Orders of the Day — British Subjects (Broadcasts on Enemy Wireless)

– in the House of Commons at 12:00 am on 15th December 1944.

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4.57 p.m.

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

Turning from the wide issues of national policy which we have been discussing, I desire to raise a point on the Motion for the Adjournment for the consideration of the Attorney-General. Twice during the past few months, we have had answers from Government Departments saying that the legal advisers of the Government assured His Majesty's Ministers that to speak on the enemy wireless was not, per se, an offence. The first of those occasions was in relation to Colonel Rocke; the second of those occasions was in relation to Mr. P. G. Wodehouse; but in each case the answer was the same, that to speak on the enemy wireless during war-time is not an offence. The point which I put for the consideration of the learned Attorney-General is a double one. In the first place, I submit that it is a wholly mistaken view of the law, and that it is more than one offence to speak upon the enemy wireless in war-time; in the second place, I assert, with much less deference to the learned Attorney-General——

It being Five o'Clock, the Motion for the Adjournment of the House lapsed, without Question put.

Motion made, and Question proposed, "That this House do now adjourn."—[Major A. S. L. Young.]

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

I assert that if it is not an offence to speak on the enemy wireless in war-time, it very soon ought to be made one. It is an affront to the conscience of this nation, after five years of war, to be told that it is not, per se, an offence for a man to speak upon the enemy wireless and to broadcast to this country from a Germany-controlled radio.

That leads me to make two cautionary remarks. The first is that I have no personal feeling about this matter at all. I have never known Colonel Rocke, and I hope I never shall. I start what I have to say in relation to the other gentleman with the admission that I have derived considerable amusement and pleasure from his contributions to English literature. I could wish that there were other personalities involved, but the law must be impartial as between persons, and if it is the misfortune of a gentleman to have incurred its penalties, one cannot be deterred by any feeling of predeliction which one might entertain for his person.

The second thing I want to say is that we are not here concerned with penalties. If it be that these gentlemen have incurred the punishment for high treason, I should be the first to say that theirs was not a serious example of a terribly serious offence, and to ask for penalties to be remitted under the prerogative of mercy; or, they should be prosecuted for something less than high treason, within the discretion of the learned judge trying the case. I am not here to call for blood, but what I am here to do is to vindicate the law. If there is one thing that matters at the present time, when passions are aroused, it is that lynch-law shall be resisted at all costs, but if lynch-law is to be resisted, two conditions are necessary: the first is that we should have an efficient instrument of law, and the second is that we should apply it when we have got it. It is because I believe that these two answers have really violated those two principles, that I raise the matter for consideration in the House.

I turn now to the law as it is, and I turn to the beginning, which is the Treason Act, the Act which, despite numerous attempts to improve it, was so well drafted by our predecessors in 1351 that it remains the basis of the law to-day. According to that Act—if I may paraphrase from the somewhat cumbrous Norman-French in which it was originally couched: It is an offence that if a man do levy war against our Lord pertaining to the Realm, or be it inherent to the enemies of our Lord the King in the Realm, giving to them aid or comfort in his Realm or elsewhere, and thereof be properly attainted of open deed, that ought to be judged treason. The words upon which I rely are "… giving … aid or comfort" to the enemies of the King whether within "his Realm or elsewhere." What does that mean? What is the interpretation to be placed upon this old Statute? An authoritative pronouncement was given in the case of the King v. Casement decided during the last war: If a British subject tends to act in a way which strengthens, or tends to strengthen, the enemies of the King in conducting war against the King, or which weakens, or tends to weaken, the power of the King and country to resist or attack the enemies of the country, he gives aid or comfort to the King's enemies within the meaning of the Act. The question is whether the person who happens to have performed on the enemy wireless has committed an act which strengthens the King's enemies, and has tended to weaken the country. I am astonished that one should have to argue this question in this House. What does the Attorney-General think is the purpose of the German wireless? Is it not to build up a listening public in order that that public may have its morale sapped by tendentious brodcasts? It does not matter twopence whether the actual script of the broadcast is tendentious or not; the purpose of the enemy in broadcasting to this country is fundamentally the same as his purpose in sending over flying bombs. It is to weaken the morale of the country, and a person who happens to clown on the enemy wireless, instead of producing directly anti-British propaganda, is committing just as much an act of treason towards this country as "Lord Haw-Haw" himself, although the punishment might well be less. I cannot speak in terms of kindness of a person who does that, because while he was clowning British boys were resisting the Germans, and there can be nothing but contempt for the action of a man who, in order to live in a hotel more comfortably than his fellow prisoners, did that kind of thing against his country.

