HC Deb 16 May 1956 vol 552 cc2019-169


Sir Hugh Lucas-Tooth (Hendon, South):

I beg to move, in page 1, line 9, at the end to insert: Provided that this Act shall not apply in any case in which the murder was committed

  1. (a) in the furtherance of burglary, housebreaking or other felony within the meaning of section twenty-six of the Larceny Act. 1916, or robbery, or immediately after the commission of any such offence or with intent to avoid arrest for any such offence, and
  2. (b) by the use by the person charged of some offensive weapon or instrument with which such person was himself armed

The Chairman

It might be for the convenience of the Committee also to discuss the Amendment in the name of the hon. Member for Westbury (Sir R. Grimston) in page 1, line 9, at the end to insert: Provided that this subsection shall not apply in any case where the offender is convicted of murder committed in the furtherance of any offence against sections twenty-three, twenty-five, twenty-six or twenty-seven of the Larceny Act. 1916.

Sir H. Lucas-Tooth

This Amendment stands in my name and the names of a number of hon. Members sitting in all parts of the Committee, some of whom voted for the Bill on Second Reading and some against it. Its purpose is to exclude what may conveniently be called the armed robber from the scope of the Bill. It may be as well if I say that when I use the word "robber" I shall generally mean robber, burglar and housebreaker.

The Amendment has been misread in certain quarters. I would start by saying that its intention is very narrow indeed. I would call the attention of the Committee to the fact that the two parts of it are connected by "and"; that is to say the only cases which can be brought within the scope of the Bill are those where it can be proved both that the murderer committed murder in connection with a robbery and that he himself used an offensive weapon in committing the murder. Moreover, it is only the robber who arms himself and himself fires the fatal shot or strikes the fatal blow who comes within the Amendment. Accomplices could not be sentenced to death if the Amendment were incorporated in the Bill.

4.0 p.m.

The Amendment is one of a number which seek to make exceptions from the principle of total abolition of the death penalty in cases of murder. Each of the Amendments would retain the death penalty in certain circumstances. I want to say right at the outset that if all these Amendments were made, there would be nothing left of the Bill. Therefore, those who support the Bill are, not unnaturally, reluctant to accept any one of the Amendments. Their attitude is that if any breach in the principle of the Bill is to be made, it will be difficult to resist further breaches.

As one who voted for the Second Reading of the Bill, I am very conscious of that danger, but I believe that the greater danger lies the other way. Many a reform has been wrecked or unduly delayed by over-rigid adherence to an over-simplified principle. This and the next Amendment were put down by my hon. Friends and I who voted for the Second Reading of the Bill, because we believe in the principle of the Bill. We believe that the Amendments are necessary to maintain that principle.

Of course, those who object to the death penalty on grounds of conscience will not wish to support the Amendment, which would certainly retain the death penalty in certain cases. However, I cannot argue with their consciences and, conversely, those who believe that the death penalty is necessary or, indeed, a proper sanction over the whole range of murder will regard this and the next Amendment in my name which we are also discussing as too narrow. I am not prepared to accept either of these sweeping generalisations.

It is a serious over-simplification to say that because the death penalty is not a deterrent in certain cases of murder, it is not a deterrent in all cases of murder. Hon. Members must ask themselves in what cases of murder the death penalty is a deterrent and, of course, if the answer is in none, the Bill must go through as it stands. While I have come to the conclusion that in most cases hanging is not a deterrent, it seems to me that the circumstances of the regular criminal, what is sometimes called the professional criminal, are quite different from those of the other sorts of murderer and should be treated exceptionally.

I do not believe that a man who is tempted to murder through passion, lust or revenge is deterred by the threat of hanging. Many of my hon. Friends do not agree with me. I do not believe that even the cold-blooded gambler with lives is deterred by the threat of hanging. Indeed, in some cases murderers of those kinds are even incited to murder by the existence of the sanction. The situation of the regular burglar or robber is entirely different.

He knows that if he is caught, he will get a long term of imprisonment in any case and it will be within the knowledge of many hon. Members that there has been a tendency for sentences to lengthen. Certainly, the introduction of preventive detention under the Criminal Justice Act, 1948, has meant that over a large class of the so-called professional criminal heavy sentences are regularly inflicted. It has been said that the prison population is divided into those who ought never to have been sent there and those who ought never to be let out.

There are many people who spend the greater part of their lives in prison and it is against those, the regular criminals, that the Amendment is directed. If conviction for murder were to involve only imprisonment, which would be the result of passing the Bill in its present state, there would be very little difference between what could be awarded to a man for committing a simple robbery and one who committed the same offence, while deliberately murdering someone in the course of it. In fact, there would be little if any penalty to set against the greatly improved chance of escape of the man who resorted to murder.

There is another aspect of the matter which is even more important. The threat of sentence of death does not operate upon the robber in the same way as upon other kinds of potential murderers. With most murderers the crucial moment is the moment when he decides to kill. It may be only a matter of seconds before the action, or it may be a longer time. However, for a burglar or robber the crucial moment is the one when he decides to arm himself.

It is when he decides whether or not to slip a revolver into his pocket. His thoughts and calculations at that moment are not of killing, but of self-preservation. I believe that the risk of execution can effectively negative that idea.

Mr. Sydney Silverman (Nelson and Colne)

I hope that the hon. Member will forgive me for interrupting. I am grateful for his courtesy. Is not that last part of his remarks the flaw in his argument? Does he not apply his sanction, on his own argument, at too late a stage'? Is not the thing he wants to prevent the decision to go on an expedition of this kind with arms, whereas the Amendment applies the sanction only when the arm has been used and fatally used?

Sir H. Lucas-Tooth

The robber puts to himself the crucial question at the moment when he has to make up his mind whether or not he will take a lethal weapon. If he puts a lethal weapon in his pocket, he is committed to a course which may end at the gallows.

That is a subjective argument and I apologise to the Committee for troubling it with a subjective argument, but in this case it is all one can do. I want to turn from that to a thoroughly objective and practical aspect of the matter. It may help the Committee to put the problem into perspective if I try to give some estimate of its size. I have carefully inquired into cases of conviction for murder during a number of years, cases which could have fallen within the scope of the Amendment.

It may be convenient to give the Committee the figures for the five years 1949–53. I choose those years not because they are suitable for my purpose, but because they have been very thoroughly analysed in the Observer, and I believe that all hon. Members have had access to the details given. As hon. Members will remember, that survey included particulars of every case of murder for which there was a conviction and execution during the years in question.

Having examined those cases carefully—and having cross-checked them with other information which I have obtained —I find that there is a maximum of 10 cases which could fall within the terms of the Amendment over that whole period of time. There are 10 cases out of 85, or an average of two a year. As a matter of fact, in the succeeding year, 1954—which is the last year for which I can obtain full particulars—there were also two cases. The Committee may, therefore, take it that the order of magnitude of the Amendment is two cases a year. It is a proportion of one in eight of all convictions for murder. That is probably a substantially smaller proportion of all known murders—which is quite another matter.

Hon. Members have asked me, "Why all this fuss to retain the death penalty if only so few are involved? My answer is—and here I think that the hon. Member for Nelson and Colne (Mr. S. Silverman) will agree—that the fewer the cases the more important the Amendment becomes. Indeed, I had hoped that it might be possible to find that no cases at all would be embraced by the Amendment. That would show that in this case the deterrent was, so to speak, a perfect one. At all events, I can say that the Amendment applies within very narrow limits, and it is reasonable to hope that, with improving police methods, even if the Amendment were made we should be on the way to seeing the end of executions.

The objection has been raised that the Amendment would introduce degrees of murder. If that were so I should not be here moving it, because I agree with all that has been said—and by the Royal Commission, in particular—upon the subject of degrees of murder. The question was discussed in Chapter 7 of the Royal Commission's Report. The Commission's conclusions are set out in paragraph 534. If any hon. Member wishes me to do so I will read the whole paragraph, but the important part is: We began our inquiry with the determination to make every effort to see whether we could succeed where so many have failed, and discover some effective method of classifying murders so as to confine the death penalty to the more heinous. The really important words there are "the more heinous", because the paragraph concludes: We conclude with regret that the object of our quest is chimerical and that it must be abandoned. I quite agree that it is not possible to grade murders according to degrees of heinousness.

Mr Leslie Hale (Oldham, West)

The hon. Member will be familiar with Lord Goddard's observations in 1948. What does he suggest will happen about the indictments? Will the offender be accused upon three separate indictments, the first charging him with murder in furtherance of robbery or housebreaking, accompanied by the use of an offensive weapon; the second charging him with killing; and the third with robbery or housebreaking? Is not Lord Goddard's point effective, namely, that the jury will have to be instructed—upon the first indictment—that they have to find, first, a housebreaking; secondly, a carrying of an offensive weapon; thirdly, a killing in furtherance of the housebreaking; and, fourthly, a killing with malice aforethought? They will have to be told that unless they find the accused guilty on all those they must acquit on the hanging charge—and then they will have to consider whether there was homicide unaccompanied by all those things, and, finally, whether there was an offence under the Larceny Act.

4.15 p.m.

Sir H. Lucas-Tooth

I think that the point of the hon. Member's intervention might be better made in a speech. It is more convenient for me if I can make my speech in logical order. I agree that if the Amendment is made the manner of drawing up indictments will be affected, but there is no really insuperable difficulty about that arising out of this simple Amendment. The Amendment has been compared with that which was introduced by the right hon. Member for South Shields (Mr. Ede), in 1948. That Amendment is also referred to in the Report. In that case it was in the form of a new Clause. The Report says: The clause was strongly criticised by the Opposition in the House of Commons and by a number of speakers in the House of Lords, including the Lord Chief Justice and four other members of the judiciary. They pointed out that the offences for which the death penalty was retained were a mere hotch-potch consisting of those which were thought to arouse the greatest public apprehension or abhorrence. Whatever hon. Members may say, this Amendment is certainly not a hotch-potch, and was certainly not chosen upon the basis of its arousing the greatest public apprehension or abhorrence. Moral offensiveness is not the principle of the Amendment. Its principle is to retain the punishment of hanging where there is real reason to think that that punishment is effective and necessary. The correct way to take into account the heinousness of an offence of this kind is by the use of the Prerogative of mercy, which is entirely untouched by the Bill or the Amendment.

This and the next Amendment in my name stand upon a principle which is different from that of all the others. I seek to justify them upon their merits. I believe that what I am proposing is right. The two Amendments have been referred to as a possible compromise between conflicting views of hon. Members. I have not advanced that view in recommending the Amendment, and it is certainly not what moved my hon. Friends and myself in putting it on the Notice Paper. All I say, in that connection, is that I believe that the two Amendments, together, stand at about the centre of gravity of public opinion and also of the combined opinions of all hon. Members. It is this consideration which gives me comfort in putting forward the Amendment, and some confidence in recommending it to the Committee.

Mr. R. T. Paget (Northampton)

As I understand it, the hon. Member's Amendment is aimed at the habitual criminal, the man who is liable to be sentenced to a period of preventive detention, and who, therefore, is already liable to a maximum period of imprisonment. It is said that the addition of a term of life imprisonment would not make any difference to him. Am I right in that assumption?

Sir H. Lucas-Tooth

Among other things.

Mr. Page

The only thing that I was pointing out is that at the moment the Amendment does not provide that. If that be the intention, we should, I think, have to include some words to the effect that the crime had to be committed by a person with previous convictions who was already liable to be sentenced to preventive detention.

The other intention, as I understand it, is to discourage this type of professional criminal from going about armed. Again, I do not think that the words quite cover that intention. The Amendment refers to a weapon. with which such person was himself armed. That does not say that he went out on the expedition armed. It would apparently cover the man who was surprised and picked up an ink pot, which he found on the premises, and threw it to cover his retreat. I do not imagine from what the hon. Baronet said that it was his intention to cover that sort of case.

Again, it would cover the case of the man who had taken a jemmy not with any intention of hurting anybody with it but who, upon being surprised, struck out with it in rushing for the escape. Again I do not imagine that it is the hon. Baronet's intention to cover that sort of case, because I should not have thought that was among the more heinous of these crimes.

If the hon. Baronet's intention as he described it is to be given effect to, this Amendment would in its turn require considerable amendment at a later stage. It would have to be confined to people with previous convictions for this type of offence and it would have to be confined as to the nature of the weapon. After all, the courts have held that a man's fist is an offensive weapon. It would have to be defined as to the time at which he armed himself; that is to say, he went out on the expedition armed, because that is what I think is being aimed at.

When one hears what the Amendment is aimed at and sees how many alterations it immediately becomes apparent are necessary if that object is to be achieved, this again illustrates how difficult it is to achieve degrees of murder. Whenever one tries to pick up one particular thing and say, "Well, we will keep it for that; we will define that," one finds that the difficulties of definition are almost insuperable.

As to the general argument, obviously there is an emotional case for saying, "Let us deal with the armed criminal; there can be no sympathy with him and he is the person whom we all rather fear; he is the person who might break into our houses," but I believe that we should apply to the Amendment the same fundamental considerations which we have already applied to the whole question of capital punishment.

The first question is, does capital punishment provide a special, an exceptional, a unique deterrent? We are told here that the deterrent is aimed at the man when he puts the pistol in his pocket. Would it not really be more logical to apply the deterrent to the act which we wish to deter? I believe that there is a strong case for making it very clear that any criminal who is found with a gun on him is going to prison for not less than ten years, and the more clear we make that the less likely it is that criminals will carry guns. That is where we are going to apply the deterrent.

Again, as to the unique quality of the deterrent, if we believe that the death penalty has a unique quality as a deterrent we are opposed to the Bill altogether. It is precisely because we do not believe that the death penalty is a unique deterrent that we are opposed to capital punishment. There is no evidence at all, as I understand it, that the death penalty is a greater deterrent to criminals arming themselves than imprisonment.

We have a very interesting example in the industrial belt which runs through Flanders into France. The people there are of the same type. They are Flamands; they were once citizens of the Duchy of Burgundy; they have the same type of industrialisation. On the French side of the border, where there is capital punishment, it is the fashion for criminals to carry guns. On the Belgian side of the border where, oddly enough, they do not have capital punishment, it is not. I am not saying that the French criminals carry arms because they have capital punishment and the Belgians do not carry arms because they do not have capital punishment. I am merely citing that as an instance that capital punishment seems to be quite irrelevant on this question.

The same experience runs in America. I am open to correction on this, but I think I am right when I say that Kansas City, or one of the major cities, is divided by a river on one side of which there is the death penalty and on the other side of which there is not; and, oddly enough, armed crime is much more prevalent on the side where there is the death penalty. Again I cite this merely as an example that there does not seem to be any evidence at all that it is a particular or unique deterrent in this case rather than in any other of the cases with which we are dealing.

I am not saying that there are not criminals who may be deterred from putting a gun in their pocket by fear of hanging. There may be such people. We may have nervous people who are particularly frightened of death and frightened of hanging who would not take a gun because they fear that it might involve their being hanged; but I would point out that, in the wide and rather specialised fields of crime, burglary and robbery are not usually those crimes which are selected by nervous types. It is unusual, to say the least.

Again, there are people who are actually incited to carry the weapon because of the death penalty. The sheer excitement of playing with death—that is not so uncommon or so reprehensible. A good many of us have had the ambition to ride in the Grand National or to drive cars in races. This flirting with death has an attraction for many human beings, and not particularly reprehensible ones— especially young ones as one of my hon. Friends says. The idea, "I am the big man; I am playing the maximum stake; I am tweaking the whiskers of death"— that is an attraction. I do not say that it is an attraction which will outweigh the other. Some will be incited to this extra boldness that plays this maximum stake; some may be deterred. I do not know— there is not the slightest evidence anywhere— which of those two classes is the larger. So much for the question of deterrent.

4.30 p.m.

What is the second question which has probably worried us most about this? It is the danger of an innocent man being hanged. I would say that it is in this class of case that that danger is greatest. It is the greatest precisely because of the fact that this is the type of case which is likely to involve a policeman and that, where one of their comrades has been killed, the police may be the most keen to get a conviction.

We were told in 1948 that the great protection is, firstly, the jury, then the Court of Criminal Appeal and, finally, the Home Secretary. If those were really the only protections I would be pretty anxious. Let us look at them in turn. First, the Home Secretary. I expect that many of us have gone to discuss with

Home Secretaries of different colours people we thought were wrongly imprisoned. Have we not all had the answer, "You cannot expect me to put myself in the position of retrying what has been tried by the jury and doing the function of the Court of Criminal Appeal."

The Court of Criminal Appeal is an admirable institution for seeing that a trial is properly conducted. If there is a technical objection it may well succeed, but the one question which, except in the rarest cases, cannot be raised is the question whether a man was guilty or not. I remember the case of Wallace from Liverpool. The Court of Criminal Appeal decided that there was no evidence whatever upon which a jury could have come to that conclusion, but, unless the Court of Criminal Appeal is prepared to do that —if there is no evidence whatever—the Court of Criminal Appeal will not interfere when the trial has been properly conducted.

Then there is the jury of twelve men good and true who have to look at people, strangers in alien surroundings, frightened in the witness-box, and find if they arc speaking the truth. I have had a great deal more experience of courts than most jurors. The more I am in court the more certain I am that I am utterly ignorant of whether a witness is speaking the truth or not. The most convincing witness I ever heard was the man who sank the "Thetis" He was an old workman, a craftsman, and he described how he had prepared a test hole in the torpedo tube. He described it with such conviction that no one thought it worth while even to cross-examine him, but when the "Thetis" was brought up, it was found that he had not done one single thing which he had described doing—not one. That is why the submarine sank.

That is the sort of thing the jury has to decide. I would say that the real protection which a man has in this country is none of those things. The real protection a man has in this country is the police. In all my experience I have never known—nor indeed seriously imagined— that the police have put a man into the dock whom they were not clearly convinced in their own minds was guilty. I am putting aside questions under the Companies Act and questions in which there are difficult legal matters, but in a general way in this country the police are most meticulously careful not to put an innocent man into the dock. What a much better opportunity the police have to find out whether a man is really guilty than the jury have. They interview him and judge his demeanour before his story is told. Equally, they interview and judge witnesses before their stories are told. They can take into consideration a much wider field than can ever be put before a jury. Their contacts with the criminal world are so important.

That is why I say that where the police are emotionally involved in any case this protection, I believe, is far and away the greatest protection because, if the police arc wrong, I think it is pretty rarely that a jury will be right. If this big protection is to some extent vitiated by the fact that the police are emotionally involved then we are running the greatest danger of a miscarriage of justice.

I will take as an example of where this happened the case of Habron. Habron was a young man in Lancashire who was convicted of murdering a policeman. In those days the Home Office was not as cagey as it is today. The records of that trial are available and I have examined them. The evidence was perfectly clear. There was a lot of circumstantial evidence and there was concrete evidence of Habron's footprint by the murdered policeman. It had particular cobbling of damaged ferrules on it which were as distinctive as a fingerprint. The case against Habron was clear, but in that more humane age he was reprieved, not because there was any doubt as to his guilt, but only because he was the same age as Bentley. Then Charles Peace later confessed to the crime and it was established beyond any doubt at all that Habron was completely innocent. What is the explanation? I am afraid that there is only one explanation. It is that the police had planted the footprint. There is no other.

I do not know the facts in the Northampton case because I have only been able to read the local newspapers. The Home Secretary says that the three men who were convicted in Northampton would not have been hanged if that policeman had died. He said that was partly because the evidence of the policeman as to identification would not have been available. Yet there was other evidence of identification according to the local newspapers, though perhaps not very much. I should certainly have thought that the dying deposition of that policeman as to identification would have been at least as effective as his presence in the witness-box. The Home Secretary further tells us that there was something upon the record of this case which would have raised a doubt and, therefore, there would have been a reprieve. Is that what the right hon. and gallant Gentleman told my hon. Friend the Member for Barons Court (Mr. W. T. Williams) when he first came to see him about the case?

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

The hon. and learned Member has asked me a question. When the hon. Member for Barons Court (Mr. W. T. Williams) first came to see me about that case it was before the inquiry had been completed. It was after the inquiry had been completed that I was able to give the facts I have given.

Mr. Paget

Precisely, but at that time was there any indication at all, before those confessions, that upon the record there was a doubt as to the guilt of these men? Of course there was not. If there was, why were they not released before? Do we keep people in prison when there is a doubt apparent on the face of the record? If there is that doubt, why will the right hon. and gallant Gentleman not show us the documents? Is it honest to say "On those documents of this trial"— we are told that these trials are so perfect—"there was doubt as to whether those men were guilty and on that I would not have hanged them if this policeman had died," and then refuse to show us the document so that we might see for ourselves? What is the secrecy? Why is it not in the public interest to say what happened at a trial when it is clear that that trial resulted in a miscarriage of justice? Why do these documents have to be concealed? In the old days they were not.

Major Lloyd-George

The hon. and learned Gentleman keeps on saying that in the old days they were not. There has been no change at all in the practice with one or two exceptions, which the hon. and learned Gentleman knows perfectly well. There has been no attempt at concealment, and the very fact that what happened did happen shows that there is nothing to conceal.

Mr. Paget

In the last century, before the days of the Court of Criminal Appeal, the judge's notes were always available.

So much, then, for the question of the danger of a miscarriage of justice. This is the very class of case in which the danger of a miscarriage of justice is at its greatest. Thirdly, and I think that this is certainly what has concerned me most throughout this discussion, there is the moral question.

Mr. W. R. Rees-Davies (Isle of Thanet)

Will the hon. and learned Gentleman allow me? Surely, there is every possible distinction in a miscarriage of justice between a case in which the death penalty is involved and one in which it is not? In the case to which the hon. and learned Gentleman has just alluded, the death penalty was not involved, for the very simple reason that no police officer, and nobody else, will ever give false evidence if he believes that somebody will go to the gallows as a result of that false evidence.

Mr. Paget

I have just told the hon. Gentleman about the case of Habron. I have paid this tribute to the police. I have never met a case in which I thought the police had put into the dock a man whom they did not honestly believe to be guilty, but when they have put men in the dock, I have constantly—and so has anybody else who practises in the criminal courts—had reason to feel that the evidence was overstated, coloured up, and put stronger than it ought to have been in order to support a case which they believed to be a right one. That is why I believe that this is the very type of case in which the danger of a miscarriage of justice is the greatest.

Lastly, I want to deal with the moral question, and, again, this is the one that worries me personally the most. I believe that if there is any purpose in existence on this earth, that purpose must be redemption; that the purpose of our living must be to be able to redeem our characters and remake our characters into something that is decent and reputable and fit to meet our God. The men who go in for this sort of crime are the youngsters, and that is the difficulty. In this Observer review, hon. Members may have noticed that more than half the people were under the age of 25. In this sort of crime, the chap who breaks into a house and uses a gun is the young chap, the young hooligan, the boy. Are we going to say that these young chaps are not capable of remoulding their characters and becoming decent?

It was very moving, when the foreigners came over here, and I do not know how many hon. Gentlemen opposite went to listen to them, to hear about one particular murder—a terrible murder —which was committed in Belgium in 1918. The Attorney-General of that time, although there had not been a case of murder in Belgium for 40 years, said that this murder was so awful and this man so past praying for or irreformable that he must be executed, but the Minister of Justice stood firm. That man was an armed criminal, if ever there was one, who, eventually released in 1942, put up a splendid record in the Resistance. He has since married, he has three children, he is an entirely respectable member of society and has completely redeemed himself. That is an example. Can one ever say of those young men that they are past redemption, that they cannot rebuild their characters and make themselves into new men?

Mr. John Paton (Norwich, North)

May I ask my hon. and learned Friend if he remembers, in connection with the Belgian case which he has just mentioned, the very important point that the murders which were being dealt with were gang murders, and that the Attorney-General's insistence on the death penalty was with a view to stopping these gang murders? Yet, after that murderer was convicted and reprieved, gang, murders stopped immediately without the death sentence being applied at all.

Mr. Paget

That is so, and it is a curious coincidence. Had it been after the imposition of the death penalty, it would have been claimed as a triumph for the death penalty. It indicates some of the irrelevancies of the deterrents which we are always finding.

The point I was dealing with here is that, in the case of a young man particularly, there is always a chance of reforming his character and of making him into something decent, something fit to meet his God, and that is something with which we ought not to interfere. Therefore, I say that each of the major considerations which led us to give a Second Reading to this Bill is still valid, and especially valid in leading us to reject this Amendment.

4.45 p.m.

Mr. Raymond Gower (Barry)

I hope that this Amendment will commend itself to a large body of opinion in the Committee, both to those who have supported the principle of abolition and many of those who accept the principle of retention.

The hon. and learned Member for Northampton (Mr. Paget) implied at one stage in his speech that this was still an attempt to establish degrees of murder, but I think he was inaccurate in suggesting that, because the cases referred to in the two Amendments are a few very precise exceptions, and should be regarded as such. I want to stress that nobody can establish that these Amendments are in any way wrecking Amendments. They do not destroy the main principle of the Bill. if the Bill, subject to these Amendments, should pass into law, the main principle of abolition will be established in this country for the first time, and only within these very narrow limits will the death penalty be retained.

A few years ago, a House of Commons with a very large Labour majority voted for the general principle of abolition, and this year, on more than one occasion, a House of Commons of a very different complexion has also voted for the same principle. On all those occasions, both in 1948 and again this year, there have been formidable minorities of Members who were opposed to this reform, and on all those occasions I think it is true to say that Members of Parliament must have been conscious of a very large body of public opinion in the country which was and still is disquieted.

As one who has only very recently been converted to the principle of abolition, and who has perhaps very slowly been convinced by the case which has been put up and the arguments which have been adduced in all these debates, I can say that I have been made aware in speaking to people, both in my own constituency and in other places, of the fact that a lot of this disquiet has been concentrated in the territory covered by the Amendment which has been moved by my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth).

People are most disquieted and deeply concerned, first, about what my hon. Friend described as the armed robber, and, secondly, the cases of those who have already been reprieved from the death penalty and have been subjected to imprisonment. These Amendments may not appeal strongly to the fervent abolitionist; they may not, on the other hand, appeal to the out-and-out retentionist. Let us not dismiss them, however, for those reasons. I believe that there are many people who, like myself, have been anxious about this issue for a very long time.

Those who say that we should not only approve the main principle of the Bill in the House but should also disregard public opinion entirely are wrong. I think that by passing this Amendment we can go a long way to reconcile the deepest felt misgivings of many people and, what is not unimportant for those who want abolition to pass into law, to reconcile some of the greatest misgivings in another place, where the Bill will have to be considered. If their Lordships receive a Bill which is modified in this way we can hope that they will find it more practical to accept it than to accept one which went the whole hog.

Mr. Hale

In another place, in 1948, there was a long discussion precisely on the substance of this Amendment, which was rejected as impracticable on the advice of all the Law Lords then present.

Mr. Gower

I cannot agree with the hon. Gentleman. I believe that the difference in another place was on the question of degrees of murder.

Mr. Hale


Mr. Gower

The position is altered to some extent by the fact that another place must now bear in mind that this House, like the House of 1948, although of very different political complexion, has approved the principle of abolition. I imagine that that will greatly change the position.

It is of some importance that twice within a period of eight years two Houses of Commons, of very different compositions, have generally approved this principle. I cling to the view that by passing this very Amendment, which I must describe as modest and within a very narrow field, we shall be relieving the worst anxieties of very many people. For those reasons, I hope that the Committee will accept the Amendment.

Mr. Peter Thomas (Conway)

Would my hon. Friend deal with the point made by the hon. Member for Oldham, West (Mr. Hale)—the distinction between breaking, in certain cases, and entering without breaking? If a man gets through a window which is partly open, it is not breaking; but if he gets in through a window which is shut, he is breaking.

Mr. Kenneth Younger (Grimsby)

I want to intervene only briefly at this stage, because I am sure that the Committee will agree that everything which can be said on this subject has been most exhaustively said on many occasions, and that it has been exhaustively discussed in the Royal Commission's Report. Indeed, it was very largely to determine whether either degrees of murder, or, as some hon. Members prefer to describe it, the establishment of certain exceptions, could be introduced that the Royal Commission was appointed. That was the main purpose of the Royal Commission being set to work

The Committee will have appreciated the manner in which the hon. Member for Hendon, South (Sir H. Lucas-Tooth) moved the Amendment and the manner in which he was supported by the hon. Member for Barry (Mr. Gower). We were presented— and this it not altogether usual in the debate— with a serious attempt at a purely rational argument of the case for making this exception. I am not sure that I agree with the hon. Member for Barry that those who promoted the Amendment have succeeded in putting forward a precise exception, as opposed to a hotch-potch, as the learned judges in another place referred to the new Clause which had been put down on the previous occasion.

Although we were invited to think of this Amendment mainly in terms of the hardened criminal with many convictions, accustomed to long terms of imprisonment, and in terms of the burglar who, deliberately and thoughtfully, armed himself before going out on his expedition, I do not think that the Amendment is, in fact, limited in either of those ways. My hon. and learned Fried the Member for Northampton (Mr. Paget) has already dealt with the Amendments which would be necessary if this Amendment were to be made to cover only professional criminals with long criminal records.

I should have thought that paragraph (b) of the Amendment would cover any housebreaking tools. I should have thought that any burglar who went out, without any thought or intention of being armed at all but carrying the ordinary tools which we all know are frequently in the possession of people who pick locks or otherwise break into houses, would fall within the mischief of this Amendment. I therefore think there is some illusion in the suggestion that the Amendment is as precise as its promoters believe.

Indeed, the promoters are attempting to do, as well as is possible, something which is quite impossible. I do not think that they escape from the criticism that degrees of murder cannot be established in any rational manner. This is a small attempt to establish degrees of murder.

One has also to remember that the Amendment is proposed within the framework of a Bill which otherwise removes the death penalty from other categories of murder, including many categories which would be just as heinous and morally just as abominable, and which would horrify the public to just as great an extent and would cause just as loud a public outcry. While I suppose it may be true that those of us who, in general, have proposed abolition might prefer that the application of the death penalty should be removed from almost any category— almost anything which restricts the field in which the death penalty operates might in a sense be acceptable to abolitionists— we ought to hesitate before we achieve that result on a basis which appears to have no moral principle at its back.

Re-reading the reports of the debates of 1948 in another place, I was very much impressed by what was said by that most distinguished lawyer— but not a criminal lawyer— Lord Simonds, whose main point, if I may paraphrase it very generally, was that he hated the thought of making the law of England something capricious, something divorced entirely from any moral principle which the plain and simple man could understand. Whereas nowadays, with the operation of the Prerogative on the Home Secretary's advice, there is some measure of uniformity, though not complete uniformity, and something which the public in most cases can understand about the operation of reprieve or no reprieve, that would be completely removed if this or any of the other Amendments on this subject were carried.

The moment we try to single out by law some category by reference only to certain objective facts and not at all to the state of mind of the criminal, we at once introduce an element of complete capriciousness which removes such moral sanction from the existing law.

Sir H. Lucas-Tooth

The right hon. Gentleman will appreciate that the criticism which Lord Simonds was directing to the argument concerned an Amendment which the Royal Commission itself has described as an attempt to choose those crimes which arouse the greatest public apprehension and abhorrence.

Mr. S. Silverman

I do not want to take up time now, but I have the full report here and I think I should say at this point that, although Lord Simonds dealt with the general question to which the hon. Baronet referred, he also dealt expressly with the kind of exception contained in the Amendment.

Mr. Younger

Whatever the precise references intended by Lord Simonds at that time, I believe that his argument is fully applicable today. We should reach the position under the Amendment in which crimes which the public think should carry the death penalty, if any are to carry it, would escape by law and not by the operation of the Home Secretary's discretion, while others would fall within the mischief of the Amendment, on no moral principle that the public could appreciate.

5.0 p.m.

When I said I thought that the hon. Baronet had made the best case it was possible to make for an impossible proposition, I was referring to the fact that prima facie, it may seem some argument that the death penalty as a unique deterrent may apply in cases of this kind when it does not apply otherwise. I think that the only argument on which it is possible to single out any categories of exemptions. But once we examine the evidence of deterrence, or the absence of evidence, it becomes clear that there is nothing to justify us in making an exception upon that ground.

Had there really been any substantial ground for applying the argument of the deterrent in this and not in other cases, surely we should have had a body of evidence put forward and we should have had the Royal Commission recommending it as a possibility, at any rate tentatively. I do not think that anyone reading its Report can imagine that the Royal Commission, after all its investigation, reached this conclusion.

I do not know what the Home Secretary will say this afternoon, but in our earlier debates, first, on the Home Secretary's Motion and again during the Second Reading, I thought the right hon. and gallant Gentleman made it plain, as did his right hon. Friend the Lord Privy Seal, that we are voting on a straight decision for or against abolition. I thought that the attitude of the Home Secretary was that if a distinction was to be made between one class of murderer and another he was strongly in favour of that being left to his discretion to advise the Crown, and that he considered there was no possibility of making any distinction of that kind by legislation. I hope that the right hon. and gallant Gentleman will maintain that attitude today.

