Clause 5.—(DEATH PENALTY FOR CERTAIN MURDERS.)

HC Deb 04 December 1956 vol 561 cc1073-198

4.28 p.m.

Mr. R. T. Paget (Northampton)

I beg to move, in page 2, line 40, to leave out paragraph (a).

The effect of this Amendment is to omit the paragraph which provides that any murder done in the course or furtherance of theft shall be a capital murder. The Lord Chief Justice—

Mr. Leslie Hale (Oldham, West)

On a point of order, Sir Charles. Would it be possible for you to tell the Committee what course you intend to take regarding the two or three other Amendments to this subsection? There is a similar Amendment to leave out paragraph (c) and there are three other Amendments on the Notice Paper dealing with paragraph (a). If you could tell the Committee which of these you intend to call, it would enable us to know to which Amendments we should direct our remarks.

The Chairman (Sir Charles MacAndrew)

I propose to call all the Amendments on the first page of the Notice Paper, with the exception of the Amendment in the name of the hon. and learned Member for Northampton (Mr. Paget) in page 2, line 40, to leave out, "the course or."

4.30 p.m.

Mr. Paget

The Lord Chief Justice laid down certain criteria which should be considered when dealing with a provision of this sort: I believe that in the criminal law there are three very desirable principles which we should all strive to attain. The first is simplicity; the second is certainty; and the third is that in its application, so far as possible it should be neither fortuitous nor capricious. I want to examine this proposed revision to show just how strongly it offends any one of these provisions, how complicated and difficult it is, how uncertain it is and how fortuitous and capricious it would certainly be in its application.

It is curious in all its aspects. How a jury is to be directed on this I have very little idea. We have to consider what is meant by the words "in the course," what is involved by "furtherance," and what is meant by "theft." It is curious that the word "theft" should be used. The word which we are accustomed to as a word in law is "larceny." That is the word which the courts, and, indeed, Parliament in the Larceny Act, have defined.

I do not know if I could immediately put the question: is it the intention of the Government by "theft" to mean larceny? Do they intend a difference by a different use of words. It might save time if we could be given an indication upon this right away, because it is immediately curious.

The Chairman

Might I intervene to say that it might be convenient if, with this Amendment, we discussed the one in the name of the hon. Member for Oldham, West (Mr. Hale), in line 40, to leave out "theft" and to insert "burglary or housebreaking."

Mr. Paget

With great respect, I should have thought that that was undesirable. Quite a different set of considerations is involved.

Mr. Hale

The real difficulty is that, in a sense, the two Amendments are diametrically opposed. In the first my hon. and learned Friend, with my support, is trying to say that this should not be done at all, and that it is quite wrong to use the word "theft." It is a complicated subject. If the first Amendment is carried, my Amendment would fall—I should not move it. But if the first Amendment is defeated then I think the line of discussion on the other will be substantially different.

The Chairman

If the arguments are not repeated, it will be all right, but the position is a little difficult.

Mr. Paget

This is a highly technical legal question, but I do not think that it will involve repetition.

As to this question of theft and larceny, I should have thought that, as a matter of drafting and as a matter of simplicity, where in one statute we use one word to mean something, especially in the criminal law, it is desirable to follow where we ourselves have led. I should certainly like an explanation why we suddenly find the word "theft" being inserted in a statute when the word which, because it has been inserted in other statutes, the courts have defined is "larceny." Is there a difference? Is there intended to be a difference?

Mr. Peter Kirk (Gravesend)

Can the hon. and learned Gentleman say something about subsection (5, e), which baffles me if what he is saying is correct?

Mr. Paget

That is the subsection which says: 'theft' includes any offence which involves stealing or is done with intent to steal. That is what I find extremely difficult. What does that mean? I was coming to that point, and I am grateful to the hon. Gentleman.

If we consider the offence of embezzlement, we know that that offence involves the appropriating of something which does not belong to a man but is nonetheless already lawfully in that man's possession. In the Larceny Act, in defining the offence of embezzlement the word "stealing" is not used. Is embezzlement an offence which involves stealing? I do not know.

Mr. Hale

Yet the word "steal" is used in Section 1 of the Larceny Act.

Mr. Paget

This is the sort of problem which I do not think we ought to have save in a very hurriedly drafted Bill, and surely people's lives ought not to depend on hurried drafting.

I suppose that the Attorney-General has considered this point. If he wishes to say whether the words "theft" and "larceny" are intended to mean the same thing or not, I will be most happy to give way to him. Apparently he does not wish to do that.

Let us see what larceny amounts to. I do not know of any legal definition of theft as such, but larceny, which I have always understood to be the equivalent of theft—and I am only surprised that that ordinary word is not used here—certainly has been defined. Section I of the Larceny Act, 1916, says: For the purposes of this Act— (1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof: Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner: (2)(i) the expression 'takes' includes obtaining the possession—

1. (a) by any trick;
2. (b) by intimidation;
3. (c) under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained;
4. (d) by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps;

(ii) the expression 'carries away' includes any removal of anything from the place which it occupies, but in the case of a thing attached, only if it has been completely detached; (iii) the expression 'owner' includes any part owner, or person having possession or control of, or a special property in, anything capable of being stolen: (3) Everything which has value and is the property of any person, and if adhering to the realty then after severance therefrom, shall be capable of being stolen: Surely these are technical wordings and technical considerations and are the complicated basis upon which juries have to be directed in the future.

Let us consider what in the course of … theft means. As I understand it, stealing involves asportation. I think this is in conformity with the definition which I have just read out. Theft does not take place until the thing is taken, and "taken" involves the intention to appropriate, and some physical action involving, if not movement, at least the putting of a hand on the thing. In other words, where the charge is of stealing or larceny—I assume the two of them—there is always a point of time before the stealing and a point of time after the stealing. The stealing takes place in an instant, when the asportation, or the laying of the hand, or the movement, takes place.

If that is so, how can murder be committed in the course of the stealing? The stealing, being an operation in an instant of time, has no course. That is the way in which stealing and theft differ from murder. We can say that murder takes place over a time. There is the blow and then there is the death, and the period between them may be said to be "in course of the murder." In the case of stealing, I should have thought that any other event would take place either before or after the stealing. Nothing can be more technical than the act of carrying away or asportation. Let me read from Archibold's "Criminal Pleadings, Evidence and Practice," the thirty-third edition, page 563: Asportation or carrying away. In order to constitute larceny there must not only be a taking but also an asportation or carrying away. Then it goes on to a reference to Hale on the Larceny Act. Just to see how technical this sort of definition can be, let me cite this instance. A prisoner in King v. Taylor put his hand into the prosecutor's pocket, seized his purse, drew it to the edge of the pocket, but failed to draw it out. The prosecutor grasped the purse and replaced it. It was held that there was sufficient evidence of asportation to support a charge of larceny. If death had occurred in the struggle in that case, it would have been murder. On the other hand, if the purse had not been moved in the pocket the death would not have been murder because the purse would not have been carried away, there would not have been an asportation, and it would not have been in the course … of theft. On the other side of this somewhat tenuous line one looks at the case of King v. Pointer. There, the prisoner merely set a package on edge in the place where it lay with the purpose of cutting open the side of it to get at the contents, but he was detected before he had accomplished his purpose. The judges held that that was not sufficient asportation to amount to theft.

In these cases one would be deciding whether a man should suffer death according to whether the hand in the pocket had moved the contents thereof or the knife-hand which was to cut the package to get it open had moved the article. If it had moved the article, that was asportation and therefore murder had been carried out; if it had not moved the article, murder had not been carried out. Do we really wish to make death depend upon technicalities of this sort?

4.45 p.m.

The Larceny Act, Section 17, states: Every person who— (1) being a clerk or servant or person employed in the capacity of a clerk or servant— (a) steals any chattel, money or valuable security belonging to or in the possession or power of his master or employer"— commits the offence of embezzlement. The Bill says "in the process of". How embezzlement could be a process I do not know. A person appropriates some of the property of his master; this is embezzlement. He kills. According to Clause 5 (5, e) Theft includes any offence which involves stealing or is done with intent to steal. We have to go into these highly technical questions to say when there is embezzlement or when there is merely fraudulent appropriation? The difference is very hard to discover. What could be more capricious than this sort of division between what shall be a capital offence and what shall not? Any question of violence is out, because in the overwhelming majority of cases theft involves no kind of violence. In the old days there was the doctrine of constructive malice. There still is, but it has been universally repudiated and was in the process of being repudiated before the Bill was introduced. Constructive malice, in one of its senses at any rate, was killing in the course of committing a felony. Even this was too much for the courts because they have progressively ruled, and have so directed juries, that they ought not to reach a verdict of murder unless the felony was of such a nature as to be intrinsically likely to endanger life.

Here we are introducing as the condition of a capital sentence a consideration as to felony which nobody for a moment suggests in the vast majority of cases is either violent or in the least calculated to have anything to do with endangering life. Why not make that the test?

Later, my hon. Friend the Member for Oldham, West (Mr. Hale), will be moving an Amendment which would confine this to robbery with violence, a particular branch of theft which habitually involves—if even, perhaps, in the most technical sense—some sort of violence, but here we are introducing a test which involves no question of violence whatever. It is precisely the thing which the courts had already rejected as too technical for being a test of living or dying, the Tightness of that being recognised and included in this Bill in three Clauses which seek to abolish the doctrine of constructive malice. A more technical example of constructive malice than this provision I should have thought it difficult to imagine.

I wish to refer to what some eminent judges have said about this sort of provision. I have already referred to what Lord Goddard said. Clearly this Clause, as so many Clauses in this Bill, cuts clean against the three principles he enunciated. There are other passages I wish to quote. There is Lord Simonds, a Conservative Lord Chancellor. I think it relevant to hear the objections he made. He said: I do not propose to follow the Lord Chief Justice and others in regard to the impracticability of this clause in real life, however lovely it may appear on paper, partly because it is a weariness to count the holes in a sieve but also because I would approach it for a moment from a wider angle. For forty years and more, at the Bar, on the Bench and as a member of your Lordships' House, the law of England has been my mistress. I think I have learnt one thing. It is this. We boast that we live under the rule of law. That is a majestic conception. I think that we should often have a difficulty in translating it into words, but it means something to us. I think it means a great deal; but it will mean nothing to us unless it is attended by the respect of the people of this country for the law. There will be no respect for the law unless there is a knowledge of the law by the people, and unless the moral judgment of the people marches with the law. Now heaven knows, the law is not simple but, where grave moral issues are raised, it is, I think, of the first importance that it should be as simple as it can be made. I would echo every word that the Lord Chief Justice said upon that subject. The law is not simple—the complexities of human life, the devious and sometimes"—

The Temporary Chairman (Sir Norman Hulbert)

The hon. and learned Member may be quoting from a learned judgment, but it seems rather removed from the question of theft.

Mr. Paget

If you will be a little more patient, Sir Norman, you will find that it is precisely with the question of theft that Lord Simonds was dealing. His Lordship continued: Even in murder itself some difficult questions may arise. Recently, I was a member of your Lordships' House when, on appeal, we considered the question how far the crime of murder may be reduced to manslaughter by provocation. And even those words which have for six hundred years and more been part of the charge of murder, the words 'malice aforethought,' have from time to time received a varying interpretation to satisfy the changing conditions and the changing conscience of the people. But, with all that, there is deeply implanted in the minds of the people the knowledge that the penalty for murder is death; …

The Temporary Chairman

Order. I am doing my best to be patient with the hon. and learned Member, but we are really not getting any nearer to this Amendment.

Mr. Paget

With great respect, Sir Norman, I think the criticism should be directed rather to the learned judge than to me. He was contrasting the law of murder which already carries certain complexities with what the law of murder would be like if we involved in it the question of theft. That is precisely what he was saying. The noble Lord said: … implanted in the minds of people the knowledge that the penalty for murder is death; and with that wide knowledge there goes a general solemn approval. There you have, as I venture to think, the outward and visible signs of a free and living democracy, where the law is respected and understood of the people. What will you substitute for that knowledge? Then the noble Lord said: You will substitute ignorance. For that simple knowledge you will substitute a clause with five subsections, and the first subsection has five paragraphs. There is also a Schedule, and the Schedule has two Parts and eleven paragraphs. It is nonsense to say that can be understood and approved of the people. For something that is widely known by every man, woman and child, you will have something that is understood by nobody and approved by a few—and those few who do not understand it. My Lords, to what end is this clause introduced? … The noble Lord went on to say: I feel deeply that it is not fitting that human judgment, except under the awful compulsion of war, should send a human being to death. I feel that is wrong. But do I salve my conscience by saying that a murderer who commits his murderous act to the accompaniment of Section 23 of the Larceny Act is to go to his doom, but that one who does it to the accompaniment of Section 24 is not?"—[OFFICIAL REPORT, House of Lords, 20th July, 1948; Vol. 157, c. 1042.] According to this, that is how this Bill would read, and what we are deciding now would mean that I would salve my conscience by saying that the murderer who does his act to the accompaniment of Section 1 shall go to his doom, while the murderer who does his act to the accompaniment of Section 17 shall not. That is what it amounts to. With very great respect, this in my submission is a passage which puts in far more learned and better language than I could precisely the issue raised by this Clause.

I do not want to weary the Committee with too many quotations, but Lord Roche, another very distinguished judge, also dealt with this same problem of great difficulty and pointed out what nonsense this means by saying: First, the argument of selective deterrency, so to speak, of classes of people hopelessly breaks down. Viscount, Lord Samuel, has analysed that matter in sufficient detail, and so have other noble Lords. Really the root of the whole fallacy of the matter is this. In considering the deterrency of punishment it is impossible to argue from any specific case, or even for any specific class of persons. You must argue from what would be the effect on the mass of mankind—by which, of course, I mean the mass of mankind who are subject to these temptations and given to these tendencies."—[OFFICIAL REPORT, House of Lords, 20th July, 1948; Vol. 157, c. 1049.] He went on to say that to argue that there will be a deterrency for one type of homicide but not for another is to throw away the whole case for deterrency upon which this is based. That is the argument dealt with here.

5.0 p.m.

The proposal that murder shall be a capital offence if it is done in the course of theft throws away any moral justification for the Bill. Nobody in his wildest dreams would suggest that there was anything morally more evil in a murder which takes place in the course of theft than in a murder which takes place in the course of lust. But the Government have never made any moral claim for the Bill. They have based it upon expediency. I would say, however, that it breaks down on the question of expediency, because if it is the purpose to protect law and order—which was the way it was somewhat oddly put—we are nevertheless here introducing a condition which has nothing whatever to do with violence. We are introducing a test which makes the line between capital and not-capital offences a line involving no question of violence. We are, in fact, sacrificing the whole principle of simplicity. There is a general broad conception as to what murder means, but by these provisions we are raising highly technical definitions as to what "theft" means and as to what "in the course of" means in a crime which, according to definition at any rate, takes place in a particular instant of time. We are further introducing the difficult conception of what "in furtherance" means.

Here, again, I should like to ask some questions. Could I be "in furtherance" or, indeed, "in the course of" something which has already happened? If I enter a shop and put my hand in the till and move the money in the till so as to amount to asportation and then the shopkeeper comes and I kill him, is that in furtherance of theft? How can it be in furtherance of that which has already happened?

Mr. Hale

Hear, hear. That is the point.

Mr. Paget

Equally, is it "in the course of" theft? How can it be in the course of something which has already happened? Is the test going to be whether I bash the shopkeeper before I put my hand into the till or afterwards? Since murder may have an element of continuity about it and be conceived as enduring from the time I hit him to the time he dies, is it to be the case that the theft must be between those two offences?

The sheer complexity of this—in the words of the Lord Chief Justice, "its application, fortuitous, capricious, technical"—provides every conceivable reason that this proposal at least should be rejected in any attempt to define that which is capital.

Mr. Hale

I think my hon. and learned Friend the Member for Northampton (Mr. Paget) has called attention to a matter of real importance and one of great difficulty. It is one on which I hope we shall have the sympathetic attention of Her Majesty's Ministers.

We are living in a complicated age, and some of these problems have occupied the courts on a great many occasions and at great length. The old common law about theft, as it was then known, was stated with singular clarity and admirable succinctness by the prisoner who endorsed his famous couplet on the wall of Newgate, He that prigs what isn't his'n, When he's cotched 'll go to prison. Over the years it was found that, admirable as that couplet was in expressing, as it did, a fair summary of a complex matter of law, it required a little further adumbration and some greater elucidation; and so, as my hon. and learned Friend has said, the Larceny Act, 1916, which is often pointed to as something of a model of drafting, was passed in order to state perfectly clearly what was meant by the term "larceny". The word "theft" ceased to be a word of art in law, and larceny became the test.

Section 1 of the Larceny Act, 1916, as my hon. and learned Friend said, states that A person steals who without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof. I am glad to see the Attorney-General present and I hope that he will from time to time nod his head in confirmation, if he agrees with me.

Each and every part of that long definition, that important definition, has been the subject of careful judicial interpretation. My hon. and learned Friend has dealt with the question of asportation. What of the words "without the consent of the owner"? There are a whole mass of cases on what is the consent of the true owner, running in later cases to questions of larceny by bailee and a whole mass of difficult decisions on how far a person may have acted thinking, at least, that he had the consent of the true owner. Indeed, a great many of the car stealing cases have raised that point and the question to what extent are general implied authorities contravened by specific acts.

What of the phrase fraudulently and without a claim of right made in good faith"? This is somewhat similar and often arises in the case of a man taking the law into his own hands, to use the common parlance; the man who feels that he has the right to something and takes it away. I will not introduce the question of the Coronation Stone into this matter—

Mr. Paget

There is the other difficulty in the cases—the intention permanently to deprive.

Mr. Hale

Certainly.

Mr. Paget

That, again, involves the special statutory offence dealing with borrowing cars. Does that come within the definition of stealing if it involves using petrol?

Mr. Hale

What was done before the creation of the statutory offence of borrowing was to charge a man with stealing petrol. I have not the slightest doubt that the Chancellor of the Exchequer, in consultation with the Attorney-General, will move an Amendment at a later stage to make stealing petrol a capital offence in any case, as a temporary measure during the current emergency. Perhaps that would take me too far from the limited purview of the Clause which we are discussing.

The next phrase is without a claim of right made in good faith, takes and carries away Here we come to the whole register of murder cases. As my hon. and learned Friend said, it has been judicially interpreted that "takes and carries away" does not mean "takes and carries away". It may mean any action—virtually any action—in relation to an article which is part of a plan to steal. If I want to steal a bottle of arsenic from a chemist's shop, the mere moving it from one shelf to another in order that it will be handier to get over the counter when the chemist is not looking can be tortious asportation sufficient to satisfy the section.

Notice taken that 40 Members were not present;

House counted, and, 40 Members being present—

5.15 p.m.

Mr. Hale

I am much obliged to my hon. Friend the Member for St. Pancras, North (Mr. K. Robinson) for endeavouring to get me an audience—but I observe that those hon. Members are so little interested in the discussion that, having arrived to satisfy the rules of the House they have now departed to satisfy some other aspiration—I know not what.

We were talking about tortious asportation, and the phrase: takes and carries away anything capable of being stolen. What is capable of being stolen? Here I shall have to deal with the two parts of the Clause together. In the old days of learning our mnemonics for examination purposes we were told that almost everything was capable of being stolen, with the exception—if I remember rightly—of the soil of the earth, human corpses, animals ferae naturae, things abandoned, and running water. I hope that I have the list correctly.

We had to learn a series of complicated lists, including the definition of game, which comes into ferae naturae, and which is: hares, pheasants, partridges, grouse, heath or moor grouse, black grouse and bustards. Then there was the list of peers of the realm who would deal with this matter in another place, which is: Dukes, marquesses, earls, viscounts and barons. I think that is about the limit of my legal knowledge, in that direction.

What is capable of being stolen, in this connection? It really is not good enough to introduce a term which is not a term of art, but a term which may cover anything. This is a very serious point. If I commit a murder of the old "bungalow crime" type and bury the corpse, have I committed a tortious asportation of the clothing? I cannot steal a human corpse, under the Larceny Act; it is one of the things excepted from the crime of stealing. But I can steal the clothing of the victim. If I bury his clothing in an allotment, is that a tortious asporation, or theft, which makes a perfectly ordinary killing a capital murder?

Let us take the obvious, clear and simple type of murder, such as that in the Merrett case, which was a dreadful case of matricide. The man concerned was acquitted, though very few people doubt his guilt. If, without planning, there is such a killing in a dwelling house, there comes the necessity for covering it up. In that case there was a letter from the bank which virtually called attention to a fraud committed by Merrett. In such a case, if the killer takes that away, is it larceny which is part of the crime, or in course of the crime or in furtherance of the crime? If there are in the building certain things of an incriminating nature and the killer takes them away purely in order to cover up his crime, does that make a capital offence of that which would otherwise not be a capital offence?

This is a ridiculous attempt to alter the law. The Government are altering it by putting in an offence which most of us now think can be of a very trivial nature. I think it was Lord Camden who told us that he who steals a goose from off the common is guilty of larceny, but not the man who steals the common from the goose. That has been true throughout our history. Here we are saying that the woman who steals a loaf of bread from a baker's shop and, when the little errand boy runs out and sees her in the process of doing so, in fear of detection covers up his mouth with her hand and thereby kills him, has committed capital murder, while the man who forges £10 million worth of bonds and then kills the accountant deliberately to try to cover up his crime because the accountant has knowledge of it, is not guilty of capital murder. It is absurd.

When my hon. and learned Friend began his most interesting speech he invited the Attorney-General or the Home Secretary to explain the point at once, and offered to give way. Why do we use the word "theft", which is not known to law, when we have a word "stealing" which is defined, or "larceny" which constitutes an offence? Is there some subtle meaning behind it, or is it merely a slip? Is it intended to cover something which larceny does not cover?

I can well understand the reluctance of Ministers to speak in the situation in which they now find themselves. They have probably taken a vow of silence for as long as possible, because every statement made by them in the last 48 hours has been one of unmitigated disaster, and I can understand that they are not anxious to talk. But we are in Committee, discussing a matter of gravity, which is highly complex and technical, and if they had the courtesy to explain the position we could limit the discussion upon this matter, which they regard as very important. After all, we have been asked, by vote, to suspend the rule tonight so that we can discuss the matter for some considerable time. We do not know what our fate is to be during the next three days. We have suspended the rule to discuss this question today; we have been told that tomorrow night we shall be discussing new financial measures, after discussing the Middle East, and the night after that there will be the Report stage of the Bill relating to petrol tax if the Committee stage is concluded. What will be the result to other hon. Members who suffer from overstrain I do not know; I hope that their treatment will be as generous as it has been to the original victim.

It would be improper for me now to refer to a later Amendment, but the word "theft" does not include the things which the Government seem to wish it to include. It does not even include housebreaking, unless it can be proved that the housebreaking was for a special felony. We can have a case of housebreaking which does not involve theft; it may be carried out for another purpose. My hon. and learned Friend very properly asked whether it included embezzlement. Does it? There are some extremely complex provisions in the Larceny Act which try to deal with this very complex matter and which provide in certain circumstances that indictment for one can result in conviction for another, and which lay down with clarity the way in which these indictments shall be framed. They give definitions which are intended, as far as possible, to avoid any misapprehension in the mind of the Clerk of the Indictments as to what offence shall be charged in separate connections.

This is too serious a matter upon which to waste any time in conjuring up imaginary or unlikely cases, but my argument concerns the very ordinary case of murder. It may be that the purist would say that there is no ordinary case of murder, and that I concede at once, whether it is done individually, or by means of armed conflict. But once it is done, some rules have to apply, and in almost every case of murder done deliberately there is a taking away of something.

Let us suppose that in a struggle which no one witnessed—which is the most common case of all—I seized a weapon from a man and shot him and took away that revolver which I had seized. Would that be theft? Of course, it is a theft. There can be no argument as to whether it is a larceny.

Mr. Paget

My hon. Friend raised the question of embezzlement and said it was difficult to get an answer. It is defined in Section 17 of the Larceny Act, 1916, as follows: Every person who (1) being a clerk or servant or person employed in the capacity of a clerk or servant (a) steals any chattel, money or valuable security belonging to or in the possession or power of his master or employer; or (b) fraudulently embezzles the whole or any part of any chattel, money or valuable security … There is one offence of embezzlement which may or may not be dependent on whether "steal" comes within that definition. It is incredibly odd.

Mr. Hale

It is not incredibly odd. It is incredibly foolish. Some of us are opposed in toto to capital punishment, and want to see capital punishment abolished without any exception, reservation, or qualification I am rather in favour of the Commandments. I am against killing at all. I am aware that it is an old-fashioned attitude to adopt in this House at the moment, and in the difficult circumstances with which we are confronted, but I am against killing. It is at the same time rather a simple position to adopt.

Those of us who are against capital punishment might welcome the sort of fiasco which is going to result in such a situation in the courts that justice in these cases cannot be safely administered. It is going to mean leaving to the jury a whole series of questions by the judge. Nowhere is it suggested at what stage in the proceedings those questions will be left. It is perfectly implicit in the Clause that it will be left to the jury at one and the same time as part of a collective question, and the jury will be asked to return a verdict on that. That is as I understand it; or is this another case in which, first of all, they return a verdict of murder and then have to consider whether it is capital murder? So far as I know—and I am only too anxious to be corrected if I am wrong—there is no provision which makes that clear.

Then we have the words of the Larceny Act, 1916, which are perhaps most difficult to interpret— … with intent … permanently to deprive the owner thereof. I do not know whether one permanently deprives an owner if one has just killed him. Presumably one would be charged with having robbed those administrators, executors or beneficiaries or heirs at law who became technically entitled to the property on the death of the owner, though one would then have the difficulty of determining whether death had occurred before or after the taking. There are many cases when a murdered person has lingered on sometimes for hours and sometimes for days, and sometimes for what used to be the limit of twelve months and a day, and I believe still is the limit.

One would have thought that we should have had some explanation before now. There are all sorts of forms of stealing. What about stealing by finding? Suppose that I, an innocent man, who have never done anything criminal, were to find something of extreme value, and that at that moment a man with no claim to it were to try to take it from me. If I were to kill him in the struggle, would that be a capital offence committed by myself who had never planned the crime but who was merely attracted at the moment by the sight of some valuable jewel which some careless woman had dropped, or perhaps which some robber had dropped on the pavement as I was walking along? Is that "in the course of"? Is that "in furtherance of"?

I am bound to say that I disagree with my hon. and learned Friend the Member for Northampton on this point, although the fact that people disagree about these things is some indication of the complexity. I think it would be "in furtherance of" stealing by finding to kill the man who was trying to take the article from me.

Mr. Paget

I would quite agree. The only difficulty, so far as I can see, is this: If my hon. Friend had already asported it by touching it and had completed the theft before killing the man, would it be in furtherance of something which had already happened?

Mr. Hale

I think the doubt about it is so great that the necessity for clarification is all the greater. Then we ought to come back to the consideration of why it was necessary in 1916 to make this careful definition of larceny. It was because a more complex situation was arising and there were many ways in which ownership was more difficult to establish and define.

One of the exceptions in the law of theft is animals ferae naturae—animals fierce by nature, not normally domesti- cated, as to which ownership is a much more difficult thing to define. If I have a shoot and I breed my own pheasants, at what stage do they cease to be domesticated pheasants and become wild pheasants? It is always a very difficult matter to decide. To what extent was poaching a theft? To what extent is poaching now a theft? The law decided that one should deal with poaching as a separate crime. Therefore, we got stealing as one thing and poaching as another, with different statutes.

If, however, we are going to use a term which is not a term of art, is it not arguable that in the case of the man who goes shooting at night and who carries way some goods belonging to the owner—not animals ferae naturae—there is an exception? If we are creating a new law, does the old law relating to animals ferae naturae still obtain? We do not know. There has been very little legal decision on what is an animal ferae naturae. Like politicians, some animals can be fierce at one time—

The Temporary Chairman

Order. When the occupant of the Chair is not a lawyer he is at some disadvantage in a debate of this nature. I must ask the hon. Member to try to keep his argument related to theft and murder. He is straying to poaching and all sorts of other things.

Mr. Hale

I apologise, Sir Norman. Perhaps I have been putting it too briefly. There is no question whatever—and every lawyer in the House will confirm—that there are certain things which can be stolen and certain things which cannot be stolen, even if they are owned by the same person.

The Temporary Chairman

That may or may not be so. I am not arguing with the hon. Gentleman. This is a fairly clear Amendment dealing with murder in the course of theft. It does not deal with the question whether things can be stolen or not.

Mr. Hale

But it is an Amendment which deals with the question whether it is right for this House to decide that we should hang a man who has committed a theft in the course of or in furtherance of a murder. [HON. MEMBERS: "The other way round."] Perhaps I should say, a man who has committed a murder in the course of or in furtherance of a theft; though I am not sure that it is the other way round. What is "in furtherance of"? If my first object is to murder and my second object is theft to cover up the murder, was that in furtherance or not?

The limited point to which I was directing my mind—a point of great complexity and technical importance—is the meaning of the word "theft" and whether it means larceny. Larceny has been carefully and statutorily defined in Section 1 of the Larceny Act and has been the subject of a whole series of decisions. We know what can be stolen and what cannot be stolen. There are some difficult exceptions about electric current and so on, which have been the subject of special decisions and regulations, but we do know that one cannot commit a larceny of animals ferae naturae. What we do not know is whether one can commit a theft of animals ferae naturae. It is fair that I should say that with the object of shortening this discussion, time after time we have asked the Attorney-General or the Home Secretary to say whether there is going to be a definition which will be clearer.

5.30 p.m.

Dr. Barnett Stross (Stoke-on-Trent, Central)

I wonder whether my hon. Friend could help me. May I put this example? I take my watch to a jeweller to be repaired. When I go for it, he tells me I never brought it. In fact he has misappropriated it, perhaps sold it. There is then a quarrel, in the process of which I am killed, not because he intended my death but because I die in the struggle. Is he guilty of theft, and therefore of capital murder?

Mr. Hale

He may be. Who knows on these words? These are not fanciful cases which we are putting; they are quite ordinary cases. If one went through the list of murders committed over the last 20 years, there would be scarcely one about which there could not be an argument like this.

