Clause 2.—(PERSONS SUFFERING FROM DIMINISHED RESPONSIBILITY.) (Hansard, 28 November 1956)

§ Mr. R. T. Paget (Northampton)
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 405 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 406 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.

§ Mr. Sydney Silverman (Nelson and Colne)
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.
408 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 (Oldham, West)
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.
409 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.

§ 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. 411 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—

§ 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.

§ 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 412 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 413 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 414 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 (Stoke Newington and Hackney, North)
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.

§ 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 (Norwich, North)
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.
417 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.

§ 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 418 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 (Salford, West)
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 419 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 420 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 421 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 422 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 (Belfast, North)
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 423 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 (Stoke-on-Trent, Central)
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 424 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 425 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, 426 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 427 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, 428 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 429 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 430 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 431 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 (Rossendale)
"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 (Middlesbrough, West)
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 432 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.

§ 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. 433 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.