It was said by the hon. Member for Barry that both those who, in general, wish for retention and those who, in general, wish for the abolition of the death penalty may find that there is an appeal to them in this Amendment. I will not say anything about those who wish for retention, but as one who is, in general, in favour of abolition I would say that this Amendment offends most of the principles which led me to believe that we should abolish the death penalty. I have already said that I think there is no evidence on the ground of deterrence for singling out this case. If one believes that the death penalty is not a unique deterrent, how can one single out this particular case from others, as a case where apparently the deterrent operates?

It does not get round what my hon. and learned Friend the Member for Northampton said about the risk of error, the risk of the miscarriage of justice and the finality of the death penalty, the thing which has done most to swing public opinion during the last 12 months or so. It does not enable us to get rid of the undesirable public effects, the psychological effects, of the existence of this whole apparatus of execution; and, therefore, those who, in general, support the principle of this Bill have no reason for supporting this Amendment.

Viscount Hinchingbrooke (Dorset, South)

My hon. Friend the Member for Barry (Mr. Gower) said that this was not a wrecking Amendment, and in the sense that it does not wreck the Bill, that is quite true. But, in my view, it wrecks the law, which is very much worse. It wrecks the law of murder and confuses the issue. It will cause the utmost public disquiet. Juries will not know how to convict. Judges will not know how to direct.

I think it would serve the purpose of the Committee very well if the Home Secretary would tell us whether he thinks that the great branches of administration in English and Scottish law are happy about the possibility of this Amendment coming into the Bill. While my right hon. and gallant Friend cannot answer for anyone except the Metropolitan Police, he could indicate whether the Government feel, this Amendment having been incorporated in the Bill, that the law is not an "ass"; or more in the sense of being an "ass" than when Dickens first said it was.

My hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) had two main grounds on which he moved this Amendment. The first was that the professional criminal knows that he will get a long sentence in any case. Therefore, if a greater penalty is given in the shape of a longer term of imprisonment, that would not be an adequate deterrent. But surely what would follow from the passage of this Bill would be that sentences for all forms of crime connected with armed robbery would be recast in the light of the armed robbery being committed at the same time as murder was committed. Immediately we should get a differentiation made between the sentence for armed robbery and the sentence of armed robbery with murder. Therefore the criminal who went out on an armed robbery would know at the beginning that if at the same time he committed a murder the sentence would be much greater than otherwise.

My hon. Friend's second proposition was that hanging was a deterrent when the criminal selects the weapons before going out. He said that was the moment at which we should imagine that the prospect of hanging acted as an extreme deterrent; at the moment when the armed robber went out to commit his robbery.

Sir H. Lucas-Tooth

It is as well to point out that robbery with intent to rob, being armed with an offensive weapon or instrument, is now punishable by life imprisonment, so that it would make no: difference if the subject of the robbery: was shot or was not shot.

Viscount Hinchingbrooke

That may be the sentence in the common law, but it is not the sentence imposed in the great majority of cases. I do not know what is the average, but hon. Members say that it is six or five years. If an armed robbery is committed and at the same time a murder is committed, there would be a sentence of life imprisonment, and a man would be lucky if he got out in the average of nine years.

On the second proposition, the point about the deterrent acting when the criminal selects his weapon before going out on an armed robbery, my hon. Friend makes no distinction between the hardened criminal and the first offender. The hardened criminal going out on an armed robbery might very well feel that hanging was a deterrent. But what about the first offender who is not specified in this Amendment? He is in the same position as the first murderer in any other form. Does hanging act as a deterrent to him? In the present view of the majority of hon. Members it does not.

Under this Amendment the first offender who goes out on an armed robbery will hang. But the first murderer who does not go out on an armed robbery will not. Miles William Gifford, case number 26 in the list with which we have been supplied, who battered his father and mother over the head and threw their bodies over a cliff, would not hang. But Bentley, or rather, shall we say Craig— because Bentley is excluded by this Amendment— Craig, if he had been a year or two older, would have been hanged.

The more we look at this Amendment, the more strange are the paths into which we are led. It provides for the death penalty in the case of, … the furtherance of burglary, housebreaking or other felony … during the course of the commission of the offence. If the man takes a weapon out of his house and shoots somebody in the street on the way to committing the offence, he is not hanged. But, under this Amendment, the very moment he puts his foot over a doorstep and commits a murder he is hanged. If a man had left the house and was walking down the street, in the same physical and geographical position as the man I have just described on his way to the crime, he is also hanged, because it says in the words of the Amendment: or immediately after the commission of any such offence.

Mr. Douglas Glover (Ormskirk)

Surely, in the first case, the man shooting someone walking down the street, the murderer is a maniac. In the other cases quoted by the noble Lord, they are murders committed in course of a burglary or robbery.

Viscount Hinchingbrooke

There have been cases where people have shot people walking down the street. We find in the second part of the Amendment that an offensive weapon or instrument has to be employed. Not many hon. Members so far have attacked this. The hon. and learned Member for Northampton (Mr. Paget) asked if it applied to a man who slung an inkpot at someone's head and that caused death. I imagine that it does; or that if an armed robber, in a moment of surprise, reached back and took a paperweight off a table, clutched it in his fist and used it, that would carry with it the death penalty. What about Othello? Would my hon. Friend who moved this Amendment have hanged Othello or not? Is it not one of the simplest and most bloodless forms of murder, when surprised in the course of robbery, to take a large cushion and smother one's victim, particularly if it is an old lady?

Sir H. Lucas-Tooth

I am not at all sure whether my hon. Friend is right about Othello's intention being to rob Desdemona. This is the first time that I have heard of it.

Viscount Hinchingbrooke

I appreciate that my hon. Friend did refer in the earlier part of his speech to the significance of the word "and" in line 4. It is surely quite wrong that certain people should be exempted from the gallows if they use a cushion in order to murder and others should be condemned to the gallows if they use an instrument of a harder physical nature.

Let us look at the case of Leslie Green, an unemployed chauffeur, convicted of killing his former employer, Mrs. Wiltshire, who surprised him when he was burgling her house. I do not remember what weapon he used, but perhaps hon. Members will remember it. Would my hon. Friend clutch him back retrospectively from the gollows if he had used a cushion? Evidently he would, according to this Amendment.

I very much hope that the House will reject the Amendment and the series of Amendments which follow, all hoping to effect minor changes in the law in the interest of compromise. There is no compromise on this issue. The only thing that the House can honestly do is to close down on the Committee stage as soon as possible and vote according to individual conscience on the Third Reading.

Mr. Leslie Hale (Oldham, West)

I do not want to intervene for very long or to give the impression of making lawyers' points. I know that the Committee does not like lawyers' points, and certainly would not like them on an issue about which we all feel so deeply.

There are some points which were made in the debate in another place which have not been made here, and which I think should be made. I agree entirely that the hon. Member for Hendon, South (Sir H. Lucas-Tooth) presented his case as effectively and as fairly as I have ever heard a Committee point presented. It is a conspicuous example of the fact that moderation commends itself to the House. He will not think it unfair of me if I add that there are some extremely difficult points with which he omitted to deal. There is the point which the Lord Chief Justice made in another place— I do not know whether I can quote his observations —in the debate in 1948, but I will at any rate summarise it.

5.15 p.m.

The Lord Chief Justice said, and all lawyers will agree, that from one point of view at any rate a murder case at the moment is one of the simplest cases to try. No one means by that that it is easy either for the participants, or that it is not a very brave responsibility, or that it is a matter which one approaches with a sense of insufficiency. But the actual legal determination depends on a simple finding— was there a deliberate killing? That really is the question for the jury.

There is a good deal of the whole experience of our law in this, because the law has always recognised that juries may vary in their views about the severity of punishment, especially when they know that they are returning a verdict on which a man may be condemned to death. There is an inherent tendency to sympathise and to avoid bringing in such a verdict. Therefore, the simpler the test put to the jury the better. It would be repugnant to the public conscience if the question of death or otherwise depended on some minor or complex technicality. One point is that under this Amendment it will. The noble Lord the Member for Dorset, South (Viscount Hinchingbrooke) made some very effective points, but it does not merely depend whether a man is shot in the street or in the house; it depends, as the hon. Member for Conway (Mr. P. Thomas) said, on whether the jury find as a fact that he turned the knob of the door. [HON. MEMBERS: "No."] Yes, indeed. This is precisely what the Lord Chief Justice said.

Mr. Rees-Davies

Would the hon. Gentleman look at the Amendment, because he is wrong? It is as follows: In which the murder was committed (a) in the furtherance… That does not mean in the course of burglary, it means in the furtherance of it, or it can be prior to it, not only in the course of it. The latter part of the Amendment goes on to say: …or immediately after the commission …

Mr. Hale

We have here a completely new point which has not been suggested to the Committee before, and which is completely false. I do not use the word "false" offensively—it is completely inaccurate, and I think that the hon. Member is wrong. If he is right, it puts an entirely new complexion on this.

The Lord Chief Justice said: I have said that one desirable thing in the administration of the criminal law is that it should be neither capricious nor fortuitous. May I give one simple instance which I think will somewhat astonish those of your Lordships who arc not lawyers, as to how this will work in one respect? At this time of the year most people leave their doors open to let the sun in (if there is any), or at any rate do not lock or bolt their doors. Some leave them open and some merely unlocked, so that you can open them by merely turning the handle. A man intent on theft, seeing a door open, walks into that house. Being disturbed by the householder, either male or female, he kills him or her. That man will not be guilty of capital murder if this is to be the law. But if that door is shut although not locked or bolted, so that it can be opened by the mere turning of a handle, and he walks in and kills the householder, he will be guilty of capital murder…"—[OFFICIAL REPORT,House of Lords, 20th July. 1948; Vol. 157, c. 1034.] That is the position. I want to put what I think is a much more practical point. I am trying to address myself to the right hon. Gentleman. I am sorry that the Law Officers are not here. I beg the pardon of the learned Attorney-General, but a few minutes ago, when I looked, he was not in the Chamber. I am glad to welcome his presence. I put a perfectly honest argument. We all know that we can point to various complexities in the law.

The hon. Member for Hendon, South has used the words "offensive weapon". It is very reasonable that he should, because it has been used very many times before, and it is used in the Larceny Act to which he refers. It is a little unfortunate that "offensive weapon" has been statutorily defined in different ways and judicially defined in different ways. My hon. and learned Friend the Member for Northampton (Mr. Paget) said something about ten years for the carrying by a criminal of an offensive weapon.

Mr. Paget

A pistol.

Mr. Hale

What is a pistol? Under Section 26 of the Larceny Act, it has been said that the carrying of a toy pistol which cannot be fired and which cannot do any harm to anybody is an offensive weapon. That has been decided for the understandable reason that it might frighten someone. A toy pistol, therefore, has been decided to be an offensive weapon in certain circumstances.

Under the Prevention of Crimes Act, an offensive weapon is defined as something which is made primarily for the purpose of being offensive. That definition would not normally include an ordinary pocket knife, but would, presumably, include a knife made for the purpose of stabbing. The noble Lord's reference to Othello raises difficulty, because it has been judicially held that an attempt to suffocate is not an attempt to maim. Under those statutes which make an attempt to maim a more serious offence, an attempt to suffocate is not an attempt to maim, because it does not produce that sort of mayhem which results in the loss of or damage to a limb. By the special regulations under the Customs Act relating to the carrying of weapons, it has been held that to carry a walking-stick is to carry an offensive weapon— it may be that the word is "stick", but I think it is a walking-stick — but that to pick up a hatchet is not, because it is not being carried within the meaning of the Act.

I do not want to give the impression of trying to introduce minor technicalities or legal technicalities. An hon. Member laughs, but he probably has not troubled to read what the Lord Chief Justice said. Let him sit in the jury box and try such a case. It is not easy in the jury box to try a case of housebreaking. As the Lord Chief Justice said, to try a case of murder is, in a sense, easy, however grave the responsibility. Of course one may err. There is the risk of believing the wrong witness, but the judicial determination of a deliberate killing is a fairly easy thing to understand.

The difference between housebreaking and burglary depends on the hour of the night. The difference between robbery and theft may depend on the violence or the arms used. The difference between housebreaking and simple larceny in a dwelling-house depends on whether one turns the knob of the door or not; either coming or going, because if the culprit walks into the house when the door is open and it is shut behind him and he breaks out, he become guilty of the additional felony which brings him within the scope of the Amendment.

Those are some of the questions which a jury would have to determine. I do ask the hon. Member for Barry (Mr. Gower)— who made, if I may say so, a perfectly fair statement—just to try to put himself in the jury box. The indictment would be for murder, and under the terms of this Clause as amended the charge against the prisoner, William Smith, would be that he did murder John Jones while committing the offence of housebreaking or burglary …within the meaning of Section 26 of the Larceny Act and was carrying an offensive weapon.

The judge would have to leave it to the jury. I think that he would most certainly have to leave a number of points to the jury. But it is almost impossible to leave a comprehensive thing like that to the jury for decision. Such questions arise as: Did he turn the knob and break and enter, or did he walk in through an open door? Did he carry an offensive weapon? Was the weapon offensive or not? Is a bottle an offensive weapon? Or is a jagged bottle an offensive weapon? On each point there might have to be a separate ruling. Did he kill deliberately in the furtherance or in pursuance of that particular activity? All such points have to be made the subject of separate decision.

There would then be the difficulty that if the jury made a collective decision and said "Not guilty," or answered "No" co the separate points, one would come to the second indictment. I ask the Attorney-General Are all these matters to be tried collectively? Today it is not too difficult. A man may be charged with murder and found not guilty of murder but guilty of manslaughter. There is no difficulty. Then one comes to the second indictment charging him with unlawful killing not in pursuance of housebreaking. The third indictment charges him with burglary or housebreaking and, by the statute, he can be found guilty of a lesser offence if the jury are not convinced of his guilt on the major charge.

I have tried to deal with only the one point which is, I think, a complex one. I hope the Attorney-General will take the view that it is undesirable to graft upon our law a very new, very difficult and very complex series of decisions which would have to be taken by a jury in circumstances which, as has been very fairly stated, are at most likely to apply to only two cases a year. If we accept the Amendment, we introduce a very difficult and new procedure and preserve the judicial use of the death sentence in circumstances which, on the grounds which I have stated, I humbly submit do not appear to warrant it at all.

Sir Lancelot Joynson-Hicks) (Chichester)

We have listened with great interest, as we always do, to the hon. Member for Oldham, West (Mr. Hale), and to the rather delicate, intricate points which he has put to the Committee. If I may say so, what he has done is not to prove the case he was seeking to prove against this Amendment, but simply to establish the far wider and greater intricacies of the law with which the profession invariably has to deal and which it always successfully overcomes, issues wider and more difficult than that which is before us. I do not propose, therefore, to follow him in the argument which he has addressed to the Committee

This is the first occasion on which I have spoken in this series of debates and, if I can, I want to try to bring the matter back to the original Amendment proposed by my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth). The point is really a very narrow one, and I think that the answers which have been given to it have rested on one of two quite narrow bases. The first line of argument against my hon. Friend's Amendment is that advanced by those who are genuinely and sincerely convinced that there should not be any capital punishment at all. I do not propose, particularly at this stage, to address myself to that argument. I respect it, but I do not agree with it. Perhaps I could describe myself as a pacifist in the argument against the taking of life.

The second line of argument which has been addressed to the Committee is that in this case it would not be a practical deterrent. Basically, the first argument is that it is wrong to have any hanging, and the second is that in this case it would not do any particular good if we did have capital punishment. That is where I want to join issue with those who seek to advance that argument. I think that the basis of our legal approach to this matter is the concept that a man must be assumed to be responsible for the natural consequences which flow from his own action. If we think of it in that way, we can see a very clear differentiation between the case quoted by my noble Friend the Member for Dorset, South (Viscount Hinchingbrooke) of a man who picks up a cushion and smothers a woman, a thing obviously done without premeditation or preparation, and the case of a man who sets out on a burglarious expedition at night.

5.30 p.m.

Sir Beverley Baxter (Southgate)

In the interests of accurate classical allusion, may I interrupt my hon. Friend to say that Othello intended to do Desdemona in, by cushion or otherwise?

Sir L. Joynson-Hicks

My hon. Friend was doubtless there at the time; I certainly would not seek to argue with him on such a matter as that.

I will direct my argument to the second class of person, the premeditating person who, I think, we should consider ought to be responsible for the consequences which flow from his acts. He sets out on a burglarious expedition one night. He does not argue the consequences in the way put to us by hon. and learned Gentlemen during this debate. He takes these matters very bluntly and simply. He thinks, "If I am caught committing burglary, I shall go down for a stretch. Suppose 1 take a gun or offensive weapon with me "— and for this purpose I do not mind what the offensive weapon is, be it jemmy or anything else—" and if I use that weapon and kill someone, what effect will the law have upon me?"

If the effect that such a man takes into account is that he will remain in prison a bit longer, that will not weigh with him for a moment. Imprisonment for seven years, ten years, fifteen years is all the same to him. It is a long stretch, and the fact that it is a bit longer or shorter does not count. If, on the other hand, he thinks," If I commit a murder with the offensive weapon that I take with me then I shall hang "—whatever might be the expression he would use in his own mind —he will think twice before he in fact sets out armed.

There can be do doubt that the weight of argument in favour of the death penalty being a deterrent in the particular circumstances is very great. I very much hope that the Committee will adopt this Amendment and that hon. Members will not vote against it unless they do so on grounds of absolute principle, upon those conscientious grounds to which I have referred, that in any circumstances it is wrong to take life. I respect those arguments, but I do not think they apply in this debate. On the other hand, the argument of those who say that in these circumstances the death sentence is not desirable or will not do any good can be gainsaid, and I hope the Committee will gainsay it.

Mr. John Paton (Norwich, North)

The hon. Member for Chichester (Sir L. Joynson-Hicks) has introduced as part of his argument something which I thought had been more or less destroyed time and again in the course of our discussions on this subject in recent months. He has argued that the death penalty must be a greater deterrent to the armed burglar than any possible sentence of imprisonment could be. I shall come back to that point in a moment, because it is a very important one in our discussions, but I want, first of all, to say a word or two about the case put forward by the hon. Member for Hendon, South (Sir H. Lucas-Tooth) in moving his Amendment.

I join with my hon. Friend the Member for Oldham, West (Mr. Hale) in saying that the hon. Gentleman put his case with great moderation, explaining it persuasively, and I want to assure him that we on this side of the Committee who are abolitionists are with him and with those hon. Members opposite who are retentionists, at least to an extent, in that we appreciate the fears which may exist in the minds of certain people as to the consequences which may follow from abolition. I have in mind particularly police officers and prison officers, who are mentioned in a subsequent Amendment.

We oppose the Amendment, and similar Amendments which are to follow, because we believe them to be completely unnecessary. The hon. Member for Hendon, South, who was followed by the hon. Member for Barry (Mr. Gower), tried to make clear to the Committee some difference in principle between the exception which he is proposing and the other exceptions which are proposed in numerous Amendments on the Order Paper, but he did not proceed at all to argue the reasons for trying to establish this principle. I cannot for the life of me understand how it is possible to argue a difference in principle between this Amendment, which seeks to make an exception of armed robbery, and an Amendment which seeks to make an exception of an attack upon a prison officer by a man already convicted of murder, or an Amendment seeking to except the case of some person who has chosen a particular type or method of causing the death.

I cannot distinguish any difference in principle between this Amendment and those other Amendments which we shall probably discuss later. In principle, it seems to me that they are inseparable. They all involve an attempt to make a distinction between one form of murder and another. They all involve an attempt to make one kind of murder capital and other kinds of murder not capital. They are, therefore, in the clearest possible way, attempts to grade murder by definition of the heinousness of the offence.

The hon. Member for Hendon himself destroyed the validity of the argument in favour of any attempt to grade or set definitions of exceptions by quoting the conclusion of the Royal Commission upon this very point. By quoting it, he has saved me the trouble of repeating it, because all of us now know, from frequent quotations in this Committee, that the Royal Commission, having begun its study biased in favour of finding a way of ascertaining different kinds of murder, in the end had to come to the conclusion, after the most careful examination of the whole question, that this aim was completely chimerical and led to complete futility. The Commission therefore abandoned it.

I will refer to this matter no further, save to quote from the record another conclusion in regard to this attempt at grading, which was put before the Royal Commission by the Home Office. This has not been quoted in this House, so far as I can remember, and it seems to me to be of importance in this connection. In the Memorandum submitted, the Home Office said: There are not in fact two classes of murder, but an infinite variety of offences which shade off by degrees from the most atrocious to the most excusable. It went on to say that the factors determining whether sentence of death is the appropriate penalty in particular cases are too complex to be compressed within the limits of a simple formula, and that among the most important factors are the motive of the offence and the character and circumstances of the offender, which can never be inferred from the legal quality of his criminal act. The Committee ought, therefore, to be in no doubt as to where the weight of argument and evidence lies upon this question of the desirability or otherwise of grading.

I will now leave that matter and turn to another point which was emphasised by the hon. Member for Hendon, South. It is the idea that the death penalty must by its very nature be a more powerful and more effective deterrent than any other form of punishment that we can hope to apply. This point was dealt with most effectively by my hon. Friend the Member for Northampton (Mr. Paget) when he opened the discussion from this side of the Committee.

Hon. Members ought to remember that it is not as a rule the hardened criminal, about whom we have heard so much, who attempts the armed robbery. As my hon. and learned Friend pointed out, the armed robber, because of the kind of person he usually is— young and irresponsible— is precisely the type who is tempted to achieve a halo of glory for himself by being recognised as a "tough guy". He is not the hardened criminal, but is, indeed, very often a first offender, and because of his inexperience he is easily caught. It is he who may be the danger.

I cannot imagine a young man of that kind beginning to undergo those processes of agonising reappraisal of which we were informed by the hon. Member for Hendon, South. That kind of criminal does not begin to think in terms of whether he will get a long stretch or will be hanged, or whatever it might be. In the past he has always shown, as we have ample evidence in our criminal records to prove, that so long as the death penalty has existed he has not been deterred by it. Other factors outweigh its existence, the biggest factor being that, like most criminals, he has not the slightest intention of being caught and therefore does not fear the penalty.

I know that when we are referring to this flatter and discussing whether imprisonment for life— which is the proposed alternative to hanging— is an effective deterrent, a number of hon. Members opposite and a great number of people outside often argue that there would be no deterrent effect in the sentence of imprisonment since imprisonment for life is a statutory maximum that can be applied now for armed robbery even without the capital crime.

We know, however, from experience that the courts do not award the maximum penalty. I am informed by my hon. and learned Friends who have experience of the criminal courts that the penalty is more often one of about five years. There is, therefore, the greatest difference between the practical sentences now imposed by the courts for armed robbery and a sentence for life which would be imposed by the courts if the death penalty were abolished in the case of murder.

We must remember the point made by the noble Lord the Member for Dorset, South (Viscount Hinchingbrooke) that there is not the slightest doubt that if the death penalty were abolished, judges in the courts would take note of the fact and in dealing with capital crimes and other crimes of violence they would show the importance of the capital offence from the point of view of the law by adjusting the sentences accordingly. Therefore, I do not think there is a great deal in this argument

5.45 p.m.

I should like to put on record in this matter some information which I obtained from the Home Office not long ago in response to a Question showing what happens now with persistent criminals who come before the courts. There is an impression in the House and outside that persistent criminals are perhaps a great danger in this kind of offence. I have already said why I do not think that is so. In fact, criminal statistics show that persistent criminals are not a great danger in this kind of offence.

Nobody is sentenced to preventive detention unless he is what is known as a recidivist —a persistent offender or professional criminal. In each of the last five years, an average of 220 men and women have been sentenced to terms of preventive detention, but over those five years only seven out of the whole 1,100 cases were awarded the maximum sentence, and of those seven, three had their sentences reduced on appeal. We are left, therefore, with four persistent offenders in five years who were awarded the maximum sentence.

We see from these figures, therefore, and from the fact that the average length of sentence over that period for all those offenders was between seven and eight years instead of the fourteen years that could have been awarded, that the numbers concerned who might go to prison with this long sentence are exceedingly few and obviously present no great difficulty in handling to prison officers.

The hon. Member for Chichester argued that the death penalty was necessarily a more effective deterrent. I have, in a sense, to apologise to the Committee for bringing to its notice once more the experience of all the other countries in this matter. There is not a shred of evidence anywhere in the world, as was established by the Select Committee in 1930 and as has been confirmed by the recent Royal Commission, that any consequence of the kind foreseen follows from the abolition of the death penalty.

Mr. Peter Rawlinson (Epsom)

On the question of the death penalty being a deterrent, would the hon. Member not agree that in the third conclusion of the Royal Commission it was said specifically that there was evidence?

Mr. Paton

The hon. Member has fallen into an error which is quite common in these discussions. Nobody on this side argues that the death penalty is not a deterrent. Our argument is that it is not a unique deterrent. Please, therefore, do not let us have that confusion again.

The statement of the Royal Commission to which the hon. Member referred dealt with the armed criminal and the armed criminal only. What the Royal Commission said in its conclusion was that it thought it likely that this type of criminal might find the death penalty a greater deterrent than others. That, in effect, was the finding. It is, of course, a matter of opinion or conjecture. Nobody can say from any facts we know of in this country.

I want, however, to appeal to what was established by the Royal Commission and by its predecessor the Select Committee. They examined officials from all the Governments whom they could contact in all the various countries as to what happened in their criminal statistics and records before and after the abolition or abrogation of the death penalty. What they all replied was that there was no evidence at all that the abolition of the death penalty led to greater frequency of murder by armed criminals. Is that not something of which hon. Members on the other side want to take note? That finding was confirmed by the Select Committee in 1930 after inquiry all over the world, and that finding was confirmed by a similar inquiry made by the Royal Commission which reported quite recently, having made a fresh inquiry.

Is it not a highly significant fact that in 1930 the Select Committee, on inquiry all over the world, found no evidence to support this idea and that then two or three years ago the Royal Commission, repeating the inquiry, also found no evidence, even after the greatest war known in history, when, in most of the countries of Europe the social order had been disorganized? In our own country the basis of our social order at one time was disorganised through mass emigrations from our cities, and so on.

The Deputy-Chairman (Sir Rhys Hopkin Morris)

I think the hon. Member is taking too wide a course upon this Amendment.

Mr. Paton

I will confine myself then, Sir Rhys, to concluding the argument by saying that nowhere was that Royal Commission after that upheaval able to find any confirmation of this idea.

Only the other day hon. Members received, as I did, a report, which was summarised in the Manchester Guardian, upon the same issue of the armed criminal. We all received a document from the Howard League summarising arguments produced by Professor Thorsten Sellin of Pennsylvania University who, on reading that a Canadian chief of police had stated that death penalty deterred armed robbers from murdering the police, set on foot through the University of Pennsylvania an investigation which covered 265 cities in the United States of over 10,000 population, including cities in six abolitionist States and eleven non-abolitionist States. I quote the conclusion reached after exhaustive examination made by the professor and his colleagues of Pennsylvania University into this very question of armed robbery: The claim that if data could be secured they would show that more police are killed in abolition States than in capital punishment States is unfounded. On the whole the abolition States seem to have fewer killings, but the differences are small. If this is the argument upon which the police rest their opposition to abolition of capital punishment it must be concluded that it lacks any factual basis. No one will dispute the authority with which Professor Sellin speaks on this matter. Nor will anyone dare to challenge the exactitude with which he examines figures collected by the team of workers from Pennsylvania University.

Mr. Graeme Finlay (Epping)

The hon. Gentleman has issued a challenge. I have Professor Sellin's article here in the Manchester Guardian.Has the hon. Gentleman noticed that in this article by the professor about the cities and States of the United States which were considered this passage appears: In all cases there is a tradition of the police being armed…"? In this country the police are not armed. So I contend that this evidence has no relevance whatsoever.

Mr. Paton

I have heard this argument before. I do not think it is one to which I would give great weight. It is traditional in many countries for the police to be armed. It is traditional in Belgium, and Belgium abolished capital punishment in the 'sixties. They do occasionally have an armed robbery in Belgium, and the police are armed. Indeed, it is true of most of the countries of Europe which have abolished the death penalty. One of my hon. Friends tells me that in Norway the police are armed and I pass that information to the Committee, although I did not myself know it. It seems to me to be an inescapable conclusion that the existence or nonexistence of the death penalty has no bearing at all upon whether there is a certainty or not of armed robbery. I think that the existence or the non-existence of the death penalty is shown not to have any significant effect.

In this Amendment and in all the similar Amendments there is an element of absurdity. I say that with all respect to the hon. Member for Hendon, South. Is it not absurd to devise a special protection for the police, a protection which I have shown to be quite unnecessary, and to refuse it to the Home Secretary? If this Amendment were carried anybody— which Heaven forbid— could take a pot shot at the Home Secretary and bump him off and would not be subject to capital punishment. The assassin of the Monarch would not be subject to capital punishment. The offence would be a capital offence, but the offender would not be subject to capital punishment. The only people who would be hanged would be armed robbers, that narrow category of persons named in the Amendment.

For the life of me, I cannot see the logic in making a lot of special exceptions of this type while leaving outside them the vast majority of people who have probably quite as legitimate reasons for protection as any of those who are sought to be specially protected now. I hope, therefore, that the Committee will turn down this Amendment emphatically, and any similar exception which may be proposed.

Major Lloyd-George

Perhaps it would be for the convenience of the Committee if I were to say a few words about this matter at this juncture. The Amendment which my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) moved in a very able and lucid speech is an attempt to deal with what is admittedly a very difficult problem indeed. The object which my hon. Friend has in mind is to safeguard against a danger to which I have called attention here on more than one occasion during our discussions on the Bill, and that is the danger that the professional criminal who does not now as a rule carry weapons will, if the death penalty is abolished, develop the habit of doing so. The fear, I think, owes it origin amongst other things to the fact that a man with a bad record already behind him and the prospect of a very long sentence before him will feel that he has not a great deal to lose by adding murder to his other crimes.

The Amendment has the merit of protecting both the public and the police. I would stress that for the hon. Member for Norwich, North (Mr. J. Paton), who seemed to think that the whole purpose of the Amendment was to protect the police. I would impress upon him that while the police are certainly deserving of our protection, there is among people in this country, particularly householders, a strong and genuine fear—let us make no mistake about it—particularly in sparsely populated areas, that as a result of this Bill they will be in more danger than they are today. I am saying what I believe to be an absolute fact.

6.0 p.m.

It protects the police and it also protects the public. It protects the night watchman in the same way as the householder who may disturb a robber in the course of his work. It protects, as it should, the public-spirited citizen who does his duty as a citizen by helping the police to catch a criminal, and it protects the police themselves.

As the Ministers responsible—that is, my right hon. Friend the Secretary of State for Scotland and I—we are, naturally, in sympathy with anything which will discourage criminals from carrying arms, and we are, also, in sympathy with anything that will tend to extend the protection to the public and the police. Do not let us forget the police who, by the nature of their duties, would be at most risk if criminals saw no disadvantage to themselves in carrying and in using weapons. I believe that there is a real danger, and a real apprehension of the danger amongst a large section of the population.

It has been said and repeated here today that the experience in other countries does not support the belief that the police would be in more danger if capital punishment were abolished. It has been said constantly. I have said in previous debates that statistics based on what happens in one country are no reliable basis as to what would happen in another country. I would emphasise now that the effect of abolition in a country where the police are unarmed is not necessarily the same as it would be in a country where they are armed.

There surely cannot be any doubt in any reasonable person's mind that where the police are habitually armed and, of course, known to be, the most immediate and most effective deterrent against shooting at a policeman is the certainty that he will shoot back, and very often the certainty that the criminal will be shot at first. I think that that is a bigger deterrent in those countries because it is immediate, and that the remote possibility of execution exercises an influence of secondary important in the criminal's mind in some of the countries to which reference has been made.

Mr. J. Paton

The right hon. and gallant Gentleman knows that the police in Chicago habitually carry arms and equally habitually use them, and in Professor Sellin's investigations it was discovered that there had been in Chicago—

The Deputy-Chairman

I would point out that the Amendment does not deal with police officers. It deals with the armed burglar.

Mr. Paton

The Home Secretary has made a special point to which, with his consent, I am trying to say something in rejoinder. I was about to say that in the period covered by the investigation 176 armed policemen were shot and killed in Chicago. Therefore, that does not seem a good argument for the Amendment.

Major Lloyd-George

I do not know where the hon. Member argues from that point. It seems to me that the only conclusion of his argument is that the criminals are better shots than the police. It supports what I have said—that one gets an increase in the carrying of arms. The fact that in those cases, unfortunately, the police came off second best is an indication that they should have had more practice. Apparently, they get enough practice in the streets.

There is a danger, and a serious one, that we should have this trouble in this country if we do away with this deterrent. I am of the opinion that the comparative rarity of murder by professional criminals indicates quite clearly that fear of the death sentence exercises a major influence upon them.

