havers?
§ I do not know whether any of your Lordships have ever been in a taxi in Malta in the evening, but I have, and when they are driving round corners quickly it is quite often necessary to save oneself from falling over. Had not Swabey done that on this occasion I think he might well have found himself in a much more compromising position vis-à-vis an indecent assault than if he had tried to stop himself from falling over. I am sorry to have to say this, having regard to the fact that several First Lords, and I believe at least two Lord Chancellors, apparently believe it, but I think anyone who would believe that would believe almost anything. That the court believed it, as they must have done, would appear to me to indicate quite clearly that they had some knowledge of the other court-martial, although they had not heard about it in court; and they took the view, or may well have taken the view, that because no mention of it had been made by the defence the reason was that there was something to hide.
§ About this unfortunate incident I want to say only this: that the decision was made because of the absence of a preliminary investigation in this case, which was described by Mr. Geoffrey Lawrence, in his submission to the Admiralty on Swabey's behalf, as "absolutely crucial", because if a preliminary investigation had been held, with a summary of evidence being taken, those advising Swabey prior to his court-martial would have been able to appreciate the whole of the prosecution's case, and they would then immediately have appreciated the emphasis which the prosecution would have to place on the only piece of corroborative evidence available to them—namely, as I have said, the behaviour of Swabey immediately he arrived on board H.M.S. "Redoubt" and the accusation was made against him. Defending counsel would then surely have made an entirely different decision and the circumstances of the 1950 court-martial would have officially been brought to the notice of the court. The court would then have been made aware of the reason why Swabey behaved like he did when the accusation was made. This aspect of the 822 case is going to be dealt with more fully later in the debate by the noble Lord, Lord Ampthill, who, as a former naval officer, has a personal knowledge and experience of court-martial procedure in the Royal Navy. I propose to leave that to the noble Lord, Lord Ampthill.
§ In the debate in this House the noble and learned Viscount, Lord Dilhorne, who then occupied the Woolsack, said that it had long been the practice in the Navy not to have a preliminary investigation in respect of the trial of an officer by court-martial. I am assured, however, by a number of senior naval officers, including a distinguished Admiral of the Fleet, that it is the practice to hold such a preliminary investigation. I must leave it to your Lordships to decide which of these statements you would prefer to believe; but, whatever your decision may be, the fact that in Swabey's case the failure to hold a preliminary investigation was prejudicial to a fair trial and the likelihood that it might in future be prejudicial to others who find themselves in a similar predicament, is surely one more reason why there should be the independent inquiry which we are asking Her Majesty's Government to set up. I must apologise to the House for having taken up so much of your Lordships' time, particularly so soon after Lord Egremont's appeal for shorter speeches, with which I am in full agreement, but I feel certain that you will understand and appreciate why it has been necessary for me to do so.
There is only one other matter with which I want to deal, and it arises from something which the noble and learned Viscount, Lord Dilhorne, said in his speech, when replying to the debate on behalf of the Government, in March, 1963. He said:
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."—[OFFICIAL REPORT, Vol. 247, col. 1107; March 19, 1963.]
§ There are only two things which I should like to say about that. "As impartially and fairly as I have been able to do it" were the words used. No one is suggesting, and I am not suggesting, that it was done otherwise, but I think that it should be remembered that, except for the occasion upon which the then Lord Chancellor was asked to go into the case by the First Lord after the Courts-Martial Appeal Court had refused to give leave to appeal, the only review of the proceedings up to that time had been by the Judge Advocate of the Fleet, by members of the legal branch of the Admiralty, who do not even happen to be lawyers, and by the Ministers responsible for that Department. It is true that it was submitted on one occasion to the Treasury Solicitor, but that was so that he should instruct the Counsel for the Crown in the application for leave to appeal.
§ It was submitted by Swabey's counsel at the hearing of the application to appeal that his immediate reaction on hearing the accusation of indecency made by Havers on their return to H.M.S. "Redoubt" was not capable of being regarded as corroboration, or that if it were, it was as consistent with his innocence as with his guilt. The court ruled that the members of the court-martial were entitled to regard such evidence as corroboration, and refused leave to appeal on that ground, but they appear to have ignored completely the importance of the fact that, from Swabey's point of view, there had been no mention of the previous court-martial at Swabey's trial. Had the court-martial been aware of this previous trial and aware of the result of it, surely they at least would have had to consider whether this corroboration of evidence was not a perfectly innocent explanation of Swabey's reaction and, having regard to the nature of Havers's testimony, they might well have decided that it would not be safe to regard that evidence as corroboration. Indeed, I would go so far as to say that they could not reasonably have come to any other conclusion.
§ It must also be remembered that the Courts-Martial Appeal Court did not have before them any of the affidavits regarding the knowledge in Malta of the first court-martial which was even being 824 voiced in the precincts of the court during the second trial—and there is evidence to prove it. I myself and a number of others feel very strongly in the case of Christopher Swabey that justice has not been done, and certainly that it has not been seen to be done. I hope that many of your Lordships will have come to the conclusion by the end of this debate that the only way this can be achieved is by setting up an independent commission, and that you will demonstrate this by supporting my Motion in the Division Lobby.
§ Moved to resolve, That, in the opinion of this House, Her Majesty's Government should set up an independent Commission to inquire into the circumstances of the case of Christopher Swabey, former Lieutenant-Commander, R.N., who was court-martialled in 1956, and to advise whether, in their opinion, there has been a miscarriage of justice.—(Lord Russell of Liverpool.)
§ LORD FRASER OF NORTH CAPE
May I ask the noble Lord one question? Did not this case come before Lord Goddard?
§ 8.7 p.m.
§ LORD BYERS
My Lords, I should like to follow the noble Lord, Lord Russell of Liverpool, in pleading with the Government the case of Mr. Swabey. I shall not go into it in any detail, for the noble Lord has done it clearly and cogently. I hope that the Government will take note of the new points which he brought forward. I hope that this may sway them in their judgment. I am assuming that the Government are going to give the reply that no inquiry will be possible. I hope I am wrong, but I am working on that assumption.
I should like to argue the case on rather broader grounds. From the speech of Lord Russell of Liverpool, it must surely be clear that there is at least a prima facie case that there has been a miscarriage of justice. I do not think that 825 we on this side are called upon to prove more than that there has been a prima facie case in which an individual has suffered, or may have suffered, a miscarriage of justice. Here is a man who is acquitted of indecency in 1950 in Malta and who is sent back there six years later. One might query the wisdom of such a posting when one realises how much ill-informed gossip and scandal-mongering there always is in a close military community. There is the evidence of the taxi-driver that nothing happened. There is the court-martial in which the prosecutor, apparently, appoints his inexperienced junior to act as adviser to the court. There is a lack of corroboration and there are other matters.
With your Lordships' permission I should like to refer to two extracts from a letter which I have been passed by one of my colleagues—a letter written by a naval officer of much experience, speaking on behalf of himself and a number of other naval officers. He says:We base our criticism, from the naval point of view, that in Swabey's case there was no previous investigation before the court-martial. We believe that had there been one there would in all probability have been no court-martial and that the incident would have been disposed of in a normal way with disciplinary action.Then he goes on:I feel, from a close study of the speech made by the Lord Chancellor, Lord Dilhorne, that he was less than fair when he said that the preliminary investigation was not necesary. I can only say that in all my 42 years' experience in the Navy, most of which was spent in command of ships, I have never heard of a case of an officer striking another without a preliminary investigation being held immediately afterwards."—He underlines the word "immediately"—The Lord Chancellor of that day, I thought, was also unfair when he disregarded entirely the evidence given by the taxi-driver in Swabey's favour on the grounds that he was not a satisfactory witness and never explained that he was called by the prosecution.
§ VISCOUNT DILHORNE
My Lords, that is not stating accurately what I said. I never said that I disregarded the evidence of the taxi-driver. I never heard it; I do not know how that taxi-driver gave his evidence. All I could do was read what he had reported. I pointed out that the court which heard him, and saw him, might have formed the conclusion that his evidence was not credible—that is all.
§ LORD BYERS
My Lords, I wonder whether, in fact, that was a fair conclusion to draw, because it seems a very odd thing that this taxi-driver who gave very strong evidence was called by the prosecution, which effectively prevented the defence from putting him up as a witness, because the prosecution, as I understand it, had given him such a cross-examination that they had invalidated his evidence. I do not know whether the noble and learned Viscount wishes to comment on this, but reading his speech in Hansard I got the impression that he regarded this taxi-driver as a thoroughly unreliable witness.
§ VISCOUNT DILHORNE
My Lords, the noble Lord may have got that impression, but I cannot answer for any impression he got. All I can say is that I would not, on reading a record, form any impression which could be relied on as to accuracy or inaccuracy of the witness. The point I am making, as I hope the noble Lord will appreciate, is that if the court who heard what he said believed him, he was a very telling witness for the defence, but if they did not believe him and disregarded his evidence, that is another matter; and it was entirely for them to decide.
§ LORD BYERS
My Lords, the noble and learned Viscount can help me on a matter of law. Why was it, then, that the prosecution and not the defence called this taxi-driver?
§ VISCOUNT DILHORNE
My Lords, that I cannot answer. I was not responsible for the prosecution. But I must say that when I have been defending I have often been very glad if a witness for the prosecution gave me the advantage of cross-examining him and getting out matters which would help the defence, rather than being limited to examination-in-chief.
§ LORD BYERS
My Lords, all I say is that there seem to be sufficient grounds of doubt here. Even this discussion which I have had with the noble and learned Viscount, Lord Dilhorne, must indicate that there is a good deal to inquire into in a matter of this sort, when a man's career, a man's life, is at stake. Surely, it all adds up to a prima facie case, that there might well have been a miscarriage of justice in this case. I ask the Government: How much more must we prove 827 in order to have an inquiry which will at least give an opportunity to an individual to clear his name? Swabey's career was wrecked. He is surely entitled to the independent inquiry for which he asks.
But there is another principle involved here, and I think it is a principle which affects Parliamentary democracy itself. In 1963, the noble Lord, Lord Shackleton, who I thought would be here tonight (no doubt he has a reason not to be: and let me say that I have the highest respect for him), raised this matter in this House and moved for an independent inquiry. According to Hansard he was supported by the noble Lord, Lord Walston, and I think there are other noble Lords now in office who certainly supported that Motion. I contend that members are not morally entitled to refuse to do in office what they pleaded should be done when they were in Opposition. If the case was strong in 1963, why should it be any weaker now?
The same thing happened when I raised the case of Timothy Evans. When he had no responsibility, when he was in Opposition, the present Home Secretary pleaded that Evans's name should be cleared; but as soon as he took office we received a different answer. I think it is fair to ask: Who is running this country—the Ministers who are now in power, or the civil servants who are answering for the Departments and are trying to protect the Establishment at every turn? This is a principle of Parliamentary democracy, which we ought to uphold in both Houses of Parliament, and where a man's life or career is affected I do not believe that the Government have any right to refuse an inquiry. It is no use saying: "If we do this it will create a precedent". How many such cases are there in a generation? What is there to lose by acceding to this request? I cannot believe that the Government really intend to refuse an inquiry to-night.
On the last occasion on which this matter was debated, noble Lords opposite listened to the Answer given by the Conservative Government, and they were so dissatisfied with it that they took the matter into the Division Lobby, and lost by only one vote. I do not know what is going to come of Parliamentary democracy if we allow the idea to get around 828 that when you are in Opposition you can speak with sincerity and feeling, and can plead a case, but as soon as you come to power then you change and just take your instructions from the civil servants in the Departments. There are two principles involved here—the career of Swabey and democracy in this Parliament.
§ 8.15 p.m.
§ LORD CHAMPION
My Lords, in order to assist the House and those noble Lords who are to participate in the debate, it seems to us to be advisable that there should be an early intervention by a Minister, giving the Government's point of view on the Motion moved by the noble Lord, Lord Russell of Liverpool, particularly as to whether a further examination of the whole of this case by the Minister of Defence for the Royal Navy has resulted in a change from the advice proffered to the House by the previous Government in the debate of March, 1963. Perhaps it will be for the convenience of the House if I begin by giving a brief summary of the case and leaving it to my noble and learned friend the Lord Chancellor to reply to the points that will emerge, and those that have already emerged, in the debate.
Christopher Swabey, then a Lieutenant-Commander, joined H.M.S. "Redoubt" at Malta on March 22, 1956, as her commanding officer designate. On the afternoon of March 23 he invited a young sub-lieutenant, who subsequently became the complainant in the case, to go ashore with him that evening. He accepted and they left the ship together about 6 o'clock. Swabey and the complainant spent until 9.30 drinking at various bars and at a club. During this time, they met an old acquaintance of Swabey's, a retired Commander, who also drank with them for about an hour to an hour and a half, but then left them, declining Swabey's suggestion that he should join them at dinner. At about 9.30, Swabey and the complainant went to a restaurant and dined. They left the restaurant about 11 o'clock and took a taxi-cab back to the Dockyard and the ship.
