Commons Sitting of 28 November 1956

Preamble
The House met at half-past Two o'clock
PRAYERS
[Mr. SPEAKER in the Chair]
MESSAGE FROM THE QUEEN

  SOLICITORS
  The VICE-CHAMBERLAIN OF THE HOUSEHOLD reported Her Majesty's Answer to the Address, as follows:—
  I have received your Address praying that the Solicitors' Remuneration Order, 1956, dated 19th October, 1956, a copy of which was laid before your House on 26 th October, in the last Session of Parliament, be disallowed.
  I will give directions accordingly.

PRIVATE BUSINESS
  SELECTION
  Sir Gordon Touche discharged from the Committee; Commander Agnew added.—[Mr. Hughes-Young.]
ORAL ANSWERS TO QUESTIONS
  ROYAL AIR FORCE

    Aircraft Accident, London Airport
    Mr. de Freitasasked the Secretary of State for Air whether he will make a statement on the accident at London Airport to the Avro Vulcan.
    Mr. Hunterasked the Secretary of State for Air whether he will now make a statement on the Vulcan bomber accident at London Airport.
    Mr. Skeffingtonasked the Secretary of State for Air whether he is now in a position to make a statement on the Vulcan bomber accident at London Airport.
    The Secretary of State for Air (Mr. Nigel Birch): I regret that, for the reasons explained by my right hon.
    370
    Friend the Minister of Transport and Civil Aviation last week, I cannot yet make a statement.
    Mr. de Freitas: Is there not something wrong in this enormous delay? Is it not a strange fact that the public, whose aircraft this was and whose airfield this is, are denied information? It appears that the Government are shifting the blame from one Department to another.
    Mr. Birch: There is no question of shifting blame from one Department to another. The Royal Air Force Court of Inquiry, which reported very quickly, said that certain matters needed further investigation within M.T.C.A. Those investigations are going on. I will make the fullest statement I can as soon as I can.
    Mr. Hunter: Will the Minister endeavour to speed up the inquiry? This unfortunate accident has caused very great concern to the large residential population around London Airport. If the crash had taken place just outside the airfield boundary, there would have been a terrible disaster. In the interests of the local population, I hope the Minister will speed up the inquiry.
    Mr. Birch: I have taken every step I can to speed it up, but it is an important inquiry which cannot be speeded up faster than the Chairman can conduct it.
    Mr. Skeffington: Is the Minister aware that the local authorities around the airport, of which there are a large number, are also very deeply concerned about what might have happened if the aircraft had crashed elsewhere than within the boundary of the airfield?
    Mr. Birch: I am very well aware of that point.

    Overseas Allowance
    Mr. Hector Hughesasked the Secretary of State for Air the principle on which he acts in determining the incidence and amount of each local overseas allowance to British air officers serving abroad; what principle guides him in making discriminations between single officers, married accompanied officers and married unaccompanied officers; and how the assessments are arrived at in each of the overseas commands.
    Mr. Birch: The aim is to enable officers to meet the extra cost of maintaining a suitable standard of living, both for themselves and their families, when they are serving in certain areas overseas. The rates are fixed accordingly.
    Mr. Hughes: Is it not obvious that the present system of assessment is invidious, and operates harshly in certain cases? Will the Minister look into the matter with a view to ameliorating the unfairness from which certain officers abroad are suffering?
    Mr. Birch: This is a very complex business. If the hon. and learned Gentleman will draw my attention to any case in which he thinks there is unfairness, or will see me about it, I shall be happy to go into it.
    Mr. Kershaw: Is my right hon. Friend aware that in Holland the local overseas allowance is less than in Germany? Is he also aware that N.A.A.F.I. in Holland does not carry anything like the stocks carried by N.A.A.F.I. in Germany, so that officers and other ranks in Holland are forced to do a lot of their shopping in the N.A.A.F.I. in Germany, where the prices are higher, because they are based on the higher local overseas allowance in Germany?
    Mr. Birch: I take it that all these matters have been taken into account in fixing the local overseas allowance, but I will certainly look into the point.
    Mr. Fernyhoughasked the Secretary of State for Air what would be the cost of doubling the overseas allowance for corporals and those below stationed in Germany when accompanied by their families.
    Mr. Birch: About £35,000 a year.
    Mr. Fernyhough: Since the amount involved is so small and the number of grievances which, if doubled, it would remedy is comparatively large, can the right hon. Gentleman say why generals, brigadiers, colonels, lieutenant-colonels, majors, captains, warrant officers and those of ranks down to sergeants should get an additional allowance when accompanied by their families, while corporals and privates are denied that advantage?
    Mr. Birch: Because they are personnel of higher ranks.
    Mr. Fernyhough: They may have higher ranks, but does not the Secretary of State realise that a principle is involved? We are not asking that they should have the same overseas allowance, but that there should not be this discrimination.
    Mr. Birch: The hon. Member has already given notice that he will raise this matter on the Adjournment and I do not want to do anything to spoil his speech.
    Mr. Fernyhough: On a point of order. I have not given notice that I shall raise, on the Adjournment, this matter in relation to how it affects the Air Force.

    Tradesmen (Overseas Posting)
    Mr. D. Jonesasked the Secretary of State for Air why good tradesmen, with only eight weeks' service, are being sent to Cyprus; and whether, in view of the fact that this area is considered to be dangerous, he will take steps to end this practice.
    Mr. Birch: No airman is sent overseas without receiving general service training which includes ground defence instruction. Tradesmen who do not require further training in their trade may be considered for overseas posting. I see no reason to change this practice.
    Mr. Jones: Does the right hon. Gentleman think that it is reasonable that a young man, although he is 22 years of age, after just eight weeks' training in the Air Force, should be sent to Cyprus, amidst the dangers which exist in that island at the present time? Although the man may be a good carpenter, as the Secretary of State alleged in a letter to me, does the right hon. Gentleman think that it is fair that after eight weeks' training he should be sent into that danger zone?
    Mr. Birch: As the hon. Member has pointed out, this man was 22 years of age, which is not very young as these postings now go. He had received ground defence training and qualified as a marksman. He was well able to look after himself.
    Lieut.-Colonel Cordeaux: Does not my right hon. Friend agree that that area is not really so very dangerous, but that if it were the good tradesman concerned

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    would resent even more the policy advocated by the hon. Member for The Hartlepools (Mr. D. Jones)?
    Mr. Fernyhough: Is the right hon. Gentleman satisfied that it is right that after eight weeks' training these men should be sent to what, after all, is an active theatre? Can he say why the Government should argue that two years' conscription is necessary before a man is completely trained?
    Mr. Birch: That raises rather wider issues.

    Maintenance Unit, Roade
    Mr. Pagetasked the Secretary of State for Air (1) why he has decided to close No. 72 Maintenance Unit, Roade, Northamptonshire;
    (2) the amount of capital expenditure on No. 72 Maintenance Unit since a decision was taken to build it into a single-point holding unit some three years ago;
    (3) how much has been spent on road improvements approaching No. 72 Maintenance Unit.
    Mr. Birch: No. 72 Maintenance Unit is being closed as part of the contraction programme for Maintenance Command. During the past three years about £18,000 have been spent on capital improvements, but much of that has been for removable equipment. I understand that there has been no substantial expenditure on the improvement of local roads for the benefit of the unit in recent years.
    Mr. Paget: Is not the Secretary of State aware that a number of roads, which apparently carry no other traffic, have been improved and widened, and the turn-over to a single-point unit led people working there to imagine that it would continue for some time, so that many of them have bought houses in consequence, and that this policy will cause hardship to employees in the unit?
    Mr. Birch: Closing any kind of unit of this sort is always a very unhappy and unpleasant business, and we do all we can to mitigate hardships caused by it. We are effecting very considerable and necessary economies in Maintenance Command, however, and we cannot do that without closing some units.

    St. Mawgan Airfield
    Mr. Haymanasked the Secretary of State for Air when he expects to make a decision on the siting of the proposed married quarters for St. Mawgan Airfield, Cornwall.
    Mr. Birch: We do not plan to build these quarters now.
    Mr. Hayman: Why has the Secretary of State now come to this decision, when officers and men and their families are working at considerable inconvenience, and when local authorities have been considerably disorganised in their planing by their expectation that these quarters were to be built?
    Mr. Birch: I am sorry that any inconvenience has been caused, but under our present planning certain redeployment is taking place which will make the building of these quarters unnecessary.
    Sir H. Roper: As this question relates to my constituency, may I ask my right hon. Friend whether he can confirm that certain personnel from St. Mawgan Airfield are now to be housed at St. Merryn? If so, can he indicate the number of households involved.
    Mr. Birch: I cannot answer that question without notice. Perhaps my hon. Friend will come and see me, or write to me about it.

    Equipment (American Off-Shore Purchases)
    Mr. Beswickasked the Secretary of State for Air the estimated proportion of equipment now used by the Royal Air Force which has been supplied under the American off-shore purchases.
    Mr. Birch: The total value of equipment so far supplied to us from American off-shore purchases amounts to £24 million. It is not possible to calculate what proportion this is of the total equipment now used by the Royal Air Force, but it is certainly small.
    Mr. Beswick: Is it not the fact that special conditions were attached to this equipment when it was supplied? Is any attempt made to segregate these items of equipment? If they are so segregated, does that not amount to the position that we cannot use these items for the Royal Air Force without a chit from the United States?
    Mr. Birch: That is a different question, and was effectively answered by my right hon. Friend the Minister of Defence the other day.
    Air Commodore Harvey: Will my right hon. Friend consider returning this equipment, or at least paying for it, to enable us to be masters of our own house?
    Mr. Wigg: Will the right hon. Gentleman bear in mind, before undertaking that course of action, that 515 Hunters out of 1,100, 100 Sea Hawks, all the Avengers, all the Sky Raiders and all the helicopters used in recent operations were supplied under American off-shore purchase arrangements?
    Mr. Birch: I think that the hon. Member is referring mostly to naval aircraft, but his figures are extremely misleading.

    Career Planning (Committee)
    Mr. E. Johnsonasked the Secretary of State for Air whether the Committee appointed to consider the problems of career planning in the Royal Air Force has completed its review, especially in regard to the prospects of promotion of officers in the Education Branch of the Royal Air Force; and if he will make a statement.
    Mr. Birch: The Committee my hon. Friend has in mind is a standing committee which reports from time to time to the Air Council. It has not yet completed its study of the Education Branch.
    Mr. Johnson: Does my right hon. Friend recall that it was as long ago as 20th January that he told me that this Committee was studying this problem; that he wrote to me on 7th August and said that he hoped that the topic of promotion to wing commander could be considered early and in isolation from the rest of the problem; and that it is now a year since I drew attention to the very real grievance of these officers?
    Mr. Birch: I know that what my hon. Friend has in mind is the promotion prospects in the Education Branch. I have always told him that that is not a problem of immediate urgency. What we want is a long-term plan for that branch.
    Mr. Johnson: On a point of order. I beg to give notice that, in view of the unsatisfactory nature of that reply, I shall seek an early opportunity of raising the matter on the Adjournment.

    Operations, Egypt
    Mr. Emrys Hughesasked the Secretary of State for Air if he will give further details of the steps taken to prevent the loss of human life during the bombing operations undertaken during the recent state of armed conflict in Egypt.
    Mr. Birch: Casualties to Egyptians during bombing operations were kept to a minimum by careful choice of targets, by accurate bombing and by radio warnings. The targets were selected to achieve the maximum destruction of Egyptian war material with the minimum loss of life. According to all reports and photographs the accuracy of the bombing was very high. Warnings were given by radio of attacks made by Allied Air Forces and these were repeated at frequent intervals. There is evidence that they were heeded by the Egyptian population.
    Mr. Hughes: Has the Secretary of State not seen some of the photographs which are appearing in the American Press of the wholesale destruction of buildings, which must have involved great loss of life? Does he really suggest that this operation was carried out with the minimum amount of destruction?
    Mr. Birch: Yes. A great many untrue stories about this matter have been circulated, but what I have said is perfectly accurate.
    Captain Duncan: Is it not a fact that if the attacks had been made against any country but Egypt, the risks to our own airmen would have been very much greater?
    Mr. de Freitas: Although what evidence we have shows that the bombing was extremely accurate and that the R.A.F. deserves the greatest credit—after all, it was not its policy, it was carrying out its orders—civilians were killed in these bombing raids. Can the Secretary of State give us any idea of how many?
    Mr. Birch: I cannot give a figure.
    Mr. P. Williams: Will my right hon. Friend convey the feelings of thankfulness of the majority of the House that the Air Staff planned this operation so efficiently and aircrews carried it out so efficiently that not only were there small Egyptian casualties, but none on our side?
    Mr. Birch: Certainly the operation was carried out with great skill and care.
    Mr. Jay: Can the Minister tell us how soon the Government will be able to give the real figure both of Egyptian and British casualties?
    Mr. Birch: Not without notice. I have not the figure here. We will give it as soon as we can.
    Mr. Emrys Hughesasked the Secretary of State for Air how much petrol and oil fuel was consumed in the recent armed conflict in Egypt; and the estimated cost.
    Mr. Birch: I regret that this information is not readily available.
    Mr. Hughes: In view of the great public interest in how petrol is consumed and how it is being wasted, does not the Minister think that he could provide this information? Is he aware that in his Memorandum on the Estimates, we are told in the first page that £38 million was received from America? Can he tell us whether any of this sum was used for supplying oil, equipment or anything for this bombing operation, and whether he expects to get another £38 million on false pretences?
    Mr. Birch: I am pretty certain that I am right in saying that none of that money has been devoted to oil.
    Mr. P. Noel-Baker: Would not it be quite easy for the Secretary of State to find out from the Command in Cyprus how much fuel was used in this operation and tell the House, in view of the great interest in the fuel situation of this country?
    Mr. Birch: I hardly think that it would be an easy calculation to make. With his experience of the Air Ministry, the right hon. Gentleman should know that.

  ROADS

    Trunk Roads
    Mr. Gresham Cookeasked the Minister of Transport and Civil Aviation what percentage of the trunk road system of England, Scotland and Wales consists of two-lane highways; and what percentage consists of four-lane highways.
    The Minister of Transport and Civil Aviation (Mr. Harold Watkinson): Approximately 78 per cent. of the mileage of trunk roads in England consists of two-lane carriageways and 6 per cent. of four-lane carriageways; the comparable figures for Wales are 94 per cent. and 0·5 per cent. and for Scotland 86 per cent. and 2 per cent. respectively.
    The remainder of the mileage consists largely of two-lane carriageways with a passing lane, except in Scotland, where 6 per cent. of the mileage covers a single-lane carriageway.
    Mr. Gresham Cooke: As a four-lane highway is a good deal safer and easier for traffic than a two-lane highway, and as 76 per cent. of our trunk roads are of the two-lane variety, does not that indicate that we have a long way to go to make our trunk road system really safe? As traffic is likely to be light in the next few months, would not that period provide an opportunity to bring our road system up to date?
    Mr. Watkinson: I only wish that I could accept my hon. Friend's view that in a short period of months I could overcome the arrears of many years.

    Dartford-Purfleet Tunnel
    Mr. Doddsasked the Minister of Transport and Civil Aviation what progress has been made in the construction of the Dartford-Purfleet Tunnel and the approaches; and to give an estimate of the date of completion of the tunnel.
    The Joint Parliamentary Secretary to the Ministry of Transport and Civil Aviation (Mr. Hugh Molson): The contractors for the main tunnel started operations last July and are at present engaged on preliminary work on both sides of the river. It is expected that the driving of the tunnel will begin in three or four months' time. The whole scheme should be finished by about 1962.
    Mr. Dodds: I thank the Minister for that reply, but can he say whether it is not possible to have the tunnel and the approaches completed before 1962? Is not he aware of the intolerable traffic conditions which, of course, can be only temporarily interrupted by the shortage of petrol? Can he expedite that date?
    Mr. Molson: We are fully aware of the great need for this tunnel. That is why it has been given high priority. But it is a very difficult engineering project. The question of safety is involved. We are grouting the soil, which is not safe, and I am afraid that it would not be possible to speed up the scheme any more.

    Light-coloured Surfaces
    Captain Pilkingtonasked the Minister of Transport and Civil Aviation to what extent experiments have shown that a light-coloured road surface tends to decrease accidents at night.
    Mr. Molson: There is no direct evidence that a light-coloured road surface without street lighting tends to decrease accidents at night. Good street lighting does reduce road accidents at night, and investigation shows that its effect is increased by a light-coloured road surface.

    Schemes
    Captain Pilkingtonasked the Minister of Transport and Civil Aviation whether he can yet specify any additional immediate road development plans in addition to those already announced
    Mr. Watkinson: So far as trunk roads are concerned, I have nothing to add at present to the statements already made, but I will circulate in the OFFICIAL REPORT a list of some of the larger classified road schemes now included, or proposed to be included, in the road programme, particulars of which have not been given previously.
    Captain Pilkington: Since, as my hon. Friend has said, we are to have a six months' interim period when traffic will not be so heavy, will my right hon. Friend at least try to accelerate the work which can be done during these few months?
    Mr. Watkinson: Of course I will. I have already said that that is what my Department intends to do. But I must warn my hon. and gallant Friend that
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    we are not going to see dramatic results in six months to overtake the arrears of six or seven years.
    Mr. Ernest Davies: The Minister keeps publishing these ad hoc lists. Would it be possible for a comprehensive statement to be given of the road programme as it stands today?
    Mr. Watkinson: I do not publish ad hoc lists. I merely try to respond courteously to requests from hon. Members on both sides of the House.
    Following is the list:

    ADDITIONAL SCHEMES AUTHORISED IN 1955–56
    Scheme and Highway authority

    Plymouth, Eastern Approach Road, Gasking St.—St. Andrew's Roundabout, Plymouth C.B.

    Southampton, Inner Ring Road, eastern section, Southampton C.B.

    Manchester, Western Road, Wythenshawe, Manchester C.B.

    Roehampton Lane, Wandsworth, London County Council.

    Leeds, Headrow Extension, Leeds C.B.

    Portsmouth, Wymering Link Road, Cosham, Portsmouth C.B.

    Uxbridge Road, Hillingdon, Middlesex C.C

    ADDITIONAL SCHEMES AUTHORISED THIS FINANCAL YEAR
    Scheme and Highway authority

    Halesowen By-pass. Worcestershire C.C.

    Billingham, Saltworks Bridge Diversion. Durham C.C.

    Christchurch By-pass. Hampshire C.C.

    Sheffield, Inner Ring Road (Section 1). Sheffield C.B.

    SCHEMES TO BE AUTHORISED SHORTLY
    Scheme and Highway authority

    Swansea, East Side Approach (Section 3). Swansea C.B.

    Cambridge, Hills Road railway bridge. Cambridgeshire C.C.

    SCHEMES APPROVED IN PRINCIPLE
    Scheme and Highway authority

    Birmingham, Inner Ring Road (Section 1). Birmingham C.B.

    Talgarth Road, Cromwell Road Extension. London County Council.

    A number of other large classified road schemes are now being considered, both for the current year and for the next two years.

    Mr. Jannerasked the Minister of Transport and Civil Aviation if he will give for each road scheme for which he is responsible, and the total cost of which would be more than £10,000, the date when all the land had been acquired.
    Mr. Watkinson: I am circulating in the OFFICIAL REPORT the information requested as regards land acquired since the roads concerned became trunk roads. There are, in addition, a number of major improvement schemes on trunk roads where the land was already incorporated in the highway at the time the roads became trunk roads. I have no information about the date of acquisition in these cases.
    Mr. Stokes: May I ask the right hon. Gentleman whether his statement will show the basis on which the land has

    DATES WHEN ALL LAND HAD BEEN ACQUIRED FOR TRUNK ROAD MAJOR IMPROVEMENT WORKS EACH COSTING MORE THAN £10,000 IN ENGLAND AND WALES AND WHERE WORKS HAVE NOT YET STARTED (EXCLUDING LAND INCORPORATED IN THE HIGHWAY AT THE TIME THE ROAD BECAME A TRUNK ROAD)

    Date

    1.

    A. 1

    Edworth to Astwick Turn, Beds. Dual carriageways

    22.3.41

    2.

    A. 1

    Ferrybridge to Darrington, West Riding. Dual carriageways

    31.12.54

    3.

    A. 1

    From B. 6285 to Tally-ho Farm, North Riding. Provision of second carriageway

    30.6.53

    4.

    A. 5

    Watford Gap Bend, Northants. Improvement

    *26.7.56

    5.

    A. 6

    Clophill, Bedford. Widening

    10.4.42

    6.

    A. 6

    Boathouse Canal Bridge, Leicester. Reconstruction

    23.9.40

    7.

    A. 6

    Stints Bridge, Leicester. Diversion

    10.6.43

    8.

    A. 6

    Lockington Railway Bridge, Leicester. Completion

    31.1.39

    9.

    A. 6

    Cromford Corner to Masson Mills, Derbyshire. Improvement

    25.10.49

    10.

    A. 6

    Bakewell Road, Matlock, Derbyshire. Improvement

    30.10.51

    11.

    A. 12

    Gallows Corner, Essex. Improvement

    * 7.5.56

    12.

    A. 12

    Ingatestone, Essex. By-pass

    16.10.41

    13.

    A. 33

    Otterbourne, Hampshire. Improvement

    *25.7.56

    14.

    A. 34

    Birmingham Boundary to Walsall Boundary, Staffordshire. Dual carriageways

    14.5.53

    15.

    A. 38

    Clifton to Sandford, Worcester. Widening

    10.3.55

    16.

    A. 38

    Sandford to Severn Stoke, Worcester. Widening

    17.

    A. 38

    Stretton Road to County Boundary, Staffordshire. Widening

    28.10.41

    18.

    A. 40

    Cefn Brynch, Brecon. Diversion

    *24.7.56

    19.

    A. 465

    Dowlais Top Diversion to Lechryd By-pass, Glamorgan. Widening

    11.12.50

    20.

    A. 47

    Necton, Norfolk. By-pass

    29.3.55

    21.

    A. 48

    Flambert Farm to Penhow, Monmouth. Improvement

    24.1.56

    22.

    A. 48

    Royal Oak to Coldra, Monmouth. Improvement

    31.12.52

    23.

    A. 48

    Stormy Down to Redhill, Glamorgan. Widening

    8.12.54

    24.

    A. 48

    Pyle Hill, Glamorgan. Widening

    * 9.10.56

    25.

    A. 48

    Ddawan Bridge, Cowbridge, Glamorgan. Widening

    *16.1.56

    26.

    A. 55

    The Grove, Llanfairfechan, Caernarvonshire. Widening

    3.7.54

    27.

    A. 55

    Pen-y-Clip, Penmaenmawr, Caernarvonshire. Widening

    25.1.49

    28.

    A. 59

    Dunnings Bridge, Lancashire. Improvement

    11.3.54

    29.

    A. 61

    Smithy Houses to Marehay Level Crossings, Derbyshire. Improvement

    1.1.55

    30.

    A. 428

    West of Bromham, Bedford. Widening

    *22.10.56

    31.

    A. 449

    North of Llangibby, Monmouth. Improvement

    3.9.49

    32.

    A. 483

    Llwynbrain-Gaufron Uchaf, Radnorshire. Diversion

    19.6.48

    33.

    A. 483

    Llymwynt Brook to 20th Milestone from Builth, Radnorshire. Widening

    18.5.51

    34.

    A. 483

    Bwlch Cottage, Montgomeryshire. Diversion

    11.4.47

    35.

    A. 483

    Buttington Cross Roads, Montgomeryshire. Roundabout

    11.4.47

    36.

    A. 483

    Brynarth Coch, Brecon. Widening

    26.2.53

    37.

    A. 483

    Glanmynys, Carmarthen. Diversion

    11.11.48

    38.

    A. 483

    Llanwrda, Carmarthen. Diversion

    12.11.53

    39.

    A. 483

    Abermarlais, Carmarthen. Diversion

    2.2.49

    40.

    A. 487

    Llanelltydd Bridge, Merioneth. Temporary Bridge

    *22.10.56

    41.

    A. 494

    Ffronwydd, Merioneth. Widening

    *12.12.55

    * Date when permission to enter was given in advance of completion of acquisition.

    Mr. Jannerasked the Minister of Transport and Civil Aviation if he will state which of the road schemes for which he is responsible, and the total cost of each of which would be more than
    been acquired? Will it be existing use value or some speculative value which the Government are only too willing to pay?
    Mr. Watkinson: The statement will show what I was asked to give, and that is a list of the schemes. If the right hon. Gentleman is interested in costs, etc., he should put down a Question, and I will try to answer it.
    Mr. Stokes: I am interested in land values.
    Following is the information:
    £10,000, he hopes to authorise by the end of the financial year 1958–59.
    Mr. Watkinson: I hope to authorise something over 200 trunk road schemes

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    costing over £10,000 each between now and April, 1959. I would rather not, however, at this stage, give a hard and fast list of the detailed schemes.

    County Durham
    Mr. Slaterasked the Minister of Transport and Civil Aviation what major road schemes have been decided upon for 1957 and 1958 in Durham County; and what schemes under £100,000 will be put into operation in Durham County for 1957 and 1958.
    Mr. Watkinson: I am circulating in the OFFICIAL REPORT a list of the trunk road schemes, two costing more than £100,000 each and four costing less, which I hope to authorise in Durham County during the next two financial years. As regards classified roads, I am not yet able to say what schemes I shall be able to accept during the next two years.
    Mr. Slater: Is the Minister aware that in Durham County the county authority has built up a direct labour force for carrying out its five-year plan, and that if something is not done whereby the Minister can bring himself into a position to give greater consideration to some of these major schemes in order to meet the leeway which has to be made up, the plan will take fifteen years?
    Mr. Watkinson: I have given consideration to the matter and have just announced four schemes, two of which will cost over £200,000.
    Mr. Slater: Yes, but could the Minister state whether the Salt Lane scheme is one of those to which he has referred, and which will be published in the OFFICIAL REPORT?
    Mr. Watkinson: The hon. Member had better look at the list. It is dearly set out.
    Following is the list:
    Estimated to cost over £100,000

    A. 19 Seaton Bank Railway Bridge Diversion, Ryhope.

    A.184 Gateshead-Felling By-pass.

    Estimated to cost under £100,000

    A.1 Widening of North End of Ferryhill Cut (Stage 2).

    A.19 Widening Tanners Bank, Norten-Stockton.

    A.19 Widening Castle Eden Railway Bridge.

    A.19 Widening at Billingham Swan Hotel to Kings Arms (Stage 2).

    Mr. Slaterasked the Minister of Transport and Civil Aviation, in view of the condition of many of the roads in County Durham due to mining subsidence, if he will make a special grant to the highway authority towards bringing such roads into good condition.
    Mr. Molson: Within the limits of the money available we already make grants to the county council for this class of work on classified roads.
    Mr. Slater: I am aware that the Ministry does, but is the Minister satisfied that the amount of money that he is allocating to this one—mining subsidence is affecting the highway considerably in Durham County—will meet the position which Durham wants to have met?
    Mr. Molson: I should not like to say, with regard to any part of the country, that the grants which we are able to make for maintenance and minor improvements are as much as we should like to provide, but I am satisfied that Durham is having its fair share of the money which is available.

    Improvement Scheme, Elephant and Castle
    Mr. Isaacsasked the Minister of Transport and Civil Aviation why the work due to begin this autumn on the Elephant and Castle road improvement scheme has been delayed; how long it will be before the programme of operations will begin; and how long it is expected to take to bring the road work to completion.
    Mr. Watkinson: There has been no delay here, as demolition work was started in September. Road works will start in 1957 and it is estimated that the whole scheme will be completed in 1960.
    Mr. Isaacs: I thank the right hon. Gentleman for that Answer, though I cannot agree that there has been no delay. I wish to ask whether the right hon. Gentleman is aware that the delay which has taken place has caused considerable consternation among small shopkeepers in the area, who are frightened that they will be pushed into the back streets and that the multiple shops will take their place? As these shopkeepers serve such an excellent purpose in the area and are

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    satisfactory to local residents, will the Minister see that the question of location is settled as soon as possible?
    Mr. Watkinson: Certainly. I am not sure how much it is my responsibility and how much the responsibility of the London County Council, but I will look into the point which the right hon. Gentleman has raised.

    Unused Land (Cultivation)
    Mr. Haymanasked the Minister of Transport and Civil Aviation whether, when land is purchased for a new road with dual carriageways, one of which will not be constructed for some years, he will arrange as far as possible for the unused land to continue under cultivation.
    Mr. Molson: Yes, Sir, whenever practicable.
    Mr. Hayman: Will the Minister also bear in mind that there are vast quantities of land lying unproductive throughout the country because of a lack of foresight in planning in the past; and in view of the importance of using every possible bit of agricultural land, will he do all he can, in conjunction with the Minister of Agriculture, Fisheries and Food, to see that this sort of thing does not happen again?
    Mr. Molson: My information does not entirely coincide with that of the hon. Gentleman, but I will gladly examine any case which he cares to bring forward. The chief difficulty arising about making use of any land acquired is an engineering one. When a bridge or something of that kind has to be constructed, it is often necessary that embankments and cuttings be made to the full width when the first part of the work is undertaken.

    Lea Bridge Road, Forest Rise
    Mr. Sorensenasked the Minister of Transport and Civil Aviation if he will state when the roadway repairs between Whipps Cross, Leyton, and Wanstead, are likely to commence.
    Mr. Molson: I assume that the hon. Member is referring to the Lea Bridge Road near Forest Rise. The repair of the present road surface is a matter for the Leyton Borough Council as highway authority. My right hon. Friend hopes, however, to make a grant soon towards
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    the borough council's scheme for constructing dual carriageways here, which it proposes to start in March, 1957.
    Mr. Sorensen: Is the Minister aware that a great deal depends on the payment of that grant, and that it seems to have been delayed for an inordinate length of time? Is he aware, moreover, that motorists who traverse that roadway suffer a great deal of inconvenience and hardship, if not injury?
    Mr. Molson: I do not think there has been any delay. As soon as the council is able to start the work the grant will be made. In point of fact, the council itself revised the plan after it had first received the approval of my Department, and the delay is due to that.

    Eastern Avenue (Extension, Leyton)
    Mr. Sorensenasked the Minister of Transport and Civil Aviation what progress he can now report on the projected extension of the Eastern Avenue through the Borough of Leyton; and if he is in a position to indicate how this will affect householders in Leyton.
    Mr. Molson: Steady progress has been made with the survey, and it should be completed by the end of the year. After that, a draft Order to fix the line of the road will be prepared. Until that has been done the effect of the scheme upon property owners cannot be determined.
    Mr. Sorensen: Will any plans be published so that the public may see exactly how the various householders are likely to be affected?
    Mr. Molson: Before any compulsory acquisition takes place, at the time when the Order is made plans will be published which everyone affected will be able to see.

    Stone-Leek Trunk Road
    Mr. Harold Daviesasked the Minister of Transport and Civil Aviation if he is aware of the number of accidents which take place at the crossing Cellar-head on the Stone to Leek trunk road in the Leek division; and whether he will now see that traffic signals are placed at this dangerous crossing.
    Mr. Molson: The main cause of accidents at this intersection seems to be

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    the disregard by motorists of the "Halt" signs. Additional steps have recently been taken to make this junction safer. In the conditions obtaining we are not satisfied that light signals would be appropriate here or would bring about a reduction of accidents.
    Mr. Davies: Is the Minister aware that is is about time that some notice was taken of local opinion about road traffic points that are dangerous? Is not the reason that many drivers miss the "Halt" sign that it is not clear and obvious, and is not the real answer, as local opinion and users of the roads say, that traffic lights are necessary at this point to avoid further accident and death?
    Mr. Molson: We do not agree that traffic lights are suitable in this case. The utmost care has been taken to deal with this matter. There were three accidents in May and June. As a result, there was a joint meeting between our divisional road engineer and the county surveyor, and they decided to extend the white line in the approaches to the A520 road and to mark "Slow" on both carriageways. Since then, there has been only one accident, which was due to a car swerving in order to avoid a pedestrian. Further improvements are in mind.
    Mr. Davies: May I press the Minister on this matter? His constituency is contiguous to mine. I would welcome a visit from him to this point when he is next in his constituency, and if I cannot convince him that lights are needed, I will offer him the hospitality of the best hotel in Leek.
    Mr. Molson: I shall have the greatest pleasure in accepting the hon. Gentleman's hospitality, either in the best hotel in Leek or in any other hotel.
    Mr. Harold Daviesasked the Minister of Transport and Civil Aviation if he will have erected conspicuous danger signs on both sides of the village of Whetley Rocks on the Stone to Leek trunk road in the Leek division.
    Mr. Molson: No, Sir. I understand that the Staffordshire County Council, which is the responsible highway authority, has recently erected "Double Bend" signs in this village, and these should be sufficient.
    Mr. Davies: Is the Minister aware that here is the same kind of centralised answer, instead of which local opinion—that of people who live in the area—should be accepted, whatever Government is in power? I know this road well and so, I believe, does the Joint Parliamentary Secretary. Clear signs are necessary. Will the right hon. Gentleman reconsider his Answer, at least?
    Mr. Molson: No, Sir. The purpose of traffic signs is the guidance of motorists and not the guidance of local inhabitants. For that reason my Department tries to have a uniform system of traffic signs all over the country as the best way of reducing traffic accidents.

    Road Works (Dual Carriageways)
    Mr. G. R. Straussasked the Minister of Transport and Civil Aviation what proportion of the 400 miles of new, realigned or widened roads which he hopes to authorise this year and the following two years will have dual carriageways.
    Mr. Watkinson: About 350 miles will have dual carriageways.
    Mr. Strauss: In regard to the other 50 miles, is it not ridiculous that when new roads are put down they have not all dual carriageways? Is it not wholly uneconomic to put down roads which are to be made later into dual carriageways at much greater expense, instead of putting them into that condition now? Surely this is very false economy and very foolish.
    Mr. Watkinson: In general, I agree with the right hon. Gentleman's view that a new road, and particularly a trunk or motor road, must have a double highway with a central reservation, but in this case, among the 50 miles are certain roads where new bridges are to be built. As this work is of a temporary or semi-temporary nature, a three-line highway is justifiable there.
    Mr. Strauss: To make three-line highways into dual carriageways later, as is intended, will cost far more money than if the work were done now. Surely this is a great waste of public money.
    Mr. Watkinson: Not always. The roads will form one track of the double highway.

  CIVIL AVIATION

    Helicopters
    Mr. Doddsasked the Minister of Transport and Civil Aviation what progress has been made in preparations for utilising helicopters for inter-city travel; and, in view of the importance of making early decisions with regard to landing sites in London on or in the vicinity of the River Thames, what consideration has been given to this aspect of the matter, and with what result.
    The Joint Parliamentary Secretary to the Ministry of Transport and Civil Aviation (Mr. John Profumo): We can make little further progress without more knowledge of the operational and economic characteristics of the twin-engined helicopters now under development. My right hon. Friend is studying, with the Chairman of British European Airways, how best to obtain this.
    The South Bank Air Station remains "on call" till the site is required for development, but little use has been made of it since the B.E.A. scheduled service came to an end. A design for a floating platform to accommodate single-engined helicopters has been discussed with the Port of London Authority and the London County Council, but the demand has not justified our putting this costly project in hand.
    Mr. Dodds: I thank the hon. Member for what he has just said, but is it not regrettable that when so much progress has been made in provincial cities there is so much dither and indecision in London, where it is vital that something should be done? Cannot the hon. Member do something to get some plans for the present instead of fine dreams for the future?
    Mr. Profumo: It is not a question of dreams for the future. I do not think that Her Majesty's Government would be right to expend large sums of money on a permanent air-stop for London until we really know how much space is required and what the characteristics are. I know that the House is interested in this matter, and I would point out that there does remain an "on call" site where helicopters can land in the centre of London.

    Prestwick Pioneer Aircraft (Certificate of Airworthiness)
    Mr. Rankinasked the Minister of Transport and Civil Aviation what reason prevents the Prestwick Pioneer getting a certificate of airworthiness.
    Mr. Watkinson: None, Sir. The single-engined Prestwick Pioneer has had a certificate of airworthiness since July, 1955. The twin-engined version was granted one on 16th November last. I am sorry that I was not aware, at the moment of replying to the hon. Member on this point in debate on 19th November, that the certificate had actually been issued three days before, and I am very glad to take this opportunity of correcting what I said then.

    Services (Middle East Countries)
    Mr. Beswickasked the Minister of Transport and Civil Aviation to what extent British civil aircraft are now affected as to landing rights or passage over the territory of Middle-East countries; and to state the details of such restrictions.
    Mr. Profumo: B.O.A.C.'s services to the Far East are being routed through Turkey, instead of through Beirut or Cairo, whilst all services to East and Southern Africa are being routed through Libya and the Sudan. B.E.A. is still operating to Cyprus and Tel Aviv. The services of Cyprus Airways and Aden Airways have been curtailed by the prohibition on flying over Egypt and Syria. Landings in Cyprus are subject to special arrangements and overflying is banned.
    Mr. Beswick: The Joint Parliamentary Secretary has not answered my Question at all. Will he look at this matter again and see the number of countries in the Middle East over which British operators cannot now fly and cannot land for refuelling or other purposes? Is not a good deal of traffic being lost to other than British operators? Is anything being done to remedy these difficulties or mend this damage caused by the British Government's policy?
    Mr. Profumo: I have answered the Question which is on the Paper, as the hon. Gentleman will see if he looks at it carefully. I give him the assurance that my right hon. Friend is in the closest touch with the Corporations to see that they suffer no inconvenience.
    Mr. Beswick: May I remind the Joint Parliamentary Secretary that there are operators other than the two Corporations? Has he considered the difficulties which those other operators are suffering?
    Mr. Profumo: We have no evidence of any discrimination.

