Clause 4. — (Provisions Supplemental to SS. 2 and 3.)

Orders of the Day — Army Reserve Bill – in the House of Commons at 12:00 am on 1 February 1962.

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Photo of Mr Gerald Reynolds Mr Gerald Reynolds , Islington North 12:00, 1 February 1962

I beg to move, in page 3. line 44, at the end to insert: Provided always that in any proceedings that may be instituted against such person for failure to comply with such notice it shall be a defence if he prove both that he did not receive the notice and that he did not know that any notice had been sent out addressed to him. We come now to the provisions dealing with the method, with which this Amendment is concerned, by which persons shall be summoned for service under Clauses 2 or 3 of this Bill. In regard to Clause 3, one would not anticipate very much difficulty. In the case of the men to whom I intend to refer, who are the men covered in Clause 2, we see from the Bill that notices requiring a man under Clause 2 or Clause 3 to carry out the services which it is necessary for him to do, and which it has been decided he shall do under this Bill, shall be deemed to have been duly served on the person to whom it is directed if—

  1. (a) it is delivered to him personally; or
  2. (b) it is sent by registered post or the recorded delivery service addressed to him at his latest address known to the military authorities."
Regarding the men called up under Clause 3, I would not anticipate a great deal of difficulty, for in that case they are men who, within a period of twelve months, would have signed an agreement with the Secretary of State and will be receiving the bounty. They will have agreed that, if required, they are prepared to do six months in that period of twelve months and will be in regular attendance at the local Territorial Army centre. There should be in this case completely up to date records concerning the home address and where these men can be contacted.

When we come to the provisions for recall under Clause 2, I think we are in a very different position. We are dealing in Clause 2 with men who have completed their National Service, and for whom there is very little provision—there is some, but very little—for ensuring that an up to date record clearly showing their place of residence has been kept by the War Office.

I wish to refer to the speech made by my hon. Friend the Member for Dudley (Mr. Wigg) yesterday on an earlier Amendment, when he maintained that at the present time there were about 800,000 ex-National Service men who, in certain circumstances, could be recalled for further service. My hon. Friend referred to his belief that if notices were sent out to those men today it would be found that at least 75 per cent. of them had moved and, for some reason or other, were no longer resident at the address shown in their record of service. My own view is that 75 per cent. is perhaps a little bit high, but I have no doubt that a very large proportion, probably 30 per cent. or 40 per cent., or even a greater percentage, will have changed their addresses and moved from one town to another, or simply moved from one house to another in the same town, and are no longer resident at the address shown on the records when they completed their National Service.

I should imagine that at some stage in the last few years various exercises must have been carried out in the War Office to see what the present records are like. At least, I hope that this has been done, so that if the War Office had to send out notices to 800,000 men they would know what proportion was likely to receive them within a few days, assuming an ordinary situation with postal deliveries of 24 to 36 hours. It is absolutely certain that a very large number, once they have finished their National Service, within a period of twelve months and definitely within the period when they are liable for recall within the terms of the Bill, may for some reason or other have changed their addresses, and it is also pretty certain that quite a large number of these changes of address would not be notified to the War Office.

Therefore, we place a man affected under Clause 2 in a position in which a notice may be sent to him, but he may have moved house two or three times. The notice may eventually catch up with him, but in many instances we may assume a distinct possibility that a notice sent either by registered post or recorded delivery service will not reach him. It will then be argued that the notice should go back again to the sender and that the War Office would thus get it back, and, therefore there would be no question of assuming simply because their was no response, that he had received the notice.

In the cases of the receipt for a letter by registered mail or recorded delivery, it is not necessary to be signed by the person to whom it is addressed. It may be signed by somebody who opens the door at that address, who sees the postman offering a letter, is offered a slip of paper and a pencil, and, without even looking at the letter, puts a signature upon the paper, and the postman goes away happy. There is thus no guarantee that a letter either by registered post or recorded delivery service and addressed to the last known address will reach the man concerned, because he may no longer live at that address.

We try, in this Amendment, to make it a defence in any proceedings against any such person for failing to comply with the notice that he did not receive it and did not know that it had been sent to him. It would depend on how many men are being called up whether the individual man would suspect whether a notice had been sent to him or not. If comparatively few men of those liable for recall were being called up under Clause 2, one could fairly easily argue that he could not reasonably expect that he would be called up, because of the small number affected. If, on the other hand, a large proportion was called up, that would be more difficult, but he should be able to claim that he did not receive the notice because he no longer resided at the property to which it was sent or that he had moved away some time earlier.

There are a large number of people moving from the North of England and from Scotland, and quite a large number of people who are moving from Scotland to crowd up the residential accommodation in London, and in those circumstances it would be exceedingly difficult for him to be traced. The only way to ensure that a man is not unjustly penalised for not receiving a notice of this nature is by giving him the defence of proving that he did not receive the notice or that he did not reasonably know the notice had been sent out addressed to him. I hope we can take it that the Secretary of State will accept the Amendment or make some other provision to make sure that no one will suffer in the way I have suggested that they might suffer if this Amendment is not carried.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester North West

I appeal to the Minister to accept the Amendment. The right hon. Gentleman, with his great experience of legal matters, knows that it is possible for a slip to occur and for a man not to receive a document sent to him by registered post or by other means.

Some time ago, on the Army Act, we had great difficulty in trying to rebut a case where it had been proved that a document had been posted. The onus of proof that it had not been received was upon the person to whom it had been addressed. This has been changed since then.

I remember a very strange case in which it was alleged that a document had been posted. The case, in which I appeared, was heard in Bradford. I pointed out to the court that even proof of posting was not sufficient. I do not want to go into details, but the prosecution was trying to prove that there had been posting merely by the fact that the letter had been placed near the postbag. That was as far as the proof went. Nevertheless, the court-martial came to the conclusion that the case had been proved. The following morning the court appeared to have changed its mind. There was nobody there from the official office, and the court imposed a sentence of one day's imprisonment, which meant that the accused was immediately released. Therefore, it did not pay us in any sense to appeal.

I submit that there is this possibility. The right hon. and learned Gentleman will agree that legal practitioners have experience—these cases arise perhaps rarely, but they are not entirely unknown—of cases where, strange though the facts may appear, something has gone astray and has not been served.