The hon. and learned Member for Northampton (Mr. Paget) tried to indicate that that was not so, by taking the figures of murders quoted in the Observer, covering a period of five years. I thought that he said that most of the criminals were under 25. I do not think that that really affects my argument because, as my hon. Friend the Member for Hendon, South said, in moving the Amendment, of the 85 cases mentioned in that article only 10 would be affected by the Amendment.

The hon. and learned Member for Northampton went on to say that the proper thing to do was to make it perfectly clear to these criminals that anybody caught with a gun in his possession would of a certainty get 10 years. I would point out that most of what I would call professional criminals know that now, and they are not like those under 25 years of age who were mentioned in the article to which the hon. and learned Member referred. They are a different class altogether.

The hon. and learned Member said, among other things, that the Home Office was very "cagey" compared with what it used to be. I do not know what he means by that. I have had something to do with not making available to hon. Members the transcript of the trial held in Northampton. The hon. and learned Member knows as well as I do that that had been the practice since 1907 and had never been altered. It was as a direct result of action taken by myself that it is now altered. The Criminal Appeal Act, 1907, provided that The Secretary of State may also, if he thinks fit in any case, direct a transcript of the shorthand notes to be made and furnished to him "— And these are the important words— for his use. Because of those words, it was not possible for the Secretary of State to do other than confine the notes to his use. Under the new Criminal Justice Administration Act, 1956, the words "for his use" have been deleted deliberately. Therefore, it is possible for the Secretary of State to place a copy in the Library of the House.

Mr. Paget

Will the right hon. and gallant Gentleman put a copy of that case in the Library?

Major Lloyd-George

I can do so now. I was not authorised to do so before.

Mr. Paget

I am extremely grateful to the right hon. and gallant Gentleman. How was a copy of the transcript in the Evans case put there?

Major Lloyd-George

That was different, I understand. It was before my time in my present office, but I think that a great deal of that had been published. I thought it only right to let the hon. and learned Gentleman know that we are not quite as "cagey" as he says we used to be.

I appreciate the difficulties mentioned in the debate about the definitions, and so forth, but I am sure that they can be overcome. There is a difficulty, for instance, which appears in the Amendment in the name of my hon. Friend the Member for Westbury (Sir R. Grimston) in page 1, line 9, at end insert: Provided that this subsection shall not apply in any case in which the offender is convicted of murder where the death of the deceased was attributable to the use of any offensive weapon. Here, again, I appreciate what my hon. Friend has in mind. He wants to retain capital punishment for those men who are armed. [HON. MEMBERS: "No."] I am talking about my hon. Friend the Member for Westbury. His Amendment distinguishes between the man who kills with a defensive weapon and the man who kills with his bare hands, but that distinction coincides with no recognisable moral distinction.

The Deputy-Chairman

I find difficulty in following this point. The Amendment referred to has yet to be called.

Mr. Paget

When your predecessor, Sir Charles MacAndrew, was in the Chair, Sir Rhys, he said that an Amendment in the name of the hon. Member for Westbury (Sir R. Grimston) could be discussed now with the others.

The Deputy-Chairman

My information is that we are discussing with the Amendment moved by the hon. Member for Hendon, South (Sir H. Lucas-Tooth) the second Amendment in the same hon. Member's name, in page 1, line 9, at end insert: Provided that this Act shall not apply in any case in which the murder was committed by a person already serving a sentence of imprisonment for life.

Hon. Members.


Mr. Younger

I think, Sir Rhys, that the Amendment which is to be discussed with this Amendment is the third Amendment in page 3126, in the name of the hon. Gentleman the Member for Westbury (Sir R. Grimston).

Sir R. Grimston

May I confirm that, as the hon. Member concerned?

The Deputy-Chairman

That is so. I beg the pardon of the Committee. I thought the Home Secretary was referring to the Amendment at the top of page 3126.

Major Lloyd-George

I beg your pardon, Sir Rhys, and that of the Committee if I have wasted any time on that Amendment.

Mr. S. Silverman

On a point of order, Sir Rhys. I hope we can get clear what we are discussing. I understood that the Amendment to be discussed with this one was the third Amendment in page 3126, namely, in page 1, line 9, at the end to insert: Provided that this subsection shall not apply in any case where the offender is convicted of murder committed in the furtherance of any offence against sections twenty-three twenty-five, twenty-six or twenty-seven of the Larceny Act, 1916. That is not the one at the top of the page.

The Deputy-Chairman

The hon. Gentleman is quite right. Those two Amendments are being discussed together. The one to which I was calling attention was the Amendment at the top of the page, which is not now being discussed.

Major Lloyd-George

Again, I apologise and I shall not deal with that any more.

In conclusion, all I say about the Amendment moved by my hon. Friend the Member for Hendon, South is that it is directed to a limited but important part of the problem which the abolition of capital punishment would create. Whilst I do not suggest that if the Committee accepted the Amendment it would make what I have always considered a bad Bill, and still consider to be a bad Bill, into a good one, I believe that it goes a long way towards doing what many peope want to be done. It protects the public and it protects the police against a menace of which I have said before, and I repeat, many people are genuinely afraid, namely, the advent of the armed criminal here. So far as it goes, therefore, it is an Amendment which I would support.

Mr. Silverman

At the outset, I would like to get two things clear from the right hon. and gallant Gentleman. First, I would like to know clearly from him whether he is advising the Committee to accept the Amendment moved by the hon. Baronet the Member for Hendon, South (Sir H. Lucas-Tooth)?

Major Lloyd-George

I said that I would support the Amendment of my hon. Friend.

Mr. Silverman

The second thing I would like to get perfectly clear is whether the right hon. and gallant Gentleman is saying to the Committee that even if hon. Members accept his advice, and accept this Amendment, that would make no difference whatever to his attitude towards the Bill. Is that also clear?

Major Lloyd-George

I did not say that the mere fact of accepting this Amendment would make what I consider a bad Bill into a good one.

Mr. Silverman

The right hon. and gallant Gentleman will forgive me if I find that a little ambiguous. In moving the Amendment, the hon. Baronet warned me, in his most persuasive speech, that many a good reform had been lost because its promoters were too rigid. Now I want to know exactly how rigid we shall be. It might make some difference to the attitude of some people— I do not say that it would make any difference to mine— if the right hon. and gallant Gentleman is saying to the Committee that if we accept his advice, and, therefore, accept this Amendment, that will make little or no difference to his advice to the Committee and to the House, and the advice of the Government to another place, when the time comes. Will he tell us that?

6.15 p.m.

Hon. Members


Major Lloyd-George

I have answered to the best of my ability and I do not see any point in going on with this. The hon. Gentleman knows perfectly well my view of the whole matter. I have made it clear on more than one occasion. I am very happy to find that an Amendment has been moved by my hon. Friend which is directed to protecting a class which, in my humble opinion, deserves special protection. Therefore, I shall be glad to see it supported. If the hon. Gentleman asks me what I have to say about the rest of the Bill, my answer is that I shall have plenty to say when the time comes.

Mr. Silverman

Therefore, what I put to the right hon. and gallant Gentleman in my opening sentence is presumably correct. I know that the right hon. and gallant Gentleman does not want to equivocate with the Committee or with the House or with the country. What I said in my opening sentence was that one gathered from the speech of the right hon. and gallant Gentleman that, while he would advise the Committee to accept the Amendment, even if it did so that would make no difference to his attitude to the Bill and to its subsequent stages. I would like to know whether that is a fair statement of his intentions or not.

Major Lloyd-George

It is not a fair statement of my intentions. This is a Committee stage of a Bill, and I am entitled to look at Amendments on their merits. If I may remind the hon. Gentleman, this is not my Bill. That being so, when Amendments come forward, as there is to be a free vote of the Committee, I am entitled to say what I think on each Amendment as it comes up, and I shall do so.

Mr. Silverman

I agree with that and I have already said so myself. There are two points involved and I must ask the right hon. and gallant Gentleman to give his attention to both, not merely to one.

Mr. M. Turner-Samuels (Gloucester)

On a point of order—

Mr. Paget

Oh, sit down.

Mr. Turner-Samuels

My point of order is that I once tried to cross-examine a Minister in this way and I was told that it was not in order.

Mr. Silverman

The two points to which I invite the right hon. and gallant Gentleman to give his attention are these. First, I entirely agree that this is not his Bill, that this is the Committee stage, and that he has exactly the same right as any other hon. or right hon. Member to advise the Committee for or against any Amendment on its merits. That is not the question at issue between us. The Home Secretary has been clear and fair in telling the Committee that although the Bill would still not be a good Bill with the Amendment, he would prefer the Committee to accept it than to reject it, dealing with the Amendment alone on its merits. That is clear and has been clear from the start.

The second point is a somewhat different one. The right hon. and gallant Gentleman must remember that, although he has the same rights as other hon. and right hon. Members, nevertheless there are hon. and right hon. Members who listen very carefully to what he says, not only on the merits of what he says but also because he speaks in the name of the Government and as Home Secretary. In that capacity he has advised right hon. and hon. Members from time to time what the House and the Committee ought to do with this Bill and with some of these Amendments, in the opinion of the Government. I take it that in the speech he has just made he has not confined himself to expressing his own personal opinion, though I do not question that his mind went with his speech, but has been speaking also on behalf of the Government, and that it is the mind of the Government which he has expressed in the speech he has made.

If that is so, there are many hon. and right hon. Members in this Committee who are not sure what they ought to do about this Amendment. They have doubts about it. They think that the hon. Baronet made a persuasive case. He did not persuade me, but I confess that he put the point as persuasively and convincingly as it could be put. I have no doubt that he influenced a great many hon. Members. I have no doubt that a great many hon. Members are left in doubt after the speech of the Home Secretary as to whether they ought to vote for or against the Amendment, and that their atitude might be determined by the effect that acceptance or rejection of the Amendment might have on the Bill as a whole.

The Committee is, therefore, entitled to ask the right hon. and gallant Gentleman what I have asked him. If one advises the Committee in the name of the Government to accept the Amendment, and the Committee takes that advice, is it a fair interpretation of the speech of the right hon. and gallant Gentleman and the answers which have been given to the questions that I have just asked that, nevertheless, the Government will still remain opposed to the Bill and will, as they did before, at each succeeding stage advise the House and the Committee to reject it? Unless the right hon. and gallant Gentleman denies that, I think the Committee will be entitled to assume that my opening sentence was a correct statement of the position, that the right hon. and gallant Gentleman would like the Amendment to be accepted but hon. Members must not hope that if his advice is accepted they will have an easier time than they would have had in the succeeding stages of the Bill.

Major Lloyd-George

This is a matter which ought to be made perfectly clear. I will not say any more after this. Surely I have been perfectly clear to date. I have given my advice to the Committee, and I would do so again if I thought it was wanted on any other Amendment. However, let us remember where we are. The House has decided that the Bill should be dealt with by a free vote of the House, and on each and every Amendment it will be so treated. I cannot say any more than that. Surely that is the position, as the hon. Member for Nelson and Colne (Mr. S. Silverman) must know it to be.

Mr. Silverman

The right hon. and gallant Gentleman may not realise how equivocal he is being, but every other hon. Member in the Committee does, I think. What I am putting to him is a perfectly fair point, and I think that really he realises that it is a fair point. Those of us who have to decide whether or not to accept the Amendment will obviously be affected to some extent by what view we form as to the effect that the acceptance or rejection of the Amendment may have upon the future fortunes of the Bill.

I hesitate to say that the right hon. and gallant Gentleman has made it all clear, but he has at any rate made it clear that he is not offering the Committee any help or support from the Government even if the Committee accepts the Amendment which he is advising it to accept. That is perfectly clear. Therefore, one must assume— indeed, one need not assume it, because the right hon. and gallant Gentleman has said it repeatedly — that when he advises the Committee to accept an Amendment which would retain the death penalty for this limited category of murder, he is not doing so to make the Bill more acceptable or more likely to be passed than it was previously, but is only doing what is perfectly proper and reasonable for him to do. He is saying, "I do not want the death penalty to be abolished at all, but if I have to submit to some of it being abolished then I should like to retain whatever I can. My hon. Friend gives me the opportunity of retaining two executions a year, and I will accept those for the time being and reserve my advice about the other exceptions to be dealt with as and when further Amendments are moved."

The Secretary of State for Scotland (Mr. James Stuart)

Might I say a word? In my experience what the Government are doing in connection with the Bill, which, I must remind the Committee, is a Private Member's Bill, is perfectly normal practice, the Government giving advice on certain Amendments which are put forward and stating their view as to whether or not they are practicable, and the Committee must then make up its mind whether or not to accept them.

Mr. Paget

That is exactly what has been said already.

Mr. Silverman

I feel that the Committee will welcome what is almost a maiden speech from the Secretary of State for Scotland, but I am sure the right hon. Gentleman will forgive me if I say that his intervention does not add a great deal to what the Home Secretary has already said for himself. The position remains exactly as it was, that we must consider that the Government still maintain their advice to Parliament not to pass the Bill at all but say that if the Bill is to be passed they would rather have it with Amendments that retain some executions than in a form which would permit of no executions.

I trust that the right hon. and gallant Gentleman will permit me to turn from that argument, which I quite well understand, and which is, in one sense, irrelevant, to the more relevant arguments of the hon. Baronet the Member for Hendon, South (Sir H. Lucas-Tooth) who did not propose his Amendment in the Home Secretary's spirit at all. The hon. Baronet was doing something quite different. He was saying, "This is a good Bill, of which I approve. I do not believe in the unique effectiveness of the death penalty as a deterrent over all other possible deterrents. I want it abolished for all kinds of previously capital crimes except this one and the one dealt with in my next Amendment."

Let us make it clear what the hon. Baronet is not saying. He is not saying that this kind of murder or murderer is worse than any other. He is not advising us that it would be more justifiable in itself to inflict this ultimate irrevocable penalty on this kind of murderer on grounds of moral obliquity than it would be in any other case. What he is saying is something quite different. He is saying, "Here you find one category of this infinitely various and variable crime in which the death penalty is a more uniquely effective deterrent than it is in any other aspect of murder. "That is the case which the hon. Baronet has invited us to consider.

I would say at once that if the hon. Baronet had made out that case I should have found myself in very great difficulty. I have never taken the view, whatever my personal and private predilections might be, that if it could be established that when one retained the death penalty there were fewer murders than when one abolishes it, one could convince the House of Commons to abolish the death penalty. I am sure that one could not

Therefore, let us see whether the hon. Baronet established the case. Let us look, first, at what he is asking us to do. Paragraph (b) of his Amendment says: by the use by the person charged of some offensive weapon or instrument with which such person was himself armed. I know why the hon. Baronet inserted that paragraph. He dislikes constructive murder as much as I do. He wanted to exclude from his exceptions anyone who did not himself carry the weapon and who did not himself use a weapon which he carried with fatal effects. He wanted to confine this exception to the man who carried the weapon and to the man who, with the weapon which he carried, committed the fatal act. That is why he inserted this paragraph and that is what we would be doing if we accepted the Amendment and the Home Secretary's advice.

6.30 p.m.

Would that be fair? Would that be effective? Does the hon. Baronet realise that the kind of crime with which he is most concerned in this Amendment is the crime that is committed in gangs— a number of people acting in concert to commit an armed burglary? What he is saying we ought to do is to encourage the master spirit, the leader of the gang, to make certain that somebody else uses the weapon— [HON. MEMBERS: "No."] Surely that is the effect. Hon. Members must realise that we are dealing with a serious proposition.

Mr. Gower


Mr. Silverman

I will give way later.

Everybody who has spoken in support of the Amendment has said that we are here dealing with the professional criminal. The Home Secretary said that we do not want the professional criminal in this country, who, up to now, has not been armed, to be armed. If we are dealing with professional criminals and we pass an Amendment like this, do hon. Members think it fantastic or amusing to suggest that in those circumstances the man who made the plan will make certain that he does not carry the weapon, but that somebody else does?

Mr. Gower

Is it not just as valid to say that each member of the gang would be perfectly sure that he was not the person to carry the weapon?

Mr. Silverman

The hon. Gentleman is dealing with a case in which the state of our society had so improved that nobody carried arms. We are not dealing with that and the hon. Baronet is not dealing with that. The hon. Baronet is presupposing that some criminals will carry arms and he is saying that we ought to reserve the actual execution of the death penalty, not to the man who planned it, not to the man who inspired it, not to the man who probably gets the lion's share of the benefit of it, but to the man who fires the shot.

Mr. Ede (South Shields)

A man under age.

Mr. Silverman

Possibly a man under age. On reflection, does the hon. Baronet think that that is right?

Sir H. Lucas-Tooth

The hon. Member will be familiar with the details of murders which have taken place since 1949 and he will appreciate that the basis of his remarks is non-existent, because there is not a single case of a gang murder taking place in that period.

Mr. Silverman

The hon. Baronet was Under-Secretary at the Home Office during the case of Bentley and Craig. In that case, Craig had a revolver. Bentley had no revolver. Bentley was executed; Craig was not, because he was under age. The only comprehensible reason which I have ever heard—I have never thought that it was a good reason—for the execution of Bentley was that if he were not executed that would encourage people to employ minors, or people under the age of 18, to carry arms for them. What is the good of saying that gang robberies do not occur? What is the good of saying that if an Amendment like this is passed it is only the hand that fires the shot that is held to be supremely guilty, when we can be quite certain that those who plan the murder will make absolutely sure that somebody else pulls the trigger?

Commander Agnew (Worcestershire, South)

Is not the argument which the hon. Member is deploying in favour of the Amendment? If the effect of the Amendment is to encourage the gang leader to pass the weapon to somebody else it is, in fact, acting as a deterrent to committing the crime of murder.

Mr. Silverman

The reception which the Committee has given to that interjection absolves me from taking up the time of the Committee in dealing with it myself.

There would be something manifestly unjust, something abhorrent to all our consciences, in executing a man who held the gun and regarding as a non-capital criminal the man who inspired, planned, directed and profited by the crime. If the hon. and gallant Member for Worcestershire, South (Commander Agnew) does not agree with that, then I have no argument with which I would seek to persuade him. That argument against the Amendment is conclusive. I could never accept the Amendment in that form.

There has been some confusion, and I should like to take a minute or two to deal with the point mentioned by the hon. Member for Barry (Mr. Gower), who invited us to consider the Amendment along these lines. He said that we had to consider what the further fate of the Measure was likely to be. He referred to 1948 and to the fact that in certain eventualities another place might some day have to consider whether it would agree with what we are now doing. In support of the Amendment, he advanced the view that the Bill might have an easier passage, or be more acceptable to the Law Lords, in the form it would be, if we accepted the Amendment.

I want to dispose of that once and for all, and I shall take only a minute or two to show what the Law Lords did with a precisely similar proposal in 1948. I hope that if I convince the hon. Member for Barry that he was wrong in thinking that the Amendment would be acceptable in another place, he will vote against the Amendment, because I know that he is in favour of the principle of the Bill and wants to see it carried. I want, first, to refer to the Lord Chief Justice.

There is one passage to which my hon. Friend the Member for Oldham, West (Mr. Hale) referred and I will not repeat what was then said. It is the passage in which the Lord Chief Justice pointed out that whether a crime was housebreaking or not might depend upon a very fine distinction. The Committee will remember that and I will not repeat it. I want to draw the attention of the Committee to what the Lord Chief Justice further said, especially as the police have been mentioned as being people who would be one of the two classes of persons most likely to be protected by the Amendment.

Lord Goddard said: I yield to none in my desire to support and protect the police, but I believe, and I am sure that every police officer would think, that the lives of the humblest of His Majesty's subjects are as valuable as the lives of policemen. It seems to me not right that a man who in the height of passion or temper kills a policeman— perhaps not deliberately, in the sense that he aimed a revolver at him— but in the struggle to avoid arrest (a man perhaps with a long record who is trying to escape)"— and this is the very case with which the hon. Baronet was most concerned— should be told that he is guilty of a capital crime, whereas the man who has taken an axe or hammer, perhaps to a sick or ailing wife and has battered her brains out, should be told that he has committed non-capital murder. I cannot believe that that is a right provision to leave upon the Statute Book."— [OFFICIAL REPORT, House of Lords, 20th July, 1948; Vol. 157, c. 1034–5] That was the Lord Chief Justice. The hon. Member for Barry might bear his remarks in mind.

Now let us see what Lord Simonds said on the same occasion: I feel deeply the weight of the argument which he and others have addressed to this House. 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? Again, if, as I profoundly believe, the fear of death may be a powerful deterrent, why should not the potential murderer be deterred from an act to the tune of Section 24 of the Larceny Act rather than to the tune of Section 23? He added: My Lords, this is not a compromise; this is not logic. This, with great respect to the authors of the Clause, is nonsense. So I ask again, to what end is this Clause introduced." —[OFFICIAL REPORT,House of Lords,20th July, 1948; Vol. 157, c. 1042.] The only other quotation I wish to make is from a Law Lord with an immense experience of the criminal law and the courts—not, I think, inferior to that of the Lord Chief Justice—namely, Lord Roche. I shall quote only one short passage from his speech. He said: 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. The rule which works is that the penalty for the crime of murder is death, subject always to the Prerogative of mercy which may, on proper recommendations and advice, be exercised in particular cases."— [OFFICIAL REPORT, House of Lords, 20th July, 1948; Vol. 157, c. 1049.] The point is that in this matter of deterrency we cannot do that which the hon. Baronet the Member for Hendon, South and the Home Secretary are inviting us to do, namely, distinguish between the deterrency of the death penalty according to specific crimes or classes of crime. That seems to me to dispose of the Baronet's whole argument. The Amendment would be inequitable because it would work unfairly as between one man and another. It would be mischievous, because it would punish the less guilty more severely than the more guilty. It would be ineffective in restraining the mischief which the hon. Member wishes to restrain, namely, the carrying of arms, because it would become effective not when the decision to carry a dangerous weapon was made, but only after it had been fatally used.

It seems to me that upon any ground of expediency which might have appealed to any hon. Member who otherwise would have been against the Amendment, the combined effect of the Home Secretary's speech and the extracts which I have read of speeches in the House of Lords is conclusive to show not merely that no compromise can be logically, reasonably or morally supported, but that no compromise is effectively practicable or open to us.

Division No. 183.] AYES [6.45 p.m.
Agnew, Cmdr. P. G. Drayson, G. B. Horobin, Sir Ian
Allan, R. A. (Paddington, S.) du Cann, E. D. L. Horsbrugh, Rt. Hon, Dame Florence
Alport, C. J. M. Dugdale, Rt. Hn. Sir T. (Richmond) Howard, John (Test)
Anstruther-Gray, Major W. J. Duncan, Capt. J. A. L. Hudson, Sir Austin (Lewisham, N.)
Arbuthnot, John Eccles, Rt. Hon. Sir David Hudson, W. R. A. (Hull, N.)
Armstrong, C. W. Eden, Rt. Hn. Sir A.(Warwick & L'm'tn) Hughes Hallett, Vice-Admiral J.
Ashton, H. Eden, J. B. (Bournemouth, West) Hughes-Young, M. H. C.
Atkins, H. E. Errington, Sir Eric Hurd, A. R.
Baldock, Lt.-Cmdr. J. M. - Evans, Stanley (Wednesbury) Hutchison, Sir Ian Clark (E'b'gh,w.)
Balniel, Lord Farey-Jones, F. W. Hutchison, Sir James (Sootstoun)
Barber, Anthony Finlay, Graeme Irvine, Bryant Godman (Rye)
Barlow, Sir John Fisher, Nigel Jenkins, Robert (Dulwich)
Barter, John Fleetwood-Hesketh, R. F. Johnson, Dr. Donald (Carlisle)
Bell, Philip (Bolton, E.) Fletcher, Erie Johnson, Eric (Blackley)
Bell, Ronald (Buoks, S.) Fraser, sir Ian (M'cmbe & Lonsdale) Jones, Rt. Hon. Aubrey (Hall Green)
Bennett, Or. Reginald Galbraith, Hon. T. C. D. Joynson-Hicks, Hon. Sir Lancelot
Birch, Rt. Hon. Nigel George, J. C. (Pollok) Kerr, H. W.
Bishop, F. P. Gibson-Watt, D. Kimball, M.
Black, C. W. Clover, D. King, Dr. H. M.
Boyd, T. C. Godber, J. B. Lambert, Hon. G.
Braithwaite, Sir Albert (Harrow, W.) Gomme-Duncan, Col. Sir Alan Lancaster, Col. C. G.
Brooke, Rt. Hon. Henry Gough, C. F, H. Leavey, J. A.
Brooman-White, R. C. Gower, H. R. Leburn, W. G.
Broughton, Dr. A. D. D. Graham, Sir Fegus Legh, Hon. Peter(Petersfield)
Browne, J. Nixon (Craigton) Grant, W. (Woodside) Lindsay, Hon. James (Devon, N.)
Bryan, P. Grant-Ferris, Wg Cdr. R.(Nantwich) Lindsay, Martin (Solihull)
Buchan-Hepburn, Rt. Hon. P. G. T. Green, A. Lloyd, Maj. Sir Guy (Renfrew, E.)
Burden, F. F. A. Gresham Cooke, R. Lloyd-George, Maj. Rt. Hon. G.
Butcher, Sir Herbert Grimston, Hon. John (St. Albans) Logan, D. G.
Butler. Rt. Hn. R. A. (Saffron Walden) Grimston, Sir Robert (Westbury) Longden, Gilbert
Campbell, Sir David Grosvenor, Lt.-Col. R. G. Low, Rt. Hon. A. R. W.
Channon, H. Gurden, Harold Mackie, J. H. (Galloway)
Churchill, Rt. Hon. Sir Winston Harris, Frederic (Croydon, N.W.) McLaughlin, Mrs. P.
Clarke, Brig. Terence (Portsmh, W.) Harrison, Col. J. H. (Eye) Maclay, Rt. Hon. John
Cole, Norman Harvey, Air Cdre. A. V. (Macolesfd) Macmillan, Rt. Hn. Harold(Bromley)
Conant, Maj. Sir Roger Heald, Rt. Hon. Sir Lionel Maitland, Hon. Patrick (Lanark)
Craddock, Beresford (Spelthorne) Heath, R. Hon. E. R. G. Manningham-Buller, Rt. Hn. Sir R.
Crouch, R. F. Henderson, John (Cathoart) Markham, Major Sir Frank
Crowder, Petre (Ruislip—Northwood) Hicks-Beach, Maj. W. W. Marlowe, A. A. H.
Dance J. C. G. Hill, Mrs. E. (Wythenshawe) Marples, A. E.
Deedes, W. F. Hill, John (S. Norfolk) Marshall, Douglas
Digby, Simon Wingfield Hobson, C. R. Mawby, R. L.
Donaldson, Cmdr. C. E, McA. Holland-Martin, C. J. Maydon, Lt.-Comdr, S. L. C.
Doughty, C. J. A. Hornsby-Smith, Miss M. P. Milligan, Rt. Hon. W. R.

I therefore invite the Committee, especially those hon. Members who are satisfied that the time has come when this country should take its place with those other civilised countries which have abolished this penalty, to—if I may use an inappropriate metaphor—stick to their guns and have nothing to do with any compromise.

Several Hon. Members


Hon. Members


The Chairman

Sir Hugh Lucas-Tooth.

Sir H. Lucas-Tooth

I rise to inquire whether you would be willing to accept a Motion, "That the Question be now put," Sir Charles?

The Chairman

I do not think that that is necessary. I think that the Committee is willing to come to a decision.

Question put, That those words be there inserted:—

The Committee divided Ayes 205, Notes 217

Molson, A. H. E. Rees-Davies, W. R. Thorneycroft, Rt. Hon. P.
Monckton, Rt. Hon. Sir Walter Renton, D. L. M. Thornton-Kemsley, C. N.
Moody, A. S. Ridsdale, J. E. Tiley, A. (Bradford, W.)
Moore, Sir Thomas Roberts, Sir Peter (Heeley) Tomney, F.
Morrison, John (Salisbury) Robertson, Sir David Turner-Samuels, M.
Mott-Radclyffe, C. E. Ropner, Col. Sir Leonard Tweedsmuir, Lady
Nabarro, G. D. N. Russell, R. S. Vane, W. M. F.
Nairn, D. L. S. Sandys, Rt. Hon. D. Vaughan-Morgan, J. K.
Neave, Airey Schofield, Lt.-Col. W. Vosper, D. F.
Nicholls, Harmar Sharpies, R. C. Wakefield, Edward (Derbyshire, W.)
Nicholson, Godfrey (Farnham) Simon, J. E. s. (Middlesbrough, W.) Wall, Major Patrick
Nield, Basil (Chester) Smithers, Peter (Winchester) Ward, Hon. George (Worcester)
Noble, Comdr. A. H. P. Speir, R. M. Ward, Dame Irene (Tynmouth)
Oakshott, H. D. Spens, Rt. Hn. Sir P. (Kens'gt'n, S.) Waterhouse, Capt. Rt. Hon. C.
O'Neill, Hn, Phelim (Co. Antrim, N,) Stevens, Geoffrey Watkinson, Rt. Hon. Harold
Osborne, C. Steward, Harold (Stockport, S.) Wells, Percy (Faversham)
Pannell, N. A. (Kirkdale) Steward, Sir William (Woolwich, W.) Whitelaw, W.S.I.(Penrith & Border)
Partridge, E. Stuart, Rt. Hon. James (Moray) Wills, G. (Bridgwater)
Pickthorn, K. W. M. Studholme, H. G. Wilson, Geoffrey (Truro)
Pitt, Miss E. M. Summers, G. S. (Aylesbury) Wood, Hon. R.
Pott, H. P. Sumner, W. D. M. (Orpington) Woollam, John Victor
Price, Philips (Gloucestershire, W.) Taylor, Sir Charles (Eastbourne)
Profumo, J. D. Taylor, William (Bradford, N.) TELLERS FOR THE AYES:
Raikes, Sir Victor Thomas, Leslie (Canterbury) Sir Hugh Lucas-Tooth and
Rawlinson, Peter Thompson, Kenneth (Walton) Mr. Rodgers.
Redmayne, M. Thompson, Lt.-Cdr. R.(Croydon S.)
Ainsley, J. W. Ede, Rt. Hon. J. C. Key, Rt. Hon. C. W.
Albu, A. H. Edwards, Rt. Hon. John (Brighouse) Lawson, G. M.
Allaun, Frank (Salford, E.) Edwards, Rt. Hon. Ness (Caerphilly) Lee, Frederick (Newton)
Allen, Arthur (Bosworth) Edwards, Robert (Bilston) Lee, Miss Jennie (Cannock)
Allen, Scholefield (Crewe) Edwards, W.J. (Stepney) Lever, Harold (Cheetham)
Amery, Julian (Preston, N.) Evans, Albert (Islington, S.W.) Lindgren, G. S.
Anderson, Frank Evans, Edward (Lowestoft) Llewellyn, D. T.
Astor, Hon. J.J. Fernyhough, E. Mabon, Dr. J. Dickson
Bacon, Miss Alice Finch, H. J. MacColl, J. E.
Balfour, A. Forman, J. C. McInnes, J.
Baxter, Sir Beverley Fraser, Thomas (Hamilton) McLeavy, Frank
Bence, C. R. (Dunbartonshire, E.) Garner-Evans, E. H. MacPherson, Malcolm (Stirling)
Benn, Hn. Wedgwood (Bristol, S.E.) Gibson, C. W. Maddan, Martin
Bennett, F. M. (Torquay) Gordon-Walker, Rt. Hon. P. C. Mahon, Simon
Benson, G. Grenfell, Rt. Hon. D. R. Mallalieu, J. P. W. (Huddersfd, E.)
Beswick, F. Grey, C. F. Marquand, Rt, Hon. H. A.
Bevan, Rt. Hn. A. (Ebbw Vale) Griffiths, Rt. Hon. James (Llanelly) Maude, Angus
Biggs-Davison, J. A. Grimond, J. Mitchison, G. R.
Blenkinsop, A. Hale, Leslie Monslow, W.
Boardman, H. Hall, Rt. Hn. Glenvil (Colne Valley) Morris, Percy (Swansea, W.)
Bottomley, Rt. Hon. A, G. Hamilton, W. W. Morrison, Rt. Hn. Herbert(Lewis'm,S.)
Bowden, H. W. (Leicester, S.W.) Hannan, W. Mort, D. L.
Bowen, E. R. (Cardigan) Harris, Reader (Heston) Moss, R.
Bowles, F. G. Harrison, A. B. C. (Maldon) Moyle, A.
Brockway, A. F. Hastings, S. Mulley, F. W.
Brown, Rt. Hon. George (Belper) Hayman, F. H. Nicolson, N. (B'n'm'th, E. & Chr'ch)
Brown, Thomas (Ince) Healey, Denis Noel-Baker, Francis (Swindon)
Butler, Herbert (Hackney, C.) Henderson, Rt. Hn. A. (Rwly Regis) Oliver, G. H.
Butler, Mrs. Joyce (Wood Green) Herbison, Miss M. Oram, A. E.
Callaghan, L. J. Hinchingbrooke, Viscount Orbach, M.
Castle, Mrs. B. A. Holmes, Horace Oswald, T.
Champion, A. J. Holt, A. F. Owen, W. J.
Chapman, W. D. Houghton, Douglas Paget, R. T.
Chetwynd, G. R. Howell, Charles (Perry Barr) Paling, Rt. Hon. W. (Dearne Valley)
Clunie, J. Howell, Denis (All Saints) Paling, Will T. (Dewsbury)
Collick, p. H. (Birkenhead) Hughes, Emrys (S. Ayrshire) Pargiter, G. A.
Collins V. J.(Shoreditch & Finsbury) Hughes, Hector (Aberdeen, N.) Parker, J.
Corbet, Mrs. Freda Hunter, A. E. Parkin, B. T.
Cove, W. G. Hyde, Montgomery Paton, J.
Craddock, George (Bradford, S.) Hynd, H. (Accrington) Peyton, J. W. W.
Cronin, J. D. Irving, S. (Dartford) Pilkington, Capt. R. A.
Crossman, R. H. S. Isaacs, Rt. Hon. G. A. pitman, I. J.
Cullen, Mrs. A. Jay, Rt. Hon. D. P. T. Popplewell, E.
Daines, P. Jeger, George (Goole) Price, J. T. (Westhoughton)
Dalton, Rt. Hon. H. Jeger, Mrs. Lena(Holbn & St. Pncs. S.) Probert, A. R.
Davies, Rt. Hn. Clement(Montgomery) Jenkins, Roy (Stechford) Proctor, W. T.
Davies, Ernest (Enfield, E.) Johnson, Howard (Kemptown) Pryde, D. J.
Davies, Harold (Leek) Johnson, James (Rugby) Pursey, Cmdr. H.
Davies. Stephen (Merthyr) Jones, Rt. Hon. A. Creech( Wakefield) Ramsden, J. E.
Deer, G. Jones, David (The Hartlepools) Rankin, John
de Freitas, Geoffrey Jones, Elwyn (W. Ham, S) Redhead, E. C.
Delargy, H. J. Jones, J. Idwal (Wrexham) Reeves, J.
Dodds, N. N. Jones, T. W. (Merioneth) Reid, William
Donnelly, D. L. Kenyon, C. Robens, Rt. Hon. A.
Dugdale, Rt. Hn. John(W. Brmwch) Kershaw, J. A. Roberts, Albert (Normanton)
Roberts, Goronwy(Caernarvon) Strachey, Rt. Hon. J. Wells, William (Walsall, N.)
Ross, William Strauss, Rt. Hon. George (Vauxhall) Wheeldon, W. E.
Shinwell, Rt. Hon. E. Stross, Dr. Barnett (Stoke- on-Trent, C.) White, Mrs. Eirene (E. Flint)
Short, E. W. Summerskill, Rt. Hon. E. White, Henry (Derbyshire, N.E.)
Silverman, Julius (Aston) Sylvester, G. O. Wigg, George
Silverman, Sydney (Nelson) Taylor, Bernard (Mansfield) Wilkins, W. A.
Simmons, C. J. (Brierley Hill) Taylor, John (West Lothian) Willey, Frederick
Skeffington, A. M. Teeling, W. Williams, W. T. (Barons Court)
Slater, Mrs. H. (Stoke, N.) Thomas, P. J. M. (Conway) Willis, Eustace (Edinburgh, E.)
Slater, J. (Sedgefield) Thomson, George (Dundee, E.) Wilson, Rt. Hon. Harold (Huyton)
Smith, Ellis (Stoke, S.) Thornton, E. Woof, R. E.
Snow, J. W, Ungoed-Thomas, Sir Lynn Yates, V. (Ladywood)
Sorensen, R, W. Usborne, H. C. Younger, Rt. Hon. K.
Sparks, J. A. Viant, S. P. Zilliasus. K.
Spearman, A. C. M. Vickers, Miss J. H.
Steele, T. Wade, D. W. TELLERS FOR THE NOES:
Stewart, Michael (Fulham) Warbey, W. N. Mr. Kenneth Robinson and
Stokes, Rt. Hon. R. R. (Ipswich) Watkins, T. E. Mr. Kirk.
Stones, W. (Consett) Weitzman, D.
Sir H. Lucas-Tooth

I beg to move, in page 1, line 9, at the end to insert: Provided that this Act shall not apply in any case in which the murder was committed by a person already serving a sentence of imprisonment for life.

