§ Order for Second Reading read.
§ 3.55 p.m.
§ The Secretary of State for the Home Department and Minister for Welsh Affairs (Major Gwilym Lloyd-George)
I beg to move, That the Bill be now read a Second time.
During the last year we have spent a good deal of time on, and given a good deal of thought in the House to, the problem of capital punishment, and I do not propose this afternoon to traverse a lot of the ground which has been already covered. As the House knows, the Government have all along taken the view that it was essential to have capital punishment as a safeguard for the maintenance of law and order and that it ought not, therefore, to be abolished.
Last Session, when the House had before it proposals for abolishing capital punishment, I pointed out that, in this country, we had a homicide rate which is among the very smallest, if not the smallest, in the world. I also drew attention to the fact that the professional criminal, who would have so much to gain by murder, rarely commits it because, in my view—and in the view of those far better qualified to express an opinion—he does count the cost, and thinks it too high. I said that I was not prepared to dispense with a deterrent which appears to safeguard this state of affairs.
It appeared from the debate here, and from discussions elsewhere, that there was a considerable body of opinion which, while opposing abolition, would welcome some restriction of its scope, either by a more extensive use of the Royal Prerogative, as was suggested by Viscount Samuel, or by restricting sentences of death to certain types of cases. The Government are entitled, indeed, they have the duty, to look into all the suggestions that have been made both here and in other places, and we have given long and very serious consideration to the many views put forward on the problem. We have come to the conclusion that it would be wrong for us to assent to, and, a fortiori, to introduce, a Measure abolishing capital punishment.
The Government carry the responsibility of the maintenance of law and 1145 order. That is the first and fundamental duty which rests on any Government. It rests squarely on the Executive. The Government said that they were not prepared to dispense with this instrument, as I have just mentioned. The Government are entitled, as the responsibility rests on them—and particularly on the Executive—to look to Parliament to support them in the basic task, but there is no escaping the fact that the prime responsibility rests upon the Executive.
The Executive has the duty of advising Parliament what laws it believes necessary if the Queen's peace is to be maintained. By the "Queen's peace", I mean more than the mere absence of disorder. I mean a state of affairs in which people can go about their business without fear. We shall fail in our duty if we acquiesce in changes in the law which result in their peace of mind being disturbed by fear of violence. People do fear that, if the deterrents which restrain criminals from carrying weapons are removed, they will be exposed to attacks by men who will have little to lose from adding murder to their other crimes.
How can we say, with crime—and particularly, I am sorry to say, with violent crime—at its present level, that these fears are groundless? How can we tell the public, believing as we do, on the authority of those qualified to know, that criminals are deterred by capital punishment from lethal violence, that we nevertheless propose to abolish capital punishment? We cannot find such a course consistent with our duty.
In this Bill we limit the use of the death penalty to the minimum, and bring its deterrent power to bear where it is most needed and most effective. We preserve capital punishment where the public most fear the consequence of its abolition. We preserve it where it can make its proper and necessary contribution to the maintenance of law and order.
A good deal is said about public opinion on this question; but it has not been suggested, even by those in favour of abolition, that a majority in this country are in favour of abolition. Indeed, I think that hon. Members have found the contrary to be true.
It is suggested, rather, that it is the duty of the Government to act in advance of public opinion. There are some matters on which I have no doubt that 1146 it is right for the Government to move in advance of public opinion. They may, for example, introduce measures of social reform to promote the well-being of the people even though their proposals may be strongly opposed. It is a different matter, surely, for the Government to remove one of the safeguards designed to preserve law and order which it is the paramount duty of all Governments to maintain.
Some hon. Members may think that the public are wrong, but the public are, nevertheless, entitled to protection and it is no part of our duty to deprive them of it because some think they know better. I am not arguing that abolition would be wrong in the absence of a specific mandate: there are many matters, of which this is one, which could hardly be made an Election issue and which would, in any event, be swallowed up in larger issues. But I am suggesting that it is the duty of every hon. Member, as the representative of all his constituents, to consider their security and peace of mind.
§ Mr. R. J. Mellish (Bermondsey)
I am grateful to the right hon. and gallant Gentleman for giving way. I am following his case very carefully. I understand him to say that he believes that public opinion would be alarmed if capital punishment were abolished. I put it to him that for 16 months there has been no capital punishment, but so far as I can judge, to the best of my knowledge, there has been no alarm on the part of the public.
§ Major Lloyd-George
The hon. Gentleman is not right in saying that for 12 months capital punishment has been abolished.
§ Major Lloyd-George
The hon. Gentleman would not be right to say that capital punishment has been abolished for 12 months or 16 months. As I made it clear in the House when I was questioned about the subject, every case is treated on its merits, as in the past.
§ Major Lloyd-George
That does not matter. It is not right to say that there has been no capital punishment for 16 months. I can only repeat my argument.
1147 I am trying to deploy my case. I, personally, believe, and others who are far better qualified than I am also believe—
§ Major Lloyd-George
There are the police, among others. They know nothing about crime, of course! There are also prison officers. These are people who really are supposed to know something about it. I do not want to get into a controversy about this. I am simply making a statement, and I do not want to be unduly controversial about it. I am just stating why I think that the Bill is necessary. I shall do it better if I am allowed to develop my argument in the ordinary way.
I repeat that I believe that the majority of the people of this country are not in favour of abolition. That is my firm belief, and it is backed up by some evidence. There is, nevertheless, in the minds of many people uneasiness about the scope of capital punishment and a desire that it should in some way be limited.
When an important element in the criminal law causes uneasiness in the public mind it is the duty of the Government to consider how the law can be made to correspond more closely with what the public wants to see done in its name.
This is the problem which we have been considering for some time; how to maintain adequate safeguards of law and order and, also, to give effect to the wish to see the scope of capital punishment restricted. There are, broadly speaking, two ways in which this could be done.
One is to leave the law as to capital punishment as it is and to make greater use of the Royal Prerogative of mercy. This course had a distinguished advocate in another place in the person of Lord Samuel, but it would not be acceptable to many people who think that the Executive ought not to interfere, except in the most exceptional circumstances, with the decisions of the courts, and that people ought not to be sentenced to death if the sentence is not going to be carried out.
1148 The other course is to amend the law, and this is the course that we have adopted. The Bill before the House approaches the problem in two ways. It amends the English law of murder so that some homicides which at present are murder will, in future, be manslaughter, and it limits capital punishment for murder to those crimes which most clearly strike at the maintenance of law and order, substituting life imprisonment as the punishment for the remainder.
We propose to take out of the category of murder those homicides about which opinion has long been uneasy: homicides which are murder only by virtue of the doctrine of constructive malice; homicides by people who, though not insane, are gravely abnormal; homicides under severe provocation by words alone; and homicides in pursuance of a suicide pact.
We propose to confine capital punishment, broadly speaking, to murder by professional criminals; murder of the agents of law and order— policemen and prison officers; murder by shooting or causing an explosion, methods which are peculiarly dangerous and indiscriminate and are associated with gang warfare and political terrorism; and murder by the man who makes a practice of murder.
In this way we keep capital punishment where it is most needed and most effective; that is, in the main as a deterrent against professional criminals carrying and using lethal weapons, and as a protection for public servants who are particularly exposed to attack.
The effect of these two groups of proposals is to reduce substantially both the number of people who will be convicted of murder and the number of those convicted who will be sentenced to death, and, in consequence, the number executed.
It is not easy to assess the effect of the change numerically because, obviously, one cannot say who would have escaped conviction of murder had a different defence been open to him, but on a very rough estimate I should say that the effect of the limitation of capital punishment alone— that is, not taking into account the reduction of certain murders to manslaughter, will be to reduce the number of capital sentences passed in civil courts in England and Wales by about three-quarters.
§ Major Lloyd-George
Curiously enough, it happens that there is not a very great difference in the figures for convictions and executions over the last fifty years. In the one case it would be from twenty-five to six and in the other from thirteen to four.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
Does it mean that the Bill will not make any difference to the number of executions?
§ Mr. Frederick Willey (Sunderland, North)
Can the right hon. and gallant Gentleman deal with a further point? I apologise for interrupting prematurely if he proposes to deal with it later. I appreciate what he has been saying. I suggest that we should disregard the period during which capital punishment has, in effect, been suspended. Could he take a reasonable period before that and assume that the provisions in Clauses 5 and 6 had then been in operation and tell us how many people then reprieved would, nevertheless, have been liable to capital punishment under these provisions; and could he also say how many people then executed would not have committed capital offences if these provisions had been in operation?
§ Major Lloyd-George
As I said, it is very difficult to assess what the effect will be, because in many cases one would not know whether an effective defence would have been available. I have the figures for the last fifty-five years, I think it is; I am sorry I have not got the exact answer by me at the moment, but my recollection is that the figures show an average per annum of 25 executions, if I remember aright— no, I am sorry; 13 is the average number of executions, and under this we think it will be about four. That is roughly the decrease; as I said, it is about three-quarters.
§ Major Lloyd-George
I was trying to develop my case, and I shall be most grateful if I am allowed to do so, It always happens that if I am interrupted in this way I take much longer than I want to do. We are having a debate. Hon. Gentlemen will have plenty of opportunity to ask questions, and my right hon. and learned Friend the Attorney-General will be very happy to answer them.
The fact is, as I have explained, that as a result of the Bill, which is based largely on the principle of keeping law and order, certain crimes will no longer be capital; and that is very largely why we estimate that there will be this reduction. The hon. and learned Gentleman the Member for Northampton (Mr. Paget) may disagree, but I can only give him the reason.
One result of the Bill will be that there will no longer be large numbers of people sentenced to death but reprieved by the exercise of the prerogative. This will be so both because the total number of persons sentenced to death will be lower and because the capital crimes will, in the main, be those in which it is not common to find mitigating circumstances. There will, no doubt, be some occasions for the exercise of the Royal Prerogative, but we shall not have the spectacle, which, I believe, often offends public sentiment, of numerous people being sentenced to death when everyone knows that at is unlikely that the sentence will be carried out.
Let me make quite clear what the Bill does not do and does not attempt to do. It does not create two degrees of murder, the one consisting of the more heinous crimes, the other of the less. It does not attempt to reduce the gap between the number sentenced to death and the number executed by making the operation of the law coincide with that of the Royal Prerogative. It does not attempt to do these things, because we believe them to be impossible.
As the Royal Commission on Capital Punishment pointed out, moral heinous-ness depends not on the objective characteristics of a class of offence, but on all the circumstances of a particular murder and a particular murderer. The difficulty is most clearly seen, I think, when one considers, shall I say, the sort of case with which my right hon. and learned 1151 Friend the Attorney-General will deal later, namely, poisoning. A moral test cannot be applied by Statute, but only by the exercise of discretion in individual cases.
A moral test has hitherto been applied by the exercise of the Royal Prerogative, but the result has been to create that discrepancy between law and practice which is so often criticised, from one point of view as too great an interference by the Executive in the operation of the law, and from another as cruelly exposing to the distress of undergoing sentence of death a large number of people who will not be executed.
If the law cannot draw moral distinctions, and the prerogative, in the view of many, ought not to, we see no alternative but to seek some other principle on which to base the desired reduction in the scope of the death penalty. We reject, for reasons which we have discussed on other occasions, reasons which I think are generally accepted, the idea that discretion should be exercised by the judge or the jury. The principle which we selected and which, as I have explained, lies at the root of our thinking on this subject, is the principle of limiting capital punishment to the minimum essential for the maintenance of law and order. We have selected the capital categories so that they cover the form of murder most inimical to the public peace and most likely to be prevented by the deterrent effect of the death penalty.
I will remind the House that the Royal Prerogative of mercy will still remain in reserve, but since the capital classes are in the main those in which mitigating circumstances cannot often be found and the proportion of reprieves is relatively low, the occasion for its exercise will be much reduced.
Theoretically, I suppose, the ideal solution would be for the law itself to distinguish those who should be executed from those who should not, but the fact that the ideal solution is unattainable should not blind us to the possibility that some other solution, although it falls short of perfection, like much else in this world, may nevertheless be adequate and workable.
Part I of the Bill contains the amendments of the law of murder. These give effect to undertakings which I gave to 1152 the House in the debate in February last, and, in the main, to the recommendations of the Royal Commission.
§ Mr. Sydney Silverman (Nelson and Colne)
May I intervene before the Home Secretary comes to that? I thought the right hon. and gallant Gentleman was going to tell us what principle the Government had decided upon to distinguish between those murderers one hangs and those murderers one does not hang, it being conceded that there is no difference in the moral obliquity involved.
§ Major Lloyd-George
I do not think I can say it all again for the hon. Member. I do not think that he was listening as much as he ought to have been. I have an idea that I heard him say at one point that it did not matter much what I said. The fact is, as I have already explained at least twice in the course of my speech so far—
§ Major Lloyd-George
I have said it twice; the hon. and learned Member for Northampton ought to listen, although he is reading as well. It is really very difficult for me, when I am trying to develop my speech, if I am to be interrupted in this way. Hon. Gentlemen really ought to do me the courtesy of listening. I have said at least twice since I started my speech that the principle on which this Bill is based is the preservation of law and order.
§ Major Lloyd-George
To those of us who have had some experience of these matters, it means a great deal more. It is not right to suggest, as the hon. Member for Bermondsey (Mr. Mellish) said, that there is no fear in the minds of people in this country. I have myself had many expressions of opinion on the fear of what might happen if this goes altogether. I am satisfied, also, that the low homicide rate in this country, one of the lowest in the world, is due to the fact that criminals are not armed.
§ Mr. S. Silverman
I give the Home Secretary a pledge that I will not interrupt him again, but, with great respect to him, I find it almost impossible 1153 to follow what he is saying. One can understand the importance of preserving law and order, but surely the Government are not contending that law and order is not involved in those murders which are not to be capital, whereas it is involved in those which are?
§ Major Lloyd-George
That intervention, if I may say so, is an example of what makes it so difficult to give way to the hon. Member. Half of his interruption is what he ought to put in a speech of his own. It makes my task almost impossible. As you, Mr. Speaker, said the other day, this is a debating Chamber, not a place for argument.
Part I of the Bill, if I may resume my speech, contains the amendments to the law of murder. I gave undertakings on 16th February last year about certain references to the recommendations of the Royal Commission. I will describe them briefly in terms which I hope will be comprehensible to the laymen among us. I ask the lawyers to forgive me if, in dealing with some highly technical matters, I sacrifice strict accuracy to brevity.
Part I does not apply to Scotland, where the law of murder is different and does not need amendment on these lines. This part of the Bill does alter the law as administered by courts-martial, whether sitting at home or abroad. Clause I abolishes the doctrine of constructive malice. Its effect is that a killing in the course of a felony, resisting an officer of justice, avoiding or escaping from legal custody or from arrest will not be murder unless it is done with intent to kill, or to do grievous bodily harm; in other words, unless it is murder in its own right, so to speak, irrespective of the fact that it is done in the course of a felony or other offence to which I have referred.
Clause 2 introduces into the law of England and Wales the Scottish doctrine of diminished responsibility as nearly as maybe, having regard to differences in law and practice on the two sides of the border. Although one can fairly say that the Royal Commission was attracted to the idea of introducing diminished responsibility, it was thought that it should not be introduced in respect of murder alone. However, we do not feel the same difficulty. A defence of 1154 diminished responsibility is of little practical importance, except where there is a fixed sentence, either of death or life imprisonment.
The effect of the Clause is that if a person charged with murder can satisfy the jury that at the time of the killing he was probably suffering from such abnormality of mind from one or other of certain specified causes, that his mental responsibility for the act in question was substantially diminished, he will be entitled to a verdict of manslaughter. At present, a person's mental state affects the verdict only if the defence can show that he was insane within the meaning of the M'Naghten Rules, that is, that he was suffering from such a defect of reason due to disease of mind that he either did not know what he was doing, or did not know that it was wrong.
This will remain the test of insanity leading to a verdict of guilty, but insane. A new defence will be open to those who, although not insane in this legal sense, are regarded in the light of modern knowledge as insane in the medical sense and those who, not insane in either sense, are seriously abnormal, whether through mental deficiency, inherent causes, disease or injury. The defence is intended to cover those grave forms of abnormality of mind which may substantially impair responsibility. It is not intended, however, to provide a defence to persons who are merely hot-tempered, or who, otherwise normal, commit murder in a sudden access of rage or jealousy. Persons found guilty of manslaughter under this Clause will be liable to such punishment as the court sees fit to impose, including imprisonment for life, as are those in Scotland who plead diminished responsibility.
I come now to Clause 3. It was laid down in a case in the House of Lords, in 1946, that in no case could words alone, save in circumstances of a most extreme and exceptional character, amount to provocation sufficient to reduce murder to manslaughter. This Clause implements the recommendation of the Royal Commission that the nature, as distinct from the degree, of provocation should be immaterial. It provides that where there is evidence on which the jury can find that the accused was provoked to lose his self-control, the jury 1155 shall, in considering whether the provocation was sufficient to justify a verdict of manslaughter, take into account everything both done and said, according to the effect that it thinks it would have on a reasonable man. The jury will be able to bring in a verdict of manslaughter where there was grave provocation, notwithstanding that it was by words alone.
Clause 4 deals with suicide pacts. It provides that it shall no longer be murder, but manslaughter to kill another, or to be a party to his taking his own life, in pursuance of a suicide pact. Here, we have gone somewhat beyond the recommendation of the Royal Commission. The Commission recommended that to aid, abet or instigate suicide should be a specific new offence, but that person who himself killed the other party to a suicide pact should remain guilty of murder.
The Commission was impressed by the difficulty of distinguishing the genuine suicide pact from the fraud. This is no doubt a very difficult thing, but it is also difficult in some of the commonest cases, such as suicide by gassing, to know whether the survivor did or did not kill the other party. We have come to the conclusion that in the context of the proposals elsewhere in the Bill we are justified in being somewhat more liberal than the Royal Commission and we have extended the provision to the survivor who killed the other party if, when he did so, he had the settled intention of dying himself.
Part II of the Bill, which applies to England, Scotland and Wales, restricts liability to capital punishment. Clause 5 creates five classes of capital murder. They are murder in the course or furtherance of theft, which is defined to include any offence which involves stealing, or done with intent to steal; murder by shooting or causing an explosion; murder to resist or avoid lawful arrest, or escape or rescue from legal custody; murder of a police officer in the execution of his duty, or a person assisting him; murder by a prisoner of a prison officer similarly acting, or a person assisting him. "Prisoner" is defined to include a person liable to be detained in prison who is unlawfully at large.
Clause 5 (2) provides that if two or more persons are guilty of a murder within one of those classes, it shall be capital 1156 only for those who actually killed or inflicted or attempted to inflict grievous bodily harm on the victim, or used force on him in furtherance of the attack. An accomplice will not be guilty of capital murder, unless he used or attempted to use violence on the murdered man.
Clause 6 (1) retains capital punishment for a person convicted of two murders done in Great Britain on two different occasions. It is intended primarily to deal with what one might call the professional or habitual murderer committing one crime after another, until detection of one results in discovery of them all. Murderers of the type of George Smith—brides in the bath—Haigh and Christie are the sort of people we had in mind. [Interruption.] I should have thought that going about killing people had a great deal to do with law and order.
§ Mr. Paget rose—
§ Major Lloyd-George
It also provides a safeguard against a second murder by a murderer whose first offence was not capital and who is ultimately released from prison. I attach a great deal of importance to that.
§ Mr. Hector Hughes (Aberdeen, North) rose—
§ Major Lloyd-George
I have given way a great deal. Will the hon. and learned Member at least allow me to finish what I am developing? What he has to say cannot be relevant to the middle of what I am saying.
I was saying that another reason for this provision is that since there are some violent men who would now be executed, but who, in future, will ultimately be returned to society, we thought it desirable that that safeguard should be included. There may well be cases in the future which, after a long period of imprisonment, it is impossible to be sure that no risk is involved in releasing a man on licence. I know that that can happen. The Secretary of State of the day may think that the risk must be accepted. Occasionally, risks must be taken. There ought, therefore, then to be the strongest deterrents available against that man's committing another murder. Does the hon. and learned Gentleman still wish to ask me a question?
§ Mr. Hughes
I am obliged to the right hon. and gallant Gentleman for allowing me to ask it. The question I wanted to ask arises on Clause 6. The Home Secretary said that Clause 6 is designed to apply to the habitual murderer. There is not a word in the Clause about the habitual murderer. It is true it deals with the question of two murders by the same person, but such a murderer would not necessarily be an habitual murderer.
§ Major Lloyd-George
I was using that as an illustration. If a man does commit more than two I should think that there would be a strong presumption that his crime is habitual. Of course, the Clause does not mention the habitual murderer, but the purpose of the Clause is to deal with him.
Clause 6 (2) provides that where a person has been charged with two or more murders, whether alleged to be on different occasions or not, the murders may be charged in the same indictment and tried together, unless separate trials are desirable in the interests of justice. The object of the Clause is to avoid the necessity for a second trial in cases where the trial of two charges together cannot prejudice the defence.
Clause 7 provides that no one shall be liable to the death penalty in cases not within one or other of the two previous Clauses.
Clause 8 deals with courts-martial, and provides that a person convicted by a court-martial of murder shall not be liable to the death penalty unless the offence was committed in circumstances which would have brought it under Clause 5 had it been committed in England. This applies to conviction by courts-martial abroad as well as at home. Clause 6 is not applied to courts-martial because it deals with a type of case which will rarely if ever come their way. Courts-martial will, of course, apply the law of murder as amended by Part 1, with the exception I have just mentioned for repeated murders, and they will, broadly speaking, pass sentence of death in the same circumstances as a civil court. Clause 7 provides that the sentence for murders which do not attract the death penalty shall be imprisonment for life.
Part III gives effect in England and Wales to three of the recommendations 1158 of the Royal Commission. Clause 10 I shall deal with very briefly. I know that at the time of the debate in February there was a good deal of feeling about the way sentence is passed, and this Clause provides for a simpler form of sentence, which, we think, is an improvement.
Clause 11 fulfils another undertaking which I gave, to take the earliest possible opportunity to do away with the requirement that notice of an impending execution be posted on the prison gate. It lays upon me the duty of publishing as conveniently and as quickly as I can the time and place fixed for an execution, and the fact that it has taken place, and of causing a copy of the coroner's inquisition to be published in the London Gazette. I propose to make the necessary arrangements by issuing a Press notice, as the Royal Commission recommended.
The purpose of Clause 12 is to avoid double executions by ordering the removal of a prisoner under sentence of death to another prison and by empowering the sheriff charged with the execution of the sentence to have it carried out in that prison.
Part IV of the Bill contains special provisions for Scotland, and any questions about that the Secretary of State for Scotland, or the Lord Advocate, will be very glad to answer.
I have explained the Bill as quickly as possible, and I apologise if I have been rather longer than I meant to be. I would add one or two words in general, in conclusion.
The Government, I hardly need assure the House, have no desire to keep the death penalty for its own sake, but bearing, as we do, the responsibility for the maintenance of peace and order in this country, we do not think that it is consistent or consonant with our duty to recommend abolition. In this Bill we retain the death penalty for those forms of murder which, in our opinion, most clearly threaten the secure and orderly basis of society. We retain it where we believe its deterrent force to be most necessary and most effective.