  TRANSPORT

    A.1 Road, Ferryhill (Speed Limit)
    Mr. Slaterasked the Minister of Transport and Civil Aviation if he will give consideration to the restriction of the speed limit from the commencement of the Bridge House Estate, Ferryhill, to the overhead bridge on the A.1 road, Ferryhill.
    Mr. Molson: We have considered this suggestion, but the length on which there is frontage development on both sides is too short to warrant the imposition of a speed limit here.
    Mr. Slater: Is the right hon. Member aware that there have been petitions in the area relative to the dangerous part of the district through which this road goes? Have we to wait until something serious occurs before the Minister is prepared to accede to the request set out in th Question?
    Mr. Molson: As I indicated last night, in the Adjournment debate, there are general principles which we apply when we consider whether to impose a 30 m.p.h. speed limit. In this case the conditions are not satisfied.

    British Road Services (Motor Fuel)
    Mr. Doddsasked the Minister of Transport and Civil Aviation what effect the petrol shortage has had on British Road Services in respect of employment.
    Mr. Watkinson: I am informed that the cuts in motor fuel have not yet made necessary any reduction in the staff of British Road Services.
    Mr. Dodds: Can the Minister deny that, as a consequence of this cut, many drivers employed by British Road Services have had their earnings halved, some of them having dropped to earnings of between £7 to £8 a week? Is it not a fact that people like those, who can ill
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    afford it, have to pay a very heavy price for the foolish policy of the Government?
    Mr. Watkinson: I am not aware of that at all. The facts as I know them are that the British Transport Commission has tried, as every other industry has been trying, to limit the amount of petrol it uses. When doing that the Commission has been most careful to see that no man has been discharged. In that it has acted very properly.
    Mr. G. R. Strauss: Can the Minister give an assurance that the cuts which it has been necessary to make in the use of petrol will apply equally on the same basis to British Road Services as to private road hauliers?
    Mr. Watkinson: Yes.

    Driving Tests (Suspension)
    Mr. du Cannasked the Minister of Transport and Civil Aviation for how long it is proposed to suspend driving tests; if he is aware of the serious effect this decision has had on the business of driving schools; and if he will make a statement.
    Mr. Haymanasked the Minister of Transport and Civil Aviation whether he will reconsider his policy of suspending driving tests, in view of the loss of livelihood of many driving instructors and of the important part they play in contributing to an improvement of road safety.
    Mr. Watkinson: The suspension of driving tests is an inevitable consequence of the decision to introduce petrol rationing. I cannot say how long the suspension will continue but I am most anxious to resume tests as soon as circumstances permit.
    Mr. du Cann: While thanking my right hon. Friend for that Answer, may I ask him whether, in order to alleviate the hardship that may be caused to owners of driving schools and their staffs if the suspension continues for a long time, he will consider the introduction of other schemes, such as were introduced during the war, to enable these schools to continue in business for the time being?
    Mr. Watkinson: Yes; as I have said in my Answer, I am most anxious to resume driving tests as soon as possible,

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    and I am perfectly prepared to examine any proposal that will help towards that end.
    Mr. Hayman: Will the Minister bear in mind that these driving instructors are vital to any improvement in road safety, and that if he allows this comparatively small corps of instructors to be entirely disbanded it may be very difficult to recruit them again? Will he reconsider his decision?
    Mr. Watkinson: I quite agree with the hon. Gentleman, and if he will read carefully what I have just said in my supplementary answer, I think he will see that I have the matter in mind.
    Commander Donaldson: Is my right hon. Friend aware that in some areas Service men coming out of the Services who were about to take up civilian employment which requires them to pass a driving test are being precluded from taking such tests? Would he be prepared to look into individual cases if they are sent to him?
    Mr. Watkinson: No, I cannot breach the general rule that at the moment all driving tests are suspended. What I have said is that I am very anxious to find some way of starting them again as soon as possible, even on a limited basis.
    Mr. V. Yates: Will the Minister bear in mind the serious situation that has developed in Birmingham, where 50 driving schools with waiting lists up to the end of January are likely to be put out of business, and where 250 of their drivers are suddenly facing the prospect of unemployment? Will he really do something to try to keep intact this organisation in Birmingham, in the interests of road safety?
    Mr. Watkinson: I quite agree with the hon. Gentleman. I think that every hon. Member has similar cases in his constituency—I have in my constituency—and it is for that reason that I am so anxious to try to find a solution.

    Large Slow-Moving Vehicles
    Captain Pilkingtonasked the Minister of Transport and Civil Aviation whether he will take steps to ensure that large and slow-moving transporter vehicles are required periodically to draw into lay-bys to enable the accumulated traffic behind them to pass.
    Mr. Watkinson: I hope that drivers of large slow-moving vehicles will make use of suitable lay-bys in the way suggested by my hon. Friend. There are obvious difficulties about framing a regulation to deal with the matter, and I prefer to rely on the good sense of drivers and of the police, who frequently escort these loads in the more congested areas.
    Captain Pilkington: While my right hon. Friend's answer is satisfactory so far as it goes, could he not use a little more propaganda than that in order to get this state of affairs, which he agrees is desirable, into effect?
    Mr. Watkinson: I am sure that my hon. and gallant Friend's Question will do something to that end.
    Viscount Hinchingbrooke: Does my right hon. Friend recognise that this is something of a problem, if not a serious nuisance, to motorists in the summer months and would he not act a little more forcefully, in the same way as the Service Ministers, who have issued explicit instructions, by contacting the main firms involved through the licensing authorities or divisional road engineers?
    Mr. Watkinson: I will certainly look at that suggestion. It might be possible. I believe that in many cases my divisional road engineer has to be consulted before the load is moved.

    Road Transport (Alternative Facilities)
    Mr. Fletcher-Cookeasked the Minister of Transport and Civil Aviation if he will issue a general direction to the British Transport Commission, that it should proceed no further with the closure or dismantling of any railway line whilst the present shortage of oil fuel continues.
    Mr. Watkinson: No, Sir. The Commission has assured me that in present circumstances it will have special regard to the importance of maintaining alternative facilities to road transport.
    Mr. Fletcher-Cooke: Is it not wrong that the railways, including the Transport Commission, should be tearing up rails in the Isle of Wight and elsewhere which might well be needed over the next six months or more?
    Mr. Watkinson: So far as the Isle of Wight is concerned, I would say that

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    where a railway is in process of being dismantled it is not possible to make it safe again for use in a reasonable time. I am sure that the British Transport Commission will not, in present circumstances, start dismantling lines of which it can make adequate use.

    Staggered Working Hours, London (Committee)
    Mr. Ernest Daviesasked the Minister of Transport and Civil Aviation if he will now name the members of the committee appointed to consider means for the staggering of working hours to relieve traffic congestion.
    Mr. Watkinson: Yes, Sir. I have now formally appointed this Committee with the terms of reference which I circulated with the Answer I gave the hon. Member on 25th July, and it held its first meeting yesterday morning. I am circulating a list of the members in the OFFICIAL REPORT.
    Mr. Davies: I am grateful that at last this Committee has been appointed, but

    Chairman:

    Mr. J. FITZGERALD, J. P.

    Members:

    Representing

    Mr. W. H. Roy Blankley, J.P.

    …

    …

    The Corporation of London.

    Mr. A. E. Samuels, L1.B., J.P.

    …

    …

    The London County Council.

    Alderman W. J. Ridd

    …

    …

    The Metropolitan Boroughs' Standing Joint Committee.

    Alderman C. P. Russell, C.V.O., J.P.

    …

    …

    The Metropolitan Boroughs' Standing Joint Committee.

    Mr. L. G. Burleigh, M.Inst.T.

    …

    …

    The Transport Users' Consultative Committee for the London area.

    Mrs. D. R. Robinson

    …

    …

    The Transport Users' Consultative Committee for the London area.

    Mr. G. T. Dickins, A.M.Inst.T

    …

    …

    The British Transport Commission.

    Mr. A. Bullock

    …

    …

    The British Employers' Confederation.

    Mr. Vernon Elwes, O.B.E.

    …

    …

    The British Employers' Confederation.

    Mr. W. H. Vickers

    …

    …

    The British Employers' Confederation.

    Mr. H. Chapman

    …

    …

    The Trades Union Congress.

    Mr. C. T. H. Plant

    …

    …

    The Trades Union Congress.

    Mr. H. Solomons

    …

    …

    The Trades Union Congress.

    Mrs. A. Munro

    …

    …

    Ministry of Transport and Civil Aviation.

    Goods Vehicles (Rear Lighting)
    Sir W. Anstruther-Grayasked the Minister of Transport and Civil Aviation whether his attention has been drawn to the large number of fatal accidents attributable to stationary lorries drawn up on the highway the rear lights of which are insufficient to illuminate the vehicle although complying with the letter of the law; and whether he will consider action in the matter.
    may I ask the Minister to request it, as a matter of great urgency, to make recommendations to him with a view to introducing staggering during the present emergency? Does he appreciate that with the great increase there will be in the use of the public services, the staggering of working hours is essential today?
    Mr. Watkinson: I do realise that, and I have already asked the Committee to deal with that as its first task.
    Mr. Ellis Smith: Will the Minister give an undertaking that in all cases where operations are proposed which affect industrial workers, who have already suffered enough, the local trade union representatives will be consulted?
    Mr. Watkinson: Perhaps the hon. Gentleman will look at the members of the Committee and see the eminent trade unionists who are serving on it.
    Mr. Ellis Smith: I asked about local representatives.
    Following is the list of members:
    Mr. Molson: Official statistics show that during the year 1955 27 accidents involving personal injury were attributed by the police wholly or partly to inadequate rear lighting on goods vehicles. In the near future, we propose to circulate for the comments of interested organisations a draft regulation which would require new vehicles of all types to be equipped with rear lights which comply with the British Standards Institution specification for tail lamps.
    Mr. Nicholson: Why not the old vehicles, too? Is the Minister aware that I remember bringing this question to the Ministry of Transport nearly twenty years ago? The Ministry is very slow.
    Mr. Molson: My hon. Friend may have brought the matter up twenty years ago, but on 7th April, 1954, my right hon. Friend the present Secretary of State for the Colonies, when he was Minister of Transport and Civil Aviation, introduced some new regulations. They required that the tail lights shall be not less than 2 in. in diameter and not less than 6 watts in power, and fitted in a prescribed position on the vehicle. At the time when my right hon. Friend introduced the new regulations, he gave an undertaking that if more detailed specifications were subsequently introduced, the Government would not require people to remove the lamps which had been put on to comply with the regulations which he was then making.
    Mr. Benn: Can the Minister explain why it is that no buses in the London area require to have two lights at the back, and why they should be the single exception in this matter?
    Mr. Molson: Because, in normal circumstances buses are illuminated and it is not considered necessary to require that they should carry two rear lamps.

    Goods Vehicles (Fuel Ration)
    Mr. Allaunasked the Minister of Transport and Civil Aviation, in view of the serious effects caused by taking British Road Service lorries off the road, if he will instruct his regional transport commissioners to allocate a substantial portion of the supplementary ration reserve to British Road Services on the ground of public need; and if he will make a statement.
    Mr. Watkinson: Supplementary rations for goods vehicles will be issued according to the work to be done, irrespective of the ownership of the vehicles.
    Mr. Allaun: Is the Minister aware that many "fly-by-night" private haulage firms are meanwhile obtaining all the fuel they want? Will the Minister give the House an assurance that he will not ask British Road Services to take a further 10 per cent. cut?
    Mr. Watkinson: There is no need to give that assurance, because I did not ask British Road Services to take a 10 per cent. cut in the first place. B.R.S. did it as a contribution, as did other firms. As I have said, in this matter everyone will be treated alike and judged on the value of their work and not on the ownership of the vehicles.
    Mr. Gresham Cookeasked the Minister of Transport and Civil Aviation whether he is aware that under the road fuel rationing scheme, no industrial user of transport will be able to apply to the regional transport commissioner for supplementary fuel allowances until he has exhausted half his basic ration; and whether, in view of the fact that this makes long-term planning impossible, he will arrange for this condition to be altered so that users of road transport can apply at the earliest practicable moment for whatever supplementary ration they feel they may need and get a decision thereon at the earliest possible date.
    Mr. Watkinson: I issued a Press notice last week and informed the associations and others concerned that operators may apply for supplementary fuel rations for goods vehicles as soon as they have received their basic ration.
    Mr. Gresham Cooke: May I congratulate my right hon. Friend—[HON. MEMBERS: "Oh."]—on ironing out these difficulties, and ask him to apply his excellent mind to the further problem facing commercial operators, that the basic ration for commercial vehicles, instead of lasting for about 50 per cent. of the normal runs, seems to be lasting only 30 per cent., one-and-a-half days instead of two-and-a-half days? Will he apply his mind to that problem?
    Mr. Watkinson: I will apply my mind to anything, particularly something which I think is the wish of the whole House, and that is that, rationing having become inevitable, we make it work as easily and fairly as possible.

  SHIPPING

    Port Facilities (Large Tankers)
    Commander Maitlandasked the Minister of Transport and Civil Aviation what plans he has for enabling British

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    ports to provide all facilities for the giant tankers now being contemplated.
    Mr. Watkinson: The oil companies and the other interests responsible for providing facilities are well aware of present trends in tanker construction and are, I understand, planning developments to meet them.
    Commander Maitland: Can my right hon. Friend assure me that the Government are taking a lead in bringing the various interests together in this matter, and can he say whether any progress is being made in improving facilities at Milford Haven?
    Mr. Watkinson: In that specific case I think it is correct to say that the Government, and particularly my Department, have given a lead, where possible, to help in bringing the parties together.
    Sir J. Hutchisonasked the Minister of Transport and Civil Aviation how many ports in Great Britain have facilities for discharging tankers of a deadweight capacity of 35,000 tons and 70,000 tons, respectively.
    Mr. Profumo: There are facilities for discharging loaded tankers with a deadweight capacity of 35,000 tons at Finnart on the Clyde, at Fawley, at the Isle of Grain, at Thameshaven and at Coryton. There are at present no ports capable, without modification, of discharging a fully loaded tanker of 70,000 tons.
    Sir J. Hutchison: In view of the tendency for the size of tankers to go on increasing, thereby avoiding the necessity to go through the Suez Canal because they find it cheaper to go round the Cape, is it not necessary that this country should be properly provided with ports that can handle this traffic?
    Mr. Profumo: Yes, Sir, but broadly speaking that is a responsibility of the oil industry and the port authorities. My right hon. Friend is in the closest consultation with both.
    Mr. Woodburn: Has not Loch Long these facilities for unloading tankers, although it has not port facilities?
    Mr. Profumo: I do not think that it has facilities for the size of tanker referred to in the Question.

    Suez Canal (Diverted Vessels)
    Mr. P. Noel-Bakerasked the Minister of Transport and Civil Aviation at what hour on what day instructions were given to British shipowners to divert their vessels from the Suez Canal area; and what compensation Her Majesty's Government intend to pay to the owners whose vessels were diverted from the north or south entrance to the canal around the Cape.
    Mr. Watkinson: Her Majesty's Government issued no instructions to British shipowners to divert their vessels from the Suez Canal area. An Admiralty announcement in the early evening of 30th October advised merchant shipping to keep clear of the Suez Canal and Egyptian and Israeli waters. It is not intended to pay compensation to shipowners who have diverted their vessels round the Cape.
    Mr. Noel-Baker: Since the Admiralty warned British ships not to go into the Canal on the afternoon of the 30th, is it not clear that there were no British ships in the Canal when our bombing started against Egypt; and, if so, why did the British Government say that the operation was undertaken in order to protect £50 million of British shipping and hundreds of British citizens in their passage through the Canal?
    Mr. Watkinson: What is quite clear is that at the time when it was quite obvious that Israeli forces might reach the Canal at any moment, the Admiralty issued to the shipping of all nations a general warning, which was broadcast by every possible means and which was available to be received by every type of ship. No doubt a great deal of foreign shipping as well as our own took advantage of it.
    Mr. Noel-Baker: May I press the Minister to say why, since the warning was given in the afternoon and it was known that the ships would not be in the Canal when the bombing started, we were told that night that there would be £50 million worth of shipping and hundreds of passengers in the Canal?
    Mr. Watkinson: The right hon. Gentleman can press me as much as he likes. He asked for the facts and I have given them to him. If he does not like them, I am sorry.

    Cookham Lock (Reconstruction)
    Mr. Grant-Ferrisasked the Minister of Transport and Civil Aviation why, in view of the fact that the Thames Conservancy have closed Cookham Lock for a period of six months, thus causing complete stoppage of navigation of the Thames, he gave his sanction to the raising of a loan by the Conservancy for the works which have given rise to this action.
    Mr. Watkinson: I agreed in principle to the raising of this loan after satisfying myself that the reconstruction of this old lock is necessary.
    Mr. Grant-Ferris: Does my right hon. Friend realise that this waterway is completely blocked for six months?—[Laughter.] Although there is no suggestion of taking this issue to the United Nations, will he realise that it causes great hardship to those engaged in navigation, particularly in October and March; that it may go on into April if there is a hard winter, and that no offer has been made to refund lock dues?
    Mr. Watkinson: Perhaps I may give my hon. Friend an answer which would be appropriate in a wider sphere. We are dealing with and curing a temporary blockage here in order to avoid a much longer blockage later.

CENTRAL OFFICE OF INFORMATION
Sir T. Mooreasked the Prime Minister whether he will consider reforming the Central Office of Information and appointing a Minister so that an authoritative picture may be given to the world of Britain's attitude and actions in the Middle East and elsewhere.
The Lord Privy Seal (Mr. R. A. Butler): I have been asked to reply.
My hon. Friend's suggestion has been considered by Her Majesty's Government, who feel that these vital objectives can and should be achieved in other ways.
Sir T. Moore: I thank my right hon. Friend for that reply, but will he bear in mind—as I am sure he does—that many of the misunderstandings that exist at present in the United Nations, and in the
402
United States, arise purely from ignorance of our motives and our actions?
Mr. Butler: I do not think that anyone can possibly underestimate the importance of the publicity angle in this matter, and we are, and have been, making arrangements whereby we put our case in the best possible way, both abroad and at home.
Mr. P. Noel-Baker: Does the right hon. Gentleman's Answer mean that he and the Foreign Minister have not been giving an authoritative picture of our actions and attitude?
Mr. Butler: I have just had the honour and pleasure of meeting the Foreign Secretary and I think that everybody, even those who disagree with him, realises that he has put very fairly and squarely before the United Nations the point of view of this country.
Mr. Gaitskell: Can the right hon. Gentleman give an assurance that taxpayers' money will not be used to justify the policies of the Conservative Party?
Mr. Butler: I would only give an assurance that the Government will use to the utmost extent the resources at their disposal to make their information services as good as possible.

BALLOT FOR NOTICES OF MOTIONS
  Central Office of Information
  Mr. Drayson: I beg to give notice that, on Friday, 14th December, 1956, I shall call attention to the work of the Central Office of Information, and move a Resolution.
  Herring Industry
  Mr. Younger: I beg to give notice that, on Friday, 14th December, 1956, I shall call attention to the state of the herring industry, and move a Resolution.
  Scientists, Technologists and Engineers
  Mr. Ellis Smith: I beg to give notice that on Friday, 14th December, 1956, I shall call attention to the need to increase the number of scientists, technologists and engineers, and move a Resolution.
BILL PRESENTED
  GHANA INDEPENDENCE
  Bill to make provision for, and in connection with, the attainment by the Gold Coast of fully responsible status within the British Commonwealth of Nations, presented by Mr. Lennox-Boyd; supported by Mr. R. A. Butler, the Chancellor of the Exchequer, and Lord John Hope; read the First time; to be read a Second time Tomorrow and to be printed. [Bill 34.]
  BUSINESS OF THE HOUSE
  Proceedings on the Homicide Bill exempted, at this day's Sitting, from the provisions of Standing Order No. 1 (Sittings of the House).—[Mr. Edward Heath.]
ORDERS OF THE DAY

  HOMICIDE BILL
  Considered in Committee.
  [Sir CHARLES MACANDREW in the Chair]

  HOMICIDE BILL

    Clause 2.—(PERSONS SUFFERING FROM DIMINISHED RESPONSIBILITY.)
    Amendment moved [27th November], in page 2, line 1, leave out "defence" and insert "prosecution."—[Mr. Paget.]
    3.35 p.m.
    Mr. R. T. Paget: Last night, when we adjourned our debate, I was in the process of explaining this Amendment, the effect of which would have been to place on the prosecution the responsibility for proving that in a case of murder the accused was in a state of mind to make him responsible for the murder. The question as to the burden of proof was dealt with in a passage which was quoted in part—but only in part—by the Attorney-General yesterday. It is the famous judgment of Lord Sankey in Rex v. Woolmington, in the House of Lords.
    What Lord Sankey said was:
    "Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional, and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation

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    be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.…"
    There we see that murder is a crime involving homicide and involving malice. It is for the prosecution to prove both the act and the intention. Unless it shows that there was a mind capable of forming the intention surely it has not done that. Lord Sankey referred to the exception in the case of insanity. I have tried to see how that exception arose. It is, in fact, an exception which arose from the M'Naghten judgments. Further to the M'Naghten case, insanity or sanity, like anything else, was a matter for the jury to decide upon the evidence and only if the jury were satisfied of the man's responsibility could the jury convict.
    Perhaps I might just refer to the passage by Erskine on the Hadfield case, in which he says:
    "… but the premises from which they reason, when within the range of the malady, are uniformly false:—not false from any defect of knowledge or judgment, but, because a delusive image, the inseparable comparison of real insanity, is thrust upon the subjugated understanding, incapable of resistance, because unconscious of attack. Delusion, therefore, where there is no frenzy, or raving madness, is the true character of insanity … but to deliver a lunatic from responsibility to criminal justice, above all, in a case of such atrocity as the present, the relation between the disease and the act should be apparent. Where the connexion is doubtful, the judgment should certainly be most indulgent, from the great difficulty of diving into the secret sources of a disordered mind; but still, I think, that, as a doctrine of law, the delusion and the act should be connected."
    Thus, where the connection is doubtful, the judgment should certainly be most indulgent.
    Therefore, it would certainly appear that, if the jury were in doubt, it was their duty, as always when they are in doubt, to find a merciful verdict. However, all that changed with the M'Naghten decision. The M'Naghten decision is a very peculiar one because it is not a decision at all. The decision in the M'Naghten case was that M'Naghten was not guilty by reason of insanity, and that was the finding of the jury upon a direction which left insanity broadly to it and gave it no indication that it was a matter for the prisoner to prove.
    Thereupon, Queen Victoria, as was observed the other day, finding it inconceivable that anybody who wished to shoot a Conservative Prime Minister was
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    mad, proceeded to ask that the matter be reconsidered. The judges, upon the request of Parliament, gave certain general pronunciations. I believe it is the only instance in our law in which the courts have followed general pronunciations given not with application to particular facts but as to general pronunciations on the law.
    The Attorney-General (Sir Reginald Manningham-Buller)indicated dissent.
    Mr. Paget: I see the Attorney-General shaking his head. Is there any other case?
    The Attorney-General: If the hon. and learned Gentleman reads the Sussex Peerage case, he will find another illustration.
    Mr. Paget: I bow to the knowledge of the Attorney-General in respect of the Sussex Peerage case. I claim no expertise in the privileges of another place and the rules made for that special procedure.
    Certainly, in the more general law I believe the example which I have given is the only instance where the law has been taken not from a judgment in a specific case but from general pronunciamentoes made in answer to abstract questions not applicable to particular factors. The Sussex Peerage case, with which I admit total unfamiliarity, may be an exception in a very special department of law. Perhaps we may now take it that there are two exceptions, those of the Sussex Peerage case and the M'Naghten Rules.
    I think that it is the answer to the second question where we first have the burden of proof put clearly. The second question was:
    "What are the proper questions to be submitted to the jury where a person alleged to be inflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder for example), and insanity is set up as a defence? "
    The answer is:
    "… that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction …"
    It is upon that basis that we have this exception to what Lord Justice Sankey described as "the golden thread" which runs through the skein of the British criminal law.
    3.45 p.m.
    Mr. Sydney Silverman: Does my hon. and learned Friend think that the extract which he has just read out is sufficient to found the doctrine that the onus should shift to the defence? It is one thing to say that sanity is presumed until the contrary is proved, just as innocence is presumed until the contrary is proved, but that does not relieve the prosecution from the necessity of proving the contrary.
    Mr. Paget: All I was saying was that that appears to be the point from which directions to the jury clearly began to say, "The burden of proof in insanity is upon the defence". Before that, the directions which I have read seem to have left it quite nebulous.
    Mr. Silverman: I was trying to induce my hon. and learned Friend to agree with me, or to delude him into agreeing with me, that, although what he is saying is perfectly true and that from that point and on that foundation it became the practice to direct juries that the onus of proof of insanity was on the defence, it was rather a slender foundation on which the doctrine was built.
    Mr. Paget: I would go further than my hon. Friend. I think the whole M'Naghten Rules are a slender foundation, particularly in view of the circumstances in which they were made and the very special emotions which formed the background of the pronunciamento on law—which should not have been made in emotional circumstances—in view of the Royal interference in various matters. However, simply as a matter of time, that is where it appears to have come into English law.
    We are considering something quite different. We are introducing into English law the Scottish theory of diminished responsibility; that is to say, although the man may not be so mad that he does not know the nature and quality of his act, or does not know that what he is doing is wrong, none the less either by reason of being a mental defective or having had a serious head injury, or for various other reasons which are set out—I do not propose to go into them in any detail—he cannot be held to be fully responsible for his actions and, therefore, his act is to be reduced from capital murder to plain murder.
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    I would say that certainly the precedent of insanity in the M'Naghten Rules is not one which it is at all wise to follow. It is quite unnecessary to follow it. We are starting something quite new. Why do we not stick to the principle that if the prosecution desires to prove capital murder, capital murder is for it to prove, and capital murder involves a mental capacity capable of that sort of decision? In theory, therefore, I submit that this is something which the prosecution ought to prove.
    However, in questions of burden of proof, it is not so much a question of theory as a question of convenience, and, here again, the whole of the convenience lies upon this issue being proved by the prosecution, because the prosecution are the people who have really got the evidence and the defence has not. The prosecution are the people who are in a position, without inhibition, to produce the evidence; the defence is not.
    When a man is arrested for murder, he is taken into prison. Bail is not granted in murder cases. I believe that the man is normally put straight into the prison hospital. In fact, I believe that invariably happens. The man is there expressly for observation. He is being observed by the Crown's doctors, and consultants may be called in to observe him. The whole opportunity of studying the man's mind is deliberately taken, and is there for the Crown. The Crown it is who is in a position to place before the jury the vital evidence as to the state of a man's mind, because the man's mind has been examined by the Crown.
    After all, as I said last night, the more mad a person is the more difficult it is to get responsible instructions from him.
    Mr. Leslie Hale: To the important point that my hon. and learned Friend is making, there is the important addendum that if the average prisoner is able to get a doctor he can only have a doctor who goes to see him once; and the line of cross-examination on this issue at the trial always is, "You have seen him only once. What can you know about him, as against the prison doctors who have had him under observation for weeks?"
    Mr. Paget: I am most grateful for that observation. I was, in fact, about to come to that.

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    There are two difficulties facing the defence. First, there is the difficulty of presenting the case at all, because the madder a man is the more difficult it is to get instructions from him. The sort of case which comes into the category of diminished responsibility—the incomplete personality, the sort of personality which has not made peace with itself or won confidence in itself—involves a desperate sensitivity to any suggestion with regard to that incompleteness. That type of man is the one man from whom it is most difficult to get any authority to raise this issue. Quite often, he would rather die than have it raised.
    That is the sort of problem we are up against. But even when we are in a position to raise this issue, then, as my hon. Friend the Member for Oldham, West (Mr. Hale) has said, it is so difficult to establish it, when the defence doctor can see the man only occasionally while the prosecution doctor is with him all the time. Always the line of cross-examination is, as my hon. Friend has said, "Doctor So-and-So, the prison doctor, a psychiatrist of great experience, has seen him all this time. You have seen him for one hour. Would you really put your opinion against that of the man who has had so much more opportunity than you have?" It is extremely difficult.
    It is surely so much better that the prison doctor should be there, as indeed he ought to be, to establish this issue positively by his evidence. He can then be cross-examined on the inconsistencies and difficulties of his story. The points of difference—which do not arise simply from the quantity of the observation but are matters of principle and theory—can be identified, and may be challenged by the defence.
    I say, as I said last night, that this Amendment goes only to the entirely new defence to capital homicide, that of diminished responsibility. That is a new doctrine, a new defence which, in my submission, should follow the old rule. But when we come to the new Clauses, we shall certainly seek to bring insanity itself within the scope of the same golden thread, described by Lord Sankey, as something that it is the duty of the prosecution to establish, being, in itself, one of the elements of guilt in murder—perhaps the most important of all those elements.
    The Attorney-General: I have listened to what the hon. and learned Gentleman the Member for Northampton (Mr. Paget) has said, both today and last night. I am sure that he will agree that a lot of what he said today he also said last night. I do not make any complaint about that. I am sorry that I have to disappoint him—but I am sure that I will not surprise him—by saying that the Government are not prepared to accept the Amendment.
    The Amendment seeks to put on the prosecution the onus of establishing that the accused is liable to be convicted of murder. That is to say, it seeks to put upon the prosecution the onus of proving that the accused is not suffering from a serious abnormality of mind substantially impairing his mental responsibility for his actions. The hon. and learned Gentleman has indicated that he will seek to secure a change of the onus in regard to insanity, so that insanity and diminished responsibility would have to be established in the same way.
    The general rule is, of course, that a person is presumed to be sane and responsible for his actions unless the contrary is proved. I must say that I was not clear whether the hon. and learned Gentleman was suggesting that that general rule—which has existed since 1843, at least—should be departed from only in the case of murder, or should be departed from also in the case of other criminal offences. If it is to be a general rule that before a person is to be convicted of any crime his sanity should be proved, and that it should be proved by the prosecution that he was not suffering from a serious abnormality of mind, it will certainly add considerably to the length of all trials, and, indeed, would serve no desirable end.
    Mr. Paget Mr. Paget rose—
    The Attorney-General: No. I did not interrupt the hon. and learned Gentleman, and I would ask him not to interrupt me. No doubt he will speak again—I feel quite sure that he will speak again—and I would prefer to carry on with the argument, and put it before the Committee.
    Mr. Paget: The right hon. and learned Gentleman asked me a question.
    The Attorney-General: I did not ask a question. I was saying that the hon.

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    and learned Gentleman had not indicated whether he thought that was to be the rule in regard to murder, or a general rule. I was indicating what the general rule is, and one of the objections to accepting this Amendment is that, if it were to be made a general rule, the consequences would be quite fantastic. It would mean that before anyone was convicted of driving to the danger of the public the onus should be upon the prosecution—
    Mr. Paget Mr. Paget rose—
    The Attorney-General: No, I shall not give way.
    Mr. Paget: On a point of order. This Amendment refers, Sir Charles, to the defence of diminished responsibility, which is applicable only to the charge of murder. In the course of my speech, I indicated that there might subsequently be a new Clause which dealt with the defence of insanity. When that new Clause becomes available, one will be able to see whether it will apply to murder, or to criminal responsibility generally. Until it does become available, I submit that the learned Attorney-General's observations are out of order.
    The Chairman: I must deal with one thing at a time. I am not good at answering lawyers' points of order. Perhaps it will be sufficient to discuss the new Clause when we reach it, but I must say that I thought that the hon. and learned Gentleman's argument was a little wide. It seems quite a simple point.
    Mr. S. Silverman: Further to that point of order. It is important, Sir Charles, that we should keep our discussions relevant to the question which we are considering—
    The Attorney-General: Hear, hear.
    4.0 p.m.
    Mr. Silverman: I am glad that I have the right hon. and learned Gentleman's approval.
    I suggest, with great respect, that his last argument is completely irrelevant, and out of order on that ground. What we are dealing with here is an Amendment to a Clause, and that Clause is limited to the question of diminished
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    responsibility. All that my hon. and learned Friend is seeking to do is to alter a subsection which is already in that Clause.
    In the Clause, the onus of proof of diminished responsibility rests upon the defence. My hon. and learned Friend the Member for Northampton (Mr. Paget) disagrees with that, and his Amendment is confined to transferring that onus from the defence to the prosecution. That is all that is before the Committee. All this fine-spun irrelevance of the Attorney-General about what would happen in cases involving a charge of driving a motor car dangerously, whether it be to his knowledge or not, has nothing whatever to do with the question which my hon. and learned Friend is proposing.
    In view of the complexities of the Bill, and the Government's insistence on being in a great hurry about it, we had better not waste such time as the Government have vouchsafed to us to consider it.
    The Chairman: I thank the hon. Gentleman. I hope he will assist me, in the later stages, in getting through as quickly as we can.
    Mr. Silverman: I always do.
    The Chairman: I am very much obliged to the hon. Gentleman. It is difficult for a layman, when confronted with these abstruse legal arguments, to say what is relevant and what is not.
    Mr. Hale: On a point of order. May I put a perfectly plain, straightforward House of Commons argument? The House is now in Committee, and the object of the Committee stage is for both sides to try to collaborate in obtaining clarity and lucidity. May I submit a short example of the position that we are in? I understood the Attorney-General to say that this Clause applied to capital murder. I have referred to the Clause and it applies to all kinds of murder. If the Attorney-General refuses to give way, we shall be in this position, that we shall cease to be a Committee, unless we start the discussion all over again. If we start on the wrong grounds, if he does not give way and we have some elucidation afterwards, it will take up a large amount of the time to reach finality on any point.
    I know that there is no law about this, but there are certain courtesies of the House. Surely it has always been the

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    practice of Ministers to give way to a reasonable and courteously put point so that hon. Members may be seized of the problems which are in their minds. If we are going back on that practice, we are surely going back on the whole procedure of this House for generations, which procedure involves the fact that, in Committee, there should be give and take, that there should be the hearing of reciprocal and conflicting arguments, and that we should not formalise it into a series of prepared speeches, thus depriving us of a chance of finding out what the difficulties are.
    The Chairman: If an hon. Member who has the Floor does not give way, other Members should resume their seats.
    Mr. Silverman: The right hon. and learned Attorney-General should be relevant if he will not give way.
    The Chairman: It is for me to judge whether the right hon. and learned Gentleman is irrelevant. I have not ruled him as being irrelevant. If I were expected to order hon. Members to give way whenever other hon. Members wished to intervene, my work would be very difficult, and, in fact, impossible.
    The Attorney-General: I am always prepared to give way, but I do not like giving way in the middle of a sentence before I have completed making a point. I am always prepared to give way to reasonable interventions, and to a reasonable degree, but when one is seeking to develop an argument it is somewhat discourteous to interrupt in the middle of making a point.
    For the hon. Member for Oldham, West (Mr. Hale) to talk about give and take in the course of our discussions is, to me, rather astonishing, and I hope to indicate to you, Sir Charles, why the remarks that I was making were entirely relevant to the argument which the hon. and learned Member for Northampton had addressed in support of the Amendment.
    I fully appreciate that this Amendment seeks only to change the onus of proof in relation to diminished responsibility, but the hon. and learned Gentleman knew full well that if he was not able to open the discussion to a wider ambit than that, his argument was vulnerable because it would be quite impossible
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    to have the onus of proving diminished responsibility on the prosecution and the onus of proof of insanity resting upon the defence. Therefore, in the course of developing his argument on an Amendment devoted to diminished responsibility, he went on to say—and I did not suggest that it was irrelevant—in order to counter the obvious criticism of this Amendment if it stood alone, that what he was seeking to ensure was a change of the onus of proof not only in relation to diminished responsibility but also in relation to insanity.
    I am endeavouring to deal, I hope fully and completely, with the argument advanced because it is a very fallacious and unsound argument. I deal with it solely on the basis that it would be quite impracticable to put the onus of proving diminished responsibility on the prosecution and leave the onus of proving insanity upon the defence. Therefore, I was trying to reply to the hon. and learned Gentleman's argument in the breadth in which he had advanced it.
    If the onus of proof as to mental capacity is to be altered, whether it be diminished responsibility or, indeed, insanity, that is not only a very radical change in our criminal administration, but also a change difficult to confine solely to murder charges. The general rule of our law, as I have said, is that a person is presumed to be sane and responsible for his actions unless the contrary is proved. If that general rule were changed, it would mean—and this is where I was interrupted, though I will not comment on the nature of the interruptions—that the onus would be on the prosecution of proving sanity in all criminal charges. I will not develop this further, but that would lead to quite fantastic results.
    Mr. Paget: Has the right hon. and learned Gentleman finished a sentence? If so, may I ask him this? The point on which I wanted to intervene before was that when the proposed new Clause is tabled it will be found that it refers to pleas of insanity on capital charges. In fact, that will be quite sufficient because those are the only charges in which, in practice, insanity is pleaded.
    The Chairman: Order. The hon. and learned Gentleman cannot now discuss the new Clause.
    The Attorney-General: It is interesting to hear the hon. and learned Gentleman say that. I am not going to discuss his proposed new Clause at all, but it does not seem to me to follow that one will not have pleas of insanity or of diminished responsibility advanced in non-capital murder cases.
    One of the fundamental objections to accepting this Amendment is that at present, if the defence does not wish to raise a plea based on the mental incapacity of the accused, neither the court nor the prosecution can do so. The defence in a murder case may not wish to put forward a plea of insanity or of diminished responsibility.
    Mr. David Weitzman: That is the trouble.
    The Attorney-General: The hon. and learned Gentleman says that that is the trouble, but it is nothing of the sort. The defence may well try to secure a verdict of not guilty—perhaps that is the trouble according to the hon. and learned Gentleman—rather than a verdict of guilty but insane, with the consequence of detention during Her Majesty's pleasure, and rather than putting forward a plea of diminished responsibility which may result in a sentence of imprisonment or manslaughter.
    Mr. Weitzman Mr. Weitzman rose—
    The Attorney-General: Perhaps I may finish what I am saying.
    To change the onus of proof in respect of this matter would certainly constitute a great interference with the rights of the accused on charges of this kind.
    Mr. Weitzman: Will the right hon. and learned Gentleman permit me to intervene now? Will he please tell the Committee how one can reasonably expect a person who is insane to give one proper instructions to raise a plea of insanity?
    The Attorney-General: If a person is insane, the answer in the end will be, whether he raises that plea of insanity at his trial or not, that he will certainly not be executed.
    Mr. S. Silverman: Nonsense. It is not true.
    The Attorney-General: The hon. Member for Nelson and Colne knows that perfectly well. If there is real insanity, or if there is an abnormality of mind which affects responsibility, there can be no doubt that the Prerogative will be exercised.
    Mr. Silverman: That is not the case.
    The Attorney-General: I would say that it is the case. I do not mind whether the hon. Member agrees or not. I still assert that that is the case.
    Mr. Silverman: The right hon. and learned Gentleman should not say that I know it.
    The Attorney-General: I would not assume any knowledge on the part of the hon. Member.
    Such a change as that proposed would, in many cases, as I think experienced advocates would agree, merely prejudice the defence. Everyone, apart perhaps from the hon. Member for Nelson and Colne (Mr. S. Silverman), knows that if an accused is, in fact, insane, whether or not the insanity amounts to insanity within the M'Naghten Rules, the sentence of death would not be executed. The same applies where there is now diminished responsibility.
    Mr. John Paton: There have been innumerable cases where that is not true.
    The Attorney-General: The hon. Member for Norwich, North (Mr. Paton) says that he can speak of numerous cases where that is not so. I do not think that his knowledge is comparable with that possessed by the Home Office. [Interruption.] I am not going to discuss individual cases; I am discussing a matter of principle and I say that this Amendment would be prejudicial to the defence.
    As has been said, the Amendment itself relates only to diminished responsibility. In fact, the Amendment does not fit in this Bill at all because a person is not, by virtue of this Clause, liable to be convicted of murder. That is clear from the words of the Clause. Therefore, technically, the Amendment is completely inapt. However, I am not seeking to secure its rejection on that ground. I am seeking to deal with it on the merits, and it is upon the merits that I ask the Committee to reject it.