Sir James Hutchison (Glasgow, Scotstoun)

May I have your ruling, Sir Charles, whether, with this Amendment, we are discussing the Amendment in the same line in the names of myself and my hon. Friends, to insert: Provided that this subsection shall not apply when the offender is convicted of murder committed while he is confined in any prison or, while outside the prison, he is in the custody of an officer of the prison.

The Chairman

Yes, I think that these two Amendments go together. In due course, when we come to the Amendment in the name of the hon. Baronet, there will be no discussion upon it, but the Committee can divide upon it if hon. Members wish.

Sir H. Lucas-Tooth

This, again, is an Amendment which calls for an exception to the general principle of the Bill. I do not think, however, that the Committee will take so long to discuss it. If a person is already serving a life sentence, it is futile to award him a second life sentence, because that would be doing nothing at all. For that reason, I propose this Amendment to retain the death penalty in this particular case.

It may be argued against the Amendment that there are other forms of punishment available; for example, solitary confinement, a bread and water diet, or even, as some hon. Members have suggested, flogging. Of course, the Committee will appreciate that punishment by flogging would need an amendment of the law to make it possible in a number of the cases involved.

My answer, is that if a person undergoes a life sentence and commits another murder, what would be the appropriate length of time for which he should have to undergo such other punishments as are available in the circumstances? I do not think that any hon. Member in any part of the Committee could answer that question because, clearly, the offence of murder could not be punished adequately by any of those subsidiary punishments—if I may so call them—which are available for dealing with prisoners already in prison.

7.0 p.m.

The second argument which can be advanced is what would be done now if a reprieved murderer committed another non-capital offence because, after all, any term of imprisonment on top of a life sentence would be nugatory? I think that the answer is that the opportunities for the man in prison to commit any crime are not very great. Indeed, most of the crimes are virtually impossible, with the one exception of murder, curiously enough. That one is not so difficult to commit if, for example, a man wished to assassinate another prisoner with whom he had a quarrel. I would suggest that the reason it has not been done is that in such circumstances the prisoner could not expect to get away undetected, and in that case he has the death penalty facing him at present.

No prisoner undergoing a life sentence has committed a murder in this century, so I am informed, so there is no case at all for supposing that there will be any retention of the gallows. What I think is necessary to retain in this case is the deterrent for the special reasons I have given.

Mr. George Benson (Chesterfield)

I think that perhaps this Amendment is one of the least easy to give a reply to—not the most difficult, but the least easy. The reply to previous Amendments is quite overwhelming, although hon. Members do not accept this.

In no case where capital punishment has been abolished has there been any increase in murder in general, and on the last case we were considering in so far as it dealt with the police we had the very effective evidence given before the Canadian Select Committee by Professor Thorsten Sellin. Thus we have ample evidence that the death penalty is not an unique deterrent and its abolition makes no difference. But, when we come to this Amendment, which deals with the protection of the prison officer against possible murder by a prisoner who is serving a life sentence, we have no concrete evidence from other countries, as far as I know. I have never seen any statistics published on the subject.

Therefore, one cannot give the same conclusive answer that one can give in other cases. One can only argue by analogy and that is never quite so convincing as being able to give concrete evidence.

Sir H. Lucas-Tooth

I do not want the hon. Member to misunderstand my case. This Amendment is not only dealing with the prison officer. Another Amendment deals specifically with the prison officer, but I am just as much concerned with the possibility of a prisoner murdering another prisoner, which is an even greater likelihood.

Mr. Benson

I do not know; it may be. In dealing with the murder of another prisoner or a prison officer the real argument is the fact that murders have never taken place in prison, as the hon. Baronet the Member for Hendon, South (Sir H. Lucas-Tooth) said. I will give what seems to me the reason, but, before I deal with that point, I should like to refer to the suggestion that if a man is serving a life sentence we have no further sanction against him.

That is not true because, as everyone knows, except in very rare and exceptional circumstances a life sentence is a conventional life sentence only. In reality, it means anything from six, or eight, to a maximum, I think at present, of 10 years. I am talking now of actual fact. At any rate, the last figures published in the Prison Commissioners' Report, about seven years ago, showed that the longest period in prison of a reprieved man was 10 years. The average length of a life sentence is about six, seven or eight years. It is not really true to say that if a man is serving a life sentence we have no further sanction against him

Every reprieved murderer lives in the hope that he will be liberated. Everyone who has read Phelan's book, "Jail Journey," knows how important the possibility of release is to a reprieved murderer. A murderer who is serving a life sentence, and commits a second murder in prison, will never get out again. He will know that. Thus it is quite incorrect to suggest that we have no real sanction against a man in prison who is there doing a life sentence for murder.

The hon. Member for Hendon, South was very careful to deploy no argument in favour of retention in this case. He merely mentioned that there have been no murders in prison in this century. That is a very remarkable thing. The reason, I think, is that it is not particularly easy to commit a murder in prison. Year after year in this country there are murderous attacks on prison officers by prisoners. [An HON. MEMBER: "There was one today."] That may be so. Any one of those attacks might easily end in murder. That they have not so ended is not due to the fact that we have the death penalty. The fact that there have not been any murders in prison as a result of those murderous attacks is a very lucky thing for the prison officers attacked and for the prisoners.

This is so extraordinary that I think one has to look for an explanation. The probable reason why there have been no murders in prison is that very few prison officers are out of call or out of touch with another prison officer and that the attacks cannot be pressed home. Not only are other prison officers within call, but prison is a rather congested place and it is by no means uncommon for other prisoners to come to the rescue of a prison officer. That seems to be the reason why there have been no murders in prison as a result of these attacks on officers. Certainly, there is nothing I know of in the history of these attacks which suggests that the death penalty has been a deterrent.

On the protection of prison officers, I would like to quote a very authoritative opinion, that of the Swedish Prison Officers' Association. Before Herr Eriksson came to the House to answer questions in a Committee room here, he asked the Swedish Prison Officers' Association whether they would feel more secure if they had the death penalty. He received a possibly astonishing reply, which was that they would feel that the introduction of the death penalty might increase their danger.

The reason they gave was that there were so many persons of unbalanced mind and temperament in prison that to reintroduce into Sweden the morbid element of the death penalty and the gallows might be rather an incitement to murder than an additional protection to them. These people are entitled to speak on this subject, because having had the death penalty and having abolished it they can speak with experience from two points of view.

I now wish to say a few words about prison discipline in general. Prisons are unique places, and all the prisoners are under discipline. That applies not only to this country, but to other countries; and no other country in Europe, except France and Spain, has retained the death penalty for the protection of their prison officers. If they can do without the death penalty in their prisons, we can do without it in ours.

There is another point I want to make, which I made on Second Reading. It is that we do not necessarily get increased deterrence by using savage penalties. We have a very interesting example of that in our retention in this country of flogging to protect prison officers. We are the only country in Europe to retain it. In Scotland, they have had more experience of this than we have had, for the simple reason that they have had a dual system.

Before 1949, they could flog for attacks on prison officers in one prison only, and that is in Peterhead, so that they knew from experience whether in Scottish prisons flogging gave additional protection. We retained flogging, but the Scots, having had experience of the two systems of prison discipline— where flogging was not possible, as in Barlinnie, and in the other prison where it was possible, in Peterhead— they decided that the retention of flogging was not worth while because it was not necessarily a deterrent.

In Ireland, it is true that they have retained on the Statute Book, at any rate, the power to flog for the protection of prison officers, but it has not been used for 30 years and has fallen into desuetude. The evidence which we have from our prisons, and the evidence which comes from elsewhere, shows that we cannot trace any connection between the severity of a punishment and its deterrent effect.

I should like to turn from the more severe punishments to the general question of prison discipline. A prison governor has a very fearsome armoury of punishments at his disposal. For instance, for the most trivial offences, he can impose the following punishments. He can prevent a prisoner's association with others for 14 days; he can cut off his privileges for 28 days; he can take away his earnings for 14 days; he can give him three days' solitary confinement, with bread and water in addition; he can give him 15 days' punishment diet No. 2, and he can also take away 14 days' remission of sentence, which, in effect, gives him 14 days' extra imprisonment. He has a terrific armoury of punishments. I do not say that he uses them, but he can for the most trivial offences impose every one of these punishments, one on top of the other.

One of the extraordinary things about our English prisons, and one which the Home Secretary might look into, is that although prison governors have a vast number of regulations, they have little or no instructions as to how they should or should not use their punishments, and, curiously enough, prison governors do not consult one with another as to what the normal type of punishment should be.

7.15 p.m.

Sir H. Lucas-Tooth

I am very much interested in the hon. Gentleman's argument, but it seems to me that he is arguing that, if a prisoner committed a murder in prison, he should be tried before and punished by the prison governor. I do not know whether that is the point of his argument.

Mr. Benson

I have said that I wanted to talk about prison discipline in general, because I wanted to make the point, which I made on Second Reading, that the deterrent effect is not dependent upon the severity of the punishment. I have pointed out that where countries have had experience of flogging, like Scotland, they had abolished it, because they found that they could deal with the discipline problem without it. Even in Northern Ireland flogging has fallen into disuse. What I do want to point out is that prison discipline does not depend upon savage or severe punishments. I want to compare English prison discipline with Scottish discipline, not on major questions only but on the general effect of prison punishments. I am trying to argue by analogy. The hon. Member for Hendon, South had no argument at all. I am willing to admit that arguing by analogy is not a clinching argument, but it is better than no argument at all, which was the position of the hon. Baronet.

If we make the comparison, we find that punishments in English prisons, on an average, are about four times as severe as punishments in Scottish prisons. It is quite astonishing to compare the average prison punishment imposed in Scotland with the average punishment imposed in England. In fact, I was so struck when I looked into this problem that I asked the Scottish Office to provide me with details of 50 consecutive punishments in Barlinnie, and then got the Home Office to provide me with details of 50 consecutive punishments which had been imposed in a comparable English prison.

It is not very easy to compare the weight of punishment, but I am understating it when I say that the weight of punishment in the English prisons was at least four times as heavy as in Barlinnie.

Mr. Kenneth Thompson (Liverpool, Walton)

For the same offences?

Mr. Benson

The ordinary run of prison offences—the ordinary trivial, disciplinary offences, such as insulting language to an officer or disobeying an order. But nobody pretends that the discipline in Scottish prisons is any worse than the discipline in English prisons.

There is one even more striking comparison. I will mention no names, but I know of a large English prison which had an extremely good governor— a man whom I regard as one of the ablest governors in the service. He thought he was a light punisher, but, in fact, he was a heavy punisher. When he left that prison he was followed by an equally good governor who was one of the lightest punishers in the service. From one day to another the weight of punishment in that prison dropped to a tiny fraction.

I was very curious to see what happened, and when the next year's Prison Commissioners Report was published, the first thing I turned to see was the offences records of that prison. There had scarcely been a change in the number of offences: the number was practically identical. Clearly, therefore, the weight of punishment has very little effect indeed on the discipline of a prison.

That is the position in small matters— and also in matters which are of sufficient weight to merit, in the opinion of the English prisons system, a flogging. If we retain the death penalty I see no reason to believe that we shall find it to be the supreme deterrent in prisons which it has not proved to be outside. I do not see why we cannot do in our prisons what they have done in all the prisons in Scandinavia. Belgium and Germany—carry on without the retention of the death penalty.

I have been arguing by analogy, and I am fully aware of the inadequacy of the argument, but at any rate I have produced an argument, which is more than the hon. Baronet did, and I hope that on those grounds his Amendment will be defeated.

Sir J. Hutchison

I should like to refer for a moment to the conjoined Amendment which we are also discussing with this Amendment. It goes a little wider, and although in many respects it is the same in effect as that of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), I think the Committee ought to take cognisance of it. The Amendment which stands in my name and the names of my hon. Friends is designed primarily to protect prison officers.

Anyone who speaks on this subject must approach it with great anxiety. I will say quite frankly that when this series of debates started on the death penalty I wanted to find myself in favour of abolition. This is the first time I have spoken on the subject.

I have listened to almost every word which has been said, and at the end I have come to the conclusion that there is a deterrent in the death penalty and that, at the moment at any rate, I could not believe otherwise. If I believe that there is a deterrent, and if many other people believe it also, it seems to me that, whatever chances we take elsewhere by abolition, the interior of a prison is the last place where we ought to take such a chance. We ought not to take it in the case of a man in the custody of a prison officer.

We have been told that the professional criminal type is rarely a murderer; indeed, my right hon. and gallant Friend the Home Secretary is reported in HANSARD as having used these words Professional criminals in this country rarely carry weapons, and those with most experience of criminals attribute this fact to the criminal's fear of being hanged."—[OFFICIAL REPORT, 12th March, 1956; Vol. 550. c. 86.] I can quite believe that this is so; it is the opinion of those who come in contact with this problem and who are well versed in it. If capital punishment is to be abandoned, surely this attitude may well be changed. The professional criminal, realising that he is running a risk of being hanged, avoids any action likely to land him in those circumstances, but we are now about to introduce into our prisons a new section of the underworld. namely, those who would otherwise have been executed and for whom no redeeming circumstances have been found.

It has been clearly admitted by all who have discussed this question that this type of murderer is not in prison for the conventional life sentence period but for a much longer time, perhaps for the whole of his natural life. When the hon. Member for Chesterfield (Mr. Benson) said that a life sentence did not in fact mean a life sentence, he was referring to life sentences which have been imposed in the past. I do not believe he would disagree that a murderer of a particularly despicable and dangerous type should serve more than the conventional life sentence. At any rate, if he does disagree, then I disagree with him on the subject, and I believe that all who have spoken on it disagree with him, too. The hon. Member was thinking of a different type of criminal. If we are to have life sentences which mean life sentences, there will be nothing more for us to impose on such a man if he commits another murder—except the death penalty.

Mr. Benson

Practically every other country in Europe has met this problem successfully without retaining the death penalty for the murder of prison officers. I quoted the Swedish prison officers who did not want the death penalty retained at any price because they thought it would do more harm than good.

Sir J. Hutchison

I heard the hon. Member's remarks on that subject, and I am coming to them later. I was pointing out that it is possible to add a punishment to the conventional type of life sentence, since such a sentence means, on average, about nine years' imprisonment. With the new type of criminal, who will receive a real life sentence, there will be virtually no further penalty which can be imposed upon him, if he commits a further murder, except the death penalty.

Sir B. Baxter

If a murder were committed in prison and a man was serving a life sentence, which would normally be one of ten years, could it not be said that he must stay in prison until death? Surely that would he possible.

Sir J. Hutchison

Of course it would be possible. I was dealing with the new case of the dangerous and desperate criminal who is intended to serve a much longer sentence than the conventional life sentence of the past. As has been indicated in a number of speeches, he might have to be kept in prison for his natural life. It is to that type of individual that I wish to draw the attention of the hon. Member for Chesterfield, because in such a case there is nothing one can add in the form of penalty by lengthening a man's imprisonment, because he is already serving a full life sentence.

7.30 p.m.

Mr. Benson

Clearly, every prisoner sentenced to life imprisonment assumes and hopes that he will be released some day. One does not pass two types of life sentence, telling one prisoner he will come out in ten years and another he is in for life. A life sentence is passed; it is then up to the prisoner to make good in goal. As has been said before during this debate, that is what definitely does happen in countries where there is a policy of that sort; they have met all these problems successfully.

Sir J. Hutchison

Whether that happens in other countries or not, in the debates I have listened to and the speeches I have read on this matter there has been a general measure of agreement that the most virulent and dangerous type of murderer should not be released after the conventional period of nine or ten years, and that society would not stand for an individual like Haigh being released merely because he had spent ten years in prison and behaved tolerably well while there. It is that kind of individual who presents a grave problem, and it is on his account that I believe that this ultimate penalty should be retained.

In giving evidence before the Royal Commission, the Home Office authorities spoke of disciplinary control becoming less rigid, and I think the hon. Gentleman the Member for Chesterfield was in fact advocating that that process should continue. But is it really going to be possible, if each year we add to our prison inmates some ten to twenty individuals who would at present be executed, and, so to speak, lower or demean the general standard of those within our prisons? Will it be easier to relax prison discipline?

Mr. S. Silverman

Since the hon. Gentleman is quoting from the evidence given by the Home Office to the Royal Commission, may I ask whether it is not right to say that the evidence given by the Home Office to the Royal Commission on this very point—or something very near it—was that if there were no death penalty the number of prisoners of whom it could be said that they could never be released was very small indeed?

Sir J. Hutchison

That is another point. I was in fact talking about relaxation of prison discipline.

Mr. Silverman

The hon. Gentleman was making the point that if this Bill were carried, we should have to add to the prison population some ten to twenty prisoners every year of whom it could be said that they had nothing to lose since they were there for life anyhow. What I am pointing out is that Home Office evidence to the Royal Commission was exactly the opposite.

Sir J. Hutchison

The hon. Gentleman has really not listened to my words. The subject on which I was quoting the Home Office evidence to the Royal Commission was the lessening of disciplinary control.



Sir J. Hutchison

I really must be allowed to make my point; I have given way quite enough.

I did not quote the Home Office evidence or the Report of the Royal Commission upon the other point. I thought it was generally agreed that society simply would not tolerate the release of the type of murderer who is now executed after some period of time like the present conventional length of life sentence. Whether they be many or few, there will be some. To my mind, it is undoubted that the standard of conduct and of character in prisons is bound to be diminished by the presence of those who are incarcerated for these long periods.

We have heard about the extra penalty; in fact, I discussed it with the hon. Member for Chesterfield just now. I will not go into what the position is in Scotland and in England. To recall what was said in earlier debates, has a prisoner really much to lose if he makes a desperate attempt to get away by committing another murder? It seems to me he has very little to lose. He has his hope, perhaps. Hope springs eternal in the human breast, and however heinous a crime he may have committed and however little basis for hope he may have, I dare say he does continue to hope a little, though it must be a very slender hope that a man like Haigh would have, once he was sent to prison for a life sentence.

Such men having little or no hope, the result would be, as evidence already led has shown, that the character of the individual would deteriorate as time passed. That is natural enough. A man whose character is becoming warped and deteriorating is, in my submission, more likely to commit a murder, perhaps, than when he first went in.

The hon. Member for Chesterfield spoke about Sweden. I would prefer to take the opinion of our own Prison Officers' Association, which is extremely anxious about this question, and has in fact committed the view to paper that it would like to see special legislation introduced to deal with the type of individual I have been talking about. The Prison Officers' Association would like to see the supreme penalty retained. If the Bill goes through unamended, we shall have to recruit more prison officers. We shall probably have to tighten discipline, at any rate in certain prisons.

The Prison Officers' Association is anxious and alarmed. Will it be very easy to recruit the further prison officers we shall require if we take away the security which I wish to see this Committee preserve by adopting my Amendment?

Mr. Hale

The hon. Member for Scotstoun (Sir J. Hutchison) said that he was going to refer to the Amendment in his own name rather than the one we are discussing, but as I understood him he did not do so at all.

The hon. Gentleman spoke about dangerous criminals, persons sentenced to a life sentence. He spoke of people who have nothing to hope for. I always listen to the hon. Gentleman with attention and respect, and I do not wish to use any discourteous words, but if he reads his own Amendment, he will see that it applies to persons who are imprisoned, for example, for debt. Although we have abolished imprisonment for debt in this country, there are still many thousands of persons imprisoned for not complying with an order to pay, which is very much the same thing. His Amendment applies to persons who are in arrears on affiliation orders and who refuse to pay— persons imprisoned because they have quarrelled with their wives and, when ordered to maintain them, have refused, and gone to prison. His Amendment applies to persons awaiting trial or on remand, or before bail has been effectively granted. The hon. Gentleman's Amendment applies to them all.

I do not wish to make a drafting point; this is all germane to his Amendment. It is really impossible to say that a man who is anxious and worried about his wife and family, having been "put down" because he had not paid his borough rates in good time, and who committed some act of violence which unhappily resulted in death, is really committing a graver crime than an armed murderer or a man who kills in the act of rape or anything of that kind.

Sir J. Hutchison

I am obliged to the hon. Gentleman for giving way. Why I concentrated particularly on the murderer in prison or in the custody of a prison officer was because there is a far greater likelihood, as it seemed to me, of danger to the prison officer from that man, the danger to the prison officer from many other types of prisoners being virtually negligible.

Mr. Hale

I accept that and do not dispute it at all; but that shifts attention to the Amendment moved by the hon. Member for Hendon, South whose Amendment clearly and specifically deals with that particular point; it is directed exclusively to the man who is serving a life sentence. One understands the argument on that, which is a perfectly fair and reasonable one. Indeed, had the Amendment been carried, and once one had accepted that there were cases in which it was necessary to preserve capital punishment, it would have been very difficult. I think, for us on this side to argue that this was not one of those classic cases which might well be an exception.

We have not by any means finished the discussion on the Bill, but having heard the strongest case which has been put up to now—and everyone paid tribute, and properly so, to the fair, moderate and effective way that the hon. Member for Hendon, South moved his Amendment and enhanced a Parliamentary reputation which is already substantial—and the earlier Amendment having been rejected, we have reached the stage when we can ask whether it is really worth while to preserve the institution of capital punishment for one case only—a case which has never occurred in the last 50 years.

Mr. S. Silverman

Never at all, anywhere.

Mr. Hale

It never has occurred so far as we know.

Mr. Paget

As far as we can ascertain, it has occurred on one occasion. That was about 150 years ago, in Newgate, when a warder playing cards with a prisoner was brained by a beer mug in the course of an argument over cards. It is the only occasion which can be traced in the history of the world.

Mr. Hale

One would want to know what the game was to know the precise magnitude of the acrimony that could have arisen from it.

Without worrying about beer mugs in Newgate or Alcatraz, the position in the last 70 or 80 years in this country— and they are the relevant years— is that no such case has occurred and virtually there has been no case of grave injury which has come anywhere near to it. In these circumstances, I really wonder whether the hon. Baronet the Member for Hendon. South would wish to press this Amendment to a Division.

I want to put to the hon. Baronet what, I think, is a fair point. In far as I possess intellect—I have never claimed to possess it, but I would call this an intellectual point, and I appreciate that all intellectual points are subject to argument either way—I would approach the matter in this way. The main argument of the hon. Member for Scotstoun is the fair one that there are people whose prospects are such that they have abandoned hope, that they have nothing to fear and that, therefore, they may commit a violent crime. I entirely agree with my hon. Friend the Member for Chesterfield (Mr. Benson) that people do not abandon hope. The only thing that makes this life endurable for many of us is the vivacity and the almost eternity of the human flame and the human spirit.

People have to face disasters which appear insurmountable. People who have not committed crime have to face sorrows and anxieties which for a time appear likely to destroy all that they value. But the power of resuscitation, of revivification, of that little flame that we call humanity is always the dominating power. People do not lose hope in prison. Indeed, those who have read the stories of what has happened in prison, people who have read of the Birdman of Alcatraz—a long—term prisoner with little hope of release for years—and who have read of the courage and humanity of the brotherhood of prison and who belong to those who say, "There, but for the grace of God, go I", realise that very many offences are physical, fortuitous chancey, and so on.

Let us, however, accept the Home Secretary's proposition. Although there has not been a case in the last 50 years and although there have been many people serving a life sentence in the last 50 years with nothing much more to hope for than people who are serving life sentences would have under the conditions of the Bill if it is passed, the Home Secretary says that there may be one—there may be a Haigh. whose crime was so savage and brutal that it appeared to approach madness; there might be one of that category, to whom the Home Secretary referred in saying there might he some whom one never could consider releasing unless there was so clearly an alteration of disposition, of temperament and of habit as to amount to something that could not reasonably be expected. It is an intellectual argument: it is anyone's guess and opinion.

7.45 p.m.

I should have thought that if anyone had reached that stage, when there was no hope of release and nothing to look forward to and when one was so desperate, the one thing a person might hope for was death. One really might reach the stage that capital punishment would be the least punishment one was likely to fear. It might appear as a release from the miseries and rigours of a lifelong imprisonment.

I cannot think that it is a sound argument to say that capital punishment is a more severe threat to a man enduring a life sentence than to a man at liberty. Obviously it is much less. I do not suggest that that is a point which I regard as powerful, but it would be my view that capital punishment in those circumstances might offer a solution to a problem which for the rest of one's life had become insoluble.

We are all agreed on this; it is quite a short point. Cases of this kind have never occurred. In these circumstances, the hon. Member for Scotstoun having himself voted for some substantial limitation of capital punishment and having accepted the principle of the Bill on Second Reading, I suggest to him that his previous Amendment, having been defeated, it would be in accordance with the line he has taken in this matter throughout to say that he would not now press this single Amendment, which would have the effect of reserving the gallows and the executioner for cases that may never occur. I hope, therefore, that he will ask the leave of the Committee to withdraw the Amendment.

Major Lloyd-George

As this is a matter which concerns my right hon. Friend the Secretary of State for Scotland and myself rather particularly, since it deals with prison staffs, perhaps the Committee might like me to say a word on the two Amendments. The first Amendment, which is in the name of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), would preserve capital punishment for murder committed by persons who are already subject to the maximum penalty—short, of course, of capital punishment—which the law can impose. It seeks to protect prison staffs, prisoners and anybody else who may be the victim of a murderous attack by any such person. It does not apply to persons serving a determinate sentence, however long, or to persons who, though confined in prison—for example, on remand—are not actually serving a sentence.

I think the Committee will agree that my hon. Friend has been perfectly logical, for he has provided for the case where the abolition of the death penalty leaves the law with no further punishment that it can impose. He is seeking in the Amendment to provide a deterrent for the man who is already serving a sentence for murder.

The second Amendment, in the name of my hon. Friend the Member for Scotstoun (Sir J. Hutchison), goes somewhat further than the first Amendment. It applies to the man who is confined to prison, whether serving a sentence or on remand, and also to the man who, outside the prison, is in the custody of an officer of the prison.

As I mentioned at the beginning, my right hon. Friend the Secretary of State for Scotland and I, as responsible for the administration of the prisons in England and Wales and in Scotland and, we must never forget, for the well-being of the staff in those prisons, are naturally in deep sympathy with the purpose of the two Amendments. We attach immense importance to the protection of the staff who carry out these duties, because by the very nature of their duties they are exposed to close contact with violent and very often very dangerous men.

It is not to be forgotten that Parliament, as has already been said tonight, thought it right to protect prison staffs in England and Wales against attack falling short of murder by preserving corporal punishment for offences of this kind in prison, although it abolished it in England and Wales as a judicial sentence It seems right, to us at any rate, that prison staffs should have the same analogous protection against attacks which kill.

If this is not done there will be the anomalous position that a prisoner who makes a murderous attack on a prison officer but does not kill him will be brought before the visiting magistrates and may be sentenced to corporal punishment; whereas the prisoner the victim of whose attack dies as a consequence of that attack will be charged before a court with murder, and, if he is already serving a sentence of life imprisonment, the court will have no other sentence it can impose on him.

I have noticed once or twice in our debates on the Bill a view expressed which has been repeated tonight and which makes me feel that a large number of people in the country are under some misapprehension as to what life sentence under the Bill means. They are always talking in terms of the ones who are released after nine years or eight years, and they continue still to think in those terms even though capital punishment will have been abolished. They are mistaken, because, as 1 have mentioned once before, the overwhelming majority of murderers who are reprieved in this country are first offenders and are nearly all very well behaved prisoners. The Royal Commission points out that the overwhelming majority of them commit no offence after they are released. That is not an argument in a situation in which capital punishment is abolished.

As I said in one of our debates, admitting the figures had of necessity to be estimates, if the number of murderers in prison gradually increased to a maximum of 250 more than at present—I admit it is a tentative estimate, for it has to be—at any given time there would be about 150 who could be released after periods of up to 20 years, but the remaining 100 might have to be detained for longer periods, some, perhaps, for the rest of their lives; at any rate, they would have to be kept in conditions of maximum security—until in old age, for instance.

Mr. S. Silverman

May I ask whether the right hon. and gallant Gentleman remains of that opinion today? I know that he said that on the occasion when he did, and I know he was careful to say that they were then tentative figures and that it was a tentative view. He has had a good deal of opportunity of considering the matter, and I should like to know whether he is still putting that to the Committee.

Major Lloyd-George

I have had no occasion to change the figures. I have admitted that they are obviously still tentative, but nothing has occurred to alter my view.

I shall do a very risky thing and try to recollect the figures. I have forgotten how many years the period was, but I think it was five, and that there were 85 murderers of whom it was reckoned that possibly 11 might have to be detained during the rest of their natural lives.

Mr. Silverman

In how long?

Major Lloyd-George

The last five years. However, it does not make any difference really, for the fact remains that there would be no extra punishment which could be inflicted upon them. I would remind the Committee once again that Parliament has thought it wise, although it abolished flogging for certain crimes, in the interests of the prison staffs to retain it for certain attacks on staff inside prisons. I think that that is not an unreasonable provision for people who, after all, have to deal with very dangerous men.