It would be grossly unfair to a man if he were not even placed in a position in which he could defend such a case. If a man were able to prove to the reasonable satisfaction of a tribunal that he had not received the notice, and had no knowledge of it, I cannot believe that the Solicitor-General would want the man to be penalised. Perhaps I have misread the Bill. There may be a provision in which this contingency is provided for. If it is not provided for, it would be grossly unjust if, although an accused persons proved that he was not aware of the notice having been sent and had not received it, he was in any way penalised.

I cannot believe that the Solicitor-General would want that to happen. No one in the country would want it to happen. I hope that, if what we believe to be the case is the case, the right hon. and learned Gentleman will accept the Amendment.

7.15 p.m.

Photo of Mr Albert Evans Mr Albert Evans , Islington South West

I am sure that the Solicitor-General would not wish to exclude any defence a person might have if it were a good defence. The Amendment puts the onus upon the person to whom the notice has been sent. It provides that he has to prove that he did not receive the notice. The Clause provides that the notice shall be deemed to have been duly served on the person to whom it is directed if …(b) it is sent by registered post It may sound an adequate safeguard if the notice is sent by registered post, but recently a case has come to my notice in which a registered letter was addressed to a woman. It was delivered to the house. It was signed for—all registered packets have to be signed for—by another resident in the house, who placed it upon the common stairway. Since that time nobody has seen it. The woman to whom the packet was addressed definitely did not receive it. I know her and have discussed the matter with her. She is a genuine, honest person.

According to the letter of this Clause, she would be deemed to have received the packet. In fact, she did not receive it and had no knowledge that it had been delivered to her house. I mention this case to help the Solicitor-General realise that the fact that a notice is sent by registered post is not an infallible safeguard for the person concerned.

The Solicitor-General:

(Sir Jocelyn Simon) I think that it might be convenient if I reply now to the points which have been raised in the three speeches, the sentiments of which I am sure the whole Committee approves.

The hon. Members for Islington, North (Mr. Reynolds), Leicester, North-West (Sir B. Janner), and Islington, South-West (Mr. A. Evans) were right in saying that no one can be sure that a letter addressed to the last known address of a person will not necessarily miscarry. There is a statutory obligation on the persons who would fall within Clause 2 as liable to recall to report their changes of address.

The hon. Member for Islington, North is no doubt correct in saying—it is only realistic to face the fact—that there may be some men who have not complied with this obligation. There may be some where the records have gone astray. There may be some who will be deemed to be served under subsection (1) who will not, in fact, have received the notices sent to them.

All three hon. Members contended—their contention would immediately find a response in any hon. Member—that no one should be put in peril of imprisonment or any other punishment if he is not in any way at fault. No one would dissent from that, but I hope to satisfy the Committee that there is no danger of that under the Clause as it is drawn at present.

It is not only that the Amendment is unnecessary, in that the law as it now stands already protects a man who, through no fault of his own, fails to receive a calling-up notice. The provisions of that law apply equally to men served with notices under the Bill. The Amendment goes a long way beyond protecting the type of person the three hon. Gentlemen had in mind—in other words, the man who fails to receive a notice through no fault of his own. It would, for example, extend to protect a man who fails to receive a notice as a result of his own neglect or default. It goes even further than that. It would protect a man who deliberately evaded service.

I will expand slightly on this point if I may trespass on the patience of the Committee. As so often happens when one tries to write in an unnecessary provision into a Statute, it is liable to have unfortunate repercussions on other statutory provisions and attract peril to the sort of man who, at the moment, would be quite safe under such provisions.

It might, in other words, have repercussions on a man who does not receive a notice sent by virtue of some other provision, such as Section 9 of the National Service Act, 1948, the training notice or the original calling-up notice which applies in the case of the National Service man. He could not be heard to say that his failure to receive it was due to no fault of his own.

The Amendment is unnecessary to protect such cases, for the failure of a Service man to report for duty in response to a notice sent under either Clause 2 or 3 is not itself an offence against the ordinary law of the land. That is, a person who fails to comply does not commit any criminal offence and that is so where his failure to report is a deliberate defiance of a notice to serve or is the result of his failure to receive the notice. He commits no criminal offence whether this failure was due to his own neglect or through no default on his part.

The sanction against failure to respond to a notice is by the attraction of the Army Act, particularly Sections 37 and 38, which lay down the offences of desertion and absence without leave. They are attracted by virtue of subsection (2) of Clause 4 whereby any person who is recalled or called-up by such a notice—

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

That is going out. A new Clause is coming in.

The Solicitor-General:

I am sorry. I probably have an old copy of the Bill. In any case, the effect is the same.

Photo of Mr Emanuel Shinwell Mr Emanuel Shinwell , Easington

The right hon. and learned Gentleman is to move an Amendment.

The Solicitor-General:

Perhaps I may make my point without tying myself down.

The point is that any person who is recalled under Clause 2 or called out under Clause 3 shall, as soon as the notice has been effectively served on him, be deemed, for the purposes of the Army Act, to be an officer, warrant officer, non-commissioned officer or soldier, as the case may be, of the Regular forces and be subject to military law accordingly.

The effect of that is that he is then liable to proceedings before the Service courts—and those are the only proceedings to which he is liable. That is, he can be tried either before a court-martial or appear on summary trial before his commanding officer. The result is that if someone does not report in response to a notice under Clauses 2 or 3 he is in exactly the same position as any other regular, ordinarily enlisted officer or man who is absent without leave. He faces the possibility of proceedings before a Service court.

May I take those two offences in turn? The more serious is that under Section 37, which is desertion. No one can be guilty of desertion unless he intends, permanently, to forsake the force to which he is attached; and, obviously, if it is proved that he failed to report with the intention of remaining permanently absent from duty, he is guilty. But if he shows that he did not receive the notice then obviously no such inference can be drawn. If he can do that then it was obviously no fault of his own.

The same is really true regarding absence without leave. It does not require the mental element of intention permanently to absent oneself from one's unit, but it nevertheless requires culpability before it can be proved. Hon. Members who wish to check that can look at the notes to Section 38 of the Army Act, in the Manual of Military Law, where the Section note 2 (a) states: Absence without leave must be voluntary. Note 2 (b) states: The absence is voluntary if it is due to the deliberate intention of the accused to be absent, or if it is caused by means which were within his own control… Note 2 (d) gives an example: … if a soldier meets with an accident or contracts an illness which renders him unable to travel and so prevents his return to duty, he is not guilty of absence without leave although the accident was due to his own negligence or it was his own fault that he contracted the illness; his absence is regarded as involuntary because a new cause, outside his own wrong-doing, has intervened to prevent his return. Note 2 (h) states that absence without leave must be culpable.