I hope the Attorney-General will address himself to this point: I am aware that in order to commit the crime of high treason, or any other crime, there must be a guilty intention. There was decided in the last war the case of a German consul, who continued to assist German nationals to escape from this country, believing that it was still part of his duty to do so. He incurred, undoubtedly, the penalties of treason, but was subsequently let off by the Court of Criminal Appeal on the grounds of technical misdirection of the jury. The judge omitted to direct the jury that an honest mistake of law as to whether he was entitled to continue to act as consul would have given him an acquittal. Whether the jury would have accepted it one does not know. A man, according to the law of England, is presumed to intend the consequences of his own action, and nobody, short of a lunatic, who broadcasts on the enemy wireless would fail to realise that the consequences would be to strengthen the King's enemies, and it follows that he should be condemned as having intended the inevitable result. I want to leave enough time for the Attorney-General to reply, so I will leave the Treason Act and come to the Trading with the Enemy Act, a milder Statute designed to prevent acts which might be technically treasonable but which do not merit that penalty under modern conditions. That Act of 1939 said: Any person who trades with the enemy within the meaning of the Act shall be guilty of the offence of trading with the enemy, … and liable to certain pains and penalties prescribed in that Act. Sub-section (2) of Section 1 provides that: A person shall be deemed to be trading with the enemy if he has commercial, financial or other intercourse or dealings with the enemy for the benefit of the enemy. Then it goes on to particularise without prejudice to the generality of the foregoing provisions. I submit that this broadcasting on the enemy wireless was having intercourse of the kind referred to in that Section. The only possible doubt I express about the construction of that Act is whether an act committed outside its jurisdiction, outside this island, would be covered or not, and I ask the Attorney-General to express his opinion on that point. I cannot conceive what the purpose of the passing of this Act against trading with the enemy can be unless it includes acts which are committed outside the jurisdiction, because the number of enemies within the jurisdiction are relatively few and far between.

These are the two points I wish to raise. I must say that I divine in the attitude of the Attorney-General, who is such a popular and esteemed Member of this House, a certain weakness in the matter of criminal administration. I do not know what the explanation may be, whether or not he had his heart broken at the time he tried to put his right hon. Friend the present Minister of Works in prison, or whether it was broken later, but, nevertheless, I divine a certain weakness in the administration of the criminal law. We have at the moment a new Director of Public Prosecutions, a learned gentleman who has had considerable experience in the commercial world in an honourable legal profession, but he has not perhaps the direct experience of criminal courts which previous Directors have had before him. The Attorney-General is in exactly the same position. The distinguished legal career which lies behind him was mainly in the commercial courts.

He and the Director are beginning to be a little lax in their application of the criminal law. It cannot be that they are afraid of losing their cases, but there comes a frame of mind in advocates who do not feel quite confident about a particular branch of the law that they do not want to embark upon a particular course lest adverse verdicts be given against them. I am sure that the House and the country do not want to persecute when they prosecute and they would be delighted to know, that, after a fair trial of an indictable offence, both these gentlemen who had broadcast on the enemy wireless have been acquitted by the jury, and they would attribute neither to the Attorney-General nor the Director any want of professional skill. On the contrary, they would applaud both for their fairness and moderation in conducting the prosecution. But for the House to be told calmly, without apology and without promise of an amendment of the law, that it is not an offence to broadcast on the enemy wireless in time of war reveals either a grievous mistake on the part of the authorities or else a grievous want of determination to make the law an efficient instrument for prosecuting justice.

5.12 p.m.

Mr. Harold Nieolson:

I wish to add one point to what my hon. Friend has said. He spoke of the question of intention. I have been into the P. G. Wodehouse case with the greatest care. He gave six talks in Berlin directed to the United States when the United States was not at war with Germany. There were a great many American correspondents, many of whom I could cite as witnesses if necessary, in Berlin at the time, and after Mr. Wodehouse's third talk they received telegrams from their newspapers to interview him and say that this was having a very bad effect in the United States. Therefore, after his third talk he was warned, but he continued and gave three more.

5.14 p.m.

Photo of Mr Donald Somervell Mr Donald Somervell , Crewe

This is, in my experience, a somewhat unusual discussion, but, so far from complaining, I welcome it. The point at issue is, What is the law? My, hon. Friend suggested that I and the Director of Public Prosecutions, who acts under my general supervision, and under specific directions if I choose to give them, have misinterpreted or misconstrued or taken a wrong view of the law. My hon. Friend has made two points. He has suggested, first, that a British subject in Germany who had dealings in that country with Germans commits an offence under the Trading with the Enemy Act. With respect to him, that is a misconception. The Trading with the Enemy Act, like most other Acts, but not all, applies to people and acts done within the jurisdiction here. The trading which it makes criminal is the trading or attempting to trade by someone in this island with someone in Germany. That it does not apply to British subjects everywhere will be obvious to anyone who cares to look at Section 14. He will see that it applies only to the Colonies if it is expressly extended to them by Order in Council. The reasons for that, I think, I can make clear by a simple example. If a British subject for one reason or another happened when war broke out to be in Germany, he must, of course, buy food and clothes in order to live, and anyone can see that it would be absurd to suggest that that was a criminal offence. Of course, if somebody here sought to obtain goods from German traders, he would be committing the offence of trading with the enemy. So that my hon. Friend is, I am quite satisfied, wrong on that point.