One of the very great difficulties which we must deal with is this. What happens to the jury in these cases, if the Clause stands? Let me take, as a perfectly fair example, the case put by my hon. Friend the Member for Stoke-on-Trent, Central (Dr. Stross). He is going to recover some property which he believes belongs to him. He claims that he has deposited a watch. He is not attended by the man with whom he deposited the watch, but by another assistant at the shop. That assistant claims my hon. Friend never deposited the watch at all. There is something of a struggle and, lamentably for the country, my hon. Friend crosses to that "undiscovered country, from whose bourn no traveller returns," but where I am quite sure he will receive a much more welcome reception than many.

What is the question for the jury? They have to decide, first of all, that there has been a vacancy declared in my hon. Friend's constituency, and he is dead; secondly, that he was killed by the man in the shop; thirdly, that he was killed with malice aforethought. Fourthly, they are called upon to consider at very great length whether there was some provocation by my hon. Friend or such initiation of the attack—[An HON. MEMBER: "That would be unlikely."] It would be unlikely, but the jury will not know my hon. Friend, and at this time he will be buried. Indeed, I think it would be difficult to give evidence on the point, though I am not sure.

The jury must decide whether it is manslaughter or murder. It is a very serious and difficult question. Then the judge must say to the jury that there are other matters of some complexity for their determination. He will tell them they will have to decide whether the deceased person did deposit the watch in the shop, and whether he had a claim to this watch. They will have to decide whether the prisoner at the bar knew the deceased person had deposited a watch at the shop or whether he was under a genuine misunderstanding about it, and a defective record had been made by some other employee.

The judge will tell them they will then have to decide whether the prisoner intended to deprive the deceased of his watch. They will have to determine whether the property in the watch could ever have passed to the prisoner at the bar in view of the fact that he was only an assistant in the shop or whether ownership would pass to the employer. They will then have to consider whether, in all the circumstances, the offence would be theft.

The judge will then have to tell the jury that he has no material on which to direct them as to what is theft, because what was well understood to be larceny in the past is now side-tracked by the terms of this Clause. But no doubt he will say: "In my view, you ought to have regard to the terms of the Larceny Act and find out whether the prisoner at the bar thought he had a claim to the watch or whether he knew there was a watch in existence at all. You must consider whether the prisoner at the bar was trying to get it from his employer, and deprive the murdered man of it, or whether the prisoner was merely making use of some subterfuge by way of reply, or what was in his mind."

All those facts have to go to the jury, apparently, in one colossal hotch-potch. The jury will be asked to give a verdict, as the famous Chancellor of the Exchequer, Francis Dashwood, said, "taking it all, rough as it runs" shall this man be hanged, go to prison for life, be convicted of manslaughter, or be acquitted? That is the state to which it is intended to bring the criminal courts of a country which has for centuries boasted, with some considerable degree of truth, that its criminal procedure is the admiration, respect and envy of other nations.

I cannot think that the Government really believe in this. I sometimes wonder—I should be grateful if the right hon. and gallant Gentleman the Home Secretary would sometimes "come clean" on this—whether it is another example of what happens upstairs, whether it is not the fact that a hotchpotch Bill has been brought forward to satisfy some of the more extreme Tories which it is really not intended seriously to enforce.

If the right hon. and gallant Gentleman the Home Secretary really intends this to go through, he will face two very real difficulties. The first—

The Deputy-Chairman (Sir Gordon Touche)

I am afraid the hon. Gentleman is going very far from this Amendment, which is a limited one.

Mr. Hale

I was just discussing what would happen if we passed the Clause unamended, which is precisely what we are considering. I was proposing to say that if we pass it, we must then have regard to the fact that it has to go to another place. My hon. and learned Friend the Member for Northampton has told us what was thought in another place of this proposal some six or seven years ago, and we have no reason to think there has been any variation in the views then expressed or that what any of the noble and learned Lords, most of them judges of great eminence to whose opinions great weight is attached, said about this is likely to be different now.

The Deputy-Chairman

I am afraid we cannot anticipate what the other place may do.

Mr. Hale

I agree, Sir Gordon; we have never been able to anticipate what another place may do over the years, except that we realise it will be something unexpected.

I am only suggesting to the Home Secretary that, before he asks us to vote, he might at least read through what was said in another place some years ago, when we do know what was said, and consider whether, in all the circumstances, it is wise to invite the Committee to pass a Clause which has been censured already by almost every judge who has spoken upon it and which will place the criminal courts in very great difficulty, introducing a wholly unnecessary and unwarrantable element of uncertainty into our criminal procedure, and which, so far as I can anticipate the final result, will in the end remain a somewhat undesirable but rather nugatory provision.

The Attorney-General (Sir Reginald Manningham-Buller)

I wish to reply now to what has been said by the hon. and learned Member for Northampton (Mr. Paget) and the hon. Member for Oldham, West (Mr. Hale) in support of what has been described as this narrow Amendment which, indeed, has a very narrow and limited ambit.

I do not think it advances the debate on this Amendment to refer to the speeches made in the course of the debate in 1948 on a provision in terms very different from those of this Clause, and therefore I do not propose to refer to the passages cited by the hon. and learned Member for Northampton from that debate or, indeed, to the observations made by the hon. Member for Oldham, West upon that debate. This Clause is a different Clause. While it is true that it does not seek to base the line drawn on the heinousness of the offence, still the line drawn is one which, in my opinion, is justifiable and right, and, indeed, desirable.

The criticisms made of sub-paragraph (a) by the hon. and learned Member for Northampton have not really been directed to the substance of the proposals but have been of a very technical character. It is because of the technical points that he raised that I will seek to reply to him upon them. First, I would point out to the hon. and learned Member that one must read Clause 5 (1, a) in conjunction with Clause 5 (5, e), where the word "theft" is defined as including any offence which involves stealing or is done with intent to steal. "Stealing" is defined in the Larceny Act. Therefore, within the ambit of subsection (1, a) is brought any murder done in the course or furtherance of stealing or any offence done with intent to steal. That, of course, brings within the ambit of subsection (1, a) murders done in the course of housebreaking, in the course of burglary and in the course of furtherance of robbery. I do not believe that in practice the courts will experience any difficulty in operating these provisions.

Mr. Hale

Will the right hon. and learned Gentleman give way?

The Attorney-General

I never interrupted the hon. Member. He invited me to do so several times. I would prefer to put my argument forward in answer to him and then he can consider whether he has any points to raise.

Mr. Hale

The right hon. and learned Gentleman says that it is brought "within the ambit." What else is brought in? The point is not whether the Larceny Act is brought in. Why use this word unless something else is being brought in?

The Attorney-General

I was trying to indicate what was brought in.

"Theft" is a perfectly ordinary English word the meaning of which is well understood. I was indicating that the definition included in subsection (5, e), any offence which involves stealing or is done with intent to steal", brings within the ambit of subsection (1, a) any murder done in the course of or furtherance of housebreaking or burglary or, indeed, any other offence of which an essential ingredient is the intent to steal, such as robbery.

I would follow on by saying—

Mr. Paget

Of course, neither with housebreaking nor with burglary is an intent to steal a necessary ingredient.

Mr. Hale

The housebreaking might be done with intent to violate a woman.

The Attorney-General

If it is housebreaking with intent to violate a woman, it would not come within Clause 5 (1, a) because it would not be housebreaking with intent to steal. I should have thought that that would be obvious to the hon. and learned Member. [Interruption.] I have not sat on a jury and the hon. Member for Oldham, West may not have done so, as far as I am aware, but I do not believe that a jury will find any difficulty in determining the question of fact whether a murder which has been committed was done in the course or furtherance of a robbery or of housebreaking or of burglary. I do not believe that practically any difficulty will be experienced.

I am not seeking to put forward the broad arguments for justifying the insertion of this provision—they were touched on during the Second Reading; namely, the importance of retaining this deterrent to prevent those who habitually resort to crime from in future resorting to violence as well as the crimes of burglary, robbery and things of that sort.

The hon. and learned Member for Northampton made great play about the words in the course or furtherance of". He asked whether that would apply after the crime—the theft, the stealing or the burglary—was complete. The answer to the hon. and learned Member, and I am sure he will accept it, is that those words obviously would not cover a period after the crime in question had been completed. A murder done after theft had been effected would not be said to be in the course or furtherance of theft", the stealing having been completed. If, however, the murder was done in the course of avoiding arrest or escaping from arrest, it would come within subsection (1, c), which we shall later be discussing.

I submit that it is desirable to have both the phrase "in the course of" as well as the words "or furtherance of" in this line of the Bill, although the words "in the course of" and "or furtherance of" cover to some extent the same area, to eliminate the possibility of an accused person saying, "I admit it was in the course of the commission of the ulterior object but it was not in furtherance of it and, therefore, I cannot be brought within Clause (1, a)" or vice versa. It is to eliminate that possibility that those words are there inserted.

5.45 p.m.

The fears expressed by the hon. and learned Member and by the hon. Member for Oldham, West are really rather far-fetched. The questions of fact will be for the consideration of the jury, subject, of course, to the direction of the learned judge. It is only if the jury is satisfied that the murder was done in circumstances which brings it within subsection (1, a) that the jury, when properly directed by the judge, would be entitled to bring in a verdict of guilty on the capital charge. If the jury is not satisfied of those matters—as the hon. Member for Oldham, West will see from paragraph 1 (1) of the First Schedule, if the jury is satisfied that the accused is guilty of murder but not murder done in the course or furtherance of one of these offences—it would be entitled to find him guilty simply of murder.

I have listened to the argument on the drafting, on the alleged technicalities and on the extracts from the speeches on the 1948 Bill which, of course, was a different Measure. I submit with confidence that these technicalities which have been raised are without much foundation and that this provision will not be found to be extremely awkward to operate in practice, and, indeed, that this provision is very important as a deterrent against the use of violence by criminals in the commission of crimes such as burglary, housebreaking and robbery.

Several Hon. Members rose—

The Deputy-Chairman (Sir Gordon Touche)

I hope that the Committee is now ready to come to a decision.

Mr. Michael Stewart (Fulham)

You ventured to express the hope, Sir Gordon, that the Committee was ready to come to a decision, but we have only heard the Amendment moved by my hon. and learned Friend the Member for Northampton (Mr. Paget) and seconded by my hon. Friend the Member for Oldham, West (Mr. Hale) and now that, for the first time, those of us who are laymen have an opportunity of considering the view of the Law Officer of the Crown on this matter, it is natural that we should want to put one or two further questions which the right hon. and learned Gentleman's speech has not entirely cleared up.

I agree that I, at least, found the Attorney-General helpful on the definition of the words "theft" and "stealing". He rightly directed our attention to that part of the Clause which says that an offence is theft if it involves stealing. Following my two hon. Friends, I was able to get a reasonable idea of how the law defines "stealing", but I was not clear from the speeches of my hon. Friends, nor did the Attorney-General's answer deal with the point, concerning offences which a layman would certainly regard as involving stealing in the ordinary sense of the word but in regard to which we do not know whether they involve stealing in the legal sense of the word—offences which involve getting hold of money or property which one has no business to possess—where it is done by various fraudulent means.

If by forging a document or by embezzlement I get hold of property that does not belong to me, have I, in the eyes of the law, stolen it? I have undoubtedly committed an offence—from a layman's point of view, I have done something wrong—but it would be a help to those of us who are not lawyers if we could know whether in law that is stealing and, therefore, whether we would have committed theft in the terms of the Clause and whether it would be capital murder if the murder were committed in furtherance of an offence of that kind. I trust that the Government will explain this point at a later stage of our discussion of the Clause.

Another difficulty which we have is about the words "in furtherance of." I understood the learned Attorney-General to say that the act could not be committed in furtherance of theft if it were committed after the theft had been completed. Suppose I have completed a theft, which, I understand from my hon. and learned Friend, and my hon. Friend, means that I have removed an article and presumably have finished removing the article, at any rate for the time being. Suppose that then somebody turns up to see me, wherever I am, and says, "I saw you. I know you committed that theft." Suppose that I decide that, rather than be brought to justice for my theft, I will make away with him. If I understand the Attorney-General aright, I have not committed that killing in the furtherance of the theft, and, therefore, it is not capital.

Let us take the two propositions, the one that I am right about that, and the other that I am wrong about it. If I am right about it we have this very curious position. I am running away from the scene of my theft, with the stolen article under my arm, and somebody tries to stop me, and I determine, to prevent him from stopping me, to kill him, and I do kill him. That is undoubtedly capital murder done in furtherance of the theft. If, however, I kill him in the circumstances I described previously, because he comes to me afterwards and says, "I saw you do it, I am going to inform the law," then, apparently, that is not a capital crime. If I am right about that then it seems to me to be a most unjust and improper distinction between two kinds of murder.

Mr. Hale

Perhaps this supposition may clear up the situation. I enter upon premises with the intention of committing a theft. In the first room I go into there is a man whom I hit on the head with a bludgeon. In the next room I find some money. In the third room I find another man, and hit him on the head with a bludgeon. One of the two men dies. It will depend upon in which room that happens whether it is a capital crime or not.

Mr. Stewart

I think that what my hon. Friend says means that we want a little further guidance about this question of furtherance. If I have been right in what I have been saying, the position is that of two possible murders one is capital and the other is not.

The Attorney-General

Surely the hon. Gentleman heard me refer to subsection (1, c) which we shall have an opportunity of discussing later. If he will look he will realise that his point is a bad one.

Mr. Charles Royle (Salford, West)

It is a matter of definition.

Mr. Stewart

Subsection (1, c), yes, but still I wonder. If after I have committed a theft somebody comes to me and tries to blackmail me and I murder him, after I have committed that offence, would the murder be in furtherance of the theft or not?

If not, it seems to me we are making a distinction between two kinds of murder, one capital and the other not capital, which is not justifiable. If somebody comes and threatens me or tries to blackmail me after I have committed a theft and I murder him, and if that is to be regarded as a capital murder, then the words "in furtherance of" have a very much wider significance than the Attorney-General suggested in his explanation to us. I suggest, therefore, that to the layman—and, after all, juries will be composed mainly if not entirely of laymen—there is a difficulty to which the Attorney-General has not given sufficient attention.

He led us to suppose that all these legal difficulties can be disposed of. Have the Government really given us any good reason for singling out murder committed in the course or furtherance of theft from murder committed in the course or furtherance of other crimes? The Attorney-General gave us the stock answer, that apparently it was felt that people who are in the habit of committing offences involving violence form, as he implied, a group in the population who might be tempted to use violence in the commission of their crimes if this provision were not in the Bill. Surely, the temptation to use violence in the commission of a crime is bound up very largely not with the legal definition of that crime but with the gravity of that crime and with the strength of the motive one has to kill so that one can go on to do it.

One is, let us suppose, interrupted in the course of the commission of a crime, and one can complete the commission of the crime only by murdering somebody. If the crime and the intent to commit it is for the sake of a comparatively trifling sum of money one is not particularly likely to be tempted to add the further guilt of murder to it; but if the crime one proposes to commit is in any case a very grave one, is one to commit which one is being driven by a very strong temptation or very strong hopes of what benefit may accrue if one commits the crime successfully, then the temptation to get away with the crime by committing murder is all the stronger.

If we are going to distinguish between crimes which make murder capital if it is committed in the furtherance of those crimes, and crimes which do not have that result, we ought to define or classify crimes according to their gravity in the judgment of ordinary men. Of course theft or stealing contains a very wide range of offences which the law may put all into one class but which vary very greatly indeed in their gravity. That was brought out in an admission into which the Attorney General was drawn when making his speech. In referring to housebreaking he said that housebreaking might be committed, not only with the intent of stealing money, but with the intent of violating a woman, and that if murder were committed in the course or furtherance of that, that would not be capital, and he seemed rather pleased with that fact, as though, by producing it, he scored a great triumph over my hon. Friend the Member for Oldham, West.

It seems to me that we are passing a Clause which says that if one breaks into a house to pinch the spoons and kills somebody in the process one will be hanged, but that if one breaks into a house to violate the lady of the house and one kills somebody in the process of that we shall tend to regard that as a lesser offence. I do not understand the law of it, but, speaking as the kind of person who, were I not a Member of this Committee, might sit on a jury, that seems to me to be rubbish and rather immoral rubbish at that, which does not commend itself to the standard of morals of ordinary people, and which does not make sense.

It is part of the rather vicious tradition in our law, if I may say so with respect, of regarding offences against property as possessing a peculiar wickedness which does not apply to offences against the person, against people's rights, against their individuality. I do not think we ought to give further warrant to what most humane people have always regarded as something of a blemish in our law by making this distinction between murders committed in the course of theft and murders committed in the course of what many people would regard as far more serious offences.

I would say, therefore, that although the Attorney-General has helped somewhat in clearing up the legal difficulty he has by no means gone the whole way, and I think we need to know more about the full significance of the phrase "in the course or furtherance of"; and secondly, that even if we put aside the whole legal difficulty of the argument we still have not had a satisfactory reason why theft should be singled out in this manner. There are possibly reasons why it is more necessary to deter thieves than to deter people who may commit other kinds of crimes. I do not say that that should not be so, but I do say we have not had reasons advanced why it should be so, or why we should regard thieves as much more detestable than other kinds of criminals.

6.0 p.m.

My own feeling is that when we are dealing with a criminal law we ought to be very careful in trying to list crimes in order of moral judgments, because the ultimate moral guilt of a man is bound up with not only what he does but with circumstance and temptation. Human beings are on much safer ground, in dealing with criminal law, when simply considering the practical question of what is necessary to protect society. We ought not to put into our law something which deliberately suggests that we regard stealing spoons as a more serious thing than assaulting the lady of the house, and that, on the confession of the Attorney-General, is what we are considering doing in the Clause if we do not accept the Amendment.

Mr. Martin Redmayne(Lord Commissioner of the Treasury) rose in his place and claimed to move, That the Question be now put.

Question put, That the Question be now put:—

Mr. Paget

On a point of order.

The Deputy-Chairman

There can be no point of order at this stage.

Mr. Paget

I have moved the Amendment, and I have had no reply.

The Deputy-Chairman

Order.

The Committee proceeded to a Division:—

Mr. Paget

(seated and covered): On a point of order. Surely it has always been the custom of the House of Commons and of the Committee that when an Amendment is moved the mover of it shall have the chance to reply. Here is an Amendment of the greatest importance. It affects the lives of people, and surely we cannot do anything in Parliament that is more important than that. We have had three speeches and I have had no opportunity to reply to the Attorney-General, who posed a number of questions to me. When I sought to intervene I indicated—

The Deputy-Chairman

Order. Having accepted the Closure, I cannot argue the rights and wrongs of that decision.

Mr. Hale

(seated and covered): Further to that point of order. May I respectfully point out to you, Sir Gordon, that I was asked by the Attorney-General in the course of his speech to defer my remarks until he had completed what he had to say and then rise and deal with them afterwards. The Attorney-General was listened to by the Committee and I was given no opportunity to reply. It is always the rule of the House of Commons and of the Committee, accepted by previous Speakers and occupants of the Chair, that so long as debate was continued on both sides of the Chamber the Question would not be put or accepted by the Chair. We have seen in the course of the debate something we have not seen in the eleven years that I have been a Member. The whole of the Tory Party has absented itself, and there have been no more than four hon. Members opposite present. There has never been the possibility of a debate because, either through the organisation of the Whips or through some demonstration of cunning, the Committee has been denuded.

The Deputy-Chairman

Order. I cannot discuss the propriety or otherwise of accepting the Closure.

Ayes 246, Noes 176.

Division No. 15.]	AVES	[6.1 p.m.
Agnew, Cmdr. P. G.	Butler, Rt. Hn. R. A.(Saffron Walden)	Fletcher-Cooke, C.
Aitken, W. T.	Campbell, Sir David	Fort, R.
Allan, R. A. (Paddington, S.)	Carr, Robert	Fraser, Sir Ian (M'ombe & Lonsdale)
Alport, C. J. M.	Cary, Sir Robert	Freeth, D. K.
Amery, Julian (Preston, N.)	Chichester-Clark, R.	Galbraith, Hon. T. G. D.
Amory, Rt. Hn. Heathcoat (Tiverton)	Clarke, Brig. Terence (Portsmth, W.)	Gammans, Sir David
Anstruther-Gray, Major Sir William	Cole, Norman	George, J. C. (Pollok)
Arbuthnot, John	Conant, Maj. Sir Roger	Gibson-Watt, D.
Armstrong, C. W.	Cooper-Key, E. M.	Glover, D.
Ashton, H.	Cordeaux, Lt.-Col. J. K.	Godber, J. B.
Astor, Hon. J. J.	Corfield, Capt. F. V.	Gomme-Duncan, Col. Sir Alan
Atkins, H. E.	Craddock, Beresford (Spelthorne)	Gower, H. R.
Baldock, Lt.-Cmdr. J. M.	Crosthwaite-Eyre, Col. O. E.	Graham, Sir Fergus
Balniel, Lord	Crouch, R. F.	Grant-Ferris, Wg Cdr. R. (Nantwich)
Barber, Anthony	Crowder, Petre (Rulslip—Northwood)	Green, A.
Barlow, Sir John	Currie, G. B. H.	Gresham Cooke, R.
Barter, John	Dance, J. C. G.	Grimston, Hon. John (St. Albans)
Beamish, Maj. Tufton	Davidson, Viscountess	Grimston, Sir Robert (Westbury)
Bell, Ronald (Bucks, S.)	D'Avigdor-Goldsmid, Sir Henry	Grosvenor, Lt.-Col. R. G.
Bennett, F. M. (Torquay)	Deedes, W. F.	Gurden, Harold
Devins, J. R. (Toxteth)	Donaldson, Cmdr. C. E. McA.	Hall, John (Wycombe)
Bidgood, J. C.	Drayson, G. B.	Harris, Frederic (Croydon, N. W.)
Biggs-Davison, J. A.	du Cann, E. D. L.	Harris, Reader (Heston)
Birch, Rt. Hon. Nigel	Duncan, Capt. J. A. L.	Harrison, Col. J. H. (Eye)
Bishop, F. P.	Duthie, W. S.	Harvey, Air Cdre. A. V. (Macelesfd)
Body, R. F.	Eccles, Rt. Hon. Sir David	Harvey, John (Walthamstow, E.)
Boyd, T. C.	Eden, J. B. (Bournemouth, West)	Harvie-Watt, Sir George
Boyd-Carpenter, Rt. Hon. J. A.	Elliot, Rt. Hon. W. E.	Hay, John
Boyle, Sir Edward	Emmet, Hon. Mrs. Evelyn	Head, Rt. Hon. A. H.
Braine, B. R.	Errington, Sir Eric	Heald, Rt. Hon. Sir Lionel
Braithwaite, Sir Albert (Harrow, W.)	Fell, A.	Heath, Rt. Hon. E. R. G.
Brooke, Rt. Hon. Henry	Finlay, Graeme	Hill, Mrs. E. (Wythenshawe)
Buchan-Hepburn, Rt. Hon. P. G. T.	Fisher, Nigel	Hinchingbrooke, Viscount
Hirst, Geoffrey	Maitland, Cdr. J. F. W. (Horncastle)	Roper, Sir Harold
Holland-Martin, C. J.	Maitland, Hon. Patrick (Lanark)	Ropner, Col. Sir Leonard
Hope, Lord John	Manningham-Buller, Rt. Hn. Sir R.	Russell, R. S.
Hornby, R. P.	Markham, Major Sir Frank	Schofield, Lt.-Col. W.
Hornsby-Smith, Miss M. P.	Marlowe, A. A. H.	Scott-Miller, Cmdr. R.
Horobin, Sir Ian	Marshall, Douglas	Sharples, R. C
Horsbrugh, Rt. Hon. Dame Florence	Maude, Angus	Shepherd, William
Howard, Hon. Greville (St. Ives)	Maudling, Rt. Hon. R.	Simon, J. E. S. (Middlesbrough, W.)
Howard, John (Test)	Mawby, R. L.	Smithers, Peter (Winchester)
Hughes, Hallett, Vice-Admiral J.	Maydon, Lt.-Comdr. S. L. C.	Spearman, Sir Alexander
Hughes-Young, M. H. C.	Milligan, Rt. Hon. W. R.	Speir, R. M.
Hutchison, Sir Ian Clark (E'b'gh, W.)	Molson, Rt. Hon. Hugh	Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)
Hutchison, Sir James (Scotstoun)	Mott-Radclyffe, C. E.	Stevens, Geoffrey
Hylton-Foster, Sir H. B. H.	Nabarro, G. D. N.	Steward, Harold (Stockport, S.)
Iremonger, T. L.	Nairn, D. L. S.	Steward, Sir William (Woolwich, W.)
Irvine, Bryant Godman (Rye)	Neave, Airey	Stoddart-Scott, Col. M.
Jenkins, Robert (Dulwich)	Nicholls, Harmar	Storey, S.
Johnson, Dr. Donald (Carlisle)	Nicholson, Godfrey (Farnham)	Stuart, Rt. Hon. James (Moray)
Johnson, Eric (Blackley)	Nicolson, N. (B'n'm'th, E. & Chr'ch)	Studholme, Sir Henry
Joseph, Sir Keith	Noble, Comdr. A. H. P.	Sumner, W. D. M. (Orpington)
Joynson-Hicks, Hon. Sir Lancelot	Nugent, G. R. H.	Taylor, Sir Charles (Eastbourne)
Kaberry, D.	Oakshott, H. D.	Taylor, William (Bradford, N.)
Keegan, D.	O'Neill, Hn. Phelim (Co. Antrim, N.)	Temple, J. M.
Kimball, M.	Ormsby-Gore, Hon. W. D.	Thomas, P. J. M. (Conway)
Kirk, P. M.	Orr, Capt. L. P. S.	Thompson, Kenneth (Walton)
Lambert, Hon. G.	Orr-Ewing, Charles Ian (Hendon N.)	Thornton-Kemsley, C. N.
Lancaster, Col. C. G.	Orr-Ewing, Sir Ian (Weston-S-Mare)	Tiley, A. (Bradford, W.)
Leather, E. H. C.	Osborne, C.	Tilney, John (Wavertree)
Leavey, J. A.	Page, R. G.	Turner, H. F. L.
Leburn, W. G.	Pannell, N. A. (Kirkdale)	Turton, Rt. Hon. R. H.
Legge-Bourke, Maj. E. A. H.	Partridge, E.	Vane, W. M. F.
Legh, Hon. Peter (Petersfield)	Peyton, J. W. W.	Vaughan-Morgan, J. K.
Lindsay, Hon. James (Devon, N.)	Pickthorn, K. W. M.	Vickers, Miss J. H.
Lindsay, Martin (Solihull)	Pitman, I. J.	Vosper, D. F.
Linetead Sir H. N	Pitt, Miss E. M.	Wakefield, Edward (Derbyshire, W.)
Lloyd, Maj. Sir Guy (Renfrew, E.)	Pott, H. P.	Walker-Smith, D. C.
Lloyd. Rt. Hon. Selwyn (Wirral)	Powell, J. Enoch	Wall, Major Patrick
Lloyd-George, Maj. Rt. Hon. G.	Price, David (Eastleigh)	Ward, Hon. George (Worcester)
Longden Gilbert	Price, Philips (Gloucestershire, W.)	Waterhouse, Capt. Rt. Hon. C.
	Prior-Palmer, Brig. O. L.	Watkinson, Rt. Hon. Harold
Lucas, Sir Jocelyn (Portsmouth, S.)	Profumo, J. D.	Webbe, Sir H.
Lucas-Tooth, Sir Hugh	Ralkes, Sir Victor	Whitelaw, W. S. I. (Penrith & Border)
Macdonald, Sir Peter	Ramsden, J. E.	Williams, Paul (Sunderland, S.)
Mackeson, Brig. Sir Harry	Rawlinson, Peter	Williams, R. Dudley (Exeter)
Mackie, J. H. (Galloway)	Redmayne, M.	Wilson, Geoffrey (Truro)
McLean, Neil (Inverness)	Rees-Davies. W. R.	Wood, Hon. R.
Macmillan, Rt. Hn. Harold (Bromley)	Remnant, Hon. P.	Woollam, John Victor
Macmillan, Maurice (Halifax)	Renton, D. L. M.
Macpherson, Niall (Dumfries)	Robinson, Sir Roland (Blackpool, S.)	TELLERS FOR THE AYES:
Maddan, Martin	Rodgers, John (Sevenoaks)	Mr. Wills and Mr. Bryan.
NOES
Ainsley, J. W.	Craddock, George (Bradford, S.)	Hayman, F. H.
Albu, A. H.	Cronin, J. D.	Healey, Denis
Allaun, Frank (Salford, E.)	Cullen, Mrs. A.	Herbison, Miss M.
Anderson, Frank	Dalton, Rt. Hon. H.	Holman, P.
Awbery, S. S.	Darling, George (Hillsborough)	Holmes, Horace
Bacon, Miss Alice	Davies, Rt. Hon. Clement (Montgomery)	Houghton, Douglas
Baird, J.	Davies, Ernest (Enfield, E.)	Howell, Denis (All Saints)
Balfour, A.	Davies, Harold (Leek)	Hubbard, T. F.
Bence, C. R. (Dunbartonshire, E.)	Davies, Stephen (Merthyr)	Hughes, Cledwyn (Anglesey)
Benn, Hn. Wedgwood (Bristol, S. E.)	Deer, G.	Hughes, Emrys (S. Ayrshire)
Benson, G.	de Freitas, Geoffrey	Hughes, Hector (Aberdeen, N.)
Beswick, F.	Dugdale, Rt. Hn. John (W. Brmwch)	Hunter, A. E.
Bevan, Rt. Hon. A. (Ebbw Vale)	Edwards, Rt. Hon. John (Brighouse)	Hynd, J. B. (Atteroliffe)
Blackburn, F.	Edwards, Robert (Bilston)	Irving, S. (Dartford)
Bottomley, Rt. Hon. A. G.	Evans, Albert (Islington, S. W.)	Isaacs, Rt. Hon. G. A.
Bowles, F. G.	Fernyhough, E.	Jay, Rt. Hon. D. P. T.
Braddock, Mrs. Elizabeth	Finch, H. J.	Jeger, Mrs. Lena (Holbn & St. Pncs. S.)
Brockway, A. F.	Forman, J. C.	Jenkins, Roy (Stechford)
Brown, Rt. Hon. George (Belper)	Fraser, Thomas (Hamilton)	Johnson, James (Rugby)
Brown, Thomas (Ince)	Gaitskell, Rt. Hon. H. T. N.	Jones, David (The Hartlepools)
Butler, Herbert (Hackney, C.)	Gordon Walker, Rt. Hon. P. C.	Jones, J. Idwal (Wrexham)
Butler, Mrs. Joyce (Wood Green)	Greenwood, Anthony	Jones, T. W. (Merioneth)
Callaghan, L. J.	Grey, C. F.	Kenyon, C.
Castle, Mrs. B. A.	Griffiths, David (Rother Valley)	King, Dr. H. M.
Champion, A. J.	Griffiths, Rt. Hon. James (Llanelly)	Lawson, G. M.
Chetwynd, G. R.	Grimond, J.	Lee, Frederick (Newton)
Clunie, J.	Hale, Leslie	Lee, Miss Jennie (Cannock)
Coldrick, W.	Hall, Rt. Hn. Glenvil (Colne Valley)	Lindgren, G. S.
Collick, P. H. (Birkenhead)	Hamilton, W. W.	Lipton, Lt.-Col. M.
Collins, V. J.(Shoreditch & Finsbury)	Hannan, W.	Logan, D. G.
Cove, W. G.	Hastings, S.	Mabon, Dr. J. Dickson
McKay, John (Wallsend)	Popplewell, E.	Sylvester, G. O.
MacPherson, Malcolm (Stirling)	Price, J. T. (Westhoughton)	Taylor, Bernard (Mansfield)
Mallalieu, E. L. (Brigg)	Probert, A. R.	Taylor, John (West Lothian)
Mann, Mrs. Jean	Proctor, W. T.	Thornton, E.
Marquand, Rt. Hon. H. A.	Randall, H. E.	Usborne, H. C.
Mason, Roy	Rankin, John	Wade, D. W.
Mellish, R. J.	Redhead, E. C.	Warbey, W. N.
Mikardo, Ian	Reeves, J.	Weitzman, D.
Mitchison, G. R.	Roberts, Goronwy (Caernarvon)	Wells, Percy (Faversham)
Monslow, W.	Rogers, George (Kensington, N.)	Wells, William (Walsall, N.)
Moyle, A.	Ross, William	Wheedon, W. E.
Mulley, F. W.	Short, E. W.	White, Mrs. Eirene (E. Flint)
Neal, Harold (Bolsover)	Shurmer, P. L. E.	White, Henry (Derbyshire, N. E.)
Oliver, G. H.	Silverman, Julius (Aston)	Wigg, George
Orbach, M.	Simmons, C. J. (Brierley Hill)	Wilkins, W. A.
Oswald, T	Skeffington, A. M.	Willey, Frederick
Owen, W. J.	Slater, Mrs. H. (Stoke, N.)	Williams, Rev. Llywelyn (Ab'tillery)
Padley, W. E.	Slater, J. (Sedgefteld)	Williams, Ronald (Wigan)
Paget, R. T.	Smith, Ellis (Stoke, S.)	Willis, Eustace (Edinburgh, E.)
Paling, Rt. Hon. W. (Dearne Valley)	Sorensen, R. W.	Winterbottom, Richard
Palmer, A. M. F.	Soskice, Rt. Hon. Sir Frank	Woodburn, Rt. Hon. A.
Pannell, Charles (Leeds, W.)	Sparks, J. A.	Woof, R. E.
Parker, J.	Steele, T.	Yates, V. (Ladywood)
Parkin, B. T.	Stewart, Michael (Fulham)	Younger, Rt. Hon. K.
Paton, John	Strachey, Rt. Hon. J.	Zilliacus, K.
Pearson, A.	Strauss, Rt. Hon. George (Vauxhall)
Peart, T. F.	Stross, Dr. Barnett (Stoke-on-Trent, C.)	TELLERS FOR THE NOES:
Pentland, N.	Summerskill, Rt. Hon. E.	Mr. K. Robinson and Mr. Royle.
Plummer, Sir Leslie	Swingler, S. T.