I am, therefore, prepared to advise the Committee without any doubt that no one would be found guilty of being absent without leave if he failed to receive a recall or calling-up notice through no fault of his own, but because the notice had miscarried in the way described by hon. Gentlemen opposite.

Photo of Mr Emanuel Shinwell Mr Emanuel Shinwell , Easington

I am somewhat confused about the procedure here. The right hon. and learned Gentleman is dealing now, as I understand it, with the Amendment, but he must, shortly, on behalf of the Secretary of State for War, move a following Amendment. That Amendment changes the texture of the provision with which he is now dealing. Is it not possible for the right hon. and learned Gentleman to deal not only with the Amendment now before the Committee, but also with the Secretary of State's Amendment? After all, the latter Amendment will govern a further Amendment in the name of my hon. Friend the Member for Dudley (Mr. Wigg).

The two Amendments to which I referred deal with the same subject and the right hon. and learned Gentleman is now overtaking the Amendment he will shortly be moving and also the one in the name of the hon. Member for Dudley.

The Solicitor-General:

I am sure that I should not be permitted to speak on the Amendment, since it has not yet been called, nor would it be convenient for me to do so. But I shall remain here while it is debated and if I can be of assistance to the Committee I shall be happy to do my best. In any case, it makes no material difference to the intention about which I have spoken.

I advise the Committee that a Service man who fails to report for duty in accordance with the requirements of a notice served on him by virtue of the Bill could not properly be convicted of either absence without leave or desertion if he can prove his failure to receive it was through no fault of his own.

The Solicitor-General:

He would not be liable to any other legal proceedings of any kind in respect of his failure to report and, therefore, the Amendment is not necessary.

7.30 p.m.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester North West

The right hon. and learned Gentleman used the words "Could not properly be deemed". Is it not necessary to avoid the possibility of a conviction, not made improperly and because the court believed it to be wrong, but similar to the one to which I referred? It is agreed there is this possibility. I gave an actual example of a court-martial deciding quite improperly—not using that term in a critical sense—that the person was guilty in the circumstances I mentioned. Does not the Solicitor-General think it necessary to have some way of avoiding that possibility?

The Solicitor-General:

One can proceed only on the basis of the law as we understand it to be. If a man proves that his failure to report was not due to any fault of his own, he should be—

The Solicitor-General:

Well, as far as human frailty permits, our law is administered in such a way that he will be acquitted and, if he is wrongly convicted, there is machinery for putting the matter right. That is the machinery that should be used, not an Amendment like this which, as I have said—and with respect, I have not yet finished my argument—is unnecessary, and which, as I shall seek to show, would be positively harmful. However, before I do that, I see that the right hon. Member for South Shields (Mr. Ede) wants to ask a question.

Photo of Mr James Ede Mr James Ede , South Shields

I want to know where the trial is to be held. My experience as a magistrate has been that the police pick the man up and bring him in front of the local petty sessional court where he is charged with being absent without leave. Waiting in the precincts of the court is a junior officer, a corporal and a couple of privates, and the man is generally handed over to the military escort. He is brought before the officer commanding his unit and, if he is unwise, he will ask for a court martial. I recollect once having to parade a man who was asked, "Will you take my punishment or go to a court martial?" The man, thinking to flatter the officer commanding, said, "I'll have justice, Sir." The officer replied, "Court martial for you."

If this point can be raised at the magistrates' court in the district where the police have caught up with the man, such witnesses as he requires are probably in the near vicinity of the court, but if he is taken to the unit and they go through the military process it may be a matter of some expense and, certainly, of great inconvenience to any witnesses he wishes to call.

The Solicitor-General:

The answer to the right hon. Gentleman's question is that the only court that has power to try a man who has failed to comply with a notice under Clause 2 or Clause 3 is a military court. As the right hon. Gentleman said, the man is triable either summarily or by court martial.

I was about to go to my second point, which is that the Amendment goes far beyond the cases put by hon. Members opposite. It is quite true that the man who fails to report, when it is his own fault that he has not received the notice, will be guilty, at least, of absence without leave. He may be found guilty of desertion if the right inference to draw is that his conduct shows quite clearly that he intended permanently to absent himself.

There is, for example, the man who goes away without leaving a forwarding address; or the man who arranges that his post will be dealt with in such a way that it is not forwarded to him. He may give instructions that any registered letter, any recorded delivery service letter—indeed, any letter at all—is not accepted on his behalf, and then leaves that address. Such a man would be guilty of absence without leave, and I am sure that the Committee would agree that he would be rightly convicted, because what he was doing was, in effect—indeed, in fact—dodging service.

The Amendment would give him a conclusive defence—whereas a man who was already enlisted and went away with the intention of permanently, or even temporarily, absenting himself, would have no defence—because he could show both that he did not receive the notice and that he did not know that any notice addressed to him had been sent out. In such circumstances he would escape. I am sure that the Committee would agree that that would be quite wrong, and I know that that was not the intention of the hon. Member who moved the Amendment and those who supported it—

Photo of Mr Edwin Wainwright Mr Edwin Wainwright , Dearne Valley

I am a little perturbed about the person who decides to leave a district, either because he has committed a slight crime and has suffered the penalty, or for marital or other reasons, and goes to live in a fresh district where no one knows him. What would be his position if he had not reported his change of address? Obviously, he would not want to do that because he wished to live quietly where people would not get to know about his past. If he were eventually caught up, would the fact that he had acted in that way in order to try to hide his identity for those reasons be taken into consideration?

The Solicitor-General:

I have to take that in two stages. First of all, was he guilty of an offence? Secondly, if the offence were proved, would the circumstances be taken into account? If he went without leaving an address—which, I take it, is postulated—and, in addition, did not fulfil his statutory obligation on arriving at his new address of notifying either the Territorial Army com manding officer, in the case of Clause 3, or the War Office, in the case of Clause 2, he would probably, if his conduct was considered to be culpable, be committing an offence, but the reason for his failure to notify his address and for his absence would necessarily be taken into account.

