HC Deb 23 January 1957 vol 563 cc217-348

4.28 p.m.

The Chairman

The first Amendment. in the name of the right hon. and learned Member for Chertsey (Sir L. Heald), in page 2, line 41, might suitably be taken with the next Amendment in the name of the hon. Member for the Isle of Thanet (Mr. Rees-Davies) also to line 41, and with the second Amendment in the name of the same hon. Member, in page 3, line 10, at the end to insert the new paragraph (f).

Sir Lionel Heald (Chertsey)

I beg to move, in page 2, line 41, at the end to insert— or by the administration of poison or of any other noxious matter". Perhaps I may say at the outset that this Amendment has been put down deliberately in a form which is designed to raise a question of principle about which we believe there is widespread concern in the country. That question of principle is whether murder by poison should be preserved in Clause 5 as one of the murders to be included in the category of capital murder. We believe that public opinion is entitled to demand, as it is doing today, that the State should not surrender the power of life and death at any point beyond that which can be justified, and clearly justified, as a matter of principle.

We believe, further, that the vast majority of people in this country today are not satisfied that the Government have yet shown, or can show, that the line of demarcation which is drawn by Clause 5 is justified. It should be emphasised at once that the point I raise today is not one of the old points or arguments which have been debated on many occasions during the last year or two in connection with capital punishment. The question which arises on this Amendment is another and a different question. It is not whether capital punishment is or is not desirable or justified. The fact that this Bill is proceeding is proof that, at any rate so far as the Government are concerned—and they are responsible for this Measure—capital punishment is justified, and the only relevant question, indeed, the only question which is in order on such an Amendment as this, is whether the line should be drawn at one point or at another.

Therefore, the question is: what is this line of demarcation? What, if there is any, is the justification for it? I think that that may be answered, in the first place, by one or two very simple examples, so that the Committee may appreciate exactly what it is that we are discussing. Capital murder, as the Bill stands, includes: any murder done in the course or furtherance of theft; any murder by shooting or by causing an explosion. It does not include any form of poisoning. In other words, if a man goes into the local post office, tries to steal a sheet of stamps and the postmistress resists him and he kills her, he can be condemned to death. If, however, he manages to enter the employment of an old lady living alone in a bungalow, gets her to alter her will in his favour and then kills her by administering, possibly, rat poison, he cannot be condemned to death. In the same way, if he kills a man by causing an explosion and instantaneously destroying him he can be hanged; but if he spends a year or so gradually poisoning him in agony by arsenic he cannot be hanged.

Just how it is possible to draw the differentiating line between those two things on any basis of principle I must confess I have never been able to understand, nor have I ever met anyone else who could explain it; but I ought, in fairness, to say that explanations have been given to the House and to the Committee by members of the Government, and it is only fair to examine those explanations on their merits, if any.

During the Second Reading debate on the Bill both the then Home Secretary and my right hon. and learned Friend the Attorney-General attempted to define the dividing line. I hope that it will not be thought out of order, or inappropriate or impertinent for me, on this, the first occasion that the new Home Office team has appeared, to wish the members of that team all the very best of good fortune, particularly when they start their work with a rather difficult matter such as is now before us.

On that occasion, my right hon. and gallant Friend the then Home Secretary relied upon what he called … the maintenance of law and order."—[OFFICIAL REPORT, 15th November, 1956; Vol. 560, c. 1146.] My right hon. and learned Friend the Attorney-General relied on what he called cases where the death sentence is considered to be in the public interest.

Whichever of those two expressions one takes, neither can be described as very precise, but there are much stronger objections to them than that. In the first place, the expression "law and order" is not one which has ever been used as a criterion in any legal document, or Statute, or reported authority or anywhere else that I have been able to find. From any defining point of view it is really meaningless. It is fair to say, however, that my right hon. and gallant Friend went a little further than that and referred to the "Queen's peace." By this he said that he meant: … a state of affairs in which people can go about their business without fear. Why the Queen's peace attaches to the lady in the post office and not to the old lady in the bungalow he did not explain. Reference was also made to preserving the orderly basis of society. There, again, I think that the same comment applies.

