§ 8.18 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
I beg to move,That this House regrets the execution of John Willson Vickers, is of opinion that his conviction of capital murder is contrary to the declared intention of Her Majesty's Government when they recommended the Homicide Act to Parliament, and deplores the failure of Mr. Attorney-General to grant his fiat to enable Vickers to bring a further appeal to the House of Lords.I have not been able to find the last occasion on which a Motion of this kind was moved. If there was one it must have been very many years ago and, I suppose, in vastly different circumstances. One puts down and moves a Motion of this kind with great regret and with a great deal of doubt and diffidence because, although it is the undoubted right of the House of Commons to submit any executive or administrative act of any Minister who is responsible to the House of Commons to any proper survey, scrutiny, or criticism, one must admit at the same time that it would not be to render a service to the administration of our law if every executive and administrative act in the course of the operation of the law were to be subject to review politically by the House of Commons.
One undertakes a grave burden in moving a Motion of this kind, but I hope to satisfy the House—and I mean both sides of it—before I have finished, that this Motion is amply justified by the facts, deserves the support of the House, and, if the Government Whips were not on, would in fact be adopted by a substantial majority.
The Motion divides into three parts. The first part must inevitably be a criticism of the right hon. Gentleman the Home Secretary.
§ Major H. Legge-Bourke (Isle of Ely)
I appreciate the hon. Gentleman's difficulty and sympathise with him in it, but I ask him not to include in his observations the comment he has just made about the Government Whips, because it seems to me that this is an issue upon which no one would vote against his conscience.
§ Mr. Silverman
I am really more grateful than I can say to the hon. and gallant 1618 Member for the Isle of Ely (Major Legge-Bourke). I wish that he were right. I am really amazed to find myself in possession of better information about the affairs of the party opposite than he is, for I say—the Government can deny it if they wish—that they have a three-line Whip out against this Motion tonight. Let no hon. Member say that three-line Whips and votes in accordance with them are always the same thing as votes in accordance with a man's conscience on this issue. We know better.
The first part of my Motion must inevitably be a criticism of the right hon. Gentleman the Home Secretary for his failure to advise Her Majesty to reprieve this man. One knows that it is a heavy and difficult duty which our law lays upon the Home Secretary, and no one doubts that he brings the greatest care and attention to his decision. He cannot always be right. Reviewing the decisions made by various Home Secretaries over a number of years, it is quite evident that some of them were greatly, lamentably and tragically wrong.
In this case, one would have thought that every single factor tending in favour of a reprieve was present. We know what factors influence the Home Office and the Home Secretary. Naturally, the case must be looked at on its merits. It would be an evil thing if a man's life were used as a kind of pawn in some political tug-of-war between those who want a particular reform of the law and those who do not. It would be an unworthy thing if a man were hanged merely in order to demonstrate that the capital penalty was still effective and could still be used, in order to allay public fears that, perhaps, it would never be applied again.
We know what factors influence Home Secretaries, because the Home Office has, on two occasions in comparatively modern times, told commissions of inquiry what they are. It is very difficult to find a single factor which the Home Office in evidence before the Royal Commission gave as, in most cases, tending to bring about a reprieve which is not present here. The man was young. His crime was unpremeditated. He had no criminal record, save one trivial juvenile offence, I think, many years before. He had no particular animus against his victim. I am quoting the things which the 1619 Home Office has given in evidence before Royal Commissions time after time. The events which resulted in the lamentable death of a worthy and respected, indeed, loved, old lady arose suddenly and without any kind of planning, intention or premeditation. Those are the very things which more than one Home Secretary has told inquiry after inquiry are the things which tend to bring about a reprieve.
What was there in this case which was so exceptional as to defeat all those matters which, normally, would apply? The Home Secretary ought to tell us. He owes the House an explanation about it. This was the first execution in two years. Surely, there was overwhelming public reason for not bringing the gallows back, except in a clear case.
This is not a clear case. But before leaving it finally, I would like to ask the right hon. Gentleman whether his attention was called to an issue of the Daily Express of Wednesday, 24th July, on the morning after the execution—a most sensational affair in which the prison chaplain is quoted as to the man and as to the execution. I must tell the right hon. Gentleman what this vicar of Christ in Durham Gaol had to say about it:John Vickers, man of faith. Inside all of us there is a hidden something—call it faith if you like—and this man had a tremendous fund of it.Then he is reported as saying, speaking of the execution:He wanted it that way. He would have been disappointed if it had not happened.The man pleaded not guilty. He went to the Court of Criminal Appeal to have the conviction upset. When he failed, he applied to the right hon. and learned Gentleman the Attorney-General for his fiat to appeal further to the House of Lords. It does not seem very consistent with being disappointed if he had not been hanged.
The report went on to say:Vickers went to the gallows as if he were looking forward to something. He told me last night that he hated all the fuss about the appeals to the Home Secretary and the messages to the Queen.I am not going to bore the House with the rest of this vulgar piece of macabre sensationalism. Vickers was no hero. He is not made a hero by being hanged. His life was, as Hobbes described the life of 1620 man, without law, nasty, brutish and short. But whether he was entirely responsible for all that is a matter which it is perhaps hardly worth while to investigate, although one hopes that the right hon. Gentleman the Home Secretary did investigate it, because it was a sad story, before he came to his decision.
I want to know from the right hon. Gentleman by what authority does this servant of the State communicate to the Press statements of this kind. Has he taken any action about it? Has he made any inquiry into it? Is it right in future that prison chaplains, after executions or before them, shall call Press conferences and give to the Press, so that they may spread them in streamer headlines, the last intimacies of a man about to be executed? I know that when one of the Sunday newspapers taking part in a campaign purported, or threatened, to report statements made by the previous executioner, the Home Office sent high officers of the police down to its offices to threaten all kinds of prosecutions if it revealed, contrary to the Official Secrets Act, matters of this kind.
I should like to know what action the right hon. Gentleman has taken or will take about this, especially bearing in mind that the reverend gentleman was not even telling the truth, because he was not the man's chaplain at all. The man's chaplain was a Methodist chaplain, and the Methodist chaplain has written to me telling me what he thought about Vickers. He tells me that he wrote to the right hon. Gentleman and told him about it as well, so that this gentleman, the chaplain who gave his sensational Press statements, was not even telling the truth.
§ Mr. John Mackie (Galloway) rose——
§ Mr. Silverman
I would rather not give way. I do not want to be too long.
That is what I want to say about the first part of the Motion. I come to the second part. When questions were asked of the right hon. and learned Gentleman about what we said was the conflict between the decision of the Court of Criminal Appeal and what the Government had declared that Section 1 of the Homicide Act would mean if the House adopted it, during the discussions in Committee and in Second and Third Reading, the right hon. and learned Gentleman, I have no doubt with perfect sincerity, 1621 was a little indignant with us and denied it completely. I ask whether he has had the opportunity of looking at the record since. I have taken a little care to do it and I will endeavour to establish this second leg of my argument by actual quotation.