There, are, of course, infinite degrees of culpability in these cases. A not infrequent case in what might be called ordinary absence without leave is the man who gets drunk, gets carried past his station and, as a result, fails to get back to barracks in time. I know that I speak in the presence of my hon. Friend the Under-Secretary of State, but I think that that is generally considered a fairly light offence, compared with the case of the man who deliberately absents himself because he wants to engage in a career of crime, although it is not proved that he intended permanently to forsake his unit.

The point I am trying to put to the Committee is that it would be wrong to allow a man who is intentionally dodging service in respect of this notice to be able to prove as a conclusive defence that he did not receive notice and did not know that any notice had been addressed to him.

Finally, I come to the third point that I ventured to put to the Committee, and that was the danger of writing in an unnecessary provision like this and the danger of its repercussions on other provisions on the Statute Book. I mentioned Section 9 of the National Service Act, 1948, and I imagine that the hon. and learned Member for Northampton (Mr. Paget) and a great many other hon. Members present will remember that it provides for the service of a training notice or the service of an enlistment notice. That Section is spent in its prospective effect in that no one is to be called up by virtue of its provision; but, there is the possibility of legal proceedings in respect of it. Indeed, I was personally engaged only at the beginning of this week in such legal proceedings—cases of men who are still being arrested as absentees because they failed to report for duty when called up for National Service. If anyone is charged in that way, it is open to him to say, "I was not absent without leave", or "I was not a deserter, because I never received the notice. I did not have the requisite culpability of mind." There is a danger if we write in this unnecessary Amendment to this Clause. The hon. and learned Gentleman will remember from his forensic past that a frequent line of construction is that because Parliament expressly wrote in a provision, such as is in this Amendment, to the later Act, therefore they cannot have intended that it should be an offence against, or at any rate that it throws some light on the intention of Parliament in respect of, the earlier Act. It is a rule of construction on which the counts occasionally rely.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Surely, if the right hon. and learned Gentleman will permit, it is a very definite rule of construction that an earlier Act may never be construed in the light of a subsequent Act. We can construe a subsequent Act in the light of an earlier Act, but never vice versa.

The Solicitor-General:

With very great respect, the hon. and learned Gentleman puts that much too categorically. As I say, the courts lean against it, but it is a possible line of construction, and there is in my opinion, some danger in writing in this provision. It is unnecessary anyhow; it might, I do not put it any higher than that, involve danger to people charged with absence without leave in respect of failure to comply with a notice under Section 9.

Photo of Mr John Morrison Mr John Morrison , Salisbury

Surely the right hon. and learned Gentleman has exaggerated his case, because one of the major canons of construction of a penal statute is that it should be construed restrictively.

The Solicitor-General:

That is true, but it is arguable whether the National Service Act is in that sense a penal Statute. I know that it will be argued that it should be construed together with the Army Act, and I see the force of it, but I do not want to get into a legal argument about canons of construction. I do not need to put this very high. It is sufficient for me to say that the Amendment is unnecessary for the purpose that hon. Members opposite had in mind, but there is some danger—one may not necessarily put it very high—that it might redound to the disadvantage of the man charged who has failed to comply with a notice which has been served under an earlier Act.

I hope that I have satisfied the Committee that, first, the Amendment is unnecessary, and secondly, that it goes far beyond its ostensible object. In so far as it does that, it is undesirable, and there is some little danger that it may cause disadvantage to men who would otherwise have a defence under a different Act.

7.45 p.m.

Photo of Mr James Ede Mr James Ede , South Shields

We have had the usual suave and pleasant rejoinder from the right hon. and learned Gentleman, and I want to thank him for the trouble he has taken. He has not, however, dealt with the point that I raised, the difficulty of the man where his trial takes place before a military court of getting his witnesses. After all, he is placed in a very difficult position from the start. He has to prove a negative, and I understand that that is regarded even by the members of the legal fraternity of such high eminence as my hon. and learned Friend the Member for Northampton (Mr. Paget) and the right hon. and learned Gentleman as a very difficult thing to do.

The man has to prove that he has not received the notice. If the prosecution can produce the signed document showing that the registered letter was in fact received and it is not signed by him, there may then be the question, as one of my hon. Friends has said, that the letter was placed on the stairs and nobody had seen it since, or that nobody who could be traced has seen it since. I think that is the proper construction with regard to that.

I admit that when we are dealing with this kind of case we always get the answer which the right hon. and learned Gentleman gave in his third reply, that somewhere on the Statute Book there is a provision not dissimilar from this, differently worded, and that if we put these words in we may damage people protected by the words that were formerly used. For what it is worth, we have to pay attention to that. I would suggest to the right hon. and learned Gentleman that there is a serious point here. We are not dealing with the type of person who inserts a notice in The Times,"Sir Charles and Lady So-and-So have left for the continent; no correspondence will be forwarded." We are not dealing with persons in that station of life who use that particular way of getting away from all the troubles which the flesh is heir to.

The Solicitor-General:

I do not think that the right hon. Gentleman is really right when he says that by going to the South of France one gets rid of all the troubles the flesh is heir to.

Photo of Mr James Ede Mr James Ede , South Shields

Hope rises eternal. At any rate, they manage to get away from letter writers. I think that this is a point worth considering seeing that a man has to prove a negative for a start. He may be in grave jeopardy of getting into serious trouble with his regiment. He may make a bad start by having an addition to his conduct sheet which may already have several entries on it to which he may desire not to have too much attention drawn when he rejoins his unit. I ask the right hon. and learned Gentleman to consider again whether something can be done to protect men in the quite genuine cases to which my hon. Friends have referred.

Photo of Sir John Morris Sir John Morris , Aberavon

Before I heard the Solicitor-General, I was in some doubt about this Amendment. Having heard him, I am convinced that there is a great deal in it. In his last few words, the right hon. and learned Gentleman exaggerated his case, and I feel I must pursue the point with regard to the construction of a Statute in relation to Statutes as a whole.