The Committee knows perfectly well that the prison officer service is today undermanned, and it is not a service to which it is easy to attract recruits. I do not think we can afford to allow the men and the women who do this very important work—and I would say very important social work—for us in this country to feel that this Committee is entirely heedless of the risks to which they are undoubtedly exposed from time to time. I, personally, would support the Amendment.

Dr. Horace King (Southampton, Itchen)

I disagree with my hon. Friend the Member for Oldham, West (Mr. Hale) and my hon. Friend the Member for Chesterfield (Mr. Benson) with some sorrow, because I have such a profound respect for the abilities and the views of my hon. Friend the Member for Oldham, West, and particularly for the invaluable voluntary work my hon. Friend the Member for Chesterfield has done in our prisons. I want to support the Amendment moved by the hon. Member for Hendon, South (Sir H. Lucas-Tooth)

My hon. Friend the Member for Oldham, West said that capital punishment for a second murder committed in prison might regarded by the guilty prisoner as a happy release. I would point out what he himself pointed out, that nobody has yet taken this opportunity of a happy release in our prison system during the years when a prisoner who did commit a murder in prison would have been hanged. That fact seems to dispose of that argument.

Mr. Hale

I did not say that. My hon. Friend really must not first attribute to me an argument I did not make and then demolish it with a fact that I did put forward. I said that I did not accept for a moment that people ever reached that degree of desperation; but, I said, I adopted for the moment the academic argument put by the hon. Member for Hendon, South (Sir H. Lucas-Tooth), and that if they ever did get to that state of despair it might intellectually be arguable that capital punishment would be attractive to them. In fact, they have not found it so. The evidence of the last 50 years shows they have not. My hon. Friend has chosen to attack me for accepting for the sake of argument an argument put by the hon. Member for Hendon, South.

Dr. King

My hon. Friend has run away from a case which he did make. He suggested that if people were so desperate in prison that capital punishment might be more attractive to them than the alternatives— —

Mr. Hale

If my hon. Friend will read HANSARD tomorrow he will see that he is mistaken. He can send me a note of apology. I am sure he does not wish to misrepresent me. I am certain that every other hon. Member in the Chamber knows that he is doing so, however.

Dr. King

If I have misrepresented my hon. Friend, I sincerely apologise.

My hon. Friend the Member for Chesterfield has such a record of invaluable work for our prisons that one would hesitate to take the opposite view from him on the matter of prisons if the opposite view were not taken by a group of men who also have profound experience of prisons, and those men are the prison officers themselves. It may be that the prison officers are wrong in thinking that this Amendment will help them. It may be that what they are asking for is a protection which is not necessary. it seems to be a fact that in countries with capital punishment no murders have been committed in prisons and that also in those countries which have abolished capital punishment no murders have been committed in prisons. It may be that cur prison warders are fearing what it is not logical that they should fear.

8.0 p.m.

Everybody who either supports or opposes the Amendment would hope that there never will be the murder of a warder in prison, but if prison officers feel that this provision gives some protection I think that the Committee should give them that satisfaction. In discussing the Amendment we are examining a unique aspect of the deterrent problem, in that we are not weighing the death penalty as a deterrent compared with all other kinds of punishment that might be imposed upon the murderer.

We are not measuring the deterrent effect of the death penalty against the maximum punishment which we alternatively could inflict upon the murderer. What we are doing is measuring the deterrent effect of the death penalty against the deterrent effect of what we can add to the punishment of a prisoner who has already received what we deem to be the maximum punishment for murder.

The Amendment suggests that when we weigh the death penalty itself not against alternative forms of punishment but against the narrow amount of extra punishment that can be given to someone who has already received the maximum punishment for his first murder, the death penalty acts in that case as a bigger deterrent. I support the Bill and when —as I hope—we abolish the death sentence it is quite likely that the amount of punishment we shall inflict upon the worst murderers will be much heavier, in that life sentence will be much nearer a real life sentence in some cases than it was previously.

I believe that there might be a prisoner, who is serving a sentence so near the maximum that whatever we add to it is small compared to the death penalty itself, who might, because he hates so intensely another prisoner or somebody who is looking after him, trade this extra modicum of punishment that can be inflicted upon him against the satisfaction of wreaking his revenge. He might, on the other hand, trade the chance of suffering that extra modicum of punishment when he is attempting to escape against the fact that killing someone who is trying to prevent his escape might enable him to get away. Now that we shall be having not only the reprieved murderers but we shall have in our prisons the worst murderers who might otherwise have been hanged, and whose sentences for the first murder will be very heavy ones, it seems to me that this is an Amendment that might have the support of the Committee.

Mr. F. M. Bennett (Torquay)

Although I have been deeply interested in this issue for a number of years —

Mr. Kenneth Robinson (St. Pancras, North)

On a point of order. Is it not customary for the promoter of a Bill to be allowed to address the Committee when he rises?

The Temporary Chairman (Mr. F. Blackburn)

I had already called the hon. Member for Torquay (Mr. F. M. Bennett) before I saw the hon. Member for Nelson and Colne (Mr. S. Silverman) rise.

Mr. Bennett

I assure the Committee that I shall not keep the hon. Member for Nelson and Colne (Mr. S. Silverman) waiting very long. As I was about to say, although deeply interested in the controversy and although I have sat throughout most of the debates since the Bill was introduced and also the debates prior to its introduction, I have not yet contributed to our discussions. That has been largely because I have thought that all the arguments, which are well known to us, were being ably propounded already on both sides of the Chamber. I have, however, been a consistent supporter of the Bill throughout its previous stages.

In dealing with this question, which, quite naturally, is so charged with sentiment and passion and deep feeling and prejudice on both sides of the Committee, it is very difficult to keep in mind the motives which drive one to take up one attitude or another. I have disciplined myself to consider solely the question of a deterrent, and because I am satisfied that the Amendment comes outside all others on the ground of deterrence, I propose to support it. It will be my first departure from support of the Bill as a whole.

I am satisfied from the arguments put forward by the hon. Member for Itchen (Dr. King) that where someone is already serving a long sentence or a life sentence, some extra punishment is necessary as a deterrent to murder. I know perfectly well that the argument can be produced that this situation has not arisen in several countries over a large number of years, but the Committee and the country have already accepted the principle that flogging should be retained for people who are already serving long sentences of imprisonment if they are found guilty of committing acts of violence against warders or others in prison.

It would be highly illogical to retain a special penalty of that kind, which is never enforced on other than this special section of the community— precisely because there is no alternative to flogging where a man is already serving a long sentence—whilst, at the same time, failing to retain a special penalty for the murder of prison officers. It would be illogical to retain the special penalty of flogging for endangering the life of a warder whilst there was no special penalty if the attacker succeeded in his violence and killed his victim.

This is a completely different situation from that involved in other Amendments to the Bill, and I propose to vary what I have done throughout the passage of the Bill. I propose to support the Amendment in the Lobby and 1 invite my hon. Friends not to accept any invitation which may come from the other side of the Committee to withdraw it, but to press it to a Division. I believe that the Amendment is consistent with the question of the retention or otherwise of capital punishment which the Committee is deciding.

Mr. S. Silverman

I would not have thought it necessary to intervene in the debate at all, except that I think it would be discourteous not to take any note whatever of arguments sincerely and eloquently and lucidly offered not by people who want to retain any kind of execution at any cost rather than lose it all, but by those who are sincerely in favour of its abolition. I recognise that this matter has given them very great anxiety and that their arguments deserve a reply, if I may put it that way without seeming to be patronising.

I am sure that, having said that, the Committee will forgive me for saying, also, that I must be absolutely frank about this.

It may sound a strong and possibly offensive thing to say— which I do not intend—but this Amendment is the greatest nonsense in the world. We are not constructing a kind of logical crossword puzzle in which everything has its clue and everything fits into its proper place. That is not the purpose of the criminal law. The purpose of the criminal law is to deal as effectively as possible with known mischiefs. The purpose of the criminal law is to find out what are the actual mischiefs committed in a society, what are the real dangers, and to have a penal law which is humane, enlightened but, nevertheless, effective to prevent them.

What has that got to do with an offence which everybody concedes has not happened within living memory? How can anyone who believes that the death penalty ought not to exist in this country say, "Let us retain it, with the black cap and with the awe and sensationalism and the gallows and the executioner and the rope, to deal with a purely imaginary danger." It is a purely imaginary danger because it has never happened.

Sir H. Lucas-Tooth

It is only fair to put this point to the hon. Gentleman. Would he not argue, if there were a number of such cases, that these would show that the death penalty was not a deterrent? He cannot have it both ways.

Mr. Silverman

The hon. Gentleman would have been better advised to leave the argument where he had left it. There are times and occasions and subjects where a slick debating point is worth making, but 1 do not think that that is one of those times. I am dealing with the situation as it is, not with the arguments 1 might deduce, or the opinion I might form, in totally different circumstances. It is common ground between us that this crime which we are to deter is a crime which nobody has ever committed in this or in any other country.

Mr. Paget

Or in any other abolitionist country.

Mr. Silverman

No, or in any retentionist country. It is said that it would be committed if there were people in prison in such circumstances that they were beyond hope. We have had such people. There are people now detained in Broadmoor who have no possible hope of release at any time owing to their infirmity. This crime has never been committed in Broadmoor, either.

It is said, "Oh, but there will be a new kind of murder." The right hon. and gallant Gentleman the Home Secretary repeated, but with even greater caution, the argument he used on a previous occasion. He said, "Ah, yes, but you must remember that nowadays we reprieve the better kind of murderer and hang the worst kind of murderer, and that people who, up to now, have been reprieved have served short sentences and are of a totally different type".

That, too, is the greatest nonsense in the world. I asked the right hon. and gallant Gentleman whether he had taken the opportunity of seeking to check the tentative and provisional figures which he gave us on the occasion when he used that argument. He did not answer properly, but said that he saw no reason to change his view. The hon. Baronet the Member for Hendon, South (Sir H. Lucas-Tooth) knows the answer. When he moved his previous Amendment the hon. Baronet quoted from a pamphlet which many of us have. In it every case for five years from 1948 to 1953, in which a convicted murderer had been executed, has been examined on its own merits. I do not know whether the Home Secretary has read that pamphlet. If he has done so I think he ought to be ashamed of the answer he gave. If the right hon. and gallant Gentleman has not, he should read it before ever again he commits himself to making a public statement about this matter.

8.15 p.m.

If there is one thing that is clear beyond any reasonable controversy from reading this pamphlet it is that it is impossible to gather from it any principle which has distinguished those convicted murderers who have been executed from those who have not. It is not true to say that the people who have been executed are of a different kind from those who were reprieved in such a way that it must be supposed that all those are of a type who, if they had been reprieved, would have had to be kept in prison for the rest of their lives. There is not a word of truth in it, and the Home Secretary either knows or ought to know it, and he should withdraw the argument based upon it.

Mr. J. Paton

May I remind my hon. Friend that a former Home Secretary of great authority, Lord Waverley—or, as he then was, Sir John Anderson—when asked a specific question upon this point by the Select Committee, in 1930, said that the Home Office anticipated no special difficulty in the handling of such persons?

Mr. Silverman

My hon. Friend is right and I am grateful to him for reminding me of that fact.

I would add that the Home Office gave evidence to the Royal Commission on this very point to the effect that, if the death penalty were abolished, the number of cases in which it would be necessary to keep prisoners in goal for very long periods would be exceedingly small. That statement is in complete conflict with what the Home Secretary told the House on the last occasion and told the Committee this evening.

When we were debating this Bill in principle on Second Reading, what was one of the arguments advanced against us so frequently and with such eloquence? It was said, was it not, "You must not abolish the death penalty, because it is more humane than a long period of hopeless imprisonment"? If that is so, what becomes of the argument that is being advanced now? I have nothing to say to those who want to retain the death penalty. They are logical and consistent and, no doubt, as sincere as the rest of us. They are entitled to vote for any exception they can get. I have no quarrel with that because they are acting consistently in accordance with their beliefs.

However, I say to hon. and right hon. Members, who believe as I do, that this is a barbarous anachronism which we ought to get rid of as quickly as possible, and not retain, with all its lurid paraphernalia, in order to protect society against a purely fictional and imaginary mischief. I join in the appeal made by my hon. Friend the Member for Oldham. West (Mr. Hale) to the hon. Baronet—do not persist in this.

I can understand the case for some exceptions if the exceptions can be justified. I understood the case of the hon. Baronet on the previous Amendment. I did not agree with it, but I said, and I repeat, that the hon. Baronet put it most persuasively. Undoubtedly, there was a case to be made for that Amendment, but no case can be made for this one. Indeed, I believe that the hon. Baronet would not have tried to make it except that, having served in the Home Office, he has a kind of hangover of Departmental obscurantism.

Mr. Nigel Nicolson (Bournemouth, East and Christchurch)

In my case, the appeal by the hon. Member for Nelson and Colne (Mr. S. Silverman) does not fall on deaf ears. I believe most sincerely that the Amendment should be resisted. There is a danger that it might be carried, and that is why I make no apology, after the promoter of the Bill has spoken, for giving my reasons for resisting it.

I can understand the Home Secretary approving of the Amendment. He has consistently told the Committee that he dislikes the idea of abolition, and it is natural that he should support any Amendment which attempts to limit the impact of that decision. However, I cannot understand the attitude of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth). He voted for the principle of the Bill, and he is now asking the Committee to weaken the principle for a totally unnecessary reason.

On the previous Amendment, my right hon. and gallant Friend was able to argue that there had been acceptance by the police because the provision protected not merely the policeman but the general public. He has not been able to use that argument, and cannot do so, on this Amendment. It does not protect the general public. It protects merely prison officers and the fellow-criminals of murderers. Moreover, it gives an advantage to the two latter categories which it does not give to the public at large. When murderers are eventually released, they will be absolved by the Amendment from the full rigours, and if on release they commit a second murder, they will not be liable to hanging.

Mr. Rees-Davies

While that may be true, my hon. Friend must give credence to the fact that the next Amendment to be called will probably be one which deals with the mass killer.

Mr. Nicolson

It is possible that the next Amendment will not be carried, though this one may be. It is possible that, when the Bill goes upon the Statute Book, the two categories, warders and criminals, will be the only people in the country protected by the death penalty against the possibility of murder.

That appears to me to be illogical, for the following reason. I always understood that the main argument for maintaining the death penalty was that murder was different in not only degree but kind from every other crime and therefore it deserved a penalty which was different in kind and not merely in degree from every other penalty. In this case, we shall have a crime, the murder of a prison officer, which is not in any way at all different in kind from other forms of murder, and yet it will carry a penalty which is totally different in kind, namely, death, the other cases carrying only the penalty of imprisonment.

Mr. F. M. Bennett

My hon. Friend the Member for East Bournemouth and Christchurch (Mr. N. Nicolson) has been at pains to try to destroy the arguments of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth). My hon. Friend the Member for East Bournemouth and Christchurch appears to take exception to some special protection being accorded to prison officers and a special penalty being attached to the murderers of prison officers. Some time ago we discussed the retention of flogging in the case of attacks on prison officers, and I do not think it was then felt that there was anything illogical about a special penalty being maintained for people who attack prison officers. The principle is exactly the same in the case of this Amendment.

Mr. Nicolson

It is true that I am trying to destroy the argument put up by my hon. Friend the Member for Hendon, South. That is the whole purpose of debate. I think he was wrong in his arguments on two grounds. I have dealt only with one ground. I think he was illogical. I would also say that I think that his proposal was unnecessary.

To complete the first half of the argument, let us suppose that we had simultaneously before the country a case where a brutal warder had been murdered by a prisoner and a case in which an innocent child had been murdered by a thug. The murderer of the brutal warder would be hanged, but the thug would not. I wonder whether the public conscience or sense of logic would stand up to that comparison. I am not saying that it is justifiable to murder a brutal warder. All I am putting to the Committee is that the two crimes are not different in kind or degree. If anything, the second would be the more brutal of the two, and yet it would carry the less brutal punishment.

Mr. Turner-Samuels

The hon. Gentleman specified a brutal warder. If the killing resulted from a warder's brutality, surely the charge would be reduced to manslaughter. There is no comparison between the two cases.

Mr. Nicolson

The hon. and learned Member for Gloucester (Mr. Turner-Samuels) is a lawyer and I am not, but at least I am sufficiently versed in the law to know that one can be consistently cruel or brutal over years but not in a physical way which justifies a charge of manslaughter.

I would complete my argument as follows. It has been put to us by the Home Secretary and several other hon.

Members that, if there is no further penalty, we may encourage murder among murderers who are serving long sentences in prison. My answer to that is that the threat of hanging is by no means the only, or indeed the chief, deterrent to a man in that position. As my hon. Friend the Member for Hendon, South mentioned, the chief deterrent is that he is bound to be found out. He cannot avoid detection. Most murderers commit their crime in the expectation not that they will get away with it if they are discovered, but that they will not be discovered. The main deterrent in a prison is that one is bound to have the crime brought home to one.

Secondly, in prison the opportunities are infinitely less. One may be able to get hold of a weapon, though not a gun or a knife. Occasionally, opportunities may occur to do away with one's cruel warder in a dark corner, but, generally speaking, one is under closer supervision than a man is in any other circumstances. So the opportunities are far fewer.

The real deterrent against a murderer committing a second crime is not a physical deterrent, but a moral deterrent. He is not so much frightened of hanging, as frightened of murder, because he has committed one. The reason that most people do not go around committing murders is not because they are frightened of hanging, or any other punishment, but because they have a revulsion against taking human life. That argument applies even more strongly, although paradoxically, to the man who has already done so.

Question put, That those words be there inserted:—

The Committee divided: Ayes 198, Noes 194.

Eden, Rt. Hn Sir A.(Warwick&L'm'tn) Joseph, Sir Keith Rawlinson, Peter
Eden, J. B. (Bournemouth, West) Joynson-Hicks, Hon. Sir Lancelot Redmayne, M.
Errington, Sir Eric Kerby, Capt. H. B. Rees-Davies, W. R.
Evans, Stanley (Wednesbury) Kimball, M. Ridsdale, J. E.
Farey-Jones, F, W. King, Dr. H. M. Rippon, A. G. F.
Finlay, Graeme- Lambert, Hon. G. Robertson, Sir David
Fisher, Nigel Lambton, Viscount Rodgers, John (Sevenoaks)
Fleetwood-Hesketh, R. F. Lancaster, Col. C. G. Roper, Sir Harold
Fraser Sir Ian (M'cmbe & Lonsdale) Leavey, J. A. Ropner, Col. Sir Leonard
Freeth, D. K. Leburn, W. G. Russell, R. S.
Galbraith, Hon. T. G. D. Legh, Hon. Peter (Petersfield) Schofield, Lt.-Col. W.
George, J. C. (Pollok) Lindsay, Hon. James (Devon, N.) Sharpies, R. C.
Gibson-Watt, D. Lindsay Martin (Solihull) Simon, J. E. S. (Middlesbrough, w.)
Glover, D Lloyd, MaJ. Sir Guy (Renfrew, E.) Smithers, Peter (Winchester)
Godber, J. B. Lloyd-George, Maj, Rt. Hon, G. Speir, R. M.
Gomme-Duncan, Col. Sir Alan Logan, D. G. Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)
Gough, C. F. H. Longden, Gilbert Stanley, Capt. Hon. Richard
Gower, H. R. Lucas, Sir Jocelyn (Portsmouth, S.) Stevens, Geoffrey
Graham, Sir Fergus Mackie, J. H. (Galloway) Steward, Harold (Stockport, S.)
Grant, W. (Woodside) McLaughlin, Mrs. P. Steward, Sir William (Woolwich, W.)
Grant-Ferris, Wg Cdr. R.(Nantwich) Maitland, Hon. Patrick (Lanark) Stoddart-Scott, Col. M.
Green, A Manningham-Buller, Rt. Hn. Sir R. Stuart, Rt. Hon. James (Moray)
Gresham Cooke, R Markham, Major Sir Frank Studholme, H. G.
Grimston, Hon. John (St. Albans) Marples, A. E. Summers, G. S. (Aylesbury)
Grimston, Sir Robert (Westbury) Marshall, Douglas Sumner, W. D. M. (Orpington)
Grosvenor, Lt.-Col. R. G. Mawby, R. L. Taylor, Sir Charles (Eastbourne)
Gurden, Harlod Maydon, Lt.-Comdr, S. L. C. Taylor, William (Bradford, N.)
Harris, Frederic (Croydon, N.W.) Milligan, Rt. Hon. W. R. Thomas, Leslie (Canterbury)
Harrison, A. B. C. (Maldon) Molson, A. H. E. Thompson, Kenneth (Walton)
Harrision, col. J. H. (Eye) Monckton, Rt. Hon. Sir Walter Thompson, Lt.-Cdr. R.(Croydon, S.)
Heald, Rt. Hon. Sir Lionel Moody, A. S. Thornton-Kemsley, C. N.
Heath, Rt. Hon. E. R. G. Moore, Sir Thomas Tiley, A. (Bradford, W.)
Henderson, John (Cathcart) Morrison, John (Salisbury) Turner-Samuels, M.
Hicks-Beach, Maj. W.W. Mott-Radclyffe, C. E. Tweedsmuir, Lady
hill, Mrs. E. (Wythenshawe) Nabarro, G. D. N. Vaughan-Morgan, J. K
Hill, John (s. Norfolk) Nairn, D. L. S. Vosper, D. F.
Hobson, C. R. Neave, Airey Wakefield, Edward (Derbyshire, W.)
Horsbrugh, Rt. Hon. Dame Florence Nicholls, Harmar Wall, Major Patrick
Howard, John (test) Nicholson, Godfrey (Farnham) Ward, Hon. George (Worcester)
Hudson, sir Austin (Lewisham, N.) Nield, Basil (Chester) Ward, Dame Irene (Tynemouth)
Hudson, W. R. A. (Hull, N) Oakshott, H. D. Waterhouse, Capt. Rt. Hon. C.
Hughes, Hallett, vice-Admiral J. O'Neill, Hn. Phelim (Co. Antrim, N.) Wells, Percy (Faversham)
Hughes young, M. H C. Osborne, C. Whitelaw, W.S.I.(Penrith & Border)
Hurd, A. R. Pannell, N. A. (Kirkdale) Wills, G. (Bridgwater)
Hutchison, sir Ian Clark (E'b'gh,w.) Partridge, E. Wilson, Geoffrey (Truro)
Hylton-Foster, sir H. B. H. Pickthorn, K. W. M. Wood, Hon. R.
Irvine, Bryant Godman (Rye) Pitt, Miss E. M. Woollam, John Victor
Jenkins, Robert (Dulwich) Pott, H. P.
Johnson Dr. Donald(Carlisle) Price, Philips (Gloucestershire, W.) TELLERS FOR THE AYES:
Johnson, Eric (Blackley) Profumo, J. D. Sir James Hutchison and
Jones, Rt. Hon. Aubrey (Hall Green) Raikes, Sir Victor Sir Hugh Lucas-Tooth.
Ainsley, J. W. Collick, P. H. (Birkenhead) Garner-Evans, E. H.
Albu, A. H. Collins, V. J.(Shoreditch & Finsbury) Gibson, C. W.
Allaun, Frank (Salford, E.) Cove, W. G. Gordon Walker, Rt. Hon. P. C.
Allen, Arthur (Bosworth) Craddock, George (Bradford, S.) Grenfell, Rt. Hon. D. R.
Allen, Scholefield (Crewe) Cronin, J. D. Grey, C. F.
Astor, Hon. J. J. Crossman, R. H. S. Griffiths, David (Rother valley)
Bacon, Miss Alice Cullen, Mrs. A. Griffiths, Rt. Hon. James (Llanelly)
Balfour, A. Daines, P. Hale, Leslie
Baxter, Sir Beverley Dalton, Rt. Hon. H. Hamilton, W. W.
Bence, C. R. (Dunbartonshire, E.) Davies. Rt. Hon. Clement (Montgomery) Hannan, W.
Benn, Hn. Wedgwood (Bristol, S.E.) Davies, Ernest (Enfield, E.) Harris, Reader (Heston)
Benson, G. Davies, Harold (Leek) Hastings, S.
Beswick, F. Davies, Stephen (Merthyr) Hayman, F. H.
Bevan, Rt. Hon. A. (Ebbw Vale) Deer, C. Henderson, Rt. Hn. A. (Rwly Regie)
Boardman, H. de Freitas, Geoffrey Hinchingbrooke, Viscount
Bottomley, Rt. Hon. A. G. Delargy, H. J. Holmes, Horace
Bowden, H. W. (Leicester, S.W.) Dodds, N. N. Holt, A. F.
Bowen, E. R. (Cardigan) Dugdale, Rt. Hn. John (W. Brmwch) Houghton, Douglas
Bowles, F. G. Ede, Rt. Hon. J. C. Howell, Charles (Perry Barr)
Brockway, A. F. Edelman, M. Howell, Denis (All Saints)
Brown, Thomas (Ince) Edwards, Rt. Hon. John (Brighouse) Hughes, Emrys (S. Ayrshire)
Butler, Herbert (Hackney, C.) Edwards, Rt. Hon. Ness (Caerphilly) Hunter, A. E.
Butler, Mrs. Joyce (Wood Green) Edwards, Robert (Bilston) Hynd, H. (Accrington)
Callaghan, L. J. Evans, Albert (Islington, S.W.) Irvine, A. J. (Edge Hill)
Castle, Mrs. B. A. Evans, Edward (Lowestoft) Irving, s. (Dartford)
Champion, A. J. Fernyhough, E. Isaacs, Rt. Hon. G. A.
Chapman, W. D. Finch, H. J. Jay, Rt. Hon. D. P. T.
Chetwynd, G-R. Forman, J. C. Jeger, George (Goole)
Clunie, J. Fraser, Thomas (Hamilton) Jeger, Mrs. Lena(Holbn & St. Pencs, S.)
Jenkins, Roy (Stechford) Oram, A. E. Stokes, Rt. Hon. R. R. (Ipswich)
Johnson, Howard (Kemptown) Oswald, T. Stones, W. (Consett)
Johnson, James (Rugby) Owen, W. J. Strachey, Rt. Hon. J.
Jones, Rt. Hon. A. Creech(Wakefield) Paget, R. T. Stross, Dr. Barnett (Stoke-on-Trent, C.)
Jones, David (The Hartlepools) Paling, Rt. Hon. W. (Dearne Valley) Summerskill, Rt. Hon. E.
Jones, Elwyn (W. Ham, S.) Paling, Will T. (Dewsbury) Sylvester, G. O.
Jones, J. Idwal (Wrexham) Pargiter, G. A. Taylor, Bernard (Mansfield)
Jones, T. W. (Merioneth) Parker, J. Taylor, John (West Lothian)
Keegan, D. Parkin, B. T. Thomas, P. J. M. (Conway)
Kenyon, C. Paton, J. Thomson, George (Dundee, E.)
Key, Rt. Hon. C. W. Pilkington, Capt. R. A. Thornton, E.
Kirk, P. M. Pitman, I. J. Ungoed-Thomas, Sir Lynn
Lawson, G. M. Popplewell, E. Usborne, H. C.
Lee, Frederick (Newton) Price, J. T. (Westhoughton) Viant, S. P.
Lee, Miss Jennie (Cannock) Probert, A. R. Vickers, Miss J. H.
Lever, Harold (Cheetham) Proctor, W. T. Wade, D. W.
Lindgren, C. S. Pryde, D. J. Warbey, W. N.
Mabon, Dr. J. Dickson Pursey, Cmdr. H. Watkins, T. E.
MacColl, J. E. Rankin, John Weitzman, D.
McInnes, J. Redhead, E. C. Wells, William (Walsall, N.)
McKay, John (Wallsend) Reeves, J. Wheeldon, W. E.
McLeavy, Frank Roberts, Goronwy (Caernarvon) White, Mrs. Eirene (E. Flint)
MacPherson, Malcolm (Stirling) Ross, William White, Henry (Derbyshire, N.E.)
Maddan, Martin Shinwell, Rt. Hon. E. Wigg, George
Mahon, Simon Short, E. W. Wilkins, W. A.
Mallalieu, J. P. W. (Huddersfd, E.) Silverman, Julius (Aston) Willey, Frederick
Mathew, R, Silverman, Sydney (Nelson) Williams, W. T. (Barons Court)
Maude, Angus Simmons, C. J. (Brlerley Hill) Willis, Eustace (Edinburgh, E.)
Mitchison, G. R. Skeffington, A. M. Wilson, Rt. Hon. Harold (Huyton)
Monslow, W. Slater, Mrs. H. (Stoke, N.) Woof, R. E.
Mort, D. L. Slater, j. (Sedgefield) Yates, V. (Ladywood)
Moss, R. Smith, Ellis (Stoke, S.) Younger, Rt. Hon. K.
Moyle, A. Snow, J. W. Zilliacus, K.
Mulley, F. W. Sparks, J. A.
Nicolson, N. (B'n'm'th, E. & Chr'ch) Spearman, A. C. M. TELLERS FOR THE NOES:
Noel-Baker. Francis (Swindon) Steele, T. Mr. Kenneth Robinson and
Oliver, G. H. Stewart, Michael (Fulham) Mr. Montgomery Hyde.
Sir R. Grimston

I beg to move, in page 1, line 9, at the end to insert: Provided that this subsection shall not apply in any case in which the offender is convicted of murder where the death of the deceased was attributable to the use of any offensive weapon. I say at the outset that this is a much wider Amendment than the ones we have been discussing. I do not wish to return to a number of the rather broader arguments which have been adumbrated in the previous discussion, but I wish to say something again about deterrence. I am one of those who have opposed this Bill throughout, and I still oppose it because 1 believe the death penalty to be a unique deterrent. In that connection, I must refer to an intervention by the hon. Member for Nelson and Colne (Mr. S. Silverman) during the debate on Monday. I think it very revealing on the matter of deterrence. The House was discussing Cyprus, and my right hon. Friend the Secretary of State for the Colonies, in his closing speech, was referring to the executions which have recently taken place in Cyprus. At one point the hon. Member for Nelson and Colne interrupted my right hon. Friend and said: Without dissenting in the least from the general proposition or statement on the position laid down in 1947, may I ask the right hon. Gentleman whether he can explain to us whether, among the considerations which the Governor and he himself took into account in these cases, that is when they were considering the question of a reprieve— there were included these two points? I need not refer to the first point, because it is not relevant. But the hon. Member went on: In the second case, whether the man who was convicted under the Regulations was not convicted of murder at all; whether in fact his offence was committed on the Monday, and that the offence was made capital by the Regulations less than forty—eight hours before, on the Saturday, and that he did not know that the offence had been made a capital offence? I am only asking these two points."—[OFFICIAL REPORT, 14th May, 1956; Vol. 552, c. 1749–50.] The only inference which one can draw from that intervention, which I think was very revealing, is that the hon. Gentleman himself thought that that man might have been affected and might not have committed a crime had he known that it was a capital offence—

Mr. S. Silverman


Sir R. Grimston

I will give way to the hon. Gentleman in a moment.

That is the only inference which can be drawn from that interjection, and I say that, perhaps unwittingly and through an interruption, the hon. Gentleman has revealed that somewhere in his subconscious mind is still the idea that capital punishment is a deterrent.

8.45 p.m.

Mr. Silverman

I am much obliged for the courtesy of the hon. Member in giving way. I intervene to assure him that if he drew any such inference he would be wholly wrong. The purpose of my intervention on that occasion was to draw attention to the well-known juridical principle that we do not apply retroactive penalties in the criminal law.

Mr. Hale

If the hon. Member for Westbury (Sir R. Grimston) will allow me to follow the point, which is important, is he not aware that during the war there was a lot of litigation which depended on arguments in the Court of Appeal as to whether an offence was under a regulation which made the penalty £100, or under a new regulation which doubled the penalty and which had recently been passed? That was a constant argument in the Law Courts, and it was never concerned with fear of the penalty but with the right of the citizen to know the law.

The Deputy-Chairman (Sir Rhys Hopkin Morris)

No Question has yet been proposed.

Mr. Hale

With great respect, Sir Rhys, I have not finished my intervention, but with very great respect to the Chair and great appreciation of the courtesy I receive, I am still human enough to resent suppression on a 30 word intervention. With the greatest respect, the hon. Member for Westbury was putting a point to my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). It was a point which has received considerable publicity in the Press, the suggestion that because a man had been condemned under an Act of which he had no knowledge he was deprived of a principle that no man should be criminally responsible for laws that he had no chance of knowing.

The Deputy-Chairman

I have not the slightest desire to suppress the hon. Member, and I am not objecting that his remarks are not relevant to the issue, but so far no Question has been proposed for the Committee to debate.

Sir R. Grimston

No doubt the hon. Member for Oldham, West (Mr. Hale) will have an opportunity of making a speech later. I prefer him not to do so in the middle of my speech. The Committee must judge, and if the hon. Member for Nelson and Colne says that that was not in his mind, I must confess that when the interruption was made a great many hon. Members who were sitting near me at once felt that it was evidently an inadvertent admission that there is still some deterrent left in the capital sentence.