The complainant alleged that during the evening he was frequently made aware of Swabey's physical proximity by odd and offensive contacts. This conduct by 829 Swabey culminated, according to the complainant's story, in an unmistakeably indecent assault in the taxi-cab just before they reached the ship. The complainant alleged that he instantly struck Swabey in protest and denounced his actions. Swabey alleged that he did not accuse him of being a homosexual until both had got back on board. It was this alleged incident in the taxi-cab which was the subject of the subsequent charge. On arrival on board, the evidence was that Swabey was agitated, and said that the complainant had suddenly gone berserk. He described this by waving his arms wildly above his head and saying "Whoosh". He showed anxiety to get possession of any report that the complainant might be writing to the first lieutenant. To one officer he said:I don't want this to go any further … if it does, it will end in a court-martial".During his perambulations round the ship he described the complainant to an able seaman in derogatory and coarse terms.
Swabey was tried by court-martial at Malta on April 16 and 17, 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. He was found guilty on the first and third of these charges and acquitted on the second. He was sentenced to be dismissed from Her Majesty's Service. I must add, because the point has been made at some length in Swabey's petitions and has constantly been referred to in the many representations which have been made, that Swabey had been previously tried by court-martial at Malta in January, 1950. On that occasion, he had been charged with indecent assault, an act of gross indecency, an attempted act of gross indecency, conduct unbecoming the character of an officer and an act to the prejudice of good order and Naval discipline. He was acquitted on all these charges except the fourth—that of unbecoming conduct—on which he was found guilty and sentenced to dismissal. On review, the Admiralty dissented from this finding, annulled the sentence and ordered that he should return to duty.
Mr. Swabey was defended by the same counsel as defended him at his trial in 1950—a barrister who has deservedly a sound reputation, and is much ex- 830 perienced in court-martial work. At the trial in 1956, the line taken by the defence was that the complainant's memory of some of the details of that evening was imperfect, and that he was, therefore, an unreliable witness; that, early in the evening, some harmless touching had put it into his head that Swabey was a homosexual, and that he let his imagination run riot on this idea in the course of the five and a half hours or so they were in one another's company; that there was no corroboration of the complainant's story; and that, on the contrary, the taxi-cab driver, called as a prosecution witness, said in evidence that he did not remember anything happening in his taxi-cab which would support the accusation. The defence deliberately took the decision to make no reference to the previous trial of 1950.
Swabey submitted to the Admiralty a petition antecedent to appeal on June 12, 1956. This was rejected by the Admiralty on July 16. On July 26, 1956, he applied to the Courts-Martial Appeal Court for leave to appeal. This was refused on November 5. On April 11, 1957, he addressed a petition to Her Majesty, which was rejected on June 3, 1957.
The first formal petition to the Admiralty and the application to the Courts-Martial Appeal Court made the following allegations: that there was knowledge in Malta in 1956 of his previous trial in 1950, and therefore a probability of gossip prejudicial to his trial; that the verdict was against the weight of the evidence; that there was a misdirection of law on the part of both the Prosecutor and the Judge Advocate and, finally, that there were errors in the conduct of the prosecution and there was incompetence on the part of the Judge Advocate. The petition to Her Majesty added that the defence's decision not to refer at the trial to the previous trial of 1950 prevented the defence from giving the true explanation of his conduct on his return on board—namely, that, on hearing the accusations of the complainant, he was agitated by the recollection of his previous trial, whereas the Court had accepted his agitation as corroboration of the alleged incident in the taxi-cab.
My Lords, I am not going to attempt to reply or to deal with these points, which I hope I have set out fairly. The fact is that, after the last debate, some 831 Members of this House, and others, continued to press representations on Mr. Swabey's behalf; and, on the change of Administration last October, they made a further approach to my honourable friend the Minister of Defence for the Royal Navy. They asked him to take a new look at the case, and the various affidavits and memoranda provided by Mr. Swabey's legal adviser. This he did, and I have it from him that he formed his own view upon them before discussing them with any adviser. He was concerned with only one question: had Mr. Swabey, as an individual, been treated justly? He concluded that he had been.
My Lords, we all know—and certainly those who have had ministerial experience know—how quickly a feeling of loyalty to his Department comes to a newly appointed Minister. He finds within it a loyalty to himself which he reciprocates, and, unless he is a watchful and determined person, he is in danger of becoming the creature of his Department. The point about this danger was, of course, made by the noble Lord, Lord Byers. Having known my honourable friend for very many years, I would never suspect him of becoming merely a mouthpiece of his Ministry, but it might be thought that his judgment might be suspect on that score, and I could understand it if that suspicion still dwelt in people's minds. Perhaps that is why he thought—though the decision was his, and his alone—that he should have fresh and independent legal advice, and he therefore referred the papers to my learned and noble friend the Lord Chancellor. An acute and legally trained mind was brought to bear independently upon the papers, and his advice confirmed my honourable friend in his conclusion.
A third mind, neither so acute nor legally trained, but having, I think, a modicum of common sense and nearly a quarter of a century's experience as a magistrate, read and considered, also independently, all the papers in the case. That mind was mine; and I came to the matter with a bias, for it may be remembered that at our last debate I voted for a new look. Of course, the names arc to be found in Hansard; but I did come to a consideration of this matter with a bias in favour of another look at it. 832 Somewhat reluctantly, but resulting from a careful consideration of every aspect of this case, I have to tell the House that I am satisfied that the conclusions arrived at independently by my ministerial colleagues are correct. The last point I would make is that none of the three of us could be thought to have a feeling of commitment to the decisions of the previous Administration, though I deeply respect, of course, the integrity of the noble Lord, Lord Carrington, who was the First Lord of the Admiralty at the time of our 1963 debate, and I am sure that he, as do my colleagues and I, realised the seriousness for the individual and everyone concerned of the case we were considering.
My Lords, the cardinal issues here are justice to the individual and fairness to everyone who took part in the court-martial proceedings. These considerations we had in mind throughout our consideration of this case. As a result of this examination, we advise the House not to agree to the Motion.
§ 8.30 p.m.
§ THE MARQUESS OF SALISBURY
My Lords, I rise to support the Motion which has been moved by the noble Lord, Lord Russell of Liverpool, and I do this because, not having been in England at the time of the earlier debate on this case, and having read all the speeches in the debate and the other papers connected with this very sad story, I still feel that the circumstances surrounding the court-martial, as the noble Lord, Lord Russell of Liverpool, has already said, made an entirely fair and objective verdict impossible, and that Lieutenant-Commander Swabey did not in fact get a fair trial. I say this in spite of the powerful winding-up speech of the noble and learned Viscount, Lord Dilhorne, in the earlier debate and of what has just been said by the noble Lord, Lord Champion, who has just addressed your Lordships. He has set out the official case, what has always been the official case, and I am most grateful to him for giving it. I wish I could accept what he said because, if I may say so, I have a very high respect for him personally. But I am afraid that I still find the case, in the light of what I have read—and I have taken great trouble over it—entirely unconvincing.
833 I do not want to weary the House by going again over all the facts of this unhappy story—that was done in the last debate, in the remarkable speech by the noble Lord, Lord Shackleton, and has been done again to-day in the speech of the noble Lord, Lord Russell of Liverpool—but I should like to explain as briefly as I can to the House what are the particular points that have raised such serious doubts in my mind. As the noble Lord, Lord Russell of Liverpool, has already reminded your Lordships, the case which we are considering to-day was not the beginning of the story. Lieutenant-Commander Swabey had been involved in a case of a rather similar character six years before. He had been acquitted on that occasion; although I did not think that the noble Lord, Lord Champion, made it as clear as he should have done that he left the court, so far as the charge of homosexuality was concerned, with no stain at all on his character. In the ensuing six years, before the second case, there had been, so far as I know, no suggestion of any kind of such tendencies on his part. In fact, he had, as we know, been promoted by the Admiralty to command one of His Majesty's Ships.
The fact of the earlier case was widely known in Malta and, in my submission, affected profoundly the attitude of more than one of the personalities immediately concerned with the case. Take Lieutenant-Commander Davidson, the commander of "Redoubt", the man whom Lieutenant-Commander Swabey was succeeding: how did he behave? When Swabey and the other officer concerned returned to their ship after their evening out on shore which had such a painful sequel, and when the other officer made his charge against Swabey, the first lieutenant who was on board "Redoubt" telephoned the commander of the ship at his house on shore and told him what had happened. What was his reaction? Getting this distressing information about the officer just appointed to the command of one of His Majesty's ships in Malta, one would have expected him to come down, inquire into the matter on the spot, treating both officers exactly alike, confronting them with each other in each other's presence until he satisfied himself of the true facts. He did, indeed, come down; but he conducted no immediate investigation at all of the character which I have described. 834 He merely sent a message to the base establishment asking that accommodation should be reserved for Lieutenant-Commander Swabey, almost as if his guilt had been already proved. When, in the morning, he returned to the ship where Swabey had also been brought, he asked him whether he had anything to say; but (so I understand from the papers I have read) he coupled with that question the information that the naval authorities were considering preferring charges against him based on the other young officer's information.
In such circumstances it is not surprising that Swabey should have preferred to remain silent until he had had an opportunity of consulting his legal adviser. Yet from that moment he was cut off; he was placed under open arrest. And, as the noble Lord, Lord Byers, has pointed out, no preliminary investigation was carried out. As I understand it this was in direct conflict with Queen's Regulations (or King's Regulations, as they were at that time) which lay down—and I quote a statement made in the earlier debate:There should be a preliminary investigation at which the witnesses will make their statements and at which the accused will have the opportunity to cross-examine if necessary with the help of a friend"—who would, I gather, in this case, have been his counsel. But this preliminary investigation never took place.
The noble and learned Viscount, Lord Dilhorne, in his speech on the last debate, took the line, if I read his speech correctly, that this lack of a preliminary investigation was of no great importance. But that was certainly not the view of that eminent lawyer Sir Geoffrey Lawrence, who stated clearly in his submission to the First Lord of the day that this was pre-eminently a case, having regard to the previous incident, where every possible care should be taken to ensure a fair trial. And who shall disagree with him? Yet, no such care was taken—presumably because everyone assumed (I am sure quite honestly) that the accused was guilty. The effect of not having this preliminary investigation was that Lieutenant-Commander Swabey and his counsel had no idea, until the actual court-martial took place, of the line that the prosecution were going to take and what corroborative evidence they were going to produce.
835 When the court-martial did take place, what did they find? There was really no corroborative evidence at all. The whole case for the prosecution rested on his behaviour. He was said, as your Lordships have already been told, to have shown violent agitation. That was taken as evidence of his guilt, a view which seems to have been shared in the last debate by the noble and learned Viscount, Lord Dilhorne. In this context, it is worth while looking for a moment at what was said at the Courts-Martial Appeal Court. It is perfectly true (I say this to the noble Lord, Lord Fraser of North Cape) that the application was made to the Appeal Court for leave to appeal. No appeal took place; but application for leave to appeal was made. That application was refused. It must be appreciated, unless I have got this very wrong, that the function of this Appeal Court when deciding whether to give leave or not to appeal is, as I understand it, not to re-try the case themselves, but mainly to review the conduct of the court-martial and see whether any irregularities occurred. They did not find any irregularities. But the effect has been that Lieutenant-Commander Swabey has been denied the right which any normal man has to appeal against his sentence—and an appeal away from Malta might have had, I believe, a very different result.
For instance, on appeal, the court might have taken a very different view of Swabey's agitation which was the main basis of the court-martial's decision. But the court to whom Swabey's application for leave to appeal was made did at any rate make one comment on the matter of Swabey's agitation, which I should like to recommend to your Lordships' particular attention. They said:If the court"—that is, the court-martial—had chosen to consider Swabey's behaviour on board the ship, the agitation he showed, as corroborative evidence they were entitled to do so.That is a very guarded statement indeed. The Appeal Court did not say that they shared the view of the court-martial. They said merely that if the court-martial took that view they were entitled to do so. And who shall doubt 836 that? They clearly were. But we in this House are equally entitled to take a different view; and I do, most strongly.
What would the attitude of any one of us have been, placed in the situation of Swabey at that time, however innocent we might be? Agitation, I think, is a very mild word for it. His mind must have gone back to that earlier case in which, indeed, he had been acquitted but which was no doubt fresh in the minds of the naval authorities and many others. He must have seen how easy it would be for these people to put two and two together and make five. His frame of mind must have been one of agonised horror at the gulf yawning before him. He must have felt himself enmeshed in a net of circumstances quite beyond his control. He would have been phlegmatic indeed, almost moronic, however innocent, if he did not show agitation. Yet this agitation, this very natural agitation, was the only corroborative evidence that was produced against him.
In the last debate the noble and learned Viscount, Lord Dilhorne, made a tremendous point of the fact that Swabey did not deny the charges made by the senior officer. There was—I quote the noble and learned Viscount's words—"no indignant denial".—[OFFICIAL REPORT, Vol. 247, col. 1099, March 19, 1963]. My Lords, if the noble and learned Viscount will forgive me for saying so, I could not help thinking at the time I read his speech that it was a pretty thin point to make when a man's honour was at stake. Now I find that there is nothing in it at all, for since the debate in this House some further important information has become available in the form of an affidavit from Lieutenant-Commander Davidson, Swabey's predecessor in command of "Redoubt", who saw him on that crucial night and sent him ashore. In this affidavit the following words occur:He"—that is Swabey—vehemently protested his innocence".I am quite certain that if the noble and learned Viscount, Lord Dilhorne, had seen—
§ VISCOUNT DILHORNE
My Lords, may I say that I examined the record 837 and spoke having seen the record, and if that was the case I cannot conceive why it was not brought out in evidence at the trial. It was not. It is not on the record.