Finally, the then Home Secretary said: … it is the duty of every hon. Member, as the representative of all his constituents, to consider their security and peace of mind."—[OFFICIAL REPORT, 15th November, 1956; Vol. 560, c. 1147–48.] That, Sir Charles, is what I am doing today. I am carrying out my right hon. and gallant Friend's behest, and I hope that the Committee will not think that I am wasting its time if I do what the then Home Secretary indicated that every hon. Member ought to do.

The Attorney-General's criterion of public interest had at least this to be said for it, that it is a criterion which has been used in the law. It has been used not only in other connections generally, but used actually for the purpose of differentiating different kinds of murder. It has actually been used for the purpose of drawing just the sort of line which we are drawing today, and it is instructive to see how that line ties up with the provisions of Clause 5.

As many hon. Members will know, the matter has been regarded for many years past in this way. There are certain murder cases which are regarded as so affecting the public interest—that is the expression which was used—as to justify, and actually to require them to be marked by, a particular and notable feature in the actual procedure; that is to say, the Attorney-General or his deputy, the Solicitor-General, actually appears in person to conduct the prosecution—a very important and solemn function.

The reason for that is clearly established. The Attorney-General is there on those occasions not to overawe the jury. One never hears in this country, I am glad to say, of any of the things with which we are familiar on the Continent; the public prosecutor demanding the death penalty, and so on. The duty of the Attorney-General is to ensure that the highest standards of justice and humanity are observed. And, not only that, but to give, by his presence, a guarantee to the public that a grave crime has been carefully investigated and is being tried with all the majesty of the law.

That has been recognised for many years, and the appearance of the chief Law Officer of the Crown has often been explained to juries—I have had to do it myself on several occasions—in order to counteract the view expressed, as it was, I remember very well, on one occasion, in one organ of the Press, that the real reason for the Attorney-General appearing was to try to make sure that the man was convicted. It has to be explained on such occasions what the reasons are for his appearance, and it might, and, I think, should be, of interest to the Committee to know what are the reasons that are given for the appearance of the Attorney-General, who has many other duties to perform, in these murder cases.

There are many examples with which I need not detain the Committee, but perhaps the best one comes from Sir Rufus Isaacs who, in 1912, prosecuted in the famous Seddon case. This is what he was reported to have said: It is an obligation on the Attorney-General to prosecute in certain cases, and this is such a case—one of the very gravest crimes known to the law. That was, of course, one of the classic cases of poison murders. The judge agreed with the Attorney-General, describing murder by poison as an abominable crime, essentially involving treachery, avarice and secrecy. Even though that was said forty years ago, there was nothing new about that view. A very famous criminal lawyer, Mr. Justice Avory, in the well known case of Vaquier, the Frenchman, put it in this way: Long years ago it was said that of all forms of death by which human nature can be overcome the most detestable is that of poison because it can, above all others, be the least prevented either by manhood or by forethought. It is interesting to note that Lord Justice Denning, when giving evidence before the Royal Commission, said: There are some murders which, in the present state of public opinion, require the most emphatic denunciation of all, namely, the death penalty. Many examples could be given from history of the particular detestation of the crime of murder by poison. In the ancient civilisations of China and Greece, it was always regarded as a thing on its own. A friend of mine was good enough to give me an interesting example of the view taken in the sixteenth century. It appears that there was a great argument as to whether, and in what circumstances, it was justifiable to kill a tyrant. The dispute was referred to the great Spanish Jesuit writer, Mariana. He took the view that if a tyrant was killed by a weapon his future life would not be affected, but if he were poisoned he would put the cup to his own mouth and so be guilty of committing suicide and therefore go straight to hell. That may, no doubt, have been a particular explanation, but it shows that at that time, as throughout history, this particular crime has been regarded—and I say this advisedly—by all sorts of people, for all sorts of reasons, as the very worst or amongst the very worst.

Mr. R. T. Paget (Northampton)

The right hon. and learned Gentleman is advancing what seems to be a somewhat peculiar argument. That apparently was a recommendation that the right way to kill a tyrant was to poison him, because he then went to hell. It seems to be much the same method as was adopted in the Indian Mutiny, when we blew people out of guns so that we not merely killed them but ensured that their souls went to hell. Surely this is an odd recommendation.

Sir L. Heald

I am much obliged to the hon. and learned Member. His intervