§ "(1) Sentence of death shall not be pronounced on or recorded against any person with respect to whom the Court before which he is convicted is satisfied upon medical evidence that he is a defective; but in lieu thereof the Court shall sentence him to be detained during His Majesty's pleasure, and, if so sentenced, he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct, and whilst so detained shall be deemed to be in legal custody.
§ (2) The Court may act either upon the evidence given during the trial or may call for further medical or other evidence.
§ (3) Without prejudice and in addition to the provisions of the Criminal Appeal Act, 1907, where sentence of death is pronounced on or recorded against any person, it shall be lawful for that person (with the leave of the Court of Criminal Appeal or upon the certificate of the judge who tried him that it is a fit case for appeal under this Sub-section) to appeal to the Court of Criminal Appeal against the sentence on the ground that he is a defective, and upon such an appeal the Court of Criminal Appeal, if satisfied upon medical 62 evidence that he is a defective, shall substitute for the sentence of death a sentence of detention during His Majesty's pleasure, and the appellant shall then be liable to be dealt with as though he had been originally sentenced by the Court before which he was convicted under Subsection (1) of this Section.
§ (4) Nothing in this Section shall affect His Majesty's prerogative of mercy.
§ (5) This Section shall apply notwithstanding that the crime was committed or that the proceedings were instituted before the commencement of this Act.
§ (6) Section two of the Offences against the Person Act, 1861, is hereby repealed, so far as that Section is inconsistent with this Section."
§ Clause brought up, and read the first time.
§ Mr. HIGHAMI beg to move, "That the Clause be read a second time."
There is no doubt that this Bill was brought forward to relieve from the ordinary penalties of the law many persons who are not responsible for their actions. The people to whom I refer are really like children, and the object of the new Clause is to bring them within the scope of the Bill. Clause 8 of the Bill deals with the procedure in cases of persons guilty of offences punishable with imprisonment and penal servitude. If these persons, when brought before the Courts and found guilty, are found to be defectives, they could not be sentenced to penal servitude, to which they would be sentenced if not defectives. That reason itself is sufficient for extending the provisions of the Bill to those cases where murders have been committed and the death sentence may have been pronounced. There are other parts of the Bill which for the first time bring defectives under the same category, irrespective of age, as children and young persons. It may be urged that Clauses 2, 4, and 5 of this Bill might become operative in the cases I am appealing for, but these Clauses will work slowly. In the first place, Clause 2 provides that a person who is defective may be dealt with; Clause 4 gives power to deal with a defective otherwise than at the instance of the parent or guardian; and Clause 5 tells how orders made by a judicial authority are to be enforced. A petition has to be presented, two medical certificates have to be obtained, and a statutory declaration has to be made. I submit to the House that that is the 63 process to be followed in a case where sentence of death has been pronounced. Taking that into consideration, and bearing in mind the fact that defectives are not more responsible for their actions than children, we ought to extend the powers conferred by the Bill to the most serious offence of all.
§ The SECRETARY of STATE for the HOME DEPARTMENT (Mr. McKenna)I entirely agree with my hon. Friend's concluding words, that if the Bill proposed to treat defective persons exactly as children, it would seem to point to the conclusion that this new Clause ought to be accepted. But I would point out to my hon. Friend that there is on the present occasion, a reason for departing from the analogy of the Children Act. I quite agree with him that, in the case of a defective person, the death penalty ought not to be applied, but the question which we have to consider is: which is the proper authority for deciding whether the death penalty in the case under discussion is or is not applicable. There are obviously three authorities whose decision might be final. There is, first of all, the jury; there is then the judge; and then there is, last of all, the Home Secretary on recommendation to His Majesty. With regard to leaving to the jury the option of giving a verdict of "guilty but defective," the Royal Commissioners and the whole body of the judges have recommended that no such verdict ought to be allowed. There is, as my hon. Friends know, at the present time a verdict which may be given by a jury of "guilty, but insane." That is a question which is properly left to the jury, but all the authorities have agreed that we ought not to leave it to the jury to decide whether a prisoner is or is not defective. Therefore, in drawing up this Bill we have not proposed that the jury should have any such power. The next question is: should we proceed upon the line suggested by my hon. Friend and give to the judge a power which we would refuse to the jury? It is obviously, I think, undesirable, to give to the judge a power which we withdraw from the jury on a question of fact. It is true that in other parts of the Bill, where the issue is not so important we do allow the judicial authority to decide whether a prisoner is or is not defective. But when we come to a trial for murder, the whole body of the evidence will be directed to the question whether the prisoner is or is not guilty. The question 64 of defectiveness will only come up as a second issue. I recognise, and the whole Bill recognises, that a judicial authority if competent to decide the question, but I am dealing now with the question whether it is more prudent to leave the decision of the question in the hands of the judge, or, as it would be now, in the hands of the Home Secretary.