In the first place, I should like to draw the attention of the House to what was said by the then Home Secretary and by the present Attorney-General himself on Second Reading. First, on 15th November last year the then Home Secretary, moving the Second Reading, had this to say:We propose to take out of the category of murder those homicides about which opinion has long been uneasy: homicides which are murder only by virtue of the doctrine of constructive malice; homicides by people who, though not insane, are gravely abnormal; homicides under severe provocation by words alone; and homicides in pursuance of a suicide pact."—[OFFICIAL REPORT, 15th November. 1956: Vol. 560, c. 1148.]The only part of that paragraph which is relevant to my present argument is the second sentence,homicides which are murder only by virtue of the doctrine of constructive malice".They were proposing to take that out.
The next quotation I should like to make is from the right hon. and learned Gentleman himself:The first part of the Bill follows, although not entirely, recommendations of the Royal Commission and of the Committee to which I have already referred.That was the committee of some right hon. and hon. Friends of the Attorney-General who had produced the pamphlet about amendments to the law of murder. The right hon. and learned Gentleman continued:Clause 1, in relation to constructive malice, departs to some extent from the Royal Commission's recommendation and perhaps I should draw attention lo that."—[OFFICIAL REPORT, 15th November, 1956; Vol. 560, c. 1251.]Clearly, what the right hon. and learned Gentleman was saying was, "With one exception Clause 1 is intended to adopt the recommendation of the Royal Commission." I think that is clear. The exception, the point in which they did not accept the recommendation of the Royal Commission, was that they improved upon it. The Royal Commission had recommended that the doctrine of constructive malice should still apply to accomplices. 1622 The right hon. and learned Gentleman went on in the rest of that passage of his speech to explain that the Government did not agree with the Royal Commission about that. With that exception they accepted the view of the Royal Commission and were representing to the House that their Clause I would have the effect, and was intended to have the effect, of enacting the recommendation of the Royal Commission.
Now let us see. We come now to the Committee stage, in which Clause I was being discussed and Amendments were being suggested to it. I quote from the Attorney-General during that Committee stage on 27th November, 1956. He is replying to and rejecting an Amendment moved by my hon. and learned Friend the Member for Northampton (Mr. Paget), who had argued that nothing should be murder unless there was an intention to kill, either express or to be derived from the seriousness of the injure which the accused had intended to inflict. The Attorney-General is rejecting that and he is saying:That would be a narrowing of the present definition as applied in the courts …The right hon. and learned Gentleman goes on:Of course, all these matters were considered by the Royal Commission, and it is interesting to note that in paragraph 472 the Royal Commission expressed this view …Then the Attorney-General quotes from the Royal Commission, and I shall give a further quotation from the Report itself in a minute or two. I am sorry to be so detailed in these quotations, but I hope that the House will bear with me because I have undertaken to establish the second leg of my argument.
§ Mr. Silverman
If the hon. Member will have a little patience with me, he will appreciate that it is exactly that question I am endeavouring to answer, but it takes a little time. One cannot say "Yes" or "No" without argument. [An HON. MEMBER: "Why not?"] 1623 Naturally, because this is exactly the matter which is in controversy between US.
§ Mr. Silverman
I hope that the hon. Member for Carlisle (Dr. D. Johnson)will make the effort to follow me, and I hope that at the end of the argument he will at least know what I mean.
I was quoting the Attorney-General in Committee. The right hon. and learned Gentleman said:Of course, all these matters were considered by the Royal Commission, and it is interesting to note that in paragraph 472 the Royal Commission expressed this view:'We believe that few people would dispute the propriety of making the definition of murder wide enough to include cases where death is caused by an act intended to cause serious bodily injury.'There the Royal Commission is expressing what I believe is the view of the majority of people that it is proper to have a definition wide enough to include cases where death is caused by an act intended to cause serious bodily injury.
§ Mr. Silverman
The hon. and learned Member should not agree too soon. Let him wait until he sees where the argument leads.
The Attorney-General continued:Of course it is right to say that there was some comment by the Royal Commission in that paragraph on the meaning that might be attached to the words 'grievous bodily harm'.Hon. Members will bear in mind that these words are different from "serious bodily injury."
§ Mr. Silverman
The hon. Member may think the distinction perhaps a little fine drawn, but I again beg him not to draw his conclusions too hastily. I did not draw these distinctions. They have been drawn by people much abler than me over hundreds of years.
The Attorney-General continued:It was said in that paragraph that if any change was made in the wording, such as to say 'intended to kill or to endanger life', it did not believe that it would lead to any great difference in the day-to-day demonstration of the law; and its impression was that in practice today, except in certain cases of killing 1624 while committing a felony or resisting arrest, which this Clause would mean would not amount to murder, a person would seldom, if ever, be convicted of murder unless there was evidence that he had wilfully put life in jeopardy."—[OFFICIAL REPORT, 27th November, 1956; Vol. 561, c. 252.]I contend that the House will have no great difficulty in understanding, having heard that quotation, what exactly the Attorney-General in that passage was inviting the Committee to believe. He was saying that if, of course, there is an intention to kill, that is murder. One could not limit any sensible definition of murder to cases in which there was an absolute, express, admitted, unchallenged intention to kill, because people are held by our law, and rightly held by our law, to intend the reasonable and probable consequences of what they do.
What the Attorney-General was saying, though, was that if a man intends to cause serious bodily injury—which he defines in the case passage as "wilfully putting life in jeopardy"—'then it is fair to regard that as being evidence of an intention to kill. That is what the right hon. and learned Gentleman said, and he was saying that with the authority of the Royal Commission.
In paragraph 483 of the Report of the Royal Commission no change is recommended in our definition of murder in this respect. The Report states:We find ourselves in agreement with those eminent witnesses who considered that, apart from the question of constructive malice, the existing definition of murder in English law is in substance satisfactory; our only reservation is on the point discussed in paragraph 472 about intent to cause grievous bodily harm. We have found nothing in the law of other countries which might lead us to depart from that opinion. None of the alternative definitions proposed can be regarded as satisfactory, and we believe that it is impracticable to frame a definition which would effectively limit the scope of murder and the resulting liability to capital punishment and would not have overriding disadvantages in other respects.The right hon. and learned Gentleman is entitled to say, if he wishes, that this recommendation preserves in the definition of murder the intention to cause grievous bodily harm, and no doubt he had that in mind when he denied the accusation we made the other day that the decision in the Court of Criminal Appeal was in conflict with it. It will be seen, however, that the conclusion and 1625 recommendation of the Royal Commission is expressly made subject to paragraph 472, which the right hon. and learned Gentleman has himself quoted.