§ THE MARQUESS OF SALISBURY
Well, the fact remains, that is what Lieutenant-Commander Davidson said. I do not know whether the noble and learned Viscount, Lord Dilhorne, would dispute it. He was the man who examined him and I should have thought he ought to have known.
§ VISCOUNT DILHORNE
If he did know and if that was his accurate recollection, he was a witness at the trial, and I cannot conceive why it was not in evidence at the trial. What I was saying was that my speech at that time was based on the record of the evidence and my statement was entirely accurate. There was no record of indignant denial recorded in the evidence.
§ THE MARQUESS OF SALISBURY
I am not in any way criticising the noble and learned Viscount. I am only telling him what new information has just now come to light.
Indeed, my Lords, I think it is things like this which justify our holding this further debate. I have referred to Swabey's agitation, and who shall say that it was not justified? When the day of the trial came he found, as we know, that the composition of the court-martial set up to try him was certainly unusual and not reassuring. One would have expected in a case as difficult and delicate as this that the man appointed as Deputy Judge Advocate General would be a very experienced officer. Indeed, Recommendation 77 of the Pilcher Committee, of which I think the noble and learned Viscount, Lord Dilhorne was a member, said this:In all cases of a very grave character, in all cases in which very difficult questions of law or the admissibility of evidence seem likely to arise and in all cases of a very complicated character"—and who shall say that this case was not that?—the Judge Advocate should be chosen from King's Counsel and other barristers experienced in the English criminal law.Yet in this case the man chosen was a young lieutenant whose first case it was 838 and, what is more, who was a junior officer in the prosecutor's own office.
Nor, apparently, did the prosecutor, either before or during the case, attempt to hide his prejudice. He clearly assumed from the first that Swabey was guilty. I have already spoken of the sinister interpretation which he put on Swabey's quite natural agitation. Then there were the words at the end of his final speech for the prosecution. This is what he said:To end on a somewhat personal note, at a recent court-martial I was approached by the President afterwards and he said. 'We were all quite sure that he did it, but the prosecution could not prove it'.Then the prosecutor in this case went on with these, his last words:If you are quite sure in this case then the prosecution has discharged its burden of proof even if the evidence was not conclusive.That surely, my Lords, was an intimation to the court that they need not bother too much with the evidence: their job was to convict. That seems to me to have been a very improper remark, and I was rather surprised that it did not bulk rather larger in the minds of the Courts-martial Appeal Court than it did. At any rate, I think it is pure evidence of the prosecutor's violent bias.
Then there was his treatment of the evidence of the taxi-driver as to what happened in the taxi on the way back to the dock. The young officer concerned in the case had testified that Swabey caressed his thigh, and that he swore loudly and vigorously at Swabey and struck him a blow with his fist. The prosecution sought out the taxi-driver for support of this allegation and put him in the box. Unhappily for them, the taxi-driver let them down very badly. When he appeared in the box he made it clear that he had heard neither a quarrel nor a blow.
My Lords, from the inquiries I have made it emerges that there is no division between the front and back seats in the taxicabs in Malta, and the driver must therefore have been within two or three feet of the two officers. Yet he heard nothing. As a result, his evidence being of no value to them, the prosecution dropped him like a hot potato. Although he was their own witness, his evidence became of no importance. In the words 839 of the noble and learned Viscount, Lord Dilhorne, in the last debate—I will quote his exact words (they are in col. 1100); I do not want to misrepresent him in any way:It is conceivable here that they did not think the taxi-driver's evidence was worthy of any credence at all.The noble and learned Viscount added:He was a Maltese taxi-driver"—as if that, my Lords, were one of the lowest forms of human life. But one cannot help suspecting that the prosecution's opinion of Maltese taxi-drivers would not have been so low if this particular one had given evidence of a very different character and had said that he had heard something. Then he would have become a good witness and they would have attached enormous importance to his words. Otherwise, why did they call him in evidence at all?
My Lords, the prosecution may have brushed aside the evidence of the taxi-driver as being of no importance in this case, but I am sure there must be many of us who cannot take that view. It seems to me that its very negative character is of the first importance. Those of your Lordships who are readers of the cases of Sherlock Holmes will recall a passage in the story of Silver Blaze where Sherlock Holmes, being asked by the local inspector of police in charge of the case, "Is there any point to which you would draw my attention?" replied, "To the curious incident of the dog in the night time." And to the further comment, "But the dog did not do anything in the night time", Holmes replied, "That is the curious incident." Similarly, my Lords, in this case one might say of the failure of the taxi-driver to hear anything at all of a violent fracas going on within two or three feet of him, "That was the curious incident." It cannot help making one extremely sceptical that any violent fracas ever took place at all.
That, as I think, has a much wider significance. If the evidence of the young officer in the case was so unreliable on this point, might it not be altogether unreliable? By that I do not mean for a moment to suggest that he deliberately falsified his evidence. I am quite certain he did not do that. But he had had 840 a good deal to drink. He was in something approaching an hysterical state when he returned to the ship and also his mind had clearly been preconditioned by gossip which he had heard. As one instance of this, he accused Swabey of pestering him throughout the evening, although other officers who were with them during the earlier part saw no signs of this. His immediate reaction and that of the other naval officers concerned in Malta in regard to Swabey may have been, "He has done it again."
But, my Lords, unless we take the view that the verdict in the earlier case was wrong (and so far as I know, no one has even suggested that) we here in the High Court of Parliament in London cannot, I think, afford to take so superficial a view. We must regard Swabey as up to that evening being as free from any stigma of homosexuality as anybody else. For such a charge was only once made against him six years before, and on that occasion it had proved to be entirely devoid of foundation. Is it credible that he, with all his bitter memories of the past, would have chosen this extraordinary occasion to exhibit for the first time such a tendency? I must say I find it very difficult to believe. I think it much more probable that it is a case of people who had heard about the earlier case giving a dog a bad name and hanging him.
Even if he did do what the prosecution suggest, it was, to quote the noble Earl, Lord Selkirk, who was First Lord at the time, a minimum offence. In view of the facts that have been produced tonight, is even that certain? And it must, after all, be certain, if the verdict is to be justified. If I am told that what I have said does not prove his innocence, it certainly, I submit, does not justify the verdict reached by the court-martial. And this is not only my view but, as the noble Lord, Lord Russell of Liverpool, has already said, the view of two distinguished Admirals, whose names I shall be happy to give the noble and learned Lord the Lord Chancellor, if he wishes, and of another distinguished naval officer, Captain Agar, V.C., who, in an aide memoire which has come into my hands since the last debate, supports everything I have said.
In view of the facts which some of us have made bold again to put before your 841 Lordships, I urge the Government to agree to an independent inquiry. It is, I submit, to the interest not only of Lieutenant-Commander Swabey himself, but of the Navy, that such an inquiry should take place and this most painful matter, whatever the real facts, should be cleared up once and for all. And I ask your Lordships to show that this is also your view in no uncertain fashion, if this Motion has to come to a Division.
§ 8.52 p.m.
§ EARL ATTLEE
My Lords, I rise to support this Motion. I would remind your Lordships, first of all, of other cases that have taken a long time for justice to be done. I remember the Archer Shee case, where an appeal was turned down by everybody and only the persistence of Lord Carson eventually saved young Archer Shee. Once this kind of thing arises there is a sort of loyalty to the Department that interferes with the sense of justice. I have not a very great knowledge of these things, but having had to go on courts-martial many years ago in the First World War, I must say that they did not give me a high opinion of military justice. I always remember a delightful old man who was trying a prisoner turning to me and saying, "What shall we give him?". I replied "Don't you think it better to find out whether he is guilty or not?". "Guilty?", he said, "of course, he's guilty. His colonel would never have sent him here unless he was guilty." These irregularities do take place.
I have read this case as well as I could. I have noticed a number of curious facts. I noticed one which my noble friend Lord Champion left out. One would have thought that Swabey invited this one man out for a purpose. He did not. He invited all his officers, and the others could not go because they happened to be on duty. I find the evidence extraordinarily unsatisfactory. I have never heard before of the things that happened when the men got back on ship being treated as corroboration. There was no corroboration. The only possible corroboration could have come from the driver of the taxi, and he did not give it, or some of the other officers. There was no corroboration whatever.
I really do not see why there should be opposition to an inquiry. Who is it going to hurt? Why should it be refused? 842 It will not cast any slur on the court-martial. It might be said that it is a slur to have a court of appeal, but I assure the House that there are a great many people who are gravely dissatisfied. I have myself a relative an Admiral, who after reading the case very carefully is convinced that an injustice has been done. I am convinced that in the interests of justice there should be a full inquiry. I ask who is going to be damaged, if there is a full inquiry? People often make mistakes, and I have known of several cases in the Army and the Navy where justice has had to wait a very long time because of a certain obstinacy, due perhaps to Departmental loyalties. I hope that this Motion will be accepted by the Government.
§ 8.55 p.m.
§ VISCOUNT DILHORNE
My Lords, I have never had the privilege of serving in the Admiralty. The closest I have got to any naval experience was to serve as a member of the Naval Court-Martial Committee, whose Report, I think the noble Marquess will find, was only published after this court-martial, and therefore it would have been rather extraordinary if, in the conduct of that court-martial, there had been complete compliance with all the recommendations of that Report.
I first came into contact with this matter when my noble friend Lord Carrington asked me to look at the record of the proceedings. I undertook to do that, though it was no part of my function as Attorney General. I hope no one will think that I was in any way affected by any Departmental loyalty to the Admiralty or anything of that sort. I hope, also, that your Lordships know me sufficiently well to know that if I had felt any real doubt about the conclusions of that court-martial and about whether there was anything wrong with that trial, I would not have hesitated to say so at that time, even if I had been in a minority of one.
I read that trial with great care and formed a view of it then. Before the debate in 1963, I read the whole proceedings again and saw no reason to change my mind. Very little has been said tonight—in fact, I think only one thing—which was not raised in the course of that debate. First of all, there is the question of whether or not there should have been a preliminary investigation. We are 843 told that many Admirals, no doubt relying on their recollections, think that a preliminary investigation was absolutely invaluable. I was chided by the noble Marquess, who was kind enough to give me notice that he intended to criticise the speech I made, for the observations I made on it. The noble Lord, Lord Russell of Liverpool, did not give me notice that he intended to criticise my comment and then he cited from my speech, and contrasted these quotations with the statements he had obtained from the Admiral. He then politely said he left it to your Lordships whom to believe.
The information I have, from official sources it is true, is that a preliminary investigation is required by Queen's Regulations and Admiralty Instructions in the case of offences by ratings only. Ratings may be tried summarily or by court-martial. The formal preliminary investigation makes it possible to determine which course is appropriate. Officers can be tried only by court-martial. A preliminary investigation may be held in their case: that is to say, there is nothing in the Regulations to stop it, if the captain is uncertain whether there is any matter in the allegations to be tried.
It is complained that there was no preliminary investigation here. There was no breach of the Queen's Regulations and Admiralty Instructions in not having one. It is said that, because one was not held, Swabey had no knowledge of the case and how it was to be presented against him. But in a naval court-martial, unlike a military court-martial, what is called a circumstantial letter has to be handed to the accused before the trial commences. I am under the impression—the noble and learned Lord the Lord Chancellor will correct me if I am wrong; I have not been able to check it from the records that I have—that in this case the circumstantial letter was handed to Swabey or his advisers some fortnight before the case started.
I now come to the actual case itself. A Naval court-martial of this kind consists of members of the highest standing in the Navy; they are all senior and experienced officers. I think that is a matter which ought to be borne in mind. I think it is the case also (the noble Lord, Lord Russell of Liverpool, has, I know, great experience of court-martial cases; and I have sat as Judge 844 Advocate, I suppose, on a few hundred of them in the Army), as with most tribunals, if not all, that when there is a question of guilt or innocence of an individual they lean over backwards to avoid, if possible, finding a conclusion of guilty, because no human being wants to condemn another human being on a serious charge which may, as, indeed, it did in this case, result in the ruin of his professional career, unless he is absolutely satisfied of the guilt. I found courts-martial, which have always enjoyed, I think, a great reputation for fairness, to take the same course. Yet it is said and alleged—and there is no real foundation for it—first of all, that those senior experienced Naval officers were prejudiced against Commander Swabey, because they had heard gossip that some six years before he had been tried before a court-martial and had been acquitted. I find it very difficult to attach any importance to that. If any one of those senior captains had heard that, I cannot for one moment believe that the information would prejudice him against the accused.
Having said that the court was prejudiced against him because they knew of this fact, the criticism then turns round and says, "Of course, the court-martial could not decide whether this was corroboration or not, because they were not told of his previous acquittal". The only people who could have informed the court of that were the defence. They chose not to do so. A prosecutor conducting a prosecution would have no right to bring before a court the fact that a man had previously been before a court-martial and acquitted. This was no doubt a difficult decision for the defence to make, whether to bring it out or not. The accused was defended by a very experienced barrister, and he decided, in his wisdom, not to do so.