When the case comes up before the Home Secretary he will have an opportunity which in Court it is impossible to give. He will be able to inquire into the circumstances of the case, quite apart from, the question of guilty or not guilty. He will be able to call evidence as to the whole life history of the prisoner, and he will be able to obtain lengthened medical evidence as to the state of the man's mind, which is not open to the judge. If the judge has the power and does not exercise it, but comes to the conclusion on such evidence as is before him that the prisoner is not defective, it is bound to have an influence upon the Home Secretary when he comes to consider the same question, whereas if the Home Secretary can consider the whole question of defectiveness or non-defectiveness, de novo, ab origine, he is in a better position to form a definite conclusion. In the interests of the defective prisoner, I would suggest to my hon. Friend that he would be better advised to leave the decision of the point in the hands of the Home Secretary, as it is now, instead of in the hands of the judge, and it is solely on that ground that I ask him not to go on with this Amendment. It may be said, and my hon. Friend has said in fact, that in other parts of the Bill we do leave the decision of this very point to the judicial authority. But look at the difference in the two sets of cases. Should the judicial authority make a mistake in the first instance under the Bill and decide that a person is or is not defective, that decision is always open to review; but if, in the case where the prisoner is found guilty of murder, the judge's decision is final, and if the judge wrongly declares the prisoner defective, that prisoner cannot suffer the death penalty for his crime. If the judge, on the other hand, determines that a prisoner is not defective, though it would not be conclusive on the Home Secretary, it would go a very long way with him, and he would be most reluctant to overrule the decision of a judicial authority who had come to the conclusion, after hearing the evidence, that the prisoner is not defective. For these reasons I would 65 suggest to my hon. Friend that he would be better advised not to interfere with the present practice upon this point, but to leave the decision in the hands of the Secretary of State.
§ Sir F. BANBURYThe right hon. Gentleman has I think come to the right conclusion, though I think he has come to it by arguments and reasons which go against the Bill as a whole. However, as I am opposed to the Bill, as a whole, I think that the arguments of the Home Secretary on this Amendment show one of the difficulties which are sure to arise if the Bill becomes law. We really do not know, and nobody ever will be able to ascertain whether a person is really defective or not. The case which the hon. Gentleman has brought forward in this new Clause is that in which a person kills someone else and there is medical evidence— on which I, personally, place very little reliance in a subject of this sort, for it means to say that one or two doctors can be induced to say that in their opinion the person who is accused is mentally deficient—and then the question arises, what is to happen? The murderer is to be kept alive at the expense of the community because these two doctors say that he is mentally deficient. What security have we that in a very short time, if he really is mentally deficient, he will not go and commit another crime of a similar sort; and if he is not mentally deficient, then there can be no doubt whatever that he ought to suffer the penalty of his crime. Now, we have a tribunal in last resort: that is the Home Secretary. Whether that tribunal is always satisfactory or not depends of course upon who occupies the position for the time being. I think that we must not discuss that point, but we must take it that, as a general rule, the decisions of the Home Secretary have been more or less satisfactory. In those circumstances I think that the hon. Gentleman would be well advised to withdraw this Amendment. I do not know whether he is a supporter of the Bill or not. If he is a supporter, I think that the best thing that he can do is to withdraw the Amendment, and if he is an opponent, I congratulate him on having brought forward this Clause which shows how very absurd the Bill itself is and what difficulties will arise if it becomes an Act of Parliament.
§ 4.0 P.M.
§ Mr. WEDGWOODI am extremely grateful to the hon. Member for Sowerby (Mr. Higham) for bringing forward this Amendment, which seems to me to dot the 66 i's and cross the t's of this Bill. There are certain definitions in this Bill of mentally defective persons which are of a wide and embracing character, and after the Bill is passed numbers of people in this country will try to avoid coming within the four corners of those definitions. But on one solitary occasion people might like to come within the definition of what constitutes a defective person. If they have committed a murder they might try to escape the death penalty by getting inside the definition. The Home Secretary knows that those definitions are not only wide definitions, but that every murderer can perfectly well prove to be a defective under paragraphs (c) and (d), as that would be a means of upsetting the criminal law he refuses this Amendment. Just reverse the process and consider the position of the unfortunate person who is trying to avoid coming within the definition and who is classed as a defective and to be kept a prisoner for life. The definitions show him no mercy, while the murderer is not allowed to have the advantages which it would give him to be able to prove himself to be a defective. It seems to me that the proper thing to do is to make those definitions water-tight, so that neither the innocent man can be proved to be defective nor the murderer to prove himself to be defective. By doing so you get rid of the difficulty and at the same time of the scandal of passing the sentence of death on a man who is not fully responsible for his actions owing to defective intellect.
I do think defectives should have the advantages just as much as the penalties, and I hope my hon. Friend will go to a Division and that we shall secure for the defectives privileges as well as the liabilities and dangers which this Bill brings for the whole community. One other thing strikes me, and that is the hypocrisy of the whole thing. Here you are bringing in Amendments so that persons who are defective may avoid having the death penalty with the judge assuming the black cap and all the rest of it. You are very tender to prevent that being done, but it might be well for this House to consider whether a sentence of perpetual imprisonment such as this Bill provides is not even worse than the death sentence.
§ Mr. SPEAKERThe hon. Member is dealing with the main principles of the Bill and getting rather away from the Clause now under discussion.
§ Mr. WEDGWOODFor myself, I would rather have the death penalty than perpetual imprisonment under this Bill.