The Solicitor-General agreed that penal Statutes must be construed strictly. That is a very important canon of construction which our criminal courts should observe. Where the liberty of the subject is involved, there should be no attempt to stretch the net further than there is absolute authority for in the Statute. It is really preposterous to suggest that, if the Amendment is inserted here, it would react to the detriment of people affected under previous Acts. If that were so, it would make Parliament wary of putting any limitations in any future Act, because it might be said that previous Acts could be construed in a different light having regard to the later innovations. Whether this Measure is a penal one or not, I submit that it should be construed with the Army Act, and, of course, where it is sought to impose a penalty on a man absent without leave, as it undoubtedly would be, the Bill would be penal in that context. Having regard to the speeches I have heard, I insist as strongly as I can that this reservation and defence should be inserted in the Clause.

As I understand it, the Solicitor-General told the Committee that men who left without giving an address would have no defence. My hon. Friend the Member for Dearne Valley (Mr. Wainwright) asked him about people who left their district for various reasons, because they had committed some minor offence, for matrimonial reasons, or whatever it might be. People have hundreds of reasons for leaving their districts and not giving addresses. Sometimes it is done with deliberate intent and sometimes it is not.

I confess to the Committee that, when I was on the Territorial Army Reserve, I had occasion to change my address and I do not think that I informed the War Office, as I probably should have done. There must be thousands of men who have reserve obligations and who do not inform the War Office in such circumstances but who have no deliberate intention of avoiding their responsibilities. Either through neglect or for some other cause they do not take the step of informing the War Office or persons in authority of where they are. It would be interesting to know from the War Office whether it could say where everyone who has reserve obligations is at present. I am quite sure that, if an attempt were made to count heads and find out where people with reserve obligations are in this country, a very large number would not be found.

I submit that the Solicitor-General should think seriously again about whether this Amendment would be advantageous to men who might be called up.

Photo of Mr Samuel Silverman Mr Samuel Silverman , Nelson and Colne

One of the points made by the Solicitor-General was that the Amendment went too far in that it would afford a defence to persons who would not otherwise have one. He instanced the case of men who had gone away without leaving a forwarding address and so had deliberately avoided, as it were, the service of the notice upon them.

I suggest to him that that is not quite so. He will remember that in the Road Traffic Act there is a provision that in respect of certain motoring offences prosecutions cannot be brought unless notice of them has been served within a certain statutory number of days from the commission of the offence. He will remember a very recent case in which the divisional count decided that, if a registered letter was delivered at the man's last known place of residence and was accepted and signed for by someone at that address, that person would be deemed to be the man's agent for the receipt of the notice so that, even though he had arranged not to be there so that physically he had not received the notice, this would not avail him because acceptance of the registered letter would be accepted by the court as proof that notification had been, in fact, served even though the man had never seen it at all. I think that that disposes of that point which the right hon. and learned Gentleman made.

It does not seem to me that there is very much even in his other contention that what we suggest might endanger somebody proceeded against under the 1948 Act.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

It is with considerable regret that I must tell the Committee that I cannot accept the learned Solicitor-General's advice on any of the points he put.

I take, first, the effect which acceptance of the Amendment might have upon the construction of the 1948 Act. I say emphatically—I am sure that I can produce authority for it—that it has been laid down time and again as a canon of construction that Statutes may be construed in the light of that which came before but never in the light of that which came after them.

There is a very good reason for this. As soon as we pass a Bill and put it on the Statute Book it passes out of our jurisdiction. It no longer matters what we think it means. What matters is what the court thinks it means. I recall a classical instance in which the late Lord Hewart, speaking from the place where the Solicitor-General is now sitting, told the House that a Clause could not possibly be understood save in the meaning which he gave to it.

The House accepted that. Later, when he was Lord Chief Justice, the same Clause, then a Section in an Act, came before him and with equal emphasis he construed it in precisely the opposite way. What he had said in the House could not be referred to. I think, therefore, that the right hon. and learned Gentleman will, on second thoughts, agree that the construction of the 1948 Act is not endangered.

I agree with the Solicitor-General that failure to comply with the notice is not a criminal offence. The criminal offence is the offence under the Army Act of being absent without leave. I will not deal with desertion. I do not think that he has considered the words here, which are a great deal stronger against the man than the words in the Road Traffic Act. The words in this Bill are: any such notice shall be deemed to have been duly served upon the person to whom it was directed". Those words create an estoppel. When Parliament says that something shall be deemed to be so, no evidence is admissible in any court of law to show to the contrary. If Parliament says that a white horse shall be deemed to be black, the evidence of anyone who says in court, "I looked at the horse. It is white" will be ruled inadmissible since he is not allowed to say that it is any colour other than that which Parliament has decreed it shall be deemed. The effect simply is that for the purposes of the law and for the purposes of the rules of evidence any proceeding brought is brought on the assumption that the man has been duly served.

8.0 p.m.

Suppose that a man before a court-martial is prosecuted for being absent without leave, and that he wishes to say that he was not served. He is not allowed to say that, because the law says that he was duly served. Since he cannot say, "I was not served" and cannot challenge the service, then, on the assumption that he was served, he has no defence to being absent without leave. He has not had the leave, he is absent and he is not allowed to say that he has not had the summons because the law says that he is deemed to have been duly served.

This seems to me to raise a very real danger. What we are creating is not an offence, but a rule of evidence, and that rule of evidence is the assumption of due service. But even if I am wrong—I do not think that I am—and it is necessary to show, apart from the service which is deemed, an element of culpability in the absence without leave, that element of culpability can almost certainly be shared among, I should think, about 80 per cent. of the men affected by Clause 2.

The idea is that these men should remain in a supplementary reserve and that track should be kept of them. Does the Under-Secretary of State really think that he knows where are even 20 per cent:. of the Clause 2 men? Are they really culpable because they take a holiday abroad, because they change their address, because they move from their district, or because they do not inform the War Office that they propose to go to Ireland? We know that all these men are doing this.

This obligation on men to keep the authorities informed of their where-abouts is a dead letter. It was conceived at one time that that should be the structure of the Army. It was not the structure of the Army. In effect, even on the right hon. and learned Gentleman's assumption that, over and above this artificial deeming that notice has been served it is necessary to show culpability, that culpability does exist in the vast majority of cases, because there is the obligation there, although it is an obligation which, in effect, has lapsed, which no one has attempted to enforce and which has simply been dropped. Unless there is this form of protection, we create a real danger of finding people who are innocent guilty of offences under military law.