So far as the court is concerned, submit that two things, as I see it from the record, are certainly not established. The first is that any member of the court knew of this previous acquittal; and, secondly, there is no ground for supposing, if any member of the court did know, that he was in the least prejudiced against the accused, or likely to be. It was open to the accused to object to any member of the court if he wished. He did not do so.
845 Then, it is said, secondly, that this previous acquittal by a court-martial tainted Havers's mind and made him regard some conduct on the part of the accused as homosexual, when in fact it was not. That charge was made at an early stage in this matter. Naturally, when looking through the shorthand note, and reading it with care, one looked to see whether that was a possible view. I do not want to go into specific details, but it is right to tell your Lordships, as I said in the course of the last debate, that there was one incident alleged to have occurred before the events in the taxi-cab, which, if it occurred at all, was beyond doubt of a homosexual character. There could be no mistake about it, and it is recorded there in the shorthand note in the evidence given by Lieutenant Havers. That incident he could not have imagined: it either took place, or it did not.
§ LORD CHORLEY
My Lords, does the noble and learned Viscount not agree that he is the very man whose evidence has to be corroborated right through?
§ VISCOUNT DILHORNE
I am coming to the question of corroboration, if the noble Lord will allow me. I am trying to deal with this argument as shortly as I can, and it will take longer if the noble Lord diverts me on to matters to which I am coming. I was dealing with the point of this particular evidence, where it is suggested by the noble Lord, Lord Russell of Liverpool, that because Havers knew of Swabey's acquittal his mind was prejudiced, and that explained why, as the noble Lord, Lord Russell of Liverpool, said, Havers thought the conduct was homosexual. The point I was making on that was that one incident in the course of that evening, before the events in the taxi-cab, as testified to by Lieutenant Havers, was of such a character that, if it occurred at all, there was no room for doubt as to its homosexuality. I was going on from that to say that this could not be imagined: it was either invented, or it was true. If it was a falsehood, it was clear perjury. If this evidence of what happened in the taxi-cab was false, that was perjury, too, of a most serious kind, affecting another officer.
§ VISCOUNT DILHORNE
I can show the noble Lord the passage; but it is of an indecent kind, and I do not think there can be any dispute about it. I do not think I need to go into the detail; it is there, and the noble Lord can see it. I have no prejudice in this matter. The last thing I want to see is anyone wrongly convicted. I want to go on with this if I may.
We now come to the trial itself. The evidence was given by Lieutenant Havers, and it was cross-examined to. The taxi-driver was called as a witness for the prosecution. My noble friend Lord Salisbury made great play with this, as he is perfectly entitled to. But I must say that, as the accusation of this conduct alleged to have taken place in a taxi cab was made, I should have thought it the duty, whatever the noble Marquess might say, of the prosecution to put that witness before the court, or to see that that witness gave evidence. I do not know what that witness was supposed to say: I can only read the record of his evidence. As I said last time, if his evidence was accepted by the court, it was very strong evidence for the defence. And, as I said last time, and I repeat, it must always, must it not, be for the court to say whether or not they believe a witness, having heard him, having seen his demeanour? Questions of fact are daily decided by juries. Juries daily have to decide conflicts of evidence, and have to make up their minds whom to believe. We leave that function to them; we leave the function of deciding questions of fact to courts-martial. The only point I was making on the last occasion was that, as I see it, if the court accepted the evidence of the taxi-driver it told more strongly for the defence, but if they did not accept it, then it did not tell at all, either way. That is entirely for them.
Now I come to the question of corroboration. The noble Earl, Lord Attlee, said that there was no corroboration in this case. The Courts-Martial Appeal Court, presided over by Lord Goddard held—and that is all they had to do to decide on this point—that there was evidence which, if it was accepted by the 847 Court-martial, amounted to corroboration. The noble Marquess is quite wrong in thinking that the Court of Criminal Appeal or the Courts-Martial Appeal Court, when they have to decide matters of that sort, have to express an opinion on the value of the evidence. The noble Marquess made a great point of the fact—if I got it down correctly—that the Appeal Court did not share the view of the court-martial.
§ THE MARQUESS OF SALISBURY
I did not say they did not share: I said that they did not say they shared it. What they did was to say that the court-martial were entitled to take a certain view.
§ VISCOUNT DILHORNE
That is because the noble Marquess does not appreciate the different functions of the two courts. What the Courts-Martial Appeal Court have to decide is whether the court-martial, on the evidence before them, were entitled to take that view The Court-Martial Appeal Court do not have to evaluate the evidence. Of course they did not say that they shared the view, because it would have been quite wrong for them to do so. No Courts-Martial Appeal Court or the Court of Criminal Appeal will say that, because they have not heard the evidence. All they have to say is whether particular evidence, if accepted by the court-martial—or, if you like, by a jury—if believed by them, would amount to corroboration. And that they held here. It was not just corroboration which depended upon his agitation: it was corroboration, if accepted by the jury, by reason of his whole conduct immediately after this particular incident.
So far as the court-martial were concerned, and so far as the record of the trial was concerned, it is significant that there was no evidence there of any indignant denial being made by Commander Swabey. It is, I should have thought, significant. It is a matter for naval officers to determine as to the kind of action that a captain-designate of a ship would be likely to take if falsely accused by a junior officer of homosexual conduct. Would it really make any difference if he had been previously acquitted on such a charge? I should have thought not.
848 But in resolving this conflict of evidence between Havers and Swabey, the court may perhaps have been assisted by some things that Swabey said in cross-examination. A Lieutenant Hare, who was First Lieutenant in the ship, testified that an evening or so after the events which gave rise to the charge Swabey had come to him and asked him two questions. They were: "What did I do on return on board", and, "What did I say on return on board?" Swabey was cross-examined, and perfectly properly, with regard to that. He said that he did not think his memory was imperfect, although it certainly was not perfect. The trial record goes on:Q. If it was not imperfect, how do you account for the questions you asked Lieutenant Hare on the Tuesday after this, 'What did I do on return on board? What did I say on return on board?'A. I never said I said those questions.Q. Lieutenant Hare said you did. Is he wrong?A. I do not think so.Q. Well, did you or did you not?A. I wanted to find out.Q. Just answer my questions. Did you ask him what you did on return on board? Did you or did you not?A. It is quite likely I did ask him.Q. Did you ask him, 'What did I say when I returned on board?'A. No, Sir, I do not think so. I cannot remember exactly.Q. And Hare is mistaken, is he?A. He could be.Q. The fact of the matter is that you have very little recollection of what happened on that evening after leaving the City Gem?A. I suppose so, Sir.Well, my Lords, the court had that evidence before them and they were entitled to take it into account.
I do not want to take up too long on this subject and I hope I am not taking up too much of your Lordships' time, but I have been criticised for what I said in that debate and I can assure your Lordships that I should have been very glad if I had been able to reach the conclusion that there was any ground for saying that something had gone wrong in this trial. Anyone who has taken part in it has really been attacked: the members of the court; the Judge Advocate—attacked in this House to-night, 849 despite the fact that the Court-Martial Appeal Court praised his conduct; the prosecutor, for making observations which I must say I thought were perfectly proper. Everyone who has had anything to do with this case, including myself, has been attacked.
My Lords, I have seen, I think, everything that has been sent round since the case was decided. I see no ground for altering my view. I say that with regret. It is always, of course, possible for a court to come to a wrong conclusion on a question of fact. We, who do not see the witnesses, who do not hear them, have to remember that we may get a very different impression indeed of what has taken place from just seeing the shorthand note. Here there were senior officers who heard the evidence, and despite all that has been said about them and about their being prejudiced, I, for one, find it difficult to believe, and I certainly am not prepared to assume, that they did anything but endeavour to discharge their duty to the best of their ability.
This Motion comes to your Lordships' House for the second time and, I think, raises a really serious constitutional issue. We in this House really cannot re-try cases by debate. And yet is that not really what we are being asked to do—or at least to say in a debate that a prima facie case for something having gone wrong has been made out? I doubt myself whether it is right for us, as a debating Chamber, to take upon ourselves the burden of reviewing the decisions of a jury or of a court on questions of fact. And it is not right for us to do so when the whole legal process has been exhausted. I took this view when I last spoke, but I do not stand on that—and I went into the matter in some detail to satisfy your Lordships, if I could, that the verdict was one which was supported by the evidence and that nothing appeared from the record to have gone wrong.
§ VISCOUNT DILHORNE
May I just finish. It is, I think, significant. I was asked by the noble Lord, Lord Carrington, to look at this matter quite independently, and I did. He formed his own 850 views. Now the Government have changed and the Minister responsible has formed his own view, quite independently, and it is the same as that which we expressed. The noble and learned Lord, the Lord Chancellor, has been asked to look at it and consider his own opinion. My Lords, I understand that we are all in agreement. No Party considerations come into this; it is a question of the administration of justice, and I say to your Lordships, with the utmost sincerity, that, despite all the criticisms, despite what has been said in this great campaign—for that is what it has been—I can find no ground on which I can say the conclusion of this court was wrong.
§ 9.19 p.m.
THE LORD BISHOP OF CHICHESTER
My Lords, the noble and learned Viscount, Lord Dilhorne, has reminded us that in this debate most of the arguments have been heard before, though indeed some new and weighty considerations have been brought before us, and perhaps some of your Lordships will ask, as he has suggested, why is it that this case refuses to die. Some of your Lordships will remember the last debate which we had in March, 1963, when I think it would be true to say that the bulk of your Lordships who were present, apart from those who took an active part in the debate, came to it with minds utterly new to the facts and that their judgment was formed on the basis of what was put before them then.
What made this debate and its decision all the more remarkable, I think, was that 35 voted for the Motion and it was lost by only one vote. It was, however, lost and therefore it might reasonably have been expected that your Lordships' House would not hear of it again; and it is therefore equally remarkable that you are having this case presented to you again to-night. During the two and a half years that have elapsed since that first debate, the strength of the appeal that underlies this Motion has not diminished. Why, I ask, will it refuse to die?
This fact is not due only to the individual or the family concerned. It is, of course, true that because over the whole nine years since the first events took place Commander Swabey's determination to vindicate his innocence has not wavered he has given some clear proof 851 of his own conviction. I do not need to stress, though I know well, what it has cost him and his family. He has been prepared to face, and even invite, public exposure of facts or debates in a matter from which anyone would shrink, the interruption of his own career, the great cost in which it has involved his family and it has certainly robbed him of his own peace of mind. All this is true.
We know that there are many unhappy people in the world whose own situation has become such an obsession upon them, who have lived with it so long, who have felt such a sense of persecution that they cannot get outside it and are prepared to persist against all reason. We are not dealing with that kind of case here. But the fact that this appeal has been renewed in your Lordships' House is due not to Swabey or his family. It is due to the fact that many of your Lordships were so impressed by the case as you have come to see it that you have felt bound to uphold this appeal. I must declare an interest here, since I have known Commander Swabey and his family for a full seven years. I know what they are like, I know what it has meant to them, and I was aware from the very start of the strong conviction of Bishop Bell, a very distinguished Member of this House as of the Bishop's Bench, one who certainly had not only a large heart but a very clear mind, who was also convinced that injustice had been done. His plea in his correspondence with the Admiralty—and certainly mine would be the same—was not based on any personal consideration for the man concerned or his family, his Naval background or the like; it was based on the sheer facts of the case and the genuine query about the justice of the decision.
And that has been true of other people who have been drawn into this from time to time. They are not personally or directly involved in his situation. Many have signified that they have come to this as the facts have been brought to them from elsewhere. Many are men of a distinguished Naval career who feel concern not only for the fate of the individual but for the honour of the Navy, and they, too, have persisted in their support in the face of a great deal of discouragement, just because it was a matter that concerned not only an individual. I hope that, in spite of the 852 lateness of the hour and the necessity for repetition, your Lordships will bear with those who plead for your consideration and support.
The charge which brought his career to an end and has damaged his own good name concerns, as you will remember, behaviour as between one man and another. All homosexual conduct contains an element of vice, a very grave clement if vice, about which we should all feel deeply, as recent debates in this House have indicated. While we may hold differing views about the place of the law in this, I hope it will never be said that our views differ about the gravity of this conduct, and it must be viewed with special gravity within the context of Service life. None of us would wish to encourage anything that would undermine the moral strength or integrity of these men, younger or older, who are engaged in the service of their country and in the special circumstances of naval life; and anything, therefore, which involves even the suspicion of such conduct is bound to call up strong reactions. This has been said, and we must accept it. I would have said for the very same reason, that it is most important that the danger of undue prejudice should be guarded against where these suspicions arise. This would be especially true in the closer community of a Service where the individual charged can hardly expect to have his case heard with the same anonymity as in a civil court.
But the strength of the Service, as we are thinking of it, or of any institution or community, does not depend only on the moral conduct of individuals: it depends also on justice. It depends upon the fact that those who are its members can be certain that they can have full access to the law; that their cause will be heard without the intrusion of any circumstances outside the actual case, and that any treatment meted out to them will be such as can convince the world that it is justice and that justice has been seen to be done.
About this particular case—and we come back, and back again, to this point—there seem, to so many of us, a number of disquieting features. I am not going back to them—they have been put before the House most forcefully by other speakers. I am not in a position to judge the weight of each one of them. I can 853 only express my own personal opinion, as indeed many others of your Lordships can. But I believe that the grounds for disquiet are strong enough for us to question whether justice has indeed been done.