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    The hon. and learned Member for Northampton recognised the impossibility of placing the onus in different places according to whether a plea of insanity was put forward or a plea of diminished responsibility. It would, as I have said, prejudice the defence in many cases if this change were made. Further, it really would not work to put the burden of proving sanity in every case of murder upon the prosecution. The burden of proof upon the prosecution is far heavier than it is upon the defence, and, in fact, no hardship whatsoever, in my opinion, results, or will result, from leaving the onus where it is now.
    The prosecution, in my experience—and I have had some experience in these matters—where there is any evidence tending to show the insanity of the accused while he has been in custody—perhaps the hon. and learned Member for Northampton would do me the courtesy of listening. I am replying to what he has said. I will repeat it, and if he will pay attention. I shall be much obliged.
    In my experience of these cases, I have known of no case where the prosecution has been in possession of any evidence tending to show the insanity of the accused where that evidence has not been made available for the defence, if it so wishes, to put forward a plea of insanity.
    Mr. Paget: No, that is not so.
    4.15 p.m.
    The Attorney-General: I have not known of any case where that has not happened. That is the real answer to what the hon. and learned Member for Northampton said about what has been observed while the prisoner is awaiting trial.
    I am quite sure that when this Clause is passed, the prosecution will, in all cases, put at the disposal of the defence any material in the possession of the prosecution which goes to show that, at the time of the commission of the offence, the accused had diminished responsibility. I say, therefore, that no hardship will ensue from leaving the onus where it is in the Bill and where it is now with regard to insanity. If we change the onus, we deprive the defence in some cases, as I am sure will be admitted, of the opportunity of saying that what the defence really wants to fight for is the
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    securing of a complete acquittal. If the onus is put the other way, the defence will be robbed of that opportunity.
    If there is, in the future, a case where the plea of insanity is not put forward where it could, or should, have been put forward, or if there is a case where the plea of diminished responsibility has not been put forward by the defence and could have been put forward, I, for my part, think that that can safely be left to the exercise of the Prerogative. I submit that to make this change would certainly interfere very considerably with the rights of the accused, and would serve no useful purpose.
    Mr. Charles Royle: I confess at once to feeling a very great inhibition against participating in a debate which has such a strong legal content as this one has. I approach the matter not in any intricate legal fashion, but, I hope, with some common sense. My approach is that of a very simple lay magistrate. Perhaps I look at things in rather a different way from that adopted by the polished legal minds which have already contributed to the debate.
    My hon. and learned Friend the Member for Northampton (Mr. Paget) pointed out that there was here a change from what we know as the M'Naghten Rules. It seems to me that the right hon. and learned Gentleman the Attorney-General bases the whole of his case on the radical change of the law involved. To the lay mind, a radical change of the law would not, of necessity, be bad. It might well be that a change of law, however radical, when we are considering this very great subject of the death penalty, might indeed be a very desirable change.
    I know that I should be out of order were I to develop the point, but I do not hesitate to say that my approach to every question on this Bill and every Amendment on the Notice Paper is guided by my desire that as few people as possible shall hang. I have that desire in mind, and I feel quite sure that there is some sympathy with my point of view on the Front Bench opposite. I would suggest that the Amendment now being discussed would attain what is in my mind in this respect.
    It is not, in my view, just a question of diminished responsibility. When the time and opportunity comes, I hope to

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    take exactly the same line as regards insanity. It has been one of the bases of British justice that a man is innocent until he is proved to be guilty. If we are considering the state of a man's mind, as far as diminished responsibility is concerned, then we should set out to ensure that he is not convicted if there is the slightest sign that there is a diminution of responsibility.
    The principle is exactly the same as in all other cases of British law, that a man is innocent until proved guilty. In this case of diminished responsibility the onus should be entirely on the prosecution. This is a much simpler approach than that so far submitted. It may be regarded as a very simple approach, but simplicity in a matter of this sort can bring wisdom which may not exist in deep legal argument. I hope that the Government will think again about this and give us the opportunity to open the door to applying this principle in all cases of insanity of whatever range.
    Mr. Weitzman: I am sure that the Attorney-General always desires to be fair and that when he addressed the Committee just now he really thought that he was presenting a true picture of what was happening. I am always reluctant to mention any facts about a case in which I have acted professionally, but it is my duty to mention certain facts in connection with the Christofi case, because I am sure that when the Attorney-General is aware of them he will be the first to admit that the view he has expressed today is incorrect.
    Mrs. Christofi was a Cypriot woman who could not speak English. I spent days with her, trying to find out, through an interpreter, what her case was, days in the prison trying to find out the facts of the case. The prison doctor, after observation over many weeks, formed the view that she was insane. There was not the slightest doubt about that. It was obviously the duty of counsel, particularly with facts of that kind, to put forward, if he could, a plea of insanity.
    I remind the Committee that, unlike others, that was a case of murder where there was a witness who gave evidence that he had actually seen the murder committed by this woman. It was obviously of the greatest possible importance that if a plea of insanity was
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    possible, it should be put forward. Every persuasion was used, but the woman would not allow a plea of insanity to be made.
    As a member of the Bar, and one with very great experience, the Attorney-General knows that the position of counsel in matters of that kind is extremely difficult. What is he to do? I assure the Attorney-General that I was in the greatest possible difficulty. I took every possible step. I spent sleepless nights considering the matter, but the woman was adamant in her decision. I remind the Committee that she could not speak a word of English and that her intentions were translated to us with great difficulty. She was quite definite that a plea of insanity could not be brought forward and the result was that the case had to be fought on a "not guilty" plea. The woman was convicted.
    Apparently, she was examined by three doctors, appointed by the Home Office, who formed another view of her sanity. I do not know what they said. I assume that those three doctors saw her for a period, certainly very much less than the prison doctor had seen her, for he had had her under observation for many weeks. A reprieve was refused in her case.
    The Attorney-General: The hon. and learned Member has referred to what always happens in these cases, that there is a full medical inquiry by doctors who are appointed by the Home Office, but who are not, of course, civil servants. There is a full medical inquiry which is the best possible. I submit that the hon. and learned Member may safely assume that independent gentlemen making an inquiry as to sanity in circumstances such as he has disclosed would give full weight to the views expressed by the prison doctor before coming to a conclusion.
    Mr. Weitzman: I have not the slightest doubt that the three doctors appointed by the Home Office did everything they could and made a very complete medical examination. I still say, however, that when there is a prison doctor who is a person of knowledge and authority and who, in this case, was a person who knew a good deal about nervous diseases, and when he forms the view, not after an examination of an hour or two, but after

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    many weeks, that the prisoner is insane—obviously, the three doctors could have examined her for only a limited time—then at least that shows that the woman is subject to very serious abnormality of mind.
    It may be that the three doctors did not think that her insanity came within the M'Naghten Rules. They may not have thought that it was insanity to that degree, but, at any rate, there was serious abnormality of mind. Her reprieve was refused. I mention that because the Attorney-General said that in cases of this kind the Royal Prerogative would be exercised. It was not exercised in this case. I mention that to show that this matter was discussed in the greatest possible detail and yet, in spite of the opinion of the prison doctor, the Royal Prerogative was not exercised and the woman was hanged.
    That is illustrative of how important this matter is. Let us assume that the Home Office doctors were right. It is clear that if ever there was a case where abnormality of mind should have been investigated, it was the Christofi case. If the onus had been on the prosecution, that matter would have been presented to the court by the prosecution. The defence could not bring it up and could not produce evidence about it, because the hands of the defence were tied when the woman refused permission for a plea of insanity to be made.
    That is a direct example showing, in the most glaring form, how unfair the present position is. An evil exists which would be remedied by the Amendment. The Attorney-General said something about an Amendment of this kind opening the door to a similar plea for other criminal cases. I remind him that we are dealing with a Clause which introduces something new and which has something to do with the crime of murder. It is not to do with other crimes and it is, therefore, a specious argument to say that the Amendment will open the gates to other matters.
    I am very much concerned with this matter from another aspect. As my hon. and learned Friend the Member for Northampton (Mr. Paget) said, it is the duty of the prosecution in a murder case to prove the murder, to prove a killing with malice aforethought. The element of the mind is the most important thing
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    about it. Where there is a doubt about abnormality of mind, it is idle for the prosecution to say, "All we shall do is prove that the person was killed and. having proved the person was killed, we shall do no more."
    I remind the Attorney-General that it has always been recognised in our courts of law that it is not a question of fighting one side or putting one side. It is the duty of the prosecution to put before the court all the material facts. If it is the duty of the prosecution to put all material facts before the court, that duty is not met merely by providing the defence with those facts so that the defence may use them. We were quite properly provided by the prosecution with the evidence of the prison doctor, but we could not use it. However, the prosecution should have used it.
    4.30 p.m.
    We must recognise the very important duty of the prosecution, in a criminal case, to put all the material facts before the court. It is not a question of the prosecution's trying to win. They are not out to win. They are out to see that a true verdict is given according to the evidence. It is, therefore, their duty to put before the court every piece of evidence which will go to show whether the charge is made out or not. I should have thought that in those circumstances, if one regards the duty of the prosecution in that way, and particularly in a case of a charge of murder, and particularly where there is the slightest suggestion of abnormality in the accused, the Attorney-General would have been the first to recognise that the duty of the prosecution is to put before the court every piece of evidence in the case and to assist the jury in coming to a true verdict on the evidence put before them.
    I strongly urge upon the Government that for a matter of this kind, illustrated by the case I have put before the Committee, this Amendment ought to be accepted. It will assist in the burden of proof. It is an Amendment which ought to be welcomed as something new in our legal system.
    Mr. Montgomery Hyde: Can the hon. and learned Gentleman tell the Committee, for it was not clear to me, although I followed him very closely, why the evidence which was

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    given to him by the prosecution in that case he mentioned could not be used by the defence?
    Mr. Weitzman: It is the first duty of counsel, of course, to obey instructions. He can act only on the instructions given by the client. If the client refuses to allow the plea to be put forward, counsel cannot put it forward. I can tell the hon. Gentleman this, that I sought the assistance of some judges in regard to the course which I should properly take in the matter.
    That is not the only instance which has occurred. Hon. Members may be familiar with the Ley case, where exactly the same thing happened and where the plea could not be put forward because instructions to the contrary were given.
    Mr. Hale: But he was not hanged.
    Mr. Weitzman: That is so.
    Dr. Barnett Stross: I do not think that the learned Attorney-General dealt with one point which was put to him, that the defence are in a difficulty because they do not possess the knowledge of the accused when he is in prison or hospital which the medical men in the prison or the hospital have; they have a very much better opportunity of observing him over an appreciable length of time than the medical man for the defence. I am sure that if the defence asked for reports they would at once be forthcoming in full, but I have in mind cases in which I was myself interested, and one in particular, although it happened more than twenty years ago, I admit.
    I was deeply impressed by the circumstances of the medical man sent to examine the accused, as I was in another part of the country. I entered the prison and was ushered into a room and locked in with the man accused of murder. I had to take all the instruments I thought would be useful and that I should need for my examination. There was no couch available. There were a table and some chairs, and, literally, they were all that was available at that time and in that case for the defence.
    The medical man who had looked after him for a time in the prison, while agreeing with me ultimately as to the diseases
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    of the blood and tissues of the central nervous system from which the man suffered, thought he was sane, whereas I thought differently, but I had to make up my mind on only two examinations, one on the morning of the very day of the trial and down below the dock, in what was virtually a cellar. There I was confirmed in my view by the man's conduct, because he wished very much to die and pleaded that he should be allowed to.
    I am not a lawyer, and I cannot speak as a lawyer, but as a medical man I have always had the impression that the defence were in some difficulty in these cases, and for that reason I sympathise with the Amendment.
    The Attorney-General: The hon. Member for Stoke-on-Trent, Central (Dr. Stross) has been speaking, I think, of what he experienced personally a long time ago. I think it would be convenient to the Committee if I said what is the practice nowadays.
    All the information in the possession of the Crown about the mental capacity of the accused as based on reports is always given to the defence. Of course, it should not be assumed that the medical officers who examine or keep an eye on the accused are in any way likely to be prejudiced one way or another. It should be assumed that they are as careful and impartial as doctors can be. It is not true to say—indeed, the hon. Gentleman did not say it himself—that the defence are limited to one or two medical interviews with the prisoner. That is not the case.
    The practice nowadays in all capital cases where there is any doubt as to the accused's medical condition is always to call in outside psychiatrists, so that there is a good examination, although it may be that the medical officer called in by the defence has not as many or, perhaps, as good opportunities as other doctors to make it. Where there is any doubt about the mental condition there is a thorough examination by a whole series of people, and the results of that examination are put at the disposal of the defence.
    The point I make, which I made before, and which I repeat, is that it really would be an interference with the rights of the accused for the prosecution to be able to ask the jury to return a verdict of

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    guilty but insane, or with diminished responsibility, when the defence are going all out for a complete acquittal.
    Mr. Hale: I must confess that after I had heard the Attorney-General's speech I took a very different view of this Clause. Yesterday, I welcomed it as one which would, I hope, be the beginning of a very useful change in the law. It is a very important social reform. It is a tragedy that the Government have decided to force this Bill, full of social implications, through by the Whip. We are discussing today a matter of very real importance, but there are fewer than a dozen hon. Members on either side present, and up to now, in this important discussion, not an hon. Member on the benches opposite has risen to give us the benefit of his advice, although we know there are hon. Members opposite of great knowledge and experience of this matter, to whose views we attach genuine importance, and who we know, if they did speak, would speak with sincerity and honesty upon an important matter of penal reform.
    I find myself in one or two difficulties. At first—and I will put it quite frankly—I did not much like this Amendment. Personally, I should have much preferred an Amendment to leave out subsection (2) altogether, to leave out any provision about the onus; and in a moment I shall develop my reasons for that. However, having heard the Attorney-General's reply, I feel that, if my hon. Friends decide to force a Division upon the Amendment, I should vote with them, because I think that his reply was unsatisfactory.
    As I listened to the extremely interesting and able review given by my hon. and learned Friend the Member for Northampton (Mr. Paget), there went through my mind, as it probably went through the minds of some other hon. Members, the question of the history of this matter. How did this onus become established? I speak subject to correction because I have not checked the facts, but it occurred to me that the onus became established long before the M'Naghten Rules, and that in the M'Naghten case itself the verdict was, "Not guilty by reason of insanity".
    If I remember aright, it was the second intervention of the late Queen Victoria,
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    on the whole a less desirable intervention, which brought about the alteration. Somebody tried to murder her, and the person was not guilty by reason of insanity, and she asked, "How can you say he was not guilty when he did it?" Queen Victoria made so many complaints that Ministers were inclined to get rather tired of the old lady and found it convenient lo substitute for the future a verdict of "Guilty, but insane," without in any way altering its effect, and in the result a verdict of" Guilty, but insane" is still an acquittal.
    The result is a verdict of acquittal. Finding that a person is insane results in detention, and Broadmoor was established, not under the present régime, and not under the prison régime, as a place of detention for persons who had shown that their insanity involved what would otherwise be criminal propensities. One cannot appeal against a verdict of guilty but insane. There is no right of appeal, because it is still an acquittal.
    Thus we get the worst of both worlds under Queen Victoria's rules. The person concerned has the public stigma of the finding of guilty, and is deprived of the right of appeal against it because he is told that he has not been found guilty at all. His insanity is a bar to the real effects of conviction. That undoubtedly is the position as it exists today and it is from that point of view that we ought to consider this question of onus. I think that we ought to know a little more about it.
    All hon. Members will agree, I think, that in these cases one has to plead insanity. It is true that one does not put in a formal plea of insanity. It is true that one does not have to say anything but "not guilty", but if one is asking for a verdict of guilty but insane that is the line one takes. One makes it clear from the start.
    As I understand, on the Scottish theory of diminished responsibility that verdict can be given on a finding of guilty notwithstanding any contention of innocence. Apart from the question whether the evidence of the Crown is true, how and when are the jury called upon to consider the question of diminished responsibility, and on whose plea? I would ask the Attorney-General to give this a little attention, because I think that this is a point of real importance, and it may be

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    that the right hon. and learned Gentleman can, in two or three minutes, explain that rules are to be made which will provide a measure of confidence in this matter.
    What has the accused to do? Has he to indicate at an early stage that he is running a plea of diminished responsibility with a general plea of not guilty? Is he to do it in the rather fantastic way that we have to do it in libel cases, in which, first, we deny that the words were ever used, we then say that if they were used they did not mean what they appeared to mean, and then that if they do mean what they appeared to mean it was fair comment, and then that, if it was not fair comment, it was true. That is the position.
    4.45 p.m.
    I have never been one who really believes that the law is sacrosanct or is not capable of Amendment. One important matter is this. The Attorney-General, in an intervention in the speech of my hon. Friend the Member for Stoke-on-Trent, Central (Dr. Stross), made an effective intervention when he said, "You know all this evidence has been made available. There will be no secrecy about this. If a doctor in the prison has made a report saying that this man is not fully responsible for his actions or that this man has diminished responsibility, that will be made available to the defence."
    Two points arise on that. The first is, perhaps, not very substantial in relation to the medical evidence. But the right hon. and learned Gentleman will know very well that when one is defending someone, one would prefer the evidence slightly in one's favour to come through the prosecution than to have to put it in oneself. If he will read the life of Edward Marshall Hall, written by the late Edward Marjoribanks, he will find that Marshall Hall said this. It is one thing to be able to cross-examine a witness, and another thing to have to examine him in chief. If one is given evidence which is in favour of one's client but not very much, it may be very effective if put forward by the Crown but rather meagre if put by the defence.
    But that is not the important point which I wish to make on this matter. Let us take the average ordinary sort of case,
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    the man who is obviously not very bright; the man who commits crime after crime and is caught after every one. He is taken to the nearest prison which may be 30 miles from his home and is under observation from the start. In the course of his trial almost every witness will have something relevant to say to this issue. Even if one is putting in a plea of not guilty and saying that he is the wrong man, and has nothing to do with it, the very policeman who proves the arrest will give evidence of his mental condition at the time he found him. He does not give it as an expert, but it comes up.
    Then there is the evidence of the man who takes a statement from him. Of course the thing will be challenged, but the plea of diminished responsibility, if it is to be effective at all, is part of the whole trial from the time it commences. It is not a matter of putting the onus of proof upon anyone. These are the facts coming out in the course of the trial on which the judge at the end of it can give a direction to the jury.
    I know that on the question of capital murder, and so on, there are rules which give the jury the right first to find one verdict and then to consider a second one. We find that in the Schedule to the Bill. But I understand that that does not apply to diminished responsibility.
    The Attorney-General: If a plea of diminished responsibility is put forward and succeeds, the verdict then is one of manslaughter under subsection (3).
    Mr. Hale: I do not think that the right hon. and learned Gentleman is following my point. Has the defence to put forward a plea of diminished responsibility and run it along with other pleas?
    The Attorney-General: I will deal with that in a moment.
    Mr. Hale: I am not trying to waste time, but this is an extremely important issue and I am trying to put it as clearly as I can. This is a matter on which from the very moment the trial begins, and the very moment when the first witness goes into the witness box, a great deal depends. Very often the evidence given by the first policeman of the accused's condition at the time is very material.
    Then we come to the point which my hon. and learned Friend the Member for

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    Stoke Newington and Hackney, North (Mr. Weitzman) and my hon. Friend the Member for Stoke-on-Trent, Central made. The condition of the man at that trial is very material. Everyone who knows anything about mental disease knows that there may be a most acute and grave case of mental disease and yet the prisoner has long lucid intervals. The most difficult thing in the world to diagnose is this question of mental disease. One talks to a man and he speaks most rationally and quietly. I think that it was Sir Henry Hawkins who said that he got a note from a solicitor to say, "The witness is perfectly all right as long as you do not ask him if he is God. The moment you come to theological points you are on dangerous ground, so keep away from religion." How the difficulty of taking the oath was overcome, I do not know.
    We are to have the evidence of the police officer who sees the man at the time of arrest, and of the detective who takes the statement from him, and the evidence of the prison medical officer who carefully examines the man the moment that he is received into prison, and, according to the right hon. and learned Gentleman, if the prison medical officer comes to the conclusion that there is a mental question we are to have the man examined by a psychiatrist.
    The real trouble here is that the Attorney-General appears to think that examination by the prison officer is necessarily likely to reach the right result. It did not in the Christofi case. It was disregarded. I have had a good deal to do with prison officers and have nothing to say to their discredit, but we are rather coy here about using words. No one would think of saying that a Methodist minister was biassed in favour of God. One would assume it, even though one might not regard "biassed" as quite the proper word, but if one thinks that prison officers are on the whole biassed in favour of prisons, up someone gets and says that it is most unfair and that they have an open mind. One has never an open mind about one's occupation. When I was a practising lawyer, I was much more in favour of the law than I am now that I am no longer practising.
    It would be fair to say, without being unkind, that on the whole a prison
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    medical officer is liable, from his experience, to think that many prisoners malinger, and to know that prisoners can feign insanity and have to be watched very carefully. It is not unreasonable to say that the medical officer of a regiment on active service is on the whole slightly biassed in favour of not excusing men from duty. Therefore, in these cases an independent medical examination is of the greatest importance and assistance.
    How does the prisoner get that examination? What does he have to do? He has to persuade a medical man to go into the witness box when so much of the weight in the scales of justice is in the scale occupied by the prosecution and so little is in the scale occupied by the defence. The prosecution has the assistance of forensic scientists, of toxicologists, of gunsmiths and all kinds of experts to consult, and there is a simple man, perhaps 30 miles from home, half-dazed, and with no one in his service except, if he is very poor, a free solicitor and a free barrister who, after all, are professional men with other duties to perform. I recall a case which involved my attending a prison 30 miles away and my total fees were less than £4.
    The Temporary Chairman (Sir Norman Hulbert): I would ask the hon. Member to confine his remarks to the question of diminished responsibility.
    Mr. Hale: I think, with respect, that I am doing so, Sir Norman.
    If we are to put the onus on the defence, we have to consider how a prisoner, without money, can discharge that onus. How can he? How is this man, without a penny in his pocket and without the Poor Persons Rule making any provision for it, to discharge the onus of proving diminished responsibility, and to discharge it, apparently, in circumstances in which the judge will not put the matter to the jury unless he comes to the conclusion that the prisoner has prima facie discharged that onus? Is the question to be left to the jury? How can it? My hon. and learned Friend the Member for Stoke Newington and Hackney, North called attention, in a most moving speech, to a very grave difficulty which confronted him, on which he sought the advice of some of Her Majesty's judges.
    The same thought ran through my mind as that which was expressed by

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    the hon. Member for Belfast, North (Mr. Hyde). Why could one not do these things at one and the same time? If one's client is insane, why should one have to take his insane instructions and advice? The Government are now saying that if a solicitor's client is a moron the man must instruct his solicitor that he is a moron. Really, who will do that? What is the position of an instructing solicitor who goes along to take instructions on a charge of murder and the man says, "I did not do it"? Is the solicitor to say, "You look a bit of an ass and, if you are an ass, I will run that as a defence."
    Mr. Anthony Greenwood: "And you must be made to come to me."
    Mr. Hale: Yes. What a situation.
    Let us assume that I say to the man, "Look here, old man. In view of your mental history and the fact that your mother died in an asylum and your father had mental symptoms, and in the light of your acts, I have come to the conclusion that you can succeed on diminished responsibility—if you do not succeed in establishing to the court that you are not guilty, or if I do not succeed, through counsel, in establishing that the evidence against you is not sufficient." At what stage and in what circumstances do I start running this defence, because I shall be putting my man in the witness box to say, "I did not do it," and, at the same time, I am asked to call doctors to say that he is a man who should not be believed on his oath.
    Mr. J. E. S. Simon: Surely the hon. Member will say that it is far more objectionable for the Crown to have to do that.
    Mr. Hale: It is a fair point and I will come to it in due course with the greatest pleasure.
    This is the situation as I have described it. I am going to call a series of witnesses to say, "I was not there. I was playing chess at the local chess club," which was the defence in the Wallace case." I remember it because I won my game and I went into the second round of the championship." Then I call a series of witnesses to say that I am so lacking in responsibility
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    that I could not have won a game of chess at all, and the jury have to come to a verdict based on my physical condition.
    I suppose it will be asked, "If the Crown is to produce all this, will not the Crown prejudice the prisoner?" Of course it will. I should have thought that the question of diminished responsibility should be tried quite separately after the verdict. It is the only way in which it can be done effectively, at the same time avoiding all these difficulties. Once one had gone through the whole of the formality of trial one could say, before the same jury, "We can now inform you of certain material facts." After all, this happens in most cases. The judge is informed afterwards of the man's record and character and of mitigation circumstances arising on his health and record with a view to assessing the sentence. Surely it could also be done in these cases.
    I suggest, therefore, that the answer given by the Attorney-General is not satisfactory. I say so without trying to make any controversial points at all. I have not attempted to exacerbate the debate or to be provocative. I make the serious, practical point that I hope that before we conclude our debate on this matter we shall have the help of hon. Members opposite in giving some further thought to it.
    5.0 p.m.
    Mr. Anthony Greenwood: The Committee will have noticed that this Amendment, which is in the name of my hon. and learned Friend the Member for Northampton (Mr. Paget) was not tabled officially by the Opposition. I am bound to confess that before the debate this afternoon I tended to a view contrary to that of my hon. and learned Friend, and I had thought that perhaps the wisest thing to do, as the Amendment raised an issue of principle, would be to rely upon Recommendation (36) of the Report of the Royal Commission, which reads:
    "The Judge, both in England and Scotland, should be given power to raise the issue of insanity, to call relevant evidence and to put the issue to the jury, if he has reason to believe that the accused may have been insane at the time of the offence and that the trial of this issue would be in the interests of justice."

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    During the course of the debate I have been much impressed by the case put by my hon. Friends, and even more so by the reply which the Attorney-General made.

  ROYAL ASSENT
  Whereupon, The GENTLEMAN-USHER OF THE BLACK ROD being come with a Message, The CHAIRMAN left the Chair.
  Mr. SPEAKER resumed the Chair.
  Message to attend the Lords Commissioners.
  The House went; and, having returned—
  Mr. SPEAKER reported the Royal Assent to:

  1. Police, Fire and Probation Officers Remuneration Act, 1956.

  2. Clyde Navigation Order Confirmation Act, 1956.

  3. Oban Burgh Order Confirmation Act, 1956.

  HOMICIDE BILL
  Again considered in Committee.
  [Sir NORMAN HULBERT in the Chair]
  Question again proposed, That "defence" stand part of the Clause:—
  5.11 p.m.
  Mr. Anthony Greenwood: I was saying, when our proceedings were interrupted, that I had been much impressed, in spite of my original doubts, by the case which my hon. Friends had deployed and still more by the response which the Attorney-General made to the speech of my hon. and learned Friend the Member for Northampton.
  I had hoped when the Bill came before the House that it meant that we were adopting a new approach to these problems and that we were to make a fresh start in our treatment of them. I was a little disappointed, though not altogether surprised, when the Attorney-General said, in reply to my hon. and learned Friend, that where there was substantial doubt on the part of the Home Office as to the sanity of a prisoner, he would not be hanged. My hon. and
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  learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) made a most powerful and impressive case in respect of the Cypriot woman, Mrs. Christofi. I should like to call the attention of the Committee to another case which is, I think, in its way just as bad as the case of Mrs. Christofi and makes nonsense of the claim made by the Attorney-General.
  It is the case of James Frank Rivett, a 21-years-old labourer, who strangled his sweetheart. He was tried at Suffolk Assizes on 20th January, 1950. Counsel for the Crown in that case raised the issue of Rivett's fitness to plead. A psychiatrist and also the medical officer of Norwich Prison, Dr. Basil Tracey, said that Rivett was certifiably insane, but the judge, Mr. Justice Stable, told the jury that it was not for the doctors to decide but for the jury to do so.
  The jury was out of court for an hour, and it then returned and said that it had been unable to reach a unanimous decision, and it sought further guidance from Mr. Justice Stable. It retired for a second time, and then found that Rivett was sane and fit to plead, a decision which the judge described as a very sensible verdict.
  After that, the case was transferred to Norwich Assizes, where a new jury was sworn in. Once again, the medical officer of Norwich Prison gave evidence that Rivett was unfit to plead, and Dr. Matheson, who is the medical officer at Brixton Prison, confirmed that, in his view, Rivett was certifiably insane and would be unable to understand fully the proceedings against him. At that point, the jury retired for several minutes and returned to court to announce that in its view Rivett was sane and fit to plead.
  A third jury was then sworn in, and Rivett was charged with murder. He answered with a plea of guilty. His counsel, Sir Charles Doughty, rose and said:
  "You have heard this man plead guilty to the charge. He does not want to get off. It is an incredible position and a difficult position for counsel. I am pleading against the capital sentence against his will and against his instructions."
  Sir Charles Doughty was obviously in as difficult and as embarrassing a position

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  as my hon. and learned Friend the Member for Stoke Newington and Hackney, North in respect of Mrs. Christofi.
  5.15 p.m.
  After Rivett had pleaded guilty and Sir Charles Doughty had made that observation, Dr. Matheson and Dr. Tracey once again expressed the view that Rivett was insane.
  Then Mr. Justice Stable, at the end of the case, in his direction to the members of the jury, said that they must remember the difference between madness and badness. The jury found Rivett guilty, and he was sentenced to death. Mr. Justice Stable in discharging the jury, said:
  "I am satisfied the contribution the jury system makes to the administration of criminal law is invaluable."
  There was an appeal to the Court of Criminal Appeal. Lord Goddard delivered the judgment of the court rejecting the appeal, and, in the course of his judgment, he said:
  "Let it be assumed he suffered from schizophrenia, or whatever doctors might call it … a jury of his country were satisfied that he was responsible, and it was not for the Court of Criminal Appeal to say that he was not."
  Here was a case of a man accused of the gravest offence—
  The Attorney-General: Perhaps the hon. Gentleman would care to conclude his account of case history by adding what was revealed about that case in a debate in another place.
  Mr. Greenwood: If, as I hope, the right hon. and learned Gentleman replies to the points that we are making from this side of the Committee, I have no doubt that he will call the attention of the Committee to it, but, so far as most of us are concerned, the conclusion of the case was that Rivett was hanged on 8th March, 1950, in spite of the fact that the right hon. and learned Gentleman says that if ever there is any doubt at all about the sanity of an accused man, he is not hanged and the Home Secretary advises the Queen to exercise the Prerogative of mercy. It is because of the case of Rivett and of the case of Mrs. Christofi that I find it very difficult indeed to accept the arguments which the Attorney-General has put forward.
  436
  I know that the Government are in a hurry, for reasons best known to themselves, to get the Bill on the Statute Book as quickly as possible. Those of us who are interested in the penal system and in reform of the criminal law are equally anxious to get many parts of the Bill on the Statute Book, but we want the Bill to go on the Statute Book in a much better form than that in which it has been presented by the Attorney-General and the Home Secretary, with a good deal of haste and without the careful preparation or looking to the consequences which we expect from the Law Officers of the Crown. The right hon. and learned Gentleman really must curb his irritation and refrain from lecturing the Committee if he wishes to secure the co-operation of hon. Members in getting the Bill passed as quickly as the Government wish it to be passed.
  Mr. S. Silverman: I understood that the Attorney-General intended to reply to what has been said. If he would like to do so at this stage, I will gladly give way to him.
  The Attorney-General: I propose to say a few words at the end of the debate, but I certainly do not desire to stop the hon. Member making his speech if he wants to.
  Mr. Silverman: I assure the right hon. and learned Gentleman that he would not do that in any case, now or on any future occasion, so long as I succeed in catching the Chairman's eye and, no doubt with an effort, remain in order.
  I confess that I, too, was one who at the beginning—I do not say at the beginning of the discussion yesterday, but at the beginning of discussions before the House had the Bill before it—had considerable doubts as to the wisdom of the proposal which my hon. and learned Friend the Member for Northampton (Mr. Paget) has made and which we have now been debating for some little time. I had myself proposed merely to ask that the subsection which we are now seeking to amend should be deleted altogether, because I confess at once that I see considerable force in some of the objections which are made to the Amendment.
  I agree fully with everything said on this side of the Committee about the extreme embarrassment on the defence if it has to

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  run two separate defences at the same time, one of which may be not altogether consistent with the other. It was for that reason, among other reasons, that the proposal was made to transfer the onus to the prosecution. But I can also see that there is force in the objection which the Attorney-General made that if the onus were on the prosecution and the prosecution called evidence which might tend to establish a defence under subsection (2), that might be as embarrassing as, or in some circumstances even more embarrassing than, if the defence were to undertake the embarrassment of conducting the two defences together, which, I think, in practice nobody ever attempts to do.
  There was a way, which had the unanimous support of the Royal Commission, in which all these difficulties could have been avoided. It was a recommendation which the Government have not accepted and, indeed, which has not received much support among either lawyers or laymen who are interested in this subject. Obviously, I do not propose to debate that, but there was the unanimous recommendation of the Royal Commission that this almost impossibly difficult job of deciding between one murderer and another—who was worthy of death and who was not—should be decided, if it had to be decided at all, in each individual case by the jury which had heard the case throughout, which had already convicted and which could then be invited to consider whether there were extenuating circumstances.
  Of course, if the Government had accepted that recommendation, questions of diminished responsibility or provocation or insanity which fell short of compliance with the M'Naghten Rules would all be relevant to that second inquiry; but this matter falls to be discussed now on the basis that there is to be no such second inquiry. It was quite clear to the Royal Commission that there were serious objections to its proposal. The Commission quite anticipated that the proposal might not be popular, but it said, "If you do not like that proposal because of its embarrassments and its difficulty, we have to advise you that the only way in which you can deal with the anomalies existing in our law is to abolish this absurd penalty altogether." The Royal Commission added, "If you do not want to do that and you still want to discriminate,
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  the only way in which you can rationally or fairly discriminate is to do it in each individual case by the jury which has heard the evidence."
  The Government rejected that proposition and they rejected also the advice of the Royal Commission not to have a Clause about diminished responsibility at all. It is relevant to remember that, because part of the right hon. and learned Gentleman's argument—I agree that it was not the whole of his argument by any means; perhaps he did not even intend it to be the most weighty part of his argument—was that if my hon. and learned Friend's Amendment were accepted in cases of murder, we would be in logical difficulties if we did not apply it to other crimes in the calendar and that if we did apply it to other crimes in the calendar, the result would be virtually an unworkable penal code.
  The Royal Commission, however, had already rejected this whole question of diminished responsibility on that very ground. In spite of the logical difficulty of applying it to one crime and not applying it to other crimes to which, on the argument, it would be equally applicable, the Government nevertheless decided—I think they were right so to decide—in spite of that logical difficulty, "Because this is murder, we will introduce this doctrine for murder, although we will not introduce it for any other crime in the calendar." That was the Government's doing. The result of it is that we have this doctrine of diminished responsibility and it applies only where the charge is murder. It applies equally whether the charge is murder or capital murder; the defence of diminished responsibility is equally applicable in either case, but it does apply only to murder.
  If the Government decided that it was right and proper to treat murder exceptionally in that they would accept the doctrine of diminished responsibility in relation to that crime alone, I really cannot see the relevance or the fairness of then objecting, when my hon. and learned Friend comes forward with an Amendment applying only to this Clause, and saying, "Ah, but you cannot accept this because of its bearing on other branches of the criminal law." This is exactly what the Government have done. They have said