§ Mr. MACPHERSONI am not quite satisfied with the objections which have been raised against the new Clause by my right hon. Friend the Home Secretary. I think that in the interests both of the defectives and of the judge who presides that the death penalty in cases like this ought to be abolished. Any person who has been present in Court knows how gruesome it is and how very much judges dislike in cases such as infanticide to pass the death sentence when they know full well that the sentence will never take effect. The Home Secretary based his opposition to this Clause on two points. First of all, he said it would be wrong to make the judge the judge of facts in this case. I do not want to refer to any person in the Home Office, past or present, but with all respect, I say that the judge is a much better judge of the facts, having heard all the evidence, than a Home Secretary could possibly be. The judge has got the jury behind him and hears learned doctors on one side or the other, and he has also got his own common sense, which one always finds, especially in murder trials, present to the minds of the judges in English Courts. The Home Secretary went on to say that so far as the medical evidence was concerned he could have traced in the Home Office the history of the defective. As a matter of fact, what actually does happen in a case of this sort is that doctors are produced on both sides, and the judge is in a position to hear the evidence given by the medical men, and if with the assistance of the jury, he does come to the conclusion that the man is defective, I think he ought not to be asked by this House to pass the death sentence upon the defective in question. I would like to hear this new Clause discussed at greater length, but so far as I am concerned at the present time I am inclined to take the view of the hon. Member for Sowerby (Mr. Higham), and to say that in a case of this kind no English judge should be forced to pass what is the most terrible of all sentences upon any defective.
§ Mr. ATHERLEY-JONESI should not have risen to make any observation on this new Clause were it not for what fell from the Home Secretary. His statement was of a sufficiently startling character to cause me to interpose one or two observations. At the 68 present time the law is that a man cannot excuse himself for killing any person unless at the time he did not know the nature of the act which he committed. That is the law of England. The Home Secretary said, and it was a very startling statement, that if on inquiry he discovered that the person was mentally defective he would exercise, or advise the exercise, of the prerogative of the Crown of commuting the sentence. I should like to know more explicitly from the right hon. Gentleman whether that is what he means, because in that case all that is necessary henceforth in a murder case is to satisfy the Home Secretary afterwards that the person is mentally defective. That is an extraordinary defence to the crime of murder, because when we came to examine the definition of a mentally defective person we find it is not an idiot or an imbecile, but a person "in whose case their exists from birth or from early age mental defectiveness not amounting to idiocy, yet so pronounced that they are incapable of managing themselves or their affairs." Does the Home Secretary really mean that the prerogative of the Crown is to be exercised in the case of persons who are mentally defective? In that case, the law of murder is abrogated, because in the vast majority of cases, I think, it would be possible to demonstrate, ad nauseam, that the person against whom the murder charge lies is, under this definition, mentally defective. That is the first absurdity in which we are landed in respect of the provisions of this Bill, but it does not end there.
There is the further absurdity in the case of a man charged with manslaughter, rape, burglary with violence, grievous bodily harm, the intention to commit grievous bodily harm, and attempted murder. In all those offences it is open to the prisoner under Section 2 to raise the defence that he is mentally defective, and if he is mentally defective, then the judge at the trial has full power to investigate any evidence which he can call in order to ascertain whether or not the person is mentally defective. If he is, having committed attempted murder, the judge orders him to be detained in an institution. On the other hand, in the reverse case, if the Home Secretary is satisfied that the person is mentally defective then he absolutely revolutionises the law of England, and the person, although he knew the nature of the act, is decided to be mentally defective and is sent to an institution to be maintained at the expense of the State. I really think
69 the Home Secretary ought to throw more light on this interesting problem. It seems to me, if his statement is to be accepted, that we are entirely changing the law of England with regard to homicide. If that is so, the sooner we know it the better.
§ Mr. MUNROI do not desire in the least to interpose in the controversy between the hon. and learned Gentleman who has just spoken and the Home Secretary. I desire to recall the attention of the Committee to the precise terms of the new Clause with which alone we are concerned. The new Clause assumes that a verdict of guilty of murder has been returned against a person who is mentally defective by the jury, and on that assumption it is based. In the first place, it is highly improbable that any such contingency will occur. It is well known, I think, to any of us whose lot it has been to prosecute in a Criminal Court, that juries are notoriously timid nowadays in bringing in a verdict of guilty on the capital charge. That is an increasing tendency, and I think I am right in saying that juries, if they can find any excuse at all in order to avoid doing so, readily seize upon it. That is the first reason why I say that it is highly unlikely that this contingency will ever occur. There is another reason why it is very improbable, and it is this: All the evidence with regard to the alleged mental state of the person who is on his trial will be as fully before the jury as it is before the judge. They will be able to appreciate on a question of fact, just as fully as the judge can do, the value and the effect which ought to be given to that evidence. Coupling those two considerations together, the shrinking which the jury feel from, bringing in a verdict on the capital charge and the exceeding improbability of their doing so in a case where there is evidence that the person who is charged is mentally deficient, I submit to the House it is extremely improbable that the contingency will arise. If it should arise, then I suggest to the House that the proposal embodied in the Amendment is a highly undesirable proposal. What does it involve? It involves this, that the judge who presides at the trial may not only differ from, but disregard and defy the verdict that the jury has returned upon the evidence.
§ Mr. WEDGWOODOnly in one direction.