At the same time, we are amending the law of murder in such a way that some homicides which hitherto have been murder will be manslaughter. In particular, we are attempting to bring the law into line with modern medical knowledge by 1159 providing a defence to a charge of murder in those cases where the accused is suffering from such mental abnormality as to be not wholly responsible for his actions. We have retained what we believe, in the light of our responsibility, as I said just now, for the maintenance of law and order, to be essential, and we have done our best to meet those who are dissatisfied with the present state of the law.
We have done our best to remove those blemishes in the law which disturb public opinion. I realise, nevertheless, that the Bill will not commend itself to those who, on grounds of conscience, oppose capital punishment in any circumstances; but there are others who believe, as I do, that a very large number—indeed, I should say the majority—of the people of this country, while being opposed to abolition, feel that there should be some amendment of the law as it exists today. To them I say that this Measure deserves their wholehearted support.
§ 4.36 p.m.
§ Mr. Anthony Greenwood (Rossendale)
The Home Secretary has explained the Bill very patiently to the House. I think that even the right hon. and gallant Gentleman's most severe critics would acquit him of any charge of injecting any unnecessary heat into the debate, or. indeed, of acting with intemperate haste in implementing some of the recommendations of the Royal Commission. I think all of us, whether we are for or against capital punishment, would be prepared to give the major share of the credit for this Bill being before us today to the skill and sincerity of my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), the efficiency of the unofficial Whips on both sides of the House, and the courage of many hon. Members who supported my hon. Friend throughout that campaign.
It is now more than three years since the Royal Commission on Capital Punishment reported, after sitting for over four years. After three years' delay we now have this Bill, which was introduced, with rather surprising speed, on the second day of the Session, with the Second Reading a week later. It is only honest to say to the House that this acceleration of the Government's handling of this problem has aroused suspicions in many quarters.
1160 On 7th November, the day before the Bill was published, the Government asked us to pass a Motion about private Members' time, and we set aside ten days for Private Members' Bills, six for their Second Reading and four for their subsequent stages. The first Friday which is available for a private Member is 7th December, for a Second Reading, and the first available date for Report will be 12th April next. If a Bill on the lines of what I hope I may call, without being out of order, the Silverman Bill is introduced—and I hope that one of the six fortunate Members who come at the top of the Ballot will introduce a Bill of that kind—is passed, it cannot complete its passage through the House until 12th April at the very earliest.
Then, having been passed in two consecutive Sessions, and a year having elapsed in between those two events, the Bill would automatically become law. To that extent, the Silverman Bill would have many advantages over the Bill that the Home Secretary has now introduced, because this Bill may well have a very stormy passage in another place.
I should have thought that if the Government really wanted to honour to the full the undertakings which they gave to the House in the last Session, the proper course would have been for them to have adopted the Private Member's Bill themselves, to have introduced it to the House, to have sought to amend it if they really thought it necessary to do so and, if they failed to amend it, send it forward to another place under the Parliament Act. It is a breach of faith with the House that that has not been done. As it is, it is now possible that the House of Commons may not have an opportunity of giving another free and unfettered decision on what is a most important problem.
I should like, therefore, to repeat to the Government a question which I put to them on 7th November. If no hon. Member successful in the Ballot does introduce or reintroduce the Silverman Bill, and if the Opposition gives up a day for discussion on a Motion, on non-party lines with a free vote at the end of it, calling for a more radical amendment of the law than the right hon. and gallant Gentleman proposes and that Motion is carried, will the Government give the same facilities for the Bill as they did in the last Session? 1161 It is only by agreeing to that suggestion that the Government will be discharging their obligation to hon. Members on both sides of the House.
There is a further point which I put a little diffidently but which I think I should put to the Government spokesman. We have been surprised by this new turn of speed on the part of the Home Secretary. This rather surprising timetable has led many hon. Members, a number of newspapers, and some people outside the House, to suspect that the Government may have rushed the Homicide Bill in order to block the Silverman Bill on the ground that both Bills cover substantially the same ground. I hope that that is a charge which cannot be substantiated, and I hope that the speed with which the Government have acted does not represent a deliberate intention to block the Silverman Bill procedurally in order to circumvent the Parliament Act. If the Home Secretary has that in mind, my investigation of the precedents leads me to the conclusion that, whatever the Government intend to happen, it is extremely likely that Mr. Speaker's Ruling would be in another direction.
I apologise for beginning on some slight note of cynicism and suspicion, and before I revert to my customary mood of gloom I want to touch on one matter which gives some small cause for rejoicing. It is clear that the Home Secretary was disturbed about the effect on crime of the abolition of capital punishment. Every time that we have debated this matter in the House over the last eight years fears have been sincerely expressed that murders would increase if hanging were abolished. My hon. Friend the Member for St. Pancras, North (Mr. K. Robinson) elicited from the Home Secretary, on 30th October, some information directly relevant to this point. He asked the right hon. and gallant Gentleman the number of murders known to the police in England and Wales for each month during the five years from September, 1951.
If my arithmetic is correct, the figures show that between 1st October, 1951, and 30th September, 1952, there were 182 murders known to the police, in 1952–53 there were 186, in 1953–54 there were 155, in 1954–55 there were 171, and for 1955–56 the latest available figure is 149. 1162 To put that in a rather different way, the latest execution—and I hope the last execution—was on 11th August, 1955. In the thirteen months before that execution there had been 193 murders. In the thirteen months immediately after that execution there were only 163.
I personally would not attempt to attach too much significance to statistics of that kind but at all events they show that the fact that hanging has not been taking place in this country since August, 1955, has not had the immediate effect of increasing the number of murders which have been committed. I hope that hon. Members who have been worried about that may to some extent be reassured by our experience of the last few months.
§ Mr. S. Silverman
In view of the answer given by the Home Secretary in response to my hon. Friend the Member for Bermondsey (Mr. Mellish), the figures are even more interesting. The Home Secretary said that it was wrong to say that the death penalty had been suspended, and he said that all the reprieves have been on the individual merits of each case. That means that there has not been in the last thirteen months a single capital murder in this country. Is not that a very remarkable thing?
§ Mr. Greenwood
I am most grateful to my hon. Friend for pointing that out. I hope that it is only one of many excellent points that we shall hear from him a little later in our discussion.
If I may continue on the rather more cheerful note with which I began, I should like to say that we believe that in many respects this Bill constitutes a considerable step forward. Whilst we shall seek to improve it in Committee, we shall give most of the Bill our support. We particularly welcome the abolition of the doc-trine of constructive malice and the acceptance of the civilised Scottish principle of diminished responsibility—and we make no complaint that the Home Secretary has restricted that defence to charges of murder. We also welcome the new provisions regarding provocation.
I should like to touch on the principle of diminished responsibility, because it has been clear now for many years that the M'Naghten Rules have been becoming more and more out of harmony with 1163 medical science. We have had them for 113 years, ever since Daniel M'Naghten tried to shoot Sir Robert Peel in Whitehall and succeeded only in shooting his private secretary instead. In the cells later M'Naghten said,The Tories in my native city have compelled me to do this. They follow me and persecute me wherever I go.As a result of his trial, he was sent to Bedlam. Queen Victoria was furious, apparently believing that nobody who tried to murder a Conservative Prime Minister could be insane, even if he succeeded only in killing the private secretary. It was because of her spirited protest at that time that the House of Lords called upon the judges to clarify the law relating to insanity.
It seems to me, and I hope that the Home Secretary will agree, that in our acceptance of the doctrine of diminished responsibility we are probably seeing in most cases, for all practical purposes, the end of the M'Naghten Rules because, although they will continue, the new line of defence will be so much easier to establish than the old, and pleas of insanity will become more and more rare.
I hope also that before we see the end of the Bill we shall have abolished the verdict of "Guilty but insane". That contradiction in terms is another legacy from Queen Victoria who, after a madman had tried to shoot her on Windsor Station, and the jury had properly brought in a verdict of not guilty on grounds of insanity," commented:Insane he may have been but 'not guilty' he most certainly was not, as I saw him fire the pistol myself.That protest found Mr. Gladstone in one of his more flexible moods. He bowed to the storm, and in the Criminal Lunatics Act, 1884, Parliament provided that the jury in such cases should bring in a special verdict of "guilty but insane". I hope that we shall have an opportunity during the Committee stage of this Bill of reconsidering Mr. Gladstone's decision on that occasion.
I turn now to Clause 3. The right hon. and gallant Gentleman said that that Clause implemented the recommendation of the Royal Commission. That is true but I have one slight doubt about it, namely, that the Royal Commission, 1164 when it was summarising the present law on provocation said, in paragraph 126, that the provocation must now be such as might—and I emphasise "might"—cause a reasonable man to lose his self-control. But in Clause 3 of the Bill the test is the effect that the provocation would have—and I emphasise "would have"—on a reasonable man. It seems to me, therefore, that the Bill may be slightly more restrictive than the Royal Commission had intended.
§ The Attorney-General (Sir Reginald Manningham-Buller)
§ Mr. Greenwood
I see that the Attorney-General dissents from that view; and perhaps we might have the benefit of his advice later. My own doubts about the Clause go rather deeper than the one to which I have referred. I have some doubt whether the effect on a reasonable man is the right criterion in cases of provocation.
I will tell the House of a case in my own constituency, the case of two Yugoslavs. Hon. Members will find it as Case No. 35 in the Observer's "Pattern of Murder". One Yugoslav, Kovacevik, had fought with the Partisans in Yugoslavia, and his father, two brothers and three sisters had been shot by the Germans. He found himself working in my constituency alongside another Yugoslav, called Djorovic, who had been a quisling in Yugoslavia. One day, when they were sheltering from the rain in a railway men's hut, Djorovic, the ex-quisling, jeered at Kovacevik because the latter was crying over the fate of his family. Kovacevik picked up an axe, and murdered Djorovic. He was hanged, the plea of provocation not being accepted. I should have thought that in such a case the test should not have been the effect of the jeers on a reasonable man but the effect of the jeers on a man in Kovacevik's tragic circumstances.
In spite of the criticisms which I have mentioned, we give our general support to Parts I, III, IV and V of the Bill. We believe that they will improve the working of our penal machinery and will remove a large number of cases from liability to capital punishment.
On that point the Home Secretary was not completely clear. I had thought that about five out of six cases of murder 1165 would be relieved from liability to capital punishment: the right hon. and gallant Gentleman said three out of four. Of course I accept that figure, but I should have thought that the reduction in the number of executions would have been far less than the reduction in the number of cases coming within liability to capital punishment. I hope that later in the debate this doubt can be cleared up by right hon. Gentlemen opposite.
As a party we shall support the Second Reading of the Bill, whether as individuals we are for or against capital punishment. We propose, however, to leave Clauses 5, 6 and 7, during the Committee stage and on Report, to a completely free vote of hon. Members on this side of the House. Some of my colleagues are deeply opposed to abolition, and we respect their point of view. We hope that the Government will deal in the same way with hon. Gentlemen on their side of the House who are in favour of abolition.
I thought that the Home Secretary set the right tone for an issue of this kind when he said, on 16th February this year:This … is a matter of conscience, and for that reason the Government thought it right that there should be a free vote.The Government may now have introduced a Bill, but it is still a matter of conscience for many hon. Members of this House. I hope, therefore, that the Government will follow the example that we are setting, and will take the same liberal attitude to this problem as that which we on this side of the House are taking. The right hon. and gallant Gentleman must appreciate that many hon. Members of the House, whether they are abolitionists or retentionists, will find themselves in serious conscientious difficulties over Clauses 5, 6 and 7—indeed, the whole of Part II—because that part of the Bill is highly controversial and it may well lead to a lengthy Committee stage.
The test that I want to apply at the moment is not whether there is a moral basis for the proposals of the Government—I have no doubt in my own mind that there is none. I want to criticise the proposals on rather different grounds. I believe and I think that hon. Members will agree with me, that a law should command public respect and that it 1166 should be capable of just and efficient application. It is because I believe that these proposals fail on both those grounds that I am opposed to them, as well as being opposed to capital punishment in general. The right hon. and gallant Gentleman will remember that in 1948 I refused on that occasion also to accept the compromise proposals put forward by my right hon. Friend the Member for South Shields (Mr. Ede), who was at that time Home Secretary.
I believe that these proposals will be objected to both by abolitionists and retentionists in this House, and that they may not commend themselves to another place. I say that because I honestly believe that the Home Secretary is attempting the impossible, and is bound to create new anomalies and more difficulties than he is removing. I have no doubt that the right hon. and gallant Gentleman has very much in mind the fact that every Home Secretary who has tried to do this from 1866 onwards has failed in that ambition, and HANSARD is studded with attempts by private Members to do the same thing.
On 16th February, in the speech to which I have referred, in talking of the view of the Royal Commission on the classification of murders and degrees of murder, the Home Secretary said:The Government agree that neither the definition of murder nor an attempt to distinguish between different degrees of murder offers a useful line of approach."—[OFFICIAL RETORT, 16th February, 1956; Vol. 548, c. 2536 and 2550.]I ask the House to remember that the right hon. and gallant Gentleman said,neither the definition of murder nor an attempt to distinguish between different degrees of murder.because it seems to me that now he is falling back upon an attempt to find a definition of murder. It may be that he is now so used to the House ignoring his advice on this subject that he has even started to ignore his own advice himself, because there seems to have been a re-remarkable volte-face on the part of the right hon. and gallant Gentleman in this respect.
I want to be fair to the Home Secretary. As I understood what he said this afternoon, he is seeking to restrict capital punishment to those forms of murder which strike most directly at the maintenance of law and order, and to cases 1167 in which the Government feel that the deterrent effect of the penal penalty will be most powerful. That, I think, is a fair summary of what he said.
The House, and especially the Government, should bear in mind two considerations. The Home Secretary read out the proposals about those types of murder which are to be capital murder. But those proposals have practically all, if not all of them, been turned down by this House on a free vote within the last six months.
The second consideration which I want to put to the right hon. Gentleman is this: the Government now appear to be basing this classification on the maintenance of law and order. In 1948, when the Government of that day were in an equal difficulty, they also sought to find a way out, and their proposal on that occasion—the compromise Clause—was based, in the words of the Home Office Memorandum to the Royal Commission:on the basis that the penalty of death should be retained for certain types of murder which were the main causes of public anxiety and in which the deterrent effect of punishment was likely to be more powerful than in other cases.So this Government and that Government started from different points. Their basis of selection was different, but the conclusions which they drew were remarkably similar.
Most, if not all, of the proposals which the right hon. Gentleman is making now were included in the compromise Clause which was rejected in another place in 1948. When the compromise Clause went to another place it was condemned in the roundest terms, especially by the Law Lords. It was criticised as capricious and fortuitous; it was called nonsense. It was said to be unfair and unjustifiable, and the word "hotchpotch" appeared with monotonous regularity.
The Home Secretary has made a special point of the need for protecting the police in the execution of their duty, and all of us would agree with him that that is a task to which we should all devote our energies. I think that it is not irrelevant to remind the House of what the Lord Chief Justice of England said when the Government, in 1948, also took exactly the same point of view. This is what Lord Goddard said in another place: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 1168 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.That is the view of the Lord Chief Justice of England who is still firmly sitting in the Lord Chief Justice's Court in the Royal Courts of Justice in the Strand. I have no doubt that when this Bill goes to another place, there may be similar expressions of opinion, as there were on the last occasion when this subject was debated there.
Many anomalies will be created by this proposal. The Home Secretary has referred to a number of cases which would or would not have been covered by it, and I do not propose to expand upon it myself, because there are many hon. Members on both sides of the House who are much better equipped to do so than myself. I hope that they will riddle the Government's proposal with criticism in the way that it deserves to be riddled. I will content myself by saying that I believe that any attempt at classification is quite impossible and beyond the scope either of the Home Secretary or of this House or of another place.
I agree with the Royal Commission's Report when it says, in paragraph 498:There are strong reasons for believing that it must inevitably be found impracticable to define a class of murders in which alone the infliction of the death penalty is appropriate.I still accept the views of the Home Office in its Memorandum to the Royal Commission, when it said:There are not in fact two classes of murders, but an infinite variety of offences which shade off by degrees from the most atrocious to the most excusable.I should like to know what has changed the views of the Home Office on that. I think that the right hon. and gallant Gentleman has made a mistake in flying in the face of so much evidence to the contrary about relying on the possibility of a definition of this kind.
Finally, I should like to say that many of us in the House tonight may be sorry 1169 that capital punishment is retained at all, because many of us feel that so long as we have this irrevocable penalty, there will still be the same risk of error, the same danger of misjudgment, the same possibility of wrong identification, and there will still be the appeal to the emotions of the crowd. I hope that, however much many of us may regret that, we shall nevertheless remember, at the same time, that as a result of this Bill many of the most barbarous trappings of the system will be removed, and for that at least we are indebted to Her Majesty's Government and the Home Secretary.
In addition to the new defences created in Part I of the Bill, there are great improvements in the application of the system. There is going to be, as the Home Secretary reminded us, a simpler form of death sentence, no double execution, no posting of notices outside the jail and, we all hope, no gathering of morbid crowds to read the notice or be there on the spot at the time when the execution has taken place.
Some of these advances are, no doubt, small, but some are considerable. All of them are welcome, and we on this side of the House will do all that we can to speed the coming into force of those sections of the Bill which have our wholehearted support.
§ 5.7 p.m.
§ Mr. Anthony Kershaw (Stroud)
The hon. Member for Rossendale (Mr. Anthony Greenwood), who has just sat down, will not expect me, at this stage of our consideration of the Bill, to go into the great detail with which he has entertained and informed the House. What I should like to examine for a moment is the question whether or not it is now possible—having supported, as I did, the Bill of the hon. Member for Nelson and Colne (Mr. S. Silverman) and my hon. Friend the Member for Belfast, North (Mr. Hyde)—to support wholeheartedly the Bill which the Government have introduced.
I can describe myself, reasonably, I think, as a qualified abolitionist, in the sense that I wish to see the imposition of the death penalty drastically reduced and in one way abolished entirely, but, at the same time, I am of the opinion 1170 that it is necessary to keep it for certain offences. That is why, during the course of our previous debates, I voted for various Amendments which, as the House knows, were subsequently rejected.
There were two principal reasons why I supported the Death Penalty (Abolition) Bill. In the first place, I was convinced that the death penalty was not the unique deterrent that many people believed it to be. I believe that murder takes place in circumstances either so passionate or incoherent that the type of penalty is not considered; or, very much much more rarely, takes place in circumstances so cool and calculated that the penalty has already been discounted in advance.
I was also impressed by the experience of foreign countries that had removed the death penalty from their law. But whether the death penalty is a deterrent or not depends on the alternative to the death penalty being a very long term of imprisonment. Therefore, I thought at the time, and I still think, that for a person who is either already serving a very long term of imprisonment or, by the commission of some other crime, is likely to do so, that deterrent is not applicable, and that for them the deterrent of the death penalty was the only deterrent left. That was why I voted for the Amendment to the hon. Gentleman's Bill.
This Bill keeps the death penalty for murders of certain categories such as those in prison, and those which can, broadly, be described as the professional criminal, or those intending to do so. Certainly, these people have to be removed by the deterrent of the death penalty from their previous exploits and, therefore, I can support what this Bill proposes to do about them.
The second reason I support it is that I believe the present law is extremely unsatisfactory. I believe that there is hardly anyone who will dissent from that. The death penalty is imposed nowadays, it seems, so haphazardly that one cannot quietly contemplate the continuation of a penalty like the death penalty which is so irrevocable, as the hon. Member for Rossendale said, and yet so capricious in its occurrence.
This Bill changes the law with regard to detail. I welcome what I suppose almost everybody welcomes, namely, the 1171 alterations in the law of constructive malice, incentive and provocation, and also in the details of sentence and execution which the hon. Member for Rossendale has mentioned. The pity is that it was not done before. If the Bill of the hon. Member for Nelson and Colne has done nothing except stimulate these very necessary reforms, it will have had an honourable career.
The hon. Member for Rossendale said that the Government were being rather indecently hasty in bringing in a Bill at this time. I suggest it is extremely desirable that this very long period of controversy about the abolition of the death penalty should be brought to an end, and that the sooner we can have a decision the better it will be.
There are two other considerations which seem to me to be different now compared with what they were when we considered the Death Penalty (Abolition) Bill. I listened with respect to my right hon. and gallant Friend the Home Secretary when he advised us before that, as the person responsible for public safety, he considered it necessary to retain the death penalty in certain cases, but I am bound to say that I pay greater attention to what he now says in the same sense when he is backed by the whole of the considered opinion of the Executive.
If the Executive decides that it needs the death penalty for the preservation of law and order, I think that a private person must be slow to set himself up as being more competent to judge that matter than the Executive. That appears to me to give greater weight to what my right hon. and gallant Friend has said today than to what he said before. This Bill, I find, deals with the problem of murder largely from the point of view of the preservation of law and order, for which the Executive is responsible, so I can support it on that ground.
The second factor which seems to me to have changed during the course of our debates is that of public opinion. I did not know in our previous debates—and, to be honest, I do not know now—what is the opinion about the abolition of the death penalty in my constituency, and, furthermore, I know of no way of finding out. Apart from the mechanical difficulty of canvassing every person—and there are 57,000 people in the constituency—one 1172 must admit that this question of the death penalty is extremely complicated, and that until one has made a comprehensive study of it one does not know how far one's opinion is valid. It is a question on which much emotion is spent, thus clouding the judgment and often taking the place of thought.
Hitherto, I had thought that public opinion would change. Listening to the eloquence of our debates, I thought that the arguments which convinced me would appeal to public opinion outside, but I was wrong in that, and I doubt whether, since the outset of the controversy, anyone has changed his opinion one jot, either inside or outside this House. However, I believe that hon. Members are sent to this House to use their judgment as best they can. I make no claim to approach this matter as one of conscience in the sense that in the presence of the death penalty I suffer some sort of moral convulsion and demand a right of way over everyone else's wishes. I hoped, from a practical point of view only, by a revision of the law, to reduce the amount of murder, and I believed that the proposals before the House would have done that.
Having said that, I must admit that practical consequences flow from the state of public opinion which is much divided on this question. I do not know the opinion of the majority, or which opinion is that of the majority, but I do know that there are many people who are against the abolition of the death penalty. Those people, although, in my opinion, mistaken, will suffer from a lack of the security to which they are entitled if the death penalty is entirely abolished. Householders in remote country districts may well take to keeping a gun or, if a police constable is murdered, there may be a demand for the police to be armed. A particularly brutal murder may conceivably cause a lynching. It has happened in other countries.
Furthermore—and this is an important point—if we amend the law and abolish the death penalty too far in advance of public opinion, there may come a time when public opinion demands that it should be reintroduced. That has happened in other countries, too.
§ Mr. Kershaw
If the law were altered too far in advance of public opinion, even in this law-abiding country, such a thing might happen.