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  that they will treat this thing exceptionally. My hon. and learned Friend is merely saying that if it is being treated exceptionally so as to make diminished responsibility apply, then in this one respect, exceptionally again, because it is a special case, let the onus be put upon the prosecution and not upon the defence.
  5.30 p.m.
  Mr. Hale: They are treating exceptionally the question of second murder. The second murder will be tried before the same jury, if available, as a separate issue put after the conviction.
  Mr. Silverman: Yes; I am much obliged. I had the point in mind, and I had intended to make it a little later. But it is equally well made at this moment. If the Government were to say, "We recognise the difficulties that the defence would be under if we put the onus upon them, but we recognise equally that it would be difficult and embarrassing both to prosecution and to defence if the onus were put upon the prosecution. Therefore, we will undertake at a later stage to introduce a proposal enabling this question of diminished responsibility—and perhaps also the question of insanity under the M'Naghten Rules—to be dealt with as a separate issue after conviction," precisely as they do in the case of a second murder, as my hon. Friend reminds me, I do not know what my hon. and right hon. Friends would think about it, but I would be perfectly content.
  If the right hon. and learned Gentleman were to say, "We agree that it is embarrassing to the trial generally to have this question of diminished responsibility raised in a case where the facts are in issue, or where the facts are denied and the issue of guilt or innocence has not been established; therefore, we will take this issue out of that trial and try it as a separate issue if and when the accused is convicted on the facts," that might be a very reasonable way of dealing with the matter. But if the Government are not prepared to do that, and therefore compel the Committee to choose between the embarrassment of leaving the onus upon the defence and the embarrassment of leaving it upon the prosecution, I am bound to say that the case for leaving the onus upon the prosecution is, on balance, overwhelming.
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  When a defence of insanity depended only upon the M'Naghten Rules, anyone who wished to shelter behind those Rules knew exactly what he had to prove. He may not have agreed with the definition of insanity involved; that is another matter; but what can be said for the M'Naghten Rules, whether they are right or wrong, is that at any rate they are clear. The defence have to prove—and if they cannot they are not entitled to that defence—that the accused either did not know what he was doing at all, or, he knew what he was doing, he did not appreciate that it was wrong. The Court of Criminal Appeal has now added the gloss "if he did not appreciate that it was against the law"—which is not quite the same thing as not knowing that it was wrong. That is one of the ways in which the protection has been whittled down in recent years by a court of appeal far more conservative now than it has ever been.
  At any rate, under the M'Naghten Rules the defence knew exactly what they had to prove. That did not mean that it was easy to prove it, or that a poor person found it easy to get the evidence. Here I pause for one moment to say that I found it almost fantastic that the right hon. and learned Gentleman could really have been under the delusion—because delusion it is—that in recent years no man or woman in respect of whom there was a substantial doubt of insanity had ever been hanged. I assure him that that is simply not true. I think he will find that that is the prevailing view among all those of us who have ever practised in criminal law. It is just not the case that no man or woman has ever been hanged where there was a substantial issue of insanity.
  Examples have been given, and I shall not take up the time of the Committee by adding to them. The claim that the Home Office never makes a mistake is just as fantastic as the other claim that, in practice, wherever there are extenuating circumstances the Home Office always exercises its prerogative of mercy. It is complete nonsense, and its nonsense was established beyond further controversy by the most valuable and courageous pamphlet published by the Observer a few months ago, under the title, "Patterns of Murder." If the right hon. and learned Gentleman will take

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  some time off, some day, to compare over five years the number of cases where reprieves were granted and the number of cases where they were refused, and then try to explain to the House what was the exact pattern of difference in the two categories, we shall all be extremely grateful to him.
  In the case of insanity we are going to put the onus of proof upon the defence, that is to say, upon the people who must derive their only authority to be heard at all from the man who is suffering from the diminished responsibility or insanity, as the case may be. It is true that the defence can get advice elsewhere. There are relatives; presumably there is a solicitor; there are friends, and sometimes there are newspapers—and information may be provided, as it frequently is, by the prosecution itself.
  It may be said that counsel for the defence has a lot of material, and that he does not always have to rely solely upon his client. But in the end it is the client's instructions that count. A man may tell his counsel "I am not insane, and I instruct you, if you are going to be my counsel, not to say that I am." His counsel may have all the evidence in the world, but he has no right to put forward a defence of insanity in a case of that kind, any more than he has a right to advise a man to plead guilty if that man insists that he is not.
  That is where counsel's instructions begin and, beginning there, he has to prove one or other of the matters contained in the parenthesis that we tried without success to delete yesterday. He has to prove an abnormality of mind. Then he has to prove that it has substantially impaired his client's mental responsibility. Then he has to show—I am sure that this is the meaning of the parenthesis—that the abnormality of mind arises from a condition of arrested or retarded development of mind, or some inherent cause, or that it was induced by some disease or injury.
  The prosecution have ample means of testing all those matters; the defence has not. All things considered, if the Government are now going to say that one element which must be established if a man is to be convicted of murder is that he is not suffering from diminished responsibility in that sense, or that a man
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  who is suffering from diminished responsibility in that sense must not be convicted of murder, I say that the fairer view as to the onus is to say that this has now become a necessary element in the charge of murder, just as much to be proved by the prosecution as any other fact—and I hope that the Committee will be of that opinion.
  I do not think anyone will deny that this is a substantial Amendment. I want to add my word of protest to those which have already been made about the manner in which our House of Parliament is being invited to deal with complicated matters of this kind. It is most unfair—unfair to the arguments advanced in support of the Amendment, and unfair to the right hon. and learned Gentleman himself who is opposed to the Amendment, and who has given the arguments against it—that it should ultimately be decided by votes cast one way or the other by hundreds of people who have not the slightest notion what question they are deciding, still less what are the arguments on either side.
  This is really not the way in which questions of this kind can be decided. There are matters, no doubt, which fall to be decided according to the collective political philosophy of one side of the House or the other, where it is right to leave these things to be decided collectively in that way and where support for it is included in the general support for one's party. But I say not merely that this is not one of those matters, but that for twenty-five years the House of Commons has only on one previous occasion been asked to deal with this kind of matter in this kind of way. For heaven's sake let us get back to a free vote in matters in which party loyalties are not involved so that we can have a real examination of the issues and a conscientious judgment of them according to the evidence and the argument.
  The Attorney-General: I do not know to what extent it would be in order for me on this Amendment to discuss the question of whether or not there should be a free vote on a Government Bill, but perhaps I may be permitted to say that I do not think it unfair that any hon. Member should have an opportunity of hearing, if he wishes to, the Committee stage of this Bill and hearing not only the views advanced in support of it, but also

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  the arguments addressed by the hon. Member for Nelson and Colne (Mr. S. Silverman).
  I do not think there is very much for me to add to what I have already said about this matter, because the arguments that have been uttered in favour of the Amendment are those with which I have already dealt. I would only add that the system of diminished responsibility which we are here introducing into the English legal system is that followed in Scotland, under which it is for the defence, first, to raise the question of whether or not diminished responsibility exists. Under the Scottish system it is not for the prosecution to prove on a capital case the absence of diminished responsibility. The burden of doing that should not rest on the prosecution in this country. In my humble opinion, for what it is worth, the system which we are here advocating will work as well in this country as it does in Scotland, and there is a great deal to be said for having the two systems the same.
  The hon. Member for Nelson and Colne assured me that it is simply not true to say that persons who were insane or who had suffered from a serious abnormality of mind had not been hanged. I regret to have to disagree with him. I cannot accept his assurance on that, and I am surprised that he should cite the booklet published by the Observer as a reliable authority on this matter. In the same way, I am surprised that the hon. Member for Rossendale (Mr. Anthony Greenwood) should cite in some detail the case of Rivett as an instance of an insane person having been hanged when the sequence to his trial and to his conviction and what followed afterwards has been made public and put on record, namely, that those doctors who thought that he was insane, suffering from schizophrenia, came to the conclusion after further consideration that he did not suffer from that condition.
  It has also been put on record that the full medical inquiry that took place with regard to Rivett found no trace of any mental disorder or of organic disease of the brain and could find no medical grounds for leniency. When the hon. Member for Rossendale attaches so much importance to that case, I think it is unfortunate that he should ignore those facts which have now been made public.
  5.45 p.m.
  Mr. Kenneth Pickthorn: It is with extreme reluctance and some hesitation that I intervene in this matter. I do not want to take up the great question which was raised by the hon. Member for Nelson and Colne (Mr. S. Silverman) about the proper way in which the House of Commons should proceed. It seemed to me that what the hon. Gentleman said on that subject might very properly lead to a very long debate; but I would say one thing that is at least connected with it.
  I am sure the hon. Gentleman would agree with me that no one who explicitly or implicitly held himself out to be more concerned with these deep and pathetic matters than the rest could possibly say a superfluous word on this subject without at the least impertinence, and, I think one might say, blasphemy. One thing has been said about which I think someone ought, perhaps, to make a slight comment.
  I hope that I am not doing the hon. Member for Rossendale (Mr. Anthony Greenwood) an injustice, but I thought that he said or certainly implied—I am in the recollection of the Committee—to a fair listener that it was strong ground for supposing a man insane if that man wished to be found guilty and to be executed. The hon. Gentleman certainly gave that impression.
  Since much of our debate on Second Reading was, in my judgment, vitiated by a general assumption to that effect, I thought that perhaps someone ought to say—and I feel no very special competence to say it—that many Christian philosophers would hold that a man, conscious of having committed a capital crime and having been fairly judged so to have committed it by the society of which he was a member, was quite within his rights and not at all necessarily insane if he concluded in his own internal forum that the best thing he could hope was to be executed.
  I think that is true of a great section of Christian philosophy, and here I feel confident—I have not brought the book with me, but I could give the quotation—that it is certainly true of the English idealist philosophers. Indeed, some have gone further and held, so to speak, that

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  to deprive a man of the right of being hanged would itself be an intolerable piece of materialism.
  Mr. Hale: Would the hon. Gentleman kindly—
  Mr. Pickthorn: I am afraid that the answer is "No." I do not want to be a moment longer than I can help.
  I have no doubt whatever that there are at least philosophers as competent as anyone on the benches opposite who would have held the assumption which I thought I detected in the arguments of the Front Bench opposite to be wholly mistaken, and I thought someone ought to put that on record.
  Mr. Paget: I think that the hon. Member for Carlton (Mr. Pickthorn) has raised the most interesting theological argument. In fact, of course, I think that very nearly half the murderers—whether it is most of them I am not certain—take precisely that view, because most of them commit suicide.
  Mr. Pickthorn: That is not the same conclusion.
  Mr. Paget: Is it not if they pass judgment on themselves? But whether that is so or not—
  Mr. Hale: Are there any statistics available of any idealist Christian philosophers who have committed criminal murders?
  Mr. Paget: That is an interesting point again, but what we were saying was not that a man who has committed murder and who wishes to plead guilty is thereby to be judged insane. I would not say that for a moment. All we are saying is that the quantity of a man's insanity is not the best basis for him to make—either in terms of Christian moral philosophy or terms of reason or other terms—the best selection of his own defence; and that to say, where the question is sanity or insanity, that it is the insane man who alone shall decide what the jury who is to judge him shall know about the matter is not logical.
  I should very much like to have the attention of the Attorney-General, because I wish to deal particularly with the argument he has advanced. Since I have just risen to answer him, I should deem it courteous were he in his place.
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  That is, at least, usual on these occasions, when a reply is being made by the mover of an Amendment. I must say I think that at least we are having most interesting precedents. First, we have a Home Office Bill with nobody present from the Home Office, and secondly, we have the Minister who appears to be in charge of the Bill answering from outside the Chamber, and not at the Dispatch Box, which is at least an unusual position from which to address the Committee.
  Mr. S. Silverman: Especially when he complained of discourtesy earlier.
  Mr. Paget: In his final speech the Attorney-General made one of the best arguments I have yet heard in favour of this Amendment because in the case of Rivett, in a somewhat pontifical denunciation of my hon. Friend, the right hon. and learned Gentleman said that he was surprised that the matter had been raised without reference to what had been said in another place. We have had two doctors who gave an opinion on oath, and sworn to, on three separate occasions and three hearings. The Attorney-General asks us to discount that on the basis of what somebody else in another place said they said on another occasion, not on oath—a very curious thing for the chief of the legal profession to suggest as advice to this Committee.
  Mr. Silverman: And without even showing us their statement.
  Mr. Paget: And we have not been shown their statement: we are not sure they said it.
  But surely we should not have this case, if the issue had been tried. If the prosecution had had to prove the malice aforethought, and the quality of mind which alone is capable of having this special intention, which is of the essence of the crime of murder; if the prosecution had been required to prove that, as they should have done, well, of course, on the evidence they would have failed. The judge would have had to direct the jury that since all the evidence was one way, it must so find, and we should not have this case. If ever there were a formidable case produced in favour of my Amendment, it is the case of Rivett.
  The next point about the reply of the Attorney-General is that he quite misled

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  the Committee. He told us that the proposal of the Covernment was that the procedure should be the same as the procedure in Scotland. The right hon. and learned Gentleman is quite wrong. May I read to him paragraphs 377 and 378 of the Report of the Royal Commission:
  "The position is entirely different in Scotland, where the doctrine of diminished responsibility enables the courts to take account of lesser forms of mental abnormality in dealing with persons charged with murder, and the number of cases in which it is necessary for the Secretary of State to order the holding of a medical inquiry into the mental condition of a prisoner under sentence of death is correspondingly reduced.
  The effect of this doctrine evolved by the Scottish courts during the last 100 years, is that, where the jury are satisfied that a person charged with murder, though not insane, suffered from mental weakness or abnormality bordering on insanity to such an extent that his responsibility was substantially diminished, the crime may be reduced from murder to culpable homicide. The accused may put forward a defence of 'diminished responsibility' in answer to a charge of murder. The onus upon the accused, if he puts forward this defence, is not to establish it beyond reasonable doubt, but only to satisfy the jury that the balance of probability on the evidence is in favour of the view that his accountability and responsibility were below normal."
  The Attorney-General The Attorney-General rose—
  Mr. Paget: Just one moment. I also have a prejudice in favour of finishing a sentence.
  What the Government ask us to say is this: on a charge of murder, it shall be for the defence to prove that the person charged is, by virtue of this provision, not liable to be convicted of murder. Here they are asking that the defence should prove that. In Scotland the position is that they do not have to establish beyond reasonable doubt, but only to satisfy a jury on the balance of probability. I do not say that my suggestion of putting the proof on the prosecution does not go further than the Scottish position; of course it does. But the Government proposal certainly goes a lot further. Now I will give way to the Attorney-General.
  The Attorney-General: The hon. and learned Gentleman has started to discuss the next Amendment. I will deal with his point when we come to the next Amendment—it is quite fallacious.
  Mr. Paget: What I am actually discussing is the statement of the Attorney-General that the position which he was asking—[Interruption]—
  Commander C. E. M. Donaldson: On a point of order. Is it in order for hon. Gentlemen opposite to refer to my right hon. and learned Friend the Attorney-General as being deliberately dishonest in what he is saying? I resent that.
  The Deputy-Chairman (Sir Gordon Touche): I did not hear any charge of dishonesty, but if it was made it should be withdrawn.
  Mr. John Paton: I do not think that was said. I think the remark was that the right hon. and learned Gentleman was discourteous, and I think everyone would agree on that.
  Commander Donaldson: Further to that point of order. If the hon. Member for Nelson and Colne (Mr. S. Silverman) challenges me on his words, I will of course accept—[Interruption.]
  Mr. Hale: On a point of order. If we are to have a long discussion on comments made between one person and another, may I say that when the hon. Member for Galloway (Mr. Mackie) says that I made a remark he is saying something which is not true? The fact is that I did not say a word. I did not open my mouth or make any comment.
  This raises the whole question of whether it is desirable, in the interests of the fair working of the Committee, that hon. Members with rather larger ears than other hon. Members—presumably because of some veterinary connection—should keep jumping up and appealing to the Chair and saying that "Bill Jones" or "Jack Smith" has said something rather unpleasant. After all, my hon. and learned Friend was making the point that, whether deliberately or not, the Attorney-General had made a mis-statement of fact on a major issue.
  6.0 p.m.
  The Attorney-General: I apprehend, Sir Gordon, that it would not be in order for me on this Amendment, which is in relation to the point whether the proof should be on the defence or on the prosecution, to deal with the points raised by

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  the hon. and learned Member. The point I made was that in Scotland the onus rested on the defence and that in the Bill it also rests on the defence. When we come to the next Amendment we shall be able to discuss the weight of that onus.
  The Deputy-Chairman: I cannot deal with private conversations between hon. Members and remarks I do not hear. We had better get back to the Amendment.
  Mr. S. Silverman: If the rules of order which were prayed in aid apply to private expressions of opinion between hon. Members sitting beside one another, it is conceivable that I said something which was out of order, but if the rules do not apply in such circumstances then, of course, I shall not merely retain the opinion which I have and would have had in any case, but shall retain the right to say it to anyone I choose.
  The Deputy-Chairman: If the hon. Gentleman made an audible remark which was out of order he should withdraw it. He will appreciate that it is impossible for the Chair to follow these private remarks.
  Mr. John Mackie: As the hon. Member for Oldham, West (Mr. Hale) referred to me, perhaps I might explain that I heard the remark, but I was not deliberately suggesting that he made it. I certainly heard the words but I should not like him to think that I am accusing him. I hope that he will be satisfied with that.
  The Deputy-Chairman: Let us get on with the Amendment. Mr. Paget.
  Mr. Paget: At the time these exchanges began I had the ear of the Committee. Whatever reservations I may have as to the understanding of the Attorney-General or as to his manners, I believe that his integrity is beyond doubt. I do not feel greatly concerned about whether the position under the law of Scotland is or is not relevant to the Amendment. The fact is that the Attorney-General made a certain statement about the law of Scotland. He said that the Government were asking us to do what is done under the law of Scotland, and I was pointing out that the law of Scotland was not in the same form, and I am repeating it.
  I am not for a moment suggesting that the Attorney-General was attempting to deceive the Committee on this occasion. On some other occasions we have had reason to doubt whether the right hon. and learned Gentleman understood the law of England, let alone the law of Scotland, and particularly that set out in his own Bill. That is the point at which we are directing our criticisms. Do not let us have any question of integrity. I know the right hon. and learned Gentleman far too well to have any doubt about that subject. So far as I have heard the right hon. and learned Gentleman's argument, I am quite unsatisfied—I have no doubt some hon. Gentlemen on the Government benches may have more to say upon this highly important question—and I ask the Committee to divide upon it.
  Question put, That "defence" stand part of the Clause:—
  The Committee divided: Ayes 239, Noes 187.

  Division No. 10.]

  AYES

  [6.4 p.m.

  Agnew, Cmdr. P. G.

  Bossom, Sir Alfred

  Crowder, Petre (Ruislip—Northwood)

  Aitken, W. T.

  Boyd-Carpenter, Rt. Hon. J. A.

  Cunningham, Knox

  Allan, R. A. (Paddington, S.)

  Boyle, Sir Edward

  Currie, G. B. H.

  Alport, C. J. M.

  Braine, B. R.

  Davidson, Viscountess

  Amery, Julian (Preston, N.)

  Brooman-White, R. C.

  D'Avigdor-Goldsmid, Sir Henry

  Anstruther-Gray, Major Sir William

  Browne, J. Nixon (Craigton)

  Deeds, W. F.

  Arbuthnot, John

  Bryan, P.

  Donaldson, Cmdr. C. E. McA.

  Armstrong, C. W.

  Buchan-Hepburn, Rt. Hon. P. G. T.

  Doughty, C. J. A.

  Astor, Hon. J. J.

  Butcher, Sir Herbert

  Drayson, G. B.

  Atkins, H. E.

  Butler, Rt. Hn. R. A. (Saffron Walden)

  du Cann, E. D. L.

  Baldwin, A. E.

  Campbell, Sir David

  Dugdale, Rt. Hn. Sir T. (Richmond)

  Balniel, Lord

  Cary, Sir Robert

  Duncan, Capt. J. A. L.

  Barlow, Sir John

  Channon, H.

  Duthie, W. S.

  Baxter, Sir Beverley

  Cole, Norman

  Eccles, Rt. Hon. Sir David

  Bell, Philip (Bolton, E.)

  Conant, Maj. Sir Roger

  Eden, J. B. (Bournemouth, West)

  Bell, Ronald (Bucks, S.)

  Cooper-Key, E. M.

  Emmet, Hon. Mrs. Evelyn

  Bevins, J. R. (Toxteth)

  Cordeaux, Lt.-Col. J. K.

  Errington, Sir Eric

  Bidgood, J. C.

  Corfield, Capt. F. V.

  Erroll, F. J.

  Biggs-Davison, J. A.

  Craddook, Beresford (Spelthorne)

  Farey-Jones, F. W.

  Bishop, F. P.

  Crosthwalte-Eyre, Col. O. E.

  Fell, A.

  Body, R. F.

  Crowder, Sir John (Finchley)

  Fisher, Nigel

  Fletcher-Cooke, C.

  Kerby, Capt. H. B.

  Pitman, I. J.

  Fort, R.

  Kershaw, J. A.

  Pitt, Miss E. M.

  Fraser, Hon. Hugh (Stone)

  Kimball, M.

  Pott, H. P.

  Fraser, Sir Ian (M'cmbe & Lonsdale)

  Kirk, P. M.

  Powell, J. Enoch

  Freeth, D. K.

  Lagden, G. W.

  Price, David (Eastleigh)

  Galbraith, Hon. T. G. D.

  Lancaster, Col. C. G.

  Prior-Palmer, Brig. O. L.

  George, J. C. (Pollok)

  Leavey, J. A.

  Profumo, J. D.

  Gibson-Watt, D.

  Leburn, W. G.

  Raikes, Sir Victor

  Godber, J. B.

  Legge-Bourke, Maj. E. A. H.

  Rawlinson, Peter

  Gomme-Duncan, Col. Sir Alan

  Lennox-Boyd, Rt. Hon. A. T.

  Redmayne, M.

  Gower, H. R.

  Lindsay, Hon. James (Devon, N.)

  Ridsdale, J. E.

  Graham, Sir Fergus

  Lindsay, Martin (Solihull)

  Robinson, Sir Roland (Blackpool, S.)

  Grant, W. (Woodside)

  Linstead, Sir H. N.

  Rodgers, John (Sevenoaks)

  Grant-Ferris, Wg Cdr. R. (Nantwich)

  Lloyd, Maj. Sir Guy (Renfrew, E.)

  Roper, Sir Harold

  Green, A.

  Lloyd, Rt. Hon. Selwyn (Wirral)

  Ropner, Col. Sir Leonard

  Gresham Cooke, R.

  Lloyd-George, Maj. Rt. Hon. G.

  Russell, R. S.

  Grosvenor, Lt.-Col. R. G.

  Low, Rt. Hon. A. R. W.

  Schofield, Lt.-Col. W.

  Gurden, Harold

  Lucas, Sir Jocelyn (Portsmouth, S.)

  Scott-Miller, Cmdr. R.

  Hall, John (Wycombe)

  Lucas-Tooth, Sir Hugh

  Sharples, R. C.

  Harrison, A. B. C. (Maldon)

  McAdden, S. J.

  Simon, J. E. S. (Middlesbrough, W.)

  Harrison, Col. J. H. (Eye)

  Macdonald, Sir Peter

  Smithers, Peter (Winchester)

  Harvey, Air Cdre. A. V. (Macclesfd)

  McKibbin, A. J.

  Smyth, Brig. Sir John (Norwood)

  Harvey, John (Walthamstow, E.)

  Mackie, J. H. (Galloway)

  Spearman, Sir Alexander

  Harvie-Watt, Sir George

  Maclean, Fitzroy (Lancaster)

  Speir, R. M.

  Hay, John

  McLean, Neil (Inverness)

  Spens, Rt. Hn. Sir P. (Kens'gt'n. S.)

  Head, Rt. Hon. A. H.

  MacLeod, John (Ross & Cromarty)

  Stevens, Geoffrey

  Heald, Rt. Hon. Sir Lionel

  Macmillan, Rt. Hn. Harold (Bromley)

  Steward, Harold (Stockport, S.)

  Heath, Rt. Hon. E. R. G.

  Macmillan, Maurice (Halifax)

  Steward, Sir William (Woolwich, W.)

  Hesketh, R. F.

  Macpherson, Niall (Dumfries)

  Stewart, Henderson (Fife, E.)

  Hicks-Beach, Maj. W. W.

  Maddan, Martin

  Storey, S.

  Hill, Mrs. E. (Wythenshawe)

  Maitland, Cdr. J. F. W. (Horncastle)

  Stuart, Rt. Hon. James (Moray)

  Hill, John (S. Norfolk)

  Manningham-Buller, Rt. Hn. Sir R.

  Studholme, Sir Henry

  Hinchingbrooke, Viscount

  Markham, Major Sir Frank

  Sumner, W. D. M. (Orpington)

  Holland-Martin, C. J.

  Marlowe, A. A. H.

  Temple, J. M.

  Hope, Lord John

  Marples, A. E.

  Thomas, Leslie (Canterbury)

  Hornby, R. P.

  Marshall, Douglas

  Thompson, Kenneth (Walton)

  Hornsby-Smith, Miss M. P.

  Maude, Angus

  Thompson, Lt.-Cdr. R.(Croydon, S.)

  Horobin, Sir Ian

  Mawby, R. L.

  Thornton-Kemsley, C. N.

  Horsbrugh, Rt. Hon. Dame Florence

  Maydon, Lt.-Comdr. S. L. C

  Tiley, A. (Bradford, W.)

  Howard, Gerald (Cambridgeshire)

  Milligan, Rt. Hon. W. R.

  Turton, Rt. Hon. R. H.

  Howard, Hon. Greville (St. Ives)

  Molson, Rt. Hon. Hugh

  Vane, W. M. F.

  Howard, John (Test)

  Morrison, John (Salisbury)

  Vaughan-Morgan, J. K.

  Hughes Hallett, Vice-Admiral J.

  Mott-Radclyffe, C. E.

  Vickers, Miss J. H.

  Hughes-Young, M. H. C.

  Nabarro, G. D. N.

  Vosper, D. F.

  Hurd, A. R.

  Nairn, D. L. S.

  Wakefield, Sir Wavell (St. M'lebone)

  Hutchison, SirlanClark (E'b gh, w.)

  Neave, Airey

  Wall, Major Patrick

  Hutchison, Sir James (Scotstoun)

  Nicholls, Harmar

  Ward, Hon. George (Worcester)

  Hyde, Montgomery

  Nicolson, N. (B'n'm'th, E. & Chr' ch)

  waterhouse, Capt. Rt. Hon. C.

  Hylton-Foster, Sir H. B. H.

  Nugent, G. R. H.

  Watkinson, Rt. Hon. Harold

  Iremonger, T. L.

  Oakshott, H. D.

  Whitelaw, W. S. I. (Penrith & Border)

  Irvine, Bryant Godman (Rye)

  O'Neil, Hn. Phelim (Co. Antrim, N.)

  Williams, Paul (Sunderland, S.)

  Jenkins, Robert (Dulwich)

  Ormsby-Gore, Hon. W. D.

  Williams, R. Dudley (Exeter)

  Jennings, J. C. (Burton)

  Orr-Ewing, Sir Ian (Western-S-Mare)

  Wills, G. (Bridgwater)

  Jennings, Sir Roland (Hallam)

  Osborne, C.

  Wilson, Geoffrey (Truro)

  Johnson, Dr. Donald (Carlisle)

  Page R. G.

  Wood, Hon. R.

  Johnson, Eric (Blackley)

  Pannell, N. A. (Kirkdale)

  Woollam, John Victor

  Joseph, Sir Keith

  Partridge, E.

  Joynson-Hicks, Hon. Sir Lancelot

  Peyton, J. W. W.

  TELLERS FOR THE AYES:

  Kaberry, D.

  Pickthorn, K. W. M.

  Mr. Legh and Mr. Wakefield.

  Keegan, D.

  Pilkington, Capt. R. A.

  NOES

  Ainsley, J. W.

  Callaghan, L. J.

  Donnelly, D. L.

  Albu, A. H.

  Champion, A. J.

  Dugdale, Rt. Hn. John (W. Brmwch)

  Allaun, Frank (Salford, E.)

  Chetwynd, G. R.

  Dye, S.

  Allen, Scholefield (Crewe)

  Clunie, J.

  Edwards, Rt. Hon. John (Brighouse)

  Anderson, Frank

  Coldrick, W.

  Edwards, Rt. Hon. Ness (Caerphilly)

  Bacon, Miss Alice

  Collick, P. H. (Birkenhead)

  Evans, Albert (Islington, S. W.)

  Bellenger, Rt. Hon. F. J.

  Collins, V. J. (Shoreditch & Finsbury)

  Evans, Edward (Lowestoft)

  Bence, C. R. (Dunbartonshire, E.)

  Corbet, Mrs. Freda

  Fernyhough, E.

  Benson, G.

  Cove, W. G.

  Finch, H. J.

  Beswick, F.

  Craddock, George (Bradford, S.)

  Forman, J. C.

  Bevan, Rt. Hon. A. (Ebbw Vale)

  Cronin, J. D.

  Fraser, Thomas (Hamilton)

  Blackburn, F.

  Crossman, R. H. S.

  Gaitskell, Rt. Hon. H. T. N.

  Bottomley, Rt. Hon. A. G.

  Cullen, Mrs. A.

  Gordon Walker, Rt. Hon. P. C

  Bowden, H. W. (Leicester, S. W.)

  Daines, P.

  Greenwood, Anthony

  Bowles, F. G.

  Dalton, Rt. Hon. H.

  Grenfell, Rt. Hon. D. R.

  Brockway, A. F.

  Darling, George (Hillsborough)

  Grey, C. F.

  Brown, Rt. Hon. George (Belper)

  Davies, Ernest (Enfield, E.)

  Griffiths, Rt. Hon. James (Llanelly)

  Brown, Thomas (Ince)

  Davies, Harold (Leek)

  Griffiths, William (Exchange)

  Burke, W. A.

  Davies, Stephen (Merthyr)

  Hale, Leslie

  Butler, Herbert (Hackney, C.)

  Delargy, H. J.

  Hall, Rt. Hn. Glenvil (Colne Valley)

  Butler, Mrs. Joyce (Wood Green)

  Dodds, N. N.

  Hamilton, W. W.

  Hannan, W.

  Messer, Sir F.

  Slater, J. (Sedgefield)

  Harrison, J. (Nottingham, N.)

  Mikardo, Ian

  Smith, Ellis (Stoke, S.)

  Hastings, S.

  Mitchison, G. R.

  Soskice, Rt. Hon. Sir Frank

  Hayman, F. H.

  Monslow, W.

  Sparks, J, A.

  Herbison, Miss M.

  Morris, Percy (Swansea, W.)

  Steele, T.

  Holmes, Horace

  Moss, R.

  Stewart, Michael (Fulham)

  Houghton, Douglas

  Mulley, F. W.

  Stones, W. (Consett)

  Howell, Charles (Perry Barr)

  Neal, Harold (Bolsover)

  Strauss, Rt. Hon. George (Vauxhall)

  Howell, Denis (All Saints)

  Noel-Baker, Rt. Hon. P. (Derby, S.)

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

  Hubbard, T. F.

  Oliver, G. H.

  Summerskill, Rt. Hon. E.

  Hughes, Cledwyn (Anglesey)

  Oram, A. E.

  Swingler, S. T.

  Hughes, Emrys (S. Ayrshire)

  Orbach, M.

  Sylvester, G. O.

  Hughes, Hector (Aberdeen, N.)

  Oswald, T.

  Taylor, Bernard (Mansfield)

  Hunter, A. E.

  Owen, W. J.

  Taylor, John (West Lothian)

  Hynd, J. B. (Attercliffe)

  Paget, R. T.

  Thomas, lorwerth (Rhondda, W.)

  Irving, S. (Dartford)

  Paling, Rt. Hon. W. (Dearne Valley)

  Thomson, George (Dundee, E.)

  Isaacs, Rt. Hon. G. A.

  Pannell, Charles (Leeds, W.)

  Thornton, E.

  Janner, B

  Parker, J.

  Timmons, J.

  Jay, Rt. D. P. T.

  Parkin, B. T.

  Ungoed-Thomas, Sir Lynn

  Jeger, Mrs. Lena (Holbn. & St. Pncs, S.)

  Paton, John

  Viant, S. P.

  Jenkins, Roy (Stechford)

  Pearson, A.

  Warbey, W. N.

  Jones, David (The Hartlepools)

  Peart, T. F.

  Weitzman, D.

  Jones, Jack (Rotherham)

  Pentland, N.

  Wells, Percy (Faversham)

  Kenyon, C.

  Plummer, Sir Leslie

  West, D. G.

  Key, Rt. Hon. C. W.

  Popplewell, E.

  Wheeldon, W. E.

  King, Dr. H. M.

  Probert, A. R.

  White, Mrs. Eirene (E. Flint)

  Lawson, G. M.

  Proctor, W. T.

  Wilkins, W. A.

  Ledger, R. J.

  Pryde, D. J.

  Willey, Frederick

  Lee, Frederick (Newton)

  Randall, H. E.

  Williams, David (Neath)

  Lindgren, G. S.

  Rankin, John

  Williams, Rev. Llywelyn (Ab'tillery)

  Mabon, Dr. J. Dickson

  Redhead, E. C.

  Williams, Ronald (Wigan)

  MacColl, J. E.

  Reeves, J.

  Williams, Rt. Hon. T. (Don Valley)

  McGhee, H. G.

  Robens, Rt. Hon. A.

  Williams, W. T. (Barons Court)

  McInnes, J.

  Roberts, Goronwy (Caernarvon)

  Willis, Eustace (Edinburgh, E.)

  McKay, John (Wallsend)

  Robinson, Kenneth (St. Pancras, N.)

  Wilson, Rt. Hon. Harold (Huyton)

  MacPherson, Malcolm (Stirling)

  Ross, William

  Winterbottom, Richard

  Mahon, Simon

  Royle, C.

  Woodburn, Rt. Hon. A.

  Mallalieu, E. L. (Brigg)

  Short, E. W.

  Woof, R. E.

  Mann, Mrs. Jean

  Silverman, Sydney (Nelson)

  Yates, V. (Ladywood)

  Marquand, Rt. Hon. H. A.

  Simmons, C. J. (Brierley Hill)

  Zilliacus, K.

  Mason, Roy

  Skeffington, A. M.

  Mellish, R. J.

  Slater, Mrs. H. (Stoke, N.)

  TELLERS FOR THE NOES:

  Mr. J. T. Price and Mr. Deer.