Question put accordingly, "That the words proposed to be left out, to "theft" in line 40, stand part of the Clause:—

The Committee divided: Ayes 243, Noes 174.

Division No. 16.]	AYES	[6.12 p.m.
Agnew, Cmdr. P. G.	Crouch, R. F.	Harvie-Watt, Sir George
Aitken, W. T.	Crowder, Petre (Ruislip—Northwood)	Hay, John
Allan, R. A. (Paddington, S.)	Currie, G. B. H.	Head, Rt. Hon. A. H.
Alport, C. J. M.	Dance, J. C. G.	Heald, Rt. Hon. Sir Lionel
Amery, Julian (Preston, N.)	Davidson, Viscountess	Heath, Rt. Hon. E. R G.
Amory, Rt. Hn. Heathcoat (Tiverton)	D'Avigdor-Goldsmid, Sir Henry	Hill, Mrs E. (Wythenshawe)
Anstruther-Gray, Major Sir William	Deedes, W. F.	Hirst, Geoffrey
Arbuthnot, John	Donaldson, Cmdr. C. E. McA.	Holland-Martin, C. J.
Armstrong, C. W.	Drayson, G. B.	Hope, Lord John
Ashton, H.	du Cann, E. D. L.	Hornby, R. P.
Astor, Hon. J. J.	Duncan, Capt. J. A. L.	Hornsby-Smith, Miss M. P.
Atkins, H. E.	Duthie, W. S	Horobin, Sir Ian
Baldock, Lt.-Cmdr. J. M.	Eccles, Rt. Hon. Sir David	Horsbrugh, Rt. Hon. Dame Florence
Balniel, Lord	Eden, J. B. (Bournemouth, West)	Howard, Hon. Greville (St. Ives)
Barber, Anthony	Elliot, Rt. Hon. W. E.	Howard, John (Test)
Barlow, Sir John	Emmet, Hon. Mrs. Evelyn	Hughes Hallett, Vice-Admiral J.
Barter, John	Errington, Sir Eric	Hughes-Young, M. H. C.
Beamish, Maj. Tufton	Fell, A.	Hutchison, Sir Ian Clark (E'b'gh, W.)
Bennett, F. M. (Torquay)	Finlay, Graeme	Hutchison, Sir James (Scotstoun)
Bevins, J. R. (Toxteth)	Fisher, Nigel	Hylton-Foster, Sir H. B. H.
Bidgood, J. C.	Fletcher-Cooke, C.	Iremonger, T. L.
Biggs-Davison, J. A.	Fort, R.	Irvine, Bryant Godman (Rye)
Birch, Rt. Hon. Nigel	Fraser, Sir Ian (M'cmbe & Lonsdale)	Jenkins, Robert (Dulwich)
Bishop, F. P.	Freeth, D. K.	Johnson, Dr. Donald (Carlisle)
Body, R. F.	Galbraith, Hon. T. G. D.	Johnson, Eric (Blackley)
Boyd, T. C.	Gammans, Sir David	Joseph, Sir Keith
Boyd-Carpenter, Rt. Hon. J. A.	George, J. C. (Pollok)	Joynson-Hicks, Hon. Sir Lancelot
Boyle, Sir Edward	Gibson-Watt, D.	Kaberry, D.
Braine, B. R.	Glover, D.	Keegan, D.
Braithwaite, Sir Albert (Harrow, W.)	Godber, J. B.	Kimball, M.
Brooke, Rt. Hon. Henry	Gomme-Duncan, Col. Sir Alan	Kirk, P. M.
Buchan-Hepburn, Rt. Hon. P. G. T.	Gower, H. R.	Lambert, Hon. G.
Butler, Rt. Hn. R. A. (Saffron Walden)	Graham, Sir Fergus	Lancaster, Col. C. G.
Campbell, Sir David	Grant-Ferris, Wg Cdr. R. (Nantwich)	Leavey, J. A.
	Green, A.	Leburn, W. G.
Carr, Robert	Gresham Cooke, R.	Legge-Bourke, Maj. E. A. H.
Gary, Sir Robert	Grimston, Hon. John (St. Albans)	Legh, Hon. Peter (Petersfield)
Chichester-Clark, R.	Grimston, Sir Robert (Westbury)	Lindsay, Hon. James (Devon, N.)
Clarke, Brig, Terence (Portsmth, W.)	Grosvenor, Lt.-Col. R. G.	Lindsay, Martin (Solihull)
Cole, Norman	Gurden, Harold	Linstead, Sir H. N.
Conant, Maj. Sir Roger	Hall, John (Wycombe)	Lloyd, Maj. Sir Guy (Renfrew, E.)
Cooper-Key, E. M.	Harris, Frederic (Croydon, N. W.)	Lloyd, Rt. Hon. Selwyn (Wirral)
Cordeaux, Lt.-Col. J. K.	Harris, Reader (Heston)	Lloyd-George, Maj. Rt. Hon. G.
Corfield, Capt. F. V.	Harrison, Col. J. H. (Eye)	Longden, Gilbert
Craddock, Beresford (Spelthorne)	Harvey, Air Cdre A. V. (Macclesfd)	Lucas. Sir Jocelyn (Portsmouth, S.)
Crosthwaite-Eyre, Col. O. E.	Harvey, John (Walthamstow, E.)	Lucas-Tooth, Sir Hugh
Macdonald, Sir Peter	Osborne, C.	Stoddart-Scott, Col. M.
Mackeson, Brig. Sir Harry	Page, R. G.	Storey, S.
Mackie, J. H. (Galloway)	Pannell, N. A. (Kirkdale)	Stuart, Rt. Hon. James (Moray)
McLean, Neil (Inverness)	Partridge, E.	Studholme, Sir Henry
Macmillan, Rt. Hn. Harold (Bromley)	Peyton, J. W. W.	Sumner, W. D. M. (Orpington)
Macmillan, Maurice (Halifax)	Pickthorn, K. W. M.	Taylor, Sir Charles (Eastbourne)
Macpherson, Niall (Dumfries)	Pitt, Miss E. M.	Taylor, William (Bradford, N.)
Madden, Martin	Pott, H. P.	Temple, J. M.
Maitland, Cdr. J. F. W. (Horncastle)	Powell, J. Enoch	Thomas, P. J. M. (Conway)
Maitland, Hon. Patrick (Lanark)	Price, David (Eastleigh)	Thompson, Kenneth (Walton)
Manningham-Buller, Rt. Hn. Sir R.	Price, Philips (Gloucestershire, W.)	Thornton-Kemsley, C. N.
Markham, Major Sir Frank	Prior-Palmer, Brig. O. L.	Tiley, A. (Bradford, W.)
Marlowe, A. A. H.	Profumo, J. D.	Tilney, John (Wavertree)
Marples, A. E.	Raikes, Sir Victor	Turner, H. F. L.
Marshall, Douglas	Ramsden, J. E.	Turton, Rt. Hon. R. H.
Maude, Angus	Rawlinson, Peter	Vane, W. M. F.
Maudling, Rt. Hon. R.	Redmayne, M.	Vaughan-Morgan, J. K.
Mawby, R. L.	Remnant, Hon. P.	Vickers, Miss J. H.
Maydon, Lt.-Comdr, S. L. C.	Renton, D. L. M.	Vosper, D. F.
Milligan, Rt. Hon. W. R.	Robinson, Sir Roland (Blackpool, S.)	Wakefield, Edward (Derbyshire, W.)
Molson, Rt. Hon. Hugh	Rodgers, John (Sevenoaks)	Walker-Smith, D. C.
Mott-Radclyffe, C. E.	Roper, Sir Harold	Wall, Major Patrick
Nabarro, G. D. N.	Ropner, Col. Sir Leonard	Ward, Hon. George (Worcester)
Nairn, D. L. S.	Russell, R. S.	Waterhouse, Capt. Rt. Hon. C.
Neave, Airey	Schofield, Lt.-Col. W.	Watkinson, Rt. Hon. Harold
Nicholls, Harmar	Scott-Miller, Cmdr. R.	Webbe, Sir H.
Nicholson, Godfrey (Farnham)	Sharples, R. C.	Wells, Percy (Faversham)
Nicolson, N. (B'n m'th, E. & Chr'ch)	Shepherd, William	Whitelaw, W. S. I. (Penrith & Border)
Noble, Comdr. A. H. P.	Simon, J. E. S. (Middlesbrough, W.)	Williams, Paul (Sunderland, S.)
Nugent, G. R. H.	Smithers, Peter (Winchester)	Williams, R. Dudley (Exeter)
Oakshott, H. D.	Spearman, Sir Alexander	Wilson, Geoffrey (Truro)
O'Neill, Hn. Phelim (Co. Antrim, N.)	Speir, R. M.	Wood, Hon. R.
Ormsby-Gore, Hon. W. D.	Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)	Woollam, John Victor
Orr, Capt. L. P. S.	Stevens, Geoffrey
Orr-Ewing, Charles Ian (Hendon, N.)	Steward, Harold (Stockport, S.)	TELLERS FOR THE AYES:
Orr-Ewing, Sir Ian (Weston-S-Mare)	Steward, Sir William (Woolwich, W.)	Mr. Wills and Mr. Bryan.
NOES
Ainsley, J. W.	Edwards, Rt Hon. Ness (Caerphilly)	Lee, Miss Jennie (Cannock)
Albu, A. H.	Edwards, Robert (Bilston)	Lindgren, G. S.
Allaun, Frank (Salford, E.)	Evans, Albert (Islington, S. W.)	Lipton, Lt.-Col. M.
Anderson, Frank	Fernyhough, E.	Logan, D. G.
Awbery, S. S.	Finch, H. J.	Mabon, Dr. J. Dickson
Bacon, Miss Alice	Forman, J. C.	McInnes, J.
Baird, J.	Fraser, Thomas (Hamilton)	McKay, John (Wallsend)
Bence, C. R. (Dunbartonshire, E.)	Gaitskell, Rt. Hon. H. T. N.	MacPherson, Malcolm (Stirling)
Benn, Hn. Wedgwood (Bristol, S. E.)	Gordon Walker, Rt. Hon. P. C.	Mallalieu, E. L. (Brigg)
Benson, G.	Greenwood, Anthony	Mann, Mrs. Jean
Beswick, F.	Grey, C. F.	Marquand, Rt. Hon. H. A.
Bevan, Rt. Hon. A. (Ebbw Vale)	Griffiths, David (Rother Valley)	Mason, Roy
Blackburn, F.	Griffiths, Rt. Hon. James (Llanelly)	Mikardo, Ian
Bottomley, Rt. Hon. A. G.	Grimond, J.	Mitchison, G. R.
Bowles, F. G.	Hale, Leslie	Monslow, W.
Braddock, Mrs. Elizabeth	Hall, Rt. Hn. Glenvil (Colne Valley)	Mort, D. L.
Brockway, A. F.	Hamilton, W. W.	Moyle, A.
Brown, Rt. Hon. George (Belper)	Hannan, W.	Mulley, F. W.
Brown, Thomas (Ince)	Hastings, S.	Neal, Harold (Bolsover)
Butler, Herbert (Hackney, C.)	Hayman, F. H.	Oliver, G. H.
Butler, Mrs. Joyce (Wood Green)	Herbison, Miss M.	Orbach, M.
Callaghan, L. J.	Holman, P.	Oswald. T.
Castle, Mrs. B. A.	Holmes, Horace	Owen, W. J.
Champion, A. J.	Houghton, Douglas	Padley, W. E.
Chetwynd, G. R.	Howell, Denis (All Saints)	Paget, R. T.
Clunie, J.	Hubbard, T. F.	Paling, Rt. Hon. W. (Dearne Valley)
Coldrick, W.	Hughes, Cledwyn (Anglesey)	Palmer, A. M. F.
Collick, P. H. (Birkenhead)	Hughes, Emrys (S. Ayrshire)	Pannell, Charles (Leeds, W.)
Collins, V. J. (Shoreditch & Finsbury)	Hughes, Hector (Aberdeen, N.)	Parker, J.
Cove, W. G.	Hunter, A. E.	Parkin, B. T.
Craddock, George (Bradford, S.)	Hynd, J. B. (Attercliffe)	Paton, John
Cronin, J. D.	Irving, S. (Dartford)	Pearson, A.
Cullen, Mrs. A.	Isaacs, Rt. Hon. G. A.	Peart, T. F.
Dalton, Rt. Hon. H.	Jay, Rt. Hon. D. P. T.	Pentland, N.
Darling, George (Hillsborough)	Jeger, Mrs. Lena (Holbn & St. Pncs, S.)	Plummer, Sir Leslie
Davies, Rt. Hon. Clement (Montgomery)	Jenkins, Roy (Stechford)	Popplewell, E.
Davies, Ernest (Enfield, E.)	Johnson, James (Rugby)	Price, J. T. (Westhoughton)
Davies, Harold (Leek)	Jones, David (The Hartlepools)	Probert, A. R.
Davies, Stephen (Merthyr)	Jones, J. Idwal (Wrexham)	Proctor, W. T.
Deer, G.	Jones, T. W. (Merioneth)	Randall, H. E.
de Freitas, Geoffrey	Kenyon, C.	Rankin, John
Dodds, N. N.	King, Dr. H. M.	Redhead, E. C.
Dugdale, Rt. Hn. John (W. Brmwch)	Lawson, G. M.	Reeves, J.
Edwards, Rt. Hon. John (Brighouse)	Lee, Frederick (Newton)	Roberts, Goronwy (Caernarvon)
Rogers, George (Kensington, N.)	Stross, Dr. Barnett (Stoke-on-Trent, C.)	Wigg, George
Ross, William	Summerskill, Rt. Hon. E.	Wilkins, W. A.
Short, E. W.	Swingler, S. T.	Willey, Frederick
Silverman, Julius (Aston)	Sylvester, G. O.	Williams, Rev. Llywelyn (Ab'tillery)
Simmons, C. J. (Brierley Hill)	Taylor, Bernard (Mansfield)	Williams, Ronald (Wigan)
Skeffington, A. M.	Taylor, John (West Lothian)	Willis, Eustace (Edinburgh, E.)
Slater, Mrs. H. (Stoke, N.)	Thornton, E.	Winterbottom, Richard
Slater, J. (Sedgefield)	Usborne, H. C.	Woodburn, Rt. Hon. A.
Smith, Ellis (Stoke, S.)	Wade, D. W.	Woof, R. E.
Sorensen, R. W.	Warbey, W. N.	Yates, V. (Ladywood)
Soskice, Rt. Hon. Sir Frank	Weitzman, D.	Younger, Rt. Hon. K.
Steele, T.	Wells, William (Walsall, N.)	Zilliacus, K.
Stewart, Michael (Fulham)	Wheeldon, W. E.
Strachey, Rt. Hon. J.	White, Mrs. Eirene (E. Flint)	TELLERS FOR THE NOES:
Strauss, Rt. Hon. George (Vauxhall)	White, Henry (Derbyshire, N. E.)	Mr. K. Robinson and Mr. Royle.

Mr. David Weitzman (Stoke Newington and Hackney, North)

On a point of order, Sir Gordon. Might I ask for your guidance upon a rather important matter? Is there the slightest use in hon. Members remaining in the Chamber throughout a debate waiting to be called, or is the Closure Motion to be accepted after only three hon. Members on this side of the Committee have spoken?

The Deputy-Chairman

That is not a point of order.

Sir Frank Soskice (Newport)

Arising out of the Closure Motion, might I put this point of order to you, Sir Gordon, and respectfully ask for your guidance for the purpose of our discussion of the Amendments which are now to be taken? During the discussion of the last Amendment, my hon. Friend the Member for Oldham, West (Mr. Hale), when the Attorney-General was addressing the Committee, rose and put to the right hon. and learned Gentleman during the course of his speech certain points which had occurred to my hon. Friend as the Attorney-General was making his speech.

The Attorney-General said, perfectly courteously, to my hon. Friend that he would like to complete his argument first, and that no doubt my hon. Friend would be able to put the points which had occurred to him after the Attorney-General had completed his own speech. It was obviously in reliance upon that, so it appeared to every hon. Member in the Committee, that my hon. Friend resumed his seat and waited patiently, until the Attorney-General had finished, to deal with the points which he wanted to deploy. No doubt they were points of importance and my hon. Friend was anxious to raise them. However, he was prevented from having that opportunity because a member of the Government Front Bench, who, presumably, was pre- sent and had heard that exchange, rose and moved the Closure Motion.

What I should respectfully like your guidance upon, as a point of order, is the following. In the course of our discussion of the ensuing Amendments to the Bill, are we to understand that, if an hon. Member on either side of the Committee feels moved during the course of a speech to put a point and is asked by the speaker to defer the point until his argument is completed, the hon. Member who desires to put the point is to be—I will not use any pejorative expression—disappointed as to his opportunity of putting the point because, before he can do so, some member of the Government Front Bench is likely to rise and move the Closure Motion?

If that is your Ruling, Sir Gordon, we must, of course, abide by it at once, and we will do so most loyally, but the consequence that one might apprehend is that hon. Members on either side of the Committee would feel chary about resuming their seats, unless ordered to do so by you, if they had points which they thought should be brought out. We are all anxious to assist in the improvement of the Bill and do not want, if we can avoid it, to be—shall I say?—deprived of the opportunities which we can perhaps legitimately hope for of voicing, as the argument proceeds, the defects which we feel the Bill has. I should be grateful to have your Ruling on that so that we shall know where we stand in the future.

The Deputy-Chairman

I am very sorry if any hon. Member was disappointed. The right hon. and learned Gentleman has not really raised a point of order. The question of accepting the Closure Motion is, of course, one for the discretion of the Chair. I am sorry if right hon. and hon. Members think that I made a wrong decision. I should not have made that decision if I had not thought that the Attorney-General had completed his remarks clearing up the points raised.

Sir F. Soskice

I am very grateful to you, Sir Gordon, for your Ruling. I hope you do not for a moment think that I am venturing to criticise your Ruling, for I am not doing that. All I am doing is asking for guidance for the future. What I was recounting was an incident which I think we all witnessed. My hon. Friend resumed his seat because he no doubt thought that he would have an opportunity to speak later. It is entirely for the Chair to decide whether the Closure Motion is accepted or not. But a Member of the Government Front Bench moved the Closure Motion; the initiative came from the Government Front Bench, the Front Bench on which the Attorney-General was sitting and from which he had spoken, although it was the Attorney-General's request to my hon. Friend which had resulted in his resuming his seat.

Therefore, might I make it perfectly clear, Sir Gordon, that I am not seeking to question—it would be an impertinence for me to do so—any Ruling of yours. I abide most loyally by your Ruling. However, I myself would be glad of a Ruling, and I am sure my hon. Friends would like to know where they stand. What is the attitude which they should adopt if they feel impelled to put questions to a Government speaker in the course of his speech? Are they to resume their seats with the reasonable expectation that a member of the Government Front Bench will not move the Closure Motion before they have had the opportunity for which they hope?

The Deputy-Chairman

I am sure that the right hon. and learned Gentleman will not expect me to give any undertaking about when Closure Motions might be accepted in future by occupants of the Chair who might be other than myself. That would be a quite impossible proposition. I know that hon. Members are disappointed by the moving of the Closure Motion, but that is one of the facts of Parliamentary life.

Mr. William Ross (Kilmarnock)

Further to the point of order, Sir Gordon. We do not at all question your acceptance of the Closure Motion with the readiness with which you did so, but will you bear in mind for the future that this part of the Bill—

The Deputy-Chairman

I am afraid that we cannot discuss that matter now. That may be discussed when a Closure Motion is moved in the future.

Mr. Ross

Further to the point of order. Can you give any guidance, Sir Gordon, to hon. Members on this side of the Committee, because this part of the Bill and the Amendments which are being discussed affect the law of Scotland as well as the law of England? Surely Scottish hon. Members should be entitled to your help in this respect as to whether it is worth their while staying here if they are not to be heard on Amendments.

The Deputy-Chairman

That is a reflection on the Chair, and I cannot accept it.

Mr. Ross

On a point of order, Sir Gordon. I am seeking your guidance—

The Deputy-Chairman

The hon. Member is not correct in saying that it is a point of order.

Dr. Stross

On a point of order, Sir Gordon. You were good enough a few moments ago to point out something which hon. Members completely accept, namely, that it is for the Chair to say whether or not it will accept a Motion similar to the one which we have just had. However, will you guide us in this respect? You noted, of course, that there were more hon. Members on this side of the Committee who wished to speak than there were on the Government benches. That might have contributed to the difficulty into which we all fell. If, for example, there had been as many hon. Members standing up on the Government benches—

The Deputy-Chairman

Is the hon. Gentleman going to raise a point of order? I am afraid he has not done so yet.

Dr. Stross

I thought that this was a point of order, Sir Gordon, and that the Chair could guide us upon it. My point of order is as follows. If we were able to persuade a number of hon. Members on the Government Benches to be as interested in making speeches as hon. Members on this side of the Committee are, would it not be true that you might then be persuaded not so easily to accept the Closure Motion as you might otherwise do? I think that is a point of order, Sir Gordon.

The Deputy-Chairman

That is not a point of order.

Mr. Hale

On a point of order, Sir Gordon. Might we respectfully ask you to consider whether there is any precedent in the whole history of the House, when sitting in Committee, for the acceptance of a Closure Motion without any statement having been made by the Opposition Front Bench? Discussion on this matter began at 4.35 p.m. The Attorney-General rose to his feet—

The Deputy-Chairman

Order. This is arguing the merits of the decision. Hon. Members are not allowed to do that under the rules of the House.

Mr. Hale

Further to the point of order. On a previous occasion when Mr. Speaker accepted a Closure Motion, I ventured, with the same courtesy and respect and, I hope, the same absence of controversy, to put to him a similar point. Mr. Speaker was good enough to listen to it. It has been the practice of the House, when a Division has been taken in such circumstances, that one should at least inquire whether a new course is being taken. With very great respect, Sir Gordon, and in no spirit of criticism, no one spoke from the Opposition Front Bench. The Attorney-General had just completed his reply—

The Deputy-Chairman

Order. I am afraid that this is a discussion of the merits of the acceptance of the Closure, and that can be discussed only on a Motion. If the hon. Member wishes to discuss that matter, he should put down a Motion.

Mr. Hale

I have no desire to do that. I was asking whether it is possible for you, Sir Gordon, as the adviser of the Committee and the person in charge of procedure, to indicate whether it is to be the practice that if Opposition Front Bench speakers wish to be heard, they must move Amendments and so cut out back benchers altogether, or that on a back bench Motion, Opposition Front Bench speakers will have no opportunity of being heard.

The Deputy-Chairman

That is not a point of order.

6.30 p.m.

Sir Lancelot Joynson-Hicks (Chichester)

I beg to move, in page 2, line 40, after" of, "to insert" rape or."

Perhaps we may now turn to the comparatively peaceful subject of rape. The consideration of the previous Amendment very largely turned upon the arguments which are in favour of the abolition of capital punishment. This Amendment is in favour of its retention for a certain specific purpose, but I want to make clear to the Committee that I am moving the Amendment, not from what may be called a general retentionist point of view, but quite emphatically in the spirit in which the House passed the Second Reading, that is to say, if I may paraphrase the principle which my right hon. and gallant Friend the Home Secretary stated in the Second Reading debate, in favour of the retention of capital punishment for such purposes as are necessary to safeguard the maintenance of law and order. It is in that spirit that I move the Amendment, the purport of which is to render murder, which is caused in the furtherance or in the course of rape, a capital crime.

The basic reason for this is that rape itself is essentially a crime of violence. It is a crime which, above all others, is calculated to lead to a breach of the peace, for reasons which it is not necessary for me to detail to the Committee because they are sufficiently obvious. I remind the Committee of the definition of the Queen's peace which was used by my right hon. and gallant Friend in the Second Reading debate and which is peculiarly applicable in this sense. He said: By the 'Queen's peace,' I mean more than the mere absence of disorder. I mean a state of affairs in which people can go about their business without fear. I believe that rape is one of the crimes which is most feared. It is certainly far more feared and far more fearful a crime than theft. Yet it is proposed in the Clause that homicide which arises out of or in the furtherance of theft shall be rendered a capital crime, but homicide which arises out of or in furtherance of rape, which is a more fearful crime, is not to be rendered a capital crime. It is with the intention of rectifying that omission that I am moving the Amendment.

During these debates we have heard a good deal about the effect of capital punishment as a deterrent. Although I hold that view very strongly indeed, it is not primarily on the ground that capital punishment is a deterrent that I want to argue the case, the reason being that few murders are committed in the course of or in furtherance of rape. What is so important about capital punishment is that it is the most serious penalty on our calendar, and the very importance of the punishment emphasises the gravity of the crime. I believe that the deterrent effect arises more from the realisation of the gravity of the crime as a result of the seriousness of the punishment than from the actual fear of death resulting from the penalty if a conviction takes place.

Public opinion of the gravity of a crime is of course constantly changing, as the Committee has been reminded in previous debates, perhaps ad nauseam. There was a time when sheep stealing was considered an offence deserving capital punishment. We have now got to the point where, apart from treason, the only crime considered to be of sufficient seriousness to warrant the gravity of capital punishment is homicide. We are now going further than that, and further refining those forms of homicide for which capital punishment is being retained. In other words, we are applying our minds to a definition of the seriousness of different felonies out of which homicide may arise, in order to define them as being capital crimes.

From that point of view, there is no felony graver than rape. That is already recognised by the fact that rape is one of the comparatively few crimes for which the maximum penalty is penal servitude for life. We therefore arrive at the remarkable situation that if a person who is convicted of rape is sentenced to the maximum punishment, he is sentenced to penal servitude for life, while if in the course of his commission of rape or in furtherance thereof he murders his victim, he gets off scot-free, because, clearly, he cannot be twice sentenced to penal servitude for life. Even the hon. and learned Member for Northampton (Mr. Paget) who looks so askance at this would consider it somewhat redundant for persons to be twice sentenced to penal servitude for life, even if the sentences were to run concurrently.