Let us see what the Royal Commission said. I will not read it all, because I do not want to take too long. This is the statement:We should therefore prefer to limit murder to cases where the act by which death is caused is intended to kill or to 'endanger life' or is known to be likely to kill or endanger life.Agreed? I agree too. Will hon. Gentlemen agree with the next sentence:But we do not believe that, if this change were made, it would lead to any great difference in the day-to-day administration of the law. Our impression is that in practice the courts have been moving in this direction and that today, except in certain cases of killing while committing a felony or resisting arrest, a person would seldom, if ever, be convicted of murder unless there was evidence that he had wilfully put life in jeopardy.Is everybody agreed? Very well.
I want to give one more quotation. If we are all agreed about that, I wish to ask the House to look at the judgment in the Court of Criminal Appeal, and if there is any hon. Member who can reconcile that judgment with any of the things that the House has now accepted, I shall be very grateful if he will explain to me how it can be reconciled.
I now want to cry in aid the Lord Chief Justice, because he presided over the Court of Criminal Appeal. One of the peculiarities of our law is that the Lord Chief Justice sits as a judge at the trial of first instance, and, having done that, he then presides—not, of course, in the same case—over the Court of Criminal Appeal. Not content with that, he also sits as a judge in the highest court of appeal, in the House of Lords, and, over and above that, he feels himself entitled to take part politically in controversy about the same matters in the debates in the House of Lords.
§ Mr. Silverman
The hon. and learned Gentleman probably means "not party politics". I agree with him. I did not make any such charge. However, whether this country should retain or abolish capital punishment is a political question. It is obviously a question to be decided by the legislature. The Lord Chief Justice felt it right to take an active and 1626 prominent part in one side of that controversy. I am not complaining about it. Our law and constitution give him that right, and he is not to be criticised for exercising it. All I say is that it is a rather anomalous situation.
I now want to direct the attention of the House to what the Lord Chief Justice said to the jury when he was presiding over the court which tried Bentley. In this part of his summing up he is dealing not with Bentley's case but with Craig's case. He is dealing, in his usual distinguished and lucid way, with the difference between what one has to prove if one is charged with murdering a policeman and what one has to prove if one is charged with murdering anyone else. He is, quite rightly, pointing out a provision of the law which we have now removed by the Homicide Act, which is that one defence open to a man accused of murder in any other case is not open to a man accused of murdering a policeman. He quotes an even more distinguished judge, Mr. Justice Brett, who afterwards became Lord Esher, and says:Now I cannot do better to illustrate this than to read to you a few lines from a direction given by one of the greatest judges of Victorian times—Mr. Justice Brett, who was afterwards Lord Esher—to a jury in a case were a police officer was killed by a kick—not a kick on the head.The Lord Chief Justice said:A kick in the ordinary way would not be grievous bodily harm; it might hurt …
§ Mr. P. Bell
If the hon. Member comes to Lancashire we will give him a kick that will be grievous bodily harm.
§ Mr. Silverman
The hon. and learned Gentleman always entertains us with interventions, but I hope he will forgive me if I say that this is hardly a suitable occasion for such an intervention.
The Lord Chief Justice, quoting Mr. Justice Brett about what constitutes a capital crime, said:A kick in the ordinary way would not be grievous bodily harm; it might hurt, it might wound, but it would not he grievous bodily harm. A kick is not like a blow with a fist, is not anything approaching the use of a deadly weapon; but unhappily, the kick, though it was not intended to kill, did kill a police officer".The man was rightly convicted of murder because it was a police officer. If it had not been a police officer, the Lord Chief Justice, supported by Mr. Justice Brett, was telling the jury that it would 1627 not have been murder at all. So we are all now quite clear, are we not? [HON. MEMBERS: "No."] I should like to——
§ Mr. P. Bell rose—
§ Mr. Silverman
I am sorry, but I cannot give way again. We have to finish at ten o'clock and there are others who want to speak. I have given way several times.
I want to resume by pointing out what I think most of the House is clear about. It is clear about this. If a man intends to kill, that is murder. If a man intends to put life in jeopardy even though he did not intend to do more that is murder. If he commits some assault not intending and not likely to put life in jeopardy then it is not murder unless the victim is a policeman and after the Homicide Act, 1957, it is not murder even then. That is what the right hon. and learned Gentleman was telling the Committee that this Clause meant.
I should now like to refer to the report of what the Court of Criminal Appeal decided. The Lord Chief Justice is now dealing with the summing up, and he is doing what, I think, everyone would regard as a very necessary thing, having regard to the alterations and amendments in the law. When altering the definition of murder, it becomes vitally important that juries who are called upon to try cases of murder should know exactly what the law now is. To quote the right hon. Gentleman the Member for Woodford (Sir W. Churchill)addressing, on another matter, the American Bar Association, at the Guildhall, last night:Justice cannot be a hit or miss affair.This is the first case on this point with which the Court of Criminal Appeal is called upon to deal. It is expressly asked to deal with the question: precisely what intention must the prosecution prove if it wants to prove a case of murder and, still more, of capital murder? What does the Lord Chief Justice say? He describes, in the earlier part of the judgment, what the man did. He had intended to commit petty larceny, break into a shop and rob the till. He was unarmed. He had picked a place where the woman was stone deaf and he thought therefore she would not be disturbed and he would not be disturbed. He was disturbed. She came towards him. She attacked him—she had every right to attack him; she 1628 scratched his face; she had every right to scratch his face—and then he panicked and he hit her many blows with his fist.
§ Mr. Silverman
He also may have kicked her after she fell, although I am not sure. There was some evidence as to that but that evidence was contradicted. The hon. and learned Gentleman will no doubt believe in my sincerity when I say that I hope that no one in the House will believe that I want for one moment to say a single word in defence or extenuation of that. It was a horrible thing to do. It was completely unjustified and the man deserved to be severely punished for what he did. All that is common ground. What we are discussing is whether, on the basis of what we have been examining, he was guilty of murder. It has to be remembered that he had no premeditation. He had no weapon. He used no violence except with his fists, and the whole thing arose, as it were, out of the circumstances and was not in any way planned.
All these are the facts, proved by the prosecution and accepted by the Court of Criminal Appeal. The hon. and learned Member for Bolton, East (Mr. Philip Bell)may go on shaking his head, but he will no doubt remember the old case where an advocate who saw his learned opponent doing that said to the bench, "My learned friend is shaking his head, but when you have known my learned friend as long as I have you will know that when he shakes his head there is nothing in it."——
§ Mr. P. Bell rose——
§ Mrs. E. M. Braddock (Liverpool, Exchange)
It is doubtful if the hon. and learned Gentleman the Member for Bolton, East (Mr. Philip Bell)is sober.