I feel that the abolition of the death penalty would be a good thing, but on practical grounds I believe that if we go too fast we may well find that we have done a disservice both to the public and to the cause of the abolition of the death penalty.
As has been said, this Bill includes valuable reforms. The hon. Member for Rossendale said that this Bill or any Bill must in law command public respect. I think that a compromise Bill of this sort, which presumably will command the adherence of the largest number of people, is the type of Bill which will command respect; and the law which goes against the opinions of many people, whether in the majority or not, will not command the respect which is required. This Bill is a compromise and will command respect.
I therefore prefer this Bill to the Death Penalty (Abolition) Bill which was formerly before the House. We must come to a definite conclusion in this matter. If the Death Penalty (Abolition) Bill were introduced in the future as a result of luck of the Ballot, I should feel bound to vote against it. I think we are moving towards the abolition of the death penalty, but it cannot be applied successfully unless the larger number of people in the country are in favour of it. I believe that stability in the law is desirable. This Bill will bring it about, and I hope that the House will give it a Second Reading.
§ 5.18 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
The hon. Member for Stroud (Mr. Kershaw), I think, will not take it as any discourtesy if in the remarks which I wish to address to the House I do not follow some of the points which he made. I am grateful to him for the support he has given me so far, and if I regret the withdrawal of that support in favour of something far worse, he will of course accept that as only natural.
1174 I would say one further word to the hon. Gentleman. I agree entirely, as I think everybody does on both sides of this controversy, that if only we could make an end of the controversy once for all, that would be a very good thing. But, of course, the worst feature about this Bill is that, where we had a chance of bringing the controversy to an end, it deliberately sets out to reopen the controversy and to keep it going until some time, which the hon. Gentleman says may never come—and I agree with him—when Members of Parliament can all be satisfied that the whole of public opinion without any division at all is in favour of complete abolition.
§ Mr. Kershaw
I did not say that the whole of public opinion had to be satisfied but that the great majority had to be.
§ Mr. Silverman
If the hon. Member will not follow me all the way—although I assure him that it seems to me that it is the logical necessity of his argument—nevertheless he must see that the effect of the Bill is at any rate to keep the controversy open for the time being, and that, therefore, if what he really wants to do is to end the controversy, he ought really to be opposing the Bill and not supporting it.
The Bill sets out to do two things. In Parts I, III, IV and V it deals with the fact of murder and with what may be summarised as being administrative improvements, if they are improvements—I am not sure that all of them are—in enunciating a sentence and in carrying it out. There is absolutely no doubt that there has been virtually unanimous opinion over many years that our law of murder is highly anomalous and that much injustice and oppression has resulted from our refusal to amend those anomalies.
In so far as at long last the Government have taken their courage in both hands and without waiting for public opinion, without a General Election, without a mandate, without a referendum of any kind and without worrying what the man in the "pub" or the man in the club will think about it, have brought themselves at last to advise the House to deal with the question of constructive malice, which has been discussed on every racecourse for the past 150 years, to that extent the Home Secretary is 1175 entitled to support. The other thing which the Bill does is in Part II, which is nothing but the Death Penalty (Abolition) Bill incorporating some of those Amendments which the House rejected last Session.
There is no organic connection whatever between Part II and the rest of the Bill. They deal with totally different matters. The fact of murder is one thing and the penalty for murder is quite another thing. The right hon. and gallant Gentleman would, I am sure, agree that all the advice that has ever been tendered to him on this subject is unanimous that even if the death penalty were abolished, even if there had never been the death penalty, for reasons of common sense and sound jurisprudence it would still have been necessary to enact all the rest of the Bill. That is plainly so.
I do not think there is anyone who has ever had any connection with this matter at any time who is not clearly of that opinion. There have been differences of opinion as to priorities. I know that hon. and learned Gentlemen opposite—or, at least, some of them—have long thought that the best way to attack the question of the abolition of the death penalty was to postpone dealing with it at all until what was murder had been clearly defined; and there was something to be said for that view. I never shared it, because it seemed to me that the practical results of the anomalies were important—I mean, in a practical sense—only because the death penalty existed; because without the death penalty there would be the possibility of making the punishment fit the crime, even if the crime were wrongly defined.
Whether that is right or wrong, I do not stop to argue now. The matter was fully argued and debated in the House of Commons in February last year and the House of Commons—some hon. Members may think, misguidedly—preferred my view to theirs and I am content to let the matter rest there. But when we incorporate any Bill whose main function is to do a competent tidying-up job in a field of jurisprudence with the question of the death penalty, there must be some reason for tying the things together in that way. I hope to come presently to what that reason is.
I am afraid that my remarks will not be thought complimentary. It seems to 1176 me that the whole of this Bill, done in this way—I say "done in this way" advisedly—is nothing but an elaborate device on the part of the Government to circumvent the Parliament Act. I know that that is a grave charge to make, but I hope to justify it a little later.
First, however, let me deal with the question of public opinion. In the last year or two, the House of Commons has dealt with the question of the death penalty. On, I think, every occasion—certainly, every occasion except one—it has done it on a free vote in the House of Commons. On each of those occasions the House was full. Members were interested, they followed the argument keenly. Whatever one might think as to the result or the whole consequence of those debates, they were conceded to be of a high standard. The House of Commons was held never to have been better than on those occasions when it was debating this matter according to its own judgment and its own conscience without being hampered or tied by collective or group loyalties of any kind.
Look at the House today. Nobody is interested.
§ Mr. Silverman
The international situation is, no doubt, being carefully looked after wherever hon. Members have betaken themselves this afternoon. I am sure that they have no other object in mind than to absent themselves from this debate in order to take care of the international situation, whereas those of us who came here to listen to the Home Secretary, or even to me, quite clearly, on the basis of the logic of the hon Member's interruption, are not concerned with the international situation at all.
§ Mr. Silverman
It is the elementary basis of our constitution that legislation of this kind is to be determined according to the opinion of the House of Commons. If that proposition is unsound, we have wasted 300 years of constitutional progress.
Nobody has ever suggested that there has to be a mandate, we have never believed in a referendum—never at all; but it is perfectly true, as the right hon. 1177 and gallant Gentleman said, that that does not mean that we are entitled to disregard public opinion. It is equally bad, I concede at once, for a legislature to go too far in advance of public opinion or to remain too far behind it. The ideal position is when it keeps itself just a little in advance. I would rather have it a little in advance than a little behind. Admittedly we must keep public opinion within hail. We must be able to persuade it to follow us. We are not really doing our duty if we are content to sit back and do only what public opinion outside directs us to do, and wait until we are directed before we do it.
I do not want to introduce other kinds of controversy into the debate, but if the Prime Minister had waited for a mandate from public opinion before he sent his ultimatum to Israel and Egypt the other day, he might not have taken that course. I am not saying whether that would have been right or wrong; I believe that the Government of the day have to make up their minds, give themselves leave to act, take their courage in their hands and do what they think to be right If it turns out to be wrong, that is unlucky, but it is much better to do that than to wait to be told what to do by people who think they know much better than the Government.
In keeping public opinion within hail or in touch with the Government—not going too far in advance of it or falling behind it—and not abdicating the Government's duty of giving it a lead, we have to consider what may fairly be said to be in the public mind. The death penalty has always been defended on two main grounds, so far as I have understood the argument. One is that, taken by and large, it must be accepted that if we retain the death penalty there will be fewer murders than if we abolish it; that it is a more effective deterrent for murder than any other penalty would be, even though it were conceded that other penalties are also deterrent.
With all respect to the right hon. and gallant Gentleman, that is not a matter to be determined by public opinion. Whether or not it is a deterrent is a fact to be established by evidence, so far as it can be so established. This is not a question of keeping within hail of public opinion; it is a question of trying to find out by any methods open to us whether 1178 or not the proposition is true that if we abolish the death penalty there will be more murders. I do not think that many people are left who, on the evidence as it has been patiently collated over many years, remain of that opinion; so much so that the tendency in our recent debates has been to say, "Never mind whether it is a deterrent or not; this crime is so horrible in itself and so offensive to the public conscience that"—if I may use this kind of language—" the public really will not stand for the abolition of the worst penalty we can inflict, not as a deterrent at all but as a mark of disapprobation and of society's condemnation by using the last sanction in its power in order to make clear that it will not approve in any way the taking away of human life."
That is a matter in which public opinion is of importance, because it is not a matter of establishing the facts by evidence; it is a matter of so proceeding that the legislature is at any given moment in tune with the consciences of the people. But what does the right hon. and gallant Gentleman do in Part II of the Bill? I do not propose to cover the whole ground; he said that he would not and he did not, although he covered a great part of it. I am afraid that I must cover some of it too, but perhaps not so much. What is he doing here? So far as deterrence is concerned, he abandons the whole proposition.
If he wants to see that point made much more effectively than I can make it, let him read the debates that took place in the House of Lords on the compromise Clause of the 1948 Bill, to which my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) referred in his admirable opening speech a little while ago. The very first thing said in another place when it considered that compromise Clause—although I have forgotten which noble Lord said it, and I am only paraphrasing his speech, because I do not want to overload or weary the House with quotations—was, "When the House of Commons sent us up a Bill abolishing the death penalty we threw it out, but we recognised that they were sincere. They were sending us forward an arguable proposition on a basis which, quite clearly, they sincerely held. But," it was said, "once they have come forward with a compromise proposition of 1179 this kind they have conceded that it is a deterrent, because, on the basis that we are entitled to retain the death penalty because it is a deterrent, when we are saying that one murderer can be deterred by it we ought also to be saying that all murderers can be deterred by it."
§ Mr. Silverman
Why not? I do not understand the hon. Member's difficulty. What is the proposition? It is that people will not commit murder because they fear to be hanged. That is what is meant by a deterrent. What is contended here is that a man or woman doing a little shoplifting, perhaps at the C. & A. stores, and possibly carrying a discus—[HON. MEMBERS: "A what?"] A thing which is used in international Olympic Games. It is contended that such a person would be deterred by the death penalty from throwing that discus in an attempt to escape, and perhaps killing somebody and murdering him in that way. But if a man wants slowly to poison his wife over a number of years in order to possess himself of her property the right hon. and gallant Gentleman says, "I do not need the deterrent of capital punishment to prevent him, because he will not be deterred by it."
§ Mr. Silverman
The hon. Gentleman has his brief and he can speak later. If he wants to interrupt, I will give way. but I hope that he will not argue across the Floor of the House.
§ Mr. Silverman
Perhaps we can take it into a more serious field and show what is involved in the right hon. and gallant Gentleman's argument. I do not say that he said it; I do not even know that he is for it, but I am saying that it is necessarily involved in his argument that a man would be deterred by the death penalty from killing in furtherance of shoplifting but not deterred from killing in furtherance of rape.
§ Mr. Silverman
Because it is involved in that argument. He really must see that. If the right hon. and gallant Gentleman says, "I am going to keep the death penalty for this offence and not for that offence"—and I am confining the argument on the whole to the question of deterrence—so far as the argument on deterrence goes he is saying that a person will be deterred in the one case but not in the other, otherwise the Bill is nonsense. Perhaps it is. In so far as one can introduce any rational principle at all, I agree.
There is the other question about moral obliquity. So far, I am talking only about the deterrent aspect of it. Once we say that a man will be deterred from committing a serious crime by fear of being hanged, we must say that he would be deterred from committing a more trivial crime by fear of being hanged.
§ Mr. G. Wilson
Might not the murderer be deterred from carrying a revolver for fear that in an emergency he may kill somebody, while, on the other hand, the poisoner, acting over a long period, might not be deterred by the fact that he is risking being hanged?
§ Mr. Silverman
I think in both cases the criminal will hope not to be found out. That is the real reason behind it, but the right hon. and gallant Gentleman is introducing a new factor. What he is saying is that he wants to deter burglars from going about armed. That is his point. But so do I. I think this is the worst possible way of doing it. Why wait until the man has killed somebody?
I should like to see an amendment of the law which created the special offence—it is already an offence to be found at night carrying house-breaking implements—of being found carrying house-breaking implements plus a revolver. Why should that not be a very serious offence? If we want to prevent murders by preventing criminals going about armed, make that the offence. Do not wait until the criminal has done the utmost mischief in his power. Is there anybody who would object to that? Surely not.
It seems to me that the right hon. and gallant Gentleman is in that inescapable dilemma. He must make up his mind whether he accepts the unique deterrent quality of the death penalty or whether he 1181 rejects it. If he rejects it, he must reject it for all forms of murder, and if he accepts it, he must accept it for all forms of murder. There is, as far as I can see and as far as anybody else can see who has ever examined this question, no means of rationally or justly drawing any distinction between them.
So far as moral obloquy is concerned, that is the only thing which really affects the public mind. That is the other leg of the argument which says, "Do not go too far in advance of public opinion because public opinion hates murders and hates some murders more than others, and in those exceptional, worst, most atrocious murders, in order to avoid the mob taking the law into its own hands, we must satisfy the public demand for"—I do not like to use the word "vengeance", but, if one likes, the more respectable word "retribution"—" just retribution, measured not by the deterrent effect at all, but measured, instead, by the judgment of the public about the horror of the crime."
That the right hon. and gallant Gentleman abandoned in so many words. It is he who is ignoring public opinion, not I. He is completely ignoring public opinion on what is the only thing on which public opinion is entitled to be heard. Does he really say that the public, with its sense of justice, will be satisfied with a law that would have hanged Ruth Ellis and saved Neville Heath? Supposing that Neville Heath had committed only one murder. Does the right hon. and gallant Gentleman really think that the public will accept that standard of punishment, that Neville Heath with only one murder should not be hanged, but that Ruth Ellis should? If only Ruth Ellis bad used a hatchet she would have been all right under the right hon. and gallant Gentleman's Bill, but she would be hanged because she used a revolver.
Does the right hon. and gallant Gentleman really say that public opinion wants that? If he does, he is far more out of touch with public opinion than I am. There is no sense in it. In his heart the right hon. and gallant Gentleman knows that there is no sense in it. He knew that there was no sense in it in 1948 when he voted for my Clause on that occasion when sitting on this side of the House. The explanation he subsequently gave for having changed his mind ought 1182 to have prevented him from introducing his Bill this afternoon.
What did the right hon. and gallant Gentleman say? He said, "I changed my mind only because life imprisonment is a much worse penalty than hanging, and when I voted for abolition in 1948 I did not know that." When he found out the truth, he decided to be a supporter of capital punishment after all, because, on the whole, it was more humane. What is the right hon. and gallant Gentleman asking us to do this afternoon? On his own assessment of the figures he is asking us, as an improvement of the law, to inflict the more cruel punishment on three-quarters of the murderers and to retain the more humane punishment for those who would most easily be deterred by it. Lewis Carroll could not have done it better.
Now it is said, "Ah, but never mind the rights and wrongs of it. We are practical men, the representatives of our country. We agree that there are differences of opinion between us. Let us find a reasonable compromise." It is not a new idea. Everyone concerned with penal reform has been looking for this compromise since 1864. The right hon. and gallant Gentleman himself said that it could not be found. The Royal Commission was appointed in 1949 with the express terms of reference to find it if it could be found. We tried to find it in 1948 by exchanges between the House of Lords and the House of Commons.
We made an honest effort to find a reasonable compromise on the very basis that the right hon. and gallant Gentleman is recommending to us this afternoon. We gave the House of Lords every single exception it had demanded from us in the debates on the Clause which suspended the death penalty altogether for five years, and the House of Lords threw it out because it was unjust, unworkable and because it was nonsense. Eight years afterwards, I am prepared to concede that the House of Lords was right, because, in the meantime, the Royal Commission appointed to find a better compromise, a more just one, a more rational one, a more workable one, a satisfactory one, and wishing with all its might to be able to find one, has said in its Report, "We tried to find it. We wanted to find it, but at the end, reluctantly, we had to say that the search was chimerical and must be abandoned."
1183 We had done it before, and we did it again six months ago. Not a single exception to the abolition of the death penalty provided by Clause 7 of the right hon. and gallant Gentleman's Bill, not a single exception to that principle in Part II of his Bill, but was considered by the House of Commons on a free vote at the invitation of the Government last Session; and with an undertaking by the Government to abide by the result. The right hon. and gallant Gentleman made great play in his opening speech with the duty and responsibility of the Government. When did he find that out? Is it only their duty now, or was it equally their duty in February of this year? Was it or was it not? Has their duty changed in the meantime, or is it a little like when we are asked, "Are you going to abide by the result of the General Assembly? And the answer is, "We should like to see the result first"?
Many of my clients professionally would like to be able to do that. They would like to consult me and ask me to take their cases for impartial judgment, third-party judgment, in the High Court. They would like to add the same kind of rider—" I am prepared to accept any judgment, provided that it is in my favour." The right hon. and gallant Gentleman could not have meant that when he invited the House of Commons to go through all these stages: first of all. the Motion, which the House rejected; then the Amendment which the House carried; the Second Reading; the long Committee stage, where every possible argument for every possible compromise was considered and rejected; the Report stage; the Third Reading. Was it not their duty then? Or has it only become their duty now because the House decided against them when left to a free vote?
Has it become the duty of the Government now to say this to the hon. Members on the benches behind them—they certainly cannot say it to anybody on this side of the House, because we have had a free vote in the matter? Does the hon. and gallant Gentleman propose to say this to right hon. Members—certainly to hon. and learned Members on his side of the House—" I know what you really think. I asked you to tell me last year what you really think, and you told me what you really think. I do not like it, and so now I am putting the Whips on"? 1184 "Decide for us now", say the Government to the hon. Members behind them, "not because you think we are right, but because you know we are wrong; and we are now putting the Whips on in order to drive you into one Lobby under the Whips, knowing that if you were left to your own judgment you would be obeying your own conscience and your own judgment by voting in the other Lobby." Is that what we are reduced to on a matter of this kind?
I am sorry to be so long, but let me put before the House what I honestly believe about this matter; and I am afraid that what I am coming to now the right hon. and gallant Gentleman will not like. I ask myself why has Part II been put into the Bill? Well, of course, I cannot know the answer to that question. I was not present at any of the discussions and so I have to do what lawyers frequently have to do, and what the courts will have to do under the right hon. and gallant Gentleman's Bill; that is, look at the Act. The courts will have to look at the results of the Act and then infer the intention from what was done, on the basis that reasonable people must be expected to intend the reasonable consequences of what they do. What are the inevitable consequences of putting Part II into the Bill? I will tell the right hon. and gallant Gentleman in case it has not been pointed out to him. If it has, I should like to tell it to the rest of the House so that hon. Members may know exactly what they are doing.
Part II may be amended during the Committee stage, or it may not be. I want the House to look at the consequences of either proposition. Suppose it gets through the House unamended. Then, of course, the Death Penalty (Abolition) Bill has been, to that extent, changed. I speak without prejudice to what was said by my hon. Friend the Member for Rossendale about the rules of the House on Bills going through dealing with similar matters. I leave that part of the argument out. Let us suppose that there is no Death Penalty Bill before the House at any material time and that the Committee accepts Part II as drawn.
The House of Lords will consider this. They may—I should think it rather probable that they will—introduce some other exceptions besides those which the right 1185 hon. and gallant Gentleman has offered to them; and there will be very plausible grounds on which they could do so. They may not be content to ignore public opinion in the way the right hon. and gallant Gentleman is content to ignore it. They may think that public opinion is much more excited by a deliberate, premeditated poisoning than about a half-accidental murder or manslaughter committed in the course of petty larceny. If they think so, they may seek to introduce an Amendment to deal with that.
Then it comes back to this House. What will the right hon. and gallant Gentleman do then? Will he ask the House to agree or to disagree with the Lords in their Amendment? Will he put the Whips on when we come to deal with an Amendment of that kind from another place? Will he? This is being recommended to us, and his hon. Friends behind him are supporting him in his Measure, on the basis that this is to be the end of controversy. That is one possibility.
Another possibility is that when we come to the Committee stage the right hon. and gallant Gentleman may see fit to respond to the appeal made to him by my hon. Friend. He may say, "We will keep the Whips on for Parts I, III, IV and V, but take the Whips off for Part II, because the Whips have always been off for Part II. I will tell the House what will then happen. Not an hon. Member of this House who voted against these exceptions last time would vote for them on this occasion without Government pressure—not one. I warn the right hon. and gallant Gentleman that if he is tempted to accept the suggestion of my hon. Friend, and take the Whips off when it comes to Part II, the result of the Committee stage, on that assumption, will be that the Death Penalty (Abolition) Bill will be re-enacted by the House of Commons in the second Session.
But shall we then have the benefit of the Parliament Act? Oh, no. The right hon. and gallant Gentleman's Bill takes care of that too, very carefully and very effectively. Because, with or without the Whips, the exceptions—Clauses 5 and 6 I think they are—with or without the Whips, if those are deleted, then we have the Death Penalty (Abolition) Bill in exactly the same form as it was presented to the House of Lords last time; but the 1186 Parliament Act will not apply because it is part of a totally different Bill doing substantially a lot of other things.
I should like to know from the right hon. and gallant Gentleman whether he had thought of that? Will he say? I invite him to say. I will give way. Unless he is prepared to deny it—and if he denies it we will accept it wholeheartedly—
§ Mr. Silverman
I will accept it and I would not disbelieve it. If the right hon. and gallant Gentleman is not prepared to deny it, every man and woman in this House on either side, whether an abolitionist or a retentionist, will believe that it has been done in this way with the deliberate intention of preventing the House of Commons from having its way under the Parliament Act, whether it wants its way or not.
§ Mr. Rees-Davies
When I come to deal with this matter, if I catch Mr. Speaker's eye, I will try to show what utter rubbish the whole of the argument presented by the hon. Gentleman is.
§ Mr. Silverman
If the hon. Gentleman is of that opinion, I shall listen to his argument when it comes with very great interest, but I wonder why, in that case, he wanted to intervene. I will tell him why. If he told me now what his argument is, I might be able to reply to it. When people go about with this kind of braggadocio, and shout "nonsense" and all that sort of thing, they must not expect to be taken seriously. I do not take the hon. Gentleman seriously, and I do not believe that anybody else does so.
§ Dr. Barnett Stross (Stoke-on-Trent, Central)
Does my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) not remember that Schopenhauer said, "When defeated in argument you can descend to abuse"?
§ Mr. Silverman
It used to be put in riper language in my profession, which perhaps does not read Schopenhauer quite so much as my hon. Friend's profession. We used to say that when we 1187 have no case, we abuse the other man's attorney. It may have an effect upon a jury, but not upon the House of Commons.
If the Government say that they did not intend this consequence, I will believe them, but if they say that they did intend that consequence, it follows that they did intend to deprive the House of Commons of its right under the Parliament Act. The hon. Gentleman can disagree as much as he likes, here or at the Old Bailey, but I do not think he will find that that argument is refragible at all.