Mr. Paget

I could follow the hon. Member's argument if he was saying that rape should be added to murder as a capital offence, but since murder in the course of rape is either to avoid capture or is an accident, why should it be a deterrent to add to the penalty of something which obviously is not intended?

Sir L. Joynson-Hicks

I am grateful for that intervention, because it shows quite clearly that the hon. and learned Member has not followed the trend of my remarks.

I was saying that if we have reached the stage where it is impossible to render the crime of rape subject to any additional penalty, we are reducing the crime of homicide arising from rape to a matter of negligible importance. In order to emphasise the additional gravity of the offence of homicide over and above the offence of rape, it is essential that it should have a separate and an additional penalty—and the only separate and additional penalty which it can have, when the existing penalty is penal servitude for life, is the capital penalty.

Dr. Stross

If the hon. Member's argument be logically correct, is it not possible to fall into an absurdity? Let us suppose that there had been a multiple crime—that rape had been perpetrated on two people by one man, and two people had been killed, or that there had been one rape and two deaths, the second being that of a person who came on the scene afterwards. Does not the hon. Member's argument suggest that we must kill a man twice in order to make the punishment fit the crime?

Sir L. Joynson-Hicks

I do not think so. I think that the hon. Member himself is falling into somewhat of an absurdity in his own argument.

I now turn to a different aspect of the matter. One of the essential principles in the provision of penalties for crimes is to take into account the difficulties of detection of the crime committed. The greater the difficulty of detection the greater the penalties which attach to a crime. The reason for the argument is self-evident, namely, that the ease of detection of a crime is in itself a natural deterrent. If it is easy to detect a crime people are much less liable to commit that crime, and conversely, the more difficult it is to detect a crime the safer people feel and, therefore, the greater have to be the penalties.

The crime of rape is an inherently difficult one to detect. That is undoubtedly one of the reasons why it carries such an exceedingly severe penalty.

Mr. Paget

Does the hon. Member mean that the girls concerned do not notice it?

Sir L. Joynson-Hicks

No; I mean that they do not wish to talk about it. But if homicide in the course of or in furtherance of rape is committed, that crime is still more difficult to detect than the original rape. I therefore submit that the fact that there is no additional penalty for homicide in the course of or furtherance of rape is an additional invitation to anyone who commits rape to destroy the living evidence, which is likely to be the basic evidence by which he can be convicted of his crime.

That is an exceedingly serious point, which is not met by the provisions of the Bill. It calls essentially for more severe penalties for the double crime. I call in aid my right hon. and gallant Friend the Home Secretary. In the course of his speech during the Second Reading debate, he said: People do fear that, if the deterrents which restrain criminals from carrying weapons are removed, they will be exposed to attacks by men who will have little to lose from adding murder to their other crimes."—[OFFICIAL REPORT, 15th November, 1956; Vol. 560, c. 1147.] That is exactly the case in point. A man has nothing whatsoever to lose if he adds murder to rape. Therefore, in the light of his own words, my right hon. and gallant Friend should look with favour upon the Amendment.

6.45 p.m.

Rape is a crime of violence, and therefore one to which the utmost attention should be paid, as it is a fear-creating crime. The victim is defenceless and at the mercy of the felon. Further, I think it has been established before the House—it has certainly been claimed— that the crime of rape is on the increase in this country. The Committee will recall that it was because of the increase in sexual crimes that New Zealand was forced back on to the standard of capital punishment in order to try to check that increase, and it would probably be the desire in this country to try to avoid falling into the same error.

Mr. Anthony Greenwood (Rossendale)

Will the hon. Member give us some sort of statistical evidence to justify his claim that rape is on the increase? It is a very material point if it is true, I agree, but the hon. Member should not say these things without being able to substantiate them by evidence.

Sir L. Joynson-Hicks

If the hon. Member will refer to the words which I have just used he will see that I was careful to quote what was said in the previous debates. I said that it had been claimed before the House and, so far as I can see from reading the reports of the debates, that claim was not challenged. If the hon. Member knows that rape is on the decrease he will have the opportunity to say so, although it will not affect my argument.

Mr. Greenwood

In fact, it was an innuendo and not a statement.

Sir L. Joynson-Hicks

It was not an innuendo at all; it was a quotation—and I think that it came from an hon. Member on the Opposition benches. There I speak subject to correction.

In conclusion, I would point out that I am anxious to ensure that in the course of passing the Bill we should take such steps as we are able to ensure that the Queen's peace is maintained. In order to do so it is essential that we should emphasise the gravity of murder by giving it, in this specific case, a specific and separate penalty from that awarded for the crime to which it is attached.

Mr. George Benson (Chesterfield)

The speech of the hon. Member for Chichester (Sir L. Joynson-Hicks) brings out very clearly the difficulty in which the Bill has placed hon. Members. It is an attempt to separate from the various types of murder one specific type which shall carry the death penalty. The fact that it does so surely marks the abandonment of the idea that the death penalty is the supreme deterrent. It also lands hon. Members with the task of having to try to solve logical difficulties which, in my opinion, are quite insoluble.

There is no logical basis for selecting one type of murder and saying that that shall be capital, while another shall not be. The hon. Member suggests that rape followed by murder is an extremely heinous form of murder, but surely the crime of murder itself is so heinous that a particular incident which leads up to it cannot make it more, or less, heinous. Murder is murder, no matter what the circumstances may be, and it is quite impossible satisfactorily to provide that some murders shall carry the death penalty and others shall not.

There is on the Order Paper an Amendment suggesting that murder by poisoning should be capital. I do not want to discuss that Amendment. But if the hon. Member thinks that murder in the course of rape is of the utmost gravity, how is he going to decide whether it is worse to murder a young woman in the process of rape or murder an old woman by poisoning her in order to get her inheritance? Is there any real difference?

Sir L. Joynson-Hicks

Not so far as I am concerned. I am in favour of capital punishment for both.

Mr. Benson

In that case, the hon. Member is at odds with his own Government.

Sir L. Joynson-Hicks

Why not?

Mr. Benson

It shows that the Government, in trying to retain some semblance of the death penalty, are landing their own supporters in very great difficulty.

The hon. Gentleman quoted as evidence that rape was the worst crime—and I am not for a moment challenging the fact that it is—that it was one of the few offences that carried the heavy sentence of life imprisonment. One cannot attempt to judge the seriousness of crimes by the penalties that the Statute Book applies to them. I do not know whether the hon. Member has ever taken the trouble to read through the list of maximum penalties which can be imposed for the 170 different categories of crime which we have today, but he will be astonished, if he does do so, at the extreme lack of logic. If I remember correctly, the maximum penalty for kidnapping a girl is two years but for kidnapping a dog it is five years.

Mr. Paget

Is my hon. Friend quoting that as an example of the logicality or illogicality of the law?

Mr. Benson

That was an example of the illogicality of the law, and I used it to warn hon. Members opposite not to take the maximum penalty as the true guide to the seriousness of the offence.

If we are to have capital murder and non-capital murder there is possibly one guide that we can accept—it is, I think, a logical guide—namely: what is likely to be the subsequent conduct of a person who commits a non-capital murder? Is he likely to become an habitual criminal; is he likely to commit further crimes or is he not? It would be perfectly logical if one could base the non-capital crimes on the probability of subsequent conduct after release.

Mr. Paget

Is the hon. Member suggesting that we should hang the mad ones?

Mr. Benson

No, I am only applying this particular test to the Amendment of the hon. Member for Chichester. He has unfortunately chosen a very bad example of that test. The curious thing is—he may not know it—that sexual crimes and crimes of violence are particularly the crimes in relation to which subsequent conduct is better than it is after crimes against property. That is an extraordinary thing, but it is so.

In the State of Illinois, which has a scientific basis of granting parole, sexual offences, offences of violence or the offence of homicide are the only three offences which are regarded as being favourable to parole. It is not only in Illinois that that particular piece of evidence applies. The Metropolitan Police, in 1938, made a very careful investigation of the subsequent conduct of about 25,000 first offenders. They found that the reconviction rate of those first offenders who had committed either sexual offences or offences of violence was incomparably better than those who had committed offences against property.

May I add one more piece of evidence? I have just finished a piece of research into adolescent criminals. I have spent most of my spare time in the last year analysing what happened to 250 youths released from Lewes Prison in 1952. Those youths, who had been convicted and imprisoned for sexual offences and offences of violence, had a far higher non-conviction rate after release than any of the other groups. It appears that wherever analysis and investigation of subsequent conduct has taken place it is in the violent cases and the sex cases that offenders have far and away the best non-conviction record after release. That would be a logical ground for choosing between which murders should be capital and which non-capital. On that basis, rape would not be included in capital murders.

Sir L. Joynson-Hicks

If the hon. Gentleman wishes me to accept his invitation, I would reply that surely his argument is designed to reduce the penalties for rape rather than to reduce the penalties for murder.

Mr. Benson

I am not discussing—it would not be in order for me to do so—the penalties for rape, except in so far as the hon. Member's Amendment concerns murder. I am trying to point out that for his particular choice of capital murder he has no evidence—it is merely that he revolts, as we all do, against the crime of rape—and if he is attempting to build a logical case for including rape and excluding theft he has to get over the difficulty that those concerned in cases of rape, homicide and violence have after release a far better record than those concerned in cases involving property.

Mr. Denzil Freeth (Basingstoke)

The hon. Member for Chesterfield (Mr. Benson) spoke of the difficulty of separating one category of murder from the whole realm of homicide. I agree with him that it is essential to take a principle and stick to it. I support the Amendment moved by my hon. Friend the Member for Chichester (Sir L. Joynson-Hicks), because it seems to me that the Government, having taken the principle, has left outside that principle something which is in fact encompassed by it.

7.0 p.m.

Unlike my hon. Friend, I should not consider that murder by poisoning came in the principle, as the Government appeared to have agreed it for the purpose of this Bill. But I believe that rape comes into it and, indeed, poisoning appears in a later Amendment, when my hon. Friends and I will part company. But I should consider the principle in order to decide whether rape should or should not be a capital murder. I do not believe that the principle to be followed is the conduct, or rather the potential conduct, of a criminal after the commission of a crime; because however excellent the conduct of certain criminals, or a great proportion of criminals, may be after the commission of their crimes, I think even the hon. Member for Chesterfield would agree that human nature and human conduct is the least predictable thing: and averages have far less validity in relation to human conduct than in relation to most other things.

Mr. Benson

Why should the hon. Gentleman say that? Practically the whole of our society runs on the fact that we rely on the average conduct of the average individual.

Mr. Freeth

I think this an occasion scarcely suitable to enter into a discussion on whether we have or have not a fear of the policeman at the gate. But I do not believe it is a suitable principle for deciding which should be capital murders and which should not to try to consider which murderers, or which criminals, in fact have the better after-crime records or are most suitable for letting out on parole.

The hon. Gentleman has told us that the most suitable people for letting out on parole are those who have committed homicide or rape, but I suggest to him that my hon. Friend was absolutely right when he said that the logic of that argument was that the punishment for those crimes should be lessened, rather than increased, and the punishment for murder should be treated as such a punishment as could include the letting out on parole of a murderer. I should regard that as excessively dangerous for the rest of the community.

Mr. Paget

As this Bill is to provide for that very thing in the case of four-fifths of the murderers, why is the hon. Gentleman supporting it?

Mr. Freeth

The hon. and learned Member is a little ahead of my argument, and not the least so because this Bill does not especially provide that murderers shall, axiomatically, be immediately allowed out on parole; which was the logic, although not said, of the hon. Member for Chesterfield. But I think that is enough on that point. We must agree to differ on it.

To my mind the main thing is not the effect of the crime, be it rape or homicide in the course of rape, upon the murderer and how much thereby he is purged and made more suitable to come out on parole, but rather the effect on the victim and on society in general. I agree with the hon. Member for Chesterfield that we cannot divide murder into degrees of heinousness. I agree with him that murder is heinousness to the ultimate degree; but I suggest that although there are not differences in heinousness, there are differences of circumstance and method, and those differences have a very severe effect upon the general health of the community. It is for that reason, and upon that principle, that I support the Amendment of my hon. Friend.

Crimes of violence are, by their very nature, those which most disturb the Queen's peace. I suggest that it is the primary duty of my right hon. and gallant Friend the Home Secretary to see that the Queen's peace is kept, and that in fact society is secure. I do not believe that society is secure unless it feels secure. We have just rejected an Amendment, so that the position under this Bill will be that the murderer of a woman who is attacked, robbed and killed will be hanged. On the other hand, if this Amendment be not accepted, while the murderer of a woman who has been attacked, robbed and killed will be hanged, the murderer of a woman who is attacked, raped and killed will not hang. There seems a relatively small difference—so small as to be non-existent in my mind—between the logic of those two cases.

Mr. Kenneth Robinson (St. Pancras, North)

Would the hon. Gentleman make clear what his hon. Friend, when moving the Amendment, did not make clear, namely, whether the Amendment is moved in order that the death penalty shall be a retribution for murder in the circumstances, or whether he really thinks that it will be a deterrent? Were the Amendment carried, would the hon. Gentleman think it would be a deterrent to rape itself or merely a deterrent to murder following or in the course of rape?

Mr. Freeth

I was just coming to that point. I am not arguing, and I have not argued, that punishment for murder should be retributive in aspect. The fact that I do not consider, and indeed reject, the idea that we can have degrees of murder according to the heinousness of the crime means that I must reject the retributive aspect as well. I believe, in fact, that it is a deterrent.

Mr. Benson

Of course it is a deterrent. Nobody denies that.

Mr. Freeth

I believe that this would be a deterrent, that it would help. If the hon. Member agrees with me, that if the death penalty were retained for murder committed in the course of rape it would be a deterrent, I hope he will support this Amendment which seeks to achieve that.

I believe it would be a deterrent first, because I believe that where we have penal servitude for life as a maximum punishment for a crime, as my hon. Friend said, we cannot impose any extra punishment for a murder committed in the course of that crime.

The hon. Member for Stoke-on-Trent, Central (Dr. Stross)—I am sorry that he is not now in the Chamber—said that if we took that argument to its logical conclusion, we should have to try to kill a person twice, if he had committed two murders in the course of a rape. I think that a little over-clever. In fact, it is a refusal to recognise that some things are impossible per se and some things are impossible because we make them so. It is impossible per se to hang a person twice. On the other hand, it is impossible, because we have made it so, to give any extra punishment to a person who kills when he has done so in the course of a rape. So my first point is that I believe the inclusion of murder committed in the course of rape as a capital crime is a deterrent. My reason is, because it is the only way of giving the extra punishment when the extra crime has been committed.

Mr. Paget

I wonder what the hon. Member means by "in course of a rape"? If it is in course of a rape, surely it is accidental and against the man's intention, because by killing he prevents the rape succeeding? So therefore it could hardly be a deterrent to what a man does not intend. On the other hand, if it is afterwards and, as was said by the hon. Gentleman who moved the Amendment, it is to conceal the crime, then that is already covered by Clause 7.

Mr. Freeth

I am grateful to the hon. and learned Member. I suggest that he takes up the legal niceties of the precise wording of this Amendment with the Home Secretary or the Attorney-General. I certainly would not pin my faith to any wording of any particular Amendment moved from the back benches; but when we have decided what we want to do, then the actual wording can be sorted out with the aid of the skill of my right hon. Friends and their many advisers.

The point at issue is that to retain the death penalty for murder committed in the course or furtherance of a rape is a deterrent because it enables an extra punishment to be given. Absence of the death penalty could, I believe, lead to the killing of the only witness to the crime.

There is one argument against the Amendment which I have not yet heard, and that is that rape and sexual crimes are by their very nature the acts of disorganised minds, by their very nature the acts of persons who are not wholly sane, and that in those cases murder committed in the course of such an act would come under Clause 2. I fully accept that. It is not for me to suggest that anybody should or should not plead Clause 2 in their own defence, but there must be many cases in which a murder committed in the course of committing a rape would not fall under Clause 2. I hope, therefore, that my right hon. and gallant Friend will accept the Amendment in order to complete the principle of deterrent and public order which I think he himself has sought to encompass in this Clause.

Mr. Anthony Greenwood

I think that we all sympathise with the hon. Member for Basingstoke (Mr. Freeth) on the ingenious, if not exactly lucid, argument which he has deployed. All of us who have sat on the back benches when our party was in power will know the hon. Gentleman's feelings when he finds himself still standing amidst the smoke of battle when the generals have deserted the field. The hon. Gentleman is still gallantly battling on in the cause of hanging when the Home Secretary has abandoned a great deal of the provision for hanging as it is at present.

It seems to me that in this Committee stage—and our experience a few minutes ago convinced me of this—the most convenient way of carrying on our discussion is for a representative of the Government to give the Government's view fairly early in our deliberations, for hon. Members on both sides then to have an opportunity to put further points to him, and then for us to have a winding up speech from the Opposition. I hope that before very long the right hon. and gallant Gentleman will give us the view of the Government and that the Government Whips will allow my hon. Friends, and perhaps some hon. Gentlemen opposite, to make certain additional points to those which the right hon. and gallant Gentleman may make. I am grateful to the right hon. and gallant Gentleman for assuring me that he will shortly give the Committee the benefit of his views. I hope that we may have some time after that in order to make any criticisms which we feel necessary.

On this Part of the Bill we on this side of the Committee have no official line. Therefore, I shall not canvass the intrinsic merits of whether it is right or wrong that the penalty for murder in the course of rape should be the death penalty. My only duty is to lay before my hon. Friends certain considerations which I think ought to be borne in mind in reaching a decision.

I should like to say as a general principle that I think it would have been much better if we had left out this Part of the Bill and had kept the whole question for a separate Bill wholly distinct from the other considerations which are included in the Measure now under discussion. It is perfectly clear, as has been emphasised in the Committee and in the Press, that the purpose of this part of the Bill is to obstruct the Private Member's Bill for the abolition of the death penalty and to circumvent the use of the Parliament Act by this House, so that, therefore, I would feel it my duty to advise my hon. Friends to oppose the Clause quite apart from its intrinsic merits.

I would also criticise the Clause because of the basic fallacy which I believe it contains. That is the fallacy that one can classify murders in the way that the Government are trying to do and in the way which the hon. Member for Chichester (Sir L. Joynson-Hicks) is seeking to extend.

7.15 p.m.

I should like to remind the Committee of the trouble caused when the Labour Government in 1948 tried to adopt a compromise solution of this kind. The then Government based their compromise proposals on the heinousness of the offences enumerated. The present Government have taken a rather different stand, but their general conclusions nevertheless remain broadly the same. During the Second Reading debate on the Bill, the Home Secretary said: We have selected the capital categories so that they cover the form of murder most inimical to the public peace and most likely to be prevented by the deterrent effect of the death penalty."—[OFFICIAL REPORT. 15th November, 1956; Vol. 560, c. 1153.] I think that is a wrong principle, but nevertheless it is a principle of some sort. If we are now to muddle up Part II of the Bill by including all sorts of heinous offences on the ground of their heinousness, we shall produce even greater confusion than the Home Secretary himself seems determined to create.

The hon. Member for Chichester and his hon. Friend the Member for Basingstoke tried to argue that this was an offence which involved the Queen's peace, but I do not think they did it in a manner which commended itself to the Committee as a whole. The hon. Member for Basingstoke said that he wanted to remind us that although it was difficult to distinguish between the heinousness of offences, nevertheless there were differences of circumstance. That is a perfectly tenable point of view, and if we are to argue on those lines it would be better to leave the law as it stands and rely on the Royal Prerogative rather than classify capital murder and non-capital murder in the way we are seeking to do.

I am certain that however much we may disapprove of Part II as it stands, for various of the grounds which I have advanced without touching for a moment upon the Tightness or wrongness of the death penalty in itself, if we accept the Amendment we shall make even bigger nonsense of the Bill than it is and we shall start creating just those kind of anomalies to which attention was drawn in another place when we tried to find a solution of this kind on a previous occasion. If the hon. Member for Chichester has his way, it will be a capital offence if a man kills a woman in the course of rape, but it will not be a capital offence if, as in the case of Mr. Christie, he murders a woman for the purpose of necrophilia. When one applies one's mind to the subject, one can think of all sorts of anomalies. If we are to start adding to this list all sorts of new offences we shall go on creating anomalies. We shall reach a situation in which a mass of judicial interpretation will be required and in which the Court of Criminal Appeal will be cluttered up by having to reach decisions upon the obscurities which hon. Members have created.

It is for that reason, as well as for the more basic objections that I have to the introduction of Part II as a whole, that I personally would feel bound to vote against the Amendment although, as I said at the beginning of my remarks, we on this side of the Committee have no official line and we shall leave it to hon. Members on this side to vote according to their consciences. I only wish that the Government would be prepared to show the courage which we show on this side.

The Secretary of State for the Home Department and Minister for Welsh Affairs (Major Gwilym Lloyd-George)

I do not think I will follow the hon. Member for Rossendale (Mr. Anthony Greenwood) into the reasons why the Bill was brought forward or why Part II was not put into a separate Bill. I should be out of order in doing so, but perhaps I may say that I do not agree with either of his observations.

I listened with great care to what my two hon. Friends the Members for Chichester (Sir L. Joynson-Hicks) and Basingstoke (Mr. Freeth) had to say in bringing forward the Amendment. While I agree with them and with everybody else who has spoken that rape is a horrible and abominable crime, I must point out that the figures my hon. Friends have given are a little in doubt. I am sorry to say that the figures of cases of rape known to the police—not convictions—have been mounting rather steadily.

It might be interesting to give the Committee the figures of actual convictions for murder arising from rape over the last 50 years. During those years, from 1901 to 1955, there were 59 persons sentenced to death for murder in the course of rape, of whom 47 were executed, 11 were reprieved and one was sent to Broadmoor. Of that number, several might not have been convicted if Clause 1 of the Bill had been in operation, and still more would not have been convicted if the principle of diminished responsibility had been in operation as well.

When I moved the Second Reading, I explained that the purpose of the Bill was not to keep capital punishment for the horrible and abominable crimes and to abolish it for others. I agree with the hon. Member for Chesterfield (Mr. Benson) and my hon. Friend the Member for Basingstoke that we cannot distinguish by statute between one murder and another on the basis of moral heinousness. Therefore we have applied the criterion of the maintenance of law and order, to which my two hon. Friends have referred.

The Bill retains the death penalty for murder by persons who prey on the public and kill while so doing; for persons who murder by means which are indiscriminate in their effect and peculiarly dangerous to the public; and for persons who use lethal violence against those whose duty is the maintenance of law and order. We have confined the death penalty to areas where its deterrent effect is most likely to operate.

It is plain, against this background, that it would not be appropriate to include murder in the course of rape among the capital categories. My hon. Friend the Member for Chichester supported the view about basing the Bill on the principle of the maintenance of law and order, but thought that somehow or other the Amendment should be fitted into that principle. I could not agree with him. The crime of rape is not in itself specially inimical to the maintenance of law and order. It is not a crime which people set out to commit, as they do, for instance, with burglary. Still less is it a crime in connection with which the offender contemplates killing.

Rape is an offence of sudden impulse. The man who murders in the course of rape does so without premeditation, in the heat of passion or indeed of panic, circumstances in which the deterrent effect of the death penalty is unlikely to operate. Further, persons who commit murder in the course of rape are not infrequently mentally abnormal, and on them the deterrent is likely to have less effect than upon a normal person. Moreover, murder in the course of rape arises not from deliberate intention to kill but, it may be, from a man's efforts to stifle a woman's cries. It is largely a matter of chance whether the force which he uses for this purpose does or does not cause death.

If the scope of capital punishment is to be narrowly limited, as it will be if the Bill becomes law, the Government do not consider that it would be right to retain it for a crime in which the deterrent force of capital punishment is unlikely to be effective and in which the question whether a man is to be liable to the death penalty or not may turn on so little.

The view has been expressed that if the death penalty is not retained for murder in the course of rape a man who may be dangerous to the public may be released after a comparatively short term of imprisonment. Men who are sentenced in future to life imprisonment for murder will be liable, as are those now sentenced to death and reprieved, to be detained for the rest of their lives. I hope, as I am sure we all do, that it will seldom be necessary, if ever, to detain a man for the whole course of his natural life, but in considering whether the time has come for a man to be discharged, successive Secretaries of State for the Home Department will, I have no doubt, consider, as I and my predecessors have done in relation to men who were reprieved, whether the individual can be released without danger to the public. I assure all hon. Members that there can be no question of release simply because a man has served a number of years. Release must depend upon fitness to be released. The responsibility of any Secretary of State will be tremendous if he ignores the advice that he gets.

I have outlined briefly the reasons why I cannot commend the Amendment to the Committee. I shall be very glad if my hon. Friends would not press it.

Mr. Frederick Willey (Sunderland, North)

I am sure we were all very interested in what the Home Secretary said but what he said is most disturbing. He suggested that we have to differentiate rape from other offences, when we are considering capital punishment, because it is often committed under sudden impulse, there is an absence of premeditation, and the death that occurs is due to chance. Another factor differentiating rape was that in looking over the cases which have occurred he had to admit that the accused persons were mentally abnormal, and if Clauses 1 and 2 of the Bill had been in force they would have been dealt with under them. Finally, the Home Secretary said, another factor was that capital punishment would not have a deterrent effect in cases of rape accompanied by murder.

7.30 p.m.

We have to pay attention to something else which the Home Secretary said. He said that in the case of men who have been charged with committing murder in the course of rape, over the past fifty years, out of 59 cases 47 men have been executed. That is far higher than the average of executions in those years. If we have to review what has happened over the past fifty years we are bound to feel that we cannot place any reliance on the Home Office, if it is to advise us on this matter.

Here we have a full and frank statement about the circumstances in which the crime has been committed. The Committee is asked to treat this class of case differently from other classes of case under this Clause, for the reasons of diminished responsibility, mental abnormality and the fact that in this class of case capital punishment is not a real deterrent. Yet I should have thought there has been a higher incidence of the infliction of capital punishment in this class than perhaps in any other type of murder. I am putting this quite impersonally, and I do not wish to reflect upon any Home Secretary—we are dealing with fifty years—but it appears that the approach of the Home Office has been completely wrong in these matters.

For that reason I am in some difficulty. I would willingly accept the advice of the Home Secretary on this Amendment, but I feel that what he has said reveals that the approach of the Home Office to this question has been absolutely fallacious.

Major Lloyd-George

I think the hon. Member means the approach of this House rather than that of the Home Office because, as he will realise, legislation makes a great difference.

Mr. Willey

I am speaking with great difficulty. I do not want to cast any reflection on any holder of the office of Home Secretary, but this indicates an attitude in the exercise of the advice given in relation to the Royal Prerogative. Today we are paying attention to the advice given to the Committee on the issue of capital punishment. We are dealing with fifty years, and what the Home Secretary has said shows the attitude of the Department is not one which can commend itself to the Committee.

Having said that, which I think ought to be said because it weighs upon other matters which we shall have to consider in due course, on this occasion I welcome the intervention of the Home Secretary. Although I find it difficult to express this with any real conviction because of the definition given by the Home Secretary as being the basis upon which the inclusion of offences in this Clause is justified, I cannot see how one can justify capital offences under this Clause on the ground of a breach of the Queen's peace. Any murder is the most offensive breach of the Queen's peace. We could not have a more offensive breach of the Queen's peace than that of killing anyone. It does not carry us further to say that we are justifying these offences on the basis of a breach of the peace.

I am in some difficulty in supporting the Home Secretary. Although I cannot accept his basis, I agree at once that we must have some basis: there must be some understood basis to justify the retention of capital offences. Although I cannot accept the basis of crimes which are offensive to the Queen's peace as being a sufficient and logical basis, I accept that there must be some basis, and it is quite clear that this particular offence is out of context in this Clause. It cannot be associated with the type of offences dealt with in the Clause. For that reason, having indicated some of the points upon which I find it difficult to support the Home Secretary, I would say on the major point that if we are to justify the designating of some murders as capital offences there must be some logical thread which brings them together and justifies them. It is quite clear that, if we look at the offences that we are considering, rape is quite out of context. Later we shall hear more from the Home Secretary in efforts to explain why the present offences are mentioned in the Clause as it stands. Awaiting that more logical explanation, which we may have in due course, I would accept—whatever the explanation may be—that rape is not an offence which can be associated with those which at present are included in the Clause.

To the hon. Member for Chichester (Sir L. Joynson-Hicks), I would say that if we are to extend the Clause to include rape we would have to go far wider. Rape can be associated with many other offences on various grounds, but one could not justify the inclusion only of rape and associate it in this Clause, for instance, with theft. Unfortunately I had not the pleasure of listening to the hon. Member when he moved the Amendment, but with my fertile imagination I cannot imagine what possible association there can be between rape and theft. Although I do not accept the justification of this Clause given by the Home Secretary, I can see some association between various offences included in this Clause. I think that it would be unwise., would cause a great deal of confusion and destroy respect for the law, if for some haphazard reason rape were included in this provision.

For that reason I hope that the Home Secretary will take note of the difficulty that I have had in following his reasoning so far, and will seek to enlighten me later when we reach other provisiosn of this Clause. For the purpose of this Amendment I am with the Home Secretary, I hope that the hon. Member who moved it will withdraw it, and allow us to proceed.

Mr. Paget

The Home Secretary made what seemed to me a most interesting speech. He told us first—I entirely agree with him—that where murder was connected with rape neither the murder itself nor the rape was something which someone set out to do. Rape and murder connected with rape were something which occurred on impulse. He told us that a high proportion of those guilty of this offence were mentally deranged and in those cases capital punishment was least likely to serve as a deterrent.

He then produced some most interesting statistics to the effect that, whereas in ordinary cases of murder the clemency of the Royal Prerogative is exercised in about half the cases, in those of this particular type of murder, which he explained so logically as the type of murder for which there ought not to be death penalty at all, the Prerogative had in fact been exercised in about one-fifth of the cases.

The right hon. and gallant Gentleman thereby provided as good an argument as could be provided against the idea that we should leave this matter to the Home Secretary and trust to the exercise of the Prerogative. Of course we cannot. In this case the Prerogative has not been exercised on the basis of logic, but very often on a basis of temper, on a basis of revolt against what appeared to be a particularly heinous crime. I am glad that from the Home Secretary's own mouth we have got that point out of the way.