§ Mr. Godfrey Lagden (Hornchurch)
On a point of order, Mr. Deputy-Speaker. Is it correct for the hon. Lady the Member for Liverpool, Exchange (Mrs. Braddock)to accuse someone on these benches of not being sober?
§ Mr. Deputy-Speaker (Major Sir William Anstruther-Gray)
I did not catch that word myself. Had it been said, it would have been very much out of order. Mr. Silverman.
§ Mr. Silverman
I am sorry that my speech is longer than I had intended, but it is being prolonged by others.
Hon. Gentlemen will know to what passages I am referring, and perhaps others of my hon. Friends will quote them. I say that in his judgment, the Lord Chief Justice means, and says in so many words, that if a man uses more force than is trivial, more than is enough to push the woman out of the way, and then, by reason of her age, or physical condition or some other exceptional circumstance peculiar to her she dies, when the man did not intend that she should die, when he never intended to put her life in jeopardy, he is guilty of murder.
I say that it is utterly impossible, by any process of ratiocination I can think of, to reconcile that judgment with any of the things that I have so far quoted—completely and utterly impossible. The two definitions are entirely different. There is a direct conflict between the interpretation put on the law by the Lord Chief Justice and the interpretation put on the law by the Royal Commission, accepted by the Attorney-General, accepted by the Home Secretary then who moved it, and accepted by the House of Commons on the basis that it was already the law of the land.
Now I come to my final point. I think that I will have carried with me most hon. Members—[HON. MEMBERS: "No."]—in saying that there is a complete conflict between the law as laid down by the Lord Chief Justice in that case and the law as laid down by the Lord Chief Justice himself in the other case, in the judgment from which I have quoted. But, supposing I am wrong, is there any hon. Member who will now doubt that the matter which the Court of Criminal Appeal decided, even if we think that it decided it rightly, was anything else than a matter of exceptional public importance, and that it was of vital public interest to have it decided rightly? Was not it? Does anybody doubt that?
§ Mr. Silverman
I cannot give way any more. The hon. Member must remember that the Lord Chief Justice himself said that it was—and because he thought that it was he would not allow the first Court of Criminal Appeal, consisting of three judges, to decide it. He said, "This is a point of such importance that we must have a full court", and he adjourned the argument to be heard again by five judges. He did that only because, as he said—and these are his own words—"This is a matter of grave importance". I agree that the judges were not unanimous. Their duty when they are not unanimous is laid down by the Court of Criminal Appeal Act; they must give judgment in accordance with the majority. That is in Section I of the Act.
The only reason the Lord Chief Justice expressly decided to have the matter argued again in a fuller court was—what?—that they were not agreed. If they were not agreed the point must have been one of some difficulty. It must also have been one of importance, because he said that, too. So here we have a point of difficulty and of importance—and obviously one which it was in the public interest to have rightly decided.
The Attorney-General thought so, too, at one time, because it was only at that stage that he intervened. He was not in charge of the prosecution; he had nothing to do with the prosecution. He did not appear in the case until after the Lord Chief Justice had said, "We are not agreed. This is a point of exceptional difficulty and it is a point of grave importance." Then the Attorney-General appeared. What for? In order to make certain—and this was his only right to intervene—that the case was properly presented to the court, because it was a question of grave importance and because it was in the public interest to get a right decision.
Suppose he had lost? Suppose the Court of Criminal Appeal had allowed the appeal? Would the hon. and learned Gentleman have refrained from going to the House of Lords? Would he not have given himself a fiat to go? Would not he have thought that this point of exceptional difficulty and of public importance should be decided in the way he thought it right to have it decided? Of course 1631 he would. He would have been neglecting his duty if he had not. But is it seriously possible to argue that a matter is of grave difficulty, which it is in the public interest to have rightly decided, if one wins, but not if one loses? Is that a tenable proposition? Would anyone defend it?
The duty laid upon the Attorney-General by the Court of Criminal Appeal Act is to grant his fiat to the House of Lords, if it is asked for, in any case where the point involved is of exceptional difficulty and where it is in the public interest that a further appeal should be brought. Yet the right hon. and learned Member refused his fiat. Why? Is he to be heard now to say—after his intervention in the case—that it was not a matter of public importance or of grave difficulty?
§ The Attorney-General (Sir Reginald Manningham-Buller)
The hon. Member will certainly hear me—and I hope at length—if he gives me any time to reply to him.
§ Mr. Silverman
He has a chance now, and he has had a chance before—more than once. I say that there is no reasonable man who believes that the right hon. and learned Member could possibly have been right to intervene when he did and then refuse his fiat. He might have been right not to intervene; he might have been right not to give his fiat—but he could not have been right to intervene himself on the ground that the case was of public importance and then to refuse his fiat on the ground that it was not. And that is what he did.
I have one final word. I may be asked whether I am prepared to put this matter to a vote. I should be delighted to ascertain the opinion of the House of Commons on this matter; but we know from experience that what the House of Commons thinks when the Whips are off is quite different from what it thinks when the Whips are on. We have had examples of that time after time even in the debates on capital punishment. Had the House of Commons had its way, we should have no capital punishment at all in this country at the moment.
I am not interested in a Division merely to prove that the Government have more Members than we have. We know that already. If the Government will take off 1632 the Whips and invite each hon. Member to vote according to his own conscience for or against the Motion, I should be delighted to put it to the vote, and very ready to accept the result.
§ 9.11 p.m.
§ Mr. Leslie Hale (Oldham, West)
I beg to second the Motion.
There remains to me only a few seconds in which to second this Motion and there were points I wished to make because I made clear to my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman)—with whom I have been associated in these matters on a number of occasions—that I do not go the whole way with him in some of the points which he has made so conscientiously and ably, if somewhat volubly.
On 1st July this year, the Court of Criminal Appeal was called on to consider the first two appeals under the Homicide Act. It had given some directions before, but these were the two first appeals. Curiously enough, they involved not dissimilar cases. There was the case of Dunbar who broke into a house by breaking a window and went up the stairs and, knowing the house was occupied by an elderly lady of 83, went to her bedroom and when she was roused, fearing he was recognised, took up a lemonade bottle and battered in her head with a series of blows many of which could have caused death. Then there was the case of Vickers, which I think was an abominable crime. He broke into premises and used violence to a lady of a kind described in the Report as of moderate to slight character. The lady's death was caused by shock. I do not mean the shock of surprise, but traumatic shock which is constantly associated with such an attack.
Both these men were tried, and under that extraordinary Section 5 (1)which—for some curious reason that was criticised at great length in the debates on the Bill before it became an Act—selects theft as the one particular crime which will support a capital murder verdict. If a person commits a killing in the course of committing a theft, it is capital murder, whereas if a man broke into a house in order to rape a woman and she was killed without a murderous intent, it would not be capital murder. Hon. Members pointed out during the debates in 1633 this House the many anomalies and there were various reasons given for them, but I have no desire to go over all that again now.