Let us assume that it is not the Government's intention to do it, and that somehow or other it had not occurred to the right hon. and gallant Gentleman. In that case, no doubt the Government would agree, in the result, to do what they could well have done with the Whips or without. They could have introduced two separate Measures. One would contain Parts I, III, IV and V, as logically it ought to have done. The Government could have introduced Part II as another separate Measure, with Clauses 5 and 6 in it if they wanted. If they were looking for compromise, they could have had it in a separate Measure, and the House would have have decided, if it wanted, not to persist with the Death Penalty (Abolition) Bill and not to exercise its rights under the Parliament Act; or it could have decided to persist and to exercise those rights. It would have had the opportunity which, by the Government's deliberate decision, the House of Commons is being deprived of this afternoon.
I apologise again for being so long. That argument brings me to my final words. The Government have a duty in the matter. It is not a duty to arbitrate between the House of Lords and the House of Commons. The Government are not entitled to sit on those seats at all, except in so far as they enjoy the confidence and the support of a majority of the House of Commons. It is their only right to be on those benches. It is perfectly right that the Government, on any particular issue, are entitled, as they do on most issues, to say to the House of Commons, "We are the Government. The responsibility is ours. If you do not like what we are recommending and you vote against it, we shall resign. If you 1188 do not want us to resign, you must sink your own judgment and accept what we offer.
They are equally entitled to do what they did on this issue, to say, "We advise you against it. All our executive advice"—whatever that may be—" is against it, but this is not a matter which we make a question of confidence in the Government. We are prepared to leave it to a free decision of the House of Commons. Listen to our advice and give it weight, but if, after listening to it and giving it weight, you decide nevertheless by a majority to come down the other way, we"—in the words of the Lord Privy Seal—" would expect to shape our policy on what you decide."
If the majority opinion of the House of Commons is binding on a free vote it is equally binding on the Government as if it were arrived at by force of the Whips. From this moment onwards, every man or woman hanged in this country will be hanged in defiance of the wishes of the House of Commons, which has the right to decide these issues. Let the right hon. and gallant Gentleman remember that. He is not entitled to arbitrate between the two Houses. He has a responsibility to the House of Commons. He has no responsibility to the House of Lords. His distinguished father would have told him why. It is because if Governments needed to have a majority in the House of Lords there would never be any Government in this country but a Conservative Government. That is why, under the initiative of the right hon. and gallant Gentleman's father, the Parliament Act was passed in 1911. It was in order precisely to achieve that if there was a conflict, such as has now arisen, between the two Houses, the House of Commons, if it wishes, is entitled to prevail. The Government are so conducting themselves in respect of the Bill as to prevent the will of the House of Commons from prevailing.
§ Mr. Silverman
The will of the people is the will of the House of Commons. If the hon. Gentleman does not believe that he has no right to sit here at all. That is what he told the people during his election. There is no other way in our constitution of ascertaining the will of the 1189 people than consulting the majority of the House of Commons. We have no other constitutional method. Maybe we ought to have, but if we are to plead for mandates and referendums, we cannot confine them to the death penalty. We must use them for abdications of the Sovereign, peace or war, and a great many other things which Parliament has to decide from day to day, without ever stopping to think what a majority of the people would advise Parliament to do at that moment.
The people ultimately have their remedy, if we do the wrong thing. We have to go back to them and give an account of our stewardship. They have the opportunity to say, "We are not content with what you have done in our name," and they will not send us back again, for that reason. This check and sanction exists, but until that time comes there is only one way of knowing the will of the people, and that is by consulting the will of the House of Commons and leaving it at that.
§ Mr. Silverman
My hon. and learned Friend introduces matters which might be relevant, but which I would rather not pursue now. Minority vote or not, they were a majority of the House of Commons and a majority of the House of Commons is entitled to prevail, but what is claimed by the Government for all their policy I can claim on this issue. If a majority of the House of Commons, at the invitation of the Government, has carried something on a free vote on an issue of policy even though the Government advised against it I say that the Government are acting in breach of their oath in depriving the House of Commons of the opportunity of asserting—if it wants to assert—its rights under the Parliament Act, and certainly if by any method of any kind they seek to get a decision from the House of Commons contrary to what the House of Commons conscientiously wishes to decide.
§ 6.11 p.m.
§ Sir Lionel Heald (Chertsey)
It is very tempting to follow some of the points made by the hon. Member for Nelson and Colne (Mr. S. Silverman), but I feel 1190 that in the interests of time, as there are a number of hon. Members who want to speak, it would be better if I confined my remarks to the Bill before the House instead of talking about one which has not yet been presented and, perhaps, never will be presented.
Whatever else one says about this Bill, it is a very important Bill so far as the law of this country is concerned. We should all realise that and that it is right and proper that we should consider for a few moments what the Bill is doing, what it contains and what it contributes to the law.
Part I has been welcomed by both sides of the House. I am sorry that it should be so, but I am afraid that I have to say something which might be considered immodest. I believe it is right and proper that I should do so. No mention at all has been made of the fact that the proposals in Part I are substantially those which were proposed by a committee of which I happened to be the humble chairman, composed of a number of highly experienced criminal lawyers and others. They were put forward in a pamphlet brought out by the Inns of Court Conservative and Unionist Society.
It is right and proper that it should be recognised that their work has been valuable, and today it has been recognised on both sides of the House as something really worth while. I am bound to say that the leading speaker on behalf of the Opposition today adopted entirely the opposite point of view on that matter from that which was adopted by the right hon. Member for South Shields (Mr. Ede). On the previous occasion he referred to me and that committee in terms which I will not read, but which made it perfectly plain that the suggestion was that its report was nonsense and that no notice should be taken of it.
That is something which should be understood very clearly indeed. I am sorry that the right hon. Member is not present; I could not give him notice of this and, therefore, I shall not say anything except what is polite about him, but I think it desirable that it should be appreciated that that report, which, on that occasion, was, in effect, described as nonsense, is now for all practical purposes part of this Bill and is accepted by both sides of the House.
§ Sir L. Ungoed-Thomas
I am sure that the right hon. and learned Member would be the last to wish to do injustice to my right hon. Friend the Member for South Shields (Mr. Ede). I have not got before me the passage to which the right hon. and learned Member has referred, but I am sure he will appreciate, as it will be within the recollection of the House, that at the time my right hon. Friend spoke we were dealing with the possibility of that committee's report being considered as an alternative to the abolition of the death penalty. In that context we addressed ourselves to it. I personally very much objected to the proposals of that committee being put forward as an alternative to capital punishment. It is an entirely different matter when it is brought in as a question of jurisprudence, as mentioned by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman).
§ Sir L. Heald
The hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) is a little "off the beam", because what I was referring to was the statement by the right hon. Member for South Shields:I should like to say one or two words about that report which, apparently, the right hon. and learned Gentleman hopes is still alive."—[OFFICIAL REPORT, 16th February, 1956; Vol. 548. c. 2560.]It was not a question of what use was to be made of the report. It is very much alive today, and I am sorry that the right hon. Member is not here to deal with it.
§ Sir L. Heald
I do not think that we need pursue that. I apologise if anything I have said to the House seems immodest, but I am not saying that for myself. I had the privilege of being chairman of a committee of first-rate criminal lawyers which, as is now recognised, produced something worth while.
I wish to ask my right hon. and learned Friend the Attorney-General one or two questions about Part I of the Bill. Before doing so, I may perhaps make it quite clear that the Inns of Court Conservative and Unionist Society was not responsible for Part II of the Bill. I wish to ask my right hon. and learned Friend, on 1192 Clause 2, whether he is really satisfied about the way in which the conception of diminished responsibility has been there stated. Many of us are aware that that conception in the law of Scotland is something which is not the subject of any statutory provision or, indeed, of any definitely formulated principle, but has to be gathered from the directions given by eminent judges.
I wonder whether a little more care ought not to be given to it from that point of view. For example, we find there that there is the expression, "abnormality of mind," which is followed by a bracket in which the first word is "whether". It would seem at least doubtful whether that language within the brackets is really of any effect at all, because the form of the grammar would appear to be that it is not regarded as a limitative phrase and it may merely introduce some confusion.
I particularly draw attention to the words:abnormality of mind (whether arising from … any inherent causes …I find it difficult to know how an abnormality of mind could arise from any cause which was not inherent. I do not know whether that language comes from a judicial pronouncement. If it does I apologise with all humility, but I should like to have some assistance on this point.
§ Sir L. Heald
I do not know; I hope that that will not happen to the hon. and learned Member.
The next question relates to provocation. I ask my right hon. and learned Friend whether he has given, or will give, consideration to the point which was mentioned by the hon. Member for Rossendale (Mr. Anthony Greenwood) and which was also dealt with in the pamphlet to which I have referred, the requirement that "a reasonable man" should be considered. Under the law, no account may be taken of the fact that the man may have suffered from an affliction such as blindness, being a hunchback, or something of that kind, which, according to the ordinary experience of human life, would certainly lead one to regard him as much more 1193 liable to provocation of certain kinds. I suggest that this is a very opportune moment to remedy what a great many people think is an unfairness.
The next matter about which I wish to ask relates to Clause 5 (2), which is in Part II, but it raises one of the points discussed in the Committee's pamphlet. Is my right hon. and learned Friend satisfied that it is right to exclude the death penalty in a case where two or more persons act together and those who do not actually use the weapon not only know that one man has a weapon but also know that he intends to use it? That seems to be going a long way. In the pamphlet to which I referred, it was suggested that the death penalty should be retained for that case or that great care should, at any rate, be given to the matter before it was excluded.
There are other points in Part I which may deserve consideration in Committee. I do not think it would be right for me to go into them here at this time of the evening, but I would say that they are serious and genuinely important points. I know that my right hon. and learned Friend will not think it in any way impertinent when I say that in a difficult matter of this kind it may be possible for some of us to help in a constructive spirit. In Part I we are attempting certain extremely difficult tasks, and it may well be that points which should properly be dealt with in Committee will occur to hon. Members who have had experience of these matters.
I want now to say a word about the entirely different matter of Part II. Without entering into any argument, I would merely say that the hon. Member for Nelson and Colne has stated that some of the provisions of Clause 5 are matters which have been discussed and judged by the House of Commons. However, the question of poisoning was never discussed during the Committee stage of the former Bill.
§ Sir L. Heald
I have read the Bill. I am much obliged to the hon. Gentleman, but I have been sitting here quite patiently for the last hour, and I will deal with the matter in my own way.
§ Mr. Silverman
The right hon. and learned Gentleman did not have to remain here. The door was open.
§ Sir L. Heald
Perhaps it would have been wiser if I had gone out.
An Amendment to deal with the question of poisoning was tabled during the passage of the former Bill, but it was not discussed. As my name was attached to it, I think it right, having regard to what the hon. Member for Nelson and Colne has said, to say that I thought that in the circumstances of that Bill it was quite useless and a waste of time to discuss it.
Today, it is a very different matter indeed. Clause 5 provides that any murder which is done by shooting or by causing an explosion, and any murder which is done in the course or furtherance of theft, shall be subject to the death penalty. I am convinced, and a great many other people in the country think as I do, that the omission of poisoning from the Clause is a mistake and that it ought to be put in. That is a matter which can be discussed in Committee, but I think it right that it should be stated now.
I disagreed with a very great deal of what the hon. Member for Nelson and Colne said—I often do, but it does not prevent us from having very friendly arguments—but I agreed with one thing that he said, that he thought that a great number of people would be surprised and concerned that the death penalty was not to apply any more in any circumstances to poisoning I believe that there will be a very strong feeling indeed in the country about that. In fact, I do not believe that many people have yet realised that murder by poisoning is not dealt with in the Bill.
I have not seen it discussed in the Press, at least, not at any length. I believe that hon. Members may find during the course of the next few days or weeks that there is a considerable amount of public feeling about it. I cannot see any justification for leaving it out. It is unnecessary to argue the matter now. [Interruption.] I should be very grateful if the hon. Member for Nelson and Colne would allow me to proceed. I am trying to speak extremely quickly, because I know that a number of other hon. Members wish to speak.
1195 It is unnecessary to underline the point any further, except perhaps in this way. According to Clause 5 (1, a) one finds that the death penalty is retained for:… any murder done in the course or furtherance of theft….If one considers the classic cases of murder by poisoning, there is no doubt at all that they were done in the course or furtherance of greed or gain, and it seems to me that it will appeal to ordinary men and women that it is not justifiable to exclude poisoning cases. I do not need to enlarge on the horror and secrecy of the crime of poisoning. However, sometimes when one has had experience of these matters one has, perhaps, a little more knowledge about them than those who have not had close experience of such cases.
I most sincerely hope that my right hon. and learned Friend will tell the House that the matter will be given really careful consideration. I mentioned that this matter was not considered during the course of the former Bill. A very large number of things were discussed during its Committee stage, but I do not remember any discussion on this point. It seems to me to have been overlooked. I am sure that it will not be overlooked by the people. This is not a party matter. There are people throughout the country who are beginning to ask questions, and a great many more are likely to do so.
It would be absolutely wrong for us to deal with the matter in the way suggested by the hon. Member for Nelson and Colne. He said that because there was a certain result on a free vote in the House in certain circumstances and at a certain time, we should ignore public opinion. I hope that public opinion will not be ignored.
§ 6.28 p.m.
§ Mr. George Benson (Chesterfield)
The House is in process of re-enacting with extraordinary fidelity a series of events which took place in 1948. In that year the House carried an Amendment to the Criminal Justice Bill, against the Government, in favour of the abolition of capital punishment. When the Measure went to another place, the Amendment was deleted. When the Bill returned to us, we attempted to meet the objections which had been made to the Clause in another place.
1196 The hon. Member for Nelson and Colne (Mr. S. Silverman) and I were both members of a small sub-committee that tried to draft a Clause dealing with a limited abolition of capital punishment in such a way that the objections that had been raised in another place would be met. We succeeded in meeting the objections previously made, but I must admit that we produced a Clause which was so illogical as to verge upon the ridiculous. Our defence was that we were engaged in a salvage operation, and that our Clause would at least have cut out seven or eight executions out of ten, and we were far more concerned with that than with being logical. When it went back to another place it was shot to pieces on those grounds alone. It was butchered to make a judges' holiday.
What is happening now? Abolition was carried by this House against the Government last Session. The Bill was thrown out by the Lords, as was the 1948 Clause, and the Government have now introduced a Bill, which, in Part II, is almost identical with the Clause which we sent back to the Lords in 1948. The only difference between our Clause and their Bill is that we excluded shooting and included poisoning, whereas this Bill includes shooting and excludes poisoning.
The Government are trying to salvage two things. First, they are trying to salvage the pledge which they made to the House last Session. They then agreed to accept the decision of the House. They did so, because they wanted to bluff their own back benchers. In effect, the Government then said to their own back benchers "If you vote in favour of the abolition of the death penalty, we shall act. Do not think that you can make just a sentimental demonstration. If you vote in favour of the abolition of the death penalty, the Government will act." They found themselves hoist with their own petard. They did not frighten their back benchers; they did not bluff them. That is the first thing that they are trying to salvage.
The second thing which the Government are salvaging is the death penalty itself—and they are engaged in a hopeless task. They may retain it for a short time, but not for very long. In 1948 we could muster in the Lords only 29 supporters for the abolition of the death penalty. When what is known as the 1197 Silverman Bill went to another place last Session, that 29 had grown to 95. The Bishops voted 8 to 1 in favour, and—miracle of miracles—even the judges were split.
As I say, the Government are engaged upon a salvage operation. We were trying to exclude from execution eight out of ten. Their effort is a much more modest one. They are trying by this Bill to include about two out of ten. It is a very trivial thing—and even at that, their inclusion will prove temporary. The Government will not remain on those benches indefinitely. Sooner or later a Labour Government will sit there. It may be in two years' time, maybe five—let us stretch it to the ultimate possibility and say that it might even be seven years—but, when we become the Government, we shall abolish the death penalty. Therefore, all that this Bill does can be merely temporary.
Over a period of years, the maximum effect of this Measure, as compared with complete abolition, would possibly be to hang 15, 20 or 25 murderers. That is the whole of it. But there is a constitutional point that might arise. Has the right hon. and gallant Gentleman considered what might happen if the Lords, as they might well do, rejected this Bill? It is a point worth considering.
I would have the Government remember two things. The first is that the abolition of the death penalty evokes very strong feelings on this side of the House. It is something which we hold to passionately. Secondly, our attitude to the Lords is fundamentally different from theirs. It is very probable that the Lords will reject this Bill. We have not forgotten that they rejected our Clause in 1948;nor have we forgotten that they rejected the Silverman Bill last Session. If they reject this compromise Bill, we shall certainly not forget that.
Sooner or later we shall be the Government. Does the right hon. and gallant Gentleman realise that, at the present moment, he is running the risk of creating conflict between this House and another place? If this Bill is rejected, as it may well be, then certainly, as soon as we are the Government, not merely the problem of the death penalty but that of the position of another place will be considered. That is a risk which the Government must take into consideration.
1198 To what end are they taking that risk? It is the possibility that they may hang two, three, or possibly even four, murderers a year for a few years. The Lords are very incalculable, and in their corporate capacity they can take action that is not necessarily very wise. I suggest that unless the right hon. and gallant Gentleman is prepared to accept the ultimate consequences which may flow from his action in producing this Bill, it would be very much safer, and, in practical effect, would make little or no difference, to scrap this Bill, and to send to another place the Silverman Bill under the Parliament Act.
§ 6.40 p.m.
§ Sir Patrick Spens (Kensington, South)
The House, of course, knows that I am not an abolitionist, but I think that the House also knows that for a very long time I have felt that the country's law on murder required serious amendment. I had intended to say of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) what he very modestly said for himself, that long before the Silverman Bill—if I may so call it—was introduced into this House, some of us had felt very strongly that amendments to the law were required. A subcommittee of the Society over which my right hon. and learned Friend presided began its study long before the Silverman Bill was ever presented to this House. It is perfectly true that by a pure accident, there were delays in the printing of the report and it was finally printed and published three or four weeks before the Bill was presented. It was not possible, in those circumstances, for the Government to give very serious consideration to it. Indeed, there was no obligation on them to do so; it was only a report from a small group of their supporters.
All along, of course, we had hoped that quite apart from the question of the penalty for murder, the law of murder would have been amended by this Parliament.
§ Mr. S. Silverman
I should like to endorse what the right hon. and learned Gentleman has said, that the contemporaneity of the publication of the pamphlet and the presentation of the Bill was accidental. On the other hand, the right hon. and learned Gentleman will remember that many of the proposals—not all of them—were in the compromise 1199 Clause in 1948, particularly the one about constructive malice, and both Governments from 1948 until 1956 had ample opportunity of putting the matter right without the aid of either of us.
§ Sir P. Spens
I do not dispute that the Government had the opportunity, but the Government did not so act, and those of us who were interested in something being done saw that recommendations were made.
I congratulate my right hon. and learned Friend on the fact that those recommendations have been adopted and are now part of Part I of this Bill. I am quite certain that they will be acceptable—and not only to the great majority of this House; I think that anybody who voted against them would do so merely because he was frightened of a red herring being drawn across the trail of abolition or non-abolition. Therefore, I am sure that the recommendations will be accepted by a great majority in another place.
That part of the Bill, therefore, is almost agreed between the parties. But I should have been gravely disappointed if Part II had not been included in the Bill as well, because those of us who believed that a mistake would be made by the total abolition of the death penalty wanted to see it retained in respect of certain homicides. The ground of selection which the Government have now made, relating to those items which I am sure at rock bottom affect the maintenance of law and order and the safety of the great bulk of people in this country, is a sound and a good one.
Let me deal with the only other point about which I want to say a few words. I was rather surprised that it was suggested that when a Bill had received a majority in this House, and had been rejected in another place, there was then a duty on the Government to reintroduce or to give facilities for the reintroduction of a Bill in the next Session in substantially the same form. I entirely disagree with any such suggestion. I can well imagine amendments, criticism and rejection of a Government Bill in another place appearing to represent such a volume of feeling in the country that the Government would scrap that Bill and not introduce it again. That is a perfectly proper course for the Government to take under the Parliament Act.
1200 Of course, I do not admit for one moment that the other place is a nonentity. I regard the other place as a very substantial and important part of our Constitution, and I think that this is an instance where the other place has represented a very strong volume of opinion in the country which, for one reason or another, was not recognised to the same extent in this House.
§ Mr. Benson
The fact that the right hon. and learned Gentleman regards the other place as vitally important is surely an argument for sending the Silverman Bill to it and not risking a clash between this House and the other place.
§ Sir P. Spens
I was going to come on to the suggestion of a possibility of a clash. I find it very difficult to follow that argument.
I start by saying that there is no obligation on the Government, the Government having had a perfectly firm view throughout on this issue, to make facilities—and that is all they can do—for sending the Bill back to another place. The Government are perfectly at liberty, in my view, to take action for the benefit of the community for whom they are the responsible Executive, and if the Government think fit to introduce a Bill entirely different from the Silverman Bill, and ask this House to consider it and then send it to the other place, they are absolutely and constitutionally at liberty to do so.
§ Mr. S. Silverman
Will the right hon. and learned Gentleman bear in mind that I have conceded that fact? I said that they would have been perfectly entitled, if they thought fit, to introduce Part II with all its amendments of the Death Penalty (Abolition) Bill and leave it to the House to decide whether to do it or not, with the Whips on if it was so desired. What I think they were not entitled to do was to do it in such a way that if the House decided to stand by its former view they were deprived of the protection of the Parliament Act.
§ Sir P. Spens
That is where I disagree with the hon. Gentleman absolutely. I say that the Government are perfectly free, in a Session following a Session in which the other place has differed from us, to introduce proposals on any lines they like. There is no obligation whatsoever on the Government to give facilities for something to which the other place 1201 has objected in a previous Session. It is straining the Parliament Act in a way which it simply will not bear, and far more important, it is detrimental to the good government of this country. To say that, merely because the other place objects to something that has passed this House, the Government cannot think again and introduce what they think is best for the country, is a constitutional theory which, once considered, ought to be buried and never heard of again.
§ 6.48 p.m.
§ Sir Hugh Lucas-Tooth (Hendon, South)
During the proceedings on the Death Penalty (Abolition) Bill, last Session, some of my hon. Friends and I voted for the Second Reading of that Bill, and we then put down certain Amendments which would have had the effect of making exceptions from the principle of total abolition. The purpose and the principle of those Amendments was to reserve the possibility of capital punishment in one class of case only—what may be conveniently described, and I think was described this afternoon by my right hon. and learned Friend the Home Secretary, as the case of the professional criminal, that is to say, cases where the murderer is otherwise in danger of a long term of imprisonment or where he is, in fact, already serving such a term.
A life sentence is usually terminated nowadays, I believe, after about nine years, on an average. Although it may be a longer period hereafter, it is virtually always terminated. Such a sentence is no deterrent for a man who is already confronted by a long sentence of imprisonment. At little or no extra risk, the thief who is caught in the act can, by killing the householder or policeman or whoever it may be, not only assist his own escape but he can also destroy evidence against him. Again, of course, the prisoner who is already undergoing a life sentence has virtually nothing to fear from the imposition of another sentence upon him.