Nothing could be more illogical than this Amendment. The Home Secretary has said that rapes known to the police are increasing. I should like to know how rapes are known to the police. When we have thefts or burglaries or murders, it may be difficult to know who did them but it is reasonably easy to know whether they have been done, but in rape it is immensely difficult to know whether it has happened—whether the girl was taken against her will or merely regretted her decision afterwards and provided herself with an excuse.

That is why I believe that in rape we have a higher proportion of miscarriages of justice than in any other form of crime. The girl says she said, "No," and the man says she said, "Yes," or he is too frightened of his wife to raise the proper defence. That has happened and is apt to happen. I suggest that we should not place too much reliance on figures for rape known to the police.

I remember that when the Labour Government were in power a Bill was introduced to increase the penalties for attempted rape. I opposed that Bill on the ground that I could not see the slightest point in increasing the deterrent on something which nobody tries to do. Nobody tries to attempt rape. Men try to commit rape. How do we deter them by increasing the penalty for the very thing which they are trying not to do—that is, merely to attempt rape?

Exactly the same thing has happened here. We are asked to agree that there should be capital punishment for murder committed in the course of or in furtherance of rape. Certainly a murder in the course of rape is not in furtherance of rape. A sexual assault on a dead body is not rape, and if somebody in the course of rape kills a girl, he restricts instead of furthering his objective. Murders in the course of rape are accidental and defeat the real objective. How do we deter by increasing the deterrent upon the one thing which the man is not trying to do? If, on the other hand, he murders in order to destroy evidence against himself, I should have thought that that was already covered by subsection 5 (c)—a murder done … for the purpose of … avoiding … a lawful arrest. It therefore seems that this Amendment is misguided and illogical. It reveals the emotional and irrational attitude of those who wish to retain the death penalty. It makes nonsense of the position, but the whole Bill makes nonsense, and that is therefore no particular reason for rejecting the Amendment. Nonetheless, I am glad that we intend to reject it.

Sir L. Joynson-Hicks

I must submit to the unholy alliance of the hon. and learned Member for Northampton (Mr. Paget) and my right hon. and gallant Friend the Home Secretary. I did not expect to find them in alliance to defeat me on this Amendment, but I cannot withstand that alliance. I therefore beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.45 p.m.

Mr. Paget

I beg to move, in page 2, line 40, to leave out "theft" and insert "burglary or housebreaking".

In moving this Amendment, I cannot do better than adopt the words used by the Home Secretary, since he has just been addressing us. This Bill is being justified, if it can be justified, on the law-and-order basis. If we confine it to that, how can we say that murder committed either in the course of or in furtherance of theft comes within that category? The great majority of cases of theft are not cases which involve violence at all.

I would submit that nobody in the ordinary way sets out to disturb the peace by murder in the course of theft. One does not commit murder in the course of shoplifting. I should have thought that it would be pretty rare to do so in the course of picking pockets. If somebody has his hand in a pocket, there is then a struggle, and he kills, that is not remotely something which was intended; it is not remotely something which he set out to do. Every argument against the Amendment concerning rape applies with equal force to the case of pick-pockets.

What other sorts of murder are involved? There are only two types of theft which I know of which involve the contemplation of violent means and their performance. One is burglary, which involves breaking into premises. It is true that when a man breaks into premises there is a likelihood that if he is found in those premises he may use violence if he is surprised. Housebreaking, of course, is merely burglary in the day-time. That is the legal definition. If a man breaks into a house at night, it is burglary. If he does so in the day-time, it is housebreaking.

Mr. Philip Bell (Bolton, East)

Surely the hon. and learned Gentleman can spare a few moments from the debate—although it must be very difficult for him—to read the newspapers? If he does so be will see that one of the common forms of murder in these days is for a man to go cheerfully into a shop, hit the woman shopkeeper on the head and steal the till. That is neither burglary nor housebreaking. Nor is it holding people up in the street. That is stealing, and in the course of that stealing the man uses a lethal weapon. That is quite clear.

Mr. Paget

The hon. and learned Gentleman says that that is one of the most common forms of murder. That type of murder generally takes place in a small shop which is also a dwelling house and which would, therefore, come within these provisions. The additional charge which would be included if we wished to expand this—and it could be done—would be robbery. If a man contemplates using violence in his stealing, that is robbery with violence.

I could see, if the Government were to base their case upon the conception of law and order, that then they might include with burglary and housebreaking robbery with violence. But why include all the forms of theft which certainly do not normally involve violence, which are not intended to involve violence, and which are certainly much less likely to involve violence than rape, which has just been rejected? How do they keep law and order by including the pickpockets, the sort of thief who would kill only accidently—in a struggle if he were being grabbed? It seems to be quite outside the purpose of the Bill. Here we have to deal with the two types of crime which involve violent stealing.

I do not want to take any more of the time of the Committee on this Amendment because we are anxious to hear what the Government have to say about it. I hope we shall not contemplate having another closure, and that it will be possible to answer the Government's arguments when we have heard them. That will be unnecessary of course, if it is their intention to accept the Amendment.

The Attorney-General

I am afraid I cannot accept the Amendment, which limits the operation of this provision to burglary or housebreaking. That would leave out robbery with violence, which is included in the wording as it now stands. I think the hon. and learned Gentleman is not listening. He is talking to one of his hon. Friends and I make no complaint—

Mr. Paget

I am very sorry.

The Attorney-General

There is no need for the hon. and learned Gentleman to apologise. I was saying that, under the wording of the Clause as it stands, a murder committed in the course or furtherance of robbery would come in. There can be no doubt about that. If the hon. and learned Gentleman reads paragraph (a) of the subsection with subsection (5, e) he will see. The effect of this Amendment would be to exclude that category of case. That is a category of case for the exclusion of which there is, in our opinion, no justification whatever. On an earlier Amendment I dealt with what paragraph (a) of this subsection comprehended.

The hon. and learned Gentleman asked, why include the pickpocket who would kill only accidentally? Of course, if a pickpocket kills accidentally it is probable that he will not be convicted of murder but of manslaughter. Be that as it may, if somebody intending to pick a pocket committed murder in the course or furtherance of that offence, that, too, would be robbery, and it might be robbery with violence. I can see no ground for so limiting the operation of this Clause as to exclude that category of case. That is the instance which the hon. and learned Gentleman gives. I would submit in answer to what he has said that there is really a strong case for including within the scope of the Clause murders committed in the course or in the furtherance of robbery and robbery with violence, as well as murders committed in the course of burglary or housebreaking.

Mr. Paget

I shall be perfectly satisfied with that if the right hon. and learned Gentleman will say that on Report the Government will put down an Amendment replacing "theft" with "buglary, housebreaking, and robbery with violence." I should be well satisfied.

The Attorney-General

I think there is no need to do that. The word "theft" is there because the word "theft" is particularly appropriate in view of the fact that this Clause applies to Scotland. That is why "theft" is here, and it has in our law exactly the same significance as the word "stealing". So I am afraid I cannot meet the hon. and learned Gentleman on that. I submit to the Committee that the Clause is satisfactory as it stands, and does achieve that purpose.

Mr. Paget

Surely the word "larceny," "theft," "stealing"—I assume they are all as one at the moment—is vastly wider than "burglary, housebreaking, robbery with violence"?

The Attorney-General

The hon. and learned Gentleman will see from subsection (5, e) that 'theft' includes any offence which involves stealing or is done with intent to steal. Certain forms of burglary and housebreaking are done with intent to steal. As I said before, they come in. We intend that all offences which involve stealing or are done with intent to steal should come in. That is what the Clause provides as it now stands.

Mr. Royle

Obviously, I should prefer it if none of these definitions, "theft", "burglary", "housebreaking", came within the terms of the Bill, but if I have to choose between having none of them or some of them, then I prefer that we should have, as my hon. and learned Friend the Member for Northampton (Mr. Paget) has suggested, "burglary" and "housebreaking". I prefer to have them and not to have the word "theft" for the simple reason that we possibly can to some extent define "burglary" and "housebreaking", whereas I am quite sure that, as was said on an earlier Amendment, the Attorney-General would have much more difficulty in defining "theft."

I do not think I need to detain the Committee many minutes upon this matter, but I want to put a consideration to the right hon. and learned Gentleman. Cases common in the calendars of the petty sessional courts are those concerning the taking away of motor vehicles. The offence of taking away a motor vehicle may become a much more serious matter in view of the fact that we are now to have strict rationing of petrol. It is the experience of the courts that the charge in these cases is often reduced from that of the theft of the motor car to that of the taking away of the motor car without the consent of the owner. It has been the tendency of the courts and of the prosecution in recent years to reduce the charge. However, there is often coupled with a charge of taking away without the consent of the owner a charge of theft of the petrol which is in the motor car.

I think this is a very important matter indeed. We know that there are many people who have the responsibility of prosecuting who would regard the abolition of the death penalty with some horror. Consider the case of some irresponsible youths, people like teddy boys, who take away a car without the consent of the owner and who, in the course of taking away that car, commit a murder when someone tries to restrain them. Were that to happen would there not be a tendency on the part of some people responsible for prosecution to push the charge up from taking away the car without the consent of the owner to that of stealing and that of theft? Thus, we should find that very irresponsible young people would be liable to the death penalty rather than the other punishments which are available in the Bill, because certain sections of the prosecution—and if I may say so, with respect, in some cases the police—would push the case up rather than reduce it.

8.0 p.m.

I suggest to the Attorney-General that there is here a great danger of bringing people within the terms of the death penalty because the word "theft" is maintained in the Bill whereas if, within the terms of the Amendment, the Clause were confined to burglary and housebreaking, the cases which I have used as illustrations would not apply. There is very great danger in the retention of the word "theft". Since, as a full abolitionist, I prefer to have as few people hanged as possible, I suggest that it would be a good thing to accept the words which my hon. and learned Friend the Member for Northampton has suggested.

Mr. Richard Body (Billericay)

Would the hon. Member not agree that the charge of stealing a motor car has never been brought since 1931? Almost invariably the charge is that of taking away without the owner's consent.

Mr. Royle

It has been brought on many occasions. If the hon. Member will search the records he will find many cases in recent years where people have been charged with the theft of a motor car, never mind taking away without the owner's consent. There is also the question of stealing the petrol in the tank. A person has often been charged with that, and I suggest that men are more liable to the death penalty because the offence of stealing petrol from a motor car is liable to occur more frequently at a time of petrol rationing.

Mr. Weitzman

I, too, am in favour of complete abolition, but if I have to choose between evils then I am in favour of the Amendment. It is rather important to see exactly what we are doing here. I understand that by this alteration in the law we are going to deal with what was murder punishable by death and to say that in certain cases we shall have capital murder punishable by death. If we are to lay down a class of offence which is to be designated as capital murder we ought to say with absolute precision what the offence is.

I think that the Attorney-General's answer reinforced the arguments of my hon. and learned Friend the Member for Northampton (Mr. Paget). Surely there was recognition in the words of the Attorney-General that the word "theft" is too wide. I understand that the object of Clause 5 (1, a) is to say that a murder, to be a capital murder, should be done in the course of something which involves violence. Violence would include burglary or housebreaking. It is true that it would include robbery with violence, and I am sure that my hon. and learned Friend the Member for Northampton would be content that the words "robbery with violence" should be added.

If the Clause is read in that way, and we add to it the definition in the Bill that 'theft' includes any offence which involves stealing … a difficulty arises. I remind the Attorney-General that in Section 17 of the Larceny Act, 1916, there are the words: Every person who— (1) being a clerk or servant or person employed in the capacity of a clerk or servant—

1. (a) steals any chattel, money or valuable security belonging to or in the possession or power of his master or employer; or
2. (b) fraudulently embezzles the whole or any part of any chattel, money or valuable security delivered to or received or taken into possession by him for or in the name or on the account of his master or employer …"

In the one case (a), which would cover a case of a clerk stealing a few pence from the till, we have the word "steal" used, whereas in (b) the words used are "fraudulently embezzled". The result is in one case, possibly of a person guilty of murder whilst engaged in a small theft, the man would be guilty of capital murder, whereas in the other case, where the word "embezzles" is used and a large sum of money might be involved, he would not be guilty of capital murder.

I urge upon the Attorney-General the importance of the fact that if he wants to put forward a Clause which would cover murder committed in the case of an offence coupled with violence he should say so. The words "burglary and housebreaking" with the words "robbery with violence" added would cover it, but when we insert the word "theft" we cover so many circumstances that it makes the Clause dangerous. I hope, therefore, that the Attorney-General will accept the Amendment.

Mr. Willey

I am sorry that I was unable to hear the Attorney-General when he spoke earlier on the significance of the word "theft", and I do not understand the importance of the reference which he made to Scottish law. I accept the criticisms that he has made of the Amendment, and I willingly concede that it could be improved, but I am inclined to support it because it would limit the categories of capital murder.

I wish, however, to put two points to the right hon. and learned Gentleman. We ought to make abundantly clear in the Clause the association between the offences which are enumerated. At present, it is very difficult to associate this subsection with the other subsections, and for that reason there is a good deal to be said for the Amendment, although its present form may not be the right one. At any rate, the words ought to make it quite clear that this is an attempt to associate these capital offences with what the Home Secretary described as breaches of the Queen's peace. For that reason, the word "theft" ought to go, and we should have a definition which defines those forms of theft which in themselves might be regarded as being such breaches of the Queen's peace.

The second matter is of considerable practical importance. We have now a great deal of experience of the operation of degrees of murder in the United States. What I regard as the most offensive characteristic of the administration of the law of murder in the United States is the bargaining which takes place. Most murderers in the United States plead guilty because more often than not there has been bargaining about the form of the charge—whether there will be an indictment for capital murder or not.

If, by reason of Clause 5 (1, a), this wide definition and this reference to theft widens the scope of capital murders beyond the scope which public opinion has set, and which is the Government's intention in putting forward the Clause, I think that we would unavoidably have cases in which it would be quite possible to prefer a capital charge but in which in fact that charge would not be preferred. Whether that be true or not, it would create the impression that there had been some bargaining and that the lesser charge had been preferred.

Apart from that unfortunate impression which might be left on the general public, it would place those responsible for the prosecution in a difficult position. Either they would prefer a capital charge in circumstances which they regarded as being unnecessary, or alternatively—which would be just as bad—they would prefer a capital charge and the courts would, as a matter of custom, soon find the accused not guilty of a capital charge in those circumstances.

Both these things are equally bad for the administration of law and justice. For these reasons, I hope that the Attorney-General will look at these words again to see if he can find a definition which would be more in accord with the conception of a breach of the peace as defined by the Home Secretary on Second Reading. So that although the right hon. and learned Gentleman may feel that he has a very proper criticism to make of the wording of this Amendment, I hope he can assure the Committee that between now and the Report stage he will look at this matter again to see whether he could not limit the definition and make it more in accord with the purposes of the Clause.

Sir F. Soskice

I support this Amendment, and I can put my reason shortly to the right hon. and learned Gentleman. My reason really is the one which has been expressed in different forms by more than one of my hon. Friends on this side of the Committee. I, as do many of my hon. Friends, approach this paragraph with dislike, because I would like to see the capital penalty abolished completely but, since the House approved Clause 5 on Second Reading, it is our duty to try to make it as good a Clause as it can be made.

It seems to me that the Attorney-General has not answered my hon. Friends adequately, and has not disposed of the difficulties which they have raised. May I put them in this way? If we wish to have this paragraph, it should be at least a logical and sensible one. If we wish to assist in the administration of the criminal law, we should so frame our Statutes that they commend themselves to the general public feeling of common sense. If the public find enacted by Parliament a provision which does not seem to accord with common sense, pro tanto respect for the law is diminished.

In Clause 5, the Attorney-General seeks to isolate certain offences of special gravity for one reason or another or because they are particularly against the interests of the community. Having done that, he says, "If you find a murder committed in the course, or in furtherance, of the commission of one of those offences, it is justifiable to retain for that murder the capital penalty." As far as I can see, what the right hon. and learned Gentleman does in this paragraph is to produce the extremely illogical result that the capital penalty is retained for murders committed both in the case of such serious offences and also in the case of a murder linked with comparatively, and indeed completely trivial offences.

The capital penalty is retained for a murder committed in the course of, or in furtherance of theft, and theft is widely defined in subsection (5, e). It is defined to include every kind of theft one can conceivably think of. Pinching half a crown would be theft within the meaning of the paragraph we are discussing, as elaborated by the definition paragraph later in the Clause.

It is completely illogical for the Government to ask the Committee to introduce legislation in this form—one can understand the Government saying, "You shall be visited with a penalty of death if you commit murder when you are in the course of committing, say, a serious robbery with violence." That, much as one dislikes the penalty of death, one can understand is commensurate with common sense. One can equally understand the Government saying, "You shall be sentenced to death if you commit murder when you are committing the offence of burglary." That again, much as one may dislike the penalty, one can at least reconcile with the broad principles of common sense. But what the paragraph does is to indicate, "You shall be visited with a penalty of death if you commit murder when, for example, you are stealing a ten shilling note out of sombody's pocket".

8.15 p.m.

It is utterly illogical to try to equate, within the terms of this paragraph, a trivial offence such as stealing a ten shilling note out of somebody's pocket, stealing it off a table, stealing it off a dresser in a living loom, with an extremely grave offence such as knocking an old woman down and committing a violent robbery upon her.

Mr. P. Bell

Has the right hon. and learned Gentleman heard of the widow's mite? Does he think it is nothing to take ten shillings from a poor widow? Can he laugh that off?

Sir F. Soskice

I do not know whether that is intended to be a serious contribution. Out of respect for the hon. and learned Gentleman, I must presume that it is, but I find the greatest difficulty in doing so. I will substitute the example of a ten shilling note on the dresser of the widow in her parlour and will assume that a lodger goes into that room and steals the ten shilling note. We would all dislike that conduct and we would all take an unfavourable view if the lodger behaved in that way, whether the landlady was a widow or a comfortably married woman. But I put it to the hon. and learned Gentleman that such an offence is not only not so serious but not nearly so serious as the offence of going up to an old lady in the street, bashing her on the head, knocking her down and stealing with violence from her. If the hon. and learned Member for Bolton, East (Mr. Philip Bell) thinks otherwise, I cannot take the matter further and we must agree to differ.

My complaint against this paragraph is that it combines within its scope the most trivial and the most serious offences. It says that in the case both of the extremely trivial offence and of the extremely serious offence, if a murder is committed in the course of committing that offence, serious or grave, the penalty of death shall be retained for murder in those circumstances.

That is the objection I have to this Clause, and that is why I support the Amendment. The right hon. and learned Gentleman has made criticisms about the effect of the Amendment and the wording chosen by my hon. and learned Friend in framing it. That, one is used to, and the right hon. and learned Gentleman has at his elbow the extremely skilled assistance of Parliamentary draftsmen who, no doubt, if he accepts the criticism which we are venturing to voice, can easily put those defects right. Perhaps I should not say "easily," because draftsmanship is a highly skilled occupation. However, they can do it because it is within their powers and their competence.

For those reasons, I must confess that I feel disappointed by the answer of the Attorney-General. In effect, it was that my hon. Friends on this side of the Committee need not have any anxiety, because everything is covered which they can think of. That is just their anxiety. Their anxiety is that too much is covered, that the most trivial and unimportant types of theft are brought into the scope of this paragraph, with the appallingly serious consequences which may ensue for the person who finds himself charged within its scope.

For those reasons, I confess that I feel disappointed with the right hon. and learned Gentleman's answers. Speaking for myself, I very much hope that my hon. Friends, inasmuch as the Attorney-General has given them no hope even that he will take the Clause back and think about it further, will register their disappointment by going into the Division Lobby in support of the Amendment.

The Attorney-General

I should like to reply to the right hon. and learned Gentleman the Member for Newport (Sir F. Soskice). I am afraid I cannot give the undertaking for which he asks. I agree with what he said at the beginning of his speech, that this should be a logical and sensible paragraph. I think it is. Indeed, I do not think that the right hon. and learned Gentleman's criticisms of it stand examination.

I am astonished to hear the right hon. and learned Gentleman put forward the argument that the seriousness of the crime of murder committed in the course of a theft, whether it be a capital murder or not, should depend upon the value of the property stolen. What he was saying in his criticism of the Clause was that it comprehended too much. He said it comprehended the pinching of half a crown, the stealing of a ten shilling note out of someone's pocket, a trivial kind of offence; but a murder committed to steal a small sum is not a trivial offence. Consequently, I suggest to the right hon. and learned Gentleman that one cannot take the test of whether the ultimate offence committed is for a trivial amount or not.

The right hon. and learned Gentleman said, in terms, that the provision was made for murder linked with trivial offences. We do not apply that test. In our view, this is a logical and sensible paragraph which achieves the result that anyone who murders in the course of or in furtherance of a theft—"theft" includes stealing and any offence with intent to steal—shall be liable to the death penalty. There is always in reserve the Royal Prerogative. However, to seek to distinguish between categories of cases— if I understood the right hon. and learned Gentleman aright, and I think I did because he repeated it several times—depending on the value of the amount stolen would, in my view, be highly illogical. That is why I submit, although we could argue it for some time, that the logicality is on this side of the Committee in respect of this provision.

In answer to the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman), who reminded us of the definition of larceny in the Larceny Act, one is, of course, familiar with that definition. I would merely say to him that "theft" is defined as including "stealing" in Clause 5 (5, e). It is "stealing" which is defined in the Larceny Act, and "stealing" must, in my submission, be included here—"stealing", whether it is robbery, robbery with violence or housebreaking with intent to steal.

I would just add that "theft", in my view, has no different significance from "stealing". "Larceny" was not used in Clause 5 (1, a), as I agree it might have been used if that provision was applying only to England. I am advised that "larceny" is a term unknown in the Scottish law. Therefore, if we used the word "larceny", which has the same signification as "theft" normally used, apart from the definition here, it would mean that we should have to have a whole series of special provisions relating to Scotland, which would really be quite unnecessary. I assure the Committee that, so far as I can see, there is no ground for fearing that the present wording of the Clause goes further than the Government's intention.

I would also say in answer to the hon. and learned Member for Stoke Newington and Hackney, North that it was not the intention in the Clause to make provision for murders committed in the course of an offence coupled with violence. Some housebreaking is not coupled with violence; indeed, housebreaking is very seldom coupled with violence to members of the public. What is intended is to retain the deterrent of the death sentence for murders done in the course of or furtherance of those offences of stealing or of offences committed with intent to steal.

The hon. Member for Sunderland, North (Mr. Willey) expressed the view that "theft" should go. Whether I have satisfied him or not about that, I do not know. However, I think there is no difficulty about the application of the Clause. As to the question of bargaining, I am not familiar with how proceedings in the courts in America work out in relation to matters of that sort, but, with the usual standards of professional conduct in this country, I do not think that the insertion of a provision of this kind would be in the least likely to lead to the kind of bargaining which the hon. Gentleman and I would both deplore.

The hon. Member for Salford, West (Mr. Royle) referred to a charge in respect of a motor car being reduced to that of taking the vehicle without the owner's consent. I really do not think that one would prefer a charge of murder under this Clause unless it was clear that the murder was committed in the course of or in furtherance of stealing the car. I would point out to the hon. Member that, in the instance which he gave, it is not that one would find the car being taken in the course of or in the furtherance of the murder. What one has to find is that the murder was committed in the course of or in the furtherance of the theft for the purpose of the stealing or in the course of committing the theft. I do not think that the hon. Member's fears on that point are such as ought to keep him awake at night.

Mr. Royle

I quoted words common in the charge. Stealing petrol would make the defendant liable to the death penalty.

The Attorney-General

I do not agree. The murder would not be committed in the course of or furtherance of stealing petrol. One never knows what circumstances may arise in future, but I should have thought that most unlikely in relation to the car offences about which the hon. Member was speaking so far as murder was concerned. When he talks about what charges might or might not be preferred, I would ask him to bear in mind that it does not matter what charges the prosecution prefers. The ultimate decision upon the charges is that of a jury subject to a judge's direction. I see the hon. Member making a face. It is no good his doing that, because what I have just described is a great safeguard in relation to charges of murder and in relation to charges which are to be preferred under this provision.

I am sorry to disappoint the right hon. and learned Gentleman. I have sought to deal with his argument. I have certainly not sought—I am sure he will acquit me of this—to misrepresent it. Nevertheless, it is one that I am afraid I cannot accept, and in the circumstances I cannot undertake to look at the wording again, because, in my view, the wording carries out the Government's intentions.

8.30 p.m.

Sir F. Soskice

I am certain that the right hon. and learned Gentleman is not trying to misrepresent my argument, and that it must be my fault in not choosing language sufficiently clear to make known to him the burden of my contention. Of course I do not contend and never did contend that the gravity of the offence was dependent on the value of what was stolen, but there are serious cases of stealing, whatever the value of the article stolen, and there are trivial cases.

If one knocks down an old lady and injures her and steals even 6d. out of her purse, that is obviously a serious case of stealing, although the amount stolen is minute. If one goes into somebody's room and steals from the dresser £1 which one hopes nobody will notice, that is what ordinary people would call a trivial and unimportant case of stealing.

The Attorney-General rose—

Sir F. Soskice

I will not give way. The Attorney-General did not give way while I was speaking, and knowing what happened on a previous occasion this afternoon I am rather reluctant to give way.

May I make plain to him that what I was distinguishing between was serious offences which consist of ordinary stealing or consist of burglary, and trivial cases of the kind I indicated. I do not and never did measure the seriousness of the offence by reference to the amount involved in the theft. I am very sorry that the Attorney-General should attribute to me what I should myself also describe as such a very surprising argument. I certainly did not use it.

The Attorney-General

I cannot follow the right hon. and learned Gentleman in the distinction which he seeks to draw between murder committed for the purpose of stealing a 10s. note off a dresser which apparently he would regard as a trivial offence and murder committed from the point of view of—

Sir F. Soskice

May I raise this further point? This is another query on which my hon. Friends have had no satisfaction. The Attorney-General says "for the purpose of committing the offence". That is not what the Bill says, and my hon. Friends have called attention to that fact. The Bill says: … murder done in the course or furtherance of theft; In other words, it need not be for the purpose of theft that the murder is committed; all that is requisite is that it should be "in the course of".

If some one sees a £1 on the dresser, is suddenly surprised by the owner coming in, loses his head, strikes and kills him, that results in capital murder being committed, with the result that the death penalty is entailed. That seems to be perfectly illogical, and we are trying to give some logical structure to this part of the Clause. I am reminded of that by the interpretation which the Attorney-General has just given that there needs to be a purpose to commit the theft. I must confess that I am considerably reinforced in the view which I have formed, and I hope that my hon. Friends will go into the Division Lobby.

Mr. Weitzman

Supposing a man is struggling with another man, endeavouring to get hold of some article to which he quite wrongly believes that he has a claim of right, and in the course of the struggle he kills that person; if he has a claim of right, or believes he has a claim of right, he is not stealing. If he does not believe he has a claim of right, he is guilty of theft. In the one case he is guilty of murder and in the other case guilty of capital murder. That is a good illustration of the difficulty which the Clause raises.

Dr. Stross

This is very confusing to lay people. I am sure that the Attorney-General can more easily answer his legal colleagues on both sides of the Committee than lay people who will be jurymen and women and who will have to decide the degree of responsibility and punishment in these extraordinary cases. I am sure in my own simple fashion that I am much nearer to the ordinary folk than the legal luminaries who are able to bandy talk with each other in a way which we find illuminating, but none the less confusing.

Every hon. Member has the right, if he is fortunate enough to catch your eye, Sir Gordon, to put his mind at rest and ask for assistance. We are all equal, although hon. and learned Gentlemen are often more equal than others. I know that there is an old phrase which has been used in English law for about 800 years. It is old dog Latin and I am not certain whether I can translate it properly. It has a very strong bearing on what we are discussing. It is Actus non facit reum nisi mens sit rea. I wonder if the Attorney-General will agree that literally that means that the act is not criminal, unless the mind had criminal intent.

I am advised that it has also been interpreted as meaning not quite that, but that the jury should inquire whether there is an intention to commit the crime, because if a man does not intend to be criminal when he does something, then the judge may very well rule that he is innocent and should be acquitted. Am I right? My hon. Friends tell me that I may be nearly right.

Mr. Paget

Most tags mean something quite different from what they say. Most legal people refer to it as meaning that in some offences, on some occasions, some intention is necessary—and one is not quite certain which.

Dr. Stross

That is a further example of the difficulty that some of us, at least, are in.

I assure you, Sir Gordon, that I am not attempting to waste time, but am seeking information. When I saw that the word "theft" was causing confusion in the minds of some of my hon. Friends I tried to fortify myself by finding out what it meant. I went to the Library and obtained "Cases of Criminal Law" by Cross and Jones, published in 1953, and looked up the index. I found that the word "theft" does not exist in it. There is the word "stealing," and when I looked that up it referred me immediately to" larceny." Under the heading of "larceny" I found 25 cases fully and carefully described. This makes me believe that my hon. and learned Friend the Member for Northampton (Mr. Paget) is probably quite right—as are some of his colleagues—in objecting to the use of the word "theft," and in asking the learned Attorney-General to reconsider the matter and insert something a little more limited.

Earlier, I put to one of my hon. Friends the hypothetical case of a man who had taken a watch to a watchmaker and asked for it to be repaired. The question I put in connection with that was not a facetious one; I believe that it is important. Let us suppose, in such a case, that a man gives his watch over the counter and later, when he goes to collect it, he finds that he has lost his receipt. He is told by the watchmaker that he never brought a watch; they lose their tempers and there is a struggle between the two, as a result of which the man who has asked for his watch is killed. In this suppositious case it is proved at the trial that in fact the watch had been delivered and that it had been sold by the watchmaker.

In this struggle, in which there was never any intent to kill, a man died. Was he, then, killed in the process of theft? If so, we are getting on to very thin ice. There is all the difference in the world between breaking into a house—where it can be proved that there was at least a callousness, if not an actual intent to kill as well as to rob—and trying to snatch a handbag, tripping up someone who attempts to detain one and, as a result, killing him because he falls to the ground. Should the latter person also be charged with a capital offence?