The defences raised in these two cases were quite different. In the case of Dunbar there was really no defence except a possible medical defence, and the new defence of diminished responsibility was raised. A psychopath was called to give evidence for the defence—[Laughter.]—a psychiatrist was called, who gave evidence for the defence and said that, in his view, Dunbar was a psychopath; and the medical evidence for the prosecution at least admitted that if he was not a psychiatric case, he was certainly not a very bright individual. This issue was put to a jury which returned a verdict of capital murder and the case went to the Court of Criminal Appeal.
The case of Vickers was put to a jury. He was defended mainly on the ground that there was no intention to kill; that death had occurred in the course of some violence which could not reasonably be conceived as likely to cause death and which the medical evidence said was not likely to cause it. It had caused the death of an old woman of 73, but all of us know that comparatively slight violence may well cause the death of a woman of 73.
My hon. Friend the Member for Nelson and Colne said that in the first instance three judges were assembled to listen to the Vickers appeal. They discussed the preliminary point—I think it was mentioned by my right hon. Friend who was formerly the Attorney-General during the debates in this House—as to whether if this was a case of grievous bodily harm, that would be a separate offence which would be taken out under Section 1 of the Act. This wording really is so confusing that the fact that judges might have come to that conclusion at least confirms some of the things we said during our debates on the subject. Some judges did for a moment think that there was a point for consideration. The Lord Chief Justice summoned a court of five judges. One of the most distinguished lawyers practising at the Bar has said he is doubtful whether the Lord Chief Justice has that power and whether the court might not be unconstitutional.
1634 In the Dunbar case the court said that although this was a doctrine which had been brought from Scotland and although the decision of the English House of Lords no longer applied to Scotland they felt that they must apply the decision of 1943 which was unchallenged—it could not be appealed against because the court finally quashed the conviction on other grounds—which said that where the onus of defence had been put upon the accused that onus was not as strong an onus as rests on the Crown.
The House will remember that we have placed some onus upon the accused. If a man is found in possession of Government property it is for the accused to prove that he had got it honestly and if found giving money to a public servant with whom he is associated in a business transaction it is for the accused to establish that he was giving it innocently. The reason for that is clear. It is the difficulty of proof.
The court said that in this case of diminished responsibility that the same considerations should apply. In view of the fact that that point had not been put by the judge to the jury and in view of the fact that the learned High Court Judge has left the issue to the jury as one on which the defence were under an obligation to satisfy the court as a matter beyond reasonable doubt, they felt constrained to quash the conviction and to substitute a verdict of manslaughter with an automatic sentence of life imprisonment.
That was done in the case of a man who had beaten a woman to death brutally with a lemonade bottle. There is an immediate answer; it was a case of diminished responsibility. The accused was entitled to have the benefit of it. If he was mentally suffering, I welcome that result. It was a psychiatric case and it was right that that principle should be applied. I make no criticism of it.
We come to the case of Vickers. We know these cases in which grievous bodily harm is not a separate crime, and I would not challenge that for a moment. My hon. Friend the Member for Nelson and Colne has dealt with that point very ably and clearly and I do not want to go over it again. It was said that the real question was whether there was a sufficient 1635 direction to the jury on the question of intent to kill. The judges quoted with approval and described the summing up of Lord Justice Hinchcliffe as impeccable. They also quoted with approval a series of propositions in his summing up putting the matter rather more widely than I have ever heard it put before.
Intent to kill can be implied in Mr. Justice Hinchcliffe's summing up in almost every act of assault. Here was a case in which it was stated that the minimum possible violence was used, although it was a heinous and very serious crime. I have nothing to say on behalf of Vickers from that point of view, except that he was a man who had no criminal record, and apparently did this thing in a moment. There was lack of premeditation, without any planning or foresight.
Of course, the real trouble in the case of Vickers, and the real difficulty of the court of Criminal Appeal, was that the jury completely ignored Section 1. That is clear and I doubt whether anyone would challenge it. The jury said that this man was a bad man who had used violence on a woman who died, and they were going to find him guilty of murder The jury was not excited about all these complicated, technical difficulties. I am trying to put this point as modestly and as moderately as I can. When we discussed this matter in the House we said that this thing was getting so complex and that so many issues were being left to the jury that no jury would be able to sit back and consider them issue by issue in a way that it is vital they should be considered on a capital charge.
I venture to say that these issues are So complex that most of us—I am not talking about three-line Whips, but of considering this matter round a table—would find it very difficult to agree on any set of facts or to give unanimous views.
§ Sir Keith Joseph (Leeds, North-East)
On a point of order. We are all very interested, Mr. Deputy-Speaker, to hear the opinions represented on the Opposition side of the House. In view of the possibility that my right hon. and learned Friend the Attorney-General will take the whole of the rest of the time, could I appeal for some back bench Members on the Government side to be heard?
§ Mr. Deputy-Speaker
I am reluctant to interrupt the hon. Member, but he will be aware that we are limited as to time. We have already been an hour on this matter and I have not yet had an opportunity of putting the Question. There will be no time for a reply at all unless the hon. Member can see his way to bring his speech to a close.
§ Mr. Hale
I have been on my feet for seven and a half minutes, Mr. Deputy-Speaker. I have been interrupted twice and gave way to one interruption and I intimated that I would sit down in a few moments but I have had to jump the whole of my argument. I must deal with these points because, as I said to my hon. Friend the Member for Nelson and Colne, I am in some difficulty and not in complete agreement on part of the Motion. I think I was acting with the utmost possible courtesy, and I do not think anyone will accuse me of responsibility for the hour.
In regard to the fiat, I will content myself with one sentence which would have been well over by now had I not been interrupted. The hon. Member for Belfast, North (Mr. Hyde)said this yesterday. The answer, as the law papers have said, is that the Attorney-General might well say it is an extremely heavy burden for him to carry in view of the complexity of his office. The situation of the Attorney-General is very anomalous today, partly judicial, partly quasi-judicial, not subject to a writ of prohibition, but at the same time political.
I must say one sentence in conclusion. With the opening four words of this Motion I agree. I regret the execution of John Willson Vickers; I would myself have come to a different conclusion. With any factious criticism of the Home Secretary in this matter I do not agree. He was called upon to exercise an extremely difficult decision in responsibility, which none of us wishes to criticise. Everyone knows that one's views on the gravity of crimes vary very much. I 1637 have seen this week men who have lived on the profits of prostitution getting three months' imprisonment while others who have pleaded guilty to lesser crimes have gone to prison for nine months. One's view about the obnoxious nature of crimes varies. The right hon. Gentleman has a very progressive mind in many matters and has shown a desire to look at the question of judicial reform and mental health. I welcome that and make no more criticism except to say that I would have come to a different conclusion, and I do not think that in the circumstances I could say less.
§ 9.23 p.m.
§ The Attorney-General (Sir Reginald Manningham-Buller)
I am sorry to have to intervene at this stage because I am quite certain that there are many hon. Members on this side of the House who would like to have taken part in the debate. I do so because I want an opportunity to reply to the long speech made by the hon. Member for Nelson and Colne (Mr. S. Silverman)and I have a great deal of ground to cover. I do not propose to take up any time in dealing with the first part of the Motion because the answer to that came from the seconder of the Motion. My right hon. Friend, I am sure all of us in this House know, has a most heavy responsibility placed upon hint and would do his utmost to have proper regard to all relevant factors in deciding what course should be taken.
I want to come straight away to the remainder of the Motion. The hon. Member for Nelson and Colne in moving the Motion made no reference to the Motion he originally tabled and to which he obtained 69 signatures.
[That this House deeply deplores the refusal of Mr. Attorney-General to grant his fiat to enable John Willson Vickers to appeal against his conviction to the House of Lords, so as to establish on the highest judicial authority whether or not Section 1 of the Homicide Act effectively abolishes the doctrine of constructive malice and prevents a man from being liable to be convicted of murder who had no intention either to kill or to do grievous bodily harm, as the Government assured the House was its purpose during the debates on the Homicide Act.]
The fact that we are considering tonight a Motion which is differently 1638 worded is an indication that he recognises, as is the case, that the original Motion was misleading.
I am sure that the House will agree with me when I say that the administration of justice is not assisted by misrepresentation or by giving a tendentious account of the facts. If we are to consider this problem properly, it is important that the facts of the case should be correctly appreciated. The hon. Gentleman has said this evening that Vickers had intended to commit a petty larceny, to rob a till. Petty laceny, which has not existed as an offence for about 100 years, meant stealing something worth less than 12 pence. Miss Duckett had in her house £800. The hon. Gentleman wrote an article about this case, which began with the statement:John Willson Vickers was minded to commit a spot of petty larceny. He broke into a shop, a small general shop in a poor district, and robbed the till.The hon. Member for Nelson and Colne is a lawyer, and he knows as well as I do that John Willson Vickers was minded to commit burglary. If he has read the summing-up of the learned judge, he knows also that Vickers ransacked not only the shop hut also the house, and that he did so after he had attacked this old lady and left her lying in the cellar.
The hon. Gentleman emphasised, as others have done, that the blows struck—there was evidence of ten to fifteen blows being struck—were moderately severe to quite slight. He omitted to mention that there was evidence also that Vickers had gripped Miss Duckett by the throat, that she had suffered some degree of suffocation and that, after she had fallen to the ground, she had been kicked in the face. There was medical evidence before the jury that, having regard to her age, death would follow the injuries inflicted on her. So much for the facts.
I turn now to the direction of the learned judge. He directed the jury, in the material passage, in these terms:Murder is with the intention to kill or to do grievous bodily harm.He went on:Malice will be implied if the victim was killed by a voluntary act of the accused"—here is the importance of what I am going to say—done with the intention either to kill or to do some grievous bodily harm. The grievous 1639 bodily harm need not be permanent but it must be serious, and it is serious or grievous if it is such as seriously and grievously to interefere with the health and comfort of the victim.The learned judge then said to the jury:Ask yourselves: Is it proved that the accused man killed Miss Duckett, with malice, that is, when he struck the blows he intended to do grievous bodily harm?The jury found that it was proved. The only question raised in the Court of Criminal Appeal was this—whether, since the passing of the Homicide Act, proof of an intent to do grievous bodily harm was sufficient to make a killing murder.
Both in his original Motion and that which we are discussing tonight, the hon. Gentleman, with in my view, a lamentable disregard of the facts, has alleged that Vickers's conviction of capital murder was contrary to the declared intention of Her Majesty's Government when they recommended the Homicide Act to Parliament. The truth is the exact opposite. The hon. Gentleman sought to build up a case based on quotations relating to constructive murder while carefully ignoring what was said on behalf of the Government in respect of this very Section in the debates on the Homicide Bill.
The then Home Secretary—this is the relevant passage which the hon. Gentleman did not think fit to quote—when moving the Second Reading of the Bill, speaking in relation to what is now Section I of it, said:Its effect is that a killing in the course of a felony, resisting an officer of justice, avoiding or escaping from legal custody or from arrest will not be murder unless it is done with intent to kill or to do grievous bodily harm"——
§ Mr. S. Silverman rose——
§ The Attorney-General
I will not give way—in other words, unless it is murder in its own right so to speak, irrespective of the fact that it is done in the course of a felony or other offence to which I have referred."—[OFFICIAL. REPORT, 15th November, 1956; Vol. 560, c. 1153.]Those were the words of the then Home Secretary, making it quite clear that it was the view and the intention of the Government to keep it murder if the killing was done with intent to do grievous bodily harm.
To put the effect of the Section another way, when the killing is done in the course of the commission of another 1640 offence, one disregards that other offence and has to consider whether, disregarding that other offence, the killing was murder. That was what the Home Secretary said in relation to the Clause. I said the same thing on more than one occasion in Committee. The hon. Gentleman can refresh his memory of the passages.
The direction given by the learned judge, therefore, entirely agreed with what the Government said was the intention and purpose of Section 1 of the Homicide Act. There can be no doubt about; that. The judgment of the Court of Criminal Appeal, the five members of which were unanimous, was that proof of an intent to do grievous bodily harm was still sufficient, as the then Home Secretary told this House, to make a killing murder. So it really is nonsense and wholly untrue to say that the conviction of Vickers was contrary to the declared intention of Her Majesty's Government when introducing the Homicide Act.
§ The Attorney-General
If the House would look at the terms of the original Motion tabled by the hon. Member for Nelson and Colne, they will see that that is so. The terms of the Motion recognised that the intent to do grievous bodily harm is sufficient to make a killing murder. That is the only point at issue in this case.
§ The Attorney-General
The hon. Gentleman has addressed this House for nearly an hour on a Motion of Censure upon me and he ought at least to allow me to make my reply to it. The hon. Gentleman knows that his Motion said that I ought to have granted my fiat to enable John Willson Vickers to appeal to the House of Lords and to establish on the highest judicial authority whether or not Section 1 of the Homicide Act effectively abolishes the doctrine of constructive malice andprevents a man from being liable to be convicted of murder who had no intention either to kill or to do grievous bodily harm, as the Government assured the House was its purpose during the debates on the Homicide Act".The hon. Gentleman recognised that in his Motion of Censure, and recognised that a man is still liable to be convicted of murder if he intended to kill or do grievous bodily harm.