The second point arises with regard to high treason, and it also arises with regard to an overlapping offence which might be committed by a British subject in Germany, namely an offence under Defence Regulation 2A, which applies to acts likely to assist the enemy and done with intent to assist the enemy, which applies to British subjects in foreign countries as well as to people here. I will come to the question of the act of broadcasting, irrespective of what is said and such intention as can be drawn from the cir- cumstances. My hon. Friend, to my mind, dismissed far too lightly and summarily the vital ingredient of the offence of treason, which is the intent to assist the enemy. He referred to a case, which is the leading case on the subject and a very strong case. It was a case in which a naturalised British subject—the fact that he was naturalised made no difference—acting as German consul after the outbreak of war, assisted Germans, I think of military age, to get back to their own country. My hon. Friend says that a man must be presumed to intend the consequences of his own actions. The consequence of that action was to assist the enemy by giving them potential manpower and soldiers. The case went to the Court of Criminal Appeal, and, in spite of those facts, which were strong, the court said that the essence of the offence of treason was that the jury should be satisfied of the evil intent of the man; and that as he was saying he thought the first two or three days of war were days of grace, or whatever it might be, and he was entitled to do what he did do, that point should have been left to the jury, although the result of his action was plainly to assist the enemy. If he had satisfied the jury that he thought he was doing his duty in the circumstances and that he was entitled to do it, the court plainly indicated that that would have been a defence to the charge.

Photo of Hon. Harold Nicolson Hon. Harold Nicolson , Leicester West

Suppose in this case it had been proved by the prosecution that three or four persons had come to him and said, "What you are doing is assisting the enemy," and if, having been warned, he had then persisted, surely the Court of Appeal would not have taken that view?

Photo of Mr Donald Somervell Mr Donald Somervell , Crewe

My hon. Friend the Member for Oxford (Mr. Hogg) did not seek to raise a Debate on an individual case. He mentioned Mr. Wodehouse, and if my hon. Friend has evidence which he thinks ought to be considered in regard to him, I shall be glad to consider it.

Photo of Mr Donald Somervell Mr Donald Somervell , Crewe

I must deal with the points that were raised by my hon. Friend the Member for Oxford. I am sorry my hon. Friend intervened, because I have not time to deal with his point. I was saying when I was interrupted that this intent is the essence of the offence of treason, just as in the Defence Regulations we set it out in terms "with intent to assist the enemy." In the Treachery Act which this House passed in 1940, covering what might be called the war-spy case, the words are set out again there. Therefore, the question for the prosecuting authority when these cases come along is, "Is this evidence such that a jury ought to be satisfied that this man, acting in this way, had an intent to assist the enemy, within the principles"——

Photo of Mr Clement Davies Mr Clement Davies , Montgomeryshire

May I interrupt my right hon. and learned Friend? That is surely a question for the jury. Surely the question ought to be: "Would the learned judge allow it to go to the jury? Is there sufficient evidence for the matter to go to the jury?" This is a question of fact.

Photo of Mr Donald Somervell Mr Donald Somervell , Crewe

I am sorry my hon. and learned Friend interrupted. I want to have time, before I sit down, to deal with the question of the proper duty of a prosecuting authority. The duty of the prosecuting authority is to consider all the evidence. I do not subscribe to the view that if there is any evidence which the judge might leave to the jury necessarily the prosecution ought to be satisfied. It is a difficult duty to perform and it is not very easy to define in words; but I never found any difficulty in making up my mind in difficult cases as to the right thing to do.

We have no right to prosecute a man—I am not now talking about treason or anything else—if we are satisfied that the evidence would not give a reasonable chance of conviction. There may be something which should be left to the jury. One can foreshadow the defence to some extent and can say: "So far as I can see, although the judge may leave this, it means almost certainly an acquittal." In such a case, on the principles we have gone on in this country, the prosecuting authority should say, "No." If he feels the case ought to be left to the jury and there is undoubtedly a reasonable chance of conviction, although the man may have an answer or he may be disbelieved in the defence he has already put up, the prosecuting authority would say: "This case contains something which the judge may leave to the jury with a reasonable chance of conviction."