That is what confuses us. I am sure that it will confuse the men and women on the juries, and I therefore ask one last question of the Attorney-General. Earlier on he mentioned the First Schedule, and pointed out the words at the beginning, namely: On an indictment charging a person with capital murder he may be found not guilty of capital murder but guilty of murder. If we pass the Clause as he wishes us to pass it, is there any way out, as there might appear to be according to those words? Can a judge direct a jury in that way? I should like to know, because that would affect some of our mnids and at least temper the rather ill wind.

The Attorney-General

If the judge did not think that the evidence was sufficient to bring the case within the terms of the Clause, it would be his duty to direct the jury to return a verdict upon the lesser charge.

Dr. Stross

I have one more question before I sit down for good—or, at least, for a while. We know that nobody can be proved to have been a thief unless there is proof of his intention to steal. That is common sense, although it may not be law. Are we also to have an assurance from the right hon. and learned Gentleman that there will not be a threat of a capital charge unless it is proved that there was an intention to kill as well as to steal?

The Attorney-General

The offence of murder would have to be established in all these cases. All that this Clause does is to provide that where a murder is proved, if that murder was done in certain circumstances, capital punishment should follow, or may follow; but it does not alter the ingredients of the offence of murder.

Mr. P. Bell

I rise in the first place to give myself the pleasure of saying "Sir Gordon" and, secondly, to change the bowling a little. It is getting a little tiresome to listen to hon. Members opposite, particularly as they are not, of course, bowling at any stump at all—we all realise that.

For the sake of the record, let me tell the right hon. and learned Gentleman who was a little abrupt to me that the wickedness of stealing does not depend on the amount stolen.

We have had confessions on one side that we do not want any executions at all and we will do anything to put something in the Bill to get rid of hanging; but some of us take a different view on this side. I think that hanging should in fact be retained, and retained for more offences than the Government are suggesting, but let us try to direct our minds to what this Clause is doing.

The Clause says, or I understand it says, that there are certain matters of civic importance which we must preserve, such as sanctity of property, for, of course, stealing has to deal with property and the sanctity of property is one of the things that the State must stand by. Then it says that any killing in the course of invading property is, first of all, more serious than other killing because it is an attack on property and because it is the sort of killing that is likely to be, but is not always, premeditated and, therefore, deserves capital punishment.

The two things are linked, say the Government. Killing in the course of stealing is likely to be premeditated. People do not often carry lethal weapons on them in the course of stealing unless they are determined to use those weapons if they get in any difficulty. It is necessary for the security of property and to give confidence to people in their houses and in their property to treat that type of killing with particular severity. The Government must say that if anyone is killed by someone else when trying to take their property, "We cannot stop it, but we will put as big a deterrent as we can," and that is what they do by this Clause.

It is an interesting observation, particularly for hon. Members opposite, that of course behind that there is a trivial theft. No one is bothering whether the theft is trivial or not. The killing is not trivial. It is not a trivial thing. Whether or not it is linked with a trivial theft, or what people think trivial, misses the whole point. No theft is trivial because it is, in fact, taking away the sense of security of property. People cannot say, "It is a trivial theft and we cannot take strong methods to protect ourselves." Under the law as it stands people can take strong methods to defend themselves from trivial theft. No one bothers when they are defending their property whether the law regards it as trivial or not; it is theft.

I am reminded of the person who objected to the theology that, after all, it was rather hard to turn everyone out of the Garden of Eden just for stealing an apple. It was not just stealing an apple; it was disobedience. It did not matter very much whether it was an apple or not. Capital punishment is linked with stealing not because of the amount of the stealing, but because insecurity of property is itself a destructive disease of civilisation. If that be so, we must in fact support property by saying that any killing in the taking of property must be restrained by the largest punishment that is necessary as a deterrent. That is the argument. I do not accept it entirely, because I believe that there is a great deal more in the matter of punishment than the matter of deterrence, but that is another argument.

8.45 p.m.

Dr. Horace King (Southampton, Itchen)

May I put one question to the hon. and learned Gentleman? Since we are not hanging for murder, and under this Bill we are not hanging for murder, does not the hon. and learned Gentleman realise that all he has been arguing for so passionately is hanging for stealing?

Mr. P. Bell

We are, in fact, hanging for murder under this Bill. Perhaps the hon. Gentleman might read the Bill again. There is to be hanging for murder.

Mr. Paget

The hon. and learned Member for Bolton, East (Mr. Philip Bell) tells us that this is all in order to protect the great principle of the sanctity of property. He ascribed that as the Government's argument. I did not see any great enthusiasm displayed on the Front Bench opposite over that. In fairness to the Government, I will not go so far as the hon. and learned Gentleman in ascribing motives to them. If we were seeking to judge for the purpose of the hon. and learned Member, which is to protect property, we should include arson, which I think a greater danger to property than theft. We should include malicious damage to property, and trespass. We should include damage to young trees— and they did, once. All these were made capital offences.

Mr. P. Bell

I am not suggesting that there should be capital punishment to protect property. I am saying that a killing in the course of attacking property becomes a more serious killing than one unaccompanied by that ingredient.

Mr. Paget

I am taking the logic of the argument and stating history to the hon. and learned Gentleman. Indeed it was the sanctity of property which had to be protected by law in the Tory tradition, and all these offences against property were made capital for that reason.

We are dealing with something quite different, and this is where the curious confusion of mind in which we are involved arises. This is interesting, because it illustrates the point so well. The Attorney-General said to my right hon. and learned Friend the Member for Newport (Sir F. Soskice) that the stealing of £1 off a dresser was not trivial if murder was committed to do it. There is the confusion of mind. Murder is never trivial. It is the gravest of offences. Murder cannot effectively be categorised in terms of heinousness by any category which man can devise. That is said by everyone who has examined the question, including the Royal Commission. But that is precisely what we are trying to do here. We are not considering whether the crime is grave. If it be murder, it is always grave. We are trying to find some logical theme by which we may say that some of the grave and heinous crimes of murder merit death, and some do not.

The test of heinousness has been expressly rejected by the Government. They say right away that they do not accept the test. They say that, because wherever that test has been applied its fallacy has been exposed. They say, "We must have a new test," and the new test they have thought of is what they describe as law and order. The purpose of the debate has been to discover what they mean by law and order. We have been trying very hard. It certainly does not mean all crime.

The Deputy-Chairman (Sir Gordon Touche)

I am sorry to interrupt the hon. and learned Gentleman. The purpose of the Amendment is much more limited than that.

Mr. Paget

I respectfully agree, Sir Gordon. Of course it is, but I am dealing with the argument, which is a great deal wider than that, which has been advanced by the Attorney-General for rejecting the Amendment. As I was saying, and I humbly submit that this is in order, the line taken by the Government is that there is some coherent idea which they describe as "law and order," and that law and order involves including theft instead of preferring a more precise language. I am trying to understand what they mean by that, because they have already rejected the question of heinousness as the test.

I thought that we began to get some sort of clue on the last Amendment, which was rejected precisely because that did not involve law and order although the lawful and orderly rape strikes me as almost as odd as the lawful and orderly murder. But the explanation why that was not included was that rape was not something which somebody sets out to commit. If I am right in following this through, and I will give way immediately to the Attorney-General if I am wrong, an offence against law and order is an offence in which somebody sets out to hack his unlawful way by force. Apart from that, I have the greatest difficulty in discovering any logical test to which one can apply to decide which crimes, taken in context with murder, should be punishable by capital punishment because the crimes involve attacks upon law and order. I venture to say that the only semblance of a test we have yet seen is that of the crime in which force is contemplated as the means of achieving the unlawful end.

If that be the test, let us apply it here if murder takes place in the course of any kind of theft other than robbery with violence, in which by very definition force is the means by which the theft is to be done. I concede to the Attorney-General immediately that he can add this to burglary and housebreaking if he wishes. Burglary and housebreaking involve at least the level of violence of breaking into another's dwelling-house, and certainly we have always had the conception of that very special right of privacy which is described vaguely by laymen in the phrase, "An Englishman's home is his castle". It is justified by law that if I find that somebody has broken into my house I can shoot him dead, and I am entitled to do so; it is justifiable homicide. I we give that sort of right to the householder, then the man who breaks in has accepted the test of violence and it is, perhaps, reasonable upon that test.

What of the other tests? What of the embezzling clerk who pockets the money of his employer? He is certainly not a man who sets out to achieve his ends by violence. If in the course of doing that he kills by resorting to violence, he is like every murderer who resorts to violence. Murder is a violent think to do. Every murder is, by definition, the most elementary and the gravest of the breaches of the conception of law and order.

The test cannot be of murder alone. It must be of its circumstances. The crime itself involves the conception that it has to be carried out by force. Let us take the pickpocket; he is not somebody who contemplates force in what he sets out to do. The shopbreaker is not somebody who contemplates force. There is a vast complexity in what we have to consider when deciding what test to apply. There is the question of the claim of right. Indeed, the cases where force is most likely are those in which a man decides to assert some offensive claim by violence. Is the question of murder to depend upon the technical question of the validity of his claim of right? To have this wide, vague, utterly ineffective test of what shall be a capital murder and what shall not be a capital murder is utterly offensive to our whole principle of criminal law.

The Attorney-General did not mention a single case which did not fall within the terms of robbery with violence, burglary or housebreaking. Why extend it further? That is the whole point of what we are saying. If we are to do this thing let us at least try to be reasonably close in our definitions. The Lord Chief Justice said—this has been quoted before— I believe that in the criminal law there are three very desirable principles which we should all strive to attain. The first is simplicity. Could anything be more complicated than the Clause? The second is certainty. Among all the technical considerations of the Clause we lose certainty. The third is that, in its application, … it should be neither fortuitous nor capricious. What could be more capricious than this? I urge the Attorney-General to have another look at it. We will accept, as I have already indicated, the additional case of robbery with violence.

Question put, That "theft" stand part of the Clause:—

The Committee divided: Ayes 207, Noes 145.

Division No. 17.]	AYES	[9.0 p.m.
Agnew, Cmdr. P. G.	Graham, Sir Fergus	Moody, A. S.
Aitken, W. T.	Grant-Ferris, Wg Cdr. R. (Nantwich)	Mott-Radclyffe, C. E.
Allan, R. A. (Paddington, S.)	Green, A.	Nabarro, G. D. N.
Anstruther-Gray, Major Sir William	Gresham Cooke, R.	Nairn, D. L. S.
Arbuthnot, John	Grimston, Hon. John (St. Albans)	Neave, Airey
Armstrong, C. W.	Grimston, Sir Robert (Westbury)	Nicholson, Godfrey (Farnham)
Ashton, H.	Grosvenor, Lt.-Col, R. G.	Nicolson, N. (B'n'm'th, E. & Chr'ch)
Atkins, H. E.	Gurden, Harold	Oakshott, H. D.
Baldock, Lt.-Cmdr. J. M.	Hall, John (Wycombe)	O'Neill, Hn. Phelim (Co. Antrim, N.)
Banks, Col C.	Harris, Frederic (Croydon, N. W.)	Orr, Capt. L. P. S.
Barber, Anthony	Harrison, Col. J. H. (Eye)	Osborne, C.
Barter, John	Harvey, Air Cdre. A. V. (Macclesfd)	Page, R. G.
Beamish, Maj. Tufton	Harvey, John (Walthamstow, E.)	Pannell, N. A. (Kirkdale)
Bell, Philip (Bolton, E.)	Harvie-Watt, Sir George	Partridge, E.
Bennett, F. M (Torquay)	Heald, Rt. Hon. Sir Lionel	Peyton, J. W. W.
Bevins, J. R. (Toxteth)	Heath, Rt. Hon. E. R. G.	Pickthorn, K. W. M.
Bidgood, J. C.	Hicks-Beach, Maj. W. W.	Pitt, Miss E. M.
Biggs-Davison, J. A.	Hill, Mrs. E. (Wythenshawe)	Pott, H. P.
Birch, Rt. Hon. Nigel	Hirst, Geoffrey	Powell, J. Enoch
Bishop, F. P	Holland-Martin, C. J.	Price, Philips (Gloucestershire, W.)
Body, R. F.	Hornby, R. P.	Profumo, J. D.
Boothby, Sir Robert	Horobin, Sir Ian	Raikes, Sir Victor
Boyd, T. C.	Horsbrugh, R. Hon. Dame Florence	Ramsden, J. E.
Boyd-Carpenter, Rt. Hon. J. A.	Howard, Hon. Greville (St. Ives)	Rawlinson, Peter
Boyle, Sir Edward	Hughes Hallett, Vice-Admiral J.	Redmayne, M.
Braine, B. R.	Hughes-Young, M. H. C.	Remnant, Hon. P.
Braithwaite, Sir Albert (Harrow, W.)	Hutchison, Sir Ian Clark (E'b'gh, W.)	Renton, D. L. M.
Brooke, Rt. Hon. Henry	Hylton-Foster, Sir H. B. H.	Rippon, A. G. F.
Buchan-Hepburn, Rt. Hon. P. G. T.	Iremonger, T. L.	Robinson, Sir Roland (Blackpool, S.)
Butcher, Sir Herbert	Irvine, Bryant Godman (Rye)	Roper, Sir Harold
Butler, Rt. Hn. R. A. (Saffron Walden)	Johnson, Dr. Donald (Carlisle)	Ropner, Col. Sir Leonard
Campbell, Sir David	Johnson, Eric (Blackley)	Russell, R. S.
Carr, Robert	Joseph, Sir Keith	Schofield, Lt.-Col. W.
Cary, Sir Robert	Joynson-Hicks, Hon. Sir Lancelot	Scott-Miller, Cmdr. R.
Chichester- Clarke, R.	Kaberry, D.	Sharples, R. C.
Clarke, Brig. Terence (Portsmth, W.)	Keegan, D.	Simon, J. E. S. (Middlesbrough, W.)
Cole, Norman	Kimball, M.	Smithers, Peter (Winchester)
Conant, Maj. Sir Roger	Kirk, P. M.	Spearman, Sir Alexander
Cooper-Key, E. M.	Lambert, Hon. G.	Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)
Cordeaux, Lt.-Col. J. K	Leavey, J. A.	Steward, Harold (Stockport, S.)
Corfield, Capt. F. V.	Leburn, W. G.	Steward, Sir William (Woolwich, W.)
Craddock, Beresford (Spelthorne)	Legge-Bourke, Maj. E. A. H.	Stoddart-Soott, Col. M.
Crosthwaite-Eyre, Col. O. E	Legh, Hon. Peter (Petersfleld)	Storey, S.
Crouch, R, F.	Lindsay, Hon. James (Devon, N.)	Studholme, Sir Henry
Crowder, Petre (Ruislip—Northwood)	Lindsay, Martin (Solihull)	Sumner, W. D. M. (Orpington)
Currie, G. B. H.	Linstead, Sir H. N.	Taylor, William (Bradford, N.)
Dance, J. C. G.	Lloyd-George, Maj. Rt. Hon. G.	Temple, J. M.
Davidson, Viscountess	Longden, Gilbert	Thomas, P. J. M. (Conway)
D'Avigdor-Goldsmid, Sir Henry	Lucas, Sir Jocelyn (Portsmouth, S.)	Thornton-Kemsley, C. N.
Deedes, W. F.	Lucas-Tooth, Sir Hugh	Tiley, A. (Bradford, W.)
Donaldson, Cmdr. C. E. McA.	Macdonald, Sir Peter	Tilney, John (Wavertree)
du Cann, E, D. L.	Mackeson, Brig. Sir Harry	Turton, Rt. Hon. R. H.
Duncan, Capt. J. A. L.	Mackie, J. H. (Galloway)	Vane, W. M. F.
Duthie, W. S.	McLean, Neil (Inverness)	Vaughan-Morgan, J. K.
Eden, J. B. (Bournemouth, West)	Macmillan, Rt. Hn. Harold (Bromley)	Vickers, Miss J. H.
Elliot, Rt. Hon. W. E.	Macmillan, Maurice (Halifax)	Vosper, D. F.
Emmet, Hon. Mrs. Evelyn	Macpherson, Niall (Dumfries)	Wall, Major Patrick
Errington, Sir Eric	Maddan, Martin	Ward, Hon. George (Worcester)
Fell, A.	Maitland, Cdr. J. F. W. (Horncastle)	Waterhousre, Capt. Rt. Hon. C.
Finlay, Graeme	Maitland, Hon. Patrick (Lanark)	Webbe, Sir H.
Fisher, Nigel	Manningham-Buller, Rt. Hn. Sir R.	Wells, Percy (Faversham)
Fletcher-Cooke, C.	Markham, Major Sir Frank	Whitelaw, W. S. I. (Penrith & Border)
Fort, R.	Marlowe, A. A. H.	Williams, Paul (Sunderland, S.)
Freeth, D. K.	Marples, A. E.	Wills, G. (Bridgwater)
Galbraith, Hon. T. G. D.	Marshall, Douglas	Wilson, Geoffrey (Truro)
George, J. C. (Pollok)	Maude, Angus	Wood, Hon. R.
Gibson-Watt, D.	Mawby, R. L.	Woollam, John Victor
Glover, D.	Maydon, Lt.-Comdr, S. L. C.
Godber, J. B.	Milligan, Rt. Hon. W. R.	TELLERS FOR THE AYES:
Comme-Duncan, Col. Sir Alan	Molson, Rt. Hon. Hugh	Mr. E. Wakefield and Mr. Bryan.
Ainsley, J. W.	Hayman, F. H.	Plummer, Sir Leslie
Albu, A. H.	Herbison, Miss M.	Popplewell, E.
Allaun, Frank (Salford, E.)	Holman, P.	Price, J. T. (Westhoughton)
Awbery, S. S.	Holmes, Horace	Probert, A. R.
Bacon, Miss Alice	Holt, A. F.	Proctor, W. T.
Balfour, A.	Howell, Denis (All Saints)	Randall, H. E.
Bence, C. R. (Dunbartonshire, E.)	Hubbard, T. F.	Rankin, John
Benn, Hn. Wedgwood (Bristol, S. E.)	Hughes, Cledwyn (Anglesey)	Redhead, E. C.
Benson, G.	Hughes, Emrys (S. Ayrshire)	Reeves, J.
Beswick, F.	Hughes, Hector (Aberdeen, N.)	Roberts, Goronwy (Caernarvon)
Bevan, Rt. Hon. A. (Ebbw Vale)	Hunter, A. E.	Ross, William
Blackburn, F.	Hynd, J. B. (Attercliffe)	Short, E. W.
Braddock, Mrs. Elizabeth	Irving, S. (Dartford)	Silverman, Julius (Aston)
Brockway, A. F.	Isaacs, Rt. Hon. G. A.	Simmons, C. J. (Brierley Hill)
Brown, Thomas (Ince)	Jeger, Mrs. Lena (Holbn & St. Pncs, S.)	Skeffington, A. M.
Butler, Herbert (Hackney, C.)	Johnson, James (Rugby)	Slater, Mrs. H. (Stoke, N.)
Butler, Mrs. Joyce (Wood Green)	Jones, David (The Hartlepools)	Slater, J. (Sedgefield)
Callaghan, L. J	Jones, Jack (Rotherham)	Smith, Ellis (Stoke, S.)
Castle, Mrs. B. A.	Jones, J. Idwal (Wrexham)	Sorensen, R. W.
Chetwynd, G. R.	Jones, T. W. (Merioneth)	Soskice, Rt. Hon. Sir Frank
Coldrick, W.	King, Dr. H. M.	Steele, T.
Collick, P. H. (Birkenhead)	Lawson, G. M.	Stewart, Michael (Fulham)
Collins, V. J. (Shoreditch & Finsbury)	Lee, Frederick (Newton)	Strachey, Rt. Hon. J.
Corbet, Mrs. Freda	Lindgren, G. S.	Stross, Dr. Barnett (Stoke-on-Trent, C.)
Craddock, George (Bradford, S.)	Logan, D. G.	Summerskill, Rt. Hon. E.
Cullen, Mrs. A.	Mabon, Dr. J. Dickson	Sylvester, G. O.
Dalton, Rt. Hon. H.	MacColl, J. E.	Taylor, Bernard (Mansfield)
Davies, Rt. Hon. Clement (Montgomery)	McInnes, J.	Thomson, George (Dundee, E.)
Davies, Ernest (Enfield, E.)	McKay, John (Wallsend)	Thornton, E.
Davies, Harold (Leek)	MacPherson, Malcolm (Stirling)	Usborne, H. C.
Davies, Stephen (Merthyr)	Mallalieu, E. L. (Brigg)	Viant, S. P.
Deer, G.	Mann, Mrs. Jean	Wade, D. W.
de Freitas, Geoffrey	Marquand, Rt. Hon. H. A.	Weitzman, D.
Dodds, N. N.	Mason, Roy	Wheeldon, W. E.
Dugdale, Rt. Hn. John (W. Brmwch)	Mitchison, G. R.	White, Henry (Derbyshire, N. E.)
Edwards, Robert (Bilston)	Monslow, W.	Wilkins, W. A.
Evans, Albert (Islington, S. W.)	Morris, Percy (Swansea, W.)	Willey, Frederick
Fernyhough, E.	Moyle, A.	Williams, Rev. Llywelyn (Ab'tillery)
Fraser, Thomas (Hamilton)	Neal, Harold (Bolsover)	Wills, Eustace (Edinburgh, E.)
Gaitskell, Rt. Hon. H. T. N.	Oliver, G. H.	Wilson, Rt. Hon. Harold (Huyton)
Greenwood, Anthony	Orbach, M.	Winterbottom, Richard
Grey, C. F.	Oswald, T.	Woodburn, Rt. Hon. A.
Griffiths, David (Rother Valley)	Paget, R. T.	Woof, R. E.
Griffiths, Rt. Hon. James (Llanelly)	Paling, Rt. Hon. W. (Dearne Valley)	Yates, V. (Ladywood)
Hale, Leslie	Pannell, Charles (Leeds, W.)	Younger, Rt. Hon. K.
Hall, Rt. Hn. Glenvil (Colne Valley)	Parker, J.	Zilliacus, K.
Hamilton, W. W.	Pearson, A.
Hannan, W.	Peart, T. F.	TELLERS FOR THE NOES:
Hastings, S.	Pentland, N.	Mr. K. Robinson and Mr. Royle.

Mr. M. Stewart

I beg to move, in page 2, line 41, to leave out paragraph (b).

The Deputy-Chairman

It would be for the convenience of the Committee to couple with this Amendment the next Amendment, in the name of the hon. and learned Member for Northampton (Mr. Paget), in line 41, leave out from "shooting" to end of line.

Mr. Stewart

I am happy to hear that Ruling about discussing these two Amendments together. It enables us to examine the thesis put forward in this part of the Bill that the method with which a murder is committed should, in part, decide whether we regard it as capital murder or not. That is the principle involved in Clause 5 (1, b), and it is contested from two points of view, by those of us who do not feel that this method should be employed at all and by those hon. Gentlemen who feel that if this criterion of method is to be used at all one of the particularly condemned methods should be that of poison.

Let us look first at the Bill as it would now stand if none of these Amendments were made. The result would be that murder would be capital if performed by shooting or by causing an explosion, but not if it were caused by any other means unless, of course, it were caught under any of the other Clauses of the Bill. So far as method is concerned, the Government's view is that murder should only be capital if it is done by shooting or by causing an explosion.

Let us consider the second of these two acts particularly reprobated by the Government, that of murder by causing an explosion. It is quite natural that this House, remembering 5th November, 1603, should particularly deprecate an attempt to take human life by means of explosions. But it is well known that precautions are regularly and annually taken against a repetition of that offence. If a layman may venture an opinion, I think that in any case such an attempt to blow up everybody concerned at the opening of a new Parliament would be caught under the law of treason, so that we need not assume that the Government are specially concerned there.

I presume, and perhaps Government spokesmen will correct me if I am wrong, that the kind of murder they had particuarly in mind when they spoke of murder by causing an explosion was the particularly revolting kind of murder used by some kind of political terrorist. Nobody would venture to suggest that that kind of murder is not one of the more repulsive manifestations of this in any event very horrible crime, but the Government have already made it quite clear that they are not attempting to discriminate between the more wicked and the less wicked murders. They are presumably thinking that there is some possibility that somebody who thinks of causing a murder by an explosion is more likely to be deterred by the death penalty than somebody who is thinking of committing a murder by other means.

Mr. Hale

I do not follow my hon. Friend's argument at all. Did he say that the blowing up of Tory Ministers by means of an explosion would be "treason" or "reason"?

Mr. Stewart

I think my hon. Friend raises a point there which would be worthy of very long discussion. But he will remember that I spoke of persons concerned with the opening of a new Session and, of course, the Sovereign is concerned with the opening of a new Session and so is my hon. Friend.

Of all kinds of murderers surely the one least likely to be deterred by the thought of the kind of penalty that will be imposed if he is caught is the political terrorist who tries to murder by sending an explosive parcel. He uses a method which he hopes will give him the least possible chance of being detected and he is driven on by an enmity against society that will not be mitigated by the thought that if he is found out he will be hanged rather than imprisoned.

Therefore, if we are concerned solely—and this is the point I am making at the moment—with the practical question of whether we are making murders by explosion less likely by making them capital, I think the answer is quite clearly "No." The factors that determine how likely murders by explosion are are other than the question whether they are liable to be punished by the death penalty or not.

9.15 p.m.

There is one other criterion the Government have advanced, and that could cover both shooting and explosion, and that is this law-and-order argument. What does this law-and-order argument really mean? It means that if a murder is committed in a particularly spectacular fashion that appears to catch public notice it should be rewarded by the death penalty. What the Government apparently feel, to judge by this Clause, is that murders by shooting and explosion are particularly murders of that kind. What it comes to is this, that the kind of murders they particularly dislike are noisy murders.

They disapprove of murder in general, but if it can be done quietly they are prepared to take a more lenient view of it than if one is noisy about it. We can imagine learned judges saying, in the way learned judges sometimes do at the end of a trial, when they are expressing their opinions of the prisoner in the dock, and sometimes on other matters as well, "You are not only a murderer, but you are a noisy murderer. You upset people. You not only commit one of the wickedest offences a human being can commit, but you must needs go and make a noise about it, and very probably the Home Secretary will have to answer questions about you in the House of Commons. If you show disregard for public decency to the extent that you not only murder people but you do it in a noisy fashion you must expect to be put to death."

There is really, in the last analysis, no more than that in this law-and-order argument. To take human life is the greatest defiance of law and order we can have, and to suggest that it is something particularly to be reprobated because it is done in a manner rather more likely to attract attention and to catch the newspaper headlines is to degrade the principles on which justice ought to be administered.

Let us examine some of the murders which would be regarded as less grievous if this Clause were to go through in its present form. I shall take one from slightly remote history and one from the twentieth century. I ventured in debate upon an earlier Amendment to refer to Othello. I wish now to take definitely historical characters, the Borgia family. They, on one occasion, invited to whatever was the Renaissance equivalent of a cocktail party two groups of candidates in an election to a public body, with the intention of poisoning one group of candidates. Somebody bungled the business, and the wrong group of candidates got poisoned, with unhappy results, from the Borgia's point of view, in the election.

The Deputy-Chairman

I think the Borgias belong to the next Amendment.

Mr. Stewart

I thought we were taking the two together, Sir Gordon.

The Deputy-Chairman

We are taking together this Amendment and the one in the name of the hon. and learned Member for Northampton (Mr. Paget), on page 2, line 41, leave out from "shooting" to the end of the line. We are not now considering the one about poisoning, that in the name of the right hon and learned Member for Chertsey (Sir L. Heald), in page 2, line 41.

Mr. Stewart

I had misunderstood, Sir Gordon, but I think I may legitimately make this point, that under this Clause as it now stands a murder by shooting or explosion is capital and murder by poisoning is not.

Some hon. Members want to alter that situation by making poisoning capital as well. We on this side of the Committee generally take the view that the Clause in its present form demonstrates the absurdity of trying to classify murder by the methods by which it is committed. I was merely instancing the Borgias to show the absurdity into which we can get. However, you were right, Sir Gordon, to call me to order at that point because I must admit that the fact that the wrong group of candidates got poisoned, though interesting and at the time important, is irrelevant to my argument on the Amendment, but I simply could not refrain as a matter of general interest from bringing it in.

But what is relevant is that, horrible as that event was, if something like that were done today it would not, with the Clause in its present form, be capital. It would be regarded as less grave than shooting a single person, because the Borgias, with amazing foresight, had read on to the later pages of the Bill and had ascertained that as long as they polished off all the candidates together it would not be a separate case and they would not be landed on a capital charge on a later Clause in the Bill.

I said that I would mention two examples. The one, with your patience and forbearance, Sir Gordon, I have mentioned. The other is a much more serious matter. Of all the murders committed in this century I should have thought that the one that most gravely outrages our moral sense and all our feelings as human beings was that committed by the matricide, Fox, who caused his mother to be burned to death in an hotel bedroom in order to collect the insurance. It has been suggested to me that if the Clause remains in its present form we should have the fantastic result that if it could be shown that in the case of that fire an electric light bulb exploded and that contributed in any way to his mother's death it might be regarded as capital murder, but if it could not be so shown it would not be capital murder.

This illustrates that the attempt to distinguish murders by the method by which they are committed lands us in situations which, looked at from one angle, are laughable but, looked at more deeply, are wholly repugnant to our moral sense and our ideas of how justice should be administered. I know the argument which the Government are trying to advance that murder by certain methods is particularly menacing to law and order, and I have already suggested that it is really only an attempt to dress up the rather absurd proposition that it is only noisy murders that matter most I suppose that what is in the Government's mind is that there is a certain class in the community given to theft and robberies who may be inclined, if the capital penalty is removed altogether, to continue to commit their thefts and robberies and to do so with less regard for human life and with greater willingness to equip themselves with firearms, and that it is in order to prevent that happening that these special provisions are made.

In the first place, I question whether the real danger of murder arises from a group of that kind. It was suggested from the benches opposite in the discussion on an earlier Amendment that one of the commonest forms of murder was that of knocking an old lady in the shop on the head in order to rob the till. I am not sure that that is so. I think that a careful examination of all murders committed will show that the largest single type of murder is the murder committed on a husband, a wife or a sweetheart or a member of one's family, and the commonest motives are lust, gain or sometimes plain hatred.