My hon. Friends and I thought that in cases of this kind the death penalty should be still available. The House will remember that in the Divisions on these Amendments, the Committee was most nearly equally divided. There were two Amendments; in Committee, one was lost by 12 votes and the other was carried 1202 by four votes. In face of these figures, it is not unreasonable to say that it. is the duty of the Government to seek a compromise. In so far as this is a question of conscience, I think that that duty is all the greater. No majority has any right to outrage the convictions of any minority.
§ Sir H. Lucas-Tooth
And vice versa, if it is possible to arrive at a reasonable compromise which will avoid that outcome.
It has been argued, very cogently, if I may say so, by the hon. Member for Nelson and Colne (Mr. S. Silverman), that no compromise is now possible. He relied on the Report of the Royal Commission and the arguments set out in that Report. Of course, it is perfectly true to say that the Royal Commission considered the possibility of a compromise. Indeed, as I think the hon. Member for Nelson and Colne pointed out, that was the reason the Commission was appointed. What the Royal Commission did was to consider whether murders could be classified according to the degree of heinousness.
§ Mr. S. Silverman
I am sorry to interrupt the hon. Gentleman, but I really must point out that the Royal Commission dealt with the general proposition which he has just enunciated, but also dealt specifically with every one of the particular cases dealt with during the Committee stage last Session and in the Home Secretary's Bill today.
§ Sir H. Lucas-Tooth
I would not for a moment contend that the Royal Commission did not cover the entire ground, but it covered it from this point of view: can we classify murder according to the degree of heinousness? If I may say so, in the conclusions which are to be found at paragraph 534, the Commission says this expressly: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.That is the Commission's own express statement of what it had done. It said that at the beginning and it said it at the end.
§ Mr. S. Silverman
That is perfectly true, but in between the beginning and the end the Commission took every possible proposed exception specifically in turn, and rejected each one on its own merits.
§ Mr. Speaker
May I say that I understand that the hon. Member for Nelson and Colne (Mr. S. Silverman) has a great interest in this matter; that is only natural. But he has made a great number of interventions, and I think it would be better if we were to proceed with fewer of them.
§ Sir H. Lucas-Tooth
I must apologise Mr. Speaker, for giving way rather freely to the hon. Member for Nelson and Colne. I feel very strongly indeed that it is altogether wrong to rely upon the Report of the Royal Commission in this connection. I entirely agree with its conclusion that it is impossible to classify murders according to the degree of heinousness. Moral obliquity depends on motive and state of mind, not upon the method by which the crime is committed.
§ Sir H. Lucas-Tooth
Perhaps the hon. and learned Gentleman the Member for Northampton (Mr. Paget) will refer to it in the course of his speech.
We certainly cannot classify the motives of human beings. What the Royal Commission did not do was to consider whether, if the principle of abolition is once accepted, there should be any exceptions from that principle on the ground of expediency. I do not think the hon. Member for Nelson and Colne will find that anywhere, and for this reason, of course, that, unfortunately, the Commission was precluded from considering that matter because it was precluded from canvassing that very question as to whether the principle of abolition should be accepted.
If the principle is accepted, then, as I think is generally admitted, there may properly be some exceptions on the ground of expediency. The hon. Member for Nelson and Colne himself believes in the principle of total abolition, but he will concede, I think, that he left out from his own Bill both traitors and certain classes of military offenders. He 1204 left those out, as I think he has explained in the House, not because he thinks they ought, on principle, to be exempted, but because they are a class which should be left out on the ground of expediency.
§ Sir H. Lucas-Tooth
I think there is a further class of exception which it is desirable to make, also on the ground of expediency, namely, the class which has been described as the professional criminal. I would defend that exception on its own merits. To do that, of course, is to maintain a view; it is a matter of opinion. But whether one agrees with that opinion or not, there is here a genuine basis for an acceptable compromise. That basis, as I see it, is really what is enshrined in Part II of the Bill. Reading Part II of the Bill, to my mind the essentially operative Clause, to which the hon. Member for Nelson and Colne did not refer, is Clause 7.
§ Sir H. Lucas-Tooth
Then I beg the hon. Gentleman's pardon.
Clause 7 says:No person shall be liable to suffer death for murder in any case not falling within section five or six of this Act.That is the operative Clause, the abolition Clause. Then certain exceptions are made, by Clauses 5 and 6, to cover the needs of expediency. As I read them—and, indeed, my right hon. and gallant Friend the Home Secretary did not seek to defend them on this ground—these exceptions are not to be regarded as the most heinous of murders. That is not the position at all.
I say straight away that the provisions of Clauses 5 and 6 are not what I myself would have chosen if I had had the drafting of this Bill. They are wider in some respects than what I would have liked to see and in a small respect they are somewhat narrower.
I am sorry that Clause 6, which deals with what have been called multiple murders, has been included in the Bill, because at the moment I cannot see that 1205 it is connected with the idea of the professional criminal. The majority of multiple murders have a sexual basis and practically all the multiple murderers are abnormal. Indeed, the most horrible of multiple murderers in recent times was, in fact, reprieved under the existing law, and it is not improbable that many others might have benefited under the provisions of Clause 2 of the Bill.
Had the Clause been designed to cover the person who commits a second murder after a previous conviction for murder, that would have been another matter. I concede that that would come within the broad principle, but that is not, as I read it and as my right hon. and gallant Friend explained it, the purpose of the Clause. I hope that he will be willing to reconsider that point.
It seems to me that subsection (1, a) of Clause 5 is both simpler and wider than the Amendment which was nearly carried in Committee last summer. This provision must, of course, be read in conjunction with Clause 1, which abolishes constructive malice. It is that which enables the provision to be much more simply stated and on the whole it is slightly narrower now than it was in the Amendment which I moved and which was rejected.
I do not so much like subsection (1, b), which deals with shooting and explosions. In this case, the provision seems to go considerably wider than the case of professional criminals and it introduces the notion of the method employed, I should be sorry to see that notion introduced into the Bill. That was the bane of the Clause in the earlier Bill and it is the only case in which it is introduced into this Clause. I would say to my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) that if an Amendment were put down to include poisoners, I would feel obliged to vote against it. On the other hand, paragraphs (d) and (e) of subsection (1) are, oddly, narrower. In particular, it seems to me that the ordinary citizen who does his duty trying to stop a crime in advance of the arrival of the police is quite as much in need of special protection as the policeman, and that the position of the fellow prisoners of dangerous criminals undergoing long sentences needs consideration.
1206 I apologise to the House for referring to these matters at length on Second Reading. I have done so because it seems to me that the points I have mentioned impinge on the fundamental principle of Part II of the Bill. I should like my right hon and gallant Friend the Home Secretary to study them now and, if possible, himself to put down Amendments before the Committee stage. When the Bill goes to Committee, there will certainly be a very large number of Amendments—there is no question of that—probably from all quarters of the House. If we all press those Amendments according to our individual views, the Bill will cease to be a compromise and will be more like a shambles.
For that reason, I would not at all willingly vote against a firm decision of the Government in Committee even though that decision did not accord precisely with what I myself would like to see; and I should hope that the same restraint might perhaps be felt by other hon. Members. I believe that by taking such a course we shall have travelled more quickly towards a solution of this problem, which commands the respect of all our people.
§ 7.5 p.m.
§ Mr. E. G. Willis (Edinburgh, East)
Before replying to some of the arguments put forward by the hon. Member for Hendon, South (Sir H. Lucas-Tooth) I should like to say that as a Scottish Member I am delighted to see the English learning from the Scots and doing something in Part I of the Bill which has long been overdue. Apart from the real "guts" of the Bill—Part II—the only provision affecting Scotland is the repeal of the certain provisions of the law concerning certain crimes of violence against persons, which has not been given effect to for a very long time in the courts of Scotland.
The hon. Member for Hendon, South quoted paragraph 534 of the Report of the Royal Commission in support of the argument he adduced. He agreed that one could not draw a list of categories of murder based upon heinousness. The Royal Commission, however, said that it was not possible to draw up any other list either, and it said so very clearly in paragraph 504.
The Royal Commission did not merely say that one cannot draw up a list of 1207 murders in accordance with their heinous-ness, but in paragraph 504 it dealt with the matter much more fully, when it stated:An alternative method would be to base the definition of murder in the first degree on a list of categories of murder selected as being those for which the capital sentence is considered to be most appropriate or most needed.I take it that the reason for drawing up the list of categories as given by the Home Secretary—namely, that they were judged to be in the best interests of the security of the community—would be included in that definition.
The Royal Commission, however, at paragraph 504, went on to say:whatever criteria may be adopted, we believe that the classification of murders by categories will produce anomalies which will invite strong criticism and will be extremely difficult to defend.The Royal Commission then dealt with the 1948 compromise Clause and finally, at the end of paragraph 504, said:Any attempt to formulate degrees of murder by this method would, we believe, be open to objections similar to those raised against the compromise clause, and we are driven to the conclusion that it is impracticable to find a solution of the problem along these lines.Nothing could be more definite than that, coming, as it does, from a Royal Commission, which as my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) pointed out, spent four years trying to find a compromise. That is very definite, indeed.
One has only to look at the provisions of Part II of the Bill and study them for a short time to realise how difficult the question is and how unreal are certain aspects of it. One finds all sorts of anomalies, some of which were quoted by my hon. Friend the Member for Neslon and Colne. One of them was given by my hon. and learned Friend the Member for Northampton (Mr. Paget), in an intervention. Anybody with a little ingenuity or legal knowledge could give a whole host of contradictions that would inevitably arise under Clause 5. Therefore, it seems to me that we ought to have stuck to the Silverman Bill.
The arguments which have been adduced today against that Bill and in favour of this are rather mixed. There has been the argument of the desirability of finding a compromise between the abolitionists and the retentionists. That was rejected most emphatically by the 1208 Royal Commission, and anybody studying the proposals in Clause 5 will see at once how difficult it is to reach any compromise.
Then there has been the argument as to what is public opinion. I do not know how public opinion on this matter is judged other than by the opinion expressed in the House of Commons. I know, of course, that a Tory Party conference would hardly allow anybody to speak who was in favour of abolishing capital punishment, but the recent conference represented a very small section of public opinion. We could hold another conference, equally big, where hardly anyone would be allowed to speak in favour of retaining capital punishment. Would one then immediately say that public opinion was against capital punishment?
As my hon. Friend the Member for Nelson and Colne has pointed out, in matters of this kind there is no reflection of public opinion other than this House of Commons. It is true, of course, that in another place a view different from that held by this House was expressed and carried by a majority, but I do not believe that another place is more representative of public opinion than this place.
After all, whether we are right or wrong, we probably respond to public pressure as much as anybody. We are constantly subject to public pressure, expressed in correspondence, at meetings of constituents, at public meetings, at Elections. We have to run the whole gamut of the expression of public feeling. Surely hon. Members tend to respond to the feelings they believe to exist among their constituents. I should have thought, therefore, that this House was far more representative of public opinion than another place.
However, Clause 5 does not seem to meet public opinion at all. The murders which come within this Clause are not the sorts of murders that cause the loudest outcry. The categories of murder here enumerated are not necessarily those which cause the greatest horror. Nor are they those which necessarily create that opinion, which undoubtedly exists in the country, which wishes to retain capital punishment. Therefore, I am not deeply impressed by that argument.
1209 The other argument has been that we ought to try to bring an end to this controversy, This is the third of what seem to me to have been the three main arguments. But we cannot end this controversy unless we do abolish capital punishment. Even if we pass this Bill there will be no end to this controversy, because somebody will still want to abolish capital punishment, and somebody will probably introduce a Private Member's Bill next Session for that purpose. The Government do not even solve their own problems for themselves simply by introducing this Bill. This is not the end of the controversy. The end, of course, is complete abolition.
For these reasons, I find myself more than ever convinced that the stand which those of us took when the Silverman Bill was before us was the right stand.
§ 7.14 p.m.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
This is a Homicide Bill. It is not a death penalty Bill. This is a Bill to reform the law of murder. We have heard a good deal said about ending controversy. That has been stressed by the hon. Member for Rossendale (Mr. Anthony Greenwood) who was the opening Opposition spokesman, by the hon. Member for Nelson and Colne (Mr. S. Silverman) and by the hon. Member for Edinburgh, East (Mr. Willis). Let me remind them that in 1948, when they and their party comprised the Government and were on this side of the House, they, by administrative action, in fact abolished the death penalty: they did not implement that decision. Within a matter of months there was such a strong upsurge of public opinion that they were impelled to bring it back again almost immediately. If we were to abolish it now we should have exactly the same upsurge of public opinion and be compelled to reintroduce the death penalty again. We should not thus end the controversy.
I turn to the very serious argument which was addressed to the House, first by the hon. Member for Rossendale and then by the hon. Member for Nelson and Colne, whose speech I characterised in an intervention as his typical rubbish. He made a very serious challenge indeed to the Government by suggesting that the Government had flouted the Parliament Act and had introduced the Bill 1210 in order to deny the rights of private Members in relation to Private Members' Bills. There is absolutely no truth in that assertion.
I was chided by the hon. Member and told I did not know what I was talking about and had not the guts at that time to stand up in the Chamber to tell him in a few words how it came about that what he was saying was wholly nonsense. I did not do so at that time because I thought it better to wait until I could make my own speech and lay all the facts before the House.
The events which have led up to this Bill are known to me personally extremely well, for from the very outset and for a long time past I have been deeply concerned with the reform of the law of murder. After 1948 and the administrative action which the Labour Government took, and after they felt compelled to restore the death penalty, there were ultimately three debates on this subject. There came the debate in 1955, when the House voted, on the strict issue between abolition and retention, to retain the death penalty.
As a very junior Member of this House I had the privilege of listening to that debate but, because it was a debate on the death penalty only, I did not seek to catch Mr. Speaker's eye, because what I was concerned with was the solution of the two extremes, the solution between those on the one side who believe in the retention of the death penalty and those on the other side who believe in its total abolition. I was very anxious in that debate to hear the views of both sides to see if I could inform myself how the Government might, perhaps, be assisted towards the introduction of the Bill which is now before the House.
In February, 1955, I wrote to the Home Secretary and I also wrote at that time to The Times newspaper and other papers, setting out proposals for reform of the law of murder. I shall not bore the House by enumerating those proposals, which are now to a large extent incorporated in the Bill. However, by leave of the House I would refer to something which I should have said in the second of the debates to which I have referred had it not been that I was not fortunate enough to catch your eye, Mr. Speaker. This is what I wrote to the Daily Telegraph at that time, which were the 1211 views I was also then expressing to the Home Secretary:Following the debate on capital punishment which took place in the House of Commons last February"—I was writing in February, 1956, about the debate in February, 1955—I put certain proposals for reform of the law of murder. The law of murder is distorted by a number of anomalies and anachronisms and unless these are removed the public will be unable to bring a correct judgment to bear on the question how far sentence of death is ever permissible. The law needs reform irrespective of the issue of capital punishment and such debate will not be profitable until amending legislation has taken place. The public conscience is distorted by a small number of cases in most of which the death penalty would not be carried out if proper amendments to the law of murder were made. What is the scope of the amendments which should take place?I need not read on because those amendments are those which are now contained in Clauses 1, 2, 3 and 5 of this Bill.
As to these amendments, in February, 1955, one was inviting the Government then to extend the scope of the Royal Commission and to amend the law of provocation, to abolish the doctrine of constructive malice—which was included in the Commission's terms—to introduce the Scottish law of diminished responsibility, which was not one of the Commission's recommendations but which the Commssion agreed was reasonable while not being prepared to suggest it, and also to go further in dealing with the Bentley type of case—that is to say, that unless the person himself had a clear intention to kill, he should not lose his life.
As a result of these representations, and very naturally and properly, it was suggested that a strong committee should be set up of those with a wide practical experience of the law of murder. Consequently, I approached my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) and others, and there came into being the committee now known as the Heald Committee. That committee was not chosen of people who are retentionists. It had among its members my hon. and learned Friend the Member for Northwich (Mr. J. Foster), who is known to be an abolitionist. The purpose of the committee was to try, if possible, to collate the best of the views 1212 of the Royal Commission in the light of the immense experience of men who had practised in the courts. On the committee were members of the Bar well known both for the defence and for the prosecution in the criminal courts.
The outcome of that committee's deliberations was published, it so happened, coincidentally with the debates in January, 1956, on the death penalty and, for the same reason, it was not of much assistance for those of us directly concerned with reform to take an effective part in debate on a quite different matter—a question of conscience as to total abolition or not.
I should like to read four or five lines from the first page of that Committee's Report:We believe that public opinion is groping for a solution between the two extremesthat is, between total abolition of the death penalty and otherwise.
It is no easy task to make an accurate assessment of public opinion. 'Half a dozen grasshoppers under a fern,' said Burke, 'make the field ring with their importunate chink, whilst thousands of great cattle, reposed beneath the shadow of the British oak, chew the cud and are silent.'Nevertheless, the people concerned with the Report are in very close touch, as the House is in other respects, with those concerned with the death penalty and those who come before the courts.
Some of us were at the Conservative Conference and have been continually lobbied on this matter by an enormous number of constituents. I have no hesitation in saying that 90 per cent. of the Conservative Party in the country is in favour of retention of the death penalty, coupled with an amendment of the law of murder. I shall not presume to say what the views of the party opposite in the country are on the matter. I do not know, but those of us who were at the debate at Llandudno had not the slightest doubt that those who were delegates and representatives of their constituents were in favour of retention, with amendment of the law. I spoke to a large number of them and I was told most emphatically that the Conservative associations in the constituencies were wholeheartedly for retention but were anxious that the law should be comprehensively amended.
If that is so, what are the amendments which the public seeks in groping 1213 between one extreme and the other? They will not be found by looking at Clause 5 of the Bill. They will be found only by looking at certain principles. There are four main matters which are of public concern, and I would test these any time in debate against examples of particular murders.
First, the public were very concerned about the law of provocation. They did not want the judges to have any right to interfere with the jury in deciding whether a man was provoked according to "reasonable" judgment. The difficulty that we had was that which has been rightly raised today by the hon. Member for Rossendale. If a man who has a particularly bad leg is kicked, the reaction from him might not be that from a man with normal legs. Therefore, the test of reasonableness must be carefully considered. But it was clear that the country wanted a different approach to the question of provocation.
People did not merely not want to see a man hanged. They did not want to see him require the consideration of the Home Secretary for a reprieve in cases where the public had come to the conclusion that he should not be hanged. The trouble about the Ruth Ellis case was that people had already decided that she should not hang, because the judge and the jury had not been allowed to decide the question of provocation. That is why there was such an outcry about the Ruth Ellis case.
I turn now to the question of diminished responsibility. It was essential to get rid of the insanity law. We have been cajoling and bullying that law in the law courts for many years and getting perverse rulings from juries. There was the case of a man who killed his sister-in-law in a suicide pact and who could so easily have secured a verdict of "Guilty but insane" because he was so mentally backward that he had the mentality of a boy of nine.
The country, therefore, wants to see a change in the law of insanity. The Scots, with their very admirable common sense, have an anomaly which lawyers cannot defend but which works out in practice and enables diminished responsibility to be dealt with. That is incorporated in the Bill now before the House. Both these points are very good 1214 features of the Bill, and will remove some of the public's worries.
Then there is the Bentley case. The public, of course, could not understand a boy of 19 being sent to the gallows when he had not done the act of killing, and the other boy who had done the act of killing was not hanged. Surely it is right that, where the death penalty is concerned, leniency in these cases should be on the side of the person who did not commit the act. It is an ordinary principle of justice. We feel particularly that the man who actually struck the blow should swing, and not somebody else who happened to be on the spot at the time but could not have had full control of the other person. The provision dealing with these cases removes another public worry.
Those are the four main questions of public concern, each of which is contained in the Homicide Bill which is before the House. The great fundamental cleavage of opinion between the hon. Member for Nelson and Colne and those of us on this side of the House, including myself, who take a different view, is that we have said that we should reform the law of murder first, and properly. When that has been done, and when there has been an appropriate period to see whether that meets the needs of the public conscience—which will be between live and seven years at least—then it may or may not be the time to consider ending the death penalty altogether.
That day may come. I know it is the view of the hon. and learned Member for Northwich that sooner or later the death penalty will be abolished, but I equally know that it is his view that we should have these reforms to our law carried out, and carried out properly.
I end by dealing with a number of matters raised by the hon. Member for Nelson and Colne. I say in advance to the Government that they have already heard from a number of eminent lawyers, and those who understand this problem fully, the view that this Bill is workable; that is to say, it is a Bill which can be administered effectively in the courts and it is one which will work; and that is an important matter for consideration. So far as I know, it is a Bill to which no objection has been taken by those in the courts who will have to administer it. No doubt in due course we shall hear in 1215 another place the views of Her Majesty's judges upon the Bill, but at the moment, so far as I am aware, the Bill has not raised a caterwaul in the direction of the Law Courts, and caterwauling is heard if those there think that anything is likely to be too difficult to handle. Also I do not think it can be said that this Bill will put more money into the pockets of the lawyers or will cause any more murders.
I believe that if we remove the principal points of public concern we shall end the controversy so far as the public is concerned. I am not talking about ending the controversy so far as the Observer is concerned. And we shall not end the views held by those like the hon. Gentleman the Member for Nelson and Colne, who has a positively schizophrenic judgment on the question of abolition—part of it is phrenic and part of it is schizo, but I am never certain which we are listening to at any moment.
I have dealt with the question of the mandate of the people, by saying that whilst I do not suggest there are not many Labour supporters and possibly many Liberals and, it may be, quite a number of those belonging to religious denominations who truly and sincerely believe in complete abolition, I say that it would be wrong for my party not to attach some weight to the immense public feeling of Conservative supporters all over the country. The latter indicated practically unanimously at a conference of 5,000 people that they are of the opinion that this is not the time for complete abolition.
The hon. Member for Nelson and Colne asserted with regard to poisoning that this Bill is a poisoner's charter and would therefore cause serious difficulty. I challenge him. Would he, instead of seizing every obstructionist opportunity, at some time join with me in trying to draft an Amendment to this Bill which will include poisoning by the premeditated poisoner but which will exclude poisoning by the mercy poisoner? If so, I shall be happy to work with him in trying to improve the Bill in that way. So far as I am aware, no draftsman has yet been able to do that.
§ Mr. S. Silverman
The hon. Gentleman, not for the first time, misses the entire point. I do not want to make poisoning capital murder because I do not want to make anything capital murder, as the hon. Gentleman well 1216 understands. I was not saying that this Bill would be made better by putting in poisoning but that the absence of poisoning was obviously irrational, and that it was an illustration of the fact that no compromise Clause can be made workable.
§ Mr. Rees-Davies
I understood the argument of the hon. Gentleman, but from that it flows that anything he can say which will make nonsense of the Bill, he wants to urge, but anything which will make sense of the Bill, he wants to avoid. Whilst hitherto the draftsmen appear to have failed to do what I have suggested, my hon. Friends and I will use our best endeavours to draft such a Clause.