§ Mr. MUNROYes, only in one direction; but I think it is a most invidious proposal that when judge and jury differ upon a question of fact the judge should have the right to override the view which the jury take, whether it be on the side of mercy or not on the side of mercy. I think that is a most invidious proposal, and one which the House should not sanction, especially in view of the fact that the Home Secretary will have the fullest opportunity of coming to a right decision. I do not really appreciate the argument of the hon. Member for Ross and Cromarty when he says that a judge will be in a better position than the Home Secretary to deal with a matter of this kind. The judge may be asked to decide on the spot without full information or advice, and without full opportunity of considering all the factors of the case; on the other hand, the Home Secretary has an opportunity to consider the whole life history of the man concerned.
§ Mr. MACPHERSONI do not wish to interrupt; but would it not be sufficient, supposing the defence was raised that the prisoner was defective, for the defective or his solicitor to produce in the Court medical evidence to prove that fact, and for the Crown to produce rebutting evidence?
§ Mr. MUNROI quite agree. That does not in the least interfere with the argument I was endeavouring to present to the House, namely, that the Home Secretary was in a better position to deal with the matter than the judge. I assume that, as the hon. Member has stated, there may be evidence on both sides presented to the Court. The judge has to consider and decide upon that evidence while he sits on the bench, without time for mature and careful consideration, a very momentous matter; while the Home Secretary will have an opportunity of fuller consideration and investigation than would be possible if the Amendment were carried. Therefore his decision would be more likely to be the proper one than that which a judge could be expected to give under the different circumstances to which I have referred. I do not think the judiciary of the United Kingdom would thank the House if we imposed upon them the duty which this Amendment seeks to place upon them. I respectfully urge my hon. and learned Friend to withdraw it.
§ Mr. GOLDSMITHI should like to point out to the House what would be the real effect of this Clause. A man who had committed a murder could escape the death penalty if he proved that he was defective within the meaning of this Act. I must trouble the House to look at the definition. It deals with idiots, imbeciles, feeble-minded persons, and moral imbeciles, and it defines the last as "persons who from an early age display some permanent mental defect coupled with strong vicious or criminal propensities on which punishment has little or no deterrent effect." That is to say, that the person is mentally abnormal, that punishment has never had any effect upon him, and that therefore the penalty should not be inflicted upon him. It would reduce the Bill to absolute absurdity if we adopted a Clause of this sort. The definitions are not by any means clear. No one can distinguish between the different classes of defectives. I hope we will not add another absurdity to the Bill, which is already full of a large number of absurdities.
§ Sir FREDERICK LOWI agree with the hon. Member who has just sat down with regard to the undesirability of adopting such a Clause as this. I should like to call the attention of the House to definition (d) which the hon. Member also has just called attention to. Of course, it is impossible to consider a Clause of the sort which is before us without considering these definitions. It is quite impossible to deal with this matter unless we get an idea as to what is to be a defective person. The House will see that among these definitions of defective persons is—
Moral imbeciles, that is to say, persons who from an early age display some permanent mental defect coupled with strong vicious or criminal propensities on which punishment has little or no deterrent effect.It would puzzle anyone who was going to define the ordinary kind of habitual criminal to define it very much better than in those terms. I speak on this matter with no little experience of the Criminal Court, and I consider these words are most apt words to describe the habitual criminal of the ordinary type. It seems to me that if this Clause is adopted what you will practically do is to grant a charter to the habitual criminal to go about murdering with impunity. That is a very grave matter. We are not at the moment 72 considering the Definition Clause, but I do agree with the hon. and learned Member for one of the Divisions of Durham who said we are trying to bring about a revolution, or little short of a revolution, in the criminal law by coupling such a Clause as this with such definition. I certainly hope that the hon. Member who has proposed this Clause will see the expediency of withdrawing it; and, if it is in order for me to express an opinion on it at this moment, I do hope that when we come to Secton (d) of the Definition Clause we shall hear from the Government some very considerable modification of it.
§ Mr. PRINGLEMy hon. and learned Friend who has just sat down has opposed this new Clause because he is dissatisfied with the definition in Section 2. That seems to be an insufficient reason for objecting to the Clause. The definitions, it seems to me, should stand on their own feet. If the definitions are absurd that is a reason for removing them from the Bill, but no reason for giving protection under this Clause to defectives who have committed crime. The real question which the House has to decide is not the frequency of the contingency arising, which seemed the dominating idea in the mind of my hon. Friend for a Division of Durham, but the question which is the best authority to exercise the discretion. The Home Secretary has admitted that the discretion should be exercised with regard to those who come within the definition contained in Section 2. He says that the discretion should be used by the Home Secretary; the new Clause proposes that the discretion, should be in the hands of the judge. I prefer the latter alternative, and for the following reasons: It is in accordance with the scheme of the Bill. The Bill provides that in the case of every crime or offence short of murder it shall be the duty of the judge to ascertain whether the criminal or offender is a defective within the meaning of the Act, and that he shall be entitled to make an order accordingly. It seems, therefore, only in accordance with the principles of the Bill itself that no exception should be made in the case of murder. It is regarded as a judicial matter in respect of all other offences, why then should it be treated as an administrative question in relation to murder alone? But that is not the sole consideration. At the present time, with regard to murder, two questions only are tried, whether in fact the prisoner is found guilty of the murder, and whether he knew 73 the nature of his guilt. If this Clause is included in the Bill, then a further question will also have to be considered, namely, as to whether he is defective within the meaning of this Act. In these circumstances notice will be given to the defence that the question whether or not the prisoner is mentally defective will also be considered and determined by the judge. Under these circumstances it will be the duty of those who have the defence laid upon them to bring evidence as to whether he is defective or not, and having that evidence before him, I hold that the judge will be in the very best position to determine whether he is mentally defective. I think it will certainly be more satisfactory from the point of view of the jury and of the prisoner himself that it should be done in open Court, rather than behind the closed doors of the Home Office. I do not think it is always satisfactory to refer matters such as this to the Home Office. When the Home Office exercises on behalf of the Crown the prerogative of mercy we are always told that it is contrary to practice to state the reasons upon which that is done. It may be because a man is defective that sentence is commuted; it may be because in the opinion of the Home Office the evidence is not satisfactory; but whatever be the reason for the exercise of the prerogative no reason is given if inquiry is made at the Home Office. On the other hand, we are told that juries do not convict in capital cases; that the reason is that they are afraid that conviction by them will mean with absolute certainty that the prisoner will suffer the capital penalty; and that therefore juries make verdicts contrary to the evidence because of the penalty that will be incurred. If juries know that the question whether or not the prisoner is defective will subsequently be taken into consideration by the judge, then they will give their verdict honestly and in accordance with the evidence that is put before them. The meaning of this Clause is not that habitual offenders will be able to commit murder with impunity. The procedure of this Clause is better than that which the Home Secretary approves, and I hope that his appreciation for his own Department will not lead him to resist this Clause. I am going to vote for the adoption of the Clause.
§ Mr. ELLIS DAVIESThe main question at issue is whether, in addition to lunacy, we are to require the fact that a man 74 committing a crime was, at the time, a defective. It seems to me that there is another question, and that is this: Whether this House is justified in passing this Bill at all. As one of those who supported—
§ Mr. SPEAKERI think that question is one which arises on the Third Reading.
§ Mr. ELLIS DAVIESI was only going to say—and I suggest that it was quite relevant—that it having been said in justification for this Bill that these people, having been confined for the reason that they were either dangerous to themselves or to the community—for the reason and in view of the fact that they were not answerable for their own action—that that justification for giving powers to confine them is the very reason why we should go further and ask whether the acts committed by these people are or are not such as to bring them within the criminal law? Is there not justification when the Home Office incarcerates them as defectives for not treating these people as ordinary criminals; because, after all, the assumption underlying the whole of our criminal law is that not only has a man knowingly to commit an act, but also wilfully? In the case of a lunatic it is not suggested in Court that he has committed the offence wilfully, for the simple reason that he is taken to be insane. We are legislating with the purpose, practically, of putting another class outside the pale of the law. In any event we are going to deprive them in their own interests or in the interests of the community of that freedom which they have hitherto enjoyed. I do submit that if we are justified in depriving them of their freedom we are certainly not justified on the evidence in saying that when they commit crimes they are equally liable with other persons whom we deem to be sane. The other issue that arises is this: We are bound to place discretion either in the Home Office or the Court which deals with the case. I say, quite frankly, I prefer to leave it to the judge and jury—not that I reflect upon or have any disrespect for the decision of the right hon. Gentleman or his predecessors. But it is perfectly well known that whilst the authority for advising the exercise of the clemency of the Crown does devolve upon the Home Secretary personally, there is no doubt the greater part of the work and the actual decision in a good many cases devolves upon one of his subordinates. For that reason I shall support the Clause.
§ Mr. MARTINThe fate of this Clause will depend upon the question of what a defective is, as defined by the Bill. I should be in. favour of deleting the Clause, of voting against it, but I do not understand that there is any hope in that direction. The hon. and learned Member for Norwich suggested that possibly the Government would modify on Report the definitions which are at the bottom of this Bill. I see no proposed Amendment from the Home Secretary, and I am fully convinced, having served on the Committee upstairs, that the Government intend to push this Bill through in the very raw condition in which it now is, and that the definitions will not in any way be modified. Assuming, therefore, that the definitions will remain as they are, I cannot base my vote upon that question at all. I cannot vote with those hon. Members who have suggested that the definitions are so wide that if you pass this Clause you practically suggest to murderers generally that they can escape under this definition of defectives. That being out of the discussion, I must say that I am in favour of this Clause. The arguments put forward by the Home Secretary did not seem to me to be in any way strong enough to induce any Member to vote against this Clause. Those arguments were two. In the first place, the Home Secretary thought that the judge was not the proper person to decide the question as to whether the person found guilty was a defective and should not be hung. He suggested that the evidence on which the judge would have to act might not be sufficient for the purpose of saying as to whether the person was or was not a defective, and would be brought in incidentally.
I do not understand the Clause in that way. I understand that if the judge, during the course of a trial, has an idea from the evidence that the prisoner who is being tried is a defective that he is not bound to confine himself, in considering that question, under the terms of this Amendment, to the evidence which has been produced by the time the jury has found the prisoner guilty, but that he can himself afterwards, quite independently of the evidence which has been produced at the trial, call medical evidence to satisfy himself as to whether or not the prisoner is a defective. I quite agree that on the issue of whether a murder has or has not been committed by the prisoner that the evidence in regard to his being found a defective might be very slight—in fact, it might only arise incidentally. 76 Once it has arisen in the mind of the judge, according to the terms of this Amendment, it will, I say, be open to him to go into that question exhaustively, and to have evidence before him on that issue quite apart from the jury. Under these circumstances, does the Home Secretary suggest that the inquiry held, as suggested a moment ago, behind closed doors, and probably by subordinates, is satisfactory? Because the Home Secretary surely cannot and does not conduct all inquiries of this kind; he must be aided by subordinates of his Department, and an inquiry of that kind is unsatisfactory when we are introducing practically a new principle into our criminal law, and when we come to examine prisoners, not because they are lunatics, but because they are defectives and come within the limit of the rather wide Definition Clauses of this Bill?
Can it be said that such an investigation would be more satisfactory to the public at large than an inquiry held by a judge in open Court, where everybody that is interested in the matter can go and hear the question fought out and considered on its merits—as to whether the person guilty is such a defective within the meaning of this Bill as entitles him to have the capital punishment dispensed with? The Home Secretary's first reason was entirely based upon that, that the judge was not anything like as good an authority on a. very important question of this kind as was the right hon. Gentleman himself in his official capacity, or his successor. I cannot agree with him. I suggest to the House that if we are to have this question arising at all—I am very sorry indeed that we must have it—but if this Bill goes through—and I fear it will—it will be much better if the judge at the trial settled this important question. Before I deal with the other reason put forward by the right hon. Gentleman, I would like to say that it is a most remarkable fact that though this important Amendment is put forward on behalf of six hon. Members of this House, only one of those is here so far as I can see. The only hon. Member here who is responsible for this Amendment is the hon. Member who moved the Motion. I do not find the name on the list of the hon. Member who-seconded the Motion. I must, if I get the opportunity, vote in favour of this proposed new Clause. The second reason given by the right hon. Gentleman for refusing to support this Clause seems to me a very much weaker one than his 77 first reason. He suggests that if you give the judge the power to inquire into this matter, and decide upon it, that if he should decide against the prisoner, and the matter came up before the Home Secretary—as it will have a right to do under the terms of the Amendment—that that would influence the Home Secretary. Where could you find a weaker argument than that? The judge, of course, would have his evidence before him to decide, and he would decide as he saw fit upon the evidence. How can that be conclusive or influence in any way, or take away from the responsibility of the Home Secretary in deciding a question over again, not necessarily on the same evidence at all, but under a different responsibility altogether? These are the two arguments, and the only two arguments, which have been put forward by the Government as to why this new Clause should not be adopted. If the Government had put forward the argument which has been put forward by several hon. Members that the definitions are so wide that it would not be safe at all to allow defectives coming within those definitions to be excused in the case of murder, I should have understood it, and I should have felt inclined to join with the right hon. Gentleman in opposing the Clause itself. As a matter of fact, he could not do that. The moment
§ he does that, he impugns the propriety of the definition which he has introduced into this Bill. We have then only these two arguments, the first, that the judge is not a fit tribunal, or as good as the Home Secretary himself, with which I have endeavoured to deal; and, the second, that if the judge be given a power and his decision is against the prisoner, that he would influence unfavourably the Home Secretary with regard to his consideration of the question when it came before him. I ask the House to consider whether these two arguments, and the only two put forward by the hon. Gentleman to exclude this very beneficial and reasonable Clause from the Bill are sufficient! So far as I am concerned, they are not sufficient. I hope my hon. Friend will press the matter to a Division, and although I am opposed to the Bill, very strongly opposed to it—and did all I could in Committee, and am prepared to do what I can here against it—assuming that we must have it, it is desirable to make it as good as we can under the circumstances. For that purpose I shall vote for this Amendment.
§ Question put, "That the Clause be read a second time."
§ The House divided: Ayes, 44; Noes, 257.