If we were really considering from what sources the major danger of murder comes we should look at them rather than at the class with whom the Government are apparently particularly concerned. If we follow that line of thought and try to apply ourselves to what I think is the immense task of making degrees of murder, the Bill would be full of Clauses making capital penalty depend on the degree of affinity between murderers and victims. If we thought that by discriminatnig between types of murder we could diminish the amount of murder one has only to point out that absurdity to show the absurdity of the first premise in the Bill. That premise is the belief that it is sensible to try to distinguish between murders that ought to be capital and murders that ought not to be capital.

A further objection to the Clause as it stands can be examined if we compare murder by shooting, and so on, with Clause 4. A few days ago I ventured to draw attention to one of the features of Clause 4. I would now like to draw the attention of the Committee to the fact that if we add together the effect of Clauses 4 and 5 (1, b), we are landed in a yet further absurdity.

We set off from Clause 4 with the proposition that if A and B enter into a suicide pact which takes the form that A is to cut the throat of B, and then to cut his own, but that A afterwards decides that he will not do so but will remain alive, and it can be represented that he has tricked B to his death, that would be a capital murder. Whereas if we are satisfied that although A had survived, he had genuinely wanted earlier to die, then we allow him to live. Of course, that is if the suicide pact is in the form of cutting the throat. If it is done with revolvers, and A shoots B with, at that time, the intention of shooting himself but subsequently not doing so, and we satisfy ourselves that at the time he killed B he genuinely intended to kill himself, it is not capital murder on that ground.

Mr. Paget

If my hon. Friend will permit me to interrupt, it does not have to be that A shoots B. If A agrees with B that they will each shoot themselves, and if B does so, A is guilty of B's murder.

Mr. Stewart

Yes, whereas if A and B both agree to hang themselves, and one of them does not, the survivor may be guilty of murder but not of capital murder.

We may take what view we like as to how the law ought to handle suicide pacts; we may take what view we like as to whether the survivor of a suicide pact ought to be charged with murder or not, or whether that ought to be the kind of murder for which he is hanged or not; but what we cannot do, with any approach to common sense, is to say that we will hang the survivor of a suicide pact if that pact was carried out with revolvers but that if they decided to do it by any other means, we will leave them alive. And that is the result we shall reach if we leave Clause 5 (1, b) in the Bill side by side with Clause 4.

Considering, therefore, the lessons we may learn from the two striking murders—one twentieth century and the other late fifteenth or early sixteenth century—to which I referred; considering the inadequacy of the Government's entire premise about law and order; and considering the many difficulties in which the attempt to put murder by shooting or explosions into a special category leads us, I urge strongly upon the Committee the belief that we shall best consult common sense, the administration of justice and respect for the law, if we accept this Amendment.

9.30 p.m.

Major Lloyd-George

I think it might be for the convenience of the Committee if I said a word at this early stage. I do not think I shall follow the hon. Member for Fulham (Mr. M. Stewart) into some of his historical researches, which I do not think had much bearing upon our discussion, except from the point of view of bringing a little light relief into the debate. I am not particularly anxious to bring much light relief into it at this juncture. In view of what the hon. Gentleman said about the Government's dislikes and so forth, I should like to bring the debate back to a more serious vein.

As I have said on more than one occasion, the basis of the Bill, whether the hon. Gentleman agrees with me or not, is the principle that we should confine capital murder to those cases which we think would conflict most with the principle of law and order. We have, as we think, confined our suggestions to the murders which are most inimical to the preservation of law and order. I should have thought that murder by shooting and murder by explosion would certainly be eminently of that sort.

A man who carries a gun in his pocket in this country is not, I am sure the Committee would agree, doing it because he is anxious to assist in the maintenance of law and order, and I think it is very important that it should be made clear to him that he carries that weapon at his peril. It is not merely a question of deterring criminals from using firearms in the course of their crimes or in escaping from arrest. We want to discourage the unlawful use of firearms, not only in the circumstances covered by paragraphs (a), (c) and (d) of subsection (1), but in all circumstances. Also, we want to discourage it because firearms are peculiarly dangerous to the public at large. We do not want street affrays in this country, nor do we want private quarrels prosecuted in the streets. Both things are equally undesirable because they are likely to result in, at least, danger to perfectly innocent people, to which shooting is very likely to contribute.

The hon. Gentleman said that we could prohibit the sale of firearms, but it is also suggested that our purpose could be effected by increasing the penalties which are already in existence under the Prevention of Crimes Act, 1953. I believe that there the maximum penalty is two years' imprisonment. I do not know what ideas hon. Gentlemen opposite have as to what sort of increase there should be in the penalty, but, whatever suggestions they made, I should still think it desirable to have the strongest possible deterrent available for murder by shooting.

I believe that this is a point at which this deterrent can operate effectively, because murder by shooting nearly always necessarily involves some deliberation, even where the cause of the killing is either anger or jealousy; and where there is deliberation, there is, surely, an opportunity also for deterrents to operate.

It is said that some murders by shooting are committed in circumstances which make them morally indistinguishable from murders committed by other methods. It it true that murder by shooting is sometimes the product of jealousy or domestic unhappiness, although even there murder by shooting is distinguished, as I have just pointed out, by some deliberation. Where there are mitigating circumstances, it will be possible in future as it has been in the past, to recommend the exercise of the Royal Prerogative.

The hon. Member for Fulham (Mr. M. Stewart) seemed to think that the Government disliked murders by explosion only because they were noisy. I wish that he had treated the matter a little more seriously, because the effect on innocent people of murder by explosion can be very serious indeed, in many cases much more so than by shooting. The arguments in this case are very much stronger. Explosives, in particular the time bomb and the parcel bomb, are preeminently the weapon of the political terrorist, who almost by definition is the enemy of law and order and whose deliberate policy, is to make indiscriminate war on innocent people.

I remind the Committee of the case in Coventry in 1939, when some I.R.A. terrorists put a time bomb in the carrier of a bicycle leaning against a pavement. The bomb went off and killed five perfectly innocent people and injured another 50.

Mr. M. Stewart

Surely the death penalty for that was in force at that time. The fact that that occurred is scarcely an argument for saying that the death penalty deters people from committing that form of murder.

Major Lloyd-George

I gave that as an illustration. The hon. Member was saying that as the political terrorist is never found out, nothing would stop him, but in this case the political terrorists were caught and executed, in spite of the indiscriminate nature of the whole thing, with five innocent people with absolutely no connection with the matter killed and 50 others injured.

The other day there was a case in Bristol where happily nobody was killed. The fact is that we are very fortunate in this country. We have not had many of these crimes, and the fact that these people are caught, as happened in Coventry, definitely has a deterrent effect. Nobody has ever suggested that the deterrent is 100 per cent. effective. Neither I nor anybody else has ever suggested such a thing.

Mr. K. Robinson

Can the right hon. and gallant Gentleman say, in view of the experience in the last eighteen months in the island of Cyprus, that the death penalty is any deterrent whatever to political terrorists?

Major Lloyd-George

The hon. Member really cannot compare Cyprus with this country. There is a totally different population here and a very efficient and highly trained police force. With terrorists the fact remains that, because those apprehended have been executed, we do not get any more than we do, apart from the fact that fortunately our own people do not go in for that kind of thing, although other people do.

That does not alter my argument about the preservation of law and order. I cannot believe that any one can dispute the fact that anybody who causes an explosion is a very great enemy of law and order. It is entirely indiscriminate in its effect. It must be so, as we have seen from cases quite recently. Bombs have been used upon other occasions; I referred to one the other day. I can see absolutely no justification for withholding from the public such protection against this form of offence as the capital penalty gives, and I certainly hope that the Committee will reject the Amendment.

Dr. Horace King (Southampton, Itchen)

The intervention of the Home Secretary in this debate has been unfortunate, compared with his very happy one in the previous debate. I would only say of his argument about death as a deterrent to political terrorism that, at a moment when brave people in Hungary are giving up their lives against the tanks of the Soviet Union and are proving that no death penalty can affect people imbued with a passion for freedom, his use of this argument is lamentable. If we do not have acts of political terrorism in this country it is not because of the death sentence we impose for it but because of the mature democracy that we have been able to build up.

I intervened in the previous debate to say that under the Bill we are no longer hanging for murder, but for murder plus something else. What we are debating now is one of the "something elses". If we are to make certain kinds of murder capital; if we are to say that murder plus something is a capital offence, and murder by itself is not, we ought to be able to reassure the British people that those extras which make a murder capital are things which will commend themselves to their good sense and sense of righteousness. If my hon. Friend approached the matter somewhat lightly it was because, even in the eyes of many people who believe in capital punishment, this provision is quite a ridiculous criterion by which to make a murder one which should be treated as capital murder.

The whole clause takes entirely out of the hands of judges and juries of the future the question of what murder shall be a capital murder. In this particular part of it we are being asked to instruct the judges and juries—one or both; I am not a lawyer and I do not know who will make the final decision—that if the murder is committed with a gun or by an explosive, it is, whatever else they may think about it, a capital murder.

I want to examine, as a layman, the possible reasons by which the Government might justify this proposal to the British public. Is murder by revolver or by hand grenade the worst kind of murder? Most hon. Members on this side of the Committee take a more or less absolutist view that all murders are bad, but if some are worse than others, the first one that would leap to my mind would be murder by poisoning. I should think that the right hon. and learned Member for Chertsey (Sir L. Heald) is on much sounder grounds with the argument which he seeks to put forward than is the Government on this one. The proposal might have been a little more defensible if the Government had provided that murder by poisoning should be included; or the murder of a little child; or the murder of old and defenceless people; or of the weak and the helpless by the strong; or the murder of someone in one's family—the old Roman crime of parricide—for these latter are murders committed when the murderer is in a unique position of trust and confidence with respect to the person whom he murders.

If any of those provisions had been substituted for this one there would have been a little more moral justification for the proposal. But what the Government are saying is that poisoning; the murder of a little child; the murder of one's son or father, or, for example, the disgusting murder to which my hon. Friend the Member for Fulham (Mr. M. Stewart) referred just now, is not capital because the offence was not committed with a revolver.

The second defence, used by the Home Secretary, is that a murder by means of an explosive, or a shooting, is deliberate. Let us assume for a moment, as the Government do, that capital punishment is a unique deterrent. Many of us do not hold that view. In this Clause they are seeking to prevent a man either from taking a revolver with him or, when he commits some other offence, from using that revolver, and they pick out this particular kind of murder to punish because they argue that the man who takes a revolver with him must have in his mind the intention of murder. But one can commit deliberate murder with literally almost anything.

9.45 p.m.

A Royal Prince of England, Clarence, was murdered in a butt of Malmsey wine. It may have been a capital end, but it would not have been a capital offence under this Bill. One can murder deliberately with an axe, a hammer, poison or a knife, so if there is anything in the Home Secretary's deterrent argument, all that this Clause will do will be to deter the deliberate murderer from committing murder with a revolver or a hand grenade and instruct him that he must use a knife or a hammer or an axe or some other lethal weapon. It certainly does not deter the potential murderer from committing murder.

The Home Secretary made great play on Second Reading, and in his speech today, with the argument that the case for making this particular murder a capital offence is that it is indiscriminate, that it is a disturbance of the Queen's peace, that innocent victims can be killed by accident if one goes firing a revolver or setting off a time bomb. Surely no one is going to say that compared with these most murders are respectable, because in most murders the man who is murdered is not innocent. Most murders are murders of innocent people. Indeed, the case against murder is that whatever the victim has done the view of decent society is that murder is a crime and is too great a punishment for anything that the victim has done.

Most murderers murder innocent people. If we distinguish between firing a revolver or firing an explosive on the grounds that some of the people who might be blown up are people who ought not to be blown up, then I think we are giving to the poisoner and all the other foul murderers of history some sort of defence which no reasonable man would give them. Moreover, to murder by fire can be indiscriminate; to murder by poison can be indiscriminate. My hon. Friend referred to the Borgias, who murdered deliberately by poison but who also murdered accidentally by poison. So if the defence of this Clause is that it is wide in its range and is a safeguard against the killing of innocent people, I suggest that it is a defence that is untenable.

The Home Secretary hopes that this Clause—and one would wish to share the hope—will prevent people from going about carrying revolvers. If we want to prevent people from carrying revolvers in this country we can easily do so. We can prevent the sale of revolvers in the shops, and I would hope that on some occasion we can persuade the Home Secretary to prevent the sale of those dangreous knives which can be bought so easily in the shops of England, murders with which are quite as reprehensible as murders by explosive instruments. We can step up the punishment for merely carrying a revolver without the commission of any other offence.

I believe—I am not a lawyer—that already we do make the possession of firearms an added offence. If we are really anxious to get rid of revolvers and to protect our peace, we should make it more difficult to buy them and provide substantial punishment for anyone found carrying them when in suspicious circumstances or likely to commit an offence. This provision shows how impossible it is when we try to seek out the worst or the most reprehensible murder and make it capital.

Reference has been made to the American system of degrees of murder. I know that that system has its faults, but at all events it is much more logical and defensible morally than merely taking some physical object and, by attaching that physical object to the murder, making that murder capital. I can only hope that the Home Secretary will have second thoughts about this. I can assure the right hon. and gallant Gentleman that people who desire to see the abolition of capital punishment on the one hand, and many people who believe in capital punishment on the other hand, will be angry and will feel outraged if they find that major and terrible murderers, using other methods, escape the death penalty while the mere accident of committing a murder with a revolver brings one within the scope of the death penalty.

Mr. Paget

The reply of the Home Secretary seemed singularly unconvincing in this the most illogical of all the provisions that we have had to consider. I do not know whether the right hon. and gallant Gentleman is familiar with the system of intelligence tests, but one of the simplest is to say, here is a category of five things, which is the one out of place? Were we dealing with this in that manner, of course, this category (b) is the one which is out of place; because this is the one in which we select the means of murder rather than the purpose of murder. Surely, to select the means of murder is the most illogical of all.

The Home Secretary sought to support this by saying that he wished to discourage the carrying of arms. He said by that he did not just mean the carrying of arms by criminals; he meant the carrying of arms by anyone. I was unaware that the right hon. and gallant Gentleman was such an enthusisatic supporter of my hon. Friend's Bill against blood sports. More seriously, I did not know that he was opposed to having an Army, because not only do we require but we compel all young men to carry arms. When they are carrying arms, without any question of deliberation at all, there are occasions when, in temper, they use them.

I remember that a year or two ago I defended a young man who had lost his temper over a trivial matter while in a queue in a canteen. Because a rifle was the nearest instrument, he used it and shot someone. Fortunately, it was only a case of attempted murder, because the victim recovered. But those sort of cases occur where we require people to carry arms. Are we really saying that because a rifle is used that should be in a different category of murder to the brutal murder committed with an axe? This is wildly illogical. Haigh got people whom he killed for money and he boiled down their bodies in acid. The test is not that he led them off, not that he killed them for money, not that he boiled down their bodies, but that he used a gun to kill them instead of a chopper; and since the bodies were boiled down it might be difficult to ascertain whether it was a gun or a chopper. A more supremely irrelevant fact to discover I cannot imagine, but that is the test to be made here.

Again, we are told that shooting is an offence of deliberation. I do not know why that should be so. I can think of a number of cases where shooting has been the method and there certainly was not deliberation. I remember an instance of a young soldier and his sweetheart. We have had a good many soldiers who have come home after the war and found that their wives have been unfaithful, and finding that in those circumstances they have used the weapon which they had with them. These are examples with which we are fairly familiar but, in any event, what a peculiar way of dealing with deliberation in the case of murder.

To make deliberation the test is one of the things which has often been considered, to make capital murder, murder which is deliberate, with malice aforethought in the common sense rather than the legal sense; that is to say, the murder which has been done deliberately, which has been planned in advance, which has been thought out and done with deliberation. People have often considered, "Well, if a chap sets out deliberately to commit murder, and that is his object and plan, let us treat that as a particularly heinous form of murder and confine capital punishment to that."

As the Royal Commission pointed out, that is utterly unworkable, but surely to say, "We will try to bring in an unworkable system by the odd thing of choosing the particular instrument which can be used for deliberate murder and for the spur of the moment murder", seems a curiously roundabout way of getting at the objective.

If the real object of this is to stop the professional crook carrying arms, surely there are more direct ways of doing it. We could step up the penalties for carrying arms; make it a very serious offence, carrying life imprisonment if necessary, for a man who has had a conviction to carry a weapon; add to the penalties for crime the taking away of the gun licence, and make the possession of a gun in those circumstances a very serious offence exercise more control over the sale of weapons; exercise more control over their possession. If we want to aim at preventing the professional criminal having a gun, there are all kinds of ways of doing it.

Gang warfare in England is, in general, carried out with knives, razors, flick-knives, etc., but they are not mentioned in the Bill. Jack Spot's efforts are not touched. The knife gang who tried to cut up and murder him are outside the Bill. What could be more irrational.

10.0 p.m.

Let me quote one passage from a very experienced judge, Lord Justice Roche, who said: The third ground, which to my mind is the real and strongest ground, is that I think this Clause is morally wrong. The Lord Chancellor did not commit the imprudence—he would be incapable of it—of saying that the law has nothing to do with morals. But he did say that in legislating in this manner we are not legislating on moral grounds, or making moral distinctions. The law ought not to lay down morals; but it cannot be divorced from morals, or it breaks down hopelessly, and is not worthy of the adherence or respect which it receives. An essential matter in the administration of the law is that it should be indifferent between persons—that it should be just and equal. It is not right to punish in a certain way a man who has committed one class of crime, and then to say that another man, just because the crimes are rather fewer, should not be punished in the same way. People do not understand that sort of thing."—[OFFICIAL REPORT. House of Lords, 20th July, 1948; Vol. 157, c. 1050.] People do not understand saying that this great penalty shall remain for the man who shoots his sweetheart but shall not be available for the man who chokes his wife. It shall not be available for the man who bludgeons somebody and puts them in an acid bath. He will be all right. If by any chance he uses a gun to knock them off, he shall then be guilty of murder.

Think of the horrible crimes we remember, such as the one referred to by the learned judge whose speech I have just quoted, of the man who, in sheer hatred of his wife, took her out and drove a gas pipe down her throat until it went through her entrails and destroyed her. That is not a capital offence. If he had taken a gun, it would have been. Talking of historical crimes, what about the murder of King Edward II, whose body had to be produced without a mark on it. A poker was driven through his entrails. That would not be a capital murder. If a gun had been used, yes. One really cannot put this degree of absurdity upon the Statute Book.

There is an hon. Member for Dorset, North (Mr. Crouch) who was sitting here a short time ago who is trying to introduce a Bill making the humane killer compulsory in the case of animals. If a man wishes, through mercy, to put somebody out of pain which has become intolerable—I can think of two cases where women have done that—and uses a gun for that purpose, that is capital murder.

I remember one tragic case in which I was immediately concerned, because I was billeted in the house during the war. It was in Brighton. It was the case of a widow who had devoted her whole life to looking after an idiot son. She had built up a restaurant in Brighton which enabled her to look after her son. When Brighton became a restricted area there was no custom for the restaurant. She had no means of looking after her son and he would have had to go into an institution. She shot him. That would be capital murder, yet it was an act of great courage by a woman who had devoted her whole life to that son. One cannot be so irrational. We shall bring the law into real contempt if we make this sort of nonsense out of it. I do urge that this particular test be taken away.

In one of the Amendments we are discussing, I have separated this crime from the quite different crime of causing death by explosion. I think causing death by explosion is almost exclusively a political crime. It is political terrorism, and experience of political terrorism teaches one thing, and that is that the death penalty is totally ineffective as a deterrent in political terrorism. To us it is heroic because we are on their side—we have seen the tremendous courage of the people of Hungary—but we have to recognise that they are political terrorists using weapons against a Government established by law—a law we regard as an abominable law, but, nevertheless, a Government established by law. We are talking about political terrorism, and it is to political terrorism that the Home Secretary has told us this has been devoted. That is what it is aimed at.

I say that it does not succeed; it does not deter anyone. I was out in Kenya last winter. We hanged some thousands of Mau Mau terrorists there. I talked to many of the police, and not one of them thought the death penalty had been the smallest deterrent to Mau Mau. In fact one of those most concerned was a strong opponent of the death penalty simply because of his experience that it had no effect at all. In Cyprus we have been seeing it again.

There is nothing more embarrassing to government in those sort of circumstances than the existence of a death penalty. Why? It is because if we have those sort of disturbances the object of government is to get things quiet, to get emotions down, to get things peaceful, and there is nothing more emotive than to have a comrade in a death cell. There is nothing which is more likely to raise emotion, and whenever that happens a whole lot more murders are committed in the demonstrations, in the efforts, in the fight for the man who is in the death cell. It builds up and multiplies and government is faced by this embarrass- ment. Either it executes the sentence and creates a martyr, or it does not execute the sentence and demonstrates that it has not got the guts to enforce its own laws. That is the dilemma which is faced by a government which is encumbered by a death penalty in circumstances of civil strife.

From the point of view of law and order, nothing can be more embarrassing than a death sentence in those circumstances. It has been the experience in Cyprus; it was the experience in Ireland; it was the experience in Israel. Whenever we have had that type of trouble we have had that sort of embarrassment, and I wish we had learned sense. To continue to enshrine it in this way is a very silly thing to do. We have very little of this trouble, and nobody for a split second believes it will be reduced by the death penalty. To enshrine it in the Bill is a silly thing to do to say the least. I therefore ask the Government to have second thoughts.

By including a means of murder, a means of killing, as one of the tests of whom shall hang, and picking arbitrarily one particular means, makes an absurdity of the law. By choosing to keep it for the political purposes for which it is the most embarrassment to Governments, we show a persistence of folly which I hope even this Government will eventually grow out of.

Mr. Kenneth Younger (Grimsby)

I wish to add only a very few words to what my hon. Friends have said, and as far as possible I want to avoid traversing the ground which they have covered. They have given so many examples of the absurdity into which this subsection is liable to lead us that it is quite unnecessary for me to add any further examples.

It is, I think, the general experience of all of us who have been taking part in the controversies over the death penalty in the last year or two that little can be said that is new. Almost every issue which we are now debating has been debated before. It is striking to note the extent to which our debate on this and on previous Amendments—and no doubt equally on those which are shortly to be discussed—follows the lines of the debate in another place on the Amendments which were sent there in 1948 or 1949.

We are in the rather curious position that in a way the positions have been reversed. The learned judges who, in another place, reduced the Amendments then proposed to complete absurdity and rejected them were, I think it is fair to say, mostly people who were opposed to abolition, who wished to see the death penalty retained, and who were fully confident that if they succeeded in demolishing the arguments in favour of the compromise Clause, the law would be retained more or less in its then existing form. In the meantime, public opinion has changed, and it is, on the whole, people who are in favour of complete abolition who are using the arguments used on that occasion by the learned judges. But I do not think that that alters the validity of the arguments.

The point which struck me most forcibly when I re-read what had been said by the judges on that occasion was the shortness of their speeches. On almost all these different issues—the Amendments that we are discussing here are not, of course, in all respects identical with what was put forward in the Criminal Justice Bill—there was only one very simple point which all the judges made. It applies to this Amendment, and to this Clause perhaps above all because it is the most anomalous of all the Clauses, as my hon. and learned Friend the Member for Northampton (Mr. Paget) said. It could all be summed up in a single sentence used by Lord du Parcq, when he said that if that Clause were passed it would bring the law into hatred, ridicule and contempt.

Can anybody who has listened to the long list of examples given by my hon. Friends the Members for Fulham (Mr. M. Stewart) and Southampton, Itchen (Dr. King) and my hon. and learned Friend the Member for Northampton reach any other conclusion than that that is what will be the position if we allow the Clause to be passed in its present form?

When my hon. Friend the Member for Fulham was moving the Amendment there was a certain amount of laughter, and the Home Secretary later referred to my hon. Friend's speech as having introduced some light relief. When we discuss these things, as it were, in a debating society, in the abstract, it is possible to laugh at them, because they are indeed absurd, but there is nothing laughable about them when they are translated into individual cases, particularly cases of the kind which my hon. and learned Friend the Member for Northampton was quoting, where we might well get a situation in which the most horrific crime will, one week, not carry the death penalty and where the following week we may get a death sentence which the Home Secretary might, according to his normal principles, find it very hard to reprieve, but which everybody in the country regards as much less appropriate for the death penalty than the one which had escaped the death penalty just before.

10.15 p.m.

We shall get the most appalling inconsistencies which will be destructive of the reputation of the law and will cause the utmost bitterness among all those connected with persons who may suffer from those inconsistencies. I had hoped that when the Home Secretary made his speech he would make some attempt to deal with, or indeed if he could, to deny, these absurdities which have already been pointed out from this side of the House. But he did not make the attempt at all.

So far as I know, the right hon. and gallant Gentleman does not deny that there are going to be these ludicrous anomalies, that there are going to be terrible crimes which escape the death penalty and much less terrible crimes which involve it. Does he deny that? The right hon. and gallant Gentleman did not refer to a single example given by my hon. Friend the Member for Fulham. What he tried to make us believe was that in singling out these and the other special cases in the Clause, he was seeking to apply the principle of confining the capital penalty to cases which conflicted most with law and order.

I have listened to a good deal of the argument in this debate, and on a previous Amendment I heard my hon. and learned Friend the Member for Northampton say that he had been trying very hard to discover what this law and order principle was. We did not get any proof of it from the Home Secretary. As one listened to the right hon. and gallant Gentleman continuing his argument, it seemed that he was merely using a new piece of jargon to introduce the very familiar argument about deterrence. What he was saying was really a repetition of the old argument that the death penalty is an exceptional deterrent, more exceptional in some types of murder than in others.

The right hon. and gallant Gentleman referred to the need to teach criminals that they carry weapons at their peril. He said that it was on the point of the criminal carrying a weapon that the principle of deterrence can operate most effectively, and sought to tie that up with the question of deliberation. He said that here, above all, we have a crime which is a deliberate, premeditated crime.

Apart from the fact that the right hon. and gallant Gentleman would be very hard put to it to sustain that argument that this is a more deliberate type of crime than many others, surely the fact is that in producing the Bill in the form in which he has done, he has deprived himself of the right to use this argument of deterrence. If it was the question of deterrence, he would have to have a whole lot of other crimes in the Bill also carrying the capital penalty.

It was much more logical for the right hon. and gallant Gentleman to take the view which he took some months ago in seeking to maintain the law more or less in its existing form. It seems impossible to justify his position in apparently abandoning any belief in deterrence over so wide a range of crimes of murder and then seeking to justify the small remnant on that principle.

So far as political crimes are concerned, I do not think that I have anything to add to what was said by my hon. Friends. Surely, if the deterrence is the principle which the right hon. and gallant Gentleman is seeking to invoke, it is to political crimes above all others that that is recognised as applying least of all. The last thing I should wish to do would be to dissuade the Home Secretary from going as far as he has done in producing the Bill, which will undoubtedly, if it passes into law, very greatly reduce the range of capital crimes, but I think he should reflect that by so doing he has deprived himself of the right to use the argument which he was using.

If I may, I will recall one other remark made by another noble Lord in another place. On that previous occasion, Lord Simonds ended by saying that he could find no principle behind what was being proposed, and that it was impossible for him to regard it as anything but a face-saving device by which His Majesty's Government, as they then were, controlled their recalcitrant supporters.

We all know that occasions arise for all Governments when they have to do that, but I ask myself, what is the attitude to the Government's proposals to be of anybody in this Committee, or, it may be, in another place, who has a deep respect for the integrity of the law, who believes, what was expressed in those remarks of Lord Roche which have been quoted, that there should be at least a connection between morality and the law, and that the law should represent justice?

What is to be the reaction to any proposal so utterly capricious as this one? We know what the reaction was on the last occasion. I think that the proposals then made were worked out a good deal more carefully, and were in a sense a much better attempt at establishing the principle of justice than these are. It seems to me that these Government proposals, and particularly the one we are at the moment discussing, have been put forward in an utterly simplified form, and with no attempt to meet the enormous range of different types of crime which they are meant to cover.

If the Government will not learn at this stage, when they have to face the arguments, as the previous proposals had to face the arguments, of men learned in the law, whose prime concern is to maintain the integrity of the criminal law, they will find that these proposals hold less and not more water than those proposals put forward on the earlier occasion. I hope indeed that the Home Secretary will have second thoughts about them.

Mr. Hale

The Home Secretary, when he replied to the observations of my hon. Friends, talked about the necessity of dealing with this matter gravely and dealing with it realistically, bidding us to remember that we were talking of a subject of great importance which affects people deeply. Everyone in this Committee, no matter on which side he sits, will agree with that. We have very often deplored the fact that this Bill is being taken on the Floor and that it has been taken in the circumstances that 99 per cent. of Members are not hearing the discussion, that the Tory benches have been empty the whole day—

The Temporary Chairman (Sir Norman Hulbert)

Order. The hon. Member cannot discuss the question whether this Bill should have been taken on the Floor of the Chamber or in Committee upstairs.

Mr. Hale

I shall not pursue that point, Sir Norman, because I did not intend to pursue it anyhow, but I would say to the right hon. and gallant Gentleman, for, after all, he made this point, that the reductio ad absurdum is recognised as a useful and very proper argument and a very appropriate method of dealing with grave things. It is only by pointing out the absurdities and inconsistencies and irrelevancies and contradictions of the Measures of the Government that we can hope to approach these matters on the basis of reason.

The right hon. and gallant Gentleman made some observations with which I have some sympathy. He talked about the use of explosives as one of the most terrible of crimes, an indiscriminate crime, a crime in which, sometimes from political motives, perfectly innocent people, and people who, in that matter, could fairly be described as irrelevant to the situation, are exterminated or wounded by people who, wrongly, criminally, foolishly, think they are serving some political object. I say quite frankly, looking back on the history of these things, that there is no subject with which one looks with more conflicting emotions.