I therefore think that we must press this Amendment to a Division unless the Solicitor-General says that he will have second thoughts about it or that he will accept it. He may well do that now that he has been reassured that he will not endanger all the other people under the 1948 Act.

The Solicitor-General:

A number of new points have been raised in the debate and it would be discourteous if I did not endeavour to try to deal with them.

The most serious point was raised by the hon. and learned Member for Northampton (Mr. Paget). If he were right, it would strike at all the protection given to any person charged with absence without leave. My firm conviction is that he is not right. What the word "deemed" means here is that in the eyes of the law a man has been duly served and that the notice has been made sufficiently proximate to him to attract the provisions of subsection (2) and to make him subject to military law. If he is charged with absence without leave, it will not prevent his saying, not that he was not served—because it is true, as the hon. and learned Member said, that there is a statutory presumption, a statutory fiction—but that he did not get the letter. That is different, and obviously "duly served" includes both personal service which reaches him and, under subsection (I, b), sending notice by registered post addressed to his last known address which, because it is in contrast to paragraph (a) may not reach him.

In view of what has been said, I will certainly reconsider the matter with my advisers. But I have no doubt that, as at present advised, it would be open to a man charged with absence without leave to say, "I never received the letter. That was no fault of mine and, therefore, I am not guilty of the requisite culpability of mind to make me guilty of absence without leave".

I am reinforced in that view, since I find the same formula in the National Service Act, 1948. It was first introduced in the 1947 Act. In the consolidating 1948 Act, it appears as the proviso to Section 33, and states: Provided that, notwithstanding anything in section twenty-six of the Interpretation Act, 1889, where an enlistment notice or a training notice has been served on any person by post, service on him shall not be deemed to have been duly effected unless it is proved either that he received the notice or that it was sent by registered post addressed to him at his last known address. Hundreds of charges of absence without leave must have been brought under Section 33, which should be read with Section 9.

I read to the Committee the terms of the Manual of Military Law which make it plain that the defence of non-default of any sort on the part of an accused man is always thought to be available.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

As the right hon. and learned Gentleman has pointed out, it is the due service which is deemed that puts a man into the Army and makes his present obligatory. It is not the receipt of the letter. Therefore, when due service has happened, if he is absent, he is absent without leave.

The Solicitor-General:

One can be absent from one's unit without leave without being guilty of the offence of "absence without leave" under Section 38 of the Army Act. If the hon. and learned Member looks at Section 145 (1, a) of the Army Act, I think that he will see that that is true beyond doubt.

The hon. Member for Aberavon (Mr. Morris) doubted my advice to the Committee that there might be danger of the Amendment having unfortunate repercussions on other provisions on the Statute Book. I may sound confident when I give advice to the Committee—indeed, it is my duty to do so—but I am always willing to learn, particularly from practising lawyers like hon. Members opposite.

The provision which I had in mind appears on page 35 of the latest edition of Maxwell, which one of my hon. Friends has been kind enough to get. The section states: Earlier Act explained by later. Not only may the later Act be construed by the light of the earlier, but it sometimes furnishes a legislative interpretation of the earlier if it is in pari materia and the provisions of the earlier Act are ambiguous.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Surely it is always in the power of Parliament to pass an Act interpreting the previous one.

The Solicitor-General:

That is not what the passage is directed to. I hope that I did not put it very high, but there is a danger—and it would be quite wrong when one has a completely unnecessary Amendment to disregard the fact—not only that the Amendment is unnecessary, but that it may have adverse repercussions.

Photo of Sir John Morris Sir John Morris , Aberavon

While one realises the authority of the interpretation that the Solicitor-General is putting forward. surely the courts would be loath to put such an interpretation on a penal statute.

The Solicitor-General:

I do not dissent from that as a general proposition. In the end, however—penal statute, fiscal statute or whatever it is—the courts must try to interpret it to give effect to the intention of Parliament.

I come, finally, to the serious attack made by the hon. Member for Nelson and Colne (Mr. S. Silverman), who took on my main point that it is not true that this provision is unnecessary. He drew attention, quite rightly, to a recent decision of the divisional court concerning the Road Traffic Act and notice of intended prosecution having to be served either personally or by registered post within a certain period. It was held that the fact that the registered letter was taken in by someone in the household who was authorised to receive correspondence was sufficient compliance.

I have that case in mind, but I do not consider it relevant to this debate, for two reasons. One of them, if my recollection serves me that the divisional count came to that conclusion, was that the court said that there is an alternative method of service on the owner of the vehicle; and that indicated that personal service, bringing the matter to the man's knowledge, is not strictly necessary.

The more serious reason, however, why I cannot accept that argument is that I have no doubt that the provisions of the Amendment would override any possibility of following that case in relation to the sort of proceedings which we have in mind under the Bill. The Amendment states: in any proceedings that may be instituted against such person for failure to comply with such notice it shall be a defence if he prove both that he did not receive the notice and that he did not know that any notice had been sent out addressed to him. That would clearly cover the case of a man who did not receive the notice because it had been taken in even by somebody whom he had authorised to receive it.

I come back to the point at which I left the Committee the first time I spoke on the Amendment. This is an unnecessary provision. It would enable—no hon. Member has answered this—a man to escape who deliberately evades service. That is not according to the intention of the Committee. Therefore, in spite of all I have heard, and promising to re-examine with my advisers the arguments adduced in the debate, I can

only again advise the Committee to reject the Amendment.

Question put, That those words be there inserted:—

The Committee divided: Ayes 118, Noes 185.