This Motion is not asking to pre-judge this issue; it is claiming simply that the issue is such that it cannot be answered without a fuller and impartial inquiry. But this matter has dragged on for nine years, a very heavy ordeal for Mr. Swabey himself, and for his family—all the more so because during this period his hopes have been raised and delays have ensued. I have formed the impression that many, at least, of those who are in a position of authority and have had this case brought before them, are themselves uneasy. They have not been able to bring themselves to the point of taking action. But I believe that many of them remain uneasy. May I quote again a part of that letter which I quoted before, written to Bishop Bell in 1958 by the then first Lord of the Admiralty, Lord Selkirk: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 committed.His words were:I regard this offence as … minimal".I can well understand that phrase.
The charges made by the sublieutenant involved were set out in great detail by the noble and learned Lord, Lord Dilhorne, from the Woolsack in the last debate. He made a long and impressive speech, which I am sure had great effect upon his hearers. I would have said that the weakest part of his speech—and it was a part for which he could not but be responsible himself—was when he came to describe the actual charges, these uncorroborated charges, made by the sub-lieutenant. He has referred tonight to one incident in which, whatever it may have been, it was one man's word against another. He has referred to a number of other suggestions, or acts which were suggested. It is difficult to estimate any conduct if you look at the act itself—a look, a nod, a hand, can mean many different things in different circumstances.
854 The actions of which Commander Swabey was accused were themselves minimal indeed; and it is only the colour of suspicion which has been cast upon them by Sub-Lieutenant Havers which has given them the weight which they have since assumed. There has been built up on this small foundation a penalty so grave in itself as to be surely disturbing to anyone who loves justice. It was a penalty inflicted on one who, from his family tradition, from the testimony of his own comrades in the Service, from his own personal choice, had made the Navy his life, and who clearly wished for nothing more than to spend his life in its service. That was enough cause for unease in itself, but the unease to which I have referred derives not only from that but from the surrounding circumstances of the case, the aura with which it was invested. It is not on grounds of compassion—though they might well be strong if he wished to plead them—but on grounds of justice that we would appeal for a full review.
If such a review, when held, upheld the decision of the courts, then I should be the first to say to Commander Swabey, as to any others who, however convinced of their innocence, could not prove it, that he must bear it like a man and must try as best he could to remake his life in some other way. But if such an inquiry, as I would anticipate, might cast doubt on the decision, might do something to vindicate him, then not only could he hold up his own head in the full recognition of his innocence, but his case would be an example that, however costly and painful the process would be, the Navy itself and the country which it serves, is determined that none of its members or its citizens shall go without the fullest measure of justice which we can afford them. It is in the hope that, by such an inquiry, by an exposure of the full facts, from which, I think, he must naturally shrink, his innocence can be established, Commander Swabey has been sustained over these years; but his hope has been deferred often enough to make the heart very sick.
In the same letter to Dr. Bell which I have quoted, Lord Selkirk stated, I would remind you, that the possibility of referring the matter back to the Courts-Martial Appeal Court remained open. 855 And again, in a further letter to Dr. Bell written a month later, he said:I confirm our willingness that the case should be the subject of a special reference to the Courts-Martial Appeal Court and that the petition, together with any further submission Swabey's legal advisers can make, would be made available to the court.Nobody can bind his successors, but this was an honourable undertaking on his part, and I consider that—
§ VISCOUNT DILHORNE
My Lords, I am sure that the right reverend Prelate is aware, as indeed I am that the reason the matter was not referred to the Courts-Martial Appeal Court—I think that the right reverend Prelate's predecessor was so informed—was that, under the Act, it could not be referred unless the Admiralty thought that there was something wrong, which they did not.
THE LORD BISHOP OF CHICHESTER
It is perfectly true that they looked at it but did not refer it. It is part of the basis of our contention that they ought so to have done. Within a few months of this submission Bishop Bell himself died. I am sure that had he been here he would have presented the substance of his own dealings with the Admiralty very much more forcibly than I can. But others have not died, and the persistent appeal has remained.
It will be claimed that the Admiralty or the Government have reviewed the matter again recently, but certainly they have not done so either in terms which were then promised or in terms which would produce the kind of inquiry which alone can establish convincingly to us whether in that verdict of 1956 a young officer in the Navy has had the opportunity of justice which we should wish all citizens to be able to claim. That was nine years ago, and it is right out of our memory and perhaps right out of our concern, but it is in the memory and before the face of one man and he lives with it. I hope, deeply, that your Lordships will be sufficiently moved by what you have heard to-night, or know already, to give him an opportunity of removing that shadow from his life.
§ 9.35 p.m.
§ VISCOUNT MONTGOMERY OF ALAMEIN
My Lords, I think it is high time that a member of the Armed Forces, who is still serving on the active list, took some part in this debate. There is a very great deal of lobbying going on behind the scenes about this case. So much is that the case that there may be a danger that the fundamentals in the dispute are lost sight of, and it is those fundamentals which I should like to put to your Lordships to-night.
I have spent some weeks in examining all the papers in connection with this case—the affidavits, the petitions, the complete transcript of the proceedings in the court-martial, and, very important, Swabey's petition to the Sovereign. I have very considerable experience of courts-martial at the sharp end, and my personal experience, having sat as a member and as president, is that the president and members of the court will do all they can to try to establish the facts, to determine the real truth, and they will always give the accused the benefit of any doubt.
I will not weary the House by going over all the details of the court, but I should like to make a few remarks about the court itself. The trial was ordered by Admiral Sir Guy Grantham, who was Commander-in-Chief in the Mediterranean at that time—an officer of the highest honour and integrity; I know him very well and he is incapable of any malicious prejudice against anybody—and the court was composed of three post-Captains, two Commanders and two Lieutenants, which is a very good cross-section of experienced naval officers below Flag rank. The accused was asked whether he had any objection to any of those officers sitting as members, and he was further asked whether he had any objection to make regarding the constitution of the court. To both of those questions he said, "No". That is on page 7 of the proceedings. In all cases where the accused's friend asked about what particular procedure was to be adopted, that was agreed. A case in point would be severing the first charge from the other two. As your Lordships know, there were three charges and I shall not bother about the second and third. I should like to deal at some length with the first charge, which was the most serious and which was indecent assault or homosexuality.
857 I would draw the attention of your Lordships to the fact that, under cross-examination by the prosecutor, which is on page 88 of the proceedings, Swabey admitted that if what Sub-Lt. Havers had said about his actions in the bars and in the taxi were true—if that were true—it would amount to indecent assault on his part. That was also admitted by the defence counsel in his final address to the court. It thus becomes a matter of who was speaking the truth. The members of the court have to decide who is speaking the truth, when the witnesses appear personally before them to give their evidence. In all that matter, the members of the court have to use their knowledge of human nature and their military knowledge—using the word "military" in its widest sense. They have to do that in reflecting on all the circumstances; and then give their individual opinions, the junior member always being asked first what his opinion is and the senior member last. In view of all that, the court decided that the sub-lieutenant was speaking the truth, and Swabey was convicted on that first charge.
I think the question now to be answered is: did Swabey have a fair trial? That is important: did he have a fair trial? It has been suggested that the court was prejudiced against the accused. I think that such a suggestion is absolutely monstrous, and it can serve only to undermine confidence in justice as administered in the Armed Forces. That is all it can do. To read, to re-read and to read again the transcript of the proceedings of the court-martial, covering 170 pages, takes time; but it has got to be done. It has got to be done if you want to be satisfied about the fairness or otherwise of the trial. There is no other way of doing it. I have so read the proceedings, and it is my view that Swabey had a completely fair trial on that day. It has been suggested that there was no corroborative evidence to support the evidence of the sub-lieutenant, but the court had to consider the behaviour of Swabey on board after leaving the taxi, and this appears to me to support the case for the prosecution, because, when you read the whole case, it was the behaviour of a man with a guilty conscience.
Now we must go to Swabey's petition to the Sovereign, which was dated March, 858 1957. In that petition to the Sovereign he relates the circumstances of his trial by court-martial in January, 1950, when, as has been stated, he was convicted of a charge of conduct unbecoming an officer because of his relations in the wheelhouse of H.M.S. "Rowena" with two able seamen, West and Baker. It is true that that conviction was subsequently quashed and the sentence set aside. I should now like to take your Lordships through some of the statements contained in the petition to the Sovereign, because it is very important.
On pages 3 and 4 of his petition Swabey pleads that his actions on return to the ship on the night of March 23, 1956, were due entirely to what he calls his "agony of mind". He had stood trial for offences involving indecency six years previously. He was now being falsely charged with homosexuality. He remembered (I am now giving his own words in the petition) "the pain and disgrace" which had clung to him in 1950, in spite of the quashing of the conviction, and his resentment; and he urged in his petition that his conduct on board that night was solely due to the fact that he had been—and these are his own words—"through all this before". If the sub-lieutenant persisted in his allegations he (Swabey) faced inevitable ruin. And he pleaded that these actions were entirely consistent with innocence and not with guilt, as had been decided by the Courts-Martial Appeal Court.
Now, Swabey's counsel decided not to introduce the circumstances of the 1950 court-martial as part of the defence; and some may consider this an error of judgment. But, whether or not it was an error of judgment, I find it difficult to believe that a senior officer, who had been "through all this before" would not, when faced with this accusation, have indignantly denied it and taken immediate action in respect of what was, if he was innocent, a gross and entirely false charge made by a junior officer. He never denied the charge when he arrived on board. He merely said: "Take that back, Havers."
§ THE MARQUESS OF SALISBURY
The noble and gallant Viscount will not give way. He has his speech already written.
§ VISCOUNT MONTGOMERY OF ALAMEIN
Why did he not order Havers to his cabin and place him under arrest? That is what he ought to have done. That is how I, personally, would see it.
There is another point not mentioned to-night by any noble Lord. Can you imagine the captain-to-be of a ship on arrival in Malta going ashore that evening with a young sub-lieutenant and drinking with him for five hours in bars? I cannot imagine it. All the circumstances have been examined and reviewed by the highest legal authorities in the Navy, by the political head of the Navy and his Sea Lords, by the Lord Chief Justice of England, by two eminent Judges and by the Lord Chancellor of Great Britain. The matter was fully debated in your Lordships' House in March, 1963, and a Motion for reexamination of the case was turned down—admittedly, by only one vote. If we continue to debate this matter in your Lordships' House I consider it will be bad for discipline in the Armed Forces and it will be liable to undermine confidence in the justice of courts-martial in the Fighting Services. Furthermore, having in view all the facts, it tends to bring into disrepute the high prestige of your Lordships' House. If the noble Lord who moved this Motion decides to divide the House to-night, I will certainly go into the Division Lobby against him.
§ 9.48 p.m.
§ LORD AMPTHILL
My Lords, as many of your Lordships know, I spoke in support of the Motion on this matter which was moved by the noble Lord, Lord Shackleton, on March 19, 1963. I do not intend to repeat what I said then, but I must rise to-night to support my noble friend, because I still feel strongly that there were matters which were prejudicial to Swabey's receiving a fair trial. I wish to draw your Lordships attention to one point, and that is the absence of any preliminary or summary inquiry before the court-martial. This matter was discussed at length during the 860 last debate, and I have had some correspondence with my noble friend.
I do not wish to go into the quibble about what Q.R. & A.I. actually mean. Some people say that the paragraph in question refers only to ratings and marines and not to officers. Some, like myself and others, think it clearly refers to officers too. I do not wish to waste your Lordships' time going over that ground again—it is really not necessary in respect to what I have to say, because the noble and learned Viscount, Lord Dilhorne, said, in effect, that a summary inquiry could be held if those responsible thought it necessary. In fact, no such inquiry was held, as I will show in a few minutes.
Before I do that, as I do not wish to stand here under any false pretences, and as my noble and gallant friend has talked about lobbying, may I say that I have been lobbied by nobody. I was asked by the noble Lord, Lord Shackleton, to speak in the last debate and I was asked by the noble Lord, Lord Russell of Liverpool, to speak in this debate. In the last debate I said that I had never met any of Swabey's family and that is still true to-day. I also said that I had never met Swabey. I have now met Swabey. I sent for him this time last year when, your Lordships will remember, there was a Motion on the Order Paper, which was subsequently withdrawn, in the name of my noble friend Lord Salisbury.
I sent for Swabey for one reason only. I wanted to question him closely about what happened when he got back on board the "Redoubt" late—11.30 o'clock, I think it was—on that night in March, in Malta. I questioned him and I made a most careful record, almost a year ago, of what he told me. I do not propose to repeat it to your Lordships to-night, but I want briefly to recount that the first lieutenant of the ship and the midshipman behaved quite properly, and the captain, Lieutenant-Commander Davidson was recalled from his house ashore. He arrived on board at 1.30 a.m. He saw the first lieutenant and the rating, and somebody said that Swabey and the sub-lieutenant had turned in. The captain did not see them. He took statements from the first lieutenant and the rating.