§ The Attorney-General
It was not so clear in the hon. Gentleman's speech this evening. In a debate in Committee on the Homicide Bill he said that he agreed with the statement made by the hon. and learned Member for Northampton (Mr. Paget)thatif a man intends to do grievous bodily harm of such a nature that death might easily result, then it is quite right to say that what he intends to do is to kill or to take the risk of killing."—[OFFICIAL REPORT, 27th November, 1957; Vol. 561, c. 255.]Here was evidence before the jury, which they no doubt accepted, that death resulted from a series of blows—[Interruption.] The hon. Gentleman keeps on seeking to interrupt. I wish he would control himself a little—and from the other attacks which were made upon her, and that the jury found.
The only point of law for the consideration of the Court of Criminal Appeal was the very question which the hon. Gentleman does not dispute at all, namely, whether an intent to do grievous bodily harm is sufficient now to render a killing murder.
§ Mr. Speaker
Order. If the Member in possession of the Floor does not give way, it is disorderly for another hon. Member to keep standing.
§ Mr. Silverman
On a point of order. I was rising to a point of order. [HON. MEMBERS: "Cheat."] What I submit to you, Mr. Speaker, as a point of order is that a Member is entitled to interrupt to protect himself from deliberate misrepresentation. [HON. MEMBERS: "Rubbish."] That is what I was seeking to do.
§ The Attorney-General
I pay no attention to that kind of observation of the hon. Gentleman. I know its worth.
1642 I have said enough now to dispose of the allegation that the decision in the Vickers case is contrary to the declared intention of the Government in introducing the Bill. In fact it entirely accords with it.
I now come to the third part of the hon. Gentleman's Motion, deploring my failure——
§ Mr. R. T. Paget (Northampton)
As the right hon. and learned Gentleman has quoted me, I wonder if he would allow me to put a question? Is not the really important question here, what does grievous bodily harm mean in this context? According to Archbold, in a one-line definition:It is not necessary that grievous bodily harm should be either permanent or dangerous.My submission is that in that sense it is not enough. It must be grievous bodily harm likely to endanger life.
§ The Attorney-General
The hon. and learned Gentleman, I hope, caught the words I quoted from Mr. Justice Hinchcliffe's summing up, when he said, not dealing with the borderline case, that to constitute grievous bodily harm it must be "serious and grievous." There was a great deal of emphasis on that. There was certainly, I should have thought, ample evidence here from which the jury could conclude, from the number of blows struck, from the kicking of her in the face, if they were satisfied by the evidence that that happened, that there was intent to do grievous bodily harm. [Interruption.] No one has suggested that if the direction was right in law there was any impropriety in the direction.
I come to the third part of the hon. Gentleman's Motion, deploring my failure to grant my fiat in this case. I should like to remind the House of the position. I can grant a certificate only if the decision of the Court of Criminal Appeal involves a point of law of exceptional public importance and it is in the public interest that a further appeal should be brought.
My duty, as the hon. Gentleman the Member for Oldham, West (Mr. Hale)said correctly, is partly judicial and partly administrative or Ministerial; judicial in deciding whether there is a point of law of exceptional importance, and administrative or Ministerial in 1643 deciding whether it is in the public interest that a further appeal should be brought. In my opinion neither of those conditions was satisfied in this case.
It has been said that I should have granted my fiat because this was a novel point on the construction of a new Statute in a capital case. I am sure it will be appreciated by the House that any question on the construction of a new Statute is likely to be a novel point, but it by no means follows that in consequence of its novelty it is a point of law of exceptional importance. Nor does it become a point of law of exceptional importance because it is a capital case. Nothing turned in the Court of Criminal Appeal on the fact that this was a capital murder, and the point of law that was argued was referable to all cases of murder, capital and non-capital, and might well have arisen in a non-capital case.
Then it is said—and the hon. Gentleman put forward this argument with great force—that as the Lord Chief Justice, at the first hearing before the Court of Criminal Appeal, when there was some difference of view in the court said that it was a point of great importance—those were his actual words: he did not say it was a point of grave importance or exceptional importance, as the hon. Gentleman stated, but that it was a point of "great importance"—and as he adjourned the case for hearing by five judges, I should have regarded it as a point of law of exceptional importance.
I hope and believe that I have taken full account of what the Lord Chief Justice said, and it was on this account that I appeared for the Crown when the case was re-argued, so that I could listen to and weigh up the argument. What I have to consider is not the process leading up to the court's decision but whether that decision itself involves a point of law of exceptional importance. While I did not, of course, ignore what the Chief Justice had said, I had also to bear in mind that when the case was re-argued, after hearing able and experienced counsel for the appellant, and really without calling on me to reply, the Lord Chief Justice, in giving the unanimous decision of the court, dismissed the appeal, not even finding it necessary to reserve his judgment.
1644 I am bound to say, having heard the argument put forward, that it was, in my opinion, wholly untenable, and that this was really not an arguable point of law at all on the construction of the Statute. The point not being, in my view, an arguable point, it was not open to me to consider that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance. Holding, as I do, the view that there was no point of law—and that means an arguable point of law of exceptional public importance—I could not regard it as in the public interest that a further appeal should be brought.
That was and is my considered view, and I am sure that the House will agree that it would be quite wrong for me to take into account in any way the strong, and I do not doubt, sincere views of the hon. Member for Nelson and Colne and others with regard to capital punishment. It is interesting to note that the decision of the Court of Criminal Appeal accords with the view that the hon. Member for Nelson and Colne has expressed as to what are the ingredients of the law of murder.
This is not the occasion, and the time is really not available, to discuss in any detail an amendment of the law. I should like, however, to refer briefly to the suggestions which have been made tonight, and in the Bill leave to introduce which was given yesterday to my hon. Friend the Member for Belfast, North (Mr. Hyde), that appeals should lie to the House of Lords without my certificate.
I think that I speak not only for myself but also for my predecessors when I say that I should not be at all sorry to be relieved of this onerous and often invidious duty, but I would remind the House that the House of Lords has never exercised a criminal jurisdiction in any way comparable to the jurisdiction it exercises in civil cases. It was not the intention of the Criminal Appeal Act that there should be, as there is in civil cases, a system by which cases can be heard by two courts of appellate jurisdiction. What was intended was that only the lost exceptional cases, satisfying the two conditions specified in the Act, should be referred to a higher tribunal.
My hon. Friend the Member for Belfast, North referred to proceedings in 1645 criminal cases before the Judicial Committee, but I would remind him that leave is granted to appeal to the Judicial Committee in criminal cases only where… it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done.or, as another great judge put it:There must be something so irregular or outrageous as to shake the very basis of justice.Therefore, the tests appear to be different, and indeed stricter. Those are not the tests which I have to apply in considering applications, and I ask the House to consider what the tests ought to be before it turns to the question of who should apply them. The procedure now has the advantage of being swift and expeditious. I doubt very much whether it would continue to be so if provision were made for appeals by leave of the courts.
