§ 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 GreenwoodI 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 434 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 435 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-GeneralPerhaps 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. GreenwoodIf, 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. SilvermanI 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-GeneralI 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. SilvermanI 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 437 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, 438 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 439 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. HaleThey 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. SilvermanYes; 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.
440 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 441 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 442 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-GeneralI 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 443 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 (Carlton)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 445 to deprive a man of the right of being hanged would itself be an intolerable piece of materialism.
§ Mr. PickthornI 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. PagetI 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. PickthornThat is not the same conclusion.
§ Mr. HaleAre there any statistics available of any idealist Christian philosophers who have committed criminal murders?
§ Mr. PagetThat 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. 446 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. SilvermanEspecially when he complained of discourtesy earlier.
§ Mr. PagetIn 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. SilvermanAnd without even showing us their statement.
§ Mr. PagetAnd 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 447 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 rose—
§ Mr. PagetJust 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-GeneralThe 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. PagetWhat I am actually discussing is the statement of the Attorney-General that the position which he was asking—[Interruption]—
§ Commander C. E. M. Donaldson (Roxburgh, Selkirk and Peebles)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 (Norwich, North)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 DonaldsonFurther 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. HaleOn 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-GeneralI 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 449 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-ChairmanI cannot deal with private conversations between hon. Members and remarks I do not hear. We had better get back to the Amendment.
§ Mr. S. SilvermanIf 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-ChairmanIf 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 (Galloway)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-ChairmanLet us get on with the Amendment. Mr. Paget.
§ Mr. PagetAt 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.
451| 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 (Newport)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.454 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. PagetI 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. 458 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 459 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. SimonI 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.
460 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 (Wigan)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-GeneralPerhaps 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. SimonI 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 461 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 (Aberdeen, North)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. WilliamsMy 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 462 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 463 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. HaleIn 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. HaleThe 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 464 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 465 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. HaleDo I understand from that Ruling that overstrain does not come within the issue of responsibility, Mr. Williams?
§ The Temporary ChairmanI am merely ruling (hat the Amendment before us is the one on which the hon. Member ought to be exercising his mind.
§ Mr. HaleI 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 (Isle of Thanet)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. 466 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 ChairmanOrder. The hon. Member is making a speech.
§ Mr. HaleThis is a fascinating attack to come from a junior back bencher upon the Law Officers of the Crown.
§ Mr. S. SilvermanHear, hear. It is the exact opposite of what has been suggested.
§ Mr. HaleIf 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? 467 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. SilvermanI 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 468 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 469 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. SoskiceSpeaking 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 470 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 471 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-GeneralIn 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. PagetBefore 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 472 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 473 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. PagetThe 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 AdvocateIt 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. SoskiceI 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.
474 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 475 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 476 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 (Kensington, South)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. StrossA 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"—479 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. SimonI 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 480 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 481 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. SilvermanI 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. SilvermanTo 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. SpensNot the Clyde.
§ Mr. SilvermanI 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. SimonI 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. SilvermanThat 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 482 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 484 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. PagetWhilst 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. SimonThe 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. PagetYes, 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 485 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 486 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. PagetNervous 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. StrossDoes 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. PagetI 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 mindor, abnormality of mindarising from … any inherent causesor, abnormality of mindinduced by disease or injury.
§ Mr. PagetThose 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. HaleWould my hon. and learned Friend mind repeating that? I missed the trend of it in the middle.
§ Mr. PagetIt 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. PagetI 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 ChairmanIs that not going a little beyond Clause 2?
§ Mr. PagetWith great respect, Sir Charles, no. This Clause can be improved. It is a typical type of Clause—
§ The ChairmanThat is just the point. We cannot improve it now. We must either take it or leave it.
§ The ChairmanThe hon. and learned Gentleman must not go much beyond that point.
§ Mr. PagetMay 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 rose—
§ Mr. PagetI 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 ChairmanEven the two sentences of the hon. and learned Gentleman are out of order on this Clause.
§ Mr. PagetThen 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 GreenwoodWe 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 490 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. SilvermanI 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. GreenwoodI am grateful to my hon. Friend for his typically helpful intervention. I said that the Attorney-General 491 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 492 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. SilvermanOn a point of order, Sir Charles. Are we not to get a reply?
§ The ChairmanThat is not a point of order.
§ Mr. SilvermanSpecific 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 (East Ham, North)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 ChairmanThat is not a point of order. Major Lloyd-George.
§ Mr. DainesIt 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 (Leeds, West)It is in the brief, I have no doubt.
§ Major Lloyd-GeorgeThere 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 GreenwoodI 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-GeorgeThat is not so now. As I said, the Home Secretary for 494 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. HaleThis 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 495 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 496 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 ChairmanI 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. HaleI 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 ChairmanI 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. HaleI 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 ChairmanI beg the hon. Member's pardon.
§ Mr. HaleI 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 498 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.
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cc498-535
- Clause 3.—(PROVOCATION.) 15,376 words, 1 division cc535-8
- Clause 4.—(SUICIDE PACTS.) 830 words