For the sake of the country, because this point has not yet been dealt with, the answer to the question of poisoning is that in this country in the past seven years there have been only three cases of deliberate poisoning in which murderers have been convicted. During that period there have been many cases of what are known as mercy killings by poisoning. Obviously it would be vital to draft a Clause ensuring that murderers such as the Merrifield woman poisoner should hang, but that those who, shall I say, as an act of mercy get rid of their wife, husband or child who is in the last stages of T.B. or any other disease, would be fully protected. That is a matter of degree which I am sure the House will try to deal with during the Committee stage.
The last point raised was the question of retaining hanging in defiance of the wish of the House of Commons. As I see it, first, the House of Commons is not the only institution of government in this country. As we have not got single-Chamber government, the other place is entitled to receive consideration of its views as much as this House is so entitled, so long as we have a second Chamber.
Secondly, in that Chamber sit a number of very wise and level-headed men, men who are not merely peers through heredity but because of their ability to serve as men of affairs. Thirdly, there is not the slightest doubt that the Conservative Party of this country is overwhelmingly in favour of the views expressed in the other place and not those expressed in this Chamber.
1217 Finally, on the matter of the views of the House of Commons, I would remind hon. Members that during the Committee stage I tabled nine Amendments which came under discussion. Most of them related to the Clauses which are now embodied in Clauses 5 and 6 of this Bill. The majority voting against them was never in excess of 24 and, in many cases, was between 12, 20, 21 and 24.
Therefore it seems fair to say that we have the following position. We have the reform of the law of murder by the Government moved properly as a Government Bill with a long history, in which the Home Secretary has most fairly and most carefully given consideration not only to the views of the Royal Commission but to the views of many other people. My right hon. and gallant Friend has had to prepare a by no means easy Bill. He has done that, and he has succeeded in bringing it before this Session of Parliament. No doubt he would have been able to do this in the previous Session if it had not been necessary to deal with the Silverman Bill which, I would point out, was given Government time. I submit, therefore, that this is a Bill which ought to be considered, amended in Committee as to Clause 5, and possibly otherwise amended, but one which goes a long way along the path of true reform and which will improve the lot of most of us in this country.
§ 7.39 p.m.
§ Sir Alexander Spearman (Scarborough and Whitby)
Hon. Members, particularly those who want to speak, will be glad to know that I shall be brief because I do not want to go into any detail.
I have always disliked the idea of the State taking life, because I have thought that most murderers, when not actually insane, were abnormal, due to a physical defect or a psychological twist caused by the fact that they were less happily brought up than the rest of us. I have thought, therefore, that the death penalty was not the appropriate punishment or a deterrent to them, and that the most effective protection for the public was a life sentence.
I have doubted whether this always applied to acts of violence. It seemed to me, for example, that the burglar pursued by the police might be deterred from 1218 trying to shoot his way to escape if he knew that he would be hanged if he was caught. In fact, the death sentence was no deterrent to the most revolting and calculated murders, but it might be some deterrent to those murders covered by Clause 5 of the Bill. The statistics produced by the Royal Commission did not seem to support this contention. I therefore voted for the Silverman Bill.
But I must say that I was not in the enviable position of some of my friends, who were quite certain that it was a deterrent or quite certain that it was not a deterrent. It never seemed to me possible to be as definite as that. Therefore, if, at the time of the Silverman Bill, the Government had offered abolition, subject to the exceptions given in this Bill, I would have thought at that time that a compromise in favour of abolitionists should certainly have been accepted, and for that reason I welcome this Bill today.
The hon. Member for Nelson and Colne (Mr. S. Silverman) will, I know, say that this House must be in advance of public opinion, and that there would be no reforms if it were not in advance of public opinion. That may well be so, but I think that it is a question of degree and the extent of the amount we are in advance of public opinion. I think that in this matter, perhaps more than most others, attention must be paid to public opinion.
I, like all other hon. Members, have received a great many letters from retentionists who have said that they think that it is vital that the death sentence should be kept. They have very often added that they could find no one who disagrees with them. I have had even more letters from abolitionists who urged that the death penalty must be removed and who have said that everyone they know agrees with them. Indeed, I never realised before what very separate lives my friends must lead.
Whether there is a majority in favour of abolition or whether there is a majority in favour of retaining the death penalty, what there can be no doubt about at all is that there is a very substantial number of people who do not want it to be abolished at present. I would, therefore, say that it is not a bad thing to move towards abolition in instalments, particularly when we are offered as substantial 1219 instalments as this Bill which, after all. is very much more than half a loaf.
For that reason, I intend to support the Bill tonight and to support the Bill in its present form in Committee.
§ 7.45 p.m.
§ Mr. Denzil Freeth (Basingstoke)
My hon. Friend the Member for Stroud (Mr. Kershaw) began by describing himself as a qualified abolitionist. I do not think that I would ever normally seek to apply that adjective to myself, but if I had to do so tonight I would describe myself as a qualified retentionist
I opposed the Silverman Bill through all its stages and I voted for the various Amendments which were put forward, very largely in the name of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth). I do not think that at this time one should go further with the Clauses of Part I of the Bill, with which I am in full sympathy. I should like to add my tribute to that which other hon. Members have paid to the Inns of Court Conservative and Unionist Society for the various excellent suggestions which have now been embodied in the Bill.
The first and important point to which I should like to come is that of the Whips being on and the Whips being off, the point of the free vote in this House on the Silverman Bill, and the point of the possibility of not having a free vote in this House on the later stages of this Bill, to which the hon. Member for Nelson and Colne (Mr. S. Silverman) devoted quite a substantial part of his speech.
I think that there are, basically, three reasons for having a Government at all. The first is to defend us against exterior foes, and not all of us consider that all Governments have done that satisfactorily. The second reason for having a Government, I was brought up to believe, was to maintain the value of the currency. and I am not sure that that today is recognised as being a major priority by all parties. The third was that it was the duty of the Government to keep the Queen's peace and to be responsible for law and order.
It therefore seemed to me to be regrettable that the Whips were, in fact, off during the passage of the Silverman Bill, because, in saying to the House of Commons, as the Government did say, "We 1220 believe that the retention of the death penalty is essential if we are to be able to retain the Queen's peace," it seemed to me an impossible position that they should then allow hon. Members to vote for the abolition of the Queen's peace. Therefore, I rejoice that at present the Government seem willing to take on again the responsibility of maintaining the Queen's peace, and to say that in this, which is just as important an aspect of their rule as is foreign affairs, defence or economic affairs, those who are not for them are against them and must consider, when they vote, either supporting the Government in its efforts to maintain law and order or else be willing to vote in such a way that the Opposition would be asked to form an Administration or a General Election be called.
§ Mr. S. Silverman
Does the hon. Member realise that on every occasion except one, since 1930. whichever party has been in power, this question has always been left to a free vote—in 1930, 1936, 1948 and subsequently in this Parliament? Even if he is right in his view that that is the wrong procedure and the Government should take this responsibility and use their constitutional powers, not having done so, having invited the House to proceed otherwise and having lost, is it not rather trying to have it both ways now to fall back on the other method?
§ Mr. Freeth
In answer to the hon. Gentleman's first point. I was not here in 1930 or, indeed, for a quarter of a century afterwards.
§ Mr. Freeth
I fail to see whether that makes it right or wrong because that has not happened for twenty-five years. On the hon. Gentleman's second point, I merely said that I rejoice to see that the Government have come round to my way of thinking.
I should now like to deal with the question of public opinion. The hon. Member for Nelson and Colne said that, in his view, public opinion was the votes of the Members of this House. There was, he said—I hope I am quoting him correctly—no other way in which the Government could act in accordance with public opinion, because we had been elected on a vote by the public.
§ Mr. Silverman
It may be a small point, but I think it important. I did not say that this House was the best judge of public opinion. I said that in our Constitution the will of the people is the will of the House of Commons.
§ Mr. Freeth
I am grateful to the hon. Gentleman. But the will of the people is, in fact—I think this is an important point—expressed in general terms at a General Election. It is expressed at a particular moment of time which is ever getting further and further into the background. Furthermore, particularly on a question of this kind, it is expressed upon quite other problems than those which are now before the House. During my General Election campaign, so far as I remember, I was not asked a single question about capital punishment.
If we come down to public opinion—and public opinion may not be so very different from the will of the people, whatever Roussinian intention the hon. Member may put to it—the Gallup Poll, published in this morning's News Chronicle, I think, deserves mention. On the question whether hanging should be retained, counting all voters, 57 per cent. were in favour of retention; and 63 per cent. of the Conservative voters were in favour of retention and 53 per cent.—a majority—of Labour voters. If we look at those who wish to keep the law as it is today, 25 per cent. of all voters were in favour, and 26 per cent. of the Conservative voters. If it comes to the problem of retaining capital punishment in certain cases or abolishing it completely, only 13 per cent. were in favour of abolishing it completely; so that this Bill may be considered to be in accordance with the views of 82 per cent. of the population.
In a companion poll by the News Chronicle this morning, asking people whether they had read the Bill, and whether they approved of it or not, 30 per cent. had not, unfortunately, either read or heard of the Government's Bill.
§ Mr. Freeth
Their opinion may be discounted. But 42 per cent. of the people asked were in favour of it.
§ Mr. Freeth
The hon. and learned Member misheard me. I said that 42 per cent. of all who were asked approved the Government Bill—
§ Mr. Freeth
—and that is 60 per cent. of those who have read it, which is quite a significant point. If public opinion in general is behind this Bill, I think that this House may well pay some attention to public opinion as so expressed.
§ Mr. Freeth
I said that 70 per cent. of the people who had been asked, or of the sample taken in this poll, had either read or had considered the Government Bill now before the House, insofar as it had been published in the Press.
It has been said that the whole effect of this Bill—which, in the normal run of things, could remain in effect for only seven years—would be to hang another 25 murderers. It was put forward by an hon. Gentleman opposite who has had to leave the Chamber, that it was likely that within seven years there would be a change of Government. That, on mere statistics, is not unlikely, although I hope it will not happen. But it is said that the whole effect of this Bill would be to hang 25 murderers who might not otherwise be hanged. I think it about time that we stopped considering the number of murderers who might be hanged. I think it time that we started to consider the number of people who might not be murdered. We might start thinking about that substantial number of people who might not be murdered because the death penalty has been retained in certain particular cases.
That brings me to the question of the cases which have been chosen by the Government for inclusion in Part II of this Bill. If we are to try to decide whether we wish to retain the death penalty at all, as being of any use at all, as being any deterrent, I think that this is the first thing to consider: we can decide it either on the method of killing, on the motive which went to the killing, 1223 or on the type of murderer who did the killing. If we are to decide on the type of murderer who did the killing, which my right hon. and gallant Friend the Home Secretary implied was his intention—since he said that Clause 5 of the Bill was aimed at catching the habitual criminal who committed murder—I think that we are not taking the whole field where the death penalty is a deterrent.
I agree that it is impossible to consider motives and to gauge the heinousness of a murder when committed; but I believe that the method by which murder is committed is of very great importance indeed. I should like to suggest to my right hon. and gallant Friend that it is not only the fact that a murder is committed by a member of the criminal classes; the important point is whether the commission of that murder has, or has not, endangered the lives of other people than the intended victim and disturbed the Queen's peace.
That is why I am pleased to see:any murder by shooting or by causing an explosionin Clause 5 of the Bill, and:any murder done in the course or for the purpose of resisting or avoiding or preventing "lawful arrest …andany murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting.I find myself in a little more doubt about subsection (1, a) of that Clause. I think that in that paragraph, what we are really getting at is the person who is carrying a gun; the person who commits murder while committing a burglary or a theft.
Great play has been made, particularly by the hon. Member for Nelson and Colne, with the point that if we wish to stop people shooting other people when they are robbing them or breaking into a house, what we have to do is to deter them from carrying a gun in the first place, and not punish them for committing a murder after they have done it. That is a very attractive, but superficial and erroneous way of putting it. It is all very well to say that if a person is caught carrying a gun he will be sentenced to such-and-such a term of imprisonment over and above that which he otherwise would get for the commission of that particular burglary, and I would agree. I 1224 should like to see that on the Statute Book. But the intention here, I believe, is the very great deterrent effect upon a person carrying a gun when going out to do a burglary, if he knows that, should he use it he would, in fact, be hanged, if he committed a murder.
I believe that has a very great deterrent effect; a person will not put a gun in his pocket merely because it happens to aid the balance of his suit. He does so only if, at any rate, subconsciously, he anticipates using it, and, therefore, capital punishment, is, in effect, a substantial deterrent.
§ Mr. S. Silverman
I am sure that the hon. Gentleman realises that under our present law we do for a jemmy exactly what I am recommending should be done for revolvers. However much anyone may think it superficial, or however delightfully attractive it is to say, if a person is found at night in possession of housebreaking weapons he will be punished for that. Why should we not do the same thing with revolvers?
§ Mr. Freeth
The hon. Gentleman has missed my point. I am aware that a substantially heavier punishment is provided for a person caught carrying a jemmy, even if he does not commit theft, but up to the present the law says that if he happens to kill someone with that jemmy, he is liable to suffer the death penalty.
I would be prepared to introduce an additional punishment for the person who carries a gun if caught with that gun on him, but that is not sufficient. There must be the ultimate deterrent for murder done in the course of commission of a theft. The Bill says:Murder done in the course or furtherance of theft",but does not specify, as did the Amendment of my hon. Friend the Member for Hendon, South to the Silverman Bill, that there must be a murderous weapon involved.
I would like to add rape to the paragraph. The death penalty would be a great deterrent to the person who plans a rape. Very often rapes have to be planned, because rape cannot be committed in the middle of Oxford Street. The committing of rape is a very definite breaking of the Queen's peace and endangers the persons of a large number of Her Majesty's subjects. When rape is 1225 followed by murder it is time to take definite steps against the person who commits it.
I am not so sure about poisoning, where we leave completely the idea of safety and the Queen's peace. Poisoning usually does not kill other than the intended victim. The poisoner does not normally aim at poisoning, for example, the whole branch of the Conservative Association, in order to get at one particular member of it. In the case of shooting and explosion we find ourselves in a situation in which people other than the intended victim are in very great danger. I therefore hope that my right hon. and gallant Friend will not include poisoning in the Bill, but will include murder with rape.
There are other ways of committing murders so as to endanger the Queen's peace and the lives of people other than the intended victim. Just as justice has not only to be done but has to be seen to be done, so the Queen's people have not only to have their security ensured but must feel secure. If the death penalty were abolished completely people would not feel secure, and in that case they would not be basically safe. The Queen's peace is not being maintained if people do not feel themselves to be secure.
That is why I welcome the Bill. I welcome the announcement that the Whips are to be put on for the Bill. It is the duty of the Government to maintain law and order and to demand from Parliament whatever power they consider necessary to do so. The Government have to rule according to those powers. If they cannot get them, I do not see how they can continue to be the Government.
§ 8.6 p.m.
§ Mr. Douglas Houghton (Sowerby)
I have not spoken on this subject in the House of Commons before, though I have spent many hours listening to debates on earlier Bills. I was not in the House in 1948, though I was here two years or so ago when an abolition Bill was before the House.
I had been greatly troubled in mind about this problem, and had afterwards tried to reach a decision in time to register my vote. But I abstained. I was very ill at ease this afternoon. I felt that it was the duty of every hon. Member and of every citizen to reach a 1226 decision on a matter of great public interest and controversy. I tried hard to reach a decision on the central, straight issue of the abolition of the death penalty or its retention in any form.
I came to the conclusion that there was only one thing to do, to abolish it. When the retention of the death penalty has become a matter of constant public controversy, when it has ceased to have the overwhelming support of the people, there is no sanction for its retention. That is what I felt and what I feel now. I regret that the Government have introduced the Bill instead of going on with the Bill that the House passed last Session.
On the question of public opinion, I was very surprised there was such a strong expression of hostility to abolition at the Conservative Party Conference this year, and I wondered why I had not had my share of that protest from Conservatives in my constituency. I am in what is called a "marginal" seat, with a majority as small as 2,700. Many Conservatives are in my constituency, and there may be people on the Labour or Liberal side who are in favour of retention of the death penalty. Then why have I had so little correspondence on the subject, and why the correspondence I have received has been more in favour of abolition than of retention. I am talking of only a dozen or so letters.
The hon. Member for the Isle of Thanet (Mr. Rees-Davies) referred to 1948, and said that while the death penalty was in suspense during the time that Parliament was in a state of indecision public opinion was roused to such an extent that the death penalty had to be restored. This time, I think, the position is very different. The death penalty, surely, is in suspense now and some horrible crimes have been committed of late, but I am not aware that there is an upsurge of public opinion demanding that the present state of suspense of the operation of the death penalty shall be brought to an end. Whatever happened in 1948, and I cannot be definite about that, I think that what is more material is whether there is any such evidence today. This seems to me to be a most valuable testing time and I think it should be noted in our consideration of this Bill.
1227 One thing which, I think, more than any other has led me to come down so strongly now in favour of abolition is that I believe that as long as this controversy goes on it will be morally unhealthy for the country, and it will be still more morally unhealthy for young people. If there is one thing more than another about which I feel strongly in this connection, it is the evil of the sensational Press in their dealing with murder cases. That will not be done away with by this Bill. The sensationalism in some murder cases will not be whether murder was committed, but whether, for example, it was committedin the course of furtherance of …theft. There will be two matters upon which public opinion can be excited: first, did he murder, and, secondly, if he murdered, did he murder in the course of stealing? I really shudder at what the Press will make of some of those cases when they happen if this Bill becomes law.
I agree with my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), who, I think, mounted a most impressive case against the Bill this afternoon, that this Bill will not end the controversy. Each time it is renewed, newspapers, so far as they can within the provisions of the Official Secrets Act, will try to rake up a retired executioner to tell more stories of his activities and to recall murder cases of the past. They will do everything they can to keep the pot boiling on this matter, which so engages public imagination and interest. I think it is time that that came to an end.
I believe that public opinion would accept the verdict of Parliament on this matter; I really do. I think we are entitled to say that the verdict of Parliament shall prevail. In other matters there is not all this solicitude about public opinion. The Prime Minister has said, in connection with recent grievous events, that the time comes when you have to make up your mind on a course of action and do what is right. Even though, for the moment, it may be unpopular, as time and events unfold public opinion will come round to the view that you were right, that you did the right thing.
Another argument used in connection with similar events is that sometimes it is better to act even though, perhaps, 1228 history may judge that the action was wrong. I apply the same doctrine to this question of capital punishment. I think it is for us to say in our judgment, taking all into account, whether what we are doing is right. If it is we should go on with it and argue with public opinion afterwards. When the public have heard all we have to say, they can express themselves in the proper constitutional way if they wish to have any fresh remedy introduced for what we have done.
Quite honestly, I do not believe that the Government are doing a public service in introducing this Bill. I do not ascribe to Her Majesty's Government any degree of Machiavellian intent to put this matter in the Bill to defeat the operation of the Parliament Act. I am prepared to concede to them that this is their honest judgment of a difficult situation, but I still think that they are wrong. I think it is a great pity and, indeed, prejudicial to the prestige and standing of this House, that the Government should ignore or set aside what the House has done and introduce a modification of the action previously taken with the intention of using party discipline to carry it to the Statute Book.
I shall go on opposing the retention of capital punishment in any form. I do not believe that these refinements will remove the sense of public disquiet. I believe that they will create many difficulties in the public mind in future. Never has there been so much discussion about the fate of so few. We should take the broader view and rid the body politic of this controversial topic, with all its excitable elements, all its scope for sensational journalism, all its influence upon the mind of youth. We should rid the whole system of it now and enter into a fresh system of punishment for the capital crime. If we did, I believe that before very long public opinion would say that we had done the right thing.
§ 8.18 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
Like the hon. Member for Sowerby (Mr. Houghton), I have not taken part in any of these debates before and, like him, I think that one should make up one's mind and do what one thinks to be right. After those two points of agreement, I am afraid I disagree with the hon. Member fundamentally, particularly on the theory that 1229 somehow if retentionists win the day the controversy is open for ever, whereas if the abolitionists win somehow it is over for ever. That does not follow at all.
I have not taken part in these debates and I gain the impression from those who have that they are, not exactly a narrow circle, but are certainly a circle composed of hon. Members on each side of the House; there is a history, I will not say of bargaining, but of arranging about this matter in various interested groups so that one feels that it is almost too late to state a few principles in which one believes. Nevertheless I should try to do so because I do not believe that any solution can last unless it is firmly based on some sort of principle, and one which can be easily understood.
It is many years since I was connected with this branch of the law, but in my youth I defended a murderer. I regret to say that I was unsuccessful. He was a young man who went into a tobacconist's shop and held up the tobacconist with an unloaded revolver. The tobacconist called the young man's bluff and leaped over the counter. The young man hit him on the head with the butt end of the revolver and ran out of the shop in a panic without even robbing the till. He was convicted of murder because, without intending to kill, he hit the tobacconist on a sensitive spot and the man choked of an internal haemorrhage. The young man was recommended to mercy by the jury but nevertheless was hanged—I thought wrongly, and I still think wrongly.
§ Mr. Fletcher-Cooke
I was about to make the observation which the hon. Member has made; he would still be hanged under this Bill, if he were not reprieved. I am glad to say that the Royal Prerogative of mercy will still exist under the Bill, but it would still be a capital murder. He was not a professional criminal, he was not one of those people against whom, I gather, Part II of the Bill is designed. Nevertheless it would still be capital murder.
In my view my hon. Friend the Member for Basingstoke (Mr. Freeth) was quite right when he said that what we are trying to do and what the majority 1230 of the country wants to do is to retain the capital penalty but to modify its application considerably. In other words, the country, in the main, are modified retentionists. In so far as the Bill tries to do that, I sincerely support it, but I am bound to say that as a result of the detailed and complicated history of this matter, particularly over the last year, those who have been closely engaged have found themselves befogged by details and have lost sight of the wood for the trees.
I believe that the way to distinguish between murder for which a man may be hanged—subject always to the Prerogative—and a murder for which he will not be hanged must be based on intention. That I believe to be a simple and understandable provision, and I believe that the jury in the case which I mentioned were right when they said, "We recommend this man to mercy because he did not intend to kill." That is a simple, clear, understandable and popular distinction. On the whole, the public does not think—although there are exceptions—that people ought to hang if they had not intended to kill.
It will be said against me, "You are not meeting the case of the man who blunders about recklessly or the case of the people we are particularly anxious to get at—people who carry a firearm and then in a moment of panic let it off recklessly and kill somebody in the agony of the moment." I think that is true and has to be admitted. Nevertheless, since this is so much a matter of what the public thinks is right—and here again I support my hon. Friend the Member for Basingstoke—I believe that that is something which we have to face. If we are to draw a distinction in principle, it can be only on that principle.
Hon. Members may say—and I know that the hon. and learned Member for Northampton (Mr. Paget) will say this, because we have talked about it—that in this way I shall be making a capital murder out of a mercy killing but not making a capital murder out of the case of a man who blunders into a killing in the agony of the moment when he lets off a gun. I think that is true, and I think it would be an anomaly, but there is always the Prerogative of mercy and, so far as I know, it has been the practice to reprieve in the case of mercy killings; but the difficulties which we get into if 1231 we consider any other distinction are so great that I do not think any other distinction will work.
Many of the difficulties have been pointed out. For example, I do not believe that the public thinks that murder in the course of rape is any better than murder in the course of theft. In some cases I believe that it is worse. The leading case on this subject in the House of Lords, the Director of Public Prosecutions against Beard, is a case of drunken rape, and we have only to read the speeches in that case to see that suffused throughout those speeches from their Lordships is the importance of keeping a supreme deterrent against that sort of disorderly behaviour, to put a very mild word to it.
As I understand it, what Beard did in that case would not be a capital offence under the Bill. I cannot believe that that is right or, if capital punishment is to be retained at all, that the public would wish that a man who kills a girl by throttling her in the course of raping her should not hang whereas a man who shoots his way out of a difficult spot should hang. If law and order is to be preserved, surely such as Beard must hang as well as the man who shoots himself out of a difficult spot.
§ Mr. Fletcher-Cooke
He may have been reprieved for all I know. It was held to be murder and it was a crime which was then a capital murder. Whether he was reprieved or not I do not know, but under this Bill it would not be a capital murder, whereas it was a capital murder in 1920.
§ Mr. S. Silverman
I believe that I can assist the hon. Member. I think I am right in saying that the whole argument in the House of Lords depended entirely on the question whether his drunken state enabled him to form any intent at all.
§ Mr. Fletcher-Cooke
Of course; except for the drunkenness of Beard there would have been no question but that he committed murder. He did not intend to murder but in fact he did murder.
When we turn to the question of the instruments, we find that when a man uses a gun or explodes somebody he is to be 1232 guilty of capital murder whereas if he uses a knife—unless it is in furtherance of theft—or if he uses other instruments, or if he burns or behaves in that sort of way, it will not be a capital murder. I find it difficult to believe that the public will accept those distinctions. If the Bill is passed we may find different forms of instrument being used.
I believe that capital punishment is a deterrent. I have believed that all the time and I still believe it. But if we believe that, and if we believe that people think these things out and consider whether or not they will swing, it also means that they may change their instrument of murder as a result of the Bill. That is a consequence which I think we must all consider.
I do not wish to elaborate this point, but while I entirely support the Government for following what I believe to be the opinion of the country—that what we want is a modified form of capital punishment in the sense that we do not want murder to be automatically a capital murder—I feel that the categories which have been chosen by the Government on this occasion need very careful consideration before we finally part with the Bill.
§ 8.28 p.m.
§ Mr. Montgomery Hyde (Belfast, North)
Like my hon. Friend the Member for Darwen (Mr. Fletcher-Cooke), I believe that capital punishment is a deterrent, but unlike him, I do not believe that it has the uniquely deterrent qualities which, I imagine, he thinks that it has. As time is getting short, he will forgive me, I am sure, if I do not follow him throughout the whole of his argument, but I should like to say a word about the criterion which he put forward: that the intent to kill should be the test to be applied.
That criterion was examined very carefully by the Royal Commission on Capital Punishment, and most decisively rejected. I would refer my hon. Friend to paragraph 502 of the Report, where it is stated:The alternative criterion of 'intent to kill' would be no more satisfactory. However narrowly interpreted, it is clearly wider than 'premeditation'. It would therefore include some heinous murders which would not be covered by the narrower term, but it would also be likely to include a much greater number of cases in which capital punishment would be 1233 clearly inappropriate, because of the existence of mitigating circumstances, such as provocation of a kind or degree insufficient in law to reduce the crime to manslaughter.The Royal Commission rejected that criterion, as it rejected the whole principle of degrees of murder, for reasons which are set out at very considerable length in its Report.
I should now like to speak about the Bill generally. This Homicide Bill really gives legislative expression to the Motion which was moved by my right hon. and gallant Friend the Home Secretary on 16th February last, to the effect that…while the death penalty should be retained, the law relating to the crime of murder should be amended.It will be within the recollection of the House that that Motion was decisively defeated on a free vote. Today, as we have been reminded, there is no free vote on this side of the House. The Whips are on. Personally, I regret that decision. It cannot but prove embarrassing to those of my hon. Friends on this side who voted against the Motion of last February, and who later supported in its various stages the Private Member's Bill to abolish the death penalty for murder which was introduced by the hon. Member for Nelson and Colne (Mr. S. Silverman).
My feeling is that any proposal to amend the law of murder or to alter the procedure at murder trials and at executions ought to stand by themselves. They do not affect the question of what the punishment for murder should be. That, I believe, should be dealt with separately.
Reference has been made to the Report of the Heald Committee—the report of the Inns of Court Conservative and Unionist Society—and I certainly join in the tributes which my right hon. and learned and hon. and learned Friends, I think with becoming modesty, paid to themselves. Following what I have said, I should like to quote one sentence from the very beginning of that pamphlet. It says:The law of murder needs investigation and reform irrespective of the issue of the debate on capital punishment; but that debate cannot profitably be conducted until such reform has taken place.I therefore think that the two subjects should be considered separately. However, my right hon. Friends on the Front 1234 Bench have decided otherwise, and we must consider this Bill as a Whole, as it has now come before the House.
The Amendments to the law of murder which are proposed in the four Clauses of Part I seem to me—and, I think, to everybody—to be, in general, desirable. They follow in principle the recommendations of the Royal Commission, which recognised that this branch of the law needed tidying up. They also follow those recommendations which have been put forward by the Inns of Court Conservative and Unionist Society in its pamphlet.
Here, I should like to refer to constructive malice. My hon. Friend the Member for Darwen spoke about the Beard type of case, the case of the man who, in furtherance of rape, throttles a woman whom he is raping. He may not intend to kill her. He may put his hand over her mouth and suffocate her, but certainly, as this Bill now stands, as the doctrine of constructive malice is abolished, he would get off. The smash and grab raider, in contrast, who aims a vicious kick at a bystander who is trying to arrest him, and accidentally kills the bystander, would presumably still hang under Clause 5 of the Bill.
I must say that I regret the use of the phrase "malice aforethought" which has been included in the Clause I as being archaic and misleading. The "malice" may have nothing really malicious about it in the ordinary and generally understood sense of active ill-will or a desire to tease. Nor is legal malice ever aforethought, except in the sense that a desire must necessarily precede, even though only for a moment, the act which is desired to be done.
It will certainly not make the task of judges any easier when they have to make juries understand clearly what the term means in law and then the jury has to decide whether a killing committedin the course or furtherance of another offence",such as resisting arrest, is murder or merely manslaughter.
I am very glad to see Clause 2 in the Bill, dealing as it does with diminished responsibility. It means practically the end of the M'Naghten Rules. It goes a bit further than the Scottish doctrine, and I understand that it commands the 1235 general approval of the medical and psychiatric profession.
There is one small point to which I should like to refer in Clause 2 (2), which says:On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.It might perhaps be more satisfactory if, for the word "prove", the words "satisfy the jury" were substituted, but that is a small point which, no doubt, can be dealt with in Committee.
The question of provocation has been raised by a number of hon. Members. Clause 3 widens the existing scope of the law in one sense, but it may seem to narrow it in another. On the one hand the proposal is that words as well as deeds may now constitute provocation. On the other hand—and I think that the hon. Member for Rossendale (Mr. Anthony Greenwood) made this point in his very interesting speech—the present law is that murder may be reduced to manslaughter if committed by the accused when deprived of his self-control by provocation as might have caused a reasonable man to lose his self-control, and not such provocation as would have caused a reasonable man to commit the murder or, as the Clause puts it, as wasenough to make a reasonable man do as he did …That, again, is a small technical point which, no doubt, can be cleared up in Committee.
As to the test of a reasonable person, I have no intention of entering into this technical controversy, but that is something else which unquestionably will have to be considered in Committee. I would give just one illustration in the form of a question. For instance, ought a Hungarian refugee who is provoked by a Soviet Russian in this country to be judged by the standards of a reasonable phlegmatic Englishman on a charge of murder?
I welcome the provisions of Part I of the Bill wholeheartedly and with enthusiasm. I cannot say the same for Part II, which deals with the liability to the death penalty. There are, as I have indicated, a few anomalies in Part I. In Part II the anomalies which arise are very much greater. Here, the effect is to import the conception of degrees of murder 1236 into our legal system. That is something quite novel. It has been rejected no fewer than ten times in the last ninety years, the last occasion being in 1948 when the so-called "compromise Clause", very similar to Clauses 5 and 6 of the Bill, was rejected in another place largely on the advice of the Lord Chief Justice, Lord Goddard, and other learned Lords.
The hon. Member for Rossendale made one quotation from what Lord Goddard said on that occasion. I hope I shall not exhaust the patience of the House if I make another very brief quotation, because it sums up. in my opinion, the whole objection to this Part of the Bill. On 20th July, 1948, Lord Goddard said:I believe that in the criminal law there are three very desirable principles that we should all strive to attain. The first is simplicity; the second is certainty; and the third is that, in its application, so far as possible, it should be neither fortuitous nor capricious. With your Lordships' permission, I propose in a few words to show that this Clause offends against all three of those desiderata.One of the illustrations Lord Goddard gave, that in regard to the shooting of a police officer, has already been quoted by the hon. Member for Rossendale.
His Lordship mentioned also the question of malice, to which I referred a few moments ago, and said:Can anyone imagine a question upon which a jury is more likely to disagree than on whether a person did a thing with express malice? You may read to the jury a definition of express malice; you may read it to them half a dozen times. But members of juries will say to themselves, 'Express malice—I do not think he had express malice'. They will, very likely, pay little attention to statutory definitions. If they have the question put to them in regard to express malice, there will be an opportunity for those who have some objection to capital punishment and those who have not to come to loggerheads and disagree. I venture to think that the chance of disagreements—which are always to be deplored and, surely, in no case more than in a murder case—will be very greatly raised by putting into the Bill what I venture to think is a most unfortunate expression."—[OFFICIAL REPORT, House of Lords, 20th July, 1948; Vol. 157, c. 1030–1033.]That is what Lord Goddard said, and other learned Lords pointed out that then, in 1948, as it must be now, the offences for which it was proposed to retain the death penalty formed what has generally been described as a mere hotch-potch consisting of those which are thought to arouse the greatest sense of public abhorrence.
1237 The distinction between non-capital murders and capital murders which is made in this part of the Bill must lead to many inconsistencies and anomalies. Under this part of the Bill for instance, Ruth Ellis, as we have heard, would still be hanged while a deliberate and cold-blooded poisoner would not. Again, if a man kills a woman in a frenzied fit of jealousy, what sense is there in making the crime capital murder if a shotgun happens to be the weapon which is nearest at hand instead of a hammer or a hatchet?
In Clause 6, the death penalty is prescribed for the double murderer or multiple murderer. But here is a curious anomaly: both murders must be committed in Great Britain. If the first murder is committed in Scotland, where the law is different from that in England and Wales, the murderer in respect of the second murder hangs whether the murder is committed in England or in Scotland. But if the first murder is committed in Northern Ireland, where the law is the same as in England, the murderer is not hanged in respect of the second murder if the second murder is committed in England. I must say to my right hon. and gallant Friend, who has an overall responsibility for Northern Irish affairs in this House, that the people of Northern Ireland would not in the least welcome his proposal that their murders would not count in his scheme of things.
After the compromise Clause was rejected in another place, in 1948, the Government appointed a Royal Commission to see whether a carefully selected body, given sufficient time, could classify the more heinous murders in such a way as would not be open to the various objections which were advanced by Lord Goddard and other learned Lords. But having considered every similar proposal for categories or grades or degrees of murder which had been suggested in this country and in Europe, in India, and in America, the Royal Commission came to the unanimous conclusion that no such proposal was practicable.
The House will forgive me if I make one final quotation in that respect from the Report of the Royal Commission, from a paragraph which has already been quoted, but not, I think, these actual 1238 words in their entirety. It is paragraph 504, which decisively rejects the principle of degrees of murder, and it states:An alternative method would be to base the definition of murder in the first degree on a list of categories of murder selected as being those for which the capital sentence is considered to be most appropriate or most needed. What criteria should be used for this purpose is a question on which opinions may differ, but whatever criteria may be adopted, we believe that the classification of murders by categories will produce anomalies which will invite strong criticism and will be extremely difficult to defend. In the compromise clause of the Criminal Justice Bill, 1948, an attempt was made to select categories of murders which are usually of an atrocious character and are also those in which the deterrent force of the death penalty is thought to be most effective and to be most needed for the protection of the public and of officers of the law … The inevitable result of this method of classification was to exclude from the scope of the death penalty many murders which are no less atrocious than those falling within the selected categories and to include in each category murders which may be much less atrocious than the generality of murders comprised in the category. The murder of a Prime Minister by a political fanatic may be as atrocious as the murder of a policeman by a criminal resisting arrest; yet the former was excluded and the latter included … Whatever may be the criteria by which categories of murder are selected, such anomalies appear to be inevitable. However atrocious or dangerous to the public may be the generality of murders comprised in a selected category, murders will occur from time to time which fall within this category but are so different in character and circumstances from the generality of murders belonging to the category that they cannot properly be classed as murders in the first degree. There will also occur from time to time murders which fall outside all the selected categories and yet are more clearly cases for the death penalty than some of those which fall within the categories.The paragraph concludes:Any attempt to formulate degrees of murder by this method would, we believe, be open to objections similar to those raised against the compromise clause, and we are driven to the conclusion that it is impracticable to find a solution of the problem along these lines.I wonder whether my right hon. Friends, when they were preparing Part II of the Bill, gave the consideration to that conclusion of the Royal Commission to which, in my humble submission, it is entitled.
So far as I am concerned personally, I would not oppose the Second Reading of the Bill, as three-quarters of it, particularly the part relating to the law of murder amendment, is, from my point of view, unobjectionable, and, indeed, desirable, as the Royal Commission 1239 recommended; but as one who supported the Silverman Bill, the Death Penalty (Abolition) Bill, at all its stages during last Session I must state that in Committee on this Bill, and on Report if it should still be necessary, I shall not be able to support Part II.
In particular, I cannot support Clauses 5 and 6. Indeed, I shall go further, and wholly oppose, line by line, those Clauses, which are designed to retain the death penalty in respect of certain offences selected quite arbitrarily and haphazardly. Those Clauses seem to me a tissue of illogicalities and absurdities. I should prefer the old system by which the full rigour of the law is mitigated by my right hon. and gallant Friend through the exercise of the prerogative of mercy. The aim of my right hon. Friends in framing this part of the Bill seems to be that expressed by the Mikado in the immortal Gilbert and Sullivan opera:My object all sublimeI shall achieve in time:To make the punishment fit the crime.I cannot think that today such an object deserves lasting success in a country which has already shown it can do without the death penalty for the past 15 months.
§ 8.53 p.m.
§ Mr. R. T. Paget (Northampton)
The question whether it is necessary, whether it is expedient, whether it is just, and whether it is right for the Government to take life is one which has moved profound feeings upon both sides of this House. It has been debated upon crowded benches in thrilling debates. Today we have had a dull debate—I have heard it all—amid empty benches, because Members of this House have realised the essential irrelevance of this Bill to the great question they wish to decide.
It is a Bill which makes some useful and desirable and very much overdue alterations in the definition of murder, and some very bad and illogical alterations in the consequences. As to the alterations in the definition of murder, at last we have abolished the absurd principle of constructive malice. One had imagined that was really unnecessary until some years ago the present Home Secretary failed to exercise the Prerogative in the 1240 case of a three-quarter witted boy who was hanged for a murder committed by somebody else a quarter of an hour after he had surrendered.
§ Mr. Paget
His predecessor, but one of the present Government.
That certainly shocked public opinion, and lest such shocking action should happen again it is as well that this Clause dealing with it should be passed.
As to diminished responsibility, the Clause dealing with it is, I think, a good one, and well drafted. I hope that in Committee we shall have a real opportunity to consider these things.
As to provocation, I certainly believe that a man should be judged upon the basis of who he is and not upon the basis that he is somebody else. At present, a man can plead provocation to reduce his crime if a reasonable man in his shoes would have been provoked into losing his self-control by the circumstances in which the particular murder was committed. But it is not necessarily an ordinary reasonable man who is standing in those shoes.
In one case, considered by another place, it was an unfortunate cripple whose impotence was gibed at by a girl. That was enough to make him lose his self-control, although it could not have been enough in the case of an ordinary reasonable man. Again, there was the case of the Yugoslav partisan who had had all his relations murdered by the quislings of Yugoslavia. He found a gibe from one of those quislings insupportable, whereas it was found by the jury that an ordinary, reasonable man would not have done so.
I hope that we shall be able to amend that Clause at least enough to provide that a man shall be judged on the basis of who he is instead of on a fiction that he is somebody else. That seems to me to be reasonable, and I hope that we shall do that. I think that the Clause is reasonable in relation to suicide pacts.
As to Part III of the Bill, the alterations in the form of the death sentence and provision that notices of execution are not to be put up and that double executions do not take place, are basically desirable to hush up what we recognise to be a thoroughly indecent 1241 event. Since we recognise it to be thoroughly indecent, why do we go on doing it?
After having made these rather general comments on the non-controversial aspects of the Bill, I want to deal with Part II, which is of course the controversial part. First, this is a thoroughly dishonest Measure. Its purpose is not to do that which it describes itself as doing. Its purpose is not to reduce the incidence of the death penalty. Its purpose is to retain the death penalty. I find it a little odd that the Government should be so keen to retain the ultimate punishment for murder when they, during the last weeks, by the Nuremberg law which they helped to create, themselves were clearly guilty of it.
Apart from that, the purpose is to defeat the Silverman Bill. That is what this Bill is about. The Bill is not a compromise designed to satisfy the House. All these compromises have already been produced to the House, and rejected by it. It is a compromise designed to satisfy the Tory Conference. That is the purpose of this Bill. That is the reality of this Bill. As my hon. Friend the Member for Nelson and Colne has pointed out. it is designed to defeat the Parliament Act.
Whether this House accepts this Bill or rejects it, we defeat the Parliament Act. Because even if Part II is defeated, as I profoundly hope it will be, and if the case for abolition of the death penalty is once again accepted, as I believe it will be, then when it goes to the House of Lords it will, since it is embodied in another Measure, be denied the advantages of the Parliament Act.
On that I want to make certain what I am going to say is clear, and therefore I shall read it. So far as we are concerned, there can be no question of cooperation on any proposal to reform another place unless the Parliament Act is allowed to work. That is the sine qua non, and I think the other side of the House should realise this. There may be consequences beyond the death penalty, beyond even satisfying a Tory Conference, in what it is now proposed that the Government should do.
Finally I say this to the Government. Is it their idea to send this Bill upstairs to a Committee where these proposals can be properly considered by people 1242 who hear the argument, or is it their purpose, by use of the Whips, to drive this Bill through the House by voters collected on the Division bell who have not heard one word of the argument?
Which is their purpose? Let the Government fully understand this, that if they try that method of pushing the Bill through the House, they may well find that for the rest of this Session they see little of their beds, because not only this Bill, but all other Government business, may well be carefully examined.
§ Mr. Paget
Certainly. This is not the way in which we care to be treated. We were promised a free vote on this matter. It was dealt with by a free vote. The House decided on a free vote. We are now being cheated, and we do not like it.
Let us turn and look at what in effect has been done. Let us look at the degrees of murder. But, no, the Home Secretary told us that they are not degrees of murder. I do not know how he arrives at that decision. The Bill deals with what are described as murder and capital murder, and if those are not two murders of different degrees, I do not know what they are. But the right hon. and gallant Gentleman says they are not degrees of murder, and says further that no moral judgment comes into consideration; heinousness is not considered in the definition which we make. And in the words of the Lord Chief Justice, which were quoted by the hon. Member for Belfast, North (Mr. Hyde), here is a criminal law which is indeed fortuitous and capricious.
For heinousness is not to be considered. Nobody is safe when murders which are not retained as capital are worse than murders which are capital. That test is to be rejected. Of course, as the hon. Member for Hendon, South (Sir H. Lucas-Tooth) has pointed out, this test has lost its consistency when one comes to multiple murders, because multiple murders are normally sexual murders by curious, perverted, borderline cases, to whom indeed the Clause as to limited responsibility would probably apply. Nearly all the multiple murders that one can think of were committed by mentally unbalanced, odd, queer people. But certainly they do not fall within the definition of law and order, which is claimed as the 1243 purpose of retaining this odd, heterogenous list. I am bound to say that the new conception of the apparently lawful and orderly murder seems a curious one to me. But none the less that is the odd distinction. Of course, in reality these are degrees of murder, and this very sort of degree—because this is practically the same compromise that was brought forward in 1948 with shooting substituted for poisoning; but it is pretty well the same thing—is the sort of solution which was emphatically rejected by the Royal Commission.
There is the evidence of the Howard League, on page 280 of the Minutes of Evidence, which was accepted by the Commission, and which is in these words:Grading of murder according to legal definition with reference to external circumstances, as proposed in the Government's compromise clause in the Criminal Justice Bill, is vitiated by the fallacy that it is expedient and right to fix a sentence according to the classification of the criminal act regardless of the responsibility of the criminal.We can define crimes but we must sentence upon the basis of the individual's responsibility. Therefore, to divide murder upon the basis of a compromise is a task which has been embarked upon time and again and rejected. The Royal Commission rejected this proposal. The House of Lords rejected it in 1948. In substance, this is the same proposal—the same slightly altered catalogue but still the catalogue—which this House of Commons rejected; and it rejected it, as it rejected every one of the Amendments. Every proposal here has already been voted on and rejected by this House in the form of Amendments to my hon. Friend's Bill—the Silverman Bill.
Finally, and perhaps less surprising, the Home Secretary has rejected these proposals in the most emphatic terms—they have been quoted earlier. Indeed, any vestige or trace of consistency in the right hon. and gallant Gentleman's argument is something which we have ceased to look for in the course of these debates. Indeed, the relevance of truth to argument, so far as he is concerned, seems to be notable for its absence. As he said, the Government will accept neither a definition of murder nor consideration of degrees of murder. But all these bodies have emphatically rejected these proposals which are now being brought to us yet again.
1244 What are these exceptions? Let us just look at them and see their illogicality. The hon. Member for Darwen (Mr. Fletcher-Cooke), who is a supporter of capital punishment, was, I think rightly shocked by their absurdity and indeed their amorality, for here is a decision to take a life upon a basis in which heinous-ness is expressly rejected. There is no suggestion that we only take life from the worst. That is emphatically rejected by the Home Secretary. This is a selection of people who shall die at our will, selected on a wholly amoral basis.
Let us look at the definitions themselves. The first is:any murder done in the course or furtherance of theft;I remember under the old Workmen's Compensation Act the words:arising out of and in the course of the employment.I remember the shelves of books of Court of Appeal decisions as to what those words meant. Here is the certainty which we are asked to import into the criminal law. This is even more difficult, because the other words were:arising out of and in the course ofand here they are:in the course or furtherance …I would ask a few questions on this point. If a man happens to kill somebody in a car which he has stolen, is that "in the course" of the theft of the car, if the car is stolen property? If he is wearing an overcoat that he has stolen, is that "in the course" of the theft? But if the theft ends on the asportation—and I apologise to non-lawyers for that technical term; the carrying away—then any other event must be either before or after that point of time. No murder can be in the course of theft. What does it mean?