79| Division No. 208.] | AYES. | [4.45 p.m. |
| Adamson, William | Henderson, Arthur (Durham) | Radford, G. H. |
| Addison, Dr. Christopher | Henderson. J. M. (Aberdeen, W.) | Roberts, George H. (Norwich) |
| Alden, Percy | Higham, John Sharp | Sutherland, John E. |
| Allen, Arthur A. (Dumbartonshire) | John, Edward Thomas | Taylor, John W. (Durham) |
| Barnes, George N | Kennedy, Vincent Paul | Thomas, J. H. |
| Bentinck, Lord H. Cavendish- | Macdonald, J. Ramsay (Leicester) | Tobin, Alfred Aspinall |
| Bowerman, Charles W | Macpherson, James Ian | Ward, John (Stoke-upon-Trent) |
| Bryce, J. Annan | Martin, Joseph | Wardle, George J. |
| Burt, Rt. Hon. Thomas | Morrell, Philip | Wedgwood, Josiah C. |
| Buxton, Noel (Norfolk, North) | Morton, Alpheus Cleophas | Whyte, A. F. (Perth) |
| Cassel, Felix | Neilson, Francis | Wilson, W. T. (Westhoughton) |
| Chancellor, Henry George | Newman, John R. P. | Worthington-Evans, L. |
| Clynes, John R. | O'Grady, James | |
| Davies, Ellis William (Eifion) | Outhwaite, R. L. | TELLERS FOR THE AYES.—Mr. Pringle and Mr. J. M. Hogge. |
| Goldstone, Frank | Pointer, Joseph | |
| Harvey, T. E. (Leeds, West) | Price, C. E. (Edinburgh, Central) | |
| NOES. | ||
| Abraham, William (Dublin, Harbour) | Beale, Sir William Phipson | Burns, Rt. Hon. John |
| Acland, Francis Dyke | Beauchamp, Sir Edward | Buxton, Rt. Hon. Sydney C. (Poplar) |
| Allen, Rt. Hon. Charles P. (Stroud) | Beck, Arthur Cecil | Byles, Sir William Pollard |
| Arnold, Sydney | Benn, W. W. (T. Hamlets, St. George) | Cawley, Harold T. (Lancs., Heywood) |
| Asquith, Rt. Hon. Herbert Henry | Bennett-Goldney, Francis | Cecil, Lord Hugh (Oxford University) |
| Baird, John Lawrence | Bethell, Sir J. H. | Chapple, Dr. William Allen |
| Baker, Harold T. (Accrington) | Birrell, Rt. Hon. Augustine | Clancy, John Joseph |
| Baker, Joseph Allen (Finsbury, E.) | Boland, John Plus | Clay, Captain H. H. Spender |
| Baker, Sir Randolf L. (Dorset, N.) | Booth, Frederick Handel | Clough, William |
| Balfour, Sir Robert (Lanark) | Boyle, Daniel (Mayo, North) | Coates, Major Sir Edward Feetham |
| Banbury, Sir Frederick George | Boyle, William (Norfolk, Mid) | Collins, Godfrey P. (Greenock) |
| Barlow, Sir John Emmott (Somerset) | Brady, Patrick Joseph | Condon, Thomas Joseph |
| Barnston, Harry | Bridgeman, William Clive | Cornwall, Sir Edwin A. |
| Barran, Rowland Hurst (Leeds, N.) | Brunner, John F. L. | Crumley, Patrick |
| Barton, William | Burke, E. Haviland- | Cullinan, John |
| Bathurst, Charles (Wilts, Wilton) | Burn, Colonel C. R. | Davies, David (Montgomery Co.) |
| Davies, Timothy (Lincs., Louth) | Jones, Rt.Hon.Sir D.Brynmor (Swansea) | Phillips, John (Longford, S.) |
| Davies, M. Vaughan-(Cardiganshire) | Jones, H. Haydn (Merioneth) | Primrose, Hon. Neil James |
| Delany, William | Jones, J. Towyn (Carmarthen, East) | Quitter, Sir William Eley C. |
| Denman, Hon. Richard Douglas | Jones, Leif Stratten (Notts, Rushcliffe) | Rea, Rt. Hon. Russell (South Shields) |
| Denison-Pender, J. C. | Jones, William (Carnarvonshire) | Rea, Walter Russell (Scarborough) |
| Denniss, E. R. B. | Joyce, Michael | Reddy, Michael |
| Devlin, Joseph | Keating, Matthew | Redmond, John E. (Waterford) |
| Dewar, Sir J. A. | Kellaway, Frederick George | Redmond, William (Clare, E.) |
| Dickinson, W. H. | Kelly, Edward | Redmond, William Archer (Tyrone, E.) |
| Donelan, Captain A. | Kilbride, Denis | Roberts, Charles H. (Lincoln) |
| Doris, William | King, Joseph | Robertson, Sir G. Scott (Bradford) |
| Duffy, William J. | Lambert, Rt. Hon. G. (Devon, S.Molton) | Robertson, John M. (Tyneside) |
| Duncan, C. (Barrow-in-Furness) | Lambert, Richard (Wilts, Cricklade) | Robinson, Sidney |
| Duncan, J. Hastings (Yorks, Otley) | Lardner, James C. R. | Roch, Walter F. (Pembroke) |
| Duncannon, Viscount | Lawson, Hon. H. (T. H'mts., Mile End) | Rowlands, James |
| Edwards, Sir Francis (Radnor) | Leach, Charles | Samuel, Sir Harry (Norwood) |
| Edwards, John Hugh (Glamorgan, Mid) | Levy, Sir Maurice | Samuel, J. (Stockton-on-Tees) |
| Esmonde, Dr. John (Tipperary, N.) | Lewis, Rt. Hon. John Herbert | Sanders, Rocert Arthur |
| Esmonde, Sir Thomas (Wexford, N.) | Lloyd, George Butler (Shrewsbury) | Sandys, G. J. |
| Essex, Sir Richard Walter | Locker-Lampson, G. (Salisbury) | Scanlan, Thomas |