Mr. Silverman

As the hon. Members who were surrounding the hon. Member for Westbury (Sir R. Grimston) at the time are not here now and have not heard my explanation, perhaps the hon. Member will take the earliest opportunity of acquainting them of it.

Sir R. Grimston

HANSARD is available—

Mr. Hale

On a point of order, Sir Rhys. I respectfully seek your guidance as to why it is out of order for me to interrupt the hon. Member for Westbury when there is no Question before the House, but apparently in order for my hon. Friend the Member for Nelson and Colne to do it so ably twice?

The Deputy-Chairman

I am only seeking to carry out the rules. The rules are quite clear. Only when a Question has been proposed can any intervention be made, except for a personal explanation, and as this is the first speech in the debate, the hon. Member for Oldham, West (Mr. Hale) should wait until the Question has been proposed from the Chair.

Sir R. Grimston

This Amendment, as I was saying at the commencement of my remarks, is much wider and covers assassination, terrorism and the rest. I must say I feel that what I am going to say needs to be said in this Committee because I am convinced among other things that the majority of the public outside are not in support of this Bill.

I feel also that in these times it is not without the bounds of possibility that terrorism of the nature which is being seen in Cyprus might perhaps in the furtherance of the case being fought in Cyprus be transferred to this country.[HON. MEMBERS: "Oh".] Certainly, it is within the bounds of possibility. I would go further and say that if it can be done in the absence of the death penalty here that would be an added inducement to transfer that terrorism to this country. If that is done, I am perfectly certain what the reaction of the public would be. It would be an instant demand that this Bill should be thrown out. I think that needs to be said, and I believe that the public need to be made aware of what may be one of the consequences of this Bill unless this Amendment is carried. I believe that this is an added reason for this Amendment being accepted by the Committee.

There are other cases of the sort of thing against which this Amendment is designed to protect the public. A short while ago we read in the newspapers that a bomb had been planted in an aeroplane which was to carry some of our troops, their wives and children home to this country from Cyprus. By the grace of God the thing was mistimed, or there was a delay in the departure of the plane, and the explosion took place before the aeroplane had left the ground. There would be a tremendous public reaction at the thought that this kind of thing could be committed in future in this country in the furtherance of a political campaign and that the most that anybody who was caught would get was about nine years in prison, which is to be the effect of this Bill. There was a case of a similar sort in America.

I draw attention to these things because there are certain people who have made up their minds that this Bill shall go through and that all these risks shall be taken. I am not supposing that this Amendment will be carried by a majority of the Committee, having regard to the fact that a previous Amendment on a much narrower point was lost, but I believe these things need to be said. I believe that, as this Bill goes on through its various stages, the public will realise some of the consequences that may follow from it, and that there will be a mounting public opinion which will express itself against the Bill going through in its present form. For these reasons, and particularly in regard to the matters which I have mentioned, I commend this Amendment to the Committee.

Mr. S. Silverman

Perhaps I had better indicate to the Committee at once the view which I and those who support the Bill would take of this Amendment. I do not think that the hon. Member for Westbury (Sir R. Grimston) will be very surprised to hear that we cannot accept it. He may think that it was necessary to state again the reasons which he gave for his Amendment, which are exactly the same reasons that were given by himself and a great many of his hon. Friends for opposing the Second Reading of the Bill and for opposing the whole principle which the House has so far accepted.

We could not possibly justify this Amendment without justifying a great many others, which would make nonsense of the Bill, and I am sure the hon. Member agrees with that. If we are to say that the use of an offensive weapon shall be capital, we are bound to say that the use of poison shall be capital, and that we ought to have said that a great many other things which we have said shall not be capital ought, nevertheless, to have been capital. I do not propose, and I do not think the Committee would wish me, to go on repeating the arguments pro and con on every Amendment which raises the principle and I think it is sufficient to say that, for the reasons which led me to propose this Bill in the first place I cannot accept the hon. Gentleman's arguments or this Amendment.

Mr. H. Hynd (Accrington)

I cannot understand why this Amendment is not regarded as a direct negative to the Bill, because there is no definition of an offensive weapon. No doubt there is a legal definition of an offensive weapon, but is the hon. Member for Westbury (Sir R. Grimston) seriously saying that anyone can push a person over a cliff and murder him in that way, or give poison to a person, or strangle someone or do anything else like that, and that it is to be regarded as much less serious than hitting hint with a stick or killing him with any other offensive weapon? I do not see the logic of it.

The hon. Member mentioned the case of the airliner in which a bomb had been planted. I would remind him of another case, in which the fuel of an airliner had been tampered with. Is he suggesting that anyone who cared to destroy an airliner full of passengers by tampering with the fuel should not be hanged, but that anyone who planted a bomb in an airliner should be hanged? The whole thing does not make sense, and I think he would be well advised to withdraw it.

Mr. G. M. Thomson (Dundee, East)

I want to support my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). It seems to me that if the Amendment were carried it is so wide that it would make nonsense of the Bill.

I want briefly to draw the attention of the hon. Member for Westbury (Sir R. Grimston), and those who support him, to the implications of the Amendment. We had a rare intervention earlier from the Secretary of State for Scotland, and I want to quote the advice given to the Unionist Members in Scotland on this matter by theGlasgow Herald a short time ago. The Glasgow Herald is one of the most responsible newspapers in Scotland. It is a Conservative newspaper, and it was originally opposed to the Bill. Following the decision of the House on the Bill, it made these comments What must be borne in mind is the undesirability of massive amendment for amendment's sake, which would not improve the Bill but cripple it and which would thereby nullify an opinion which the House has freely expressed. This is relevant to the Amendment. It went on: The impression of Parliamentary manoeuvre, of defeating the Measure by the back door, is repugnant to public opinion in a matter of this kind. It would be no service either to abolition or retention to produce a Bill which might be not merely inconclusive hut unworkable. The decision ought to be clear, one way or the other". I submit that the Amendment would make the Bill unworkable.

Mr. Rees-Davies

I want to speak in support of the Amendment. Recent events in this country and throughout the world have shown that the Bill is before the Committee at a most unfortunate moment. That does not mean, the Bill having been given a Second Reading, that the Committee can at this stage oppose it, but it means that we are bound to limit the Bill severely by the exclusions, of which this Amendment is one.

The Amendment is not, I frankly admit, the best drafted of those on the Notice Paper, but the principle contained in it is clear enough, and it is to exclude from the ambit of the Bill those murders which are committed by an offensive weapon. It is concerned particularly with the bomb outrage and that class of murder. I am not saying that it may not be more widely construed, but if its main purpose is to deal with that type of murder I want to speak about that type of murder.

If, in this country, we permit to pass through the Committee a Bill which excludes the death penalty in all its phases, I think there is a very strong case for the Colonies saying that the same situation must apply overseas. I can think of nothing which would be more unfortunate at present than that the death penalty should be abolished in British Colonies and such territories as Cyprus and other territories overseas.

Mr. Wedgwood Bean (Bristol, South-East)


Mr. Rees-Davies

I will give way in a moment. It would be most unfortunate if bomb outrages were not the subject of the proper penalty, and in my judgment the only adequate penalty in such cases would be the death penalty.

The theme which I want to develop for a moment is that the Committee must bear in mind the international repercussions which the Bill and the Amendment have at the present time This Amendment is designed to deal, even if it is not very well drafted, with the bomb outrage. Therefore, if we are to pass this Bill through in its present state, where such an outrage can be committed in this country and the death penalty is removed, I believe that we shall then have to follow that up in the other territories.

9.0 p.m.

Mr. Hale

The Amendment deals with offensive weapons. The hon. Gentleman has related his argument entirely to bombs. He is himself a lawyer and knows perfectly well the various definitions of offensive weapons given by the courts. They include a walking stick, a toy pistol in housebreaking cases, and a whole series of things which no human being would himself describe as a weapon under any circumstances. How can the hon. Gentleman relate this to bomb outrages in Cyprus or by the I.R.A.?

Mr. Rees-Davies

The greater includes the lesser, and in this case it is plain that my bombs are amply covered by this compendious Amendment. Therefore, I wish to address my argument on this Amendment which I have already indicated is not drafted perhaps in the way that I should like to draft it myself, but, none the less, is a suitable vehicle for the argument which I want to pose to the Committee. It is all the more important, having regard to the reactionary attitude adopted by the promoter of the Bill when we discussed the question of the Armed Forces and their exclusion. The hon. Gentleman refused to accept the Amendment which I then moved to exclude members of the Armed Forces overseas. The relevance of that is that if, in this country, we are to abolish the death penalty in cases where offensive weapons are used—certainly in the case of bombs and weapons of that class—then, as I say, it will have this unfortunate reaction overseas.

I now turn to the other aspect of the Amendment, and that is on its narrow context. The offensive weapon in this case would have to be a weapon which the jury found to be an offensive weapon. The proviso, therefore, seeks to exclude a murder committed by somebody using a weapon of that nature. I agree that it could be a shillelagh or, in certain circumstances, a loaded walking stick. It could be a club. Therefore, it could cover a wide class of cases but that is exactly what the proposer of this Amendment desires to include— a wide range of cases where such an offensive weapon is used.

In those circumstances, what my hon. Friend is really covering in this broad Amendment—and he has other Amendments designed to go with it—is also the case of the armed robber in a wider Amendment than that moved by my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) earlier today. It may be that if this Amendment were carried it would be suitable to table at a later stage a further Amendment which would deal with the doctrine of constructive malice in the case of accomplices who act in concert with armed robbers. But, as it stands, the basis of this Amendment is to cover the case where a weapon is used by a murderer for the purpose of some deliberate murder.

All I say about the Amendment is that though I concede that it goes a long way to defeating the objections which the promoter of the Bill has in mind, none the less it brings to the attention of the Committee—and some of the other Amendments do not—the importance of considering at present whether where bombs and other offensive weapons of that kind are used there should not be an exclusion. The Committee should not only bear in mind this Amendment, but also what is to be the attitude of the promoter of the Bill in due course towards the case of members of the Armed Forces overseas. At present, we do not know whether they are inside or outside the Bill. For those reasons, I commend this Amendment to hon. Members as one which might fairly command the support of those whom we now believe to be the majority of the Committee.

Sir Victor Raikes (Liverpool, Garston)

I am not in entire agreement with my hon. and learned Friend the Member for the Isle of Thanet (Mr. Rees-Davies) saying that the Amendment has been badly drafted. Personally, I think that my hon. Friend the Member for Westbury (Sir R. Grimston) drafted it quite as well as my hon. and learned Friend could have done, had he turned his mind to it. But that is by the way.

I do, however, very much agree with what my hon. and learned Friend said a moment or two ago about difficulties in the future operation of the Bill in its application to the situation in Cyprus or any other British Colony, unless we know precisely where we stand in the matter of offensive weapons. If this Bill should, by some misfortune, pass into law, I can imagine a situation arising where, if a member of, shall we say, the British Army in Cyprus used an offensive weapon to commit a robbery out there, he could not be subjected to capital punishment, whereas a Cypriot who used an offensive weapon would automatically be executed, or could be executed, as a result of such an act

I appreciate that the hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) has sat through this debate and given exhaustive attention to it, and he can be pardoned for his short absence, no doubt for refreshment. I rather hoped that he might have been converted to the principle of this Amendment, in view of the observations he made when interrupting the Colonial Secretary during the debate on Cyprus on Monday of this week. It is not without interest to notice what he said. I will just make this point in his absence, knowing that his interests are being very capably watched by the hon. Gentleman the Member for Oldham, West (Mr. Hale).

Mr. Hale

The point was made half an hour ago.

Sir V. Raikes

That may well be so; I will not say that I shall make it any better than my hon. Friend, but I will make it in a slightly different way— equally effectively, perhaps, but from a slightly different angle.

A short time ago I listened while the hon. Gentleman the Member for Nelson and Colne was talking about nonsense. He used the word "nonsense" in regard to the last Amendment several times.

The Deputy-Chairman

We have passed the last Amendment.

Sir V. Raikes

I admit, Sir Rhys, that I did slightly transgress just over the border for a moment. I will say that the hon. Gentleman for Nelson and Colne has recently used the word "nonsense" several times. I have a great respect for the ability of the hon. Gentleman. I am quite sure that when he made his interventions in the debate on Cyprus he was not talking nonsense when emphasising that it would, or might, be unfair and wrong, or at all events there was a possibility of injustice, if somebody who committed murder with an offensive weapon had not been aware at the time he committed the murder that it was a capital offence.

The hon. Gentleman will know that a mistake in law is no justification; but, if a mistake had been made through lack of knowledge of it being a capital offence at that time—so the hon. Gentleman's argument went—that, obviously, was to be taken into account—

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

On a point of order. May I ask your guidance, Sir Rhys? When does one invoke the rule against tedious repetition? We have heard every word of this before.

The Deputy-Chairman

I do not go so far as to say that it is tedious repetition, but tedious repetition does offend against the rule.

Sir V. Raikes

I shall bear that closely in mind, Sir Rhys.

Although I can claim that during the many years I have been in the House I have always been comparatively brief, I have heard something like tedious repetition from some of those who have interrupted me, although I have never challenged them on it even when they have spoken for three-quarters of an hour. However, I shall be only two minutes more. If the hon. and learned Member cannot bear it, he knows that there is always an alternative.

In view of the attitude of the hon. Member for Nelson and Colne that the knowledge of capital punishment could have an effect upon the action of a man who uses an offensive weapon, there is strong argument on my hon. Friend's Amendment in taking the view that, in certain circumstances, there is a deterrent effect in the knowledge that the use of an offensive weapon, in its widest sense, if effectively used, could still lead to hanging or to capital punishment in some form.

I shall not go further in tedious repetition. I assure the hon. Member for Stoke Newington and Hackney, North (Mr. Weitzman) that I have completed my observations on the Amendment, although he will hear me again. My hon. Friend has fulfilled a public duty in moving a rather wide Amendment, which has brought the question of the offensive weapon more clearly before the Committee. I am in favour of the discussion being widened because, as was said earlier today, it is rather unfair that certain instruments should be regarded as offensive whereas others are not. I hope that the Amendment will commend itself to at least as many hon. Members of the Committee as voted for the last Amendment. Whether it does or not, I am wholly in favour of it.

Amendment negatived.

9.15 p.m.

Mr. John Eden (Bournemouth, West)

I beg to move, in page 1, line 9, at the end to insert: Provided that this subsection shall not apply where the offender has been convicted of the murder of a child within the meaning of the Children and Young Persons Act, 1933. This Amendment concerns the murderers of children. Between 1900 and 1949 child murder came second in the order of precedence by numbers of the various categories of murder, and I think it is right that the Committee should consider the Bill in relation to the safety of the children of this country. There is no question of our trying to interfere with the Infanticide Act, which has already taken many cases from the group of death penalty murders, the case, for example, in which the mother kills her own child and where a child is killed under the age of 12 months. There is no question of our trying to interfere in any way with that Act.

In dealing with the Amendment, we should recognise what has taken place over the past years and recognise that we are dealing with a certain type of killer. Since 1849 there has been no case of the execution of a mother for the murder of her own child under the age of one year. Since 1899 there has been no case of the execution of a mother for the murder of her own child even though the child was over 12 months old. It is important we should recognise that, because we are not seeking to deal with the cases in which there may be thought by many to be exceptional grounds, and in which the mother kills her own child. I am concerned, in moving the Amendment, with the person who kills a child, who is not a member of its family, the person who perhaps kills because he has had sexual relations with the child.

I have here details of cases, which I shall not go into, but if anyone doubts the brutality of some of these crimes he has only to look up the references. Indeed, a few examples are to be found in the Report of the Royal Commission on Capital Punishment on page 323. There is listed one of a labourer who drowned his twelve years old niece who was pregnant by him. There is another of a labourer who caused the death of a girl aged 8 or 9 while in the act of raping or attempting to rape her. There are other cases here, some of recent origin, which may be within the memory of many hon. Members.

There was, for example, the case of Griffiths who took a child aged four from a hospital and raped her and then killed her by banging her head against a wall. There was the case of another man called Hill who took two children for no seeming reason and killed them both, knifing them viciously in the throat and inflicting a large number of wounds. There was the case of a man named Hall, in Halifax, who killed a child aged six years after enticing her away from her friends with whom she was playing.

I will not try to go into the details of these cases. Hon. Members who have studied this matter know perfectly well that these cases exist. I am concerned to ensure that, as far as we can have any possible control over them, circumstances will not be created in which these cases may increase in number. It is desirable that we should make a special category of murderers who from sheer brutality kill a small child.

No one today can have complete control over the activities of his or her children. They may be playing in the street or in a playground unaccompanied by parents or an adult. It happens too often that a man comes up to a child and invites it to go off for a ride in a car or to go round a corner to see some building and then commits this crime, not necessarily for sexual purposes. He may kill for no particular purpose whatsoever.

Mr. Paget

Does the hon. Member really imagine that that sort of man is sane enough to be deterred?

Mr. Eden

The three cases I have quoted, and quite a number of other cases referred to in the Report of the Royal Commission on Capital Punishment, were all cases in which there was no particular reason why the man should have attacked the child. A plea of insanity was brought forward in two of the cases. It was not proven. In each of the cases I have quoted the prisoner was hanged.

Mr. Edward Evans (Lowestoft)


The Deputy-Chairman

We are again beginning to debate a Question before it has been proposed from the Chair.

Mr. Eden

In each case the man concerned was ultimately hanged, even after an attempt was made to prove that he was insane. The appeals were overruled and the men were subsequently executed.

I cannot follow the argument that a man who murders a child should get off on the plea of insanity. There are too many attempts to carry the plea of insanity too far. People who wander around on the loose and are attracted to a child for some reason and then brutally put it to death are not worthy of much consideration for the crime which they have committed. If they have been through the normal course of the law and have been found guilty they should pay the final penalty for this crime. I hope, therefore, that the Committee will carry the Amendment, bearing in mind our responsibilities to the children and making quite certain that no action of ours in Committee will in any way endanger their lives.

Mr. S. Silverman

I hope the hon. Member will not think it any disrespect to his argument if I do not detain the Committee very long in answering him. What he is saying is, "Murders of children are horrible. Therefore let us hang the perpetrators." That, of course, is the exact Second Reading argument. Poisoners are horrible, sexual maniacs are horrible, murder is always horrible. After consideration, the House of Commons decided that the horror of the crime was not a sufficient reason for retaining the death penalty—I hope I have the attention of the hon. Gentleman? I am replying to the hon. Gentleman, so I am entitled to his attention. If the House of Commons has decided as a matter of principle that the justification for the death penalty, if there is one, is not related to the horror of the crime but to the power of the deterrents, and the House is not satisfied that criminals are deterred in that way, then there is no more reason why we should retain it for this horrible kind of crime than for many other horrible crimes. That is my answer to the hon. Gentleman.

I add one further sentence. I do not think that many hon. Members would accept his view that, as between a mother who murders her own child and a stranger who murders another child, the mother is the less guilty of the two. I should have thought it was the other way round.

Sir V. Raikes

I support the Amendment, but perhaps on slightly different grounds from those advanced by my hon. Friend the Member for Bournemouth, West (Mr. J. Eden). He drew a picture of the horrible thing which the child murder must always be. However, he did not deal with the deterrent aspect and so, of course, the hon. Member for Nelson and Colne (Mr. S. Silverman) took the opportunity, as he was entitled to do, of showing that the argument, as deployed, had been related to the horror of the crime and not to the deterrent effect on the criminal.

I must make it plain that I do not eliminate completely the doctrine of retribution. The type of child murder which I have in mind is where a child can be ill-treated, and steadily ill-treated, to the point when death comes. Today there are not a large number of cases in which parents have ill-treated their children to the degree of death, but there are a considerable number of cases, which are tending to increase, in which there is great cruelty to children. My own view is that those cases are likely to continue to increase so long as penalties are not properly exacted, as they could be under the existing law. But while it is not too difficult to show cruelty and to ill-treat a child over a considerable period of time—

The Deputy-Chairman

It appears to me that the hon. Member is now fairly wide of the Amendment.

Sir V. Raikes

I can bring myself back to the Amendment in one phrase, Sir Rhys, if I may complete this sentence. My point is that we have an increase of child cruelty not entirely tackled by the courts because it stops short of murder. Under the existing law, if a parent goes so far as deliberately to ill-treat a child up to the point of murder, he knows that this means the rope and not a £5 fine—the hon. and learned Member for Northampton (Mr. Paget) may snort like a buffalo, but I do not mind. After all, if he snorts at me, I can snort at him. Although he is a lawyer and he is very learned, he is not of necessity always correct in the interpretation he places on legal matters.

9.30 p.m.

I am entitled to argue that the very fact that at the present time the death penalty can be carried out for child murder is a reason why the ill-treatment of children often stops at gross ill-treatment and does not result in death. The removal of the death penalty for child murder —I am not at the moment dealing with sexual cases —might result in a number of very bad cases of child cruelty which occur throughout the country going a stage further and resulting in death. If one extra child were to die as a result of such ill-treatment because the Bill did not deal with the matter, the Bill would for that reason alone deserve the condemnation of the Committee.

My hon. Friend dealt mainly with sex crimes. I very much doubt whether in most instances of horrible sex murders of children the death penalty would be a deterrent. I appreciate that I may be sticking my neck out here. I think there are certain cases of murder, whether they concern children or women, which are so vile —

The Deputy-Chairman

The hon. Gentleman is now extending his argument about murder beyond the scope of the Amendment.

Sir V. Raikes

The Amendment, Sir Rhys, provides that persons who murder a child shall be liable to be hanged. I have argued that in the case of certain forms of child murder hanging is a deterrent. I am merely adding to that that it is right in the case of certain forms of child murder to maintain capital punishment so that the retributive act of the State can be a warning to the nation as a whole. I suggest that that is as much within the terms of the Amendment as was my earlier argument.

The Deputy-Chairman

The hon. Gentleman is in order in those remarks, but he bad extended his argument to cover women.

Sir V. Raikes

That was merely a matter of example, Sir Rhys, I thank you for having kept me, as you always do, so properly within the bounds of order.

My hon. Friend the Member for Bournemouth, West has rightly raised an issue which is tied up with deterrents and retribution. Apart from all else, public opinion would probably feel more bitter about the murderers of children being kept clear of capital punishment than about the murderers of warders in certain other circumstances. I say quite deliberately that child murder should remain a capital offence, and I sincerely hope that my hon. Friends will press this matter to a Division.

Mr. W. R. Rees-Davies

The Committee always listens with attention to a story which comes from direct experience and which has a profound effect upon it. I want to tell this story to the Committee, for yesterday I had the unenviable task of talking to Mr. and Mrs. Tricker. Mr. and Mrs. Tricker had one child, a little girl aged four. About ten days ago, that little girl was foully murdered and thrown into a canal near Harlesden, after having been brutally interfered with.

This is how the parents told their story. The husband, who is a man of about 30, went to work at about eight in the morning. He works in a factory. The wife went off to work, having arranged to leave her little daughter in the care of her mother-in-law at home, where she was carefully looked after until lunch-time when the mother very properly returned to give her her lunch. Having got her her lunch, the mother took her right back to within a few yards of the house, where she left her to play for a very short while before going back to her grandmother.

The parents returned at about 6.30 that evening. Nobody knew where the child was and later that night they were told that their little girl had been murdered, having been sexually interfered with and thrown into a canal. There are certain classes of case, particularly where one is dealing with little children, where I am for some retribution, subject to the laws of insanity. I have already addressed the Committee about the subject, upon which I have had a fair amount of experience, of the necessity for improving the laws of insanity. I still maintain—

Mr. Herbert Butler (Hackney, Central)

On a point of order. Has the Tricker family consulted the hon. Member professionally in this matter?

The Deputy-Chairman

An hon. Member is himself responsible for what he says.

Mr. Rees-Davies

I will deal, if I may—

Mr. Paget

Further to that point of order. Is this mattersub judice, Sir Rhys?

The Deputy-Chairman

I do not know.

Mr. Rees-Davies

That is the story of the people. I need hardly have said—

Mr. Paget

Is itsub judice?

Mr. S. Silverman

How does the hon. Member for the Isle of Thanet (Mr. Rees-Davies) know that it is true?

Mr. Paget

Is not this matter subject to trial?

The Deputy-Chairman

It may well be.

Mr. Paget

Is it, then, in order?

Mr. Rees-Davies

If I may continue after those interruptions, it was clearly —

The Deputy-Chairman

If the matter is sub judice, it is out of order.

Mr. Paget

Obviously, this is a matter which may be subject to trial and it should not be ventilated here, because it may prejudice the trial.

The Deputy-Chairman

It is certainly out of order to raise a matter which is sub judice.

Mr. Rees-Davies

Anything may be the subject of a trial.

Mr. Silverman

I know, and the hon. Member knows, what he is doing. What I am putting to you, Sir Rhys, is this. Upon the hon. Member's account of this matter a crime has been committed. That crime must be the subject of judicial investigation. That being so, is the hon. Member entitled to deal with the matter here?

The Deputy-Chairman

I have already said that it is not in order to deal with cases which are sub judice.

Mr. Rees-Davies

I am entirely in your hands, Sir Rhys. What interests me is the fact that there is always a howl from the abolitionists upon any matter of emotion which is not being raised by them. All I can say is—

Mr. Silverman

Has there been a ruling upon this matter, or has there not?

The Deputy-Chairman

There has.

Mr. Hale

Is it in order for the hon. Member for the Isle of Thanet (Mr. Rees-Davies) to say that my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) has raised this matter from base motives despite the fact that you have ruled in my hon. Friend's favour? It is not a fact that the hon. Member, who is a member of the Bar, has spent 20 minutes describing a man who may be brought to trial—

The Deputy-Chairman

I did not catch the phrase "base motives", but if that phrase was used it should be withdrawn.

Mr. Hale

The hon. Member has spent 20 minutes describing a man, who may be brought to trial upon a capital or penal servitude charge, as a brute, or a sexual pervert, and giving evidence for the prosecution. What chance has that man of a fair trial if this matter is reported?

The Deputy-Chairman

The hon. Member should not have brought to the notice of the Committee, or discussed in the Committee, a matter which is sub judice. That is irregular. That I rule clearly, and the hon. Member must not pursue it. With regard to the other point, I did not catch the phrase, "base motives", but if the hon. Member said that he should withdraw it.

Mr. Rees-Davies

I did not say any such thing. What I said was—subject to correction in HANSAR: it is a long time ago since I said it, having regard to the lengthy interjection of the hon. Member —[HON. MEMBERS: "Oh."] I Know that you do not like anything which is emotional—

The Deputy-Chairman

Order. The hon. Member must address his remarks to the Chair.

Mr. Rees-Davies

What I said, Sir Rhys—and I will repeat it—was that when matters of emotion are raised, such as the question of the killing of children and the retention of the death penalty, and when the Amendment under discussion deals with emotional considerations, the abolitionists are only too ready to squeal at the retentionists, but the abolitionists parade their emotions upon this issue every day of the week.

I am defending the Amendment because it deals with the protection of children. If I erred in giving the facts about a young child who has been murdered, those facts are no different from any other facts which have arisen in any of the many cases in the past. There have been many such cases which bear directly upon the subject of the Amendment, where young children have been playing in playing fields and have been taken off by somebody who has interfered with them and thereafter murdered them.

That state of affairs having arisen in the old days, there was the death penalty, and I am merely pointing out that if, during the next 12 or 18 months, there are a number of murders of young children—which may or may not happen—there will be an immense revulsion of feeling and a demand for the restoration of the death penalty.

It is no good for hon. Members, some of whom hang on to their consciences in this matter, to parade them in an emotional style, and to say that the death penalty is bizarre and macabre, with all the paraphernalia of the black cap, and so on, as one hears continually from the hon. Member for Nelson and Colne until I am sick and tired of it; and all this stuff about what does it matter if terrorists kill, and so on, because they are always in the right and the unfortunate victim is always in the wrong.

9.45 p.m.

What I am saying—[Hon. MEMBERS "Is nonsense."] Hon. Gentlemen opposite do not like it when they find retentionists coming out with an emotional argument— [HON. MEMBERS: "Oh."]— yes, it is an emotional argument. I do not deny that the plea I am making at the moment is an emotional one. I am not arguing this claim on logic. Not at all. It is an illogical Amendment. If we wish to abolish the death penalty, it is an illogical Amendment to exclude children. Of course it is, and to that extent the sweetly reasonable arguments of the promoter of the Bill were correct. But for once I want to turn upon him a little of the emotion which, at his wish, is so often thrown at us.

We are always supposed to be the people who, in fact, are being emotional. I have always maintained that it is the abolitionists who are emotional and who are afraid to carry out the responsibility necessary in the death penalty. I believe that it is the ultimate sanction of human life. It is not just a question of a deterrent. It is the question of a case which arises where the public conscience is violently shocked by certain offences. I believe that this and the next Amendment, which I shall move in a moment, relate to two of those cases.

I believe that the case of the young child is exceptional purely on the ground that it creates a violent revulsion of human feeling against people who murder young children. There are many mothers who will sleep better tonight if this Amendment is accepted and they know that the brutes who would murder their children cannot get away with it.

Sir L. Joynson-Hicks

I do not think the hon. Member for Nelson and Colne (Mr. S. Silverman) has given the Committee a sufficient reply to the debate on this Amendment. It is a serious Amendment and raises an issue different from those raised before. It is an Amendment of very real public importance in the widest sense of the term, because the murder of children is a matter which impinges on the public conscience to a far greater degree than the murder of any other class of people. I suppose that the basis for it is the defencelessness of the child.

The hon. Member for Nelson and Colne swept aside the arguments of my hon. Friend the Member for Bournemouth, West (Mr. J. Eden) and said that there was no difference whatever in principle between the crime of murder against children and any other sort of crime of murder. If the hon. Member really believes that, he is completely out of touch with public feeling. I do not think he would wish that stigma upon himself—I mean that he has laid it upon himself and not that I am laying it upon him—to go forward without having the opportunity of correcting it, because, if I may say so, he is making a great mistake. I hope therefore, even if the hon. Member will not accept the Amendment, that at least he will give the Committee some better and more valid reason for his refusal than he has done so far.

The matter is quite a simple one. We have naturally been warned and advised that many of these cases are cases of mental unbalance, insanity, or whatever we like to call it. Cases of that sort do not come within the Amendment. The cases which come within the scope of the Amendment are those in which a deliberate crime of murder has been committed against a person who inevitably is defenceless because of the definition of the category of people whom it concerns, and who for that very reason have got to be protected to an even greater degree from the menaces and perils of such people we are dealing with, murderers of young children.

The victims are entitled to a special protection, and the only protection that can be given is the knowledge of the fact that it is recognised as being an even more serious crime than any other by having a more serious penalty. Therefore, I hope the hon. Member for Nelson and Colne will give the Committee the benefit of his views in a rather wider direction and with rather deeper thought than he did before.

Mr. S. Silverman

I will respond to the appeal of the hon. Member for Chichester (Sir L. Joynson-Hicks) in one sentence. The hon. Member for the Isle of Thanet (Mr. Rees-Davies) made a speech which I would describe as disgraceful, and which I think nobody will regret more than he when he reads it tomorrow morning; but he did say in the course of his speech that the reason I gave against the Amendment was sound, that the Amendment was hopelessly illogical and that the case for it was a case based on emotion and nothing else. I agree with what the hon. Member said in that part of his speech. I think that shows that the reply I made in the first place, although short having regard to the time left to the Committee, was, nevertheless sufficient. I think the hon. Member who moved the Amendment accepted it as sufficient.

Amendment negatived.

Mr. Rees-Davies

I beg to move, in page 1, line 9, at the end to insert: Provided that this subsection shall not apply to a person previously convicted of murder.

Mr. S. Silverman

Of course, a person previously convicted of murder, if still alive, would be a person covered by the Amendment which the Committee agreed to half an hour ago, or three-quarters of an hour ago. Is this Amendment therefore in order, Sir Gordon, as it has been completely covered by the Amendment which was agreed to?

The Temporary Chairman (Sir Gordon Touche)

The selection of Amendments is a matter for the Chairman of Ways and Means, and this Amendment is selected.

Mr. Silverman

On that occasion the Chairman of Ways and Means could not have known what the Committee was going to do with the Amendment which deals with this precise point. It would be complete nonsense, if I may say so with great respect, for the Committee to have adopted the previous Amendment and then to defeat this one.

The Temporary Chairman

I have no power to select Amendments. I must carry out the orders of the Chairman of Ways and Means.

Mr. Hale

With respect, Sir Gordon, that is not the point my hon. Friend the Member for Nelson and Colne is putting. Something has arisen before you came into the Chair which has created a new situation. Half an hour ago, by a majority, the Committee carried an Amendment which we discussed for some hours. That Amendment stated: Provided that this Act shall not apply in any case in which the murder was committed by a person already serving a sentence of imprisonment for life". As my hon. Friend has quite correctly said, unhappily from my point of view, that Amendment was carried and is now part of this Measure. We cannot have the same thing twice in an Act of Parliament.