Division No. 60.]AYES[8.15 p.m
Ainsley, WilliamHart, Mrs. JudithMitchison, G. R.
Allen, Scholefield (Crewe)Hayman, F. H.Moody, A. S.
Baird, JohnHenderson, Rt.Hn.Arthur(Rwly Regis)Morris, John
Bellenger, Rt. Hon, F. J.Herbison, Miss MargaretMoyle, Arthur
Bennett, J. (Glasgow, Bridgeton)Hewitson, Capt. M.Noel-Baker, Francis (Swindon)
Blackburn, F.Hilton, A. V.Padley, W. E.
Bowden, Rt. Hn. H. W. (Leics, S. W.)Holman, PercyPaget, R. T.
Bowen, Roderic (Cardigan)Holt, ArthurPannell, Charles (Leeds, W.)
Bowles, FrankHughes, Emrys (S. Ayrshire)Pargiter, G. A.
Boyden, JamesHughes, Hector (Aberdeen, N.)Parker, John
Brockway, A. FennerHunter, A. E.Pavitt, Laurence
Broughton, Dr. A. D. D.Hynd, H. (Accrington)Probert, Arthur
Butler, Herbert (Hackney, C.)Hynd, John (Attercliffe)Randall, Harry
Cliffe, MichaelJay, Rt. Hon. DouglasRhodes, H.
Collick, PercyJeger, GeorgeRobinson, Kenneth (St. Pancras, N.)
Corbet, Mrs FredaJenkins, Roy (Stechford)Ross, William
Crosland, AnthonyJohnson, Carol (Lewisham, S.)Shinwell, Rt. Hon. E.
Davies, G. Elfed (Rhondda, E.)Jones, Rt. Hn. A. Creech (Wakefield)
Davies, S. O. (Merthyr)Jones, Dan (Burnley)Silverman, Sydney (Nelson)
Deer, GeorgeKenyon, CliffordSkeffington, Arthur
Dempsey, JamesKey, Rt. Hon. C. W.Snow, Julian
Diamond, JohnKing, Dr. HoraceSorensen, R. W.
Dodds, NormanLawson, GeorgeSoskice, Rt. Hon. Sir Frank
Ede, Rt. Hon. C.Lever, L. M. (Ardwick)Spriggs, Leslie
Edwards, Walter (Stepney)Lipton, MarcusSteele, Thomas
Evans, AlbertLoughlin, CharlesStonehouse, John
Fitch, AlanMabon, Dr. J. DicksonSwingler, Stephen
Fletcher, EricMcCann, JohnThornton, Ernest
Foot, Dingle (Ipswich)MacColl, JamesTomney, Frank
Foot, Michael (Ebbw Vale)McInnes, JamesUngoed-Thomas, Sir Lynn
Fraser, Thomas (Hamilton)McKay, John (Wallsend)Wainwright, Edwin
Galpern, Sir MyerMackie, John (Enfield, East)Warbey, William
Ginsburg, DavidMacPherson, Malcolm (Stirling)Wells, Percy (Faversham)
Grey, CharlesMallalieu, E. L. (Brigg)Wells, William (Walsall, N.)
Griffiths, Rt. Hon. James (Llanelly)Mallalieu, J. P. W. (Huddersfield, E.)Willey, Frederick
Griffiths, W. (Exchange)Manuel, A. C.Williams, LI. (Abertillery)
Grimond, Rt. Hon. J.Mapp, CharlesYates, Victor (Ladywood)
Hale, Leslie (Oldham, W.)Mellish, R. J.
Hall, Rt. Hn. Glenvil (Colne Valley)Mendelson, J. J.TELLERS FOR THE AYES:
Hamilton, William (West Fife)Millan, BruceMr. Redhead and Mr. Cronin
Hannan, WilliamMilne, Edward
Agnew, Sir PeterCary, Sir RobertFletcher-Cooke, Charles
Aitken, W. T.Channon, H. P. G.Fraser, Ian (Plymouth, Sutton)
Allason, JamesChataway, ChristopherGammans, Lady
Ashton, Sir HubertChichester-Clark, R.Gardner, Edward
Atkins, HumphreyClark, Henry (Antrim, N.)Gibson-Watt, David
Barlow, Sir JohnClark, William (Nottingham, S.)Gilmour, Sir John
Barter, JohnCleaver, LeonardGlover, Sir Douglas
Batsford, BrianCole, NormanGoodhart, Philip
Bell, RonaldCollard, RichardGoodhew, Victor
Bennett, F. M. (Torquay)Cooper, A. E.Grant-Ferris, Wg. Cdr. R.
Berkeley, HumphryCorfield, F. V.Green, Alan
Biffen, JohnCostain, A. P.Gresham Cooke, R.
Biggs-Davison, JohnCraddock, Sir BeresfordGurden, Harold
Bingham, R. M.Curran, CharlesHamilton, Michael (Wellingborough)
Bishop, F. P.Dance, JamesHarvey, John (Walthamstow, E.)
Black, Sir CyrilDeedes, W. F.Harvie Anderson, Miss
Bossom, CliveDigby, Simon wingfieldHastings, Stephen
Bourne-Arton, A.Drayton, G. B.Hay, John
Box, Donalddu Cann, EdwardHeald, Rt. Hon. Sir Lionel
Boyle, Sir EdwardDuncan, Sir JamesHicks Beach, Maj. W.
Brewis, JohnElliot, Capt. Walter (Carshalton)Hill, Dr. Rt. Hon. Charles (Luton)
Bromley-Davenport, Lt.-Col. Sir WalterElliott, R.W.(Nwcstle-upon-Tyne, N.)Hill, J. E. B. (S. Norfolk)
Brown, Alan (Tottenham)Emmet, Hon. Mrs. EvelynHirst, Geoffrey
Browne, Percy (Torrington)Fell, AnthonyHobson, John
Bullard, DenysFinlay, GraemeHocking, Philip N.
Carr, Robert (Mitcham)Fisher, NigelHolland, Philip
Hughes-Young, MichaelNugent, Rt. Hon. Sir RichardSteward, Harold (Stockport, S.)
Hulbert, Sir NormanOrr-Ewing, C. IanStodart, J. A.
Hutchison, Michael ClarkOsborne, Sir Cyril (Louth)Summers, Sir Spencer (Aylesbury)
Iremonger, T. L.Page, Graham (Crosby)Tapsell, Peter
Irvine, Bryant Godman (Rye)Page, John (Harrow, West)Taylor, Frank (M'cn'st'r, Moss Side)
James, DavidPannell, Norman (Kirkdale)Thatcher, Mrs. Margaret
Jenkins, Robert (Dulwich)Pearson, Frank (Clitheroe)Thomas, Leslie (Canterbury)
Johnson, Dr. Donald (Carlisle)Peel, JohnThompson, Kenneth (Walton)
Johnson, Eric (Blackley)Pickthorn, Sir KennethTilney, John (Wavertree)
Kerans, Cdr. J. S.Pilkington, Sir RichardTouche, Rt. Hon. Sir Gordon
Kerr, Sir HamiltonPitman, Sir JamesTurner, Colin
Kershaw, AnthonyPitt, Miss EdithTurton, Rt. Hon. R. H.
Kirk, PeterPott, Percivallvan Straubenzee, W. R.
Leburn, GilmourPowell, Rt. Hon. J. EnochVane, W. M. F.
Lewis, Kenneth (Rutland)Price, David (Eastleigh)Vaughan-Morgan, Rt. Hon. Sir John
Linstead, Sir HughPrior, J. M. L.Wakefield, Edward (Derbyshire, W.)
Litchfield, Capt. JohnProfumo, Rt. Hon. JohnWakefield, Sir Wavell (St. M'lebone)
Longden, GilbertProudfoot, WilfredWalker, Peter
Loveys, Walter H.Pym, FrancisWall, Patrick
Lucas-Tooth, Sir HughRamsden, JamesWard, Dame Irene
MacArthur, IanRawlinson, PeterWebster, David
McLaughlin, Mrs. PatriciaRedmayne, Rt. Hon. MartinWells, John (Maidstone)
McMaster, Stanley R.Renton, DavidWhitelaw, William
Macmillan, Maurice (Halifax)Roberts, Sir Peter (Heeley)Williams, Dudley (Exeter)
Macpherson, Niall (Dumfries)Robinson, Rt Hn Sir R. (B'pool, S.)Williams, Paul (Sunderland, S.)
Manningham-Buller, Rt. Hn. Sir R.Rodgers, John (Sevenoaks)Wilson, Geoffrey (Truro)
Marshall, DouglasRoots, WilliamWise, A. R.
Marten, NeilScott-Hopkins, JamesWolrige-Gordon, Patrick
Mathew, Robert (Honiton)Seymour, LeslieWood, Rt. Hon. Richard
Matthews, Gordon (Meriden)Sharples, RichardWoodhouse, C. M.
Mawby, RayShaw, M.Woollam, John
Maydon, Lt-Cmdr. S. L. C.Shepherd, WilliamWorsley, Marcus
Mills, StrattonSimon, Rt. Hon. Sir JocelynYates, William (The Wrekin)
More, Jasper (Ludlow)Smith, Dudley (Br'ntf'd & Chiswick)
Morgan, WilliamSmithers, PeterTELLERS FOR THE NOES:
Mott-Radclyffe, Sir CharlesSmyth, Brig. Sir John (Norwood)Mr. Gordon Campbell and
Neave, AireyStevens, GeoffreyMr. McLaren.