| Falconer, James | Low, Sir Frederick (Norwich) | Schwann, Rt. Hon. Sir Charles E. |
| Falle, Bertram Godfray | Lundon, Thomas | Scott, A. MacCallum (Glas., Bridgeton) |
| Fell, Arthur | Lynch, A. A. | Seely, Rt. Hon. Colonel J. E. B. |
| Fenwick, Rt. Hon. Charles | Lyttelton, Hon. J. C. (Droitwich) | Sheehy, David |
| Ferens, Rt. Hon. Thomas Robinson | McGhee, Richard | Simon, Rt. Hon. Sir John Allsebrook |
| Fetherstonhaugh, Godfrey | Maclean, Donald | Smith, H. B. Lees (Northampton) |
| Field, William | Macnamara, Rt. Hon. Dr. T. J. | Smyth, Thomas F. (Leitrim, S.) |
| Fisher, Rt. Hon. W. Hayes | MacNeill, J. G. Swift (Donegal, South) | Soames, Arthur Wellesley |
| Fitzgibbon, John | MacVeagh, Jeremiah | Spear, Sir John Ward |
| Fitzroy, Hon. Edward A. | M'Callum, Sir John M. | Spicer, Rt. Hon. Sir Albert |
| Flavin, Michael Joseph | McKenna, Rt. Hon. Reginald | Stanier, Beville |
| Forster, Henry William | Mallaby-Deeley, Harry | Stanley, Hon. G. F. (Preston) |
| Gastrell, Major W. Houghton | Masterman, Rt. Hon. C. F. G. | Staveley-Hill, Henry |
| George, Rt. Hon. D. Lloyd | Meagher, Michael | Steel-Maitland, A. D. |
| Gilmour, Captain J. | Meehan, Francis E. (Leitrim, N.) | Stewart, Gershom |
| Ginnell, Laurence | Meehan, Patrick J. (Queen's Co., Leix) | Strauss, Arthur (Paddington, North) |
| Gladstone, W. G. C | Menzies, Sir Walter | Strauss, Edward A. (Southwark, West) |
| Glanville, H. J. | Mildmay, Francis Bingham | Talbot, Lord Edmund |
| Goldsmith, Frank | Mills, Hon. Charles Thomas | Taylor, Theodore C. (Radcliffe) |
| Goulding, Edward Alfred | Molloy, Michael | Taylor, Thomas (Bolton) |
| Greig, Colonel J. W. | Molteno, Percy Alport | Tennant, Harold John |
| Griffith, Ellis Jones | Money, L. G. Chiozza | Terrell, George (Wilts, N.W.) |
| Guest, Hon. Major C. H. C. (Pembroke) | Montagu, Hon. E. S. | Thomson, W. Mitchell-(Down, North) |
| Guest, Hon. Frederick E. (Dorset, E.) | Mooney, John J. | Thorne, G. R. (Wolverhampton) |
| Gwynn, Stephen Lucius (Galway) | Morgan, George Hay | Toulmin, Sir George |
| Gwynne, R. S. (Sussex, Eastbourne) | Morison, Hector | Trevelyan, Charles Philips |
| Hackett, John | Muldoon, John | Tryon, Captain George Clement |
| Hamersley, Alfred St. George | Munro, Robert | Verney, Sir Harry |
| Harcourt, Rt. Hon. Lewis (Rossendale) | Munro-Ferguson, Rt. Hon. R. C. | Warner, Sir Thomas Courtenay |
| Harcourt, Robert V. (Montrose) | Murray, Captain Hon. Arthur C. | Wason, John Cathcart (Orkney) |
| Harmsworth, Cecil (Luton, Beds) | Newton, Harry Kottingham | Webb, H. |
| Hayden, John Patrick | Nicholson, Sir Charles N. (Doncaster) | Weston, Colonel J. W. |
| Hayward, Evan | Nuttall, Harry | White, J. Dundas (Glasgow, Tradeston) |
| Hazleton, Richard | O'Brien, Patrick (Kilkenny) | White, Sir Luke (Yorks, E.R.) |
| Helme, Sir Norval Watson | O'Connor, John (Kildare, N.) | White, Patrick (Meath, North) |
| Helmsley, Viscount | O'Connor. T. P. (Liverpool) | Whitehouse, John Howard |
| Henderson, Major H. (Berks, Abingdon) | O'Doherty, Philip | Whittaker, Rt. Hon. Sir Thomas P. |
| Henderson, Sir A. (St. Geo., Han. Sq.) | O'Dowd, John | Williams, J. (Glamorgan) |
| Henry, Sir Charles | O'Kelly, James (Roscommon, N.) | Williamson, Sir Archibald |
| Hills, John Waller | O'Malley, William | Wilson, Hon. G. G. (Hull, W.) |
| Hinds, John | O'Shanghnessy, P. J. | Wilson, John (Durham, Mid) |
| Hobhouse, Rt. Hon. Charles E. H. | O'Shee, James John | Wing, Thomas Edward |
| Hodge, John | Palmer, Godfrey Mark | Wood, Rt. Hon. T. McKinnon (Glasgow) |
| Holmes, Daniel Turner | Parker, James (Halifax) | Yate, Colonel C. E. |
| Horne, Charles Silvester (Ipswich) | Parry, Thomas H. | Young, William (Perthshire, East) |
| Horne, E. (Surrey, Guildford) | Pearce, Robert (Staffs, Leek) | Younger, Sir George |
| Horner, Andrew Long | Pearce, William (Limehouse) | Yoxall, Sir James Henry |
| Howard, Hon. Geoffrey | Pease, Herbert Pike (Darlington) | |
| Hughes, Spencer Leigh | Pease, Rt. Hon. Joseph A. (Rotherham) | TELLERS FOR THE NOES.—Mr. Illingworth and Mr. Gulland. |
| Isaacs, Rt. Hon. Sir Rufus | Perkins, Walter F. | |
| Jardine, Ernest (Somerset, E.) | Peto, Basil Edward |
Question, "That the words proposed to be left out stand part of the Clause," put, and agreed to.