Mr. Rees-Davies

Further to that point of order, Sir Gordon. What has been said is not so. This Amendment deals with the double killer, the mass murderer, and is in fact an amended version—now properly amended, I hope—of an Amendment which I moved on the first day of the Committee when arguments had been put forward that that Amendment did not meet the objective which I had in mind. I then gave an undertaking to the Committee that I would withdraw the Amendment and table this one, which is the proper Amendment. It does not affect the point which was raised earlier on the Amendment moved by the hon. Member for Hendon, South (Sir H. Lucas-Tooth), and I therefore hope that I will be able to move it.

The Temporary Chairman

This Amendment is not inconsistent with the previous one.

Mr. Paget

Could not the Chairman of Ways and Means be sent for? Something has occurred since he made his selection. The hon. Member for the Isle of Thanet (Mr. Rees— Davies) has just told us what he intends this Amendment to mean. In point of fact, he told us what he intended the last Amendment to mean, and I think he is equally wrong about both of them. What in fact it means has already been covered by an Amendment which has been carried. Should not the Chairman of Ways and Means consider this?

The Temporary Chairman

I am sorry to disagree with the hon. and learned Gentleman, but I do not think the Amendments are inconsistent.

Mr. Rees-Davies

This Amendment deals primarily with the case of the person who commits more than one murder— the double or triple murderer. It would apply in the case of a man like Jack the Ripper, or Christie or Haigh, and it would apply also in the case of Cummin, who murdered some seven street women and attempted to murder five others. I have previously indicated the scope of the original Amendment which stood on the Notice Paper in my name, and there was some debate at the time about a suggestion that in fact it did not meet the object I had in mind. This Amendment provides that this subsection shall not apply to a person previously convicted of murder.

Mr. Hale


Mr. Rees-Davies

No, I will not give way; I am going to complete this matter.

Let us assume that two murders are committed by the same person; both of them may have been committed at the same time. That person is charged with the first murder and convicted, and, under this Bill is sentenced to imprisonment for life. However, on a second indictment, the same person is brought up for the second murder, and if convicted is then sentenced to death. The provisions with which I am concerned relate to the cases of Christie and all these others, and on the last occasion the Committee had a great deal of sympathy with the objective. The cases of Christie and the others, I imagine, are such that, in all this range of cases, the person would in fact suffer the death penalty in the second case, unless of course found guilty but insane, in which case the ordinary and usual position would prevail.

Here again, the vital matter which is raised is the rare case, but none the less the case that does occur, about which the public conscience is really repelled by a particular series of crimes. Take the Cummins case, for example. At that time during the war a considerable number of women were murdered in the most violent fashion, and Cummins was found to be in no way insane and in no sense of diminished responsibility, either by the Scottish test or the English test, and he was in fact sentenced to death. Nobody raised the plea of insanity. Nevertheless, he had been guilty of a considerable number of particularly foul murders. I believe that in such a case the public view would be that such a criminal must meet the death penalty, for there is no other penalty which would meet the case.

10.0 p.m.

There is also the case which was referred to on Second Reading by my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon). He referred to a case immediately before the war in Upper Silesia where a number of men were kicked to death by the Nazi guard. In such circumstances, where two or three men, either together or severally, kill a number of people in circumstances of mob violence or mass murder, I believe that different considerations are raised in the public conscience generally from those raised by the typical murderer.

As we know, more than half of the typical murders are cases of insanity, and in many of the remainder there are circumstances of provocation or cruelty. If the law were reformed, the death penalty would not arise in a great many such cases. As is well known, I have always been associated with the view that if we reformed the law of murder we should meet the wishes of the great majority of the people. That view has not been accepted, and the least we can do now is to try to exclude the particular class of murder for which the overwhelming majority of the public would desire the retention of the death penalty.

They would certainly desire its retention in the case of a double murder or mass murder, where the criminal is not found "guilty but insane." In many such cases they are found "guilty but insane", so that the Amendment covers a relatively small scope, but I believe that the death penalty should be retained in such circumstances, and for that reason I have moved the Amendment.

Mr. Paget

The retentionists in this argument seem to have the bizarre advantage of the advice of my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) and the hon. Member for the Isle of Thanet (Mr. Rees-Davies), and they certainly get some very peculiar advice.

We are told that the effect of the Amendment is to deal with the mass murderer. If hon. Members wish to do that, it is very odd that they should seek to do it by an Amendment which does not say so. If we wished to retain the death penalty for people who murder more than once, we could say, "Provided that this subsection shall not apply to a person who commits more than one murder". That is fairly simple. Here, even on a second attempt, we have the words: shall not apply to a person previously convicted of murder". We are then told, on the ipse dixit of the hon. Member for the Isle of Thanet, that a peculiar procedure would be adopted. A man has killed two people. He is first tried for the murder of one and is convicted of that murder. He is then put upon trial for a second time, and he is now somebody who has been convicted of the first murder and, therefore, comes within the definition of the Amendment. That might be so if the public prosecutor were to adopt such a course, but I do not believe that any court would interpret that as the meaning of this Bill. Where the simplest words will express a meaning, those words are avoided for words of great ambiguity.

The ordinary rule of construction is that the simple meaning which could so easily have been expressed is not intended. I certainly believe that is the construction which the courts would apply to the words of the Amendment. In any event, if we intended and wished to amend the Bill in this way we surely did not want to be guilty of proposing such ambiguities upon our proceedings when the simplest words could express the meaning which we intended. For a second time, I ask the Committee to reject this nonsense.

Mr. J. Paton

I do not want to traverse the arguments already put by my hon. and learned Friend the Member for Northampton (Mr. Paget), but I want the hon. Member for the Isle of Thanet (Mr. Rees-Davies) and those likely to support it to consider this matter. What they are proposing, assuming that the words of the Amendment bear the construction which the hon. Member wishes them to bear, is, of course, an extraordinarily important departure from our present practice. Under our present practice when there is more than one murder for which a man has been arrested we do not, first, prove one murder against him and then, having proved that murder, proceed to prove another murder against him.

Under our present practice, if a man is found guilty of murder he is thereupon sentenced for that murder and suffers any penalty that may be awarded for the crime. In the normal way, he is sentenced to death and, subject to the possibility of reprieve by the Home Secretary, that is the end of the case. But what the hon. Member for the Isle of Thanet (Mr. Rees-Davies) is proposing is to have the man tried for one murder and then, having had him convicted, to put him on trial for a second murder.

It is surely obvious to everyone that a man put on trial for a second offence of that kind would from the very beginning be fatally prejudiced in any defence which he offered. In fact, that second trial would be in the nature of a farce. It would be the definitive trial, the one on which the man's neck was at stake. We should have a situation in which, the first conviction having been registered, the man would then be tried on a second charge of murder for which, it must be remembered, the penalty would be death. Anyone would recognise that as being a completely farcical exercise because, inevitably, the man would be bound to be found guilty. It would be a complete farce to expose him to the second trial.

Sir Thomas Moore (Ayr)

I must confess that I entirely fail to follow the argument submitted by the two hon. Gentlemen opposite. I do not say that that is anything against them, because I think that many hon. Members suffer similarly from hon. Members on this side of the Committee. We, of course, all know the hon. and learned Member for Northampton (Mr. Paget), who so frequently intervenes and guides us in the legal interpretations of Bills, but I confess that tonight, as very often before, I find myself completely bemused as to the legal aspect on which he would seek to guide us. No doubt he will take that as a compliment.

I think that my hon. Friend the Member for the Isle of Thanet (Mr. Rees- Davies) has put this case so convincingly that it is almost unnecessary for anyone to advance any further arguments, but 1 just wonder whether, in fact, some of my hon. Friends as well as hon. Members opposite do sometimes put the case to themselves in a concrete form. Let us suppose, if this Bill were passed as it stands, we were to have another Heath. Heath, as we know, murdered in most brutal fashion. If the Bill were passed, such a man would get 10 or 20 years' imprisonment and would subsequently be released, probably after good behaviour —1 do not know—in about nine years. [HON. MEMBERS: "No."] Yes; under the Bill, if it becomes an Act, subject to remissions, such a man might well be released in nine years. He would then be released to commit further murders of the same barbarous and filthy kind.

Can hon. Members opposite really say that they want that to happen, that they want the sadist to be let loose again upon the community? That is exactly what this Amendment proposes to prevent, to prevent another Heath being released to carry out his practices once more upon innocent women, girls and children.

My hon. and learned Friend the Member for the Isle of Thanet has produced a case so convincing, so lucid and so clear that I am sure it is not necessary for me to press the argument. either upon those who waiver in their minds or even upon those who are perhaps hidebound in their thought, as many hon. Members opposite are. My hon. and learned Friend has made out a case which is absolutely indisputable; I hope that the Committee will accept it.

Dr. Donald Johnson (Carlisle)

In supporting the Amendment, I have in mind the special species of murderer, to whom reference was made in a previous Amendment which was withdrawn, but who are in many cases covered by the present Amendment, for reasons which I hope to show. I am referring to prisoners.

It was of great interest to me to receive, as we all did, the list of people who suffered capital punishment as condemned murderers during the last five years, and to notice that only one out of the 85 was a poisoner. That was Mrs. Merrifield. That can signify one of two things. It can either signify that poisoning is a highly unusual occurrence or it can signify that poisoning is highly unusual in detection.

I put it to the Committee that poisoners are murderers of an unusual calibre. As opposed to the average murderer, who is, on the whole, a person of low mentality, the poisoner is a person of education, certainly of some mental equipment, a person capable of scheming, and a person who is clear in his or her motives. Secondly, the poisoner invariably is able to take advantage of a position of trust.

Mr. H. Hynd

Is the hon. Gentleman not taking advantage of this Amendment to make the speech he would have made on the third Amendment, had it been called?

The Temporary Chairman

I do not think that the hon. Member has been out of order so far.

Dr. Johnson

If the hon. Gentleman the Member for Accrington (Mr. H. Hynd) will have a little patience with me, as I have had, listening to the speeches of hon. Members opposite, he will hear the valid reasons why I put this argument under the present Amendment.

As I was about to say, the poisoner is able to take advantage of a position of trust; he or she may be a member of a family; she may be a nurse, or he may be a doctor.

Mr. G. M. Thomson

On a point of order. As I understood, this Amendment dealt with double, triple, or mass murders. So far, we have heard nothing on that subject.

The Temporary Chairman

The hon. Member is in order if his poisoner does it more than once.

Dr. Johnson

I have asked for patience. 1 do not think I am unduly prolix in coming to my point, compared with some hon. Members opposite.

10.15 p.m.

These two things together make poisoning a crime which is difficult to detect. It is a crime that finds society off its guard. The attendant doctor of the poisoned person may also be off his guard. This makes poisoning a crime which is liable to repetition. I assure hon. Members who have risen to interrupt me that there are many authorities who say that repetition is a feature of poisoners throughout history.

I will not quote the Borgias or the infamous Marquise de Brinvilliers, who did not, of course, come within the law of this country. I shall quote a case much nearer home. At the risk of being accused of referring to something which is sub judice, let me say that I am referring to an unsolved crime which occurred within the lifetime of all of us, in a London suburb. It is a case which is well known to criminologists. The only reason I do not mention it by name is that I believe the doctor concerned is still in practice.

This was a case within the last 30 years in a London suburb, when three members of the same family died in succession from the same abdominal complaint and, in each case, were certified as having died from food poisoning—gastroenteritis. It was only the persistency of the coroner which caused the bodies to be dug up and exhumed, and in each case there was found to be arsenical poisoning.

Mr. H. Hynd

On a point of order. Although the hon. Member says that he is not prepared to give the name, can he assure us that the doctor in question is not in the House?

The Temporary Chairman

That is not a point of order.

Mr. Glover

Will my hon. Friend assure the Committee not only that the doctor in question is not in the House, but that he is not employed under the National Health Service?

Dr. Johnson

I can give the hon. Member for Accrington (Mr. H. Hynd) the assurance for which he asks.

Since I am pressed, and since I am thought to be distorting the facts, let me say that this was the well-known case in Birdhurst Rise, South Croydon. If we go through the list of poisoners, we are forced to the reluctant opinion that poisoners are not detected unless, perhaps, they are repetitious idiots, as one can only call them, like Major Armstrong, the poisoner of fame, or blunderers like Vacquier, of the "Blue Anchor" Fame—

The Temporary Chairman

The Amendment applies only to poisoners who are detected.

Dr. Johnson

Yes, Sir Gordon. Usually, they make these faults only at the end of a series of crimes. In view of the nature of the crimes, the difficulty of detection and the probability of repetition, I submit that this is a type of crime that reinforces the arguments for the Amendment.

Mr. Glover

I support the Amendment. We have heard today, on an Amendment moved by my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) of armed robbery committed by young, inexperienced people. I think that the hon. and learned Member for Northampton (Mr. Paget) referred to them as young people filled with enthusiasm for glory —or words to that effect. A person convicted of crime in those circumstances may easily and probably, having been sentenced to penal servitude for life, have his sentence reviewed by the Home Secretary, and, because of good conduct in prison, he may be released. It is quite likely that a person of 25 convicted of armed robbery and of murder in the course of armed robbery may be released when he is 35, when he is still young and vigorous.

Mr. G. M. Thomson

On a point of order. The hon. Member is speaking to an Amendment which the Committee has already decided, and not to the Amendment now before it.

Mr. Glover

If hon. Members who seem to be frightened of any argument contrary to their case will allow me to develop my argument they will perceive its relevance to the Amendment.

Under the rules of the Home Office, such a person, quite rightly, would be released. Thereafter, he may deliberately commit a murder in similar circumstances to those in which he committed the first, for which he was previously convicted. The British people as a whole would say, I am sure, that a man convicted of a crime such as that should then be asked to pay the supreme penalty. The Amendment provides that he should be asked to pay the supreme penalty. There is the case of a murderer in my own constituency at the present time. I shall not refer further to that, but I would emphasise that the public are very worried about the action we are taking in this Committee tonight. I am sure that if we wish to carry the public as a whole with us in passing the Bill we must ensure that a murderer who deliberately commits another murder shall pay the supreme penalty.

Amendment negatived.

Mr. Martin Lindsay (Solihull)

I beg to move, in page 1, line 9, at the end to insert: Provided that this subsection shall not apply in any case where the offender is convicted of the murder of a police officer with intent to escape from custody or to avoid arrest.

The Temporary Chairman (Sir Gordon Touche)

I think it would be for the convenience of the Committee to discuss this Amendment together with the next one. to insert: Provided that this subsection shall not apply when the offender is convicted of murder committed while resisting arrest by a police officer, while escaping or attempting to escape from the custody of a police officer or while assisting any other person to resist arrest by a police officer or to escape from the custody of a police officer.

Mr. Lindsay

Yes, Sir Gordon.

The object of these two Amendments is to retain capital punishment for those who murder policemen. The first is intended to protect policemen investigating crimes, and the second to cover policemen killed when making an arrest. The British policeman is in a very special position in that, unlike the police of almost every foreign country, he is unarmed. Since we look to the policemen for our protection, we surely have an obligation to give the police all the protections which we can, which is the deterring assurance that those who murder policemen will be executed.

I can make the case for the Amendment briefly, because much of the ground has really been covered already, but I must remind the Committee that we are living today in a period of violent crime. Serious cases of violence have gone up from 2,700 in 1939 to 4,600 in 1946. and to more than 8,000 last year.

As the Home Secretary said earlier today, the police as a whole take a very serious view of the possibility of a more intensive use of firearms by criminals in the event of a murder of a policeman being dealt with scarcely more severely than conviction for some other serious crime. We know that convicted murderers are released, on an average, after nine years because, as the Home Secretary has told us, people tend to deteriorate mentally and physically if they are kept in prison much longer than that. We know, therefore, that a criminal with a record who is certain to go to preventive detention for about 14 years and will be released after 10 or 12 years has nothing to lose if he shoots his way out to avoid arrest. It is to rectify that position that the Amendment has been tabled.

Nor are cases of serious attacks on police officers very rare. No fewer than six policemen have been killed in this way by shooting in the last 10 years and there have been many more cases where the death of a policeman has been avoided only by the mercy of Providence. Unfortunately, there are at present no figures available of the number of serious attacks made on policemen, but we know that they are all too frequent.

Only six weeks ago a man who was about to be arrested shot with a rifle at a policeman but, fortunately, missed. There was another case in Manchester, a short time ago, in which an arrested man was found to have eight bullets in the Luger in his possession. He said to the police inspector, "It was very lucky that I did not see you in time, or I should have shot you".

Our police who, unarmed, go out to arrest these desperadoes are among the bravest people in the country. Unlike other citizens who may conceivably be murdered, the police, by the nature of their calling, are exceptionally exposed to the risk of being murdered. It is for that reason that we seek to make this exception from the general provisions of the Bill. It is not good enough merely to sympathise with the widows of policemen when they have been killed. Policemen deserve all the protection which it is in the power of the law to give them. I therefore commend the Amendment to the Committee.

Mr. S. Silverman

This, of course. is a serious Amendment, which commands a good deal of support in a good many quarters and therefore, late as is the hour, I should like to say a few words about it. If I say no more than a very few sentences, the hon. Member for Solihull (Mr. M. Lindsay) will remember that a large part of the argument has been covered already on the first Amendment which the Committee considered today.

Although that was a wider argument it included this point too. The arguments for and against this Amendment formed a large part of the arguments on that occasion. I do not say that that renders it in any way illegitimate for the hon. Member to move an Amendment again in a narrow form. It is quite legitimate, but it certainly excuses me from dealing with the argument at very great length.

So far as the answer to it is concerned, I shall content myself with two points of my own and then I shall adopt the answer to it uttered in 1948 in another place by the present Lord Chief Justice. If the hon. Gentleman considers it, I think that he may regard that answer as conclusive.

The first of my two points is this. It is attractive to say that this is, in the case of the police, an occupational risk which is not run by other people, and that, therefore, if there is any advantage to be derived by way of deterrence from this argument, the police are entitled to it. But if we look at the argument a little more closely, we find that although it is plausible and attractive at first blush, it does not stand any close examination.

10.30 p.m.

There are other people who run the same occupational risk. For example, there may be in a warehouse an old or partially disabled watchman. The risk of being knocked out by thugs and brigands of various kinds is not less in his case than in the case of the policeman outside. It is difficult, therefore, to justify retaining the death penalty in the case of the murder of the policeman and refusing it, if it is a protection at all as the hon. Gentleman thinks, to the watchman inside the warehouse. It does not make any kind of sense.

My other point is this. Often in such a case the policeman may call passing civilians to his assistance in dealing with a crime of this kind. Does the hon. Gentleman really think it sensible to say to an armed and dangerous thug, "If you are going to shoot your way out of a situation into which you have got yourself, and you have the choice of shooting the civilian or shooting the policeman, then for heaven's sake shoot the civilian because it is cheaper"? It does not make much sense.

If we add to those two observations of mine the much more considered argument of the Lord Chief Justice, the hon. Gentleman might then consider whether it is worth while taking up the time of the Committee any more on this point.

The Lord Chief Justice said: There is also a paragraph put in to protect the lives of the police, and to deter people from shooting the police. I yield to none in my desire to support and protect the police, but I believe, and I am sure that every police officer would think, that the lives of the humblest of His Majesty's subjects are as valuable as the lives of policemen. It seems to me not right that a man who in the height of passion or temper kills a policeman—perhaps not deliberately, in the sense that he aimed a revolver at him—but in the struggle to avoid arrest (a man perhaps with a long record who is trying to escape) should be told that he is guilty of a capital crime, whereas a man who has taken an axe or hammer, perhaps to a sick or ailing wife and has battered her brains out, should be told that he has committed non-capital murder. I do not think that is in any way a ludicrous argument. The Lord Chief Justice then adds: I cannot believe that that is a right provision to leave upon the Statute Book".—[OFFICIAL REPORT, House of Lords, 20th July, 1948; Vol. 157, c. 1034–5.] If it was not right in 1948, it is not right either in 1956.

While many of us have had things to say about the record of the judges in matters of penal reform over the years, no one has ever thought otherwise than that in matters of the kind with which we are now dealing they are probably the most experienced, credible and acceptable witnesses that we have. In view of that argument, I hope that the hon. Member will consider whether it is worth while at this time asking the Committee to deal further with the point.

Major Lloyd-George

As in the case of the Amendment dealing with prison officers, it is only natural that my right hon. Friend the Secretary of State for Scotland and I, who have special responsibilities for the maintenance of law and order, should be concerned with this matter.

I think the Committee will agree that there can be not much doubt that if the death penalty is abolished as a result of the passing of an Act, the police as a class will be exposed to greater risks than they run today. I feel—I am sure that all hon. Members in the Committee will agree with me here—that we owe it to what is one of the most devoted bodies of public servants to give it as much protection as it is possible for Parliament to give.

Already, on more than one occasion, I have drawn to the attention of the House and the Committee the risk, which I consider to be very real, that if capital punishment is abolished there will be an increase in the number of armed criminals. I say that because criminals will have everything to gain and very little to lose by killing to avoid capture.

Having said that, it is obvious that the most likely target on most occasions for that type of violence will be the police officer whose duty it is to effect an arrest. Indeed, he may—I am not saying he will —have to be armed. Nobody wants to see gun duels in our streets between police and criminals, even if the police are successful. Therefore, I feel most strongly that it is far better to deter criminals from carrying arms by making their use very much more dangerous to the user.

Further, 1 feel that if this protection is to be given to our police forces, it should be in broad and simple terms, and should be conferred on any police officer acting in execution of his duty.

I recognise, readily, that there will be some anomalies and that it will not protect the citizen who goes to the assistance of the police officer. I would only say that the civilian is in a very different position from that of the police officer. The citizen has not to go out to arrest a dangerous criminal. That is the duty of the police, and because of that the police officer is the man most likely to run into danger. I feel that the anomalies will be fewer if the special protection of the law is confined to him.

While I have sympathy with both Amendments in the name of my hon. Friend the Member for Solihull (Mr. M. Lindsay), I prefer the first, with which I certainly have every sympathy.

Mr. Younger

I am rather surprised at the advice which the Home Secretary has just given to the Committee. There is nothing one can add to what was said by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) and, in particular, his quotation from the Lord Chief Justice, who, on matters like this, is a high authority. The Home Secretary indicated, as was quite natural, that he, holding the views which he has been commending to the Committee on the general problem of capital punishment as a deterrent, thought that the retention of capital punishment in those cases in favour of the police would be a protection to the police.

He seemed to assume that that was a proposition with which we would all agree, but I think that, on reflection, he will realise that in putting it that way he is begging the whole question. There is, in fact, no more evidence, as the Royal Commission showed, that capital punishment is required for the protection of police officers on the ground of its unique deterrence than in any of the other cases. In a sense the argument on the Amendment stands or falls on one's view of the general question on which the House expressed itself on Second Reading.

If one believes, as the Home Secretary does and as he has never concealed, that, generally speaking, capital punishment is a unique deterrent, then one does, as he does, oppose the Bill. However, earlier, when speaking to another Amendment, the Home Secretary said that he considered it his duty in Committee to accept, as it were, that the House has so far approved the principle of the Bill and that he would give his advice on each Amendment on its merits as it arose. On its merits, does he want to see this Amendment on the Statute Book? Does he wish to dissociate himself from the argument of the Lord Chief Justice, in 1948?

I can understand the point of view of those who are seeking to pile Amendment on Amendment in the hope of making the Bill in its final form nonsensical, because they are against the principle altogether; but that is quite contrary to what the Home Secretary indicated to us as his attitude earlier. I ask him, as 1 think I am entitled, whether he is treating the Amendment on that basis? Is he now advising the Committee to pass the Amendment on its merits and not because he is seeking to whittle away the principle of the Bill, as are some of his hon. Friends?

Mr. Glover

The right hon. Member for Grimsby (Mr. Younger) is taking the argument of the Lord Chief Justice out of context. The Lord Chief Justice was saying that the police should not be put in a privileged position, but that this protection should be given to the meanest subject in the land. I and my hon. Friends believe that that is true and we are trying to retain that protection for the meanest subject in the land, but if we cannot retain it for the meanest subject in the realm, we feel that the police are in a special position and undergo special dangers and that every safeguard should be retained for them. I do not think that the Lord Chief Justice would disagree with that.

Mr. S. Silverman

Perhaps the hon. Member will bear in mind that with which the Lord Chief Justice was dealing. He was dealing with the compromise Clause which the House of Commons sent to the House of Lords to meet objections which the House of Lords itself had made on the previous occasion. Therefore, contrary to what the hon. Member said, he was dealing precisely with the question with which we are dealing tonight.

Mr. Younger

We are in a rather paradoxical situation in many of the arguments which are now being used on this question of whether one can properly draw a distinction between the different kinds of murder. They were put forward in 1948 by those in favour of retention, whereas now they are advanced by those in favour of abolition. However, that does not alter their validity and it is fair to recall that even those who, in 1948, put forward a Clause which attempted to draw distinctions between one category of murder and another, recognised, on reading or hearing the debate in another place, that the objections to making that type of distinction were overwhelming. That was one of the reasons it was not pressed at a later stage, when the House of Commons agreed with the Lords in their Amendments.

10.45 p.m.

It is also, of course, a direct reason why, subsequently, the Royal Commission was appointed, to see whether that particular Clause was any good and whether there was any other form of distinction which could be made. At the end of four or five years, the Commission came to the conclusion that it was not possible. Those arguments were upheld, not in a particular context, but generally. I am rather surprised that the Home Secretary should be now recommending to the Committee something which as it stands on its own merits the learned Law Lords were clearly not willing to accept before and which was specifically not recommended by the Royal Commission. I invite the Committee to consider the advice of the Home Secretary in that context.

Major Lloyd-George

Throughout the whole of this Bill I have intervened very rarely and no one can say that I have not tried to be helpful on it. On the two particular points I have made today 1 have prefaced my remarks about prison officers and the police with the special responsibility I have for both those services of the State in my capacity as Home Secretary. Therefore, in answer to the right hon. Member, I would say that if this Bill became law I would feel far happier if those two sections of people exposed to special risk are protected by this House.

Mr. S. Silverman

I wonder, Sir Charles, whether you would accept a Motion, "That the Question be now put".

The Chairman

I have only just come into the Chair. We had better carry on a bit and find out.

Sir T. Moore

This Amendment raises an issue which, I think, weighs more heavily with me than any other Amendment that has been dealt with today. To our pride, as my hon. Friend the Member for Solihull (Mr. M. Lindsay) has said—with their concurrence—our police are unarmed. I will not go into the argument about those countries which have armed police and have murders, or unarmed police and no murders, because, as my hon. Friend said, every country must be judged in its own perspective, but I think it would be a great pity if we had to arm our police.

It would be a great pity because it would deprive them of that tremendous moral authority they now possess and it would also deprive them, I think, of that friendly trust of the public—women and children and everyone else—which they now enjoy. I cannot see any alternative to the arming of the police because anyone can easily visualise a situation in which a desperate criminal who is armed. and—if this Bill passes—will know that he will dodge the gallows, will obviously try to destroy the policeman who is seeking to arrest him. That would be, of course, to avoid arrest, because that is the natural human instinct, and to evade the long loss of his liberty which, under this Bill, he would suffer.

As my right hon. and gallant Friend said, that armed criminal, desperate as he is, would also feel inclined, naturally I think, to destrcy any evidence which might exist in the vicinity of the crime. The result would be that all our efforts to preserve the life of our community will suffer if the Bill is passed without this Amendment. For that reason, if for no other, I hope that the Committee will accept the Amendment.

Mr. M. Philips Price (Gloucestershire, West)

I wish to support this Amendment. I do not wish to see the police in any privileged position, but I do think that they have a very special duty to perform, with dangers not faced by the rest of the community. I cannot agree, therefore, with my hon. Friend the Member for Nelson and Colne (Mr. Silverman) about the case of a night watchman and a policeman. I do not consider that the dangers there are comparable.

I know, as a magistrate for Gloucestershire for many years, that the police have excellent relations with the public, who rely on them to face dangers and perform difficult tasks in the interests of public safety. Police recruiting has not been too good for some years. I think it is better now, but we have to consider the morale as well as the safety of the police. At all costs we want to avoid arming the police, as is the case on the Continent, where the death penalty has been abolished [HON.MEMBERS: "No."] Not in all cases, but in most cases the police are armed. We want to avoid that, and I believe that this Amendment is one way in which we can do so.

Mr. Glover

I should like to support this Amendment. First, I do not see why, when we are trying to remove dangers to the public, the police should not be placed in a slightly advantageous position. During the war, for example, when there was a danger of gas, the police had military respirators, whereas the public had civilian respirators. It was accepted then that the police underwent greater danger.

Take the case of a night watchman: he is the second line of defence of property. The police are the first line of defence. If an armed robbery takes place, the police will be faced with the responsibility of tracking down and capturing the criminal. The criminal knows he has committed a serious crime, and he may have knocked out the night watchman, and at the time may not know whether he has killed him. Therefore, if the police are not to have the protection of the severest penalty, that criminal has every temptation to deal most severely with any policeman trying to arrest him.

I do not think that it is sufficient to look at this matter dispassionately. One should take into account, in considering this Amendment, the view of the police force itself. The police are convinced that capital punishment is a deterrent. [HON.MEMBERS: "No".] Let me make my speech in my own way. The police know, also, how bare they are without arms in attempting to arrest an armed criminal.

Mr. J. Paton

It is the practice of the Home Office that, when a criminal is known to be armed, arms are issued to the police.

Mr. Glover

Yes, when a criminal is known to be armed. But the police have to go out to arrest a criminal who may or may not be armed. The number of occasions when arms are issued to the police is very few. The police feel a sense of security and confidence in the fact that, up to now, a criminal has known that the State looks upon an attempt to injure or kill a policeman as one of the most serious crimes in the calendar; which means that any such criminal will almost certainly have to pay the supreme penalty.

The Amendment merely suggests that in the context of abolition, with the dangers which most of my hon. Friends foresee, the police shall not be armed but shall have the same moral and physical protection as they have had in the past, and shall have the same confidence in their minds in carrying out their duties as they had up to the present. I feel that we shall carry the nation with us as well as the police forces throughout the country if we pass the Amendment, and that we shall not be acting contrary to the main purpose of the Bill.

Mr. George Wigg (Dudley)

I can only think that hon. Members who are supporting the Amendment have taken leave of their senses, because, clearly, we are not protecting the police if a policeman has been killed and we proceed to execute his murderer. [HON. MEMBERS: "Of course we are."] If a policeman is dead, we have failed to protect him. Matters could easily have been dealt with if the Home Secretary had discharged his duty by coming to the House and saying that when the Bill becomes law the Government will increase the punishment for carrying offensive weapons.

I want to protect the police, and once the Bill becomes law it becomes essential to make it clear that anybody who carries an offensive weapon will be dealt with most severely. If they want to protect the police and not merely to sabotage the Bill or hold up the proceedings at this hour, hon. Members would have seen that the way to protect them was to make it clear that the man who went out with a piece of bicycle chain or a knitting needle, or any other offensive weapon, would get a very severe sentence and that, if he were found to be carrying a revolver or a weapon of that kind, his sphere of usefulness as a criminal would be brought to an end. That is the way to deal with this problem, not to use "phoney" arguments about protecting the police after they are dead.

Several Hon. Members


The Chairman

I think that the Committee is ready to reach a conclusion.

Mr. Finlay

The hon. Member for Nelson and Colne (Mr. S. Silverman) said that this was a serious matter. I agree, and I think that the arguments with which he dealt with it were very light-weight arguments.

Mr. S. Silverman

I said that it was a serious Amendment, which is quite different.

Mr. Finlay

After that slight intervention, I will proceed.

If the Amendment is rejected, it means the rejection of the unanimous evidence of the police.

Mr. J. Paton


Mr. Finlay

It was virtually unanimous. I have chapter and verse here, and the hon. Member has not. The Report of the Royal Commission reads: Of more importance was the evidence of the representatives of the police and prison service. From them we received virtually unanimous evidence, in both England and Scotland, to the effect that they were convinced of the uniquely deterrent value of capital punishment in its effect on professional criminals. 11.0 p.m.

Those hon. Members of the legal profession who are against this Amendment know full well that, in the course of their professional duties, the degree of weight which is attached to expert evidence tallies with the experience of those giving it, and they are going flat out in the face of that if they reject this Amendment.

The second thing is that the hon. Member for Dudley (Mr. Wigg) seemed to think that the other deterrents were sufficient without preserving this one. Does he realise how high are the stakes in some of these cases? Not long ago there was a bullion raid at the headquarters of K.L.M., the Dutch airline, practically opposite the home of the then Home Secretary, the present Lord Chancellor. The amount of money involved was very great.

The robbery was carried out on a scientific basis, so scientific that it was done with practically military precision. It might, indeed, have been the result of a photographic reconnaissance beforehand. Very careful observation had been kept on the headquarters and the robbery was committed despite the fact that there was a police officer just round the corner, whose responsibility it was to look after the residence of the then Home Secretary.