With regard to the case of Mr. Wodehouse, we investigated it and considered the evidence. The Director came to the conclusion, and I read the papers and I agreed with him, that on the evidence we have there is not sufficient evidence of intent to assist the enemy to justify proceedings. As has been said, there was this sort of talk, characteristic of the author, following on what hon. Members have referred to, and it was on the air. Mr. Wodehouse said—and, of course, what he said was not necessarily conclusive—that those talks were being broadcast to America so that his many friends there who had sent him letters and presents, would realise that he was alive and cheerful. That is the motive as put forward. We have very carefully considered the evidence. Mr. Wodehouse has been seen. The Director and I, in exercising those quasi-judicial functions, have had to do our best to consider what are the relevant points of law. We considered the evidence we have available at the moment. If further evidence is available, this case and others will be reconsidered. I can assure the House, if assurance is necessary, that these cases of British subjects in Germany, and the action which they have been taking, have been and are being inquired into, and that if I am satisfied that there is proper evidence I shall not hesitate to authorise proceedings.

My hon. Friend said he thinks I am weak in the administration of the criminal law. Well, other people are prehaps better judges of one's own qualities than one is oneself. I am not conscious of it. I do my best. My hon. Friend is quite right in saying that I did not have at the Bar the criminal experience such as he and others may have had. I have now been some long time Attorney-General, and as such, though one does not conduct a great many cases, one is constantly in touch with the administration of the criminal law. There are prosecutions launched, and a man is acquitted; there are prosecutions launched, and a man is convicted. I believe I have a reasonable sense of what is proper evidence to justify proceedings in different classes of cases. My function is a quasi-judicial one. All I can do is to tell the House that I do my best conscientiously to apply the right principles and come to the right decisions. But if I come to a decision that I do not think the evidence justifies pro- ceedings, no pressure from the Executive on one side, or public opinion on the other, would influence me on the question of adhering to that decision.

I am grateful to the hon. Member. I appreciate that we all feel deeply about these things. That a man who broadcasts on an enemy radio does something which shows a complete failure to understand what is right and proper in a war of this kind I entirely agree, of course. There are no two questions about it. But when it comes to the question of treason, which is the most serious crime in the whole calendar, and in which, in my opinion, intention is the essence of the offence, one has to say, "Does the evidence in this case justify taking proceedings against a person, with the chance of conviction about which one ought to be satisfied before one takes proceedings?" In this case I have come to the decision with which the House is familiar. Of course, we all make mistakes. I readily agree I may do so myself. I have in this case conscientiously applied such capacity as I have in arriving at what I believe to be the right conclusion.

Photo of Viscount  Hinchingbrooke Viscount Hinchingbrooke , Dorset Southern

Under the interpretation my right hon. and learned Friend has just given, is not the answer "All that a man has to say on being charged with treason, is 'I never intended to do any wrong'"?

Photo of Mr Donald Somervell Mr Donald Somervell , Crewe

No, I am glad my Noble Friend interrupted. I would like to dispose of that. Of course there are cases in which facts speak for themselves, in which they are obvious. To take an extreme case, if a man has had a gun and been in the German Forces it is no use for him to say, "I did not intend to assist the enemy." If he has done propaganda of the kind which some of us have heard over the wireless, it is no use his saying, "I did not intend to assist the enemy." If he tried to persuade people to join the German Forces it is no use his saying that he did not intend to assist the enemy. The problem and the difficulty for those who have to consider these matters only arises in cases where one cannot say that that ends the argument.

5.28 p.m.

Photo of Mr Clement Davies Mr Clement Davies , Montgomeryshire

No one doubts the high-mindedness of the Attorney-General, but I am glad this case has been raised. This is not the first occasion on which this kind of question has been raised in this House. There was the famous instance of Whitaker Wright, when the Attorney-General of the day advised that no prosecution lay. One always remembers what the consequences are. Everything the Attorney-General has said in regard to the position of Mr. Wodehouse leads me to say that this is a question for the jury and the jury alone. The only defence he could put up was, "I did not realise the full meaning of my act." But he must have known he was taken to Berlin by the Germans themselves, and that he was using the German wireless. Now he knows also what he ought to have known himself, that his action would anger the people of this country and to anger the people of this country is to give comfort to the enemy of the people of this country. That is a matter which surely ought to be laid before a jury for a jury to arrive at what is a proper question of fact which they and they alone have to decide. I am sorry that the Attorney-General and the Director of Public Prosecutions have come to the conclusion that they have. I only hope that they will seriously reconsider this case. Even if they feel that it is not impossible that Mr. Wodehouse can go without being prosecuted——

It being Half past Five o'Clock, Mr. DEPUTY-SPEAKER adjourned the House, without Question put, pursuant to the Standing Order, till Tuesday next, pursuant to the Resolution of the House this day.