What did he do then? At 2.30 a.m. he made a signal to base, St. Angelo, 861 asking for accommodation for an officer in the morning and for a boat to be sent for him at 7.30. In the statement which I have seen, by Lieutenant-Commander Davidson, since our last debate, he says that he did not see Swabey or the sub-lieutenant that night because he had been told that they returned on board drunk and were not in a fit condition to be seen. He did not trouble to satisfy himself whether the statement was true. He made a signal for a boat and for accommodation. He called Swabey at 6.30 the next morning and told him that he was disembarking him to St. Angelo. Swabey protested vehemently. He was never confronted with his accuser, but was sent off in a boat to St. Angelo at 7.30. When he arrived at St. Angelo he was placed under arrest—I do not know under whose orders. Later that morning he was taken back to "Redoubt" under arrest and brought before the commanding officer, and then, on advice, when asked if he had anything to say, he said nothing. He still was not confronted with Havers, but there and then his baggage was searched, a most humiliating procedure. He was sent ashore at 7.30 in the morning, put under arrest, brought back to the ship under arrest, and still there had not been any proper inquiry. His baggage was searched, they say for pornographic literature.
My Lords, you can imagine that happening in the case of a small ship, and in a small place like Malta. The port was pretty well humming by this time. Signals had to be made from one of the senior officers in Malta to the "Redoubt", telling Sub-Lieutenant Havers and others to keep their mouths shut about the case. General Signals in Malta or any other naval base are pretty widely read. Swabey, of course, committed a grave error, a great foolishness, in not remaining awake, dressed, in order to meet his captain, who he must have known would be returning on board. He turned in. Personally I think it was a very foolish thing to do.
I have considerable sympathy for Lieutenant-Commander Davidson, the captain of the "Redoubt", when he returned on board at 1.30 in the morning to face this dreadful situation. I have not had to face the same situation, but as first lieutenant and captain of a small ship in the central Mediterranean, when 862 nasty things happened in the middle of the night, I have been got on deck to deal with them. I can well imagine that Lieutenant-Commander Davidson found himself faced with a difficult problem, but I must say that, in my opinion, he was guilty of a serious error of judgment. Instead of seeing these men, and what state they were in, he signalled to St. Angelo and sent Swabey away at 7.30 in the morning.
I do not want to take up any more of your Lordships' time. I have examined carefully this critical period between midnight and 7.30 a.m. and questioned Swabey, and nothing that he said conflicts with the other statements I have seen. I wrote this all out and sent it to a distinguished admiral, who I know has been worried about this case and, in particular, about the point I have been hammering to-night. Here is what he wrote back to me:Where Davidson was wrong was in landing Swabey without giving him a chance to refute the sub-Lieutenant's charges to his face and to question him about them. This omission was highly prejudicial to Swabey and labelled him as guilty from the start.I feel that I cannot put my feelings better or more bitterly than that, and that is the main reason, though not the only one, why I support by noble friend in this Motion.
§ 9.58 p.m.
§ LORD AIREDALE
My Lords, I have not been lobbied either. I want to spend only one moment in examining the question of what Commander Swabey has to hope for, if the efforts on his behalf this evening should prove successful. It is what we call a free pardon. It is not a pardon in the ordinary sense of that term, which denotes forgiveness for a crime which has been committed. What a free pardon, in this technical sense, means is best described in a single sentence in a text book called The Home Office by Sir Frank Newsom, who was Permanent Under-Secretary of State in the years up to 1957. He says this: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 places the person pardoned in exactly the same position as if he had never been convicted.This quaint expression, "free pardon", comes down to us from our ancestors 863 who, before the beginning of the 19th century, held so precious the notion of the infallibility of the courts that they would not publicly admit that a miscarriage of justice was a possibility. Thus a free pardon was a device whereby justice of a kind could ultimately be done to an injured convicted person without openly damaging the reputation of the courts. But now we do publicly recognise that a miscarriage of justice in the courts can take place—although, fortunately, it is a very rare event.
I raised this point in the previous debate, and the then Lord Chancellor was kind enough to deal with the point specifically. He said this:… 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 …".—[OFFICIAL REPORT, Vol. 247, col. 1107, March 19, 1963.]With that I entirely agree. Of course the recipient knows what his free pardon means; and of course learned people in Whitehall and in Lincoln's Inn know what it means. But if I were to be granted a free pardon after a miscarriage of justice, what would concern me would be: what do my neighbours at home think it means? What does the milkman think it means? And what will my cousins in Australia think it means, when they come to hear of it? Therefore, I should hope that if Commander Swabey is ultimately going to receive an acquittal under the Royal Prerogative, it will be possible to say so in those terms. The reform of the criminal law is very much in the air in this Chamber at the present time, and I hope that henceforward we shall be able to dispense for ever with the expression "free pardon", which does not mean what it says.
§ 10.2 p.m.
§ LORD CHORLEY
My Lords, I am not going to apologise to your Lordships for taking a few more minutes of your time on this case. The reputation of an officer who has served his country with great gallantry for many years is at stake, and that of a family whose service in the Navy over the last century has earned them the right to have full justice done, if it has not already been done. Therefore, I think it is only right that anyone 864 who has formed a strong view about this case should express his opinion in your Lordships' House.
This, as the noble and learned Viscount said, is not in any sense of the term a question of Party politics. If I find myself differing in this matter from the Government formed by the Party to which I belong, my conscience requires me to say that I think they have come to a wrong conclusion about this; that the conclusion which most of them formed when they were sitting on the Benches on the opposite side of the House, when they were not, so to speak, shackled by the weight of office, was the right one; and I am sorry to find that, now that they are so shackled, they have changed their view. We must, however, vote in the way that our consciences tell us is right.
§ THE LORD PRIVY SEAL (THE EARL OF LONGFORD)
My Lords, perhaps I may interrupt the noble Lord. I hope he will not suggest that those who are now members of the Government, and who took a different view last time, are less guided by conscience than he is. I hope he will listen to the noble and learned Lord, the Lord Chancellor, and then he will see why some of us—although with great difficulty in this sad case—are supporting the line that has been put by my noble friend Lord Champion, and will be put by the Lord Chancellor.
§ LORD CHORLEY
If the noble and learned Lord on the Woolsack can make out a case, then I shall be the first to accept it and to change the opinion that I have already formed. All I can say at the moment is that none of the arguments that have been put forward to support this has begun to persuade me; and I am sorry that that should be the case.
I came into this Chamber on the occasion when the noble Lord, Lord Shackleton, moved a similar Motion, having heard nothing whatever about this case. I listened to the debate from beginning to end. I listened to the sort of special pleading which over the last fortnight we have come to expect from the noble and learned Viscount, Lord Dilhorne. If there had been any doubts in my mind, he would have completely removed them. It was a speech for the 865 prosecution, if ever I have heard one in all the time I have been a magistrate and practised in courts of law.
When I heard that this matter was to come forward again, I decided that I should be here, because probably some arguments in favour of this disastrous decision which was given might be forthcoming. The previous debate caused a great deal of disquiet. I remember very well people who had read the account of the debate coming to me during the weeks following and saying that they were very disturbed that this could have happened. Before I came to your Lordships' House to-night I was at a meeting in the Middle Temple and explained to some of my legal friends that I must leave because this debate was coming on. They remembered the case at once, and I think, without any exception, expressed the same sort of view. If that is the view which is held by the community, and not only by the general community but by lawyers in the Temple, surely it is right, and the Government ought to agree that a further inquiry into it should take place.
I heard that my noble friend Lord Champion had changed his mind. That was the first intimation I had had that the Government were going to fall in behind the last Government. I then expected that the noble Lord would tell me the reasons why he had changed his mind, because those reasons might be reasons which would cause me to change my mind. All he did was to say that he had considered the case very carefully and changed his mind. In courts of appeal—and, to an extent, the noble Lord has been in the position of a member of the court of appeal in this case—it is the absolute rule that you should give the reasons why you are disagreeing from the judgment from the court below. I should have thought that the noble Lord would have explained why he had changed has mind.
I quite understand that the noble Lord, Lord Shackleton, was in a difficult position, having moved this Motion on a previous occasion. I find it very difficult indeed to believe that the noble Lord, Lord Shackleton, has changed his mind, because after the last debate I discussed it with him on at least two occasions, and in some detail. At that time his mind was decisively made up that there had been a miscarriage of justice in this case, and, 866 indeed, he said that he hoped further evidence would be forthcoming which would enable us to bring this case before your Lordships again. In fact it has been brought to-night. It is very difficult to believe that the noble Lord, Lord Shackle-ton, has in fact changed his mind.
Surely the noble Lord, Lord Byers, is right when he says that this is really a lining up of the political authorities behind the officers in Whitehall. It is for us to see that justice is done. Fiat justitia, even if the ceiling falls at the Admiralty or in other offices in Whitehall! I thought it was typical of the way in which this case has been conducted by the prosecution against this unfortunate officer that the noble and learned Viscount, Lord Dilhorne, referred to some incident which is apparently in the evidence, and on which he asked us to accept his ipse dixit that if this was true that was an end to the matter—he has been asking us, not only on this side but on the other side of the House, to accept his ipse dixit over the last three weeks, and in repeated Divisions in the Division Lobby we have shown that we were not prepared to accept it—an ipse dixit as to the gravity of the case which was denied flatly by the First Lord of the Admiralty at the time in a letter quoted by the right reverend Prelate the Bishop of Chichester, in which that noble Earl said that this was "minimal". One of them cannot be right. It was either this grave matter, about which the noble and learned Viscount was telling us, or it was minimal in the view of the First Lord of the Admiralty, who considered it contemporaneously and was not put up to act the part of the prosecutor, as happened in this case.
My Lords, I am quite sure that if this case had come before my court of quarter sessions in Westmorland, on the facts put before your Lordships' House this afternoon, we should have had no difficulty whatever in allowing the appeal. I am sure that would have been so in almost any civil court of appeal. This was a naval court of appeal, and I have no doubt that it is in those circumstances that the noble and gallant Viscount said they feel that the interest of the Services require that these decisions should be upheld. But surely it is much more important—
§ THE LORD CHANCELLOR: (LORD GARDINER)
My Lords, if the noble Lord will allow me to interrupt him, I would just remind him that the Courts-Martial Appeal Court does not consist of officers: it consists of High Court Judges, and on this occasion the then Lord Chief Justice was presiding.
§ LORD CHORLEY
I am not talking about the Courts-Martial Appeal Court but about the naval court. I will come to the Appeal Court in a moment. Surely it is much more important that, both in the Services and out of the Services, people should feel that justice has been done; and I have indicated that there is a grave feeling throughout the community that in this particular case justice has not been done.
The Courts-Martial Appeal Court is concerned with the question of corroboration, but in the Court of Criminal Appeal, which deals with the civil types of crime in this country, there is no case which resembles this in which it has been held that corroboration occurred in such a case. I spent half an hour in the Library before I came into your Lordships' Chamber to-night. I spent half an hour with Archbold—the practitioners' book—on this particular point. The noble and learned Viscount, Lord Dilhorne, said that Swabey did not deny it. The general rule is that non-denial of an alleged offence when formally charged is not corroboration. It is quite true that there may be exceptions to that, but that is the general rule.
I was not present, and did not hear the judgments in the Courts-Martial Appeal Court proceedings, which were presided over by the noble and learned Lord, Lord Goddard. I have, however, frequently had cases of corroboration to consider in my court, and I have read, I think, almost every case which has ever been before the Court of Criminal Appeal, and all I can say is that there is no case on all fours with this one. I cannot challenge the decision which was come to by the Courts-Martial Appeal Court, but it is a very strange case of corroboration, and certainly goes beyond any that I can find in the Law Reports.
It is an absolutely cardinal rule of English criminal law that the prosecution has to prove its case against the prisoner, and has to prove it beyond any reason- 868 able doubt; and if there is any case in which that has not been made clear the Court of Criminal Appeal will certainly quash the conviction. In this case the prosecution relied on two essential witnesses. There were only two witnesses in this case whose evidence was absolutely essential, the sub-lieutenant who made the charge and the taxi-driver; and these witnesses flatly contradicted each other. They were the two witnesses for the prosecution. I cannot imagine a case in the civil courts in which a judge does not put to the jury that, if they find the two principal witnesses for the prosecution flatly contradicting each other, they should think long and carefully before convicting. Where there is anything more than reasonable doubt, the accused man is entitled to it.
I suggest that, on the facts which have been brought out to-night, and all the speeches which have been made, there is a grave doubt whether this man was properly convicted, and that, in these circumstances, the demand that a new tribunal should be set up, to go into this question and decide whether the first decision was a correct one, has been amply made out.
§ 10.15 p.m.
§ THE EARL OF PERTH
My Lords, I am in the same position as several others of your Lordships in that I, by chance, was present at the whole of the debate which took place two years ago—not by choice but purely by chance. I happened to be here, realised that I was listening to something in the position of a jury, and I felt it was my duty to remain, at great inconvenience, to a late hour to hear every word that was said. And at the end of that time I, for one, voted that there should be an inquiry. I have felt that I had to come to-day once again to listen to all that was said in this matter, and I must confess that I still remain exceedingly unhappy about this matter and so far am of the opinion that one should vote for an inquiry.
I listened with great appreciation to what the noble Lord, Lord Champion, said on the reasons why he changed his mind. I know he did not go into great explanation of it, which the noble Lord, Lord Chorley, asked that he should do, but all the same I felt he did it out of conviction, and that for me is sufficient. 869 At the same time, I am gravely disquieted, as the noble Lord, Lord Byers, and others were, that many others of the Government Bench are not here to-night and as to the reasons why they are not here. But let that be as it may.