Mr. Paton

Will the hon. Gentleman permit me —

Mr. Finlay

Let me finish my point first, please. All I am saying is that people who go in for crime in such a scientific way and get away with it are quite capable of dispatching a constable if he tries to prevent them. Indeed, the operational risk becomes worth it if this deterrent goes. That is the position if this Amendment is rejected.

Mr. Paton

The hon. Gentleman knows, of course, that no murder was committed in that case, and since that is so what is its relevance?

Mr. Finlay

Its relevance is that supposing the police officer had detected the robbery, the gang might well have done him a serious injury or even killed him.

A lot of nonsense is talked about the comparative statistics in other countries. I say that advisedly, and the Royal Commission even said it. It is not always admitted by the protagonists of abolition that the only comparable country is Belgium. and there the police are armed. They carry the deterrence in their pistol holsters. Therefore, it is completely irrelevant to make a comparison between Belgium and this country.

Does the hon. Gentleman opposite really think that a country which retains the death penalty although it does not enforce it, as in the case of Belgium, and which has an armed police force, is in the same position as a country like ours which does not have an armed police force? When one speaks in high falutin' terms about civilisation, which country is

Division No. 185.] AYES [11.5 p.m.
Agnew, Cmdr. P. G. Deedes, W. F. Heath, Rt. Hon. E. R. G.
Alport, C. J. M. Donaldson, Cmdr. C. E. McA. Henderson, John (Cathcart)
Anstruther-Gray, Major W. J. Doughty, C. J. A. Hill, Mrs. E. (Wythenshawe)
Arbuthnot John du Cann, E, D. L. Hill, John (S. Norfolk)
Armstrong, C. W. Dugdale, Rt. Hn. Sir T. (Richmond) Hobson, C. R.
Ashton, H. Duncan, Capt. J. A. L. Hornsby-Smith, Miss M. P.
Barber, Anthony Eden, Rt. Hn. Sir A.(Warwiok& L'm'tn) Horsbrugh, Rt. Hon. Dame Florence
Barlow, Sir John Eden, J. B. (Bournemouth, West) Hudson, Sir Austin (Lewisham, N.)
Barter, John Errington, Sir Erio Hudson, W. R. A. (Hull, N.)
Bell, Philip Bolton, E. Fisher, Nigel Hughes Hallett, Vice-Admiral J.
Bishop, F. P. Fleetwood-Hesketh, R. F. Hughes-Young, M. H. C.
Black, C. W. Fraser, Sir Ian (M'cmbe & Lonsdale) Hurd, A. R.
Brooke, Ht. Hon. Henry Galbraith, Hon. T. G. D. Hutchison, SirIanClark (E'b'gh,W.)
Broughton, Dr. A. D.D. Gibson-Watt, D. Hutchison, Sir James (Scotstoun)
Bryan, P. Glover, D. Irvine, Bryant Godman (Rye)
Buchan-Hepburn, Rt. Hon, P. G. T. Godber, J. B. Jenkins, Robert (Dulwich)
Butcher, Sir Herbert Gomme-Duncan, Col, Sir Alan Johnson, Dr. Donald (Carlisle)
Butler. Rt. Hn. R. A.(8affro n Walden) Gough, C. F. H. Joynson-Hicks, Hon. Sir Lancelot
Channon, H. Graham, Sir Fergus Kimball, M.
Chichester-Clark, R. Grant, W. (Woodside) Leavey, J. A.
Cote, Norman Gresham Cooke, R. Leburn, W. G.
Corfield, Capt. F. V. Grosvenor, Lt.-Col. R. C. Legh, Hon. Peter (Petersfield)
Crouch, R. F. Hall, John (Wycombe) Lindsay, Hon. James (Devon, N.)
Cunningham, Knox Harris, Frederic (Croydon, N.W.) Lindsay, Martin (Solihull)
Currie, G. B. H. Harrison, Col. J. H. (Eye) Lloyd-George, Ma|. Rt. Hon. G.
Dance, J.C. G. Heald, Rt. Hon. Sir Lionel Lagan, D. G.

really considered to be civilised, the country which keeps the death penalty and has an unarmed police force going about its occasions in a friendly manner or a country which has no death penalty, but which has policemen with pistols and, maybe, with sub-machine guns?

These are matters which I do not think have been fully considered. It is no good talking about Norway, Sweden or Denmark. They have no relevance to this country, as was realised by the Royal Commission itself. There is also the rather ugly matter of trigger happiness on the part of the police of Belgium. People brandish statistics against the retention of the death penalty, but they have not thought out the matter.

Is it not possible for an armed police officer to dispatch somebody in the course of his duty? That happened in West Germany, where the death penalty has been abolished, but where the police are armed. Not long ago a police officer killed a German civilian. The difference in this country is that though, may be, we keep the death penalty, we at least give people a trial before we dispose of them. I do not think that hon. Members opposite have really thought this one out, and I am very glad that my right hon. and gallant Friend gave the advice he did to the Committee

Question put, That those words be there inserted:—

The Committee divided: Ayes 129, Noes 160.

Longden, Gilbert Partridge, E. Steward, Sir William(Woolwich, W.)
Lucas, Sir Jocelyn (Portsmouth, S.) Pitt, Miss E. M. Stuart, Rt. Hon. James (Moray)
Mackie, J. H. (Calloway) Pott, H. P. Studholme, H. G.
McLaughlin, Mrs. P. Price, Philips (Gloucestershire, W.) Summers, G. S. (Aylesbury)
Manningham-Buller, Rt. Hn. Sir R. Profumo, J. D. Taylor, Sir Charles (Eastbourne)
Marshall, Douglas Raikes, Sir Victor Thompson, Kenneth (Walton)
Milligan, Rt. Hon. W. R. Rawlinson, Peter Thompson, Lt.-Cmdr. R.(Croydon, S.)
Molson, A. H. E. Redmayne, M. Tweedsmuir, Lady
Moody, A. S. Rees-Davies, W. R. Vaughan-Morgan, J. K.
Moore, Sir Thomas Ridsdale, J. E. Wakefield, Edward (Derbyshire, W.)
Morrison, John (Salisbury) Roper, Sir Harold Ward, Dame Irene (Tynemouth)
Mott-Radclyffe, C. E. Ropner, Col. Sir Leonard Waterhouse, Capt. Rt. Hon. C.
Nabarro, G. D. N. Schofield, Lt.-Col. W. Wills, G. (Bridgwater)
Nairn, D. L. S. Sharpies, R. C. Wilson, Geoffrey (Truro)
Nield, Basil (Chester) Simon, J. E. S. (Middlesbrough, W.) Woollam, John Victor
Oakshott, H. D. Smithers, Peter (Winchester)
O'Neill, Hn. Phelim (Co. Antrim, N.) Stanley, Capt. Hon. Richard TELLERS FOR THE AYES:
Pannell, N. A. (KirKdale) Steward, Harold (Stockport, S.) Sir Robert Grimston and
Mr. Airey Neave.
Ainsley, J. W. Griffiths, David (Rother Valley) Paling, Rt. Hon. W. (Dearne Valley)
Albu, A. H. Griffiths, Rt. Hon. James (Lianelly) Paling, Will T. (Dewsbury)
Allaun, Frank (Salford, E.) Gurden, Haroid Pargiter, G. A.
Allen, Soholefield (Crewe) Hale, Leslie Parker, J.
Astor, Hon. J. J. Hannan, W. Parkin, B. T.
Balfour, A. Hastings, S. Paton, J.
Balniel, Lord Hayman, F. H. Peyton, J. W. W.
Baxter, Sir Beverley Hinchingbrooke, Viscount Pitman, I. J.
Bence, C. R. (Dunbartonshire, E.) Holmes, Horace Plummer, Sir Leslie
Benn, Hn. Wedgwood (Bristol, S.E.) Houghton, Douglas Popplewell, E.
Bennett, F. M. (Torquay) Howell, Charles (Perry Barr) Price, J. T. (Westhoughton)
Benson, G. Howell, Denis (All Saints) Probert, A. R.
Beswick, f. Hughes, Emrys (S. Ayrshire) Pryde, D. J.
Bevan, Rt. Hon. A. (Ebbw Vale) Hunter, A. E. Pursey, Cmdr. H.
Blenkinsop, A. Hynd, H, (Accrington) Redhead, E. C.
Boardman, H. Irving, S. (Dartford) Robens, Rt. Hon. A.
Bottomiey, Rt. Hon. A. G. Jay, Rt. Hon. D. P. T. Rodgers, John (Sevenoaks)
Bowden, H. w. (Leicester, S.W.) Jeger, George (Goole) Ross, William
Bowen, E. R. (Cardigan) Jeger, Mrs. Lena(Holbn & St. Pncs, S.) Short, E. W.
Bowles, F. G. Jenkins, Roy (Stechford) Silverman, Julius (Aston)
Brockway, A. F. Johnson, James (Rugby) Silverman, Sydney (Nelson)
Brown, Rt. Hon. George (Belper) Jones, David (The Hartlepools) Simmons, C. J. (Brierley Hill)
Butler, Herbert (Hackney, C.) Jones, Elwyn (W. Ham, S.) Skeffington, A. M.
Butler, Mrs. Joyce (Wood Green) Jones, Jack (Rotherham) Slater, Mrs. H. (Stoke, N.)
Castle, Mrs. B. A. Jones, J. Idwal (Wrexham) Slater, J. (Sedgefield)
Champion, A. J. Jones, T. W. (Merioneth) Snow, J. W.
Collick, P. H. (Birkenhead) Joseph, Sir Keith Steele, T.
Corbet, Mrs. Freda Keegan, D. Stewart, Michael (Fulham)
Cove, W. G. Kenyon, C. Stokes, Rt. Hon. R. R. (Ipswich)
Craddock, George (Bradford, S.) King, Dr. H. M. Stones, W. (Consett)
Crossman, R. H. S. Kirk, P. M. Strachey, Rt. Hon. J.
Cullen, Mrs. A. Lawson, G. M. Stross, Dr. Barnett(Stoke-on-Trent, C.)
Dalton, Rt. Hon. H. Lee, Frederick (Newton) Taylor, Bernard (Mansfield)
Davies, Rt. Hon. Clement(Montgomery) Lee, Miss Jennie (Cannock) Teeling, W.
Davies, Harold (Leek) Lever, Harold (Cheetham) Thomas, P. J. M. (Conway)
Davies, Stephen (Merthyr) Lindgren, G. S. Thomson, George (Dundee, E.)
Deer, G. Mabon, Dr. J. Dickson Ungoed-Thomas, Sir Lynn
de Freitas, Geoffrey MacColl, J. E. Usborne, H. C.
Delargy, H. J. McInnes, J. Vickers, Miss J. H.
Dodds, N. N. McKay, John (Wallsend) Watkins, T. E.
Dugdale, Rt. Hn. John (W. Bromwich) MacPherson, Malcolm (Stirling) Weitzman, D.
Ede, Rt. Hon. J. C. Maddan, Martin Wells, William (Walsall, N.)
Edwards, Rt. Hon. John (Brighouse) Mathew, R. Wheeldon, W. E.
Edwards, Rt. Hon. Ness (Caerphilly) Maude, Angus White, Mrs. Eirene (E. Flint)
Edwards, Robert (Bilston) Mikardo, Ian Wigg, George
Evans, Albert (Islington, S.W.) Mitchison, G. R Wilkins, W. A.
Fernyhough, E. Monslow, W. Willey, Frederick
Finch, H. J. Morris, Percy (Swansea, W.) Wilson, Rt. Hon. Harold (Huyton)
Forman, J. C. Moyle, A. Woof, R. E.
Fraser, Thomas (Hamilton) Nicolson, N. (B'n'm'th, E. & Chr'ch) Yates, V. (Ladywood)
Garner-Evans, E. H. Noel-Baker, Francis (Swindon) Younger, Rt. Hon. K.
Gibson, C. W. Oram, A. E. Zilliacus, K.
Gordon Walker, Rt. Hon. P. C. Orbach, M. TELLERS FOR THE NOES:
Grenfell, Rt. Hon. D. R. Oswald, T. Mr. Kenneth Robinson and
Grey, C. F. Paget, R. T. Mr. Montgomery Hyde.

11.15 pm.

Major W. J. Anstruther-Gray (Berwick and East Lothian)

I beg to move, in page 1, line 16, to leave out subsection (3).

Sir T. Moore

On a point of order. May we assume that the discussion on this Amendment is, in effect, a Second Reading debate, since it applies a new law entirely to Scotland, and that all aspects of the Bill can be discussed?

The Chairman

This is a paving Amendment for the Amendment in Clause 2, page 2, line 15, at the end to add: (4) This Act shall not apply to Scotland. It has nothing whatever to do with Ireland. It is concerned entirely with Scotland.

Mr. S. Silverman

On a point of order. It is proposed to take with this Amendment the further Amendment in the name of the hon. and learned Member for Middlesbrough, West (Mr. Simon), in page 1, line 16, to leave out from "Scotland" to the second "for" in line 18?

The Chairman

That Amendment, which I was proposing to call, is a drafting Amendment and, I think, is an improvement to the Bill. The next Amendment that I intended to call is that in the name of the hon. Member for Belfast, North (Mr. Hyde) to Clause 2, page 2, line 15, at the end to add: (4) This Act shall not apply to Northern Ireland.

Major Anstruther-Gray

I should like to make clear to the Committee that the Amendment deals with a matter which has not yet been discussed either by the Committee or by the House of Commons on any previous occasion when the Bill has been before us. This is the first occasion that an hon. Member has put the case from the point of view of how the Bill will apply to Scotland. The basis of my case— if I can make myself heard in the Committee—

Mr. Glover

On a point of order. Is it in order for hon. Members to have a private committee meeting in the Chamber while my hon. and gallant Friend is speaking?

The Chairman

I could not hear the point of order, but I hope that the Committee will try to keep quiet, because the Amendment affects Scotland and, therefore, is very important.

Major Anstruther-Gray

I am most grateful to you, Sir Charles, for that observation.

The case that I am arguing is, indeed, very important to Scotland, because this will be an innovation in the Scottish law on murder. I am hoping that the Committee will accept my argument that the case I am putting for allowing Scottish law to stay as it is now is quite a different case from that which is put by those of my hon. Friends who argue that the English law should remain as it is.

I believe that the case I am putting to the Committee is a much stronger case, and I base myself on four points. First, the present law with regard to Scotland is quite different from the law with regard to England, and I shall deal with that a little later as best a layman may. Secondly, I believe that the law on murder is much more merciful in Scotland than it is in England, and that I hope will appeal to hon. Members on both sides of the Committee. My third point is that the present law in Scotland is working to the general satisfaction of the Scottish people. Finally, I shall put an argument that I can only hope will appeal to hon. Members on this side of the Committee, namely, that once a thing is working well it is a good plan to leave it as it is. I cannot expect that this last argument will appeal to hon. Gentlemen opposite.

May I go a little further in explaining how I, as a layman, understand the difference between the Scottish law and the English law today? In doing this, far be it from me to attempt to lecture hon. and learned Members on either side of the Committee, and from either side of the Border—

Mr. R. R. Stokes (Ipswich)

We like it.

Major Anstruther-Gray

The right hon. Gentleman is certainly not learned and he could learn a great deal by listening to what I have to say, not only on this subject. I hope, therefore, that if only one hon. Member of the Committee listens to me with great attention, it will be the right hon. Gentleman.

In Scotland, we have the doctrine of diminished responsibility. All lawyers will know what that means but what I believe it means, and what, I hope, is the same thing, is that the jury are satisfied that although the accused man was not insane, yet he was, nevertheless, suffering from mental weakness or abnormality bordering on insanity to such an extent that his responsibility was substantially diminished. In that case, the crime is reduced from murder to culpable homicide, as we say in Scotland, or to manslaughter as the term goes in England.

It goes further than that. As I understand, the defence have another great advantage, namely, that they do not have to establish diminished responsibility beyond all reasonable doubt. On the contrary, the defence only have to satisfy the jury that the balance of probability is in favour of the view that the accused's accountability and responsibility were below normal at the time when he committed the murder. As a layman, I cannot help feeling that that means a great deal in dealing with these cases.

I read with interest, as I am sure most hon. Members did, the pamphlet sent us from the Observer with 80 or more cases of murderers who had paid the penalty of death. Reading through the short accounts of those cases, it seemed to me that there were a great many in which the murderer would not have been executed had he been tried under Scottish law. With all seriousness —this is not a wrecking Amendment—I put it to hon. Gentlemen opposite that there is a good deal of humanity and reason behind the case that I am endeavouring to put to the Committee.

The second important difference between Scottish and English law is that of constructive malice. As I understand it, in England a man may be guilty of murder when he did not intend to kill, for example, where death is caused by an act of violence during a felony although there was no intention of killing. In Scotland —I am choosing my words carefully, and I believe they were spoken by the late Lord Cooper, whom many of us knew as Tommy Cooper, as good a Lord Advocate as Scotland has had for many a long year—[Laughter.] I meant no affront to my right hon. and learned Friend the Lord Advocate. I do not know why hon. Gentlemen opposite should take it in that manner. My right hon. and learned Friend knows perfectly well what I mean.

Mr. Jack Jones (Rotherham)

No "malice aforethought".

Major Anstruther-Gray

It is very nearly true to say that in Scotland we have practically reached a position where only intentional killing is murder. I cannot feel that hon. Members opposite and hon. Friends of mine who have been voting today to abolish the death penalty really intended that intentional murderers should in every case escape execution—it may well be in many cases, but not ineverycase—and that is why I am troubling the Committee by moving my Amendment. I would quote the words of the Royal Commission: The fact that a homicide was committed in the perpetration of any crime has no necessary effect in Scotland in establishing whether or not murder has been committed. My third point is that in Scotland the present law is more merciful than has been the case in England. I cannot do better than quote from the Royal Commission again: …The impression we have formed & is that there is a certain difference of approach between the two countries leading to a greater tendency towards leniency in Scotland. If there are any waverers, and there may well be judging by the way the voting has gone during today's proceedings, I feel that they should take heed of the fact that the Royal Commission finds that the present law in Scotland is more lenient. Therefore, the waverers should hesitate a great deal before they upset a system which is working to such general satisfaction.


To go from opinion to facts, for a period of no less than seventeen years, between 1928 and 1945, not a single individual, man or woman, was hanged in Scotland. If the hon. Member for Nelson and Colne (Mr. S. Silverman) will allow me, I should like to address to him the following argument. Many people have said that the deterrent has some value. Opinions have differed about whether it is of great or little value, but there are few people who could substantiate a case for saying that the deterrent is of no value at all. For seventeen years in Scotland, without requiring to use our ultimate sanction, we have yet had all the advantages of a deterrent, which I regard as considerable.

My final point is that the present system in Scotland has worked well. I have said that for 17 years it has been unnecessary to execute anybody. I have said, and I am sure that it is true, that there is very little feeling in Scotland in favour of a change. Therefore, as a Conservative Member, I put it to my hon. Friends that the law as we have it is working well. To them I would say, "Please do not meddle with it. Allow us to go on in Scotland as we have in the past."

Mr. G. M. Thomson

The hon. and gallant Member for Berwick and East Lothian (Major Anstruther-Gray) has put such an eloquent case against his own Amendment that it is unnecessary to go into great detail. He put clearly, and I hope for the elucidation of hon. Members from England and Wales, the many advantages in Scottish legal practice for many years. There is no doubt that there are many ways, to which the Royal Commission referred, in which Scottish practice in judicial matters of murder has been more humane than in the South of the United Kingdom.

In those circumstances, as Scottish traditions have been more progressive and more humane, it would be very wrong to bring about a situation in which it would be Scotland which would lag behind the rest of the United Kingdom in the abolition of judicial murder. If the decision of the House on Second Reading had been the other way, there would then have been a strong case for experimenting with the abolition of the death penalty in Scotland. I can see no case at all, in the light of Scottish practice, for retaining capital punishment in Scotland, when it is abolished in the rest of the United Kingdom.

I do not hope to carry a great deal of conviction myself in this matter with those hon. Members who support the Amendment, but I should like them to pay some attention to the words used by the Glasgow Herald, a leading Conservative newspaper in Scotland. The Glasgow Herald was against abolition of the death penalty when the Bill was first introduced, but once the House had taken its decision the Glasgow Herald expressed a different view and one to which hon. Members opposite should give some attention. In a leading article shortly after the House had taken its decision, the Glasgow Heraldsaid: The Scottish Unionist amendment has its own peculiarity. However true it may be that only one Unionist member, Sir Robert Boothby, has shown himself a supporter of the Bill, it is impossible to justify exemption for Scotland on that ground alone. It must rather be considered that the proportion of reprieves allowed to convicted murderers in Scotland in this century argues for the abolition of the penalty in Scotland if nowhere else. The Royal Commission on capital punishment found clear evidence of ' a greater tendency towards leniency in Scotland'; it was also found that this was ' not due to the idiosyncracy of any one Secretary of State.' Indeed, during the 18 years from 1928 to 1945 there were no executions in Scotland at all. No evidence has been brought to show that Scottish needs or Scottish opinions now suddenly conflict with the desire of the majority of members in the House. Those are powerful arguments, and 1 do not see how this House, having gone through all these stages of the Bill, can now take the decision to exempt Scotland from the operation of the Bill. Indeed. the evidence from Scotland greatly supports the principle put forward in the Bill. The hon. and gallant Member mentioned the long period during which there was no execution in Scotland and when there were 100 per cent. reprieves. The figures given in the Report of the Royal Commission on Capital Punishment are extremely interesting. From 1919 to 1928 there were 142 murders in Scotland, and in the period from 1929 to 1950, including the period when there were no executions, there were only 128 murders. The highest number of murders in Scotland occurred at the time when there was the lowest number of reprieves.

We have heard a great deal about the deterrent, and the hon. and gallant Member made a point about it. We have been discussing whether the deterrent ought to be retained in the case of a murder committed in the course of robbery, but evidence from Scotland during the period of 100 per cent. reprieves when the criminal classes knew that there was little likelihood of their hanging there were the fewest such murders. For those reasons, I think the Committee ought to reject the Amendment.

Colonel Sir Alan Gomme-Duncan (Perth and East Perthshire)

On a point of order, Sir Charles. Some of us are not clear whether we have the right to discuss the Amendment to Clause 2, page 2, line 15, stating that the Measure shall not apply to Scotland, while we are discussing this Amendment.

The Chairman

Oh, yes, the present Amendment is a paving Amendment.

Captain J. A. L. Duncan (South Angus)

I should like to support the Amendment, which, of course, is a paving Amendment. The main point is whether the Bill shall apply to Scotland at all, and in reply to the hon. Member for Dundee, East (Mr. G. M. Thomson) on the question of the deterrent, I would quote from page 363 of the Report of the Royal Commission, where Lord Cooper, whom my hon. and gallant Friend the Member for Berwick and East Lothian (Major Anstruther-Gray) has already quoted, said: Twice over in my life I have experienced what looked like, and probably would have been, the development of a very ugly situation in connection with gangster warfare, which was nipped in the bud by sternly repressive measures and by the execution of the death sentence in several cases. There is a very responsible judge, the Lord Justice General for Scotland, who said that in his experience gang warfare just after the war was nipped in the bud by severely repressive measures which he regarded as necessary in the interests of the general public and of the protection of the public in Scotland. In his opinion, and in my opinion, there is something in the argument about the deterrent which should not be overlooked in this connection.

This is not a wrecking Amendment, I hope the hon. Member for Nelson and Colne (Mr. S. Silverman) will agree, because this question of the inclusion or exclusion of Scotland has never yet been adequately discussed in this House, and this is the first opportunity we have had of doing so. Whatever the law in England may be or may be in future, the law of Scotland has been different.

My hon. and gallant Friend has referred to various differences: the law of diminished responsibility, and the fact that there is no law of constructive malice in Scotland. I would emphasise that I am talking as a layman and am not able to argue the legal niceties, although I think I understand what they mean. It is interesting to note that suicide is not a crime in Scotland. If there is an agreement between two persons to die together and one fails, then the survivor is not necessarily up for a crime of murder.

There is a complete discretion with the Lord Advocate in Scotland, in all cases where murder has been committed, to consider freely whether the capital charge should be preferred or not. Here again I would quote from the Royal Commission's Report: In Scotland the law in this respect as in several others, is more elastic. We were informed by the Crown Agent that 'the Lord Advocate has complete discretion in the prosecution of crimes, and cannot be compelled to prosecute at his own instance, even by the High Court of Justiciary. When proceedings have been instituted he is complete master of the instance, remains master until he has moved for sentence, and may abandon any charge in whole or in part. It is open to him entirely to prefer the capital charge or not. In the course of the case, either the Crown Prosecutor or the defence can apply to reduce the capital charge to one of culpable homicide, or less.

We in Scotland have always prided ourselves on having our own laws. We in Parliament have devised a method by which Scotsmen in the Scottish Grand Committee can look after Scottish law in our own way. After the Second Reading of a Bill on the Floor of the House, the Bill is certified by Mr. Speaker to be a Scottish Bill and we can send it to the Scottish Grand Committee. In that way Scottish law, which has always been different from English law, can be adapted to Scottish needs. I submit that this is a case where, if there is a general desire in Scotland for a change in the law on murder, it should be done under that procedure, and that Scotland should not be tagged on to the end of an English Bill.

There may or may not be a desire in Scotland to change this law. From all the evidence we have received up to date —from meetings, reports, resolutions, and so forth—there appears to be no such desire, whatever the hon. Member for Dundee, East may say. Scotland in this way is perhaps conservative and does not want to change what is working reasonably well.

Whether that is the case or not, I want to appeal to English Members not to support a Bill which attempts to tag Scotland on to the end of it—a Bill dealing with English law and not Scottish law, and where doubts have arisen under English law and not Scottish law. There has never been a case of doubt in Scotland, so far as I know.

So I ask, if there is a real expression of opinion in Scotland for such a change, that the Secretary of State for Scotland be allowed to introduce his own Bill, or that a Scottish Member introduce a Bill, and for it to pass through the normal Scottish procedure.

Mr. George Lawson (Motherwell)

Has the hon. and gallant Gentleman been voting on those Clauses which relate to the United Kingdom, including England?

Captain Duncan

As a Member of the United Kingdom Parliament I have a duty to vote on behalf of my constituents. Angus is as much a part of the United Kingdom as Motherwell, and I see nothing inconsistent in voting on the United Kingdom Clause as I have done tonight.

11.45 p.m.

Mr. J. Stuart

The hon. Member for Nelson and Colne (Mr. S. Silverman) referred to the fact that I have made a maiden interjection in the debate, but 1 am afraid that I shall now be worse than a "maiden", although I do not know what the appropriate word for that would be.

This and the later Amendment would exclude Scotland from the scope of the Bill. If it were accepted, a person convicted in Scotland of murder would be sentenced to death while a person convicted in England of murder would instead suffer imprisonment for life. It has been argued, as it can well be argued, that this distinction is justified on account of the differences in the law of murder between the two countries. My hon. Friends have mentioned certain of these differences and, in view of the late hour, I will not go into them. My intervention will be brief.

Whatever conclusions one may reach from considering the differences in the law between the two countries, I agree with my hon. Friends who have tabled the Amendment when they reasonably contend that the Amendment should have the Government's sympathy. I must confess that it has my personal sympathy. The Government have already indicated their disagreement with the underlying principles of the Bill and to that extent I agree that the exclusion of Scotland from the scope of the Bill and the preservation of the existing law in Scotland could be represented, as in accord with the Government's general view; that is a perfectly logical view to take. For those reasons the Government view the Amendment with sympathy.

But I must state, against this, that in the Government's opinion it would be an anomalous position if murder were to attract the death penalty in one part of Great Britain and not in another. While I sympathise with my hon. Friend's views and realise that there are these differences in the law between the two countries, the moral guilt of a person convicted of the same type of murder is the same in both countries, and it would be difficult for the Government to justify the imposition of a much more drastic penalty in one country than in the other.

Major Anstruther-Gray

Already in the case of suicide a very serious view is taken in England and a lenient view in Scotland. Surely that principle could be pursued further.

Mr. Stuart

I think that my hon. and gallant Friend is referring to attempted suicide and to suicide pacts, but I am here dealing with the main question, which is the penalty that should be imposed for a crime of this magnitude as between one part of the United Kingdom and another.

While, as I have said, I sympathise with the views of my hon. Friends, on the whole the Government view is that they could not regard it as satisfactory legislation to enact a law which would result in a different penalty being imposed in Scotland for a crime for which the existing penalty and the degree of moral guilt are identical in both countries. Therefore, I must say to my hon. Friends that on this very important matter the considered view of the Government is that there should be uniformity on both sides of the Border.

Sir T. Moore

Before my right hon. Friend sits down, would he note that there is a later Amendment on the Order Paper which is supported by the promoter of the Bill, the hon. Member for Nelson and Colne (Mr. S. Silverman), to the effect that Northern Ireland should be excluded from the scope of the Bill? Surely Northern Ireland is as much a part of the United Kingdom as is Scotland, and therefore the argument used by my right hon. Friend would seem to fall to the ground if, in fact, the exclusion of Northern Ireland is to be accepted by the promoter of the Bill?

Mr. Stuart

I think that the case of Northern Ireland must be treated separately because, as I understand it, the Constitution there is different.

Sir A. Gomme-Duncan

I regret very much the Government's decision on this matter, although I think it has been very reasonably put by my right hon. Friend. The fact that the law in Scotland is different from that in England seems to me to justify different penalties for the same crime, because otherwise there is no reason for having a different law.

I should like to speak for a few moments of my experience as Inspector of Prisons for Scotland. I am absolutely convinced from the evidence which I was able to collect within the prison walls that the death penalty is a deterrent. All the criminals to whom I spoke, and there were many, including reprieved murderers, all admitted quite frankly that the death penalty was a grave deterrent to their acts. Those who were under the age where the death penalty could be imposed said that had they been of that age they would not have attempted to do what they did.

I feel that the evidence of the criminals themselves is not a bad type of evidence to have in a matter of this kind. The problem is to decide whether the death penalty is or is not a deterrent. Speaking as a Scotsman and as one hoping to do the best for my country, I conscientiously believe that to do away with the death penalty would be a disadvantage to Scotland, particularly as fewer people can be hanged in Scotland than in England.

It is necessary to bear in mind the view of the criminals themselves. [Laughter.] This is not a laughing matter at all. Although it is some years ago now, I cannot believe that there has been any radical change in the view of the criminals on this subject. I am sure that if they were asked their view today we should get the same answer. For this reason I very much hope that reconsideration will be given to this point.

Mr. John Arbuthnot (Dover)

I wish to support most strongly the views expressed by my hon. and gallant Friend the Member for Berwick and East Lothian (Major Anstruther-Gray). The fact that England may go off the rails does not seem to me to be an adequate reason why Scotland should be dragged at her chariot wheels into the English mistake. Scotland ought to have an opportunity to decide what she is going to do in this matter. I feel certain that the death penalty is a deterrent. That it is a deterrent was subscribed to by the hon. Member for Nelson and Colne (Mr. S. Silverman) when, in the debate on Cyprus the other day, he prayed in aid the fact that the people who were hanged did not know when they committed the offences that the death penalty was a possible consequence of their committing them.

Therefore, as a Scotsman, I feel it is important that Scotsmen should have the opportunity to decide for themselves what they want to do and should not necessarily be bound by the legislation which England may decide to have.

Sir T. Moore

I am, perhaps, in a unique position tonight. Hon. Members opposite have reminded me of it. I am a Scotsman by adoption and an Irishman by birth. Therefore I can see the advantages which can be claimed for England by my hon. and gallant Friend the Member for Berwick and East Lothian (Major Anstruther-Gray) and the advantages to be gained for Northern Ireland by the Amendment, to be moved later, which is supported by the promoter of the Bill, the purpose of which is to exclude Northern Ireland from the provisions of the Bill. At the same time, I see an important reason why a majority of the hon. Members of the Parliament of Great Britain should not seek to impose upon Scotland a law which Scotland, according to my knowledge, does not wish to have.

I have read all, or nearly all, that has been written on the abolition of the death penalty during the last three or four months. I have listened to all, or nearly all, the debates on the subject. As a result, my opinion is in no way altered about the rightness of opposing this Bill. I am amazed that so many good, honourable, well-meaning people should take such divergent views on the same subject. I do not assume for one minute that hon. Members on both sides of the Committee do not genuinely believe that they are taking the right course in trying to abolish capital punishment.

The Chairman

This Amendment refers only to Scotland.

Sir T. Moore

That is one of the reasons why I want to influence English hon. Members to see our point of view. I thought that hon. Members opposite would have sufficient honesty of mind to realise that in Scotland we have a right to determine in many ways our way of life and our method of conducting our business.

Sir Ian Fraser (Morecambe and Lonsdale)

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.

Sir T. Moore

I think it will be agreed that the exclusion of Scotland from the provisions of this Bill has not been fully discussed. Certainly it has not been as fully discussed as Scottish hon. Members would like it to be. We have a responsibility, as I hope English hon. Members will realise, to our people in Scotland.

It being Twelve o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.

Committee report Progress; to sit again this day.