  Sir Frank Soskice: I beg to move, in page 2, line 1, to leave out "prove" and insert "satisfy the jury".
  When the Committee was discussing the last Amendment it was considering whether it should shift the onus of establishing diminished responsibility in toto from the defence to the prosecution. The object of the present Amendment is to put the onus as it were half way. The Scottish practice with regard to establishing diminished responsibility is set out in paragraph 378 of the Royal Commission Report. The object of the Amendment, which would substitute for the word "prove" the words "satisfy the jury," is to try to place the onus roughly speaking where it is placed under existing Scottish law.
  The paragraph to which I have referred states that in Scotland,
  "The onus upon the accused, if he puts forward this defence, is not to establish it beyond reasonable doubt, but only to satisfy the jury that the balance of probability on the evidence is in favour of the view that his accountability and responsibility were below normal."
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  There are three possibilities with regard to the incidence of onus. One possibility is that it should rest fairly and squarely on the shoulders of the prosecution, and the object of the last Amendment was to try to place it on the shoulders of the prosecution. Another possibility is that it should rest entirely upon the shoulders of the defence. As I read Clause 2 (2) of the Bill in its present form, that is where the Bill now places it—that is to say, entirely on the defence to establish affirmatively a diminished responsibility.
  6.15 p.m.
  The Scottish practice is to put the onus half way. It requires that the accused person should show merely on a balance of probability and not beyond reasonable doubt that at the time he committed the offence he was not fully responsible for what he did. The object of this Amendment is to try to put the onus where the Scottish practice now puts it, half way between the two. In other words, if this Amendment were accepted the onus would not be on the prosecution to establish that there was no diminished responsibility, it would not be on the defence to

  455
  establish beyond doubt that there was diminished responsibility, but it would be on the defence to show that on balance of probability—that is to say, to a degree less than certainty—the accused person was not fully mentally responsible for the act of which he was accused.
  In support of that proposal, I urge, as my hon. Friends urged when they were proposing the last Amendment, that it is very difficult for the defence to prove beyond doubt that the responsibility, in terms of the Section, was diminished. The view which prompts us on this side of the Committee to make the proposal we now make is that, on the whole, it is fairer to enable the accused to have the advantage of Clause 2 if he can show, not with certainty but on a purview of all the facts, that it is more likely than not that he was not fully responsible mentally for the act of which he is accused.
  It is a point of substance, and we on this side of the Committee feel that in practice the Scottish view is likely to work out much more fairly and generally equitably in all the circumstances of the sort of case in which this defence is likely to be raised. Although important, it is a short point and does not gain by being stated with prolixity. I shall try not to do so. Perhaps it can be said by the Solicitor-General, if he is to reply, that the language we have chosen does not fully achieve the purpose we have in mind in moving this Amendment. Possibly we should have extended the language we seek to insert into the Clause by including in it a reference merely to the balance of probability as being that which the accused would have to establish.
  If that is the case and the Government feel able to accept the Amendment in principle, we feel sure that the Government draftsmen and the Solicitor-General, with his advisers, will be able without much difficulty to find the appropriate language to achieve what we have in mind and what, we hope, the Government will agree to in principle. It is with that object that I move the Amendment. I hope the Solicitor-General will be able to view it with sympathy and to indicate that between now and Report stage he will choose language which effectively will achieve that purpose.
  I wish to make a subsidiary point. The word "prove", in the context of
  456
  recent decisions, has been invested possibly with a slightly sinister significance in the sense that there is some doubt sometimes as to precisely what is the onus which a person seeking to prove something takes upon himself. Even if the Solicitor-General feels unable to accept in principle the proposal I have advocated, possibly he would agree that in any event, whether one accepts the Scottish view of the law or not, even if one wishes to stick to the Clause in its present incidence, it would be preferable to use language possibly more familiar in the courts than the language at present used.
  I quite agree that the word "prove" sounds a simple and ordinary term, but the task which is upon the accused has been frequently said to be, in more simple language, simply "to satisfy the jury". There is some ambiguity as to exactly how far one has to establish certainty when one has to prove something, but if one has to "satisfy the jury" one is using language which has a well-accepted use in the terminology of the criminal law.
  I suggest that in any case, as a matter of pure drafting, even if the Solicitor-General feels unable to accept the Scottish proposal, he might be able to agree with me, or at least to agree to consider between now and Report whether it would not be better as a matter of drafting to use the more familiar language "satisfy the jury".
  The Solicitor-General (Sir Harry Hylton-Foster): May I say how extremely pleasant it is to have the right hon. and learned Member for Newport (Sir F. Soskice) back again on legal topics on the Opposition Front Bench. I agree with him that this is a short point, and I thought it might be for the convenience of the Committee if I explained our position at once.
  I am glad to say that in this matter we are all seeking to go in the same direction. It is our intention to impose on the defence here nothing more than a burden to prove "that the preponderance of probability is", certainly not a burden "to establish beyond reasonable doubt". We have chosen this word "prove" advisedly, because in England—and this is the part of the Bill which relates only to England—there is, I would submit to

  457
  the Committee, the plainest possible authority that the word "prove" in relation to a defence onus means that the defence has to establish no more than the balance, the preponderance, of probability.
  I will not cite authorities more than this: perhaps the right hon. and learned Gentleman could at some time refresh his memory of the case of Sodeman and, more particularly, the case of Carr-Briant, in 1943. He will find that that was a corruption case. I do not remember the facts with particular detail, but I think it was an allegation of corruption of a Government engineer, certifying in circumstances as to a price. What is important in the context is that the words involved were the words of Section 2 of the Prevention of Corruption Act, 1916, which provides, as the Committee knows, that where money is paid in certain circumstances,
  "the money shall be deemed to have been paid or given and received corruptly … unless the contrary is proved."
  The word "proved" is used.
  There was an appeal from a direction of the learned judge which had said that that meant that the defence had to "establish beyond reasonable doubt"; and the Court of Criminal Appeal quite clearly laid down—and the decision has never been questioned—that the use of the word "prove" imports in that context merely a need to prove the balance of probability.
  In those circumstances, we believe that our drafting does accurately for England what the right hon. and learned Gentleman desires it to do. I therefore advise the Committee that there does not appear to us to be any need, in order to effect the result which he desires, to adopt his Amendment. We prefer to stand firmly upon the word as to which there is an actual decision in this country. I hope that that deals briefly with the point. As the right hon. and learned Gentleman wisely said, it does not improve by repetition, and I would prefer to keep to his example and avoid prolixity.
  Mr. Paget: I have one question, and I, too, will put it very shortly. The fact that a particular matter had to be proved by the defence under the Prevention of Corruption Act is not conclusive.
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  The Solicitor-General did not tell us exactly where this case was or how it arose under the Act. I am bound to say that there are a number of sections.
  The fact that "prove," particularly in a Statute involving commercial transactions—such as the Prevention of Corruption Act—is held to have one meaning does not necessarily establish that the same word will have the same meaning in a different context in different Statutes. I should have thought that on this Statute it would be a little difficult for the court to come to the conclusion that the onus of proof which rests upon the defence in a defence of insanity involves something different from the onus being imposed by this Clause. Indeed, when the Attorney-General dealt with my last Amendment, he said, in the first place, that we could not possibly have circumstances in which one onus of proof applied where the defence was insanity and an opposite onus of proof applied where the defence was diminished responsibility.
  I should have thought that an argument analogous to that would be apt to appeal to the court, and that the court would be apt to say, "Whatever 'proof' as a defence may have been understood to mean under the Prevention of Corruption Act, the purpose here is to make the onus in this defence of lesser insanity the same as it is in the case of major insanity". I have certainly heard charges to a jury in my time which explained to them that what the defence had to prove to establish insanity came very near to the words "to establish it beyond reasonable doubt". I have known a number of cases in which a judge has withdrawn the evidence from the jury altogether on the ground that the evidence was too thin to establish the defence, and has not allowed the jury to consider the defence when the defendant sought to put it forward. Surely that assumes a good deal heavier onus of proof than that described in Scotland.
  For instance, quite often we have a murder which is so motiveless and so odd that it seems itself inconsistent with the behaviour of a sane man. I think probably both the Solicitor-General and myself have had that experience quit" often on circuit. Yet in that sort of case, judges constantly rule that there is no evidence to go to the jury. On the other

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  hand, the very oddity and lack of motive of a crime may be quite sufficient for a jury to say, "We think that on a balance of probability we are satisfied that this fellow was off his rocker".
  I am not very much concerned about the precise measure of certainty when it gets to the jury. What I am concerned about is that judges will not make a practice of saying, "Abnormality of mind? Where is the evidence of abnormality of mind? Will you please refer me to the evidence, to the witness, who referred to abnormality of mind? "One can then reply, "That is something that we ask the jury to infer; that no person of a normal mind could behave like this—in so eccentric a way". I do not want that sort of argument to be cut out.
  A jury may very well be satisfied, on a man's behaviour, that he is abnormal in the mind, but one cannot say that it is proved. Those are the sort of practical issues that arise; and I do not think that a decision based upon the burden of proof under the Prevention of Corruption Act provides an adequate answer.
  6.30 p.m.
  Mr. Simon: I think that we are all in agreement that what we want to see is the same standard of proof—not onus of proof, but standard of proof—which we have under the Scottish law, as we understand it. In other words, having put the onus of proof on the accused, we want -to see that the standard to which he has to rise is no more than a balance of probabilities.
  I should have thought that it was perfectly clear that the words suggested in the Amendment put on the accused a heavier burden than do the words in the Bill. The words "satisfy the jury" are words that are frequently used by the learned judge, in summing up to the jury, as to what the jury have to be satisfied on by the prosecution. The learned judge will frequently say, "Before you can convict, you must be satisfied". That is a very heavy onus of proof. That is the proof beyond reasonable doubt. On the other hand, the word "proof" has been judicially determined as meaning, where used in respect of an onus on the defence, no more than a balance of probabilities.
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  I see the hon. Member for Wigan (Mr. R. Williams) shaking his head, but that is so, not only under the Prevention of Corruption Act but under this very branch of the law. Under the M'Naghten Rules it has to be
  "clearly proved"—
  words stronger than those used in the present Bill—
  "that, at the time of the committing of the act, the party accused was labouring under a defect of reason …"
  and so on. That means no more than a balance of probabilities. That was so, as I understand it, in the case of Sodeman v. The King, which is referred to in Page 230 of the Royal Commission's Report.
  Mr. Ronald Williams: Can the hon. and learned Member quote any precedent for the assertion which I understand him to be making—that when the word "satisfy" is used, it means that one has to be satisfied beyond a reasonable doubt? Is he submitting that, by definition, the word "satisfy" means that, or is he asserting that there are precedents which show that that has been judicially construed, and that the judges have decided that "satisfy" means that? If so, can he quote such precedents?
  The Solicitor-General: Perhaps I may be of assistance if I intervene here. If the hon. Gentleman looks at the case of Rex v. Evans—Jones and Jenkins, Criminal Appeal Reports, Vol. XVII, he will see how near to having to establish beyond reasonable doubt we can get when the words "satisfy the jury" are used.
  Mr. Simon: I am very grateful to my hon. and learned Friend for that intervention. What he says merely reinforces my argument, that the words "satisfy the jury" do put a dangerously heavy burden of proof on the accused. It is perfectly plain, on the authority of Sodeman v. The King, that the word "proved", or even the words "clearly proved", when used as a burden on the defence—and in this very field of the law—mean no more than proved on a balance of probabilities.
  That really answers the only other point made by the hon. and learned Member for Northampton (Mr. Paget), which is that the court would tend to assimilate the burden of the onus in the heavier insanity, as he put it—and the lighter insanity since, so far as the

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  M'Naghten Rules are concerned, the burden on the defence has been no higher than to discharge a balance of probabilities. It seems to me that the same burden, and no heavier burden, would be placed on the accused under the rules relating to diminished responsibility.
  Mr. Hector Hughes: As the Solicitor-General has said, this is a short point, and I do not intend to make heavy weather of it, but I do suggest to him that the Clause as it stands leaves an ambiguity. Who is to be satisfied? Is it the judge or is it the jury? Is it a matter of law or is it a matter of fact? I submit that the words which are sought to be inserted would resolve that ambiguity, and make it clear that it was the jury who was to be satisfied.
  If that is so, we come to the point made by my right hon. and learned Friend, that it becomes a matter of the balance of probabilities. I submit that in a Clause of this sort it is very undesirable to leave an obscurity or an ambiguity of this kind. The Solicitor-General a moment ago, in reply to an intervention by my hon. Friend the Member for Wigan (Mr. R. Williams), referred to an authority, but the mere reference to an authority by name is unsatisfactory unless he will give us the extract from the relevant judgment on which he relies. I hope that before this short debate ends, the hon. and learned Gentleman will give the Committee the benefit of the particular part of the judgment upon which he relies for what he has just said.
  Mr. R. Williams: My difficulty arises from the fact that I could not help noticing that the Solicitor-General, in replying to my intervention, invited me to consider a certain case, which he cited, and assured me that, on consideration of the judgment to which he referred, I would find that the word "satisfy" came very near, as he said, to proving beyond a reasonable doubt. I submit to him that if he considers the whole range of cases where one has to prove something, there is room—I put it no higher than that—for the court to say, by definition, that proof in such case shall be beyond a reasonable doubt. There is also room for the court to interpret the word in such a way that it will mean proof on the balance of probabilities.
  That, it seems to me, is the case for this Amendment. It may be that the
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  Solicitor-General would feel, for the reasons which he has himself given, that the word "satisfy" does not come up to the point which he wishes to establish, but he cannot include in the Bill the word "prove" without giving to the court a clear discretion that the burden of proof shall be of a nature which will entirely frustrate his intention as expressed before the Committee today.
  That being so, since he himself has put forward a word which can result in the frustration of his own argument, surely, by implication, he should accept the submission that there is a case for him to look at. I do not argue that this is a matter where one can take the word "satisfy" and prove to the satisfaction of this Committee that that word, as compared with the word "prove" is the better term to use. I say that, by using the word "prove", a vast number of precedents are involved where the court has sometimes decided that that word means to prove beyond a reasonable doubt, and sometimes has accepted a lesser burden of proof.
  We have in the law relating to industrial injuries a very large experience of the submission of arguments and the extent to which the court has to be satisfied, and it has been clearly established that the court must be satisfied on the balance of probabilities. My difficulty in coming to a decision on this Amendment is that, although the Solicitor-General seems to be quite satisfied that "prove" is the best word he can use, he uses in support of it arguments which put me in great doubt.
  If his intention is as he says—and I accept it without question—and if he cannot accept this Amendment in its restricted form, will he arrange matters in the way suggested by my right hon. and learned Friend the Member for Newport (Sir F. Soskice) so that what in fact will happen is that it shall be done on the balance of the probabilities, and will he not be afraid of a longer expression when he comes to consider the point, because it may be one of these problems which are insoluble at the level of deciding it by one single word?
  The Solicitor-General has certainly satisfied me that there is a great penumbra of doubt. He has done that by the arguments which he has submitted, and I beg him, if he does not

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  accept the Amendment, to take the matter away for further consideration to see whether he can find words which will express his wishes in the matter. When the matter comes before the court, it will be for the court to interpret what is apparently a clear statement as set out in the Measure, and not the perfectly honourable intentions as expressed by the Solicitor-General.
  Mr. Hale: In the course of the last fifteen minutes or so I have become a great supporter of Jack Cade, and if I had been born a few hundred years earlier I think I should have been his honorary legal adviser. I have been paying the respectful attention that I always pay to Members learned in the law, and yet I am left in some considerable doubt as to why we are having this discussion at all.
  My hon. and learned Friend the Member for Northampton (Mr. Paget) says that in his view the word "satisfy" means "satisfy" and can be judicially interpreted as meaning "satisfy". The hon. and learned Member for Middlesbrough, West (Mr. Simon) says that if the word "satisfy" is put into the Bill it may well be interpreted as meaning prove.
  Mr. Simon: No, "satisfy beyond reasonable doubt".
  Mr. Hale: The hon. and learned Member said "a higher degree of proof." I had better warn the hon. and learned Member for Middlesbrough West that I am trying to comment upon the meticulous nature of the arguments which have been put forward and he is adding a little fuel to the fire which I was trying to ignite.
  The hon. and learned Member for Middlesbrough, West said that, in his view, the word would mean "prove" and, not only that, but "prove in a certain sense", because the word "prove" has been judicially interpreted as meaning in one case "establish to the complete satisfaction of the jury" as is used in the case of an ordinary conviction, and the word "prove" has been used by the Solicitor-General as meaning "establish a balance of probability". As I understood his argument, the word "prove" would mean "satisfy", and the
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  word "satisfy" does not mean "satisfy", whereas I gathered that my hon. and learned Friend the Member for Northampton is clear that the word "prove" would in no circumstances mean "prove".
  I should have thought that those of us listening to this matter with some desire to obtain finality would like an answer to two simple questions. The first is this. If we are going to try to establish by this Bill the Scottish procedure, which is generally acknowledged to be the most desirable and which has had the advantage of having worked for some years and is generally put forward as being a practice which has succeeded, the first thing to do is to find out what it is. Incidentally, I do not know why it is that the Scots are so far ahead of us in legal practice, but we find that in nearly every facet the administration of justice in Scotland seems to be conducted on better and more humane lines than in this country.
  6.45 p.m.
  As I was saying, if we are to establish the Scottish practice, we should first find out what it is. Out of the public purse we pay Ministers whose duty it is to represent the affairs of Scotland and answer these questions. I am glad to see that the right hon. and gallant Gentleman the Home Secretary is now with us, but for a long period when we were discussing purely Home Office matters we had no representative of the Home Office at all. We have now been discussing a Scottish question for a long time without a single observation from Scotland.
  Surely nothing could be simpler an hour ago than for the Lord Advocate to rise and tell us what is Scottish procedure. He must have it at his fingertips. It must be a matter of daily experience to him. If he would tell us how it works, we should have something on which we could exercise our judgment. Surely the Lord Advocate will respond to that invitation. I do not want to be indelicate about these things, but he is one of Her Majesty's servants. He is in the position of one of Her Majesty's servants, responsible to Parliament. We are the people who have voted his salary out of the Supply granted to Her Majesty from year to year. Surely there is no reason why he should not perform

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  his duties. The trouble is that this business of overstrain is running throughout the Government.
  The Temporary Chairman (Mr. W. R. Williams): I wonder if we could now have the hon. Member's views on the Amendment?
  Mr. Hale: Do I understand from that Ruling that overstrain does not come within the issue of responsibility, Mr. Williams?
  The Temporary Chairman: I am merely ruling (hat the Amendment before us is the one on which the hon. Member ought to be exercising his mind.
  Mr. Hale: I have been dealing with the question of the Scottish theory of diminished responsibility, which has been the subject of speeches which have been made without any rebuke from the benches opposite. Surely if we are discussing diminished responsibility, we ought to ascertain what it is, and surely it is not out of order to ask a Scottish Law Officer to give some explanation of the Scots law. With very great respect, Mr. Williams, if the Scottish Law Officer is sitting there and refuses to make any observation or reply, we are bound to reach a situation in which one might ask one of my right hon. Friends to move the adjournment of the debate in order that we could have the necessary information which has so far been refused to the Committee. [Interruption.] I do not think one reports Progress in Committee; I think one has to move the adjournment of the debate on the Question. However, one could move the appropriate Motion.
  My second point is this, and it seems to me to be a simple point which I should have thought would have obtained universal acceptance. It is common ground now that in this discussion hon. Members on both sides of the Committee think it would be desirable for the matter to be left to the jury on the basis of the establishment of the balance of probability. Why should we? The hon. Member for the Isle of Thanet (Mr. Rees-Davies) who pops in for five minutes, and who is sitting reading a book—
  Mr. W. R. Rees-Davies: Would the hon. Gentleman like to know why I popped out and brought in the book? It conclusively answers the whole point which he has been making.
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  The book is Criminal Appeal Cases, Volume XVII, and I am reading page 122, the case of David Evans-Jones. This answers the whole of the matter to which we have had to listen during this wearisome debate. Lord Chief Justice Hewart said that according to the Prevention of Corruption Act, the payments in that case were deemed to be corrupt
  "unless the contrary is proved."
  Referring to the word "prove", he said:
  "The explanation required is an explanation which satisfies the jury."
  That, as the hon. Gentleman well knows, is a balance of probabilities. May we therefore terminate this debate and get on with something important?
  The Temporary Chairman: Order. The hon. Member is making a speech.
  Mr. Hale: This is a fascinating attack to come from a junior back bencher upon the Law Officers of the Crown.
  Mr. S. Silverman: Hear, hear. It is the exact opposite of what has been suggested.
  Mr. Hale: If the hon. Member for the Isle of Thanet had been here, he would know that that is exactly what we have been saying and what those on his side have not been saying. The doubt was introduced on his side of the House. We were clear in our minds. Doubt came because hon. Members opposite said it was not correct and there was a doubt about the matter. I, personally, would prefer the opinion of the hon. Member for the Isle of Thanet to that of the Attorney-General, though I would not say I would prefer it to that of many of my hon. Friends. But, surely, there must be a doubt, if every person who spoke on the matter has expressed his doubt.
  Who, having heard the speech of the hon. and learned Gentleman the Member for Middlesbrough, West, could say there was no possibility of doubt? The hon. and learned Gentleman, who always puts his views temperately and moderately, said that, on the whole, he thought he was right in saying such-and-such, and, on the whole, he thought my right hon. and learned Friend the Member for Newport (Sir F. Soskice) was wrong.
  If we are in a situation where everyone has a doubt except the hon. Member for the Isle of Thanet, what should be done?

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  The words are perfectly clear for everybody to see and understand. Why on earth should we have to adopt some old legal formula because thirty or forty years ago some judge said it meant something or other? Why not say "balance of probabilities"? Why not put it in the Statute and make it clear?
  It is a smear often levelled unjustly against the legal profession that it revels in complexities. When one has to earn a living at the law one does not revel in complexities; one wants each case over as quickly as possible because the fees are fairly small and the moment one job is finished one can get on with the next. Learned gentlemen practising in the Temple who have every facility available to them may be in a different position. Those of us who practise in villages and who possibly have to travel 30 or 40 miles to look up remote cases do not revel in complexities at all.
  Our interests are identical with those of hon. Gentlemen opposite. It is very simple. If we want to show that the duty of the jury is to ascertain what is the truth on a balance of probabilities, I can see no reason on earth why it should not be put in the Statute, why it should not be made clear, and why the average juryman should not understand what his duty is, even before the judge tells him.
  Mr. S. Silverman: I do not wish to detain the Committee for more than a few minutes. I really consider that these procedings are becoming—I hope the word is Parliamentary—almost farcical. [HON. MEMBERS: "Hear, hear."] At least, we have produced unanimity on something.
  Here is a situation in which the Government have chosen to do a thing in a certain way. There have been several protests about it, but I shall not repeat those. What is it that they are seeking to do? This is the first attempt, I think, which has been made for some hundreds of years to put into a Statute something like a definition of murder, and to define by Statute where the onus of proof shall be, yet leaving in doubt what the standard of proof is to be.
  Having decided to do that, in what atmosphere are we dealing with it, and by what procedure? We have had a debate now for about three-quarters of an
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  hour from which it has emerged that both sides of the Committee desire the same thing. Having established by the previous Amendment that some onus of proof is put on the defence and no onus of proof upon the prosecution, we have in the discussion of this Amendment, been considering what degree of proof is required. We have agreed that it is something less than would be required of the prosecution in establishing the main charge.
  It is quite clear that in order to produce a verdict of "guilty" in a case of murder or any other crime, for that matter, the standard of proof required of the prosecution, where the onus is on the prosecution, is a very high standard indeed, although it is only described by saying that the prosecution shall prove it. It is said that the prosecution shall prove it, and everybody means by that that they shall prove it beyond reasonable doubt, the highest standard of proof which can be required in human affairs.
  Having agreed that the onus of proof in establishing the defence of diminished responsibility shall be on the defence, and having agreed also that the standard of proof required on that point shall be something less than the standard required of the prosecution on the main charge—in the one case it has to be proved up to the hilt, as it were, and in the other it has to be proved only on a balance of probabilities, which is a totally different thing, and a lighter onus, as everyone knows—we then find that the Bill as drafted uses exactly the same word for both standards. It uses the word "proof" where the onus is transferred to the defence, and the same word is used to define what is required of the prosecution. Yet, though the same word is used, we have unanimously agreed that we mean different things by it.
  Is that a sensible way of legislating? Apart from the atmosphere of unnecessary controversy which the Government have produced in this non-controversial matter, would anyone think that that is the proper way to deal with a subject of this kind? Surely, the duty of the Government is perfectly clear. It is obvious that nobody is satisfied that the use of the word "prove" in the provision as it now stands is sufficient to make it clear that a judge charging a jury in a case where this defence is raised shall tell the jury that all that is required of

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  the defence is that it shall satisfy them that the balance of probabilities is that there was diminished responsibility. No one thinks that the word "proof" standing by itself is sufficient to do that.
  It has been said, and said with some force, that the words proposed by my right hon. and learned Friend the Member for Newport (Sir F. Soskice) are equally inapt to establish what is required beyond argument or controversy. Let us agree that that is so. If there are people who doubt it, then there must be some doubt about it. But in that situation, can the Government really stand pat on words which everybody says are ambiguous? Why should they? Why should not the Government accept that something has been said here which requires to be looked at, and say that they will, between now and Report stage, consider whether they can find some form of words which will leave the onus of proof on the defence, where they think it ought to be, but will make it clear that the degree of proof, the onus of which is put upon them in that way, shall be something short of proving the matter beyond reasonable doubt and that it shall be enough to satisfy the jury that a balance of probabilities establishes the defence?
  Is there any conceivable reason why the Government should not take that attitude? If they do not take it, then it will be through, as I described it on another Amendment, obscurantism for its own sake. They do not desire to make the law clear. All they desire to do is to rush something through in advance of something else, in the hope that the House can thereby be prevented from doing what everyone knows it would wish to do.
  Sir F. Soskice: Speaking for myself, I would not ask the Committee to divide on this particular Amendment. My principal reason for not asking it to do so is this. I feel I must concede that the language which we have suggested is not necessarily appropriate to achieve the purpose which, on both sides of the Committee, we have in mind. Equally, quite clearly the Solicitor-General has given thought to the matter.
  7.0 p.m.
  We both want the measure of proof to depend upon a balance of probability. We on this side, having regard to the
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  language chosen, are uncertain whether the Clause achieves that purpose. The word used is "prove" and the Solicitor-General and others of his hon. Friends point out that in other contexts the word "prove" has been defined judicially as requiring proof on a balance of probability. I must confess that the argument which they adduce does not quite satisfy me.
  The two cases cited—the Sodeman and the Carr-Briant case—are, I quite agree, in a branch of the law broadly analogous, but they are not quite the same. This is a completely new Clause. It is a completely new departure in the law. We have also been referred to a decision on the Prevention of Corruption Act. I would say to the Solicitor-General that it cannot be said with any degree of certainty that in the context of this new kind of Clause the word "prove" would necessarily be construed in exactly the same way. "To satisfy the jury" is, perhaps, open to equal objection.
  I suggest that the matter be left with the Solicitor-General for him to think whether between now and Report stage he cannot find language to put the matter beyond doubt. He himself conceded that in many contexts and branches of the law the word "prove" is habitually used to connote "prove beyond any reasonable doubt". It is not certain that in this context it would not also be so construed. As many of my hon. Friends have said, why leave the matter in doubt when, by looking for appropriate language, that doubt could be removed? Could it not even be removed if we use language like "show on a balance of probability" or something of that sort?
  I feel sure that the Solicitor-General wants, if he can, to meet the wishes of the Committee in removing the doubt. If he adheres to the language of the Clause, he will be leaving a doubt where there need not be a doubt. I hope, therefore, that he will say that while he certainly cannot accept the language which we propose, he will before the Report stage have another look at the matter with his advisers and see whether it is not possible, by using possibly a slightly expanded expression, to make the matter clear beyond any controversy.
  It would be something of a catastrophe when this new and important change is made in the law if five or ten years hence

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  some court of criminal appeal has to decide the meaning of the word "prove" in that context. We can avoid that happening and the danger that it would cause. Will the Solicitor-General say that between now and the Report stage he will have another look at it and see whether that unnecessary risk cannot be obviated by the choice of some possibly slightly expanded phrase? We hope that he will do so.
  The Solicitor-General: In reply to the courteous approaches of the right hon. and learned Gentleman, which are entirely irresistible, of course I will look at the matter again. I do not, however, wish to be misrepresenting any hope, because I have already given this matter the best consideration I can and, in the present state of my knowledge, I do not find it a matter of ambiguity. I regard it as a satisfactory way of legislating towards the end that we all seek to achieve. But I will certainly, to make assurance doubly sure and without hesitation in correcting myself in public if I find the slightest doubt about it, look at it again.
  Mr. Paget: Before we leave the Amendment, there are some questions which I should like to ask the Lord Advocate. It appears that, although we are not very satisfied with the Government's words, they are not very satisfied with ours, although we are all agreed that we have a common purpose. It might not be wholly a question of the Government thinking out the right words by the next stage; we ourselves may have thought out better words by then.
  What is the direction given in Scotland to a jury with regard to this matter? Are the members of a jury told that they have to look at all the circumstances of the case and see whether on a balance of probabilities they feel that this is a case of diminished responsibility or not? That is my first question: what is the direction?
  Secondly, does it ever happen in Scotland that when the defence counsel has sought to raise the question of diminished responsibility, the judge says to the jury, "That is a verdict which you must not find"? Thirdly, in Scotland, is a jury allowed to infer diminished responsibility from the circumstances of
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  the crime itself? I should be grateful for this information, for if we have it it is likely that the English courts will be influenced by the Scottish practice, and I would be grateful to know what it is before we leave the Amendment.
  The Lord Advocate (Mr. W. R. Milligan): I will try to answer the hon. and learned Member's questions in as short a compass as I can. First, he asked what was the usual direction given in cases of this kind. Before I give him a sample direction, perhaps I may remind the Committee of part of a direction which is referred to in page 392 of the Report of the Royal Commission, in which the Lord Justice Clerk used these words:
  "Even if the prisoner has not proved that he was insane at the time, has he proved…"
  So the word "proof" is used in Scottish law, although, as we shall see presently, it is really balance of probability that is expected.
  Continuing the answer to the hon. and learned Member's first question, I should like to give the Committee briefly what I think was a most adequate charge by the late Lord Cooper, in the case of Braithwaite. He said this:
  "There was one passage in Mr. Morison's address which leads me to add one further word. If the Crown have established that the accused did this thing, it is not for the Crown to go further and show that he was fully responsible for what he did; it is for the accused to make good his defence of partial irresponsibility, and that means that he must show you that the balance of probability on the evidence is in favour of the view that his accountability and responsibility were below normal. If you think the balance of probability to be in favour of that defence, you must sustain it, and your verdict will be culpable homicide. If, on the other hand, doing your duty fearlesslessly and honestly to the best of your ability, you cannot find in the evidence laid before you material to justify the conclusion that the balance of probability is in favour of this defence, then I have to tell you that it is your duty to return a verdict of murder."
  That accurately sums up the position as it is normally put to the jury in the charge.
  Secondly, the hon. and learned Member asked whether I knew of any circumstances in which the judge refused to leave to the jury the possibility of reducing the crime from murder to culpable homicide. I cannot at the moment recollect any case where it was specifically removed from the jury, but I can certainly envisage a

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  case arising. If there was no evidence upon which a reasonable jury could say that even on the balance of probability there was some form of diminished responsibility, the judge would be bound to—and, I am certain, would—remove it from the jury.
  The third point raised by the hon. and learned Member was whether diminished responsibility could be found to exist merely on what I might call the factual evidence, on the circumstances of the case. I know of no case in which a plea of diminished responsibility succeeded without medical evidence. It is difficult to be categorical, but the mere nature of the crime would not, in my view, be sufficient to satisfy the criteria of diminished responsibility.
  Mr. Paget: The sort of case I have in mind is that of a case I had in Leicester some time ago. A man left home, walked for some nine hours and in the night drove a knife into the back of a perfect stranger in the street, continued to walk along the street, and was not discovered, but two days afterwards went into a police station and produced the knife. In that sort of circumstances, would it in Scotland be admissible to a jury to infer that that sort of man was so abnormal as to be irresponsible?
  The Lord Advocate: It certainly would be a factor which the jury would be entilted to take into consideration but I would not be prepared to say that, standing alone, it would be sufficient.
  Amendment negatived.
  Motion made, and Question proposed. That the Clause stand part of the Bill.
  Sir F. Soskice: I think that on both sides of the Committee we would recognise that this Clause contains a new and much more humane approach to the problem of irresponsibility in relation to guilt for crime than that which hitherto has been embodied in our law, and I believe that we all, as we have indicated, greatly welcome the insertion of this Clause into the Bill. There is, however, one anxiety which I personally feel and which prompts me to put a question to the Home Secretary, when he has imbibed spiritual nourishment at the Official Box and is able to resume his seat. Let me outline the problem, so that he can deal with it when he comes back.
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  It is a problem which has already been put in our debates on Amendments proposed to the Clause. At the moment the Home Secretary has a completely unfettered discretion in deciding whether or not he will recommend a reprieve to Her Majesty when a person has been convicted of murder. He can consider all circumstances which seem to him to be pertinent to the question of the accused's responsibility, and it is open to him, when he thinks that there is a sufficient degree of irresponsibility, to decide that he ought to recommend a reprieve upon the basis that it is scarcely fair to hold the accused as fully responsible and fully accountable for the act which he did. That is the situation at the moment.
  Some people have justified the retention of the M'Naghten Rules upon this basis. They say, "After all, the application of the M'Naghten Rules winnows out those persons who are suffering from a really serious disease of the mind. People who are really mad are, because of the application of the M'Naghten Rules, excused from the full consequences of their acts. "They say," After the M'Naghten formula has been applied, if the jury has come to the conclusion that the accused person is not to be excused because of the application of those Rules, he still nevertheless has a second chance. The Home Secretary, in the exercise of the unfettered discretion that he has, looks, as he does, at the whole circumstances of the case, the provocation to which the accused may have been subjected, the weakness or instability of mind that he may have indicated, particular circumstances of hardship or tragedy which may in some way have conduced to the carrying out of the crime. All these things he may take into account, and he may decide, upon consideration of them all, whether he thinks there are circumstances in the case which justify him in recommending a reprieve."
  7.15 p.m.
  Many of my hon. Friends on this side of the Committee feel some anxiety on this score. Suppose a jury has been asked under the Clause to pronounce upon the question whether the accused is suffering from diminished responsibility, and suppose the jury has answered that question in the negative, indicating that, in its view, there are no adequate grounds for finding diminished responsibility in the

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  case. In practice, is the Home Secretary going to feel inhibited in the exercise of his own discretion in so far as that discretion touches the question of diminished responsibility?
  I know that Government spokesmen who answered that point during our earlier debates intimated, as is obviously the case, that the Clause does not in any way affect or diminish the Royal Prerogative in that respect. Quite clearly it does not. It is not so worded, and it is not intended that the Clause should do so. Would it not, however, be the case that a Home Secretary, considering the circumstances of a crime, would ask himself, when he considers the mental condition of the accused person, has not the question of responsibility in effect been concluded by the verdict of the jury?
  If that is likely to happen we should feel that this humane Clause, which, as I have said, we welcome, may have unfortunate indirect consequences. It may mean that a Home Secretary may not feel, as now he does, that he may go at large into the matter and consider generally whether there are grounds, however slight, however difficult to define, however imponderable, leading to the conclusion that, taken with other factors in the case, perhaps, the accused ought not to be held fully responsible. May he not feel, if there is a verdict adverse to the accused on the point of irresponsibility which he has before him, that really he cannot go into that aspect of the case? May he not feel that, so far as the mental condition of the accused is concerned, he must close his mind to further consideration of that question? If that should be the case, we think, as I have said, that that would be a very unfortunate consequence.
  I agree that the Clause does not say that that is or is not to be the case. However, I would suggest to the Solicitor-General, or whoever is to reply on behalf of the Government to this debate, that serious consideration should between now and Report be given to the question whether some wording should not be incorporated in the Clause providing, in effect if not in terms, that the Home Secretary, in approaching the question of the mental condition of the accused, should, as it were, approach it completely de novo, look at it afresh, and
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  should put out of his mind the fact that the jury in the case may have pronounced adversely to the accused on that point.
  I respectfully put to the Government the view that this is a point of great importance and substance. After all, for decades our criminal law in this aspect has proceeded upon the basis that in all cases the accused has some hope; that even though the jury may have felt unable to apply the M'Naghten Rules formula, nevertheless the matter is still left at large to the Home Secretary. The Home Secretary, using his wise discretion upon a review of all the facts relevant to the case, can, if there is any real ground which could be taken into account in favour of the accused, recommend a reprieve. It would be most unfortunate if that wide, unfettered discretion were, in consequence of this endeavour by the Government to introduce a new humanity into the administration of the law, to be inhibited in any way. I hope it will not be, but I fear that it may be.
  The Home Secretary looking at the matter may well feel in a real difficulty if he wishes to say to himself, "I do not agree with the verdict of the jury. The jury has, on a balance of probabilities, said that it does not think the man in question is suffering from any mental instability. I myself feel inclined to think that he is. I feel that as a jury properly instructed has pronounced upon it, it is hardly open for me to go into the question again."
  Therefore, I would urge the Government to give serious thought to the question whether, in order to avoid the risk of what would really be a retrogressive influence in the administration of our criminal law, they ought, between now and Report, to include some words which in proper form would have the effect of saying that the Home Secretary, when he approaches the matter, when he decides how he will exercise his discretion in the matter of recommending a reprieve, should, to put it shortly, put out of his mind the fact that the jury may have pronounced adversely to the accused on that particular point. I hope that the Government will be able to say that they will seriously take into account that particular question and see whether or not some wording should be included in the Clause to effect that purpose.
  Sir Patrick Spens: I want to welcome this Clause being brought into English law, as a Scotsman who has practised for many years as an English lawyer, both generally and for one very particular purpose. Some right hon. and hon. Members may remember that when the Army and Air Force Bills came before us in Committee a very powerful letter appeared in The Times from Professor Smith of Aberdeen, in which he pointed out that the Bills provided, of course, that it was English law that would apply to civil offences tried by court-martial, and that meant that in the case of a Scottish Service man he might find himself being tried for murder in certain circumstances under the English law and he would not have available for him the defence of diminished responsibility.
  We took a good deal of time in Committee discussing that point, and then the rather unsatisfactory compromise was introduced by the learned Law Officers from Scotland which merely provided that certain soldiers should be sent back to Scotland for trial so that they could get the benefit of this particular defence under Scottish law. With that, those Bills went through and as I read them in conjunction with Clauses 8 and 9 of this Bill, on which there will be more to be said, I understand now that this defence is available not only for every civilian being tried in the civil courts in this country, but for every Service man, whether he be English, Scots, Irish or Welsh, who is tried by court-martial under that Section of the Army Act and of the Air Force Act which authorises civil offences to be tried by court-martial. I do not think there is any doubt about that as this Bill is worded, and, if that is so, of course it will remove a good deal of the dissatisfaction felt by Professor Smith and other lawyers in Scotland that Scottish boys suffered when they became members of the Services if they got into trouble and found themselves being tried for murder.
  Therefore, I welcome this Clause, not only generally, but because we have got rid of that difficulty in those two Service Acts, and I hope that, in due course, the same provisions will be made for the Senior Service when that Bill comes before the House.
  Dr. Stross: A little earlier we heard it said by the Lord Advocate, speaking of the law in Scotland, that he did not think that in any case of the type that we have in mind an acquittal was made save where medical evidence was given and that in all cases where there was a plea of diminished responsibility there was always medical evidence given before it was accepted, and that he would not expect that it would be put forward without some support by a medical man.
  I rise merely to say that one's thoughts as a medical man on these issues are by no means clear. I speak for myself entirely at the moment. In the past and up to today there has been usually a conflict of evidence in the courts on these matters. Sometimes it must be very distressing and confusing to the judges, and it is certainly distressing to the medical men themselves. I do not see how we can overcome it easily without meeting with some other kind of complications.
  It is, of course, possible for independent medical men to be called in. I think that in some countries that is done. In some countries the prisoner is in the charge of the mental hospital, under the care of independent psychiatrists. The court itself, I believe, in England can ask for an independent view. But when we reach what we are now discussing in this Clause and look at the words which say:
  "Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility …"
  One wonders whether, despite these careful words, one will not get confusing, difficult borderline cases, for example, cases that have been called psychopathic. The Royal Commission has on page 139, paragraph 400, a most interesting observation which I should like to read:
  "We may here refer also to the most interesting evidence in the same field put before us by Dr. D. Stafford Clark and Dr. F. H. Taylor, based on E.E.G. examination of 94 persons awaiting trial on charges of murder in recent years."
  Here comes the most interesting part of the observation:
  "The most striking feature of this inquiry was that an abnormal E.E.G. record"—