There was one remark that I understood the noble Lord, Lord Champion, to make which caused me even further worry, and it was this. He said, if I heard aright, that we should not go forward with the inquiry in fairness to others who took part in the case. Is that a good reason why there should not be an inquiry? If I go into the Lobby on this issue, I shall not be judging the integrity of those who took part in the case. I am quite convinced they all acted in a way they thought right and proper. I do not see why, if we go into the Lobby in favour of an inquiry, it is unfair to those who took part in the case. No, my Lords, I think this would be a wholly wrong reason for our not supporting an inquiry. I await with the greatest interest the words of the noble and learned Lord, the Lord Chancellor, and if he can adduce new reasons why there should not be an inquiry, I, for one, would be very glad but as things stand at the moment I see no other course but to support an inquiry.
§ 10.17 p.m.
My Lords, before the noble and learned Lord the Lord Chancellor rises to speak, there is something I feel I should say to your Lordships' House. It will take only a few moments to say it. When I had the honour to succeed my noble friend Lord Carrington at the Admiralty in October some two years ago, this case was brought, and brought quite forcibly, to my attention, by, among others, my noble friend Lord Salisbury. As a result it became my duty to read the transcript of the 870 evidence given at the court martial and the associated documents in this case. I believe I had occasion to read those documents some three times.
All I wish to add to this discussion is that, as a result, I came to the same conclusion quite independently—and, may I assure the noble Lord, Lord Chorley, quite unshackled—as had my noble friend Lord Carrington, and as had my successor at the Admiralty, the present Minister of Defence for the Royal Navy. I felt, in view of this long discussion, that I should, as it were, give my testimony to that effect.
§ 10.19 p.m.
§ LORD CARRINGTON
My Lords, I should like to follow my noble friend Lord Jellicoe. I was for four years First Lord of the Admiralty, and I think one of the very first things I had to do as First Lord was to read this case. I knew nothing whatever about it. Since then I have read it on a number of occasions. On all those occasions I came to the conclusion that there was nothing wrong with the court-martial; but I am no lawyer and as my noble and learned friend, Lord Dilhorne, said, I asked him when Attorney General to look at this case and give me his advice. His advice I greatly value, and I greatly resent what the noble Lord, Lord Chorley, has said this evening about my noble and learned friend Lord Dilhorne. I greatly respected his advice and welcomed it. As Lord Dilhorne has said, he came to the same conclusion as I did. Since then, we had a debate two years ago and we have had a debate to-day; and I may say that nothing I heard on that occasion, or have heard on this occasion, has altered my mind about the rightness of that court-martial.
§ 10.20 p.m.
§ THE LORD CHANCELLOR
My Lords, whether we have had any dinner or not, I am quite sure that we shall not grudge a moment of any time that may be necessary to take up this case. I come into it entirely new. I was aware that there had been some debate on this matter in your Lordships' House. But, coming into it entirely new, I was simply asked to read the papers and say what I thought.
Throughout my professional life I have always spent a fair amount of my spare time, gratuitously of course, in looking at cases in which people have said that they have been wrongly treated, mainly of course by the courts. I still correspond, or until recently corresponded, with more than one vexatious litigant; that is to say, somebody against whom the Attorney General had obtained an order as a vexatious litigant. Of course, such persons, if one succeeds in helping them, are rather more liable to spread it around that there is a "buckshee Q.C." who is willing to help for nothing. But, as Chairman of the Executive Committee of Justice, one also, of course, received sets of papers from people who complained that they had been wrongly treated; and one did one's best for them. I should not have hesitated for a moment to say so if, on reading these papers I thought that the previous Government had acted discreditably; and I had, and of course have, no possible axe to grind in any way whatsoever.
The fact that the Admiralty had gone on saying the same thing for a long time did not impress me, because, while I have the highest opinion of civil servants it is, I am afraid, a characteristic that, once having taken a view, they may go on sticking to it. That is the precise reason why Her Majesty's Government propose to introduce legislation for the creation of a Parliamentary Commissioner. So that fact did not influence me. I just read the papers. Particularly in view of what the noble Lord, Lord Chorley, has said, I think I shall have to deal with the matter in a little detail, as I gather a number of your Lordships would wish me to do.
Summarising the matter shortly, what it comes to is this. This Lieutenant-Commander, having, in 1950, in Malta, 872 been charged with (1) indecent assault, (2) committing an act of gross indecency, (3) an attempted act of gross indecency, (4) conduct unbecoming the character of an officer, and (5) conduct to the prejudice of good order and Naval discipline, was convicted only on the fourth charge and acquitted on all the others. The Judge Advocate-General always reads the whole of the transcript, in order to see whether there is any ground on which he should quash the conviction, either because it is wrong in law, or because the wrong procedure has been followed, or because it is unsatisfactory. On this occasion, the conviction was quashed as being unsatisfactory, because the Judge Advocate-General did not think it right or satisfactory that Lieutenant-Commander Swabey should have been convicted on the fourth change when the witnesses to support that charge were, in substance, the same as the witnesses to the other charges. He said that evidently the court did not accept the evidence on those charges, and it was not satisfactory to accept, on the fourth charge, the evidence of witnesses whom they have not believed on the other charges. The conviction was therefore quashed.
Then, as your Lordships know, six years later, Lieutenant-Commander Swabey went back to Malta in charge of the "Redoubt", and he asked some junior officers out to dinner. It is right to make it plain that he did not simply ask the youngest of them. It was a general invitation, which Sub-Lieutenant Havers accepted and the others declined. Moreover, later in the evening they ran across another officer, one whom Lieutenant-Commander Swabey had known, and he asked him to dinner. So, on the face of it, it does not look as if he was trying to get this young man all by himself.
Apart from the conversations with the man they met, they spent together the time from about six o'clock till about eleven in the evening. They went ashore about five minutes to six, and according to Sub-Lieutenant Havers they went into one or two bars; and he complained (I mention this, because there seems to be some mystery about it; but everybody can judge for himself) that Lieutenant-Commander Swabey put his hand on his 873 knee. Here, I will read from the evidence. Sub-Lieutenant Havers said:He stood very close to me and leaned against me. I was sat on a stool, the highest stool in the bar, and he was leaning against me with his crutch on my knee with his hands in his pockets fiddling with himself.(Q) What were your reactions to this?I moved away … I didn't like what he was doing …Then they went to another club where, the Sub-Lieutenant said:… he again rested his hand on my knee occasionally but not for very long …Then they met this other officer and they had dinner.
Continuing his evidence, Havers said that during dinnerI felt his leg touch mine a lot; and rubbing and moving up and down against my leg",Havers then moved away. Asked what happened in the taxi, he said:Lieutenant-Commander Swabey … was sitting very close to me and his knee was rubbing up and down against mine.(Q) What did you do?(A) I moved away and then later just before we reached the ship he put his hand on my leg and moved it up and down in a stroking movement.(Q) Which side of the taxi were you sitting?(A) On the left hand side.(Q) In the back?(A) Yes, Sir.(Q) … which hand did he use?(A) His left, I should say.(Q) … will you try and demonstrate to the court exactly what he did with his left hand? (The witness sat down and moved his hand up and down along the top part and underneath the top part of his thigh.)(Q) What did you do as a result of that?(A) I hit him … I swung my left fist at his face … He gave a grunt and removed his hand … I then said ' You are a homosexual'"—and later the witness put a well-known nautical adjective in front of that.
Lieutenant-Commander Swabey says that of course a man may touch another man accidentally, as we all know happens, but that, subject to that, the whole of this story is completely and utterly untrue no such actions took place in the 874 Café or at dinner; he was asleep in the taxi; nothing of the kind happened in the taxi; no allegation was made against him in the taxi; he was not hit at all. This is therefore a case in which many things depend entirely on which of the two men is telling the truth. The court-martial convicted; the Judge Advocate-General saw no reason to quash the conviction. As the Lieutenant-Commander was entitled to do, he petitioned the Admiralty, who took no action on that. He then appealed to the Courts-Martial Appeal Court, who refused leave to appeal. Ever since then complaints have been made.
The first complaint made was of a misdirection as to corroboration. It was alleged to be corroboration that, when asked about this, he said, in effect, could it not be hushed up; was it necessary for it to go any further; that if it went on there would only be a court-martial. His general conduct from the time they got back to the ship was also said to be corroboration. On that the law is not very complicated. It is that in such a case it is not necessary that there should be corroboration, but it is dangerous to convict without, and the court or a jury—because the law is the same in every case—ought to be warned that it is dangerous to convict without corroboration, though if they are sure, they can.
Further, what is capable of amounting to corroboration is a question of law. If the conduct in question is in law capable of amounting to corroboration, then whether or not it does on the facts is a matter for the court or jury to decide. The Courts-Martial Appeal Court, with the then Lord Chief Justice presiding, read the summing-up of the Judge Advocate-General and they said that it was a perfectly good summing-up of the law of corroboration. I do not want to read it all, but it makes the position quite clear. He said:It is, however, for you to decide whether, in fact, you accept this evidence or any part of it and, indeed, whether in your view it amounts to corroboration or not. The facts are for you. I can only advise. I must point out, however, that the accused has on oath given an innocent explanation in general of these actions in question. He has said, in effect, that they were his indignant reactions to Havers' allegations. You must therefore disbelieve his statement if you accept this evidence as corroboration. …875Again, it is my duty to advise you that it is very dangerous for you to convict without corroboration should you not consider, bearing in mind what I have said and pointed out, that the evidence can be considered as corroborative. It is very dangerous for you to convict without corroboration but you can, if you are absolutely satisfied with the evidence and appreciate how easy such a charge is to bring and how difficult to refute.He ended by saying:To convict of an indecent assault in this case you must be satisfied (a) that an assault took place, not just that something occurred which made Havers react; (b) that it was the accused who committed such an assault; (c) that there was no consent on the part of Havers; (d) that the accused didn't genuinely think that Havers wouldn't have minded; (e) that the assault was combined with circumstances of indecency; and (f) that the accused had an indecent intention in his mind at the time of committing the alleged offence.Again I must remind you that if you don't accept those parts of the evidence that I have endeavoured to point to you as amounting to corroboration, I must again remind you of the danger of convicting on uncorroborated evidence.Finally on this charge if you are satisfied hat there was an assault but if you are not satisfied that there were circumstances of indecency accompanying it, it is open for you to convict upon a charge of common assault, and if you consider that no offence at all took place then it would be open to you, and perhaps your pleasure, to record a finding of Not Guilty and to add that you honourably acquit the accused.In conclusion, may I recall to your minds that the burden of proof rests upon the prosecution to satisfy you beyond reasonable doubt, and that if there is any reasonable doubt in your mind, you must give the accused the benefit of it and acquit him.The Courts-Martial Appeal Court, which of course consists of High Court Judges—and, as I said, the former Lord Chief Justice was in fact presiding—said that there was nothing wrong with that as a direction to the court of the law applicable.
The next complaint was that there was no preliminary investigation. I am bound to say that this is not a complaint which can be made in law. Except as to ratings, there is no need, according to Queen's Regulations, for a preliminary investigation. The reason, of course, is that with ratings the Captain may decide to deal with the case himself, when he has heard the preliminary evidence, whereas with an officer that cannot be done, and he must be court-martialled. 876 But he does receive a copy of the charge sheet, the circumstantial letter (which, of course, takes the place of the opening speech for the prosecution); a list of the officers from whom the court may be drawn, a list of the witnesses for the prosecution and a summary of the evidence which they are to give.
Then the next complaint was that the prosecuting officer was senior in rank to the Judge Advocate. The Judge Advocate had done a number of courts-martial before. This, also, was a ground of appeal to the Courts-Martial Appeal Court, and they said:What did he do wrong because, whether he was junior or not to the prosecuting officer, what followed from it?When they went into it they found that, at the opening of the trial, there had been a clash between the prosecution and the defence. The defence submitted that the first charge—the one of indecency—ought to be taken first. The defending officer was the most experienced man there. He had been in the Judge Advocate's office; he was now in private practice in Malta; he had done a great many courts-martial, and he had a great reputation for getting people off. He had in fact appeared for Lieutenant-Commander Swabey at his first court-martial; and he was very experienced. He strongly submitted that the first charge ought to be taken first. The prosecuting officer said, "Not at all because the whole thing is very much mixed up together. The second charge"—that of being drunk on board—"is, after all, connected with the first charge, because if a man has these inclinations he might very well normally control himself, but when he is on a 'pub crawl' and has had a good deal to drink his control might relax; and, therefore, it is very mixed up with the thing."
The third charge—that of conduct unbecoming an officer—consisted of his saying to an able seaman about the sublieutenant, "I think he is pissed. He thinks he is being chased. I think he has got a persecution complex". It was said by the prosecuting officer, "This being said to an able seaman about the sub-lieutenant, it is all about the same matter". Thereupon, the junior Judge Advocate ruled in favour of the defence and decided that the first charge was to be taken first. So the Courts-Martial 877 Appeal Court said, "We cannot see how the fact that he was junior in rank to the prosecuting officer"—which does not infrequently happen—"prejudiced the accused, because the only point in the case on which he had to rule he decided in the accused's favour; and in law there is nothing wrong with his summing-up", which they said was a very good summing-up. So there is not, so far as I can see, anything at all in that point.