We always pride ourselves in this country that we do not have the long delays that occur in some other countries in relation to criminal cases. As I have said, however, this is not the time to go into that question in any detail and I will end my references to it by reminding the House that the question was discussed very fully on the Committee stage of the Criminal Justice Bill in 1948. I am sure that the hon. Gentleman the Member for Nelson and Colne will remember it well, because he moved then a Clause designed to alter the present system and there was a very full debate upon it. He was proposing that, in addition to the Attorney-General giving his fiat, there should be an alternative additional method of application to the courts for leave.
His Motion was rejected by the Committee by a decisive majority on a vote which took no account of party lines. I hope that anyone who is interested in this subject will look at the report of that debate where, if I may say so, the case on both sides was extremely well argued. The right hon. Gentleman the Member for South Shields (Mr. Ede)will no doubt remember the speech he made on that occasion——
§ The Attorney-General
I was crediting the right hon. Gentleman with a better memory than he possesses.
§ The Attorney-General
I must say that I had forgotten what the right hon. Gentleman said until I refreshed my memory, and then I was impressed by what he had said.
I also found another interesting passage in the course of the reports of the debate on the Criminal Justice Bill nine years ago. I saw that, in relation to the exercise of the power conferred on the Attorney-General to grant his fiat, the hon. Gentleman the Member for Nelson and Colne said:There has never been a case, and I hope that there never will be, whatever the fate of this Clause, in which the Attorney-General can be questioned in the House of Commons about his decision in a matter of this kind.The hon. Gentleman was wrong about that, for there had been a case when Horatio Bottomley, sitting in the same place as the hon. Gentleman sits now, questioned the then Attorney-General. The hon. Member for Nelson and Colne went on to say:I do not believe that the Table would accept such a Question, or ought to"—He was wrong again there. Then he said this:… and I think that it would be entirely wrong if the Attorney-General were able to be harried in Parliament by Questions, perhaps on party grounds, and supplementary questions … because he gave an unsatisfactory answer as to whether he had exercised a judicial function in the proper way."—[OFFICIAL REPORT. Standing Committee A, 11th March, 1948; Vol. 1, c 1406.]That, of course, was nine years ago. The hon. Gentleman has quite clearly changed his mind. I do not object to his changing his mind but I do object to his tabling Motions of this character, particularly when the first Motion he tabled, which received the support of sixty-nine Members of this House, was utterly misleading in that it represented that the decision of the Court of Criminal Appeal was not on the issue of whether an intent to do grievous bodily harm was sufficient to constitute the offence of murder, but that the whole issue in that case was whether the doctrine of constructive malice had been abandoned.
§ Mr. S. Silverman
Will the right hon. and learned Gentleman allow me to interrupt now? I really think that I 1647 owe it to the Attorney-General himself and to the House to explain why I withdrew the first Motion and substituted another one. He is right in saying that I did so because the first Motion was misleading, as indeed it was, but the reason it was misleading was because it obscured the question that the real point at issue is precisely what the Government intended the House to mean by "grievous bodily harm".
§ The Attorney-General
Anyone who listened to the whole of the speech of the hon. Member for Nelson and Colne would not have appreciated that what he said in nearly an hour could have been said in one short sentence. Nor, indeed, was it. The hon. Gentleman knows perfectly well what the situation is. I read him the passage from the speech made by my right hon. Friend the then Home Secretary where he made it perfectly clear that the effect of the Clause was to keep it murder if the killing was done with an intent to do grievous bodily harm.
That was the only issue that arose before the Court of Criminal Appeal. There was no dispute in the debates in this House as to whether or not that should constitute murder. Both sides of the House were agreed that that should be the test. I believe there was one exception. I think that at one time the hon. and learned Member for Northampton thought it ought to be confined to an intent to kill. Otherwise, both sides of the House were agreed upon that.
Mr. Justice Hinchcliffe gave a very clear summing up The Court of Criminal Appeal was unanimous on the subject. I must say that, using the best of my judgment I really could not regard this as a point of law coming within the category within which it must come for me to be able to exercise my narrowly prescribed duty under Section 1 (6)of the Criminal Appeal Act 1907
The hon Member for Nelson and Colne has changed his mind about whether or not he should attack an Attorney-General but I am sure that he also would agree that in exercising what he himself described as a judicial function I should not allow myself to be influenced either by political pressure or by fear of political pressure whether from those who 1648 oppose capital punishment or anyone else
§ 9.53 p.m.
§ Mr. R. T. Paget (Northampton)
In the very few minutes that remain I want to try to clarify what seems to me to be the issue here. In murder, there are three sorts of intention. First, there is express malice, which means the expressed intention to kill. Secondly, there is constructive malice, which means an intention to do something else, to commit rape or arson. We abolished that. Thirdly, there is implied malice. I venture to say that implied malice means an intention to kill which is not expressed, but is deduced from the evidence and the circumstances.
It is said that it is sufficient if the intention be to do grievous bodily harm. I do not think that the Attorney-General really means that, because he laid great emphasis on the fact that Mr. Justice Hinchcliffe added the word "serious". "Grievous bodily harm" is a term of art. It includes, as I said quoting from Archbold, comparatively trifling injuries, for instance, a bruise which is not likely to be dangerous. That is too wide for the intention necessary here. Nor do I believe that the mere adding of an adjective is a great help to the jury.
In my submission, what the summing up should say is the following, and I quote from page 533 of the Tenth Edition of Russell on "Crime":Mens rea is now a realisation of the consequence which one's conduct may bring about. Then we can say that malice aforethought is the realisation that one's conduct may cause the death of a human being.A little later:The intention to pursue a course of conduct while realising that to do so may cause some person's death.Or, he puts it again:The foresight that death would or might be caused.In my submission—and this is something which the House of Lords will have to decide some time—implied malice, as this House put it into this Section, means just what Archbold said there. It means doing something which the accused foresaw, or must have foreseen as a reasonable man, was likely to endanger life. Does this summing up do that in this case? It adds to the words "grievous 1649 bodily harm," which the Attorney-General agrees are too wide, the word "serious." Does that really indicate to the jury what was intended?
Again, in another passage from this judgment, Mr. Justice Hinchcliffe says:If capital murder is not so proved and you come to the conclusion that the accused killed Miss Duckett without malice, that is without intending her any harm, or only trifling harm, then your verdict would be one of guilty of manslaughter.I do not think that the Attorney-General would really suggest that that taken alone would really be an adequate direction.
He says that the word confines it, or widens it—or whatever the context means—makes it clear, but I submit that this is something that the House of Lords will have to consider at some time; that the direction ought to have been and there may be perfect evidence to come to the conclusion in this case: did this man Vickers know that what he did was endangering life? That is the test. I do not myself say that in this summing up that question was not properly or fairly put to the jury. It seems to me that at some time this question will have to go to the House of Lords, and I regret that this opportunity was not taken.
§ Question put and negatived.