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  That is an encephalograph, I presume—an electrical tracing of the brain—
  "was found in no fewer than 14 out of 18 cases in which, so far as could be ascertained, the crime was without motive, although the prisoner seemed, on clinical examination, to be sane and normal."
  I think we are bound to keep an open mind in these cases.
  I think that we are bound to try to interpret this Clause—and I hope that it will always be interpreted by learned judges as widely as possible and by juries. It is an expanding field. We certainly do not know very much about this particular type of borderline case, yet new evidence is cropping up quite rapidly now, and my plea is that we here in Committee should accept that people who apparently seem to be quite sane and quite normal on clinical examination, or would have been found to be perfectly sane or normal on clinical examination, now can, in certain cases, where they commit crimes apparently without motive, show on these careful new modern tests an abnormality which is not shown by really normal people. If we accept, therefore, the implication—and it is our duty to accept it—that as time goes by we shall have methods by which we can get a more accurate diagnosis in these apparently motiveless crimes, we shall be carrying out what I am sure is the general wish of the Committee to interpret the Clause as generously as possible.
  7.30 p.m.
  We have heard a good deal of discussion about the retention of the word "prove". The arguments that I have heard appear to me to show that there is some evidence that the word as it stands will do for English law, and I am sure that judges will always advise juries on its interpretation. We are in an unknown sphere of knowledge which is expanding the whole time. The more we learn and know about this subject from the purely medical point of view the more we shall hesitate to have recourse to the most rigorous punishments of the law when we are satisfied that it is possible to make mistakes and scientific evidence is available in that direction.
  Mr. Simon: I do not want to detain the Committee at great length, because I have already spoken on the Death Penalty (Abolition) Bill on this subject of
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  diminished responsibility, and, indeed, I moved an Amendment which could not at that time find acceptance. I am very glad indeed that the Government have seen right in this Bill to bring in and make part of the law of England the doctrine of diminished responsibility. I want only to draw attention to the constitutional aspect of the question.
  It always seemed to me a very serious defect in our laws on homicide that the M'Naghten Rules were really drawn up and written in a form which bears no relation to modern medical knowledge and were retained in that form, it seems to me, out of distrust of the jury. That is a most unsafe foundation for our criminal code. It seems to me that the man should be convicted whom the jury thinks should be convicted, and that it is quite wrong to apply an artificial rule of law out of distrust of the jury.
  May I be permitted, without being thought egotistical, to read something I wrote about a year ago on this subject? I then said:
  "… the formula for determining the unsoundness of mind which excuses from criminal responsibility is such that many persons are sentenced to death who are subsequently reprieved: this takes place after medical evidence has been given privately to the Home Secretary, who applies a test of responsibility quite different from that known to the law. By parliamentary convention a refusal to advise the exercise of the prerogative of mercy is not debatable until the sentence of death has been carried out, and where sentence is respited no reasons are given. There is thus neither judicial determination nor effective parliamentary control: there is merely the exercise of an unfettered administrative discretion."
  By introducing this doctrine we have restored to the jury, directed by the judge, the determination of the effective guilt or innocence of the accused and those people can together determine very largely now what sentence shall be imposed upon him, whether a capital sentence, a verdict of murder, or a verdict of manslaughter.
  We should be extremely grateful to my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) and his Committee for their part in influencing opinion in the country in favour of reform. We must not lose sight of the fact that the Royal Commission, with all its massive documentation which is so extremely valuable, did not recommend this reform—which seems to indicate that we must not take the recommendations of

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  the Commission as sacrosanct. I think that it has been generally accepted throughout the House of Commons and this Committee that the Commission erred in refusing to recommend this improvement in the law. I welcome the Clause for all these reasons and I congratulate the Government on having introduced it into the Bill.
  Mr. S. Silverman: I too welcome the Clause, and I think that this is one of the rare occasions, probably the only occasion through this long and sometimes rather bitter controversy, in which everybody is pleased and everybody has something on which to congratulate themselves.
  Mr. Simon: Each other, not themselves.
  Mr. Silverman: To congratulate each other would be even more graceful and just as justified.
  I agree with the right hon. and learned Member for Kensington, South (Sir P. Spens) in saying that he and his country have ground for congratulation in that the English have been persuaded in one respect, at any rate, to align their law with the more civilised law north of the Clyde.
  Sir P. Spens: Not the Clyde.
  Mr. Silverman: I beg pardon. I should have said north of the Border. It comes from the bad legal habit of not always using a simple word where that will do. Shall we say the law of Scotland?
  The hon. and learned Member for Middlesbrough, West (Mr. Simon) is also entitled to congratulation in that he will now perhaps see part of his pamphlet become the law of the land. I think that he did himself and some others a little inadvertent injustice in saying that at the time when he advanced the claims of this reform upon the House of Commons it did not then find acceptance.
  Mr. Simon: I said that the Amendment did not find acceptance. I think that there was general agreement that there was much to be said for the doctrine.
  Mr. Silverman: That is quite right. I refer to the matter only because it seems to me that one of the curious and perhaps a little pathetic ironies of history in this matter is the manner, time and circumstances
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  in which we have come to accept this doctrine. The hon. and learned Member will remember that the Amendment which he advanced, although it did indeed advocate the reform which by this Clause we will be enacting, did it as an alternative or a substitute, or at any rate a condition precedent, to any consideration of the question of the capital penalty at all.
  The argument put forward was that one of the anomalies, and possibly the principal anomaly in the law as it then stood, was that murder was always capital and convictions were made and capital sentences inflicted when we all knew that the administrative processes would step in where the judicial process had terminated, in order to save the accused administratively from the hard rigours of the law as it then was—and that if only we did that early the case for capital punishment or not, on its merits, would be freed from embarrassments arising out of anomalies of this kind and it could be better discussed in that way. Whereas the rest of us thought that if only we abolished the penalty altogether these matters, although they would remain important, would be less important in practice than they were.
  The interesting thing in this Clause—and there is a certain element of irony in it—is that the Government, by this Bill are themselves abolishing the capital penalty, except in certain instances which, no doubt, we shall be discussing later. And we are now introducing the doctrine of diminished responsibility for murders which, by this Bill, will cease to be capital. In other words, we too on this side of the Committee successfully resisted the Amendment of the hon. and learned Gentleman on that occasion, though we have been rather deprived of the spoils of our victory since. Nevertheless, we resisted it successfully then on that ground, but we are now finding ourselves in the position tonight that the Government have accepted our view—the view which they resisted then and which they could not persuade the House not to adopt. The Government are abolishing the capital penalty on their own estimate for, at any rate, three-quarters or five-sixths of capital crime and, in spite of that, they are introducing the doctrine of diminished responsibility,

  483
  and still limiting it to murder which, by their own Bill, ceases to a large extent to be a capital crime at all.
  That seems to me to be an ironic way to have reached this situation. I do not think that we need complain about it because history, like other things, moves in a mysterious way its wonders to perform, and the miracle has been performed. When this Bill becomes law we shall have abolished much of the capital penalty, and the hon. and learned Gentleman and the rest of us will have got our way about diminished responsibility as well.
  Now a word arising out of what was said by my hon. Friend the Member for Stoke-on-Trent, Central (Dr. Stross), relating it to what was said by my right hon. and learned Friend in opening the discussion on this Question. A point was raised about the Royal Prerogative, about which I hope we shall get an answer. My hon. Friend dealt with cases which he said before this had been covered not by the law but by the exercise of the Royal Prerogative. Having regard to the definitions in the Clause, it becomes all the more important that we should be satisfied that the power of the Home Secretary to advise Her Majesty to exercise mercy shall be in no way reduced, and shall not in practice be limited by the fact that we have adopted this reform.
  One of the Amendments which we failed to secure was to delete the limiting definitions. I do not want to say anything about that at this stage because the Committee has had its debate, it has taken its decision, and that is the end of the matter for the time being. But, as my hon. Friend so rightly said—and he knows from his own experience so much about it—we are in the infancy of such knowledge as we have of what really goes on in people's minds, and what are the predisposing causes or the ultimate inciting causes which prompt us to do this and to refrain from doing that at any given moment.
  Just because the Clause, as we are about to adopt it, contains a limiting definition which may have the effect of excluding from the benefits of the Clause many people who, in principle, ought to be covered by it, it becomes all the more important that the exercise of the Royal
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  Prerogative should be in no way hampered or embarrassed, limited or reduced in any way by reason of the fact that we have made this reform in the law.
  With that comment, Sir Charles, I add my own acceptance of the Clause and record my own satisfaction that the House will adopt it.
  7.45 p.m.
  Mr. Paget: Whilst adding my general approval of this Clause I must say that I should like it a great deal more if I felt it went anything like as far as the hon. and learned Member for Middlesbrough, West (Mr. Simon) thinks it goes. As I understood the hon. and learned Gentleman, he said that he approved of this Clause because he believed that the jury should have to take the fundamental decision whether somebody should be hanged or not; that the question whether it be murder or not murder should be left for the jury to decide.
  Mr. Simon: The hon. and learned Gentleman is quite right. I probably expressed myself loosely. I am sure that he understood me to be speaking only about the sphere of responsibility.
  Mr. Paget: Yes, but the hon. and learned Gentleman said that the responsibility which amounts to murder should be a matter for the decision of the jury, which in fact was exactly what the Royal Commission recommended. But that is not what this Clause does, and therefore I was a little surprised when the hon. and learned Gentleman went further and began to congratulate himself upon the fact that his wisdom had been superior to that of the Royal Commission.
  The members of the Royal Commission recommended that in the sphere of responsibility the matter should be left to the jury, which is what I gathered the hon. and learned Gentleman wanted, but unfortunately it is not what this Clause does. If he had supported some of our Amendments, this Clause would have come nearer to doing what he says he wants, but as he opposed those Amendments, it does not. I would refer him to what the members of the Royal Commission stated in paragraph 593 onwards. Having discussed the law in America, they say, in paragraph 593:
  "We should add that we formed the clear impression that, in comparison with the practice in this country, clemency is very sparingly

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  exercised in favour of those who are sentenced to death and that this is partly, though not wholly, a consequence of the system which allows the jury to determine to a greater or less extent whether those guilty of murder should be sentenced to death."
  In the next paragraph they then say they recognise that foreign law, owing to various circumstances, such as the more excitable temperament of the coloured population of South Africa and considerations of that sort, is not wholly applicable to this country. None the less, in paragraph 595, when they come to their recommendations, they say that they do not deny substance to the objections—that is, in reference to the difference in different countries—
  .. that have been raised to the introduction of this system into this country—that it runs counter to our traditional ideas of the functions of a jury, that it places a painful duty on them, and that it may lead to diversity of verdicts in cases that are similar. But we think that because the proposal is novel, the objections tend to be exaggerated. They must be weighed not absolutely but relatively to the objections to the alternatives. It is not questioned that the liability to suffer capital punishment under the existing law is rigorous to excess. We cannot but regard it as a reproach to our criminal law that this excessive rigour should be tolerated merely because it is corrected by executive action. The law itself should mitigate it. We have been forced to the conclusion that this cannot be done by a redefinition of murder or by dividing murder into degrees. No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder Discretionary judgment on the facts of each case is the only way in which they can be equitably distinguished. This conclusion is borne out by American experience; there the experiment of degrees of murder, introduced long ago, has had to be supplemented by giving to the courts a discretion that in effect supersedes it. Such a discretion, if it is to be part of the legal process, and not an act of executive clemency, must be given either to the Judge or to the jury. We find that the judges in this country, for reasons we respect, would be most reluctant to assume this duty. There remains the method of entrusting it to the jury. We are satisfied that as long as capital punishment is retained, this is the only practicable way of correcting the outstanding defects of the existing law."
  Thus we see that the proposal of the Royal Commission was precisely what, apparently, the hon. and learned Member for Middlesbrough, West wanted; that it should be for the jury to decide the measure of responsibility which ought to be involved in a capital sentence. But the jury was to be untrammelled in its decision, and it was to take all
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  extenuating circumstances into consideration. This is a much inferior Clause, because it brings in only some extenuating circumstances.
  I will just run through the various objections to it, because we still hope that at a later stage the Government—assuming always, as one is bound to assume, however much one may have doubts about it, that the Government's intention with regard to this Clause is of a serious nature—really do want to make it work. Let us just see what the Clause says, so that they may reconsider the various items of it before we reach another stage. First:
  "Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind.…"
  Suppose the abnormality is not an abnormality of the mind itself, but an abnormality of some organ which affects the mind. For instance, I should have thought that there are circumstances in which an inflamed liver could make somebody not fully responsible for what might happen. Again, without abnormality of mind, we get people suffering from violent nervous exhaustion, from—what is the name of the illness of the nerves?
  Mr. Hale: Nervous stress.
  Mr. Paget: Nervous stress, overstrain—which might make them not fully responsible. If one had followed the Royal Commission on this matter and left a wide discretion, all that could have been dealt with; but surely the words, "abnormality of mind" might well be extended to cover physical abnormality in a general sense, whether it be of the mind or of any other organ.
  Dr. Stross: Does not my hon and learned Friend think, however, that what he has in mind is covered by the words that follow, when, after the word "mind" we have the words:
  "or any inherent causes or induced by disease or injury …"
  The words, "disease or injury" do not mean disease or injury of the mind only. It means what it says—I hope—namely, disease of any part of the body, or injury of any part of the body, which might affect the mind.
  Mr. Hale: What is the mind?
  Mr. Paget: I do not know—I certainly hope that the Attorney-General can help—whether that is what these words are meant to mean. They are all here governed by "abnormality of mind". That is abnormality of mind arising from
  "a condition of arrested or retarded development of mind"
  or, abnormality of mind
  "arising from … any inherent causes"
  or, abnormality of mind
  "induced by disease or injury."
  Mr. Hale: Jealousy.
  Mr. Paget: Those are the causes, but there must be abnormality of mind. I should have thought that where it is a question of really abnormality, lack of control, which we are considering, that is something which could arise from abnormality of parts of the body other than the brain. I believe that is an aspect which should be considered.
  So far as the burden is concerned, certainly we discussed that at length on an Amendment. Apparently, a point was reached, at any rate, when the Government agreed that what they intended was not what they appeared to say; but that since a court had elsewhere interpreted what they said to mean something else, then there was reasonable hope that they would interpret what they said to mean that something else again, which was a good reason for not saying what they in fact meant.
  Mr. Hale: Would my hon. and learned Friend mind repeating that? I missed the trend of it in the middle.
  Mr. Paget: It is a little difficult to follow it, but the argument was put. What the Attorney-General said was, "By 'proof' we do not mean proof; what we mean is the establishment of a balance of probabilities, which is a meaning put on 'proof' in another Statute, the Prevention of Corruption Act, by a decision of the Court of Appeal. And therefore we hope the courts will interpret 'proof' in this Act to mean satisfaction as to a balance of probabilities; and therefore, we prefer to put in 'proof, which does not normally mean satisfaction as to a balance of probabilities, rather than put in what we really mean".
  Mr. Hale: That is much clearer.
  Mr. Paget: I have tried to put the argument as clearly as I can, as it was put by the Attorney-General. It seems a slightly roundabout way of going about establishing what otherwise he seems to agree is actually wanted. I think that when the Government read their own arguments in due course, they may, in time, come to that conclusion; and we may have in words something which will not only tell the lawyer, but possibly the criminal himself, what the Statute means.
  Then there is the alternative, which is manslaughter, and finally that the killing shall not be reduced in the case of an accomplice who does not suffer from a like limitation of responsibility. That seems fair enough. This is a Clause which is well intentioned. I think that it is an improvement. It could obviously be improved, and I hope that the Government will improve it. That is really what is the trouble. This procedure is not a real Committee stage. It is not a stage where people who are to vote assemble to discuss seriously how to improve it. It is a procedure in which wholly ignorant masses are to be brought in to march through a Lobby, not having heard a word of the debate. That is steamrollering the Bill, on which no serious discussion is intended.
  8.0 p.m.
  I see the Government's difficulty. They promised the House a free vote, but now—
  The Chairman: Is that not going a little beyond Clause 2?
  Mr. Paget: With great respect, Sir Charles, no. This Clause can be improved. It is a typical type of Clause—
  The Chairman: That is just the point. We cannot improve it now. We must either take it or leave it.
  Mr. Paget: The Government have not expressed any regret that—
  The Chairman: The hon. and learned Gentleman must not go much beyond that point.
  Mr. Paget: May I then express regret that it is not possible, within the traditional machinery of the House of Commons, when genuine improvement is desired—
  The Chairman The Chairman rose—
  Mr. Paget: I will say only two sentences more, and leave it at that. I would make this suggestion now. We are getting nowhere. We are making fools of ourselves over the Bill. Let us take it upstairs. We will not move any Amendments to Part II. They can be dealt with—
  The Chairman: Even the two sentences of the hon. and learned Gentleman are out of order on this Clause.
  Mr. Paget: Then I would conclude simply by saying the Clause is not nearly as good as it might be or as good as it would be if the Government were dealing with this matter with any measure of sincerity.
  Mr. Anthony Greenwood: We have now been discussing Clause 2 for approximately two hours last night and four hours today. I hope that it will not be regarded as proof of mental abnormality by hon. Members if I say that the Bill is just as far from clear to many of us who have been considering it for that considerable length of time.
  It is becoming more and more obvious that the Government have not been motivated by a burning passion to amend the law, but rather with a determination to ditch my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). From some of the answers we have had to our queries, it seems obvious that the Government embarked upon the Bill with as little preparation and with as reckless a disregard of the results as in the case of a much graver enterprise that the Government have undertaken. Over and over again criticisms of the Clause have been voiced by Members of the Committee, and particularly by those who are of the legal profession. It is surprising that the Attorney-General and the Home Secretary have had so little support from the considerable amount of legal talent on the Government benches.
  Last night, when I instanced three cases of people who have been hanged in the last few years and asked the Attorney-General what would have been the effect of the Clause if it had been the law of the land when the trials took place, he said he was afraid that he could not give an answer. We know from the answer
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  which the Home Secretary gave in the House on 12th March, during the Second Reading of the Death Penalty (Abolition) Bill, that he had gone very carefully through the cases in which the prisoners had been hanged over the last few years. I would have thought that the Home Office, when considering the drafting and the purpose of the Clause, would have cast its mind back over those cases to see what the effect of the Clause would have been had it been part of the law of the land at that time.
  I find it very difficult indeed to believe that the Home Office has not taken that point into consideration. It would have helped many Members if the Attorney-General had found it possible to refresh our memories about some of the cases and to have told us the effect on them of the Clause.
  At this point, perhaps, I might thank the Attorney-General for the additional information he gave to the Committee about the case of James Frank Rivett, to which I referred on one of the Amendments. I am grateful to the right hon. and learned Gentleman. I shall follow up the line of research which he suggested. I am afraid I had relied upon information taken from The Times Law Reports. It is difficult for us to follow up all these cases, particularly when the Home Office has seemed reluctant quite often in the past to make all the facts available to the public.
  Mr. S. Silverman: I assure my hon. Friend that he does not need to apologise for what the Attorney-General said about this case. The additional information to which the right hon. and learned Gentleman directed all our attention was a statement referred to in the course of a debate in another place. We have not seen the statement to which the noble Lord was referring; we have, at third-hand, a hearsay statement which is in conflict with sworn evidence given by two reputable professional men on three separate occasions. Taking all that into account, if my hon. Friend the Member for Rossendale did not feel that he could necessarily set against that sworn testimony the mere "say-so" of somebody in debate in another place, I could certainly excuse him.
  Mr. Greenwood: I am grateful to my hon. Friend for his typically helpful intervention. I said that the Attorney-General

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  had suggested a line of research which I shall gladly follow up. If it was possible for the Home Secretary to make available to hon. Members who have expressed doubts the information available to the Home Office about cases in which we believe that men have been hanged although they were not at the time of the crime responsible for their actions, it would be of benefit to the Committee and help us in coming to a right conclusion.
  Last night, on an Amendment moved by my hon. and learned Friend the Member for Northampton (Mr. Paget), my hon. Friend the Member for St. Pancras, North (Mr. K. Robinson) put a question to the Attorney-General about the type of mental illness which was covered by the Clause. My hon. Friend asked:
  "Do they regard neurosis as one of the factors bringing about the abnormality of mind required, under Clause 2, to bring about a reduction of the charge?"
  Once again we had the typical answer from the right hon. and learned Gentleman. He said:
  "I should have thought that it would be a recognised condition which brings about abnormality of mind, and which would come either within inherent causes, or disease or injury, or the other two factors mentioned."—[OFFICIAL REPORT, 27th November, 1956; Vol. 561, c. 349.]
  That was the sole reply we had from the Attorney-General to a very serious point put by my hon. Friend, who has great experience of mental health and the work of the mental health service.
  It is not good enough, when we put these questions to the Attorney-General, that he should brush them aside merely with an expression of his own personal view. We want something far more authoritative than that. Many hon. Members will have been sensitive to the considerably improved atmosphere which prevailed in the Chamber when the Lord Advocate and the Solicitor-General for Scotland were putting their points of view, as they did with great clarity, courtesy and good nature.
  The Clause is disappointing, because it obviously sets out to do something that most of us want to do, but is intolerably vague and woolly. We are not at all certain about its application. I would emphasise the point made by my
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  hon. Friend the Member for Stoke-on-Trent, Central (Dr. Stross) about the desirability of not tying our hands too much about mental health, where medical knowledge is progressing rapidly day by day.
  We cannot be satisfied with a Clause which is as vague as this. We do not like the words of qualification, but if we are to have them in the Clause we must look at them and see that they are as wide as we want them. We shall return to this Clause at a later stage in the passage of the Bill.
  Mr. S. Silverman: On a point of order, Sir Charles. Are we not to get a reply?
  The Chairman: That is not a point of order.
  Mr. Silverman: Specific questions were put to the Government. Are we not to have a word from the Home Secretary? He has been asked specific questions about the effect of this on recommendation of the Royal Prerogative, for which the right hon. and gallant Gentleman is personally responsible. Questions have been asked about the exercise of the Prerogative in the past in cases which obviously are relevant to the matters we are now discussing. The Home Secretary has not had the courtesy to be here for very long to listen to most of the debate.
  Mr. Percy Daines: Further to that point of order. I have carefully watched the Attorney-General for the last 30 minutes. For half that period he had his back to the hon. Member who was speaking and, in the rest of the time, for about four minutes, he has been engaged in conversation with the Home Secretary, not listening to the debate, and therefore not capable of replying.
  The Chairman: That is not a point of order. Major Lloyd-George.
  Mr. Daines: It is a point of fact though.
  The Secretary of State for the Home Department and Minister for Welsh Affairs (Major Gwilym Lloyd-George): Most of the points—
  Mr. Charles Pannell: It is in the brief, I have no doubt.
  Major Lloyd-George: There is not a brief, I am sorry to say. I have been here a little longer than the hon. Member for Nelson and Colne (Mr. S. Silverman). This Clause has had a longer discussion than any I can remember being given to a Clause in Committee.
  The hon. Member for Rossendale (Mr. Anthony Greenwood) said that this has been done in a hurry. I can assure him that the most intense care and thought has been given to it by the best knowledge we could obtain and, if the hon. Member does not agree with that advice, that is just too bad. The advice given to my right hon. and learned Friend is the best we could get.
  The point was raised about whether Clause 2 would have any effect on the power to recommend the Royal Prerogative. It would have no effect at all on existing powers. The only difference it would make would be that under this Clause fewer people, we take it, would be convicted, but for those who were convicted the powers to recommend the exercise of the Prerogative would remain exactly as they are today. In other words, the Home Secretary of the day is entitled to take all the facts into consideration, whether they were before the court or not. As the Committee is aware, many facts are before the Home Secretary which cannot be before the court. My answer is that the situation would remain the same. In Scotland, where this doctrine has been in operation, it does not interfere in any way with the powers of the Secretary of State to recommend the Prerogative of mercy.
  Mr. Anthony Greenwood: I wish to ask the right hon. and gallant Gentleman to clarify a point. In answering a similar matter last night, I do not think the Attorney-General was fully seized of the point. It is not whether the legal position over the Royal Prerogative is affected, but what we are worried about is whether there is any possibility under this Clause, if a jury had rejected a plea of diminished responsibility, the Home Secretary would feel bound to say, "The jury and the court have rejected that plea and it would not be proper for me to advise Her Majesty to exercise the Royal Prerogative."
  Major Lloyd-George: That is not so now. As I said, the Home Secretary for
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  the day very often has before him facts which were not before the court and, therefore, he is not in any way bound, nor would he be bound in the future, on the recommendation of the jury or the decision.
  8.15 p.m.
  Mr. Hale: This is opening a rather difficult discussion and one which, after all, is of some importance. We do not know the procedure for the exercise of the Royal Prerogative. We do not know what the Home Office regards as a fact and whether it has put it in writing or on a sworn affidavit, nor how the representations are made.
  My experience over the years has been that, on the whole, it has been exercised rather kindly, but there have been some startling exceptions recently which have rather damaged our faith in the working of this institution. This question about the Prerogative is quite a serious one. After all, where a jury has said, "This man is sane", that of itself affects the investigation of the Home Office, and the subsequent investigation is not on the same grounds. The question for the jury is, What was the state of mind of the accused at the time of the crime? The question for the Home Office later is, at this moment preceding the day fixed for his execution, what is his state of mind? Those are two separate questions. The Home Office had no alternative but to reprieve True on the doctor's evidence.
  At the same time it is impossible not to realise that a verdict of a jury which virtually declares a man is not insane within the meaning of the M'Naghten Rules is important and should be taken into account. We have been talking about the dreadful case of Rivers, about a case in which things happened which I do not think have happened in a court before. In the Rivers case there was a preliminary trial before the trial of the fact of the sanity of the man. That trial took place clearly on an agreement between the Crown and the defence that the man was insane. The evidence given in the Rivers case was Crown evidence, it was evidence from the medical officer appearing from the prison.
  We see the spectacle of a jury saying, "We think this crime was vicious, we say he is sane and fit to plead," and the

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  jury, again ignoring the evidence, a second time condemned him. Then the judge congratulated the jury on their courage in coming to that decision. That was a case of a man who was hanged, and that man was hanged after a short period in which every medical witness had said, "This man is hopelessly insane."
  I know that the right hon. and gallant Gentleman exercises a very difficult duty, a very painful duty. He assumes a responsibility which none of us would like to assume. He has to face a duty to the public and a duty to the accused which must inevitably place him in a situation of great concern. No one wishes to criticise him, and no one does so without reluctance, but if we are talking about what is to be the law for the future, we have to have reference to what has been done in the past. I know it is the sort of thing which one does not even think of at the time, but on reflection I would say to the right hon. and gallant Gentleman that if one is to examine someone as to whom there is a presumption of insanity and who does not speak English—someone from one of our Colonies—is it not possible to have a psychiatrist who speaks his language present?
  Is it not possible to have an examination of someone like Mrs. Christofi in circumstances in which perhaps for the first time since the trial started she can unburden herself and rid herself of her sane or insane responses to her actions and communicate that? That woman was virtually dumb in the sense that the doctors were almost examing a speechless person. How could she say what she felt and believed to someone who did not understand a word of her language, and how could she paint for them a clear picture of whatever mental agony she may have gone through and what mental strain there might have been? What is the strain to which she was subjected and what is the bursting point of her particular mental resistance?
  I do not say this in an unkind sense, but listening to the story told by my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman), who appeared in that case and spoke very moderately from his unhappy experience, it seemed to me that she and they faced an almost impossible
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  choice. If I were permitted to interpolate a single sentence in parenthesis and that were not out of order, I would refer to the doctrine of election in poor persons compensation cases, where a widow was asked what decision she would take in advance of knowing any of the circumstances. We stopped that.
  Now we are saying that the poor man, maybe the wicked man, maybe the wicked woman, maybe the unfortunate woman, maybe the person whose mind is in some mental decay or mental reaction, must elect. That is what it means. He has to make his determination: "Am I likely to be convicted, on the evidence which will be presented by the Crown, whether it be accurate or not? I have told my legal advisers that I am innocent and instructed them to plead not guilty. I believe myself to be innocent and to have a defence. I am advised that on the whole the probability is that I may hang, and that I am a man of diminished responsibility, I should rely on that."
  But it is clear that under this procedure he cannot rely on that. The right hon. and learned Gentlemen—whichever one of them is in a listening mood at the moment—ought to apply their minds to this question. In the Schedule to the Act provision is made for a second trial in the case of a double murder.
  The Chairman: I think that the hon. Gentleman is a little ahead of time. We have not yet reached the Schedule, and he cannot discuss it on this Question.
  Mr. Hale: I should not for a moment dream of discussing the Schedule, Sir Charles, but if we are to be told that any metaphor, any comparison, is out of order, that all similes are to be abolished, that no reference to comparable cases must be made and that we must not quote examples or references to case law—
  The Chairman: I did not say that at all. I said that the hon. Member had begun to discuss the Schedule, and he cannot do that now because it is not in order.
  Mr. Hale: I most sincerely apologise, Sir Charles. It is difficult for me to hear at this end of the Chamber and obviously I did not catch what you said, otherwise I should have said that I respectfully and sincerely agree with you.
  The Chairman: I beg the hon. Member's pardon.
  Mr. Hale: I had no intention of discussing the Schedule. I may talk about the Schedule, I hope, in two or three weeks' time. What I was going to say—and I was only giving a reference merely to make it clear to the right hon. and learned Gentleman, who might not have it in mind—is that there have been proposals which of course would fall very well within the Question, "That the Clause stand part of the Bill," for dealing with the complicated and difficult matter by saying that, first, the jury shall decide on the question of guilt, and then they shall consider the question of diminished responsibility.
  The only point which I had in mind, and which I was seeking to indicate, is that the Government have themselves accepted that proposal in respect of something else. I will not discuss it, I will not argue it, I will not say whether I think it right or wrong in respect of that something else. The whole Committee will have to remain in suspense for a considerable time before they find what are my final views on those matters which are raised at a later stage in the Bill.
  But, dealing at the moment with the Clause, I say that it would be a very good thing to state, "Let the jury decide first". Heaven knows that the position of a jury under our law is pretty difficult. Very few people have applied their minds to the question of the standard of proof which a jury has to find. There is no ruling in law and no observation in any judgment on the vital question of the standard of proof. All we are told is that a reasonable man may form a reasonable opinion in the light of reasonable transactions which would affect his reasonable mind. When I look around the Chamber I wonder what is a reasonable man. I regret that we have not mirrors to put before us. I cannot think of more than one example!
  The jury have a very difficult duty to perform. Why not let them perform it first? If they say that the accused is not guilty, he goes free. If they say that he is guilty, surely that is the time when one should consider what laws one applies to the question of punishment and what laws one applies to the actual finding of the crime. Surely it is then quite simply a matter for both the Crown
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  and the defence to consider it as a duty—imposed upon the Crown and obviously a clear duty on the defence—to place before the jury all the material which is in their possession on the question of the prisoner's mental capacity or, as far as it is relevant, his physical capacity. Let the jury then try to consider it as a quite separate issue—try to consider the mental strains to which the person was put, the stresses which might have applied to that particular mind which is in that body in the dock, the environment of the accused, the heredity of the accused, the mental record of the accused's family. Let that all be placed before the jury.
  This is how justice should be done. When that has been done, very few of us would be able to complain that the verdict of the jury was not based upon a careful and proper consideration of the facts in appropriate circumstances, without the possibility of prejudice coming in. Although juries, like others, may err, most people would consider that justice would appear to be done in those circumstances, and that, on the whole, to a greater extent than ever before, justice would be done.
  Question put and agreed to.
  Clause ordered to stand part of the Bill.

  HOMICIDE BILL

    Clause 3.—(PROVOCATION.)
    Mr. Anthony Greenwood: I beg to move, in page 2, line 15, to leave out "a reasonable man" and insert "him."
    The Chairman: I think that with this Amendment could be taken the Amendment in page 2, line 19, to leave out "a reasonable man" and insert "him."
    Mr. Greenwood: In paragraph 124 of the Royal Commission Report we find:
    "Provocation can never render an unlawful homicide excusable or justifiable; but if the act by which death is caused is done in the heat of passion caused by provocation, this may reduce the crime from murder to manslaughter. It is not all provocation that suffices to reduce the quality of the crime, but only provocation of such a nature and degree as the law recognises as adequate for that purpose."
    In the course of the Royal Commission's discussions the Commission had put to it two propositions for amending the law with regard to provocation. The first was that provocation should be extended to cover provocation by words as well as by deeds, and that is included in Clause 3.

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    The other suggestion was that what is called the test of the "reasonable man" should be abandoned. The first suggestion was accepted by the Royal Commission. The second, unfortunately in our view, was not accepted.
    8.30 p.m.
    The law of provocation is largely based on judicial decisions of the seventeenth century. I understand that the position has been clarified by two modern cases, the case of Mancini against the Director of Public Prosecutions and the case of Holmes against the Director of Public Prosecutions. The effect of those two decisions has been that for the provocation to be regarded as sufficient to reduce a homicide from murder to manslaughter, two requirements must be fulfilled.
    In the first place
    "… the provocation must be gross and … such as might cause a reasonable man to lose his self-control and use violence with fatal results."
    The second requirement is that
    "… the accused must in fact have been deprived of his self-control under the stress of such provocation and must have committed the crime while still so deprived."
    If I am right, the judge has to decide whether there is sufficient material for a jury to form the view that the accused acted under such provocation, and the jury must take into account four factors. The first factor is the nature of the act; the second, the time between the provocation and the killing; the third, the conduct of the offender during that period; and the fourth, any other circumstances which show the offender's state of mind.
    There appear to have been two conflicting tendencies over the past two centuries. On the one hand, the courts have steadily limited the scope of provocation which is recognised as adequate to reduce murder to manslaughter, and have subjected it to more and more strict and narrow tests. On the other hand, the increasing severity of the law has, to some extent, been offset by greater leniency in its application.
    That leniency has been shown by judges, by juries and by Home Secretaries. I think that at this stage it would be only fair to say that on the only occasion when I went to the Home Office in order to plead the case of a man who had committed a murder under
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    what I thought was great provocation, I was met by the Permanent Under-Secretary with the greatest courtesy and fairness, and I thought that great humanity was shown in the way in which that case was treated.
    The increasing severity of the law was explained by the present Lord Chief Justice in the case of the King v. Semini in 1949. He said that at a time when society was less secure than it is today, and when the carrying of swords was as commonplace as is the carrying of walking-sticks today, the courts took a view which was much more lenient towards provocation than it is today, when we live in a more settled form of society, and when, as he put it:
    "… life and property are guarded by an efficient police force and social habits have changed."
    Upon that, the Royal Commission commented, in paragraph 135 of its Report, as follows:
    "But the advance of society has also led to an increased concern for the individual prisoner and to a desire, so far as possible, to take account of the characteristics and mental reactions of the individual in applying the law. This has shown itself in the readiness of the courts and of the Executive to give weight to provocation insufficient in law to extenuate murder."
    The "reasonable man" test to which I referred earlier, appears, according to the Report of the Royal Commission, not to have been applied before the middle of the last century. For a long time, the question whether the provocation was sufficient to reduce the offence to manslaughter was decided by the judge as a matter of law; but, in the last century, the courts established the rule that the question was one for the jury to decide as a matter of fact, and that in doing so, the jury should consider whether the provocation was sufficient to deprive a reasonable man of his self-control. The courts emphasise that
    "… different degrees of mental ability …"
    should not be taken into account.
    Though I speak as a layman, I understand that that rule of the last century was confirmed by the Court of Criminal Appeal in the case of the King v. Lesbini in 1914, and in Mancini's case in, I think, 1942. When the Royal Commission considered this matter there appear to have been not many witnesses—and, I think, one should take this into account—who

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    suggested that this "reasonable man" test should be abolished, but those who did so are, I think, entitled to our respect and consideration. One of the bodies which supported that proposition was the Society of Labour Lawyers, led by Mr. Justice Donovan, as he now is. Another person was a former Member of this House, Mr. Basil Nield, who said that, in his view,
    "The jury should be permitted to determine the effect of the provocation on this particular man whom they have seen and may have heard, and whose whole circumstances have probably been described to them."
    Our contention is that it is quite arbitrary and unfair to take as the test the effect that the provocation would have on a reasonable man. We say that the test ought to be the effect of the provocation upon that man, in those circumstances, and in the light of all the evidence which is available to the court. The Royal Commission itself went so far as to say that there are many people whose race, temperament or mental condition may render them especially susceptible to insults and affronts. It is not without interest to notice that three of the leading cases on his subject involve respectively Semini, Lesbini, and Mancini.
    I think it is quite possible that particular classes of subjects in particular parts of the country and in particular conditions might well be extremely sensitive to provocation, and much more sensitive than reasonable people would be in ordinary conditions. I can think of, for example, Her Majesty's Jewish subjects in the East End of London at the time when the Fascists were campaigning against them. I can think of circumstances today in which West Indians, although being perfectly reasonable, might nevertheless be much more likely to be provoked into violent action than would be the case if they were living in normal circumstances and not feeling that there was a good deal of opinion which is, I think, harshly critical of them, at a time when they are living a form of life which to many of them must be very strange.
    I hope the Committee will forgive me if I rehearse once again the details of the case which I put on the Second Reading of this Bill. That was a case which affected two Jugoslavs in my own constituency. One of them had fought as a partisan in Jugoslavia during the war,
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    and his father, two brothers and three sisters had been shot by the Germans. The other, the man who was murdered, was said to have been a quisling in Jugoslavia, fighting with the German army.
    One day the Jugoslav who had fought with the partisans was crying over the fate of his family, and the Jugoslav who had been a quisling gibed at him and taunted him for what he was doing. The former partisan picked up an axe and killed the former quisling. I do not think that most of us, more or less reasonable men, would have reacted in that way, but that man in those circumstances and with that background should surely have been entitled to the protection of the law because of the gross form of provocation to which he was subjected. Nevertheless, he was hanged on 26th January, 1951.
    Another case which must I think occur to all of us is the case of Ruth Ellis. In Ruth Ellis's case some time had elapsed between the basic provocation to which she was subjected and the actual deed of violence to which she resorted. Probably an ordinary responsible person would have cooled down during that time, but in her neurotic condition I imagine that Ruth Ellis's state of mind got worse and worse the longer the interval was, and the greater the provocation seemed to be. When one remembers that Ruth Ellis had not only lost the man she loved but that she had also had to undergo an abortion to remove a child of which her lover had been the father, it is not difficult, I think, to imagine something of the state of mind which she must have been in.
    I think it is really monstrous that we should seek to apply to anybody in the position and the condition of Ruth Ellis or the Jugoslav to whom I have referred a test which may be perfectly proper in the case of a reasonable man. It is because my hon. Friends and I feel as we do on this issue that we have moved to delete the words "a reasonable man" and to substitute "him", so that we can treat cases like the Jugoslav and Ruth Ellis with greater humanity in the future than we have done in the past.
    The Attorney-General: If I may, I should like to begin by congratulating the hon. Gentleman the Member for Rossendale (Mr. Anthony Greenwood) on the excellent review which he gave on the development of the law in relation

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    to provocation. He gave an excellent summary, referring to the leading cases, and it is not necessary for me to traverse the same ground in replying. The Amendment raises a very serious point, and, if I may say so, without wishing to be critical, I think the question involved is, perhaps, the most serious one which we have had under consideration today.
    This Clause is designed to do one thing, namely, to carry out the recommendation of the Royal Commission in relation to provocation by words. As a matter of drafting, it is not a very easy thing to achieve, because the law as it at present stands does not wholly rule out provocation by words, although, as a rule of practice, it can be admitted only in very exceptional circumstances.
    The issue raised by this Amendment is as to the standard by which the provocation is to be judged. As I see it, there are three possible standards. The first is the standard suggested in the Amendment, that a jury should be asked to consider the effect that the provocation would in fact have had on the accused. That is what the Amendment proposes, and that is what was considered by the Royal Commission. The second standard is the standard which is now the law, namely, the effect that the provocation would have had on a reasonable man not suffering from any disability.
    The third possible standard, which was not, I think, directly considered by the Royal Commission but was put forward by that committee over which my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) presided, was the effect that the provocation would have had on a reasonable man suffering from a disability similar to that of the accused. In that latter category, the instance was given of provocation to a one-legged man by kicking him on the stump of his injured leg, which, of course, would be a form of provocation which would not apply to a man who had not suffered that disability.
    At first sight, I must say that the idea of applying the standard either of the application of provocation on the man himself or of provocation on a reasonable man suffering from similar disabilities appears very attractive. However, I think that the Royal Commission was right in finally not recommending any
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    alteration of the present position. The hon. Member for Rossendale cited the case of two Yugoslavs. I cannot pretend to be familiar with the details of that case, but of this I am sure, that, although the jury came to the conclusion that there was not provocation sufficient to reduce the offence to manslaughter, all the circumstances in relation to the offence, in particular the nationality and circumstances of the accused, must have been taken into account before the sentence was carried out.
    Let us consider what the effect of adopting this Amendment would be, not in cases like that of the two Yugoslavs, but, for instance, in the case of a man who is very bad tempered—who is known to be of an explosive temper. If he is the accused, the effect of the provocation on him would be likely to be very much greater than the effect of the provocation on a good tempered man. Therefore, if that were the test to be applied, one might have a case of murder reduced to manslaughter if the accused was bad tempered, it still remaining murder if he was good tempered. I put that forward as a very real difficulty about applying that test, which is the test suggested in the Amendment.
    8.45 p.m.
    I would also like to put forward, because one is considering the tests—that is the question raised by the Amendment and it is important—the alternative suggestion that if one does not take the test of the effect on the accused, no jury could, or would, wholly disregard those circumstances. If, however, one does not take that as the standard, if one takes the standard of the provocation on a reasonable man suffering from a similar disability, one gets into the difficulty of where to draw the line.
    It would not be difficult, for instance, for a jury to assess fairly accurately the degree of provocation which would be felt by a man who was kicked on the stump of his leg. It would not, perhaps, be so easy for a jury to assess the degree of provocation suffered by someone suffering from sexual abnormality or incapacity or, perhaps, some facial disfigurement. Is one to stop there? If it were established, for instance, that the accused was suffering from a very high blood pressure, would one have to apply

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    the test of a reasonable man suffering from that disability? There is, therefore, real difficulty in finding a completely satisfactory standard for the application of the principle in relation to provocation.
    There are arguments which can be advanced against any standard that is put forward. The hon. Member has criticised the present standard—that is to say, the effect that the provocation would have on a reasonable man. I hope I have satisfied the hon. Member that there are valid criticisms of his Amendment. I hope I have also indicated that there are valid criticisms of the third standard.
    It is to be borne in mind in considering the law of provocation that a person with a disability of such a nature and degree as to make him acutely sensitive might be able to show that the provocation upon him had, because of his sensitivity, led to him having at the particular moment a disability amounting to a serious abnormality of mind. I simply draw attention to the fact that that type of case might come within Clause 2, which we have just been discussing.
    Our feeling is that we were right—I hope that the Committee will agree—to seek to make the change with regard to provocation that the Royal Commission recommended and that we were also right, having reviewed the matter again, to adopt the conclusion to which the Commission came on the other aspect that was before it: namely, that we should retain the existing test. As the Royal Commission said in paragraph 145:
    "The application of this 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."
    Having considered the matter with great care, because there are many who feel very attracted by an alteration of the present test, the Government have come to the conclusion that we must leave this as it is. I hope, therefore, that the Committee will ultimately agree with that view and at least recognise that we have given serious consideration to this matter.
    Mr. George Benson: I quite agree with the Attorney-General that this is a very difficult problem. I doubt very much whether the two sides of the Committee will ever see eye to eye
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    upon it, because they are fundamentally divided on the basic problem, that is, of the death penalty.
    In effect, the Attorney-General's case is that the only possible criterion is whether a perfectly normal man would be so irritated as to commit murder. I am not sure, if that is to be the criterion, that this Clause gives any additional protection of any kind whatsoever against the death penalty, because I doubt very much whether normal, reasonable men ever do commit murder. Surely every man who becomes so angry, or irritated, or enraged, as to commit murder comes outside the category of the normal man. The fact that he has committed murder excludes him.
    Presumably, the Bill is designed to reduce the number of executions. If this Clause gives no protection it really is not worth the paper it is printed on. The arguments put forward by the Attorney-General are really not arguments against our Amendment. They are arguments against any standard. One may just as well leave the Clause out of the Bill.
    I would suggest one further thing. I presume that the basic case of the Government for retaining any form of the death penalty is that the death penalty is the unique deterrent. It may be in the case of a reasonable man, but if we insist upon retaining the criterion of the reasonable man, and upon excluding the unreasonable man, we are really in effect saying that the death penalty shall apply not to the people who are likely to be influenced by the deterrent but to the people who will not be deterred by it.
    The more one considers the Clause the more one sees that it is self-contradictory, and that it gives nothing. If the Government are not prepared to accept any modification of it they may just as well withdraw the Clause and leave the law as it is at present.
    Mr. Hyde: I have listened to the greater part of our discussion today, and I must say that I agree with my right hon and learned Friend that this is the most important question which has come before the Committee. I also agree with the hon. Member for Chesterfield (Mr. Benson) that it is extremely difficult. It has certainly created very great difficulty in my mind.