Then there was the point about the taxi driver. First of all, I should say that, both in criminal cases and in civil cases, it is usually thought a great advantage if a witness you are thinking of calling is called by the other side, the reason for that being that, if you call a witness yourself, you are bound by what he says; you cannot cross-examine him. On the other hand, if he is called by the other side you are in the more favourable position of being able to cross-examine him. Because of that, it is usually regarded as part of the duty of the prosecution to call all the relevant witnesses themselves, because that is an advantage to the accused.
But the taxi driver was one of those witnesses who says "No" to everything. Of course, he could not speak any English, he did not recognise either of them, he said that nothing untoward occurred at any time at all, he did not hear anything said in the taxi—of course, he could not have understood it in any case, because he did not speak English—and he did not hear any blow being struck. He looked round once, and one of them seemed to have his foot out and appeared to be "nodding off", sort of thing, but he could not recognise them. That was odd because, quite properly, Lieutenant-Commander Swabey, not knowing at the time that the taxi driver was to be called by the prosecution, had, with another officer, gone to see him to find what evidence he could give. In spite of that, and although recalled by the court, the taxi driver still said he could not remember anybody. But, of course, it was entirely for the court to decide what the effect of his evidence was.
There are only two other complaints which have been made. The first is that the court-martial was obviously prejudiced by knowing about the previous 878 court-martial, and the second is that Lieutenant-Commander Swabey was prejudiced by the court-martial's not knowing about the previous court-martial. These points have been taken at different times. There was a very long notice of appeal when the matter went to the Courts-Martial Appeal Court. At that stage he was complaining that he was prejudiced becausethe verdict of the court is only comprehensible if regard is had to the existence of prejudice. My trial was prejudiced because the Judge Advocate and the prosecutor certainly, and members of the court probably, knew, either in full or in a garbled version, of the facts in a previous trial on January 6, 1950, at the same station, Malta, when I had been acquitted by court-martial",and so on.
The case before the Courts-Martial Appeal Court was presented on his behalf by Sir Peter Rawlinson, who later was Solicitor General, and there is no more experienced counsel. The court said that there was no evidence that the members of the court knew. He was represented at his trial by a very experienced counsel. He did not object to any member of the court. He had the opportunity to do so. There is no evidence that any member of the court knew about it.
After the Courts-Martial Appeal Court proceedings he then contended the alternative—namely, that he had been prejudiced by the court-martial's not knowing about the previous conviction. This is the only point in the case which troubles me at all. It may be right to say that if the court-martial did not know about the previous court-martial they may have thought his subsequent conduct was odd, which conduct they may have thought explicable if they had known that he had been previously court-martialled and acquitted. Moreover—and more important—might it not be that this young Sub-Lieutenant, who was 22, knew about the previous court-martial and that, if he did, he would expect that homosexual advances were going to be made and misunderstand what was done?
It may be, of course, that the prosecution could not mention the previous court-martial; but the defence could. It may be that the defending officer made a mistake in not bringing it out himself. 879 But the difficulty to my mind is this. First of all, this was a very experienced defending officer, and if I wonder whether he came to the right conclusion I must always bear in mind that counsel who is in the case usually knows best. But in all litigation, whether criminal or civil, counsel have a very responsible task and are always having to make decisions. It is only one of the tasks which arise in a great many criminal cases to ask: "Would I be better advised to bring out my client's bad character, or not? Would it pay to do so?" All the time the question arises: "Here is a witness. On this particular point he is going to help me; but I understand that on the other point he is going to help the prosecution"—or the plaintiff in a civil case. "Am I going to be wise to call him or not?" Counsel has to decide one way or the other. With every witness in the box he has continually to choose what questions he is to ask and what not. One question too many may be fatal. We cannot possibly have every case re-tried simply because, in the light of after events, it may be that a court would have come to a different conclusion if counsel had taken a different course.
If I am not keeping your Lordships too late, I will mention an example, a case with which I was not concerned professionally. It was one of those cases which I looked into afterwards to see whether justice had been done—and in this case, I do not think it was. It was a case in which a young man had been charged with having beaten up somebody on a common and robbed him of a wallet. The witness for the prosecution was simply the man who was attacked. He had attended an identification parade of people who all looked alike; and, as soon as he saw them, he went straight up to the accused and said: "That is the man." It was perfectly obvious in court that he sincerely believed this. I believe that the young man who was accused had nothing to do with it at all; that at the time he was at home with his mother, his brother and his brother's fiancée. Some of them were called at the trial; but the jury did not believe them. I believe them because I have had the opportunity since of cross- 880 examining them individually and collectively at home. I have seen letters written by the young man to his mother from prison and letters written by the brother and the family and so on.
The real difficulty was this. The young man, when an adolescent of 14, had been convicted of receiving some property knowing it to have been stolen. He had gone into the Army and had an absolutely first-class character. The identification did not take place at the identification parade at all. The identification was in fact established from police photographs. In a case like this the police show the victim photographs of a number of men with convictions, and the danger is that one never quite knows what the policeman may say about a particular photograph. So the identification parade was not really as it appeared to be in court.
This often happens and you are in this dilemma. What are you to do? If you submit that the evidence of the identification parade is very much weakened by the fact that the person who was going to identify had already identified a photograph, you let the jury know that the accused has a previous conviction. That is the dilemma. It depends on the case. Some counsel do it one way and some another. In that case I am satisfied that the jury came to a wrong conclusion, and he was not that man at all. But what can you do? I paid for an appeal to the Court of Criminal Appeal—the Home Office will not do anything unless you have been to the Court—but there was no ground of appeal. I petitioned the noble Lord, Lord Chuter-Ede, but he was unable to assist. I petitioned the noble and learned Earl, Lord Kilmuir, who took a lot of trouble about it. But at the end he said that under our law somebody has to decide when it is a question of which of two people is telling the truth and we know of no better method than a jury, which sees the two people and decides. The jury in this case may have been right or wrong.
My Lords, that is what it really comes to in the case we are now considering. There has been a considerable number of such cases, where something happens and there are only two men alive who 881 know the truth. In this instance, one is Lieutenant-Commander Swabey and the other is Sub-Lieutenant Havers. If two committees inquired into it, one might believe one man, and the other might believe the other, because, unfortunately, this is a question which only the jury can decide. They have to say which of the two is telling the truth.
Most people do not have relatives who are, quite rightly, as persistent as Lieutenant-Commander Swabey's family, and do not know noble Lords who are Members of this House. In the ordinary case, there being no committees of inquiry, one of three courses might be taken. There could be a free pardon, but that could properly be granted only where the Crown was satisfied that the person concerned was innocent. Nobody knows here, and nobody can tell. Lieutenant-Commander Swabey may be innocent or guilty. It is unlikely, is it not, that going for the first time to take command of a ship, he would indulge in conduct of this kind on the first evening. Then it is equally unlikely, is it not, that this young Sub-Lieutenant, for no motive at all—because he had never met Swabey before—should invent, and subsequently commit perjury by giving evidence of, things which never happened at all? What a dreadful thing to do against a brother officer. It is one of those very difficult cases where one says that in a sense it is very difficult to believe either of them. I am sure that this court-martial did not want to convict, because in such circumstances I think it is the experience of us all that courts-martial tend to lean over backwards rather than convict. But they have to do what they think is right.
The second thing that could happen is that, under the Act, the Minister of Defence for the Navy, as he is now called, could refer the case back to the Courts-Martial Appeal Court, first, if there was some outstanding point of law—which there is not—or secondly, because he thought it expedient to do so because new evidence had come to light. Parliament has placed this duty and this decision entirely on the Minister. It is not a matter for me; under the Act it is a matter for him. Your Lordships know the noble Earl, Lord Selkirk, who first considered this case. Your Lordships know the noble Earl, Lord Jellicoe, and the noble Lord, Lord Carrington, and 882 the present Minister, my right honourable friend Mr. Mayhew. All of them have taken the same view. That is entirely a matter for them.
What is most undesirable is that, where we have proceedings of a criminal nature in the law courts and the accused has all his legal rights, and there is nothing wrong with the trial and the case goes as far as the Courts-Martial Appeal Court, or, with leave, to come to the House of Lords, either House of Parliament should then appoint a Committee to decide whether the House of Lords was wrong. Of course, we can abolish courts, but if we have a system of law courts, always providing for a right of appeal, and if all has been done in accordance with law and a man has had all his rights of appeal, it would be quite wrong for either House—because if this House can do it, the other place can—to appoint a committee to decide whether or not the highest court that could decide the matter was wrong. This is particularly so, I would suggest, in a case which in the end, as in the beginning, depends entirely on which of two men is telling the truth. There is no reason to suppose that one committee or two committees or three committees, hearing the evidence of the two men concerned six years after the event, would be any more likely to arrive at the truth as to which of the two was telling the truth than was the court-martial.
On these grounds, I feel bound to say that there was nothing wrong with what happened. There was no misdirection. There was no defect in the proceedings. It is possible that the defending officer, in the light of after events, might have been wiser to have taken a course other than he did, though nobody can tell whether the result would have been the same or not. Apart from that, this is a case, of which there are many, where a jury or court-martial has the responsibility of deciding which of two people is telling the truth, because that is the only way we know of deciding something of this kind. Any committee could do nothing without seeing the two officers, and in the end they would be faced with the same decision as the court-martial: Is this man just denying that he did this when in fact he did, or is this young officer completely inventing something 883 that never happened at all? For these reasons, I ask your Lordships to oppose this Motion.
§ 10.56 p.m.
§ LORD RUSSELL OF LIVERPOOL
My Lords, at this late hour of the night, I do not wish to go over all the points again. All this Motion is asking for is thatHer Majesty's Government should set up an independent Commission to inquire into the circumstances of the case and to advise whether, in their opinion, there has been a miscarriage of justice.After what I have heard this evening during the debate from the noble and learned Lord who sits on the Woolsack, from his noble and learned predecessor and from the noble Lord, Lord Champion, and his conversion, I feel more than ever that such an inquiry is necessary and I cannot be deterred by the fact that the noble and gallant Viscount, Lord Montgomery of Alamein, will go into the Lobby against me.
There is one thing I would like to say before I finish. First of all, because I am afraid that it involves quoting once again from what the noble and learned Viscount, Lord Dilhorne, said on the previous occasion, and he has already objected to my not having given him notice when I quoted him on the previous occasion, I must give the noble and learned Viscount notice now, although undoubtedly short notice, that I am going to quote another five lines from his speech. He said: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."—[OFFICIAL REPORT, Vol. 247, col. 1103, February 26. 1963.]
§ I wonder whether he would have said that had he known this—and, before I tell your Lordships what it is I would say that I am glad to hear that the noble and learned Lord the Lord Chancellor has such a high opinion of Mr. Grech, because it is something that Mr. Grech told me that I want to tell your Lordships. I have been in communication with him two days ago—I happen to know him personally, and I have as high an opinion of him as the Lord Chancellor has. He has told me—and he is perfectly willing to go before any independent Commission of Inquiry and to say it—that on the day after this alleged offence happened, after Lieutenant-Commander Davidson had been over to Lacaris to see him, Commander Fisher, who as your Lordships know, prosecuted in the case, rang up Mr. Grech and said: "You will be hearing to-morrow morning from somebody you defended a little time ago in Malta, and he is not going to get away with it this time". That particular thing was said, and heard to be said, just before the trial in the precincts of the court.
§ I am sorry, but I want to ask the House to divide. I assure your Lordships that I should not do so if I shared the noble and gallant Viscount's opinion, that to do so would undermine the discipline in the Army; but I think that that is something it is not likely to do.
§ 11.0 p.m.
§ On Question, Whether the said Motion shall be agreed to?
§ Their Lordships divided: Contents, 25; Not-Contents, 29.885
|Ampthill, L. [Teller.]||Colwyn, L.||Perth, E.|
|Arran, E.||Croft, L.||Rea, L.|
|Attlee, E.||Emmet of Amberley, Bs.||Russell of Liverpool, L. [Teller.]|
|Boothby, L.||Greenway, L.||Salisbury, M.|
|Bridgeman, V.||Headfort, M.||Savile, L.|
|Byers, L.||Leicester, L. Bp.||Southwark, L. Bp.|
|Chichester, L. Bp.||Merrival, L.||Swanborough, Bs.|
|Chorley, L.||Mowbray and Stourton, L.||Terrington, L.|
|Arwyn, L.||Dilhorne, V.||Jellicoe, E.|
|Beswick, L. [Teller.]||Drumalbyn, L.||Leatherland, L.|
|Blyton, L.||Falkland, V.||Lloyd of Hampstead, L.|
|Brocket, L.||Fraser of North Cape, L.||Longford, E. (L. Privy Seal.)|
|Brooke of Ystradfellte, Bs.||Gardiner, L. (L. Chancellor.)||Merthyr, L.|
|Carrington, L.||Henderson, L.||Montgomery of Alamein, V.|
|Champion, L.||Henley, L.||Shepherd, L.|
|Cowley, E.||Hobson, L. [Teller.]||Sorensen, L.|
|Denham, E.||Holford, L.||Wynne-Jones, L.|
|Derwent, L.||Horsbrugh, Bs.|
Resolved in the negative, and Motion disagreed to accordingly.