Let us all be quite frank and say that, however wicked, however brutal, however wrong, however revolting this is, it is almost impossible to remove from one's mind the reflection that those wrong-headed criminals are trying as best they can to serve objects which they have in mind, and that there have been occasions when we have been impelled to express sympathy with people doing such things. We have, as one hon. Member has observed, done so about people doing them in Hungary at this moment, for there must come a time, unless one accepts the full Pacifest argument, at which the taking of life in civil combat ceases to be reprehended universally as a crime and when it attracts the sympathy of supporters.

But I disagreed profoundly with almost every word the Home Secretary said about shooting. The right hon. and gallant Gentleman based his argument, rather curiously I thought in view of some arguments advanced earlier, firstly on the proposition that he was not suggesting that capital punishment was of itself a notable deterrent, but secondly on the proposition that we have to take measures to prevent the carrying of revolvers or lethal weapons of this class.

Let us look at a few cases. I recall what is known as the Stella Maris crime. I do not recall the details, but it was a notable defence of Sir Edward Marshall Hall's. It was a shooting case where the jury returned a verdict of "Not Guilty" and after the verdict Mr. Justice Avory rather surprised the assembly by saying, "There is another indictment on the calendar. Let him plead to that." The other was carrying a lethal weapon, a revolver, and on that the man who had been acquitted of murder pleaded guilty and he was sentenced to 12 months' imprisonment. That, after all, was a representation of the view of the law at that moment. The carrying of a lethal weapon in circumstances in which it could be used merited only 12 months' imprisonment, but the using of it merited death.

I am perfectly aware of the fact that minds more facile than mine, and even minds as little facile as mine, can imagine a whole variety of rather fantastic circumstances in which on almost every proposal one can point to something a little lacking in reason. Let me ask the Home Secretary to consider one simple case, but the sort of case that happens. Suppose that I shoot a man with intent to kill and he falls wounded, but not mortally wounded. If then I go back to him and despatch him with a pocket-knife by cutting his throat, I have not committed a capital murder. This is not a fanciful example. It is the kind of thing that happens. If I am a good shot I am acquitted of capital murder. If I am a bad shot and finish him off by some other means I come within the ambit of the Clause. Could there by any greater nonsense than that? But that is precisely what is postulated.

My hon. Friend the Member for Fulham (Mr. M. Stewart), in a singularly able speech in moving the Amendment, made some reference to public reprehension. The Bill seems to be put to us on the basis that there are some crimes which for the moment at any rate attract a large measure of public reprehension and should be dealt with. I am glad to see the Lord Advocate here. He may be able to remind me of the actual words of the worthy Scottish judge who expressed the opinion of the times in a case where a tailor murdered a soldier. The judge said, as far as I can recall, "Not only did you beat, batter or assault and stab this man whereby he was deprived of his life, but you did also thrust or push or project or propel the lethal weapon through the bellyband of his regimental breeches, which were His Majesty's". It is certainly fair to say that through the centuries different matters have excited different minds and different judges have taken one thing as being more serious than another, but I do not want to be facetious.

There is one point which has not been dealt with in the debate. It is that there is not a definition of shooting, and surely there must be. After all, it would be perfectly simple. Everyone knows what is intended to be done by shooting. Why not put it in the Bill? It would be perfectly simple to insert a few words to say that shooting meant killing by revolver, pistol or gun. No doubt the experts at the Home Office might find one or two other words to put in, but let it be defined. What does "shooting" mean? I see the former Attorney-General, the right hon. and learned Member for Chertsey (Sir L. Head) present. Can he say whether it covers killing by bow and arrow?

10.30 p.m.

Sir Lionel Heald (Chertsey)

If I had a bow and arrow here, I would show the hon. Member.

Mr. Hale

Judging by the accuracy of the right hon. and learned Member, as displayed on previous occasions, I imagine that he might easily aim at me and kill you, Sir Charles.

There have been many murders committed by the use of the poisoned arrow through the blow-pipe. Is that "shooting"?

There was the famous case of Armand Geraud who committed not one but seven or eight murders. He had bought a copy of Malthus's theory on population, and he had read it and become convinced of its truth, and he determined to put the theory into practice. He had a wooden leg, and he found that by rigging it up with a few bullets, putting a little powder inside and having a piece of wire in his trouser pocket, he could, by cocking the wooden leg over the other, take deliberate and careful aim without anyone becoming alarmed, and thus he commenced to exterminate the population. He succeeded to such good effect that he killed at least eight people in various parts of France and Alsace and had one innocent person hanged for a murder which he had committed before anyone thought of looking at his wooden leg.

Even then, the authorities gave him his wooden leg back on the day of his execution, and Geraud got a little more powder and tried to fire it again, but, unfortunately, he used too much powder and blew himself up. That, presumably, would be "explosion."

In view of the fantastic varieties of lethal weapon that are constructed and used, it is, after all, a perfectly fair request that there should be a definition here.

I want to come to one other matter. Is killing by a gun a worse form of death, more brutal and more horrible, than other various forms of murder which have been used? I do not want to recall the whole history of criminology in this matter. There was some public indignation about a murder in New York when Mr. Luettgart put his wife through a sausage machine and sold her as sausages. That was felt to attract rather more than usual reprehension. Even the English Mrs. Peacey, who sold dripping from a corpse for use on toast, was thought to have added rather to the crime which she had committed.

At this moment, in connection with a Bill which it would be irrelevant to discuss, I am being inundated with circulars urging me to vote for the use of a humane killer, which is "shooting." It is said to me—I am expressing no views at the moment upon the correspondence which I have received—that if only I can secure that animals are killed by the use of a humane gun, that will reduce cruelty, will inspire public confidence and will make people feel more happy.

Is killing by a humane killer included in the Clause? The answer is that it is. Of course it is. If I murder someone with a humane killer, I hang. If I cut them up and boil them in a saucepan, I do not hang. That is the proposition which is being put to us today.

I suggest that in these circumstances—I have great sympathy with the right hon. and learned Gentleman's point about explosion—if I were selecting one thing for the greatest possible reprehension, it would be the use of the bomb. Tempted as I am, I do not propose to develop an argument into matters which you, Sir Charles, might think were out of order.

Dr. Stross

Is not one of the most horrible crimes that we have heard of one which was recently alleged to have been perpetrated in another country, when someone—I think he must have been horribly lunatic—put a time bomb into an aeroplane to destroy his mother in order to inherit, and destroyed everyone in the machine? Must we not remember that had he arranged for the bomb to fire in the air so that all would have died similarly, or even more horribly, he would not have been guilty in this country of a capital charge?

Mr. Hale

Yes, I agree. Some of these things are too terrible to contemplate. We are all in this fantastic difficulty in this case that, in a sense—though I appreciate that there is no good reason for this—the more horrible a crime is the more prone we are to think that the murderer must be lacking in some form of sanity to have been able to commit it at all. That is always the dilemma that confronts us in any serious approach to penal reform. It is always there.

I think that the use of bombs at all, whether they be explosive or napalm bombs which burn the skin off people, blind them and leave them running helplessly seeking shelter, is too horrible altogether to contemplate, and I hope to see a world in which no one will use them, whether for killing individuals or as some collective expression of political antipathy That is my point of view.

I hope that the right hon. and gallant Gentleman will consider it. I believe that he is asking for a Bill which cannot be implemented. I believe that he will burden juries with a decision which they are not competent to make, and leave judges in a position in which it is virtually impossible to sum up and place individually before a jury the questions which they should be called upon to determine. I therefore urge the right hon. and gallant Gentleman to take into account the arguments submitted to him, perfectly fairly and not in any spirit of hostility or contradiction, to think them over and decide whether it would not be wiser to let this Clause go.

Mr. Redmayne rose in his place and claimed to move, That the Question be now put; but The CHAIRMAN withheld his assent and declined then to put that Question.

Mr. M. Stewart

On a point of order. I most respectfully submit to you. Sir Charles, that it is not unusual for the mover of an Amendment to be given an opportunity to say a few words in reply, particularly when the Government spokesman has—as in this case—taken him to task for treating the matter with undue levity. I respectfully hope that you will allow me that opportunity.

I crave the indulgence of the Committee for two minutes to say two things. First, the Home Secretary has said nothing in rebuttal of all the arguments advanced in favour of the Amendment. In defence of the Clause he has put forward only two arguments why shooting and explosion should be separately treated, both of which have been demolished by speaker after speaker.

First, he said that shooting is a more premeditated form of murder; it is no more premeditated than poisoning and many other forms of murder. Secondly, he said that it is a more indiscriminate form of murder, involving the greater danger to the public; it is no more indiscriminate than fire. All these arguments show that the matter has not been properly considered, and when the right hon. and gallant Gentleman says that it is I who introduced levity into the matter I say that it has certainly been part of my purpose to draw the attention of the Committee to the absurdities which necessarily result from the provisions of the Bill.

It was not I who introduced the absurdities into the matter. The Government did that when they introduced the Bill and this Clause. There is not a Clause which we discuss, nor an Amendment we examine, that does not bring out the fact that the Bill is an attempt, by a flippant subterfuge, to avoid giving expression to the great and simple moral decision which the House reached in an earlier Session.

Mr. Redmayne rose in his place, and claimed to move, That the Question be now put.

Question put, That the Question be now put:—

The Committee divided: Ayes 171, Noes 114.

Division No. 18.]	AYES	[10.38 p.m.
Agnew, Cmdr. P. G.	Green, A.	Nabarro, G D. N.
Aitken, W. T.	Gresham Cooke, R.	Nairn, D. L. S.
Allan, R. A. (Paddington, S.)	Grimston, Hon. John (St. Albans)	Neave, Airey
Alport, C. J. M.	Grimston, Sir Robert (Westbury)	Nicholls, Harmar
Amery, Julian (Preston, N.)	Grosvenor, Lt.-Col. R. G.	Nicholson, Godfrey (Farnham)
Anstruther-Gray, Major Sir William	Gurden, Harold	Nicolson, N. (B'n'm'th, E. & Chr'ch)
Arbuthnot, John	Hall, John (Wycombe)	O'Neill, Hn. Phelim (Co. Antrim, N.)
Amstrong, C. W.	Harris, Reader (Heston)	Orr, Capt. L. P. S.
Ashton, H.	Harrison, Col. J. H. (Eye)	Orr-Ewing, Sir Ian (Weston-S-Mare)
Balrdock, Lt.-Cmdr. J. M.	Harvey, Air Cdre. A. V. (Macclesfd)	Page, R. G.
Barber, Anthony	Heald, Rt. Hon. Sir Lionel	Pannell, N. A. (Kirkdale)
Barter, John	Heath, Rt. Hon. E. R. G.	Partridge, E.
Beamish, Maj. Tufton	Hill, Mrs. E. (Wythenshawe)	Peyton, J. W. W
Bell, Philip (Bolton, E.)	Hinchingbrooke, Viscount	Pitt, Miss E. M.
Bidgood, J. C.	Hirst, Geoffrey	Pott, H. P.
Biggs-Davison, J. A.	Holland-Martin, C. J.	Powell, J. Enoch
Bishop, F. P.	Hope, Lord John	Profumo, J. D.
Body, R. F.	Hornby, R. P.	Raikes, Sir Victor
Boothby, Sir Robert	Horobin, Sir Ian	Rawlinson, Peter
Boyd-Carpenter, Rt. Hon. J. A.	Hughes, Hallett, Vice-Admiral J.	Redmayne, M.
Boyle, Sir Edward	Hughes-Young, M. H. C.	Ridsdale, J. E.
Buchan-Hepburn, Rt. Hon. P. G. T.	Hutchison, Sir Ian Clark (E'b'gh, W.)	Rippon, A. G. F.
Campbell, Sir David	Iremonger, T. L.	Robinson, Sir Roland (Blackpool, S.)
Carr, Robert	Irvine, Bryant Godman (Rye)	Roper, Sir Harold
Clarke, Brig. Terence (Portsmth, W.)	Johnson, Dr. Donald (Carlisle)	Ropner, Col. Sir Leonard
Cole, Norman	Johnson, Eric (Blackley)	Schofield, Lt.-Col. W.
Conant, Maj. Sir Roger	Joseph, Sir Keith	Scott-Miller, Cmdr. R.
Cooper-Key, E. M.	Kaberry, D.	Sharples, R. C.
Cordeaux, Lt.-Col. J. K.	Keegan, D.	Simon, J. E. S. (Middlesbrough, W.)
Corfield, Capt. F. V.	Kimball, M.	Spearman, Sir Alexander
Craddook, Beresford (Spelthorne)	Kirk, P. M.	Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)
Crosthwaite-Eyre, Col. O. E.	Lambert, Hon. G.	Steward, Harold (Stockport, S.)
Crouch, R. F.	Leavey, J. A.	Steward, Sir William (Woolwich, W.)
Crowder, Petre (Ruislip—Northwood)	Leburn, W. G.	Stoddart-Scott, Col. M.
Currie, G. B. H.	Legge-Bourke, Maj. E. A. H.	Storey, S.
Dance, J. C. G.	Legh, Hon. Peter (Petersfield)	Studholme, Sir Henry
Davidson, Viscountess	Lindsay, Martin (Solihull)	Sumner, W. D. M. (Orpington)
D'Avigdor-Goldsmid, Sir Henry	Linstead, Sir H. N.	Taylor, William (Bradford, N.)
Deedes, W. F.	Lloyd-George, Maj. Rt. Hon. G.	Temple, J. M.
Donaldson, Cmdr. C. E. McA.	Longden, Gilbert	Thomas, P. J. M. (Conway)
du Cann, E. D. L.	Lucas-Tooth, Sir Hugh	Tilney, John (Wavertree)
Duncan, Capt. J. A. L.	Mackeson, Brig. Sir Harry	Turner, H. F. L.
Duthie, W. S.	Mackie, J. H. (Galloway)	Vane, W. M. F.
Eden, J. B. (Bournemouth, West)	Maclean, Fitzroy (Lancaster)	Vickers, Miss J. H.
Emmet, Hon. Mrs. Evelyn	McLean, Neil (Inverness)	Vosper, D. F.
Errington, Sir Eric	Macmillan, Maurice (Halifax)	Wakefield, Edward (Derbyshire, W.)
Fell, A.	Macpherson, Niall (Dumfries)	Wall, Major Patrick
Finlay, Graeme	Maddan, Martin	Ward, Hon. George (Worcester)
Fisher, Nigel	Manningham-Buller, Rt. Hn. Sir R.	Waterhouse, Capt. Rt. Hon. C.
Fletcher-Cooke, C.	Markham, Major Sir Frank	Webbe, Sir H.
Freeth, D. K.	Marlowe, A. A. H.	Whitelaw, W. S. I. (Penrith & Border)
Galbraith, Hon. T. G. D.	Marples, A. E.	Williams, Paul (Sunderland, S.)
George, J. C. (Pollok)	Marshall, Douglas	Wills, G. (Bridgwater)
Gibson-Watt, D.	Maude, Angus	Wilson, Geoffrey (Truro)
Glover, D.	Mawby, R. L.	Wood, Hon. R.
Godber, J. B.	Maydon, Lt.-Comdr. S. L. C.	Woollam, John Victor
Graham, Sir Fergus	Milligan, Rt. Hon. W. R
Grant-Ferris, Wg Crtr. R. (Nantwich)	Molson, Rt. Hon. Hugh	TELLERS FOR THE AYES:
		Mr. Oakshott and Mr. Bryan.
NOES
Ainsley, J. W.	Brown, Thomas (Ince)	Davies, Harold (Leek)
Allaun, Frank (Salford, E.)	Butler, Herbert (Hackney, C.)	Davies, Stephen (Merthyr)
Awbery, S. S.	Butler, Mrs. Joyce (Wood Green)	Deer, G.
Bacon, Miss Alice	Castle, Mrs. B. A.	de Freitas, Geoffrey
Bence, C. R. (Dunbartonshire, E.)	Coldrick, W.	Dodds, N. N.
Benn, Hn. Wedgwood (Bristol, S. E.)	Collick, P. H. (Birkenhead)	Edwards, Rt. Hon. Ness (Caerphilly)
Benson, G.	Corbet, Mrs. Freda	Evans, Albert (Islington, S. W.)
Beswick, F.	Craddock, George (Bradford, S.)	Fernyhough, E.
Blackburn, F.	Cullen, Mrs. A.	Fraser, Thomas (Hamilton)
Braddock, Mrs. Elizabeth	Dalton, Rt. Hon. H.	Greenwood, Anthony
Brockway, A. F.	Davies, Rt. Hon. Clement (Montgomery)	Griffiths, David (Rother Valley)
Hale, Leslie	MacPherson, Malcolm (Stirling)	Silverman, Julius (Aston)
Hall, Rt. Hn. Glenvil (Coine Valley)	Mallalieu, E. L. (Brigg)	Simmons, C. J. (Brierley Hill)
Hannan, W.	Mann, Mrs. Jean	Skeffington, A. M.
Hayman, F. H.	Mason, Roy	Slater, Mrs. H. (Stoke, N.)
Herbison, Miss M.	Mikardo, Ian	Slater, J. (Sedgefield)
Holmes, Horace	Mitchison, G. R.	Smith, Ellis (Stoke, S.)
Holt, A. F.	Monslow, W.	Soskice, Rt. Hon. Sir Frank
Howell, Denis (All Saints)	Moyle, A.	Stewart, Michael (Fulham)
Hubbard, T. F.	Neal, Harold (Bolsover)	Stross, Dt. Barnett (Stoke-on-Trent, C.)
Hughes, Cledwyn (Anglesey)	Oram, A. E.	Thomson, George (Dundee, E.)
Hughes, Emrys (S. Ayrshire)	Orbach, M.	Thornton, E.
Hughes, Hector (Aberdeen, N.)	Oswald, T.	Usborne, H. C.
Hunter, A. E.	Paget, R. T.	Wade, D. W.
Hynd, J. B. (Attercliffe)	Paling, Rt. Hon. W. (Dearne Valley)	Weitzman, D.
Irving, S. (Dartford)	Parker, J.	Wheeldon, W. E.
Jay, Rt. Hon. D. P. T.	Parkin, B. T.	Wigg, George
Johnson, James (Rugby)	Pearson, A.	Willey, Frederick
Jones, David (The Hartlepools)	Peart, T. F.	Williams, Rev. Llywelyn (Ab'tillery)
Jones, Jack (Rotherham)	Pentland, N.	Willis, Eustace (Edinburgh, E.)
King, Dr. H. M.	Plummer, Sir Leslie	Wilson, Rt. Hon. Harold (Huyton)
Lawson, G. M.	Popplewell, E.	Winterbottom, Richard
Lee, Miss Jennie (Cannock)	Price, J. T. (Westhoughton)	Woodburn, Rt. Hon. A.
Lindgren, G. S.	Probert, A. R.	Woof, R. E.
Logan, D. G.	Proctor, W. T.	Younger, Rt. Hon. K.
Mabon, Dr. J. Dickson	Roberts, Goronwy (Caernarvon)	Zilliacus, K.
MacColl, J. E.	Robinson, Kenneth (St. Pancras, N.)
McInnes, J.	Ross, William	TELLERS FOR THE NOES:
McKay, John (Wallsend)	Royle, C.	Mr. Short and Mr. Wilkins.

Question put accordingly, That the words proposed to be left out stand part of the Clause:—

The Committee divided: Ayes 172, Noes 114.

Division No. 19.]	AYES	[10.47 p.m.
Agnew, Cmdr. P. G.	Fisher, Nigel	Longden, Gilbert
Aitken, W. T.	Fletcher-Cooke, C.	Lucas-Tooth, Sir Hugh
Allan, R. A. (Paddington, S)	Fraser, Sir Ian (M'cmbe & Lonsdale)	Mackeson, Brig. Sir Harry
Alport, C. J. M.	Freeth, D. K.	Mackie, J. H. (Galloway)
Amery, Julian (Preston, N.)	Galbraith, Hon. T. G. D.	Maclean, Fitzroy (Lancaster)
Anstruther-Gray, Major Sir William	George, J. C. (Pollok)	McLean, Neil (Inverness)
Arbuthnot, John	Gibson-Watt, D.	Macmillan, Maurice (Halifax)
Armstrong, C. W.	Glover, D.	Macpherson, Niall (Dumfries)
Ashton, H.	Godber, J. B.	Maddan, Martin
Baldock, Lt.-Cmdr. J. M.	Graham, Sir Fergus	Manningham-Buller, Rt. Hn. Sir R.
Barber, Anthony	Grant-Ferris, Wg Cdr. R. (Nantwich)	Markham, Major Sir Frank
Barter, John	Green, A.	Marlowe, A. A. H.
Beamish, Maj. Tufton	Gresham Cooke, R.	Marples, A. E.
Bell, Philip (Bolton, E.)	Grimston, Hon. John (St. Albans)	Marshall, Douglas
Bidgood, J. C.	Grimston, Sir Robert (Westbury)	Maude, Angus
Biggs-Davison, J. A.	Grosvenor, Lt.-Col. R. G.	Mawby, R. L.
Bishop, F. P.	Gurden, Harold	Maydon, Lt.-Comdr. S. L. C.
Body, R. F.	Hall, John (Wycombe)	Milligan, Rt. Hon. W. R.
Boothby, Sir Robert	Harris, Reader (Heston)	Molson, Rt. Hon. Hugh
Boyd-Carpenter, Rt. Hon. J. A.	Harrison, Col. J. H. (Eye)	Nabarro, G. D. N.
Boyle, Sir Edward	Harvey, Air Cdre. A. V. (Macclesfd)	Nairn, D. L. S.
Buchan-Hepburn, Rt. Hon. P. G. T.	Heald, Rt. Hon. Sir Lionel	Neave, Airey
Campbell, Sir David	Heath, Rt. Hon. E. R. G.	Nicholls, Harmar
Carr, Robert	Hill, Mrs. E. (Wythenshawe)	Nicholson, Godfrey (Farnham)
Clarke, Brig. Terence (Portsmth, W.)	Hinchingbrooke, Viscount	Nicolson, N. (B'n'm'th, E. & Chr'ch)
Cole, Norman	Hirst, Geoffrey	Oakshott, H. D.
Conant, Maj. Sir Roger	Holland-Martin, C. J.	O'Neill, Hn. Phelim (Co. Antrim, N.)
Cooper-Key, E. M.	Hope, Lord John	Orr, Capt. L. P. S.
Cordeaux, Lt.-Col. J. K.	Hornby, R. P.	Orr-Ewing, Sir Ian (Weston-S-Mare)
Corfield, Capt. F. V.	Horobin, Sir Ian	Page, R. G.
Craddock, Beresford (Spelthome)	Hughes Hallett, Vice-Admiral J.	Pannell, N. A. (Kirkdale)
Crosthwaite-Eyre, Col. O. E.	Hughes-Young, M. H. C.	Partridge, E.
Crouch, R. F.	Hutchison, Sir Ian Clark (E'b'gh, W.)	Peyton, J. W. W.
Crowder, Petre (Ruislip—Northwood)	Irvine, Bryant Godman (Rye)	Pitt, Miss E. M.
Currie, G. B. H.	Johnson, Dr. Donald (Carlisle)	Pott, H. P.
Dance, J. C. G.	Johnson, Eric (Blackley)	Powell, J. Enoch
Davidson, Viscountess	Joseph, Sir Keith	Price, Philips (Gloucestershire, W.)
D'Avigdor-Goldsmid, Sir Henry	Kaberry, D.	Profumo, J. D.
Deedes, W. F.	Keegan, D.	Raikes, Sir Victor
Donaldson, Cmdr. C. E. McA.	Kimball, M.	Rawlinson, peter
du Cann, E. D. L.	Kirk, P. M.	Redmayne, M.
Duncan, Capt. J. A. L.	Lambert, Hon. G.	Ridsdale, J. E.
Duthie, W. S.	Leavey, J. A.	Rippon, A. G. F.
Eden, J. B. (Bournemouth, West)	Leburn, W. G.	Robinson, Sir Roland (Blackpool, S.)
Emmet, Hon. Mrs. Evelyn	Legge-Bourke, Maj. E. A. H.	Roper, Sir Harold
Errington, Sir Eric	Lindsay, Martin (Solihull)	Ropner, Col. Sir Leonard
Fell, A.	Linstead, Sir H. N.	Schofield, Lt.-Col. W.
Finlay, Graeme	Lloyd-George, Maj. Rt. Hon. G.	Scott-Miller, Cmdr. R.
Sharples, R. C.	Taylor, William (Bradford, N.)	Ward, Hon. George (Worcester)
Simon, J. E. S. (Middlesbrough, W.)	Temple, J. M.	Waterhouse, Capt. Rt. Hon. C.
Spearman, Sir Alexander	Thomas, P. J. M. (Conway)	Webbe, Sir H.
Spens, Rt. Hn. Sir P. (Kens'gt'n, S)	Tilney, John (Wavertree)	Whitelaw, W. S. I. (Penrith & Border)
Steward, Harold (Stockport, S.)	Turner, H. F. L.	Williams, Paul (Sunderland, S.)
Steward, Sir William (Woolwich, W.)	Vane, W. M. F.	Wills G. (Bridgwater)
Stoddart-Scott, Col. M.	Vickers, Miss J. H.	Wilson, Geoffrey (Truro)
Storey, S.	Vosper, D. F.	Woollam, John Victor
Studholme, Sir Henry	Wakefield, Edward (Derbyshire, W.)
Sumner, W. D. M. (Orpington)	Wall, Major Patrick	TELLERS FOR THE AYES:
		Mr. Legh and Mr. Bryan.
NOES
Ainsley, J. W.	Howell, Denis (All Saints)	Pentland, N.
Allaun, Frank (Salford, E.)	Hubbard, T. F.	Plummer, Sir Leslie
Awbery, S. S.	Hughes, Cledwyn (Anglesey)	Popplewell, E.
Bacon, Miss Alice	Hughes, Emrys (S. Ayrshire)	Price, J. T. (Westhoughton)
Bence, C. R. (Dunbartonshire, E.)	Hughes, Hector (Aberdeen, N.)	Probert, A. R.
Benn, Hn. Wedgwood (Bristol, S. E.)	Hunter, A. E.	Proctor, W. T.
Benson, G.	Hynd, J. B. (Attercliffe)	Roberts, Goronwy (Caernarvon)
Beswick, F.	Irving, S. (Dartford)	Robinson, Kenneth (St. Pancras, N.)
Blackburn, F.	Jay, Rt. Hon. D. P. T.	Ross, William
Boyd, T. C.	Johnson, James (Rugby)	Short, E. W.
Braddock, Mrs Elizabeth	Jones, David (The Hartlepools)	Silverman, Julius (Aston)
Brockway, A. F.	Jones, Jack (Rotherham)	Simmons, C. J. (Brierley Hill)
Brown, Thomas (Ince)	King, Dr. H. M.	Skellington, A. M.
Butler, Herbert (Hackney, c.)	Lawson, G. M.	Slater, Mrs. H. (Stoke, N.)
Butler, Mrs. Joyce (Wood Green)	Lee, Miss Jennie (Cannock)	Slater, J. (Sedgefield)
Coldrick, W.	Lindgren, G. S.	Smith, Ellis (Stoke, S.)
Collick, P. H. (Birkenhead)	Logan, D. G.	Soskice, Rt. Hon. Sir Frank
Corbet, Mrs. Freda	Mabon, Dr. J. Dickson	Stewart, Michael (Fulham)
Craddock, George (Bradford, S.)	MacColl, J. E.	Stross, Dr. Barnett (Stoke-on-Trent, C.)
Cullen, Mrs. A.	McInnes, J.	Thomson, George (Dundee, E.)
Dalton, Rt. Hon. H.	McKay, John (Wallsend)	Thornton, E.
Davies, Rt. Hon. Clement (Montgomery)	MacPherson, Malcolm (Stirling)	Usborne, H. C.
Davies, Harold (Leek)	Mallalieu, E. L. (Brigg)	Wade, D. W.
Davies, Stephen (Merthyr)	Mann, Mrs. Jean	Weitzman, D.
Deer, G.	Mason, Roy	Wheeldon, W. E.
de Freitas, Geoffrey	Mikardo, Ian	Wigg, George
Dodds, N. N.	Mitchison, G. R.	Wilkins, W. A.
Edwards, Rt. Hon. Ness (Caerphilly)	Monslow, W.	Willey, Frederick
Evans, Albert (Islington, S. W.)	Moyle, A.	Williams, Rev. Llywelyn (Ab'tillery)
Fernyhough, E.	Neal, Harold (Bolsover)	Willis, Eustace (Edinburgh, E.)
Fraser, Thomas (Hamilton)	Oram, A. E.	Wilson, Rt. Hon. Harold (Huyton)
Greenwood, Anthony	Orbach, M.	Winterbottom, Richard
Griffiths, David (Rother Valley)	Oswald, T.	Woodburn, Rt. Hon. A.
Hale, Leslie	Paget, R. T.	Woof, R. E.
Hall, Rt. Hn. Glenvil (Colne Valley)	Paling, Rt. Hon. W. (Dearne Valley)	Younger, Rt. Hon. K.
Hayman, F. H.	Parker, J.	Zilliacus, K.
Herbison, Miss M.	Parkin, B. T.
Holmes, Horace	Pearson, A.	TELLERS FOR THE NOES:
Holt, A. F.	Peart, T. F.	Mr. Royle and Mr. Hannan.

Mr. K. Robinson

I beg to move, That the Chairman do report Progress and ask leave to sit again.

I do this in order to ascertain from the Government and the right hon. and gallant gentleman the Home Secretary what are the Government's intentions regarding further progress in this Committee stage tonight. I think, as this is probably the most important Clause in this Bill, that the Committee has made good progress, despite the rather provocative use of the Closure by the deputy Chief Whip. We are now approaching a series of Amendments dealing with the question of poison, which was one of the few matters not discussed when this subject of the death penalty was discussed earlier in this House. In the circumstances, I would wish that the right hon. and gallant Gentleman would wish to accede to the Motion.

Major Lloyd-George

I agree with what the hon. Gentleman has just said, that the Amendments to which he referred are of very great importance. As we had not intended to sit very late tonight, it does not seem to me that we could possibly make much progress without very early interruption of our consideration of this important matter, and we are quite prepared to accept the Motion.

Question put and agreed to.

Committee report Progress; to sit again Tomorrow.