Photo of Mr James Ramsden Mr James Ramsden , Harrogate

I beg to move, in page 3, line 45, to leave out from the beginning to "enlisted" in line 11 on page 4 and to insert: (2) Where any person has been recalled or called out by such a notice as aforesaid, then, at all times during the period beginning with the date and time specified in the notice and ending with the completion of his service by virtue of that notice, he shall be liable to serve in any place, whether in the United Kingdom or elsewhere, and the Army Act, 1955, shall apply to him as if he were an officer holding a land forces commission, warrant officer, noncommissioned officer or soldier, as the case may be, of the regular forces, and not a member of the territorial army, the army reserve or a reserve of officers, as the case may be, but, in the case of a person who does not for the time being hold a commission, subject to the same exceptions as in the case of a person.

Photo of Sir Harry Hylton-Foster Sir Harry Hylton-Foster , Cities of London and Westminster

It is permissible to discuss at the same time the Amendment in page 4, line 6, at the end to insert: Provided that no person called out under subsection (1) of section three of this Act shall be regarded as a member of the Territorial Army for the purposes of section two hundred and eleven of the Army Act, 1955. but the vote will only be taken, if required, on the first Amendment.

Photo of Mr James Ramsden Mr James Ramsden , Harrogate

The Amendment represents a redrafting of subsections (2) and (3) of the Clause in their original form and I hope that the Committee will find that it is an improvement. Incidentally, it meets the point made by the hon. Member for Dudley (Mr. Wigg) in his Amendment in page 4, line 6. I share the regret expressed by others that the hon. Member has not been able to be here today to take part in our debates and to discuss this second Amendment which has been joined to the first for the purpose of discussion.

The first four lines of the Amendment, down to "elsewhere", simply have the effect of making it clear that members of the Territorial Army who are called under Clauses 2 or 3 may be sent overseas. As the Committee will know, officers and men of the Territorial Army are liable under the Auxiliary Forces Act for service outside the United Kingdom and the Channel Islands only on embodiment.

Hon. Members may wonder how it was ever thought that under this Bill, without the circumstances attending embodiment, we should have been able to send them overseas. The answer is that the Bill provides for those serving under it to do "Army service", as it is termed, and it might have been held that this term covered liability for service both at home and overseas. We thought it advisable, however, to provide specifically for service overseas by those affected, and this is what the first part of the Amendment does.

The second part of the Amendment represents our reflections on the Amendment in the name of the hon. Member for Dudley. It makes it clear, as he wanted to do, that Section 211 of the Army Act does not apply to men called up under Clauses 2 and 3 of the Bill. Section 211 says that the Army Act does not apply in certain minor instances to members of the Territorial Army and the Army Emergency Reserve when embodied or called out.

If the Section were applied to men recalled under Clause 2, and they are all members of the Territorial Army or the Army Emergency Reserve, or if it were applied to members of the Territorial Army Reserve when called out under Clause 3, they would be treated differently for Army Act purposes from the men retained under Clause 1, and, incidentally, differently in minor respects from each other.

The hon. Member for Dudley was concerned that all men doing Army service under the Bill should be treated alike as far as the Army Act is concerned. At one stage, I was prepared to argue with him that this was what Clause 4 (2) in its original form did, but I am giving him the benefit of the doubt, which is often a wise thing to do on technical matters connected with Army law, and this is what the Amendment does.

I have dealt with the position of the Territorial Army serving overseas and with the non-application of Section 211 to the remainder.

It being half-past Eight o'clock, The CHAIRMAN proceeded, pursuant to Orders, to put forthwith the Question necessary for the disposal of the Business to be concluded at that hour, including the Question on the Amendment, moved by a member of the Government, of which notice had been given, to Clause 4.

Amendment agreed to.

Question, That the Clause, as amended, stand part of the Bill, put and agreed to.

Clauses 5 to 8 ordered to stand part of the Bill.