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    The Inns or Court Committee, which made recommendations for the amendment of the law of murder, some of which have been accepted, considered this question, and it gave the illustration of the man with the stump leg whom my right hon. and learned Friend has mentioned, but it did not make any specific recommendations for the abolition of the test of the reasonable man, although it expressed sympathy with it. Similarly the Royal Commission expressed sympathy, too, although it came down on the side of retaining the test.
    The hon. Gentleman the Member for Rossendale (Mr. Anthony Greenwood) mentioned the case of the Yugoslavs and of Ruth Ellis, and I should like to mention a third case which focused public attention on this question—the case of Clarence Ward. Ward was a man suffering from acute stomach ulcers, and in that condition, in a frenzy, he killed a baby as a result of completely losing his self-control. He was convicted of murder, sentenced to death, and his appeal was dismissed. There was a very great public outcry, but I am not suggesting that that affected the Home Secretary. Ward was, in fact, reprieved. That was a case where it certainly seemed on the face of it to be very difficult to apply this test and yet to agree that justice is done.
    I must say that I am very disturbed in my mind on this point, and I find it extremely difficult not to accept the argument which the hon. Member for Rossendale has put forward with such eloquence and persuasion, but I have also read the remarks which have been quoted of the present learned Recorder of Manchester, Mr. Basil Nield, who was a Member of this Committee. I was swayed by them.
    On the other hand, I have looked very carefully at the other evidence given before the Royal Commission, and although it is with very great reluctance, because I think the question is very narrow, I am inclined on balance to be guided by the judgment of the Royal Commission which, after very mature consideration, came to the conclusion that there should not be any change in this branch of the law.
    Mr. Frederick Willey: Like the hon. Member for Belfast, North (Mr. Hyde), I have real
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    doubts about this. It is quite clear that there is every ground for having doubts. If I may declare my position, it is the reverse of the hon. Gentleman's; on balance, I agree with my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood). I do that with very real hesitation. In the first place, I think that we have to pay serious attention to the Royal Commission. We are accepting one of the recommendations of the Royal Commission, and I think we should regard the whole of the advice given us on provocation and not just take advantage of one recommendation. That means that one has to be very careful before accepting the present Amendment, and I do so with a great deal of hesitation.
    The Royal Commission was given an express task to perform, and it performed that task with the greatest deliberation and care. It decided against the proposal made by way of the present Amendment. In spite of what has been said about the contradiction of the reasonable man behaving in an unreasonable way, in fact the courts have relied very much and very successfully upon the concept of the reasonable man, and I think that we have to be careful if we take a subjective view how far we go, because in the first place justice must have a universal element. If it is broken down too much and made too much a matter of decision in each individual case we lose the thread of justice which runs through all these decisions. These are two very grave objections to the present Amendment, but in spite of those objections, which certainly caused me to hesitate a good deal about this, I think there is a lot to be said on its side.
    9.0 p.m.
    First, we must recognise the fact that if we approve the present Clause we are doing something which is against the advice of the courts. We are extending the scope of provocation when it is quite clear that the trend of judicial decision has been against that extension. This means that we are getting two different views of the reasonable man. We are having a statutory reasonable man, we are having a common law reasonable man. This is very germane to the Clause. We are taking a subjective test in so far as we say whether there was provocation at all, and then we decide whether there was provocation within the Clause by

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    referring to the reasonable man. But we, as Parliament, are taking a contrary view of the reasonable man to that taken by the courts.
    It would be wrong, for this reason, to accept the concept of the reasonable man for the purpose of the Clause. If Parliament says that it disagrees with the courts and with the view taken over the past years by the courts on provocation, Parliament must decide the circumstances in which provocation should be accepted for the purposes of the Clause. It is unfair to say that, not accepting the view taken by the highest court in the land on this question, we expect this to be decided within the concept of the reasonable man. As we are deciding, as Parliament, contrary to the experienced views of the judiciary, we must put the question before the courts in terms within which they can properly decide it. That is the overriding argument which pursuades me against my first approach towards the Clause.
    The second argument is that it is inherent in the step which we are taking in the Clause to abandon the concept of the reasonable man for the purposes of the Clause. No one is arguing that if we consider ours to be a developing and more civilised society, the scope of provocation is not decreasing. I do not think that anyone in the Committee would argue the contrary, but in the Clause we are doing something which is entirely different. We are saying that although we recognise that we are not as uncivilised as we were 100 years ago and are less likely to be provoked, we are extending the scope of provocation to provide for the individual circumstances of a prisoner. We are saying that we will not get justice as we wish it to be administered unless we extend the scope of provocation, not because we think that that in itself is justifiable, but because it is only in that way that we can make allowances for the character and conditions of the individual prisoner.
    If that is the case, we might as well be logical and say whether provocation for the purposes of the Clause should be subject to a special test. In extending the scope of provocation we are saying that we must pay regard to the circumstances of the accused person. Having said that, it is illogical to provide a
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    cautionary measure for the extent of provocation by reference to the concept of a reasonable man. I think that the right hon. and learned Member for Chertsey (Sir L. Heald) is with us on this point because I think that we can disregard this third possibility.
    It is only a fiction to provide for a subjective test. If we said that we would decide whether a one-legged man was provoked by introducing a fictitious one-legged man, and then we considered whether a reasonable one-legged man would be provoked, the jury would then consider whether the man had in fact been provoked. I do not think we should make this more difficult by introducing a further fiction. The best thing to do is to say that we are driven to the position, purely from the point of view of logic, to accept a subjective test. It is only on that ground that we are now extending the law of provocation, but in practice it will be found that juries will find it impossible to extend this. The only simple course to take, and the only straightforward one to take, is a subjective test.
    Therefore, I hope that the Government will think about this again, and will accept the position that it would be better to agree to the real reasons which have led to the extension of the law about provocation and to accept a subjective test.
    Mr. Michael Stewart: Like my hon. Friend the Member for Sunderland, North (Mr. Willey) I had some difficulty in deciding what was the proper course to take on this Amendment, though unlike him I have a natural inclination to agree with my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood), rather than a natural reluctance.
    I was much helped in making up my mind by the clear exposition given by the Attorney-General. If I followed him correctly, he said that there were three possible standards of provocation which we could take; first, that of the "reasonable man," as is suggested in the Clause; secondly, the accused himself, as is suggested in the Amendment; and, thirdly, the reasonable man, subject to a disability the same as or comparable to that from which the accused suffered.

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    Hearing those three possible standards put forward, I was attracted as a layman to the third, because it seemed to me reasonable to say that if a man has only one leg, and he is kicked on the stump of that leg, that is a peculiar degree of provocation of which we ought to take account, and that therefore the kind of fictional character whom the court ought to summon up in its mind is a reasonable man with one leg.
    Sir Ian Fraser: We want a one-legged judge.
    Mr. Stewart: Very possibly, though I think that that would restrict the opportunity of trying cases of that kind. What about other kinds of disability? Here I must speak as a layman, and perhaps the Solicitor-General or other hon. and learned Members may be able to help me.
    Suppose a man has at some time in his previous life been in prison for a disgraceful offence, but that many years have since elapsed. Then, at some much later stage in his life, in addition to other forms of provocation and insult, he is taunted about this disgraceful episode in his private life. In assessing provocation, what is the yardstick of the court? A reasonable man who in his past life has been in prison for a disgraceful offence or a reasonable man who does not suffer from that disability?
    In other words, does the word "disability," which in the examples that we have examined so far includes that of having only one leg, include a disability of reputation of that kind? It would certainly include a very wide range. If I followed the argument correctly, the court was not supposed to take into account the fact that the one-legged man had only one leg and was therefore peculiarly subject to a particular form of provocation. Is the court to say also that the man with a disgraceful episode in his past life must not have taken into account the fact that he is peculiarly subject to that particular form of provocation? Is that to be allowed? If not, what is this reasonable man whom we are considering? Is a reasonable man one who has two legs, who does not suffer from any kind of physical disability, has no facial disfiguration, has nothing discreditable in his past life;
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    who, in fact, it would appear, suffers from none of the ills to which human nature is ordinarily heir?
    Mr. Paget: Suppose that the provocation was to call the gentleman a "nark," which in certain spheres of society is the greatest insult, does he have to be compared with a reasonable "nark" or a reasonable member of society?
    Mr. Stewart: That is exactly what is worrying me. If one is or has been a "nark," the accusation is very much more provocative than if one has not been a "nark." An accusation that is completely out of character one may be inclined to treat with ridicule rather than with rage. An accusation that has an element of truth in it can be extremely provocative.
    Mr. Paget: Surely, in that event the vital question as to whether it is provocative is whether a man or his friends are in position to be "narked" on. It is a question of the peculiarity of society, and not the peculiarity of one's person.
    Mr. Stewart: I am having a little difficulty in following my hon. and learned Friend.
    I come back to the point which is worrying me. As I understand it, the Clause gives us as our yardstick the reasonable man and not the reasonable man suffering from a disability similar to that from which the accused suffers. I say, therefore, that the reasonable man becomes a more and more unreal figure the more one looks at him. Apparently he is not to have any characteristics whatever except that of being a reasonable man. Really, there is no such person at all.
    It seems to me that adhering to the yardstick of the reasonable man can produce very great injustices, because it can mean, in the case of a man who has been provoked by the deliberate and malicious bringing up of some disability either of body or mind or reputation from which he suffers, that the fact that that form of insult is peculiarly provoking to him apparently cannot be put in the scales when his case is being examined.
    I found, therefore, that the idea of the purely reasonable man standard was unsatisfactory. If it were at all possible to get into an Act of Parliament

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    the Attorney-General's other possible standard—the reasonable man suffering from a disability the same as, or comparable to, that of the accused—I should find that very attractive indeed; but I must confess that I think it would be a task of very great difficulty to put that idea into words in an Act of Parliament which the courts could satisfactorily interpret. If one tried to do so one would find that the practical difference between that and a purely subjective standard was very little indeed.
    I found, therefore, that the wording of the Amendment which has a purely subjective standard was very much nearer to what seemed to me to be the right solution than what we have got in the Clause. For those reasons, after trying to think the matter out without the benefit of legal knowledge, I was driven to the conclusion that our proper course would be to prefer the Amendment to the present wording of the Clause.
    9.15 p.m.
    Sir Lionel Heald: May I apologise to the Committee for being absent when what I understand is described as my "one-legged man" has been discussed. My views and suggestions have apparently been so well put, both by hon. Members opposite and by my right hon. and learned Friend the Attorney-General, that it would be unwise of me to attempt to put them in any better way. However, I should like to say that, although I have been absent, I know the arguments which have been put in favour of the Amendment, and I think it goes very wide indeed. Because it seems to me, looking at the matter from, I hope, quite an objective point of view, that it would let in a very large area indeed.
    If we are merely to consider the individual man, I do not see how a judge can then avoid directing a jury to take into account the fact, for example, that a particular man has a very bad temper and did not control himself. To what extent is one to go into that? It seems to me it goes far too far. On the other hand, I think that the hon. Member for Fulham (Mr. M. Stewart) was quite right in saying that the task of defining the extent to which one should consider the disabilities will be a very difficult one indeed. One has to bear in mind that there is a commonsense aspect in this
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    matter. After all, whatever legal directions are given to a jury, it is sitting there and gives the verdict. The members of the jury see the man and can see he is blind or has one leg. I do not say a nod is always as good as a wink in all cases, but one must take into account the fact that members of juries are human beings.
    Although it is not a scientific way of approaching the matter, I believe it to be true that one would find few cases where there was a case of the kind which has been described. I know that once or twice there has been a hunchback or something of that kind. Although I am not happy about the matter, and I frankly admit it, I would like to see an attempt made to improve the Clause, notwithstanding the rather pessimistic point of view just expressed. I believe that if some wise men sat down and got down to it, they might find the answer. At the same time, I am prepared to accept that those skilled in these matters have gone into them and they cannot find a way of doing it. In the circumstances, much as I regret it, I do not think it is practicable to adopt the alternative which is suggested in the Amendment.
    Mr. E. L. Mallalieu: Like other hon. Gentlemen who have addressed themselves to this matter, I agree that it is an extremely important matter and also one which is by no means without difficulty. I think, I hope with modesty, that perhaps the best way to tackle the matter is to consider what is the doctrine of provocation. I do not mean to go into a lengthy dissertation on the doctrine of provocation; this matter which we are discussing is just as capable of being discussed by people without legal knowledge as those who are supposed to have legal knowledge. It is not a legal question at all.
    One can imagine in the far-off days there may well have been a law which said, "Thou shalt not kill." Then it was found, perhaps, that it acted a little harshly in some cases; and the doctrine of provocation would be introduced in order to mitigate the harshness of the general law and to bring the application of that law more nearly towards the circumstances of the individual charged. If we are going to mitigate the law like that, why not do it as completely as we

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    are capable of doing it? In my submission, the law of provocation, as it would be left by this Clause, is very much better than the law would be if there were no doctrine of provocation at all. But it could go very much further than it does, in my submission.
    The right hon. and learned Member for Chertsey (Sir L. Heald), as did the Attorney-General, drew attention to the difficulty of trying to make the law completely fair. That, in effect, is what he was saying, and therefore, with reluctance, he came to the conclusion that perhaps it was best to have the more arbitrary test of a reasonable man, than to go into the uncertainties which would follow if one went still further. I submit that that is a confession of failure and a counsel of despair. I think that we should take courage in this matter and decide to try to our utmost ability to fit the law to the circumstances of the particular man who is accused.
    How can we do this unless we allow a jury to consider his qualities and his characteristics which, after all, are his circumstances, and see whether or not we can then say whether his responsibility is such as to make him liable to the penalty or the crime he is supposed to have committed. This is a test of responsibility. We cannot test a man's responsibility until we know the apparatus he has in his mind with which to deal with the circumstances with which he is faced.
    I submit that the test of how a reasonable man would react to provocation does not work as a fair test, although it is better than no test at all. We ought to go the whole hog and try to relate the responsibility of a man to his particular circumstances. An industrialist does not expect to do things for which he has no plant. The accused's plant is the mental capacity and the physical attributes he actually has. These things must all be taken into account. Questions have been asked about the man with a bad temper and the man with a good temper. The man with a bad temper will be found not guilty of murder when he reacts to provocation and the one with a good temper guilty because he should not have reacted; but that does not strike me as surprising. The man with the bad temper
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    has it as one of his attributes and is more likely to react to provocation than a good tempered man. If we are trying to be fair and to judge his responsibility that should be taken into account.
    One can think of many other cases of men who have abnormal minds or are retarded. There is the case of the young man who never got on well at school and is unable to take his place with his contemporaries in ordinary life. He has unfortunate home circumstances. His father is resentful of the boy's retarded-ness while the mother is unduly sympathetic with him on that account. Perhaps the father is an excessive drinker and goes in for attacking the mother for spoiling the young man. Should not all those home circumstances be taken into account in deciding that young man's responsibility for killing his father for attacking his mother for defending him, and for which he is now in the dock?
    It is not enough, if we are to introduce any doctrine of provocation at all, to stop half way. We must say, as the Amendment does, that the test should not be how a reasonable man would react, but that the capacities, qualities and characteristics of the man who is being judged, should be taken into account.
    Dr. Stross: I support my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) in this Amendment because I feel that the words "a reasonable man" cannot be accepted, unless by "reasonable" we mean "capable of reasoning". If that were meant I would not mind this definition, because we should be referring to a man who has an average, sound mind and is capable of reasoning.
    If it is said to mean something on which the learned judge is to direct the jury as to the attributes of the man and say, "Do you think that this reaction was a reasonable one? Is it one that you, as reasonable men and women, would have imitated? Would you have done the same thing?" there would be a misconception of what we have in mind now in this Committee. It is a good thing that a jury will have to make up its mind of the words of the Clause because it will have to decide whether there is evidence and judge it for itself, make up its mind whether the provocation was sufficient to bring about certain effects in the accused.

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    I agree with my hon. and learned Friend the Member for Brigg (Mr. E. L. Mallalieu) on this point. Surely, if a man is accused of having acted in a specific way, whether his action was reflex or conditioned, he must be tested and judged by what he is, or what he was thought to be, at the time he acted. The whole of the mind, and the whole of the background and environment, so far as we can find out what they are, must be taken into account to see how they have influenced him. Any other attempt to judge in a context of that type is bound to be fraught with confusion, and we shall certainly make mistakes.
    I heard the Attorney-General give an illustration by saying, "Well, one man might have an explosive temper". Then he said, "He might have high blood pressure". That interested me. Those two phrases, coming in two separate short speeches by the Attorney-General were significant. I should expect someone with a high blood pressure to be more addicted to and likely to have a bad temper than a man with a normal blood pressure.
    What do we do about people who suffer from a toxic goitre? They live their lives very fast, and they feel ill and irritable. Are they to be judged by the test and yardstick of what here is called a reasonable man or woman? What are we to do with a diabetic who is not diagnosed as a diabetic but is suffering from the complaint and whose blood circulates poisons which are selective poisons, making him feel ill and irritable? Surely we are right to find out about him and not to judge him by the artificial standard of what is a reasonable man? Then we should find that his condition was such that he reacted as we can understand he would react and in such a way as we, the judge and jury—being provoked as he had been provoked—might have fallen into that error.
    My hon. Friend the Member for Rossendale gave us two or three examples. Five years ago I was asked to go to Broadmoor to see a man who, before he went to Broadmoor, had had an injury which fractured a bone, and it was the fracture of the bone which he suffered that led him to kill a man. He was a miner and, while recovering after having left hospital, he used to stand on his doorstep in the summer and take the air. There was another miner who did not
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    like him and who teased him every day he passed, accusing him of malingering to get money from the State falsely—"swinging the lead". That went on for some time until ultimately the man rushed from the doorstep into the house seized a heavy instrument, a poker, and struck the man who was provoking him. He killed that man and was tried for murder. In that case everyone knew after the evidence had been given that there was provocation, but the man was considered to be guilty but insane. He went to Broadmoor, but a month or two after I had seen him he was back home again.
    Another case with which I was very intimately concerned was that of a man accused of killing his wife under great provocation. She tried to stab him. All the medical evidence was that she was a profound hysteric. For no reason anyone would think proper, but actually because he played darts with someone else in a public house where she accompanied him and did not stay with her at the table all the evening, when they got home she took a knife and rushed at him. He turned round and seized the knife and, with the other arm, put a half-nelson on her. I think that hon. Members know that hysteria is a very technical condition and a truly hysterical man or woman can be extremely strong and not feel pain.
    This poor woman struggled against his restraining arm, and her neck was dislocated. She fell to the ground, but was not fully paralysed. When her husband knelt down and was disturbed about her she was able to jump up and rush for the knife again. As she ran to stab him once more, there was a full dislocation and pressure on the spinal cord. As she struggled on the ground on the second occasion the spinal cord was finally severed. The charge, therefore, was murder.
    In this case there had been provocation. Until I was able to give the evidence—which I gave at much greater length than I have given it tonight—I doubt whether the jury understood, but in the end they certainly did. In that case there was a full acquittal on the grounds of severe provocation. There was no reduction of the charge to manslaughter, although naturally the judge pointed that out, and I thought he was urging the jury to return a verdict of

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    manslaughter but certainly not a verdict of murder. Having heard all the facts and having heard that this man had been provoked many times in a similar way, the jury acquitted him.
    I appeal to the Solicitor-General to consider finding other words, if he cannot accept the words in the Amendment. Let men or women be judged by what they are and not by a standard with which they themselves perhaps have no association.
    9.30 p.m.
    Mr. F. P. Crowder: I seek to intervene for only a few moments. I think I might possibly be able to assist the Committee in this respect. Let me declare my interest at once; as a member of the Bar, I make my living in crime.
    I can assure the Committee that the Clause as worded will not worry me in the least. If any alteration were to be made, what could be done would be to add the words
    "a reasonable man having regard to all the circumstances."
    If we inserted those words it would broaden the definition, but in my view, whether we insert those words or not, it will not make the slightest difference; because it is well worth remembering that however closely we define the law in this Committee, juries do not try criminal cases, least of all murder cases, with their eyes shut. The jury would see the defendant and they would hear about this disability or any special circumstances which there were in the case. No judge would dream of not telling the jury to take those circumstances into account.
    Mr. S. Silverman: But is it not a fact that it has been laid down in the Court of Criminal Appeal, whose decisions naturally have been followed by trial judges in numerous instances, that they must do the exact opposite to what the hon. Member says—that they must warn the jury in their summing up that the jury must not pay attention to any abnormal limitations in the accused but must judge his conduct not in regard to those individual disabilities but in accordance with the standard of what they think a reasonable man might have done?
    Mr. Crowder: I agree with the hon. Member in many ways, but I think that
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    his remarks apply to a different type of case. Where we have the words "a reasonable man" as set out in the Clause, the words "having regard to the circumstances of the case" are almost bound to follow, even though they are not there in fact. Personally I would see no objection to their being put into the Clause, but equally—and I sit down now because we have been engaged for much too long on this matter—I see, as a criminal lawyer, absolutely no danger if they are excluded.
    Sir Leslie Plummer: I hope the hon. Member for Ruislip-Northwood (Mr. F. P. Crowder) will not be angry with me for rising to speak, but I do not think we have spent enough time on the Clause. It is a matter of importance. I congratulate him on saying that it does not matter what we do in the Committee, since juries will decide anyway. That seems an admirable argument for having no law at all. That might be of benefit to a great number of people.
    It is important that the Amendment moved by my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) should be accepted, for a reason which I will give. Some years ago I witnessed the trial of a man charged with murder. He was the mate of a barge. He was coming up the Thames in his boat with his skipper. Just before they moored, the mate went downstairs and changed out of his bargee's clothes into a blue serge suit and a nice knotted handkerchief. When asked by the skipper why he was doing so he said that it was because he wanted to leave the barge as soon as it was moored, in order to meet his girl. Thereupon the skipper made some remarks about the virtue and constancy of the young lady which most men do not make about other chaps' girls. So incensed was the mate at these remarks that he beat up the skipper to such an extent that the skipper died.
    The mate was tried for murder. During the summing up it was made clear that a reasonable man ought to judge whether, in fact, a bargee would be incensed by the language habitually used by another bargee—and, ergo, by himself—if it was used about his girl. The jury was asked to believe that it was quite impossible for the mate of a barge—being a bargee

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    himself—to be upset by the language of another bargee. What I was convinced of was that the gentlemen of the jury had never heard, or, if they had heard, had not understood, the language that the skipper used about the mate's girl. They came from entirely different social sphere. Perhaps they only used or understood such language either in their subconscious or in the night clubs, but they certainly would not associate themselves with that sort of language.
    This man was found guilty and was eventually executed. It seemed to me that what nobody bothered to find out was whether there was, in fact, one expression used, whether a nuance was used or some jibe uttered which would upset the bargee very much indeed, although coming from another bargee. No one put himself in the position of asking whether there was provocation in the words used by the captain to the mate and, if so, whether it was reasonable for the fellow to take umbrage at that sort of language. If this Amendment were accepted then, in a similar case to that, the jury would have to decide whether it was reasonable that that particular man should have been so upset by those remarks about his girl.
    I have had a great deal of experience of and have had to pay great attention to libel actions against the newspapers for which I have worked. I was cursed by this man, the reasonable man, who could always be relied upon, as it were, to give a different verdict in much the same sort of case in each successive court. This legal fiction, enjoyed so much by the lawyers, does a great deal of damage, and in murder trials that damage could be completely offset if the Amendment were accepted.
    Mr. James Simmons: I address the House, for a moment, as a reasonable one-legged man. I have been listening to myself being talked about on the Front Benches until my ears have burned, and I have felt that I should speak in defence of the one-legged man. I have been provoked. The Attorney-General said that the jury would know that the accused had only one leg, but he would not tell them that unless he knew that I had only one leg.
    I would point out that all one-legged men are not of the same temperament.
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    The same one-legged man may be a different sort of man one day compared with another. On some days the stump does not "jump" so much. Sometimes one does not feel so much pain. Of course, a one-legged man can be provoked in the same way as one can provoke a man with only one eye or one arm. I remember on one occasion standing on the fringe of a public meeting during an election campaign in which I was a candidate, and I heard myself referred to as only half a man. I was provoked and the meeting ended in uproar. If I had been nearer to the speaker and had had a chopper in my hand, I might have been charged with murder.
    In the early days of a man's disability his disability is more acute, and he is more sensitive to references to his disability. But, of course, as time goes on, one matures and gets used to it and one is not so easily provoked by such references. Of course, a one-legged man, like anybody else, is bad tempered in spasms, but I maintain that a one-legged man is not easily provoked because he is one-legged but because of the moods or feelings caused or aggravated by his disability.
    Therefore, I say: do not class all one-legged men as being easily provoked. Some of us, after years of self-discipline, are patient, long suffering and reasonable, despite having only one leg to stand on.
    Mr. Paget: The Attorney-General, the right hon. and learned Member for Chertsey (Sir L. Heald), the hon. Member for Ruislip-Northwood (Mr. F. P. Crowder) and, indeed, the Royal Commission—everybody who has supported the Clause as it now stands—seems to support it upon the somewhat peculiar ground that juries can be relied on to do nothing of the sort. It is a somewhat peculiar reason for supporting a Clause.
    It is said "You say that a jury has got to judge upon the yardstick of the reasonable man, but the accused is in front of them and they are going to judge on the accused." If that is so, why not accept the Amendment? Why have a Clause which can be justified only because it will not work, instead of having a Clause that will work?
    One of the Attorney-General's arguments which I found extremely difficult to follow was that if the jury had to

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    decide not upon the yardstick of the man they saw in front of them but upon the yardstick of another reasonable man whom they had to imagine, their task would be too difficult. I am bound to say that I should have thought that it would be rendered far more difficult if they had to imagine the reasonable man in these circumstances, because there I would find myself in entire agreement with my hon. Friend the Member for Chesterfield (Mr. Benson) in saying that one thing which we could all agree upon about the reasonable man is that the reasonable man does not commit murder. Committing murder is a most unreasonable thing to do. Can one say for one moment that any reasonable man is going to be provoked to unjustifiable killing? It must be remembered that if somebody comes for me with a gun so that my life is in danger, and I kill him, that is justifiable homicide. What we are considering is unlawful killing, and I suggest that that is exactly what the reasonable man is not provoked to do.
    9.45 p.m.
    What one has to consider is the particular man in the circumstances. I do not deny for a moment that that is in fact what the jury does consider; but what is to prevent us telling the jury to do what in fact they will do? We all agree that this Clause would be quite meaningless unless they did it. What we are considering and what we are mitigating is action done when control has been lost as against action taken with calm deliberation. We say that if a man takes action with calm deliberation, that is worse than if he does it when he has lost control.
    The point is, has he lost control of himself? That was the point of the last Clause which we discussed. There, we dealt with the man who had diminished responsibility because of abnormality of mind. Why did we not say in that Clause:
    "Where a person kills … he shall not be convicted of murder if he was suffering from such abnormality of mind … as substantially impaired a reasonable man's mental responsibility "?
    In the Clause we in fact say "his responsibility". I do not think it makes sense unless we do. We have to consider an abnormality which impairs his
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    responsibility by removing his self-control.
    It is exactly the same problem when we have to deal with provocation. What we are looking for is the provocation which removes this man's self-control. The Clause says:
    "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked … to lose his self-control.…"
    If he loses his self-control, does it really matter whether a reasonable man, who, ex hypothesi, retains his self-control or he would not be a reasonable man, would have lost it? It really does make nonsense of it.
    Since the Report of the Royal Commission has been called in question here, in support of the Government, it is of some importance to hear what actually was said. The Royal Commission considered this matter, and referred to what had been said by Mr. Basil Nield, Mr. Justice Donovan and the Society of Labour Lawyers. The matter is summarised in Mr. Nield's words:
    "The jury should be permitted to determine the effect of the provocation on this particular man whom they have seen and may have heard and whose whole circumstances have probably been described to them."
    That, of course, is what we are saying now. The Report goes on in paragraph 142:
    "This proposal was strongly opposed by the judges who gave evidence before us, including the Lord Chief Justice and the Lord Justice General. Lord Cooper observed that if the existing rule was changed, 'there might be circumstances in which a bad-tempered man would be acquitted and a good-tempered man would be hanged, which, of course, is neither law nor sense'."
    At present, it may not be law, but it surely is sense. If a man has a hot temper and provocation comes to him which makes him lose his self-control, and then, having lost his self-control, he kills, the offence is much less heinous than would be the offence of a man with a good temper, whose temper is in control, but who kills deliberately. Indeed, on the Clause as it is drafted that is still so, for whatever the provocation may be, and whether it affects a reasonable man or not, it has got to make this man lose his self-control.
    So that the effect of the Clause is that the bad-tempered man will be excused to

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    this extent, because he loses his self-control, and the good tempered man will not be excused because he does not. That argument, therefore, which is quoted by the Royal Commission and which, indeed, was quoted by the Attorney-General today, is quite an invalid one and is wrong, even on the Clause as drafted in the Bill.
    The Commission then went on to state its sympathy for the alternative and said:
    "Nevertheless we feel sympathy with the view which prompted the proposal that provocation should be judged by the standard of the accused. The objections of the Judges take no account of that fundamental difference between the law of murder and the law applicable to all other crimes which lies at the root of our inquiry and to which Lord Simon drew attention in the concluding words of his judgment in the Holmes case. In the case of other crimes the court can and does take account of extenuating circumstances in assessing the sentence; in the case of murder alone the sentence is fixed and automatic. Provocation is in essence only an extenuating circumstance, which in the case of lesser crimes, as Lord Simon pointed out, does not alter the nature of the offence, but is allowed for in the sentence. The rule of law that provocation may, within narrow bounds, reduce murder to manslaughter, represents an attempt by the courts to reconcile the preservation of the fixed penalty for murder with a limited concession to natural human weakness, but it suffers from the common defects of a compromise. The jury might fairly be required to apply the test of the 'reasonable man' in assessing provocation if the Judge were afterwards free to exercise his ordinary discretion and to consider whether the peculiar temperament or mentality of the accused justified mitigation of sentence. It is less easy to defend the application of the test in murder cases where the Judge has no such discretion."
    Surely, that is unanswerable. Indeed, when the Royal Commission sought to answer it, the Commission itself seemed to go straight into a fallacy:
    "We have indeed no doubt that if the criterion of the 'reasonable man' was strictly applied by the courts and the sentence of death was carried out in cases where it was so applied, it would be too harsh in its operation."
    That is what the Commission did; it rejected the test. It produced unanswerable arguments why it should not apply, but then said, "None the less, let us leave it because we can rely upon juries to pay no attention to it." It is an odd and strange way of doing it and I cannot see the sense of it.
    Surely, provocation is of its very essence something personal to the person provoked. For instance, to call a man
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    an informer might, to some people, simply indicate somebody who does the duty which we all owe to society and to the police to inform them when we know crime has been committed. In another rank of society, it is the most bitter of conceivable insults. It depends on one's society, who one is and whether one's friends are people in immediate fear of being "narked" on. It is of its essence personal. It is personal to one's surroundings. The insult to a man's wife will depend in considerable measure on whether he likes her or not. All these things are matters of an utterly personal nature, and of one's relation to them. To proceed to import the reasonable man, who, by very definition, I should think, does not commit murder at all, in order to test sentiments which are relevant only because of their precise personal application does seem to me to be the greatest nonsense in the world.
    We are doing it only because of the conservatism of the judges. The Royal Commission said that what the judges want is nonsense, but that as we can rely on juries to regard it as nonsense we had better keep it. If it did not appeal to the Royal Commission, I do not see why it should appeal to us. So I urge the Committee to make this Amendment.
    Mr. Hale: I cannot allow this occasion to pass without paying a very humble but very sincere tribute to the hon. Gentleman the Member for Ruislip-North-wood (Mr. F. P. Crowder), who made the sort of speech I hoped to hear in this Committee, a speech of great courage, a speech which I welcome as a breath of fresh air. To him I can say that his little oration shone like a candle like a good deed in a naughty world.
    What he said was, "Let us be frank about this. It does not really matter what we 'bung' into the Bill because juries will not take any notice of it, and it does not matter what we leave out because juries will 'bung' it in." How true it is, and how important it is we should realise it, that even arguments of sanity depend for their force upon their being accepted by public opinion. In the eleven years I have been a Member of Parliament, Parliament has spent half its time imposing taxes no one wants to pay and passing laws making crimes of things I have been doing for years. The hon. Gentleman clarified the position for us

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    and induces us to pursue this matter with him on a more appropriate occasion to its logical conclusion and to draw certain reasonable deductions therefrom.
    On the other hand, I found myself out of sympathy with my hon. Friend the Member for Deptford (Sir L. Plummer) when, making a singularly able oration, he—
    Mr. W. G. Leburn: He has gone to another place.
    Mr. Hale: I am sorry, but I do not follow. However, I am sure it was an extremely important observation.
    My hon. Friend spoke under the impression that a reasonable man in a libel case was the same sort of man as a reasonable man in a murder case. Every murder case makes it abundantly clear that that is not so. The reasonable man in a libel case has been described—I think it was by Lord M'Naghten—as the man on the Clapham bus. Yes, indeed. That is the familiar and legal definition. It may not sound like the sort of thing lawyers say, but it is the sort of thing lawyers say when they are talking sense. The man on the Clapham bus, the sort of man who takes part in a football pool every week, and who possibly possesses a mistress, is the reasonable man. That is not a true definition in murder cases. Of course it is not.
    The reasonable man in a murder case is the man who goes to church three times on Sundays, who catches the eight o'clock train to work every morning, who goes to bed early every night, who has never voted Labour. He is the man of complete respectability, completely free from vices.
    Mr. M. Stewart: Would he not also belong to the United Nations Association?
    Mr. Hale: I should not think so. If he did he would vote in the minority.
    That is the test. This man is a figment of the imagination. He does not exist. He really does not. He is the sort of man Lord Woolton finds one of for the platform at Llandudno.
    My hon. and learned Friend the Member for Northampton (Mr. Paget) considered the whole question of provocation, and he said in a cheerfully casual
    528
    way that the degree of affront one considers to have been done to one's wife depends on whether and how much one loves her. That is not fantastic. It is true. Every time I advise people in libel actions I have to tell them there is no such thing as libel.
    10.0 p.m.
    Words can be the most innocent words under the sun when applied to one man and very damaging when applied to another. If I said that the Archbishop of Canterbury knew nothing of mathematics it would not be damaging to the Archbishop of Canterbury; but if a week before he had resigned the Archbishopric and accepted a professorship of mathematics at Cambridge University I might have committed a libel. Words can provoke one man which do not provoke another.
    The simplest and clearest test is that of race. In the old days there were classic cases in which Indians lost caste. The classic sort of case of libel is that in which someone could say things which imputed loss of caste to an Indian, but which would not affect a European. They might be the most savage and damaging things in the world to a man of colour. If I used contemptuous and contemptible words which could be offensive to a man of colour they would not be offensive to the average Member of this House, because if one accuses a man of something which is manifestly untrue it does not hurt him; but if one accuses him of something which very often is true it may be seriously damaging. The law has very wisely said that. We really have not the right to hold over a man blackmail threats all his life because of some peccadillo of his youth or because of something for which he has paid the penalty.
    Last night I had a nightmare myself and woke up perturbed because I found myself in a fantastic argument in which I was alleging a breach of contractual obligation on someone who appeared to me to be a comparative stranger, and what he said to me was, "I thought I had made that perfectly clear." Those words would not be annoying to anyone else, but having heard them so often here, I found them infuriating. In my dream I said that this was a matter of contract and a matter of gravity and a chap across the bar said "I thought that my right hon.