Again, in respect of the wordsin … furtherance of theftif a man has stolen something and then kills the man who disturbs him, can anything be in furtherance of something that has already happened? I do not know, but when traditionally we have been told that certainty is the first and most important consideration when we are making a criminal law, fancy putting down anything which will burden us with these absurdly difficult definitions. Remember that a life will hang on this.
1245 Again, there is the definition:any murder by shooting or by causing an explosion.Think of the absurdity of selecting, in the name of law and order, the gentleman who uses a gun instead of the gentleman who uses a knife. It is difficult to see why and how it works.
Again,any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest …Look at all the difficulties which will arise round these questions. What is a lawful arrest? What is the particular purpose? All this tremendous complication is added.
Then, as to the question of multiple murderers, we have had pointed out the curious, and I should have thought quite amoral qualification, that both the murders have to be committed in this country. What are separate murders? Again, there are the words:… been convicted of another murder done on a different occasion (both murders having been done in Great Britain).What is a "different occasion "? Is it different in time? Unless two people are blown up by the same bomb—and explosions are referred to in another subsection—it seems very difficult for there to be two murders without some separation in time. How much is the separation in time which makes a different occasion? A minute? An hour? A day? The same night? If we are dealing with a poisoner, mass poisoning by—
§ Mr. Fletcher-Cooke
Surely the hon. and learned Gentleman is misreading the Clause. The murderer has already to have been convicted of the first murder—
§ Mr. Fletcher-Cooke
It states:… if before conviction of that murder he has … been convicted of another murder …
§ Mr. Paget
No, the hon. Gentleman should look at the next subsection.
There is no doubt about this. That concerns two murders, but they have to be committed on different occasions. The great difficulty is, just what is a "different occasion". There is no definition of that at all. If it is separation in time, how much time? No definition is given at all.
1246 Let us take the case of a poisoner, and the poisoner is excluded here. Must he be very careful, when he is going to murder two people, to put the poison in the same pot? There is the question of separation in place. Where a desperate man decides to murder his wife and children, because he has become desperate as to the future, is that to be capital homicide if they are all in one room, but not if they are in different rooms? I do not know. What do these things mean?
This is the sort of examination to which this Bill will be subjected in another place when the Law Lords get hold of it. This Bill will be torn apart in its utter absurdity, but the Government will have achieved their purpose, because they will have succeeded in obstructing the Silverman Bill and preventing the Parliament Act from working. That is really what this is all about.
Having said that, I should like to seek to test this Bill by the three reasons which have always appealed to me as the reasons for abolishing the death penalty. The first is that the death penalty does not provide a special deterrent. The second is that there is the danger of a miscarriage of justice ever present, and we should not pass an irrevocable sentence when we know that our human judgment is fallible. And thirdly, because I believe that to take human life unnecessarily, to deny any human being—particularly one who has committed a great wrong—a chance of redemption, is something which is morally wrong. I should like to take those three tests and apply them to these exceptions which have been made so casually.
First, is there really a case at all for saying that the death penalty would serve as a greater deterrent in these excepted cases than in the general run of cases? The only case for that is, in so far as these are professional criminals, they may be discouraged from carrying weapons when they go out to commit their crimes. If we really mean that, are we able to define what "a habitual criminal" is? If we want that exception, there is no reason why we should not confine ourselves to habitual criminals carrying arms, but that has not been done. The Bill goes far wider than that. That is the only case at all—and I do not 1247 regard it as valid even there—in which it is suggested that those falling within this list of exceptions are more likely to be deterred than any other.
This is the very list of crimes in which miscarriage of justice is most likely and these are the very crimes—those of violence, in which conviction depends upon identification—in which miscarriages of justice are most likely. In regard to police officers, we run the risk of a miscarriage of justice where the emotions of policemen are involved. I have never known the police put a man in the dock whom they did not honestly believe to be guilty. We hear about the protection given by juries, courts of appeal and the Prerogatives, but when a man is in the dock and suspicion is against him, even if he be innocent, I very much doubt whether a jury, having a great deal fewer of the facts before them than the police have, are more likely to be right than the police.
An innocent man who gets into the dock has not many chances of acquittal, and if he be convicted, then generally speaking the one question that the Court of Criminal Appeal cannot consider is whether he is guilty or not. It can consider whether the trial has been properly conducted, but the question whether he is guilty is met with, "But this question has already been decided by the jury and we cannot deal with it." The real protection under our law, although it may offend our vanity to think so, is the police. In this country the police are very careful indeed, although where one of their number has been killed their emotions may blind them a little, and, particularly if they think a man is guilty, they may be a little less scrupulous in trying to prove it.
§ Mr. Paget
Well, I will take the case of Habron. He was a young man of 18 who was convicted of murdering a police officer. He was wholly innocent. Charles Peace subsequently confessed to the murder, and Habron was released and compensated. He was convicted upon the evidence of a footprint made by a shoe with specially broken iron bars on it, a shoe of which there could be only one in the world, and it was Habron's. There was no doubt about it. If Habron was innocent, he had not been there; 1248 that was his defence. If hon. Members read that case they will realise that only the police could have put the footmark there.
Another case of miscarriage of justice was of three men convicted at Northampton. By great pressure I got a transcript of the evidence put in the Library. I do not blame the police in that case at all. I am sure the man who gave the evidence, absolutely clear evidence, identifying the men who were there, honestly believed what he said.
§ Mr. Paget
He was wrong, and I am perfectly certain that if that policeman had died the men would have been hanged. The Home Secretary has told us that that is not so, but I do not believe it. Having read that case, I have no doubt that there was no ground upon which the men could have been reprieved. If we were to say that the evidence of a policeman who actually struggled with them under an electric light was insufficient identification, then no conviction anywhere could stand, but on that occasion the evidence was wrong. Therefore, I say that upon the second test, the Government have selected the very cases in which a miscarriage of justice is most likely.
Thirdly, on the question of wrong, I ask for the attention of the House because this is really the aspect which impresses me. I believe if there is any purpose at all in life here on earth, that purpose is redemption. The purpose of our life is to work out our salvation, not by a deathbed repentance, but by reconstruction of our character, and that is always available, and is in fact the hope of mankind. We are dealing here with young, violent men. If we take the average age of people who have committed these sorts of crime, I doubt if it is more than 20. These are the men, young, violent, who are to be denied the hope of redemption. That I believe is profoundly wrong.
§ Mr. Freeth
The hon. and learned Member is talking a lot about the hope of redemption, but for anyone with any Christian views at all, he is talking the most extraordinary mixture of theology.
§ Mr. Paget
I leave anyone to judge that, but I am talking what I believe in my heart and myself. I believe that chance is always there, and we have no right to deny it, least of all to the young, who have so much opportunity to change their character. Young men like these, however violent, ill-guided and wicked, should not be denied the chance of becoming fit to meet their Maker. That seems to be the all-important consideration.
I would say to the hon. Member for Stroud (Mr. Kershaw), whose speech I heard, and who stated that one of the main reasons for changing his mind on this point was his doubt as to public opinion, that if one believes that hanging is unnecessary because it is not an exceptional deterrent, that it is unjust and that it is wrong, then one does not do this thing because the crowd wants it. There are just three phrases from St. Matthew which I should like to read with regard to this. They are:Pilate saith unto them, What shall I do with Jesus who is called Christ? They all say unto him. Let him be crucified.And the Governor said, Why, what evil hath he done? But they cried out the more, saying. Let him be crucified.When Pilate saw he could prevail nothing, but that rather a tumult was made, he took water, and washed his hands before the multitude, saying, I am innocent of the blood of this just person.Was he innocent? Do we judge him innocent? Can we judge ourselves innocent if we consent to the killing, the unnecessary killing, wrongful killing, because we think that the crowd likes it? Can we justify this, for it is our action? The hangman is our servant—is there one of us here who would do his job? Very few, I hope, because in our hearts and souls we know that what he is doing is indecent and wrong. Yet what we do by another we do by ourselves. I urge this House not to oppose the Second Reading of the Bill, but, when we reach the Committee stage, not to budge from our convictions, from just and right convictions—they were then and they are now. Let us stand by them, have the courage to stand by them, and not be made to take blood by our haphazard estimate of what the crowd wants.
§ Mr. Kershaw
I am not certain whether the hon. and learned Member was referring to me in the final words of his 1250 speech and comparing me with Pontius Pilate. His emotional argument is, in fact, neither here nor there for that purpose. I was speaking the way I did to reduce murder, not increase it.
§ 9.30 p.m.
§ The Attorney-General (Sir Reginald Manningham-Buller)
No one who heard the hon. and learned Member for Northampton (Mr. Paget) would doubt the sincerity with which he expressed his views, nor would anyone doubt the sincerity of the hon. Member for Nelson and Colne (Mr. S. Silverman), but I think it unfortunate that the hon. and learned Member for Northampton should start his speech by saying that the issue which we are discussing tonight is whether it is expedient for the Government to take life. He knows perfectly well that that is not the question which we are debating today. We are debating the Second Reading of a Bill which proposes the alteration of the law relating to murder and which, when it is passed, will result in a great many people who now would be tried for murder not being tried on a capital charge.
The hon. and learned Member went on to say that he thought that the thin attendance in the House today was an indication of the essential irrelevance of the Bill. I draw an entirely different conclusion. We have debated today a good deal of the ground which has been covered in earlier debates and most hon. Members have heard the arguments on both sides. That is the reason, I believe, for the thin attendance, as well as the fact that hon. Members who have read the Bill realise that it is a good Bill and in conformity—as it certainly is, in my belief—with what the country wants at present.
As my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) said, this is an important Bill. I am sorry that my right hon. and learned Friend has robbed me of the opportunity which I hoped I would have, of being the first person to pay a tribute to the committee over which he presided. I was looking forward to doing that, but his reference to it has prevented me from doing so.
I want also to pay a tribute to the Royal Commission. Theirs is indeed a valuable Report, although it is always interesting to see how different bits of it 1251 are selected to support different arguments. May I also pay a tribute to the draftsman of the Bill. It is always easy to criticise the wording of the Bill and I do not complain of the criticisms which the hon. and learned Member for Northampton made of Clause 5. I think they are entirely ill-founded, and we can deal with them at a later stage, but I know that in drafting the Bill, even the earlier parts raised extremely difficult problems, and I think—and I hope that the House will agree—that the draftsman has tackled these problems extremely well.
The first part of the Bill follows, although not entirely, recommendations of the Royal Commission and of the Committee to which I have already referred. Clause 1, in relation to constructive malice, departs to some extent from the Royal Commission's recommendation and perhaps I should draw attention to that. The Royal Commission recommended that the doctrine of constructive malice should be retained for accomplices and said thatthose who jointly embark on a felony intending … some violence … should share the consequences if the violence actually used proves greater than was contemplated.As the House will see, we have not accepted that recommendation. It would mean that there was still remaining a fragment of the doctrine of constructive malice. Indeed, in view of Clause 5 (2) it is unnecessary to accept that recommendation, for the effect of carrying that recommendation out would merely be that an accomplice convicted for murder would be liable to a fixed penalty of life imprisonment for murder whereas, without that recommendation being carried out, the maximum penalty will be life imprisonment for manslaughter.
My right hon. and learned Friend the Member for Chertsey asked me several questions about Clause 2. He asked, first, whether the conception of diminished responsibility under the law of Scotland was accurately stated. I think that the answer is that it is not, and could not be, stated accurately, so far as it relates to the law of Scotland, in this Clause, because it really goes a little further than the doctrine does in Scotland. There, they have the good fortune not to be troubled by the M'Naghten Rules, and, as 1252 I understand, they are not troubled by the strict English rules as to unfitness to plead. In Scotland, if a man is insane in the medical sense, he will almost certainly not be tried.
Therefore, what we have done is to adopt and adapt that Scottish doctrine of diminished responsibility in cases which do not amount to insanity, and to make it apply, under Clause 2, not only to cases where there is a serious abnormality less than insanity, but also to the cases where there is insanity in the medical sense, though not insanity coming within the M'Naghten Rules. In the language used, I think we have really carried out the true effect of the doctrine laid down in Scotland, applying it to the English circumstances.
My right hon. and learned Friend asked me a question or two about the wording, and the wording of that provision is, of course, extremely important. I take the view that the words in brackets to which he referred are words of limitation. He also asked about the meaning of "inherent causes." Those words are taken from the Mental Deficiency Act; and they have to be construed in relation to the context. It is desired, and intended, to exclude, for instance, a loss of temper leading to violence through, say, a person being interrupted for one cause or another.
The hon. Member for Rossendale (Mr. Anthony Greenwood) asked whether the introduction of this new doctrine would mean the end of the M'Naghten Rules. I think that the strict answer to that is that it will not, but I do not suppose that many accused persons will put forward a defence of insanity. I should perhaps make this clear. If the defence raise any question as to the accused's mental capacity, and evidence is called to show that he is suffering from a serious abnormality of mind, then, if the evidence goes beyond a diminution of responsibility and really shows that the accused was insane within the M'Naghten Rules, it would be right for the judge to leave it to the jury to determine whether the accused was, to use the old phrase, "guilty but insane "or to return a verdict of manslaughter on the basis that, although not insane, he suffered from diminished responsibility. It would not, therefore, be true to say that we have seen the absolute end of
1253 the M'Naghten Rules; but I do not myself think that accused persons will seek to assert insanity very often in future.
Provocation—Clause 3—again, is an important part of the Bill. Its whole object is, as my right hon. and gallant Friend said, to make clear that a jury can take into account all kinds of provocation, whether it be by words or by conduct. That is the only purpose of the Clause, and it is a very important one. There is no intention at all of altering the other tests of what can amount to provocation.
Despite what has been said by one or two hon. Members today, in my view the Clause, as worded, correctly states the law in that respect. I know the word "might" is used in certain paragraphs in the Royal Commission's Report, but I think it is a mis-reading and it is certainly not necessary to read it in that way. In my view, the law is correctly stated in this Clause.
Then it was said by my right hon. and learned Friend the Member for Chertsey and, I think, by the hon. and learned Member for Northampton that we ought to take a different test in considering whether or not there is provocation—that the test of the reasonable man is not a sufficient test. I have been familiar with one or two cases where that question has arisen. That question was fully considered by the Royal Commission in its Report. I would refer the House to page 53, paragraph 143, where it is stated, in rejecting the suggestion that there should be an alteration:It is a fundamental principle of the criminal law that it should be based on a generally accepted standard of conduct applicable to all citizens alike, and it is important that this principle should not be infringed. Any departure from it might introduce a dangerous latitude into the law.Towards the end of paragraph 145 the Report says:The application of this test"—that is, the "reasonable man" test—does not therefore lead to any eventual miscarriage of justice. At the same time, as we have seen, there are serious objections of principle to its abrogation. In these circumstances we do not feel justified in recommending any change in the existing law.In fact, the difficulties are overcome by the exercise of the Prerogative.
I think I have dealt with all the points that were raised on Part I of the Bill, 1254 which is an important Part. I want now to come to Part II. It is to this part of the Bill that the main criticism has been directed. I think it was the subject of attack by the hon. Member for Nelson and Colne for the best part of an hour. I make no complaint of that, but I shall do my best to answer him in less time than that. The hon. Members for Rossendale and Nelson and Colne, as well as the hon. and learned Member for Northampton, all sought to suggest that in putting these provisions into the Bill there was a breach of faith by the Government in not honouring undertakings given last Session. That I completely deny. Those undertakings were completely honoured.
Then it is said—and this is the second line of attack—that in Clause 5 we have attempted the impossible by trying to distinguish between different types of murder, that that has been tried before and has failed and that it has been condemned by the Royal Commission. The truth is that we have not attempted to distinguish degrees of murder in the way that this was attempted by the Royal Commission and in 1948. If one sees what it was that the Royal Commission was considering, in the paragraph that has been read out but to which I will not refer again, one sees straight away that efforts to distinguish were made which were based partly upon the degree of atrocity or heinousness of the crime. That we have not sought to do.
What we have done is to seek to restrict the categories of murder for which the death sentence is to be imposed as narrowly as possible, having regard to present-day requirements. In our view, it is essential in the public interest that the death sentence should be retained for cases coming within Clause 5. I will say a word about Clause 6 later. Of course, some will feel that one or other of the categories mentioned should be omitted. There are bound to be differences of view about that, but, as my right hon. and gallant Friend the Home Secretary has said, in the view of the Government, who have a very special duty and responsibility in this matter, it is necessary and essential that the death penalty should be retained for cases coming within Clause 5 (1) and (2).
The question has been asked: when did this duty of the Government arise? 1255 It is a duty which rests on every Government, to maintain law and order. The Government's views on this subject have been expressed before. Now that we have had a debate in both Houses and discussion in the country, the Government have fully considered all that has been said. The hon. Member for Nelson and Colne said, quite rightly—I agree with him—that the Government of the day have to give a lead. In this matter, the Government are giving a lead by the introduction of this Bill.
§ Mr. S. Silverman
I did not say that the Government had a duty to give a lead. I said that the Government had a right to give a lead if they wanted, and that they equally had a right to ask the House of Commons to decide instead. What I complained of was that, having got a decision from the House of Commons which they did not anticipate and did not want, the Government now come back with something else, which is really cheating.
§ The Attorney-General
The hon. Member has put his view. I do not agree at all. I took careful note of what he said today in the course of his long speech, and he said that he believed the Government of the day have to give a lead.
We are giving a lead in the light of all the events and of the discussion which has taken place in the country. I myself feel certain that this Bill, in what it attempts to achieve and in what it will achieve, does accord with the general view of the vast majority of the people.
We are seeking to restrict, and restricting, the death sentence to those cases for which it is not only a particularly necessary but also a particularly effective deterrent. The hon. Member for Nelson and Colne said that if my right hon. and gallant Friend the Home Secretary accepted capital punishment as a unique deterrent he must accept it for all forms of murder. I entirely disagree with him about that. In my view, it is a unique deterrent and a deterrent which is likely to operate most particularly in the cases covered by Clause 5.
Because capital punishment is a unique deterrent, it does not mean that the death sentence should be imposed for all forms of crime. This Bill reduces some 1256 cases which would now be charged as murder to cases of manslaughter. It is right that the penalty should be reduced. We have that where there is diminished responsibility. We have that where there are suicide pacts. The effect and object of the Bill, as I say, is to keep capital punishment confined to those cases where it really is essential in present circumstances for the protection of the public to retain this unique deterrent.
In the course of this debate we have heard very little about the necessity for protecting the public. We have heard a great deal about the irrevocability of the penalty, that it is wrong to take life, and matters of that sort. I do not, however, at present believe that any Government, of whatever complexion, having a proper regard for their duties, could acquiesce in the complete abolition of the death sentence for murder at the present time.
Some criticism has been directed to Clause 5 (1, b), which deals with murder by shooting or by causing an explosion. I would remind the House that in this country we seldom find criminals carrying firearms, though they do use explosives for blowing open safes. But that is not true of other countries, and we certainly do not want to encourage here the use of firearms or explosives, the use of which may well lead to the death of innocent people. We regard it as essential that liability to the death sentence should be retained for such cases, bearing in mind that in appropriate cases there would always be a reprieve.
The hon. Member for Nelson and Colne and the hon. and learned Member for Northampton sought to suggest that the inclusion of Part II in the Bill was part of a sinister plot, as it was said, to defeat the Parliament Act. I do not know quite what is meant by saying "to defeat the Parliament Act," but I gather that it is intended to mean that if a Bill similar to the one we had last Session were passed by this House it would operate by virtue of the Parliament Act. It really is a most astonishing suggestion by the hon. Member and devoid of any foundation whatsoever in fact. If he will not interrupt me, I will answer him.
The Government put forward this Bill as a serious and important Measure. As I have said more than once, the Government regard the passage of Clause 5 and 1257 Part II as important. It is certainly not the Government's intention to bring forward a Bill containing these provisions with a view to them being taken out, as the hon. Member suggested, in Committee, so that the Bill would then amount to an abolition Bill and it could then be said, "Now it is in a different form than the one last Session and the Parliament Act cannot apply to it."
§ Mr. S. Silverman rose—
§ The Attorney-General
No, I am not giving way to the hon. Member again. Many hon. Members have given way to him all through the day and the time at my disposal is not very long. What we intend to do—I assure the hon. Member of this—is to see that this Measure does reach the Statute Book, and speedily.
A question was raised about poison and I would like to say a word or two on this, because it is a matter on which a good deal of interest is taken. This question has been one which has given us a lot of trouble. It is true that the vast majority of poison murder cases are cases in which there will almost certainly be a reprieve. At the other end of the scale, however, there are poison murders in which a degree of callousness, of inhumanity and of disregard for human suffering is exhibited which revolts the public conscience. Those cases are few; I think there have been only from three to five prosecutions for that kind of case since the war. They are, of course, cases of a different character than those referred to in Clause 5, because there part of the heinousness depends upon the motive.
To me, one of the main attractions of the Bill is that it will substantially reduce the number of persons who will have to endure the agony of being charged with murder and of being sentenced to death and the agony of the condemned cell when a reprieve is almost a certainty. Unless a satisfactory distinction can be drawn between the deliberate, brutal, inhuman poison murder and the others, if poison was put in the capital category it would mean that those who would be reprieved would still have to go through that agony. It is very difficult—I am not sure that it is not impossible—to draw such a distinction. If it could be made, the poison 1258 cases which would remain capital would, judging by past experience, be very few indeed in number.
Of course, the Government will consider most carefully what has been said on this subject today, but I hope it will be clearly understood that that does not mean that I am saying that the Government will be prepared to accept or to move an Amendment to the Bill to include poison murder in the capital category.
I should like to say a word or two about Clause 6, which has also excited some comment. This, again, was a difficult Clause to draft. It drew some ridicule from the hon. and learned Member for Northampton. Of course, what is a "different occasion" is a question of fact, not law. The object of the Clause is twofold. First, it is to make it possible to sentence to death persons who commit murder of the type committed by Haigh, Christie and others. Secondly, it is to deal with what will become a new problem when the Bill reaches the Statute Book, namely, the problem of the murderer, of the type who would not now be reprieved, who has served his sentence and then comes out and commits another murder, possibly killing, for example, the chief witness against him on his first trial. We thought that in such a case the punishment of further imprisonment was really not an adequate deterrent.
That is the object of subsection (1). Subsection (2) deals with procedure. It is an important provision, to which I would draw the attention of those who practise in the courts.
I do not think that I need make any further observations on any of the other provisions of the Bill, because they did not become the subject of any adverse criticism.
What I should like to say, in conclusion, is this. When this Bill is passed, it may not be the end of the controversy on this subject. On the other hand, it may be. I believe, however, that Parts I, II and III of the Bill do make a very great improvement in our law. I hope that we shall see it operating satisfactorily, and being properly tested over a long period. We have had an interesting debate, serious speeches have been 1259 made, and I now commend the Bill for Second Reading.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to Committee of the whole House.—[Mr. E. Wakefield.]
§ Committee upon Monday next.