    529
    Friend had explained that fully last week." I found myself furious, screaming, with a weapon in my hand. I am normally a man who does not get angry at all and does not get exacerbated.
    There is a classic example which the Attorney-General will remember. It was said, I remember not by whom, but in the 1830s, of a certain distinguished gentleman that if he only knew a little law he would know something of everything. Nothing could be less damaging to the ordinary man. If I said that to the noble Lord the Member for Dorset, South (Viscount Hinchingbrooke), he would regard it as not an unreasonable compliment, if I said it in a certain tone of voice, but it was said or Lord Brougham as Lord Chancellor. It was said maliciously, and Lord Brougham was an excitable man who might well have been provoked. Whether in modern political circumstances it would provoke the Chancellor to impute that he knew nothing of the law, I do not know.
    To be serious, the real test is: what is likely to be the reaction of this little man? What is the picture before the jury of the circumstances which are being resented. We all know—let us accept it—that there are certain lives which are sometimes cruel and sometimes joyous, Life in the Army is often good fun for the chap who can take a joke and be convivial and accept the difficulties and the joys of Army life, but in almost every unit there is the quiet little man, the introspective little man, who cannot do it, and to him that life is hell.
    It can happen very often in a unit. He is the man at whom every little coarse joke is directed each night, with more and more effect. This is no figment of the imagination. Everyone here knows of hundreds of cases of this kind of thing which he can quote. This is the quiet man, the man who has been sorely tried and who cannot stand it any longer, and not being used to the ordinary forms of combat and self-defence and not being equipped for it, he picks up a weapon and usually does something which may prove to be serious. The whole history of that provocation is cumulative provocation, not easily proved. And then, in the bare light of a cold court, before a judge in robes, this is examined and the man says, "Well, sir, he called me a bastard "
    530
    and the judge says, "What of it? I would not get provoked. I happen to know my parents were married and that I am legitimate".
    Seriously, it is not difficult to conjure up that picture of a repressed man, a man with mental difficulty, a man who cannot talk freely and cannot pass it off and say, "Come off it and let us have a game together". Surely, that must be the test. We conjure up a picture of the reasonable man being tried for the offence in the barrack room, but one is trying the repressed and miserable soldier, and the test cannot be applied to what the serjeant-major would have done in those circumstances. Let us not forget that in those circumstances the sergeant-major is the reasonable man. He is moderately respectable and successful, and on the whole he is the epitome of respectability in the Forces.
    The proposed change in the Bill is really an important and good change, and I am sure that all of us welcome it. The restrictions upon provocation have been archaic restrictions, applied over the years. There is the fantastic theory of the man who finds his wife committing adultery. It could not be his mistress, however much he loved his mistress, because we are a God-fearing country, and it could not be word of mouth, because one has to walk in and see the thing happening to get the necessary shock to one's system. This has been an archaic and depressing sort of theory without any decent human emotion. It has been a judge-made, a case-made doctrine over the years. I congratulate sincerely the Attorney-General on introducing the Clause. It is a courageous and good thing to do.
    I know that we are dealing in this Measure now with perhaps only half-a-dozen cases a year, perhaps not so many, but as I said when we discussed the previous Clause, I believe that we are starting something which will be extended. I do not criticise the limited ambit of the reform. In reforming the law, we have to go slowly. I accept that we cannot look a long way ahead and make revolutionary changes, because the risk is too great. Our judicial system is one which we all respect. I take occasion, of course, to point out what I think of its limitations here and there, but fundamentally I think that it is marvellous and the

    531
    administration is one for which we have a firm regard, with all its defects.
    Therefore, I should not like to have p, a revolutionary amendment. I cannot think of a better way of introducing matters of this kind than to introduce them in the limited sphere of a serious case where the doctrine will be seriously applied. Let us see how it works. I am sure that it will work and that it will be extended a great deal to the criminal law as applied to all sorts of violence. And so it should, just as in the previous case the test of limited responsibility may well apply to every serious crime.
    That is the position, and therefore I suggest that it is important for us to try to start right. I believe that this Amendment is one of the greatest possible importance. It may be that juries will get round this. Possibly they will, but it is not really an argument that can be put to a House of Commons that claims to be rather ritualistic and rather bourgeois and, for the moment, we are exponents of the doctrine of law. As such, it is hardly permissible for us to argue that whatever law we make will be ignored.
    If we do not argue that, we must decide that whatever law we make is reasonably understood. On those grounds, I suggest that to say now that we will make a new law about provocation, to say that whether it be Lock Ah Tam, the inscrutable and respectable Chinaman who was hanged in the North, or a Tony Mancini, or whether it be the quiet and rather unassuming Dr. Crippen, or whether it be the extrovert or the introvert, the black man or the white, we will apply as a test a sculptured figure cut out of our own imaginations, cut to a figure of respectability and reputability, and of a dullness which makes it almost impossible that he will make the sort of responses in any circumstances that you or I, Sir Gordon, would make, would be a tragedy.
    I think it is wrong, and I therefore plead with the Attorney-General to say that after all this is not a major Amendment but that it is an eminently sensible Amendment. So why not say that the test we will apply to the prisoner at the Bar is the only test we can ever apply to him, namely, what was the likely reaction
    532
    of the prisoner at me stances in which he was placed?
    Mr. S. Silverman: The difference between the law as the Government propose it and the law as it would be if the Amendment of my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) were carried is the difference between applying an objective and a subjective test. The difference would not be important in this matter, as in so many other matters we have considered, except for the Government's rather curious reaction to the Report of the Royal Commission.
    If the Government had been content to accept all the recommendations in that Report, it would not matter really whether we applied in this matter an objective or a subjective test, because the Report included the recommendation that after a verdict of guilty the jury could consider in every case whether there were extenuating circumstances sufficient to reduce the penalty. The Government have rejected that, however, and so we have to decided this question on the basis that it does make a practical difference although, if all the recommendations of the Royal Commission had been accepted, it would not have made a practical difference.
    10.15 p.m.
    All progress in penal reform has been the progress from the objective to the subjective standard. The late W. S. Gilbert thought that it was a sublime object to try to make the punishment fit the crime. No penologist believes that. The true aim is not to make the penalty fit the crime but to make the penalty fit the criminal, which is a totally different matter. In many parts of the Bill that is what we are doing. In the previous Clause we were in fact endeavouring to make the penalty fit the criminal where the criminal was a person who by reason of some mental disability ought not reasonably to be held fully accountable, legally responsible.
    All that is suggested is that when we are making a very sensible Amendment to allow words to be considered equally with other circumstances when we are considering whether there was sufficient provocation or not, then we shall address that, as we did in the previous case, not to some objective standard, because we have abandoned the objective standard,

    533
    but make it applicable to the circumstances of the particular case and the circumstances of the particular criminal.
    The reasons for preferring that to the Government's view have been sufficiently discussed in the last hour, and I have certainly no intention of repeating them. I rise only to say to the right hon. and learned Gentleman that having listened, as most of us have done—not quite all, but most of us—to the reasons which
    have induced the Government not to accept this view, we are not satisfied with those reasons and we would advise hon. and right hon. Gentlemen on this side of the Committee to test the question in the Division Lobby.
    Question put, That the words "a reasonable man" stand part of the Clause:—
    The Committee divided: Ayes 191, Noes 144.

    Division No. 11.]

    AYES

    [10.17 p.m.

    Agnew, Cmdr. P. G.

    Hall, John (Wycombe)

    Nabarro, G. D. N.

    Aitken, W. T.

    Harrison, A. B. C. (Maldon)

    Nairn, D. L. S.

    Alport, C. J. M.

    Harrison, Col. J. H. (Eye)

    Neave, Airey

    Anstruther-Gray, Major Sir William

    Heald, Rt. Hon. Sir Lionel

    Nicholls, Harmar

    Arbuthnot, John

    Heath, Rt. Hon. E. R. G.

    Nicolson, N. (B'n'm'th, E. & Chr'ch)

    Armstrong, C. W.

    Hesketh, R. F.

    Nugent, G. R. H.

    Astor, Hon. J. J.

    Hill, John (S. Norfolk)

    Oakshott, H. D.

    Atkins, H. E.

    Hinchingbrooke, Viscount

    O'Neill, Hn. Phellm (Co. Antrim, N.)

    Baldock, Lt.-Cmdr. J. M.

    Holland-Martin, C. J.

    Osborne, C.

    Baldwin, A. E.

    Hope, Lord John

    Page, R. G.

    Balniel, Lord

    Hornby, R. P.

    Pannell, N. A. (Kirkdale)

    Barlow, Sir John

    Hornsby-Smith, Miss M. P.

    Partridge, E.

    Barter, John

    Horsbrugh, Rt. Hon. Dame Florence

    Peyton, J. W. W.

    Bell, Philip (Bolton, E.)

    Howard, Gerald (Cambridgeshire)

    Pickthorn, K. W. M.

    Bidgood, J. C.

    Howard, Hon. Greville (St. Ives)

    Pitman, I. J.

    Biggs-Davison, J. A.

    Hughes Hallett, Vice-Admiral J.

    Pitt, Miss E. M.

    Bishop, F. P.

    Hurd, A. R.

    Pott, H. P.

    Body, R. F.

    Hutchison Sir Ian Clark (E'b'gh, w.)

    Powell, J. Enoch

    Bossom, Sir Alfred

    Hyde, Montgomery

    Price, David (Eastleigh)

    Boyd-Carpenter, Rt. Hon. J. A.

    Hylton-Foster, Sir H. B. H.

    Raikes, Sir Victor

    Brooke, Rt. Hon. Henry

    Irvine, Bryant Godman (Rye)

    Redmayne, M.

    Brooman-White, R. C.

    Jenkins, Robert (Dulwich)

    Renton, D. L. M.

    Browne, J. Nixon (Craigton)

    Jennings, J. C. (Burton)

    Ridsdale, J. E.

    Bryan, P.

    Johnson, Dr. Donald (Carlisle)

    Robinson, Sir Roland (Blackpool, S.)

    Buchan-Hepburn, Rt. Hon. P. G. T.

    Johnson, Eric (Blackley)

    Rodgers, John (Sevenoaks)

    Bullus, Wing Commander E. E.

    Joseph, Sir Keith

    Roper, Sir Harold

    Campbell, Sir David

    Joynson-Hicks, Hon. Sir Lancelot

    Conant, Maj. Sir Roger

    Kaberry, D.

    Schofield, Lt.-Col. W.

    Cordeaux, Lt.-Col. J. K.

    Keegan, D.

    Scott-Miller, Cmdr. R.

    Corfield, Capt. F. V.

    Kerby, Capt. H. B.

    Sharples, R. C.

    Craddock, Beresford (Spelthorne)

    Kershaw, J. A.

    Shepherd, William

    Crosthwaite-Eyre, Col. O. E.

    Kimball, M.

    Simon, J. E. S. (Middlesbrough, W.)

    Crouch, R. F.

    Kirk, P. M.

    Smithers, Peter (Winchester)

    Crowder, Petre (Ruislip — Northwood)

    Lambert, Hon. G.

    Steward, Harold (Stockport, S.)

    Cunningham, Knox

    Lancaster, Col. C. G.

    Steward, Sir William (Woolwich, W.)

    Currie, G. B. H.

    Langford-Holt, J. A.

    Stewart, Henderson (Fife, E.)

    Dance, J. C. G.

    Leavey, J. A.

    Storey, S.

    Davidson, Viscountess

    Leburn, W. G.

    Stuart, Rt. Hon. James (Moray)

    D'Avigdor-Goldsmid, Sir Henry

    Legge-Bourke, Maj. E. A. H.

    Studholme, Sir Henry

    Deedes, W. F.

    Legh, Hon. Peter (Petersfield)

    Sumner, W. D. M. (Orpington)

    Donaldson, Cmdr. C. E. McA.

    Lindsay, Hon. James (Devon, N.)

    Taylor, William (Bradford, N.)

    du Cann, E. D. L.

    Lindsay, Martin (Solihull)

    Temple, J. M.

    Dugdale, Rt. Hn. Sir T. (Richmond)

    Linstead, Sir H. N.

    Thomas, Leslie (Canterbury)

    Duncan, Capt. J. A. L.

    Lloyd, Maj. Sir Guy (Renfrew, E.)

    Thompson, Kenneth (Walton)

    Eden, J. B. (Bournemouth, West)

    Lloyd-George, Maj. Rt. Hon. G.

    Thornton-Kemsley, C. N.

    Elliot, Rt. Hon. W. E.

    Lucas, Sir Jocelyn (Portsmouth, S.)

    Tiley, A. (Bradford, W.)

    Errington, Sir Eric

    Lucas-Tooth, Sir Hugh

    Tilney, John (Wavertree)

    Farey-Jones, F. W.

    Macdonald, Sir Peter

    Turner, H. F. L.

    Finlay, Graeme

    McKibbin, A. J.

    Turton, Rt. Hon. R. H.

    Fisher, Nigel

    Mackie, J. H. (Galloway)

    Vane, W. M. F.

    Fletcher-Cooke, C.

    McLaughlin, Mrs. P.

    Vaughan-Morgan, J. K.

    Fraser, Sir Ian (M'cmbe & Lonsdale)

    McLean, Neil (Inverness)

    Vickers, Miss J. H.

    Freeth, D. K.

    MacLeod, John (Ross & Cromarty)

    Vosper, D. F.

    Galbraith, Hon. T. G. D.

    Macmillan, Maurice (Halifax)

    Wakefield, Sir Wavell (St. M'lebone)

    George, J. C. (Pollok)

    Macpherson, Niall (Dumfries)

    Wall, Major Patrick

    Godber, J. B.

    Maddan, Martin

    Ward, Hon. George (Worcester)

    Gomme-Duncan, Col. Sir Alan

    Maitland, Hon. Patrick (Lanark)

    Whitelaw, W. S. I. (Penrith & Border)

    Gower, H. R.

    Manningham-Buller, Rt. Hn. Sir. R.

    Williams, Paul (Sunderland, S.)

    Graham, Sir Fergus

    Markham, Major Sir Frank

    Williams, R- Dudley (Exeter)

    Grant, W. (Woodside)

    Marples, A. E.

    Wills, G. (Bridgwater)

    Grant-Ferris, Wg Cdr R. (Nantwich)

    Marshall, Douglas

    Wilson, Geoffrey (Truro)

    Green, A.

    Mawby, R. L.

    Woollam, John Victor

    Gresham Cooke, R.

    Maydon, Lt.-Comdr, S. L. C.

    Grosvenor, Lt.-Col. R. G.

    Milligan, Rt. Hon. W. R.

    TELLERS FOR THE AYES:

    Gurden, Harold

    Morrison, John (Salisbury)

    Mr. Richard Thompson and

    Mr. Hughes-Young.

    NOES

    Ainsley, J. W.

    Hughes, Emrys (S. Ayrshire)

    Proctor, W. T.

    Allaun, Frank (Salford, E.)

    Hughes, Hector (Aberdeen, N.)

    Pryde, D. J.

    Awbery, S. S.

    Hunter, A. E.

    Randall, H. E.

    Bence, C. R. (Dunbartonshire, E.)

    Hynd, J. B. (Attercliffe)

    Rankin, John

    Benson, G.

    Irving, S. (Dartford)

    Roberts, Goronwy (Caernarvon)

    Bevan, Rt. Hon. A. (Ebbw Vale)

    Jay, Rt. Hon. D. P. T.

    Robinson, Kenneth (St. Pancras, N.)

    Blackburn, F.

    Jeger, Mrs. Lena (Holbn & St. Pncs, S.)

    Ross, William

    Bowden, H. W. (Leicester, S. W.)

    Jenkins, Roy (Stechford)

    Royle, C.

    Bowles, F. G.

    Johnson, James (Rugby)

    Short, E. W.

    Braddock, Mrs. Elizabeth

    Jones, David (The Hartlepools)

    Silverman, Sydney (Nelson)

    Brockway, A. F.

    Jones, Jack (Rotherham)

    Simmons, C. J. (Brierley Hill)

    Burke, W. A.

    Kenyon, C.

    Skeffington, A. M.

    Butler, Herbert (Hackney, C.)

    King, Dr. H. M.

    Slater, Mrs. H. (Stoke, N.)

    Champion, A. J.

    Lawson, G. M.

    Slater, J. (Sedgefield)

    Chetwynd, G. R.

    Lee, Frederick (Newton)

    Soskice, Rt. Hon. Sir Frank

    Coldrick, W.

    Lee, Miss Jennie (Cannock)

    Steele, T.

    Collick, P. H. (Birkenhead)

    Lever, Harold (Cheetham)

    Stewart, Michael (Fulham)

    Corbet, Mrs. Freda

    Lindgren, G. S.

    Stones, W. (Consett)

    Craddock, George (Bradford, S)

    Mabon, Dr. J. Dickson

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

    Cullen, Mrs. A.

    MacColl, J. E.

    SummerskiII, Rt. Hon. E.

    Dalton, Rt. Hon. H.

    McGhee, H. G.

    Sylvester, G. O.

    Deer, G.

    McInnes, J.

    Taylor, Bernard (Mansfield)

    do Freitas, Geoffrey

    McKay, John (Wallsend)

    Thomson, George (Dundee, E.)

    Delargy, H. J.

    MacPherson, Malcolm (Stirling)

    Thornton, E.

    Dodds, N. N.

    Mahon, Simon

    Timmons, J.

    Donnelly, D. L.

    Mallalieu, E. L. (Brigg)

    Ungoed-Thomas, Sir Lynn

    Dye, S.

    Mann, Mrs Jean

    Usborne, H. C.

    Evans, Albert (Islington, S. W.)

    Mason, Roy

    Wade, D. W.

    Ferrnyhough, E.

    Mikardo, Ian

    Warbey, W. N.

    Finch, H. J.

    Mitchison, G. R.

    Watkins, T. E.

    Forman, J. C.

    Monslow, W.

    West, D. G.

    Fraser, Thomas (Hamilton)

    Morris, Percy (Swansea, W.)

    Wheeldon, W. E.

    Greenwood, Anthony

    Moyle, A.

    White, Mrs. Eirene (E. Flint)

    Grey, C. F.

    Neal, Harold (Bolsover)

    White, Henry (Derbyshire, N. E.)

    Griffiths, William (Exchange)

    Noel-Baker, Francis (Swindon)

    Wigg, George

    Grimond, J.

    Oliver, G. H.

    Willey, Frederick

    Hale, Leslie

    Oswald, T.

    Williams, David (Neath)

    Hall, Rt. Hn. Glenvil (Colne Valley)

    Owen, W. J.

    Williams, Rev. Llywelyn (Ab'tillery)

    Hannan, W.

    Paget, R. T.

    Williams, Rt. Hon. T. (Don Valley)

    Harrison, J. (Nottingham, N.)

    Paling, Rt. Hon. W. (Dearne Valley)

    Willis, Eustace (Edinburgh, E.)

    Hastings, S.

    Palmer, A. M. F.

    Winterbottom, Richard

    Hayman, F. H.

    Pargiter, G. A.

    Woodburn, Rt. Hon. A.

    Henderson, Rt. Hon. A. (Rwly Regis)

    Parker, J.

    Woof, R. E.

    Herbison, Miss M.

    Pearson, A.

    Yates, V. (Ladywood)

    Holmes, Horace

    Peart, T. F.

    Younger, Rt. Hon. K.

    Houghton, Douglas

    Pentland, N.

    Zilliacus, K.

    Howell, Charles (Perry Barr)

    Plummer, Sir Leslie

    Howell, Denis (All Saints)

    Popplewell, E.

    TELLERS FOR THE NOES:

    Hughes, Cledwyn (Anglesey)

    Probert, A. R.

    Mr. Wilkins and Mr. J. T. Price.

    Clause ordered to stand part of the Bill.

    Clause 4.—(SUICIDE PACTS.)
    Mr. Anthony Greenwood: I beg to move, That the Chairman do report Progress and ask leave to sit again.
    I do so in order that we may learn the Government's intentions about the rest of this sitting. We have had a good debate and the temper of the Committee has steadily improved as the day has gone on. From our point of view we have made reasonably good progress with the Bill. Very soon we shall be at the end of Part I and shall be starting upon the really controversial part of the Bill. I should have liked to suggest to the Government that it might be convenient if we brought our discussion to a fairly early conclusion tonight so that next week
    536
    we can face the more contentious part of the Bill with a fresh if not with an open mind.
    Major Lloyd-George: I think it would meet the wishes of the Committee if we could complete our consideration of Part I tonight, which means Clause 4. There are no Amendments down to Clause 4.
    Mr. Greenwood: I am most grateful to the right hon. and gallant Gentleman. I beg to ask leave to withdraw the Motion.
    Motion, by leave, withdrawn.
    Motion made, and Question proposed, That the Clause stand part of the Bill.
    Sir F. Soskice: My hon. and right hon. Friends welcome the Clause. We think it is another marked step forward in the

    537
    direction of a more humane approach to the administration of our criminal law, and we are all very glad to see the Clause in the Bill.
    I go a little further, and say that we are glad also that in framing the Clause the Government have thought fit to go even one step beyond the recommendation in relation to suicide pacts in the Royal Commission's Report. In paragraph 176 of that Report the fear is expressed that if cases of suicide pacts are included in which one of the partners kills the other there might be considerable scope for abuse. The Government have, in my opinion rightly, disregarded that caution. As I read subsection (3) they have included in the Clause cases in which the one partner to the pact kills the other. The recommendation in the Report stops short at pacts in which each of the partners commits suicide himself.
    I am very glad to see the Clause in the Bill, and I congratulate the Government on the view that they have taken that the suicide pact should be defined as including a pact in which one of the partners kills the other. We think that humanity requires that the Clause should be enlarged as the Government have enlarged it, and I think I am speaking for all my hon. and right hon. Friends on this side of the Committee in being glad to see it in that form.
    10.30 p.m.
    Major Lloyd-George: I am grateful to the right hon. and learned Member. I do not think I need detain the Committee any longer. I am very glad that the decision of the Government to go beyond the recommendations of the Royal Commission meets with the approval of the right hon. and learned Member and his hon. Friends. I do not think I need say any more; I think we are all agreed on that.
    Mr. Paget: May I ask what is contemplated by the last line of subsection (1) which says:
    "or being killed by a third person."
    That subsection says:
    "It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other killing himself or being killed by a third person."
    I have been rather stretching my mind wondering what that meant.
    The Attorney-General: There might conceivably be a suicide pact involving more than two people.
    Mr. M. Stewart: One thing puzzles me. I understand that one can only benefit—if that is the correct word—by this Clause if one has a settled intention of dying. If one's intention of dying were not so firm or successful one would be liable to be charged with murder. Further, if the actual instrument of the suicide pact were shooting that would be capital murder. Does that not give a rather curious result? If the instrument of the suicide pact were shooting one would be in this position: if one had the settled intention of dying one would be allowed to live, and if on the whole one decided one would rather live, one would be put to death.
    I think I am right in saying that the situation which results from this Clause makes us all rather regret that instead of this Measure, which has its merits, we are not considering a simple and more comprehensive Measure.
    Question put and agreed to.
    Clause ordered to stand part of the Bill.
    To report Progress and ask leave to sit again.—[Major Lloyd-George.]
    Committee report Progress; to sit again Tomorrow.

  PUBLIC PETITIONS
  Committee appointed to whom shall be referred all Petitions presented to the House, with the exception of such as are deposited in the Private Bill Office, and that such Committee do classify and prepare abstracts of the same in such form and manner as shall appear to them best suited to convey to the House all requisite information respecting their contents, and do report the same from time to time to the House; and that the Reports of the Committee do set forth, in respect of each Petition, the number of signatures which are accompanied by addresses, and which are written on sheets headed in every case by the prayer of the Petition, or on the back of such sheets provided that on every sheet after the first the prayer may be reproduced in print or by other mechanical process; and that such Committee have power to direct the printing in extenso of such Petitions, or of such parts of Petitions, as shall appear to require it:
  Lieut.-Colonel Bromley-Davenport, Mr. Deer, Mr. Duthie, Mr. David Griffiths, Mr. Hector Hughes, Dr. King, Mr. Lambert, Colonel Lancaster, Major Legge-Bourke, Commander Maitland, Mr. McGhee, Mr. John Morrison, Mr. Pargiter, Sir Victor Raikes, and Mr. Watkins:
  Power to send for persons, papers and records:
  Three be the Quorum.—[Mr. Oakshott.]

  PUBLICATION AND DEBATES REPORTS
  Sir Gordon Touche discharged from the Select Committee and Sir Fergus Graham added.—[Mr. Oakshott.]

  ROAD ACCIDENTS, NORTH LANARKSHIRE
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Oakshott.]
  10.34 p.m.
  Miss Margaret Herbison: The problem I wish to raise tonight is certainly not a political problem; it is a most serious human problem. I want to deal with the shocking accident rate on a part of the Glasgow-Edinburgh Road, A8, which goes through part of my constituency. That part of the road is a veritable death-trap for pedestrians, particularly children and old people.
  On 25th January this year a deputation from two villages in my constituency came to London and met the Minister of Transport and his officials. On that same day I presented a Petition in the House. The deputation and the Petition had some measure of success. In the village of Salsburgh we had on part of the road a speed limit of 30 m.p.h. That has made a very great difference to the safety of the people in that village. We were not so fortunate with the representations we made about Eastfield and Harthill.
  Tonight I want first to deal with a very short stretch of that road which covers only 550 yards. In December, 1955, a little boy of 8 years was killed on that stretch. On 30th October of this year, an old man, trying to cross that road at just about dusk—about 6.30 p.m.—was killed. A few days later, on 2nd November, on that same short stretch, another old man was killed—just after 5.30 p.m. Then, only one week later, on 9th November, a litle girl of 8 years of age was killed outright when she tried to cross the road. Her little brother, aged 6 years, was very seriously hurt in the same accident. Thank God, that little boy's condition is improving, and we hope that he will live. The parents had only those two children.
  Accidents like that are a tragedy and a heartbreak for parents. The parents of those two children have always taken the greatest care of them. I understand that that was the only day on which the mother had not seen them across the road to get the bus for the school. When I called to see the mother, she told me that she

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  heard the great screech of the brakes, and as she went out of the door she uttered a little prayer. The first thing she saw were three children's shoes scattered about the road.
  The residents of that hamlet of South Blair, and the residents of the villages of Eastfield and Harthill are outraged at this time. They demand, and I certainly support their demand, that urgent steps must be taken immediately to make this part of the road safer for children and for old people. For a considerable time now the feeling of danger has been constantly present in the homes in those villages and in this hamlet. Parents of young children, and old people, are under a constant strain, and whenever a tragedy such as that to which I have referred occurs, this strain is greatly heightened.
  I am quite sure that if the Joint Under-Secretary were to go to any home along that road he would find that the question of road safety, and this constant danger, was continually in the minds of the residents. I am sure that the Minister will not tell me tonight that pedestrians must show greater responsibility.
  When I dealt with this matter about this time last year I had a reply from the Parliamentary Secretary to the Ministry of Transport, which was then responsible for the road, and in that reply the Parliamentary Secretary said:
  "For those who have to cross, it should be possible with care and a little patience to cross safely between gaps in the traffic."
  I know this road very well, and it is very difficult for adults to cross it. Sometimes they have to wait for a long time until there is any gap in the traffic. But for children and old people it is almost impossible. One cannot expect children and old people to be able to judge distances, certainly not on a road with no speed limit, where motor cars go along at 60, 70 and 80 m.p.h., as I have seen for myself. I am certain that it is because of the impossibility of children and old people judging distances that these shocking tragedies happen.
  I want to make a few suggestions. I am not asking for this part of 550 yards to have a 30 m.p.h. speed limit, but I am asking first for a roundabout to be built at the junction where the road from South Blair comes out on to the main Glasgow-Edinburgh Road. If that were done, it would make the motorists slow
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  up to get round the roundabout, and it seems to me that it is the only means whereby life can be protected on this part of the Glasgow-Edinburgh road.
  The other matter that I am asking for may well have to be decided by the county council. I am sure it would be of considerable help if a light were provided on the part of the road where the residents from South Blair cross the main road to get buses. The two old men whom I have mentioned were both killed about dusk, and had there been a light there, there is the possibility that these two men would be living today.
  I want to spend a few minutes dealing with the other part of the road that is dangerous, the part known as Eastfield, on which at one time there was a speed restriction of 30 m.p.h. Then it was derestricted, so that there is no speed limit there today. The Secretary of the Safety Committee, in a letter to me, and I understand to the Secretary of State, said:
  "We cannot agree with what seems to be the official attitude, i.e. that people must be killed before it can be proved that a danger exists."
  In previous debates I have quoted from the reports of the police of the County of Lanark. They and everybody were opposed to the derestriction of this road.
  I am asking that the Joint Under-Secretary should give the most serious consideration to restoring the 30 m.p.h. limit and extending it westwards from Harthill as far as the street lighting in Eastfield. I also ask him to ensure that a pedestrian crossing is made near the bus stop between Breslin Terrace and Church Street. No doubt, because of the shocking toll of life in that street, the Joint Under-Secretary will have considered those places.
  There are many other things which I should have liked to say tonight, but I want to give the Joint Under-Secretary plenty of time in which to reply. I am hoping to meet him very soon, with a deputation, and we shall be able at that meeting to expound more fully those matters which we feel can bring about a measure of safety in this area. No Minister, no Member of Parliament, no one who has anything at all to do with safeguarding the life of young people and of old, can be at all satisfied that the present measures are adequate. It

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  seems to me that a public inquiry ought to be conducted into the situation on this part of the road, where, as far as I understand, the toll of life which is taken is greater than that to be found on any comparable stretch in the whole of Scotland.
  10.46 p.m.
  The Joint Under-Secretary of State for Scotland (Mr. J. Henderson Stewart): The problem raised by the hon. Lady the Member for Lanarkshire, North (Miss Herbison) is not a new one in the House, either in regard to the particular case which she quotes or in a general sense. As she knows, there was a debate last night on the Adjournment on a similar problem in Derbyshire, and the hon. Lady raised this matter a year ago.
  The problem is simple enough. How are we most effectively to prevent accidents on trunk roads which pass through country villages? The authorities, that is to say the local authority, the Government, the Minister concerned, and, indeed, all who are in responsible positions, have a double purpose to serve in these matters. Certainly, we have to do our utmost to protect human life. I would put that first. But we have also to ensure the passage of through traffic.
  Road transport in our day and generation is of ever-growing importance. As a nation, we are spending, and have spent, vast sums of money upon making our roads broad and, so far as possible, safe; and no doubt we shall in the future spend still more. Clearly, we must not clutter up—if I may use that expression—our great trunk roads by too many restrictions.
  I say that because we have had advice upon the matter from the most authoritative bodies, as the hon. Lady knows. We have had committees set up in her time by the responsible Minister. Two committees were set up by the Minister of Transport which reported on this precise problem of where, when, and in what circumstances, one should impose restrictions upon main trunk roads. I have the Reports here. I can quote from them, but I need not do so because the hon. Lady is, I am sure, well aware of them. The right hon. Member for Derby, South (Mr. P. Noel-Baker) was last night reminded that he himself was responsible for one
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  of those Reports, and the hon. Member for Cardiff, South-East (Mr. Callaghan) was responsible for another. Both these Reports said that we must really be very careful about imposing these restrictions.
  In the case mentioned by the hon. Lady the Member for Lanarkshire, North, we are concerned with the Glasgow—Edinburgh trunk road, which, as we all know, is a very busy one carrying an enormous amount of traffic. We should like to make it a bigger and broader road than it is. There is a very good argument for having two roads, for building a new trunk road altogether, and one day, no doubt, we shall have to do that. But it is not in the immediate programme, and I do not think it is possible for it to be. We have, therefore, this road with an enormous amount of traffic flowing backwards and forwards upon it.
  In the stretch to which the hon. Lady refers, which is, I think, in her constituency, there are the two villages of Harthill and Eastfield. West of those two villages, the road has scarcely any houses upon it, except for a cottage here and there. I have a map with me. It is upon that westernmost stretch to which I have referred, west of both Harthill and Eastfield, that the recent unfortunate tragic accidents to which the hon. Lady referred took place—that is to say, not in the area where she wants restrictions reimposed.
  The hon. Lady did not ask for speed restrictions in that area but asked for a roundabout. One sees the point of that suggestion. A roundabout is an obstruction and is bound to slow down the traffic. The hon. Lady was quite right about the section at Eastfield—it was derestricted a year ago—and she would like it to be again restricted to 30 m.p.h.
  May I turn for a moment to the accidents. Of course, the whole House must feel, with the hon. Lady, that these are terribly tragic affairs, but we might as well face the fact that not all accidents, either of old people or of young people, are always the fault of the motorist; I am sure that the hon. Lady would never say that.
  Miss Herbison: I did not say it.
  Mr. Stewart: I agree, the hon. Lady did not say that.

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  In the particular case of the two men, however, who were 65 and 73 years of age, according to the police report, which the hon. Lady no doubt has seen, these two unfortunate old men were killed in circumstances where the police ascribed the cause of the accident to the pedestrians' carelessness. I was not there and have not seen the evidence; I am only reporting. In the case of the third death, of the child, the police have not yet produced a report. The matter is now being examined. When the hon. Lady tells us that the parents of that poor girl are distraught, because she and her brother were their only children, all our hearts bleed to think of that terrible loss.
  The question is, are the suggestions made by the hon. Lady the right ones? As she has said, she is bringing a deputation from her local safety committee to meet me quite soon. I am very much looking forward to that meeting, when I hope that with my advisers I will be able to go into the problem in great detail with the hon. Lady. We will have the maps and charts available and the experts present. We will examine each of the individual suggestions she has made, and which are very much in my mind.
  I would like to be able to do something to meet the hon. Lady's wishes. I hope that we shall be able to do something, although I am not able tonight to indicate what it might be. As the hon. Lady knows, we have to take into account the views of other people. There is the county council, the chief constable, the motor organisations and others. Quite clearly, my right hon. Friend the Secretary of State could not be committed tonight to any one particular proposal.
  Therefore, if the hon. Lady would not mind, I would rather leave the matter
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  there tonight, without occupying the five minutes that remain, with the assurance that I look forward to meeting her and her constituents and that I hope we shall then have a real examination of the problem; and whatever further evidence the hon. Lady can bring, or whatever further suggestions she can make, will be most anxiously examined. I should like the hon. Lady to believe that I share with her entirely the shock of the accidents that took place there, and the desire, if humanly possible, to prevent them in the future.
  Miss Herbison: The hon. Gentleman gave a report on the deaths of the two old men, and said that they were due to their carelessness, but will he have that point examined and see whether they were not due to their inability to judge distances? That seems to me very different from carelessness. I should also like him to have a very careful look at the short stretch of road which I want restricted, and where the difference between a speed of 60 m.p.h. and 30 m.p.h. is represented by only three seconds.
  Mr. Stewart: I undertook to do that.
  I will certainly look into the report on the two men. It may be that the street lighting is inadequate, as the hon. Lady suggests. I believe that that was put forward by somebody as one of the contributory causes of the accident. If so, it may well be that there ought to be a light there. That is a matter for the lighting authority, and if the authority puts forward a suggestion to us it is something which might be considered and acted upon quickly.
  Question put and agreed to.
  Adjourned accordingly at five minutes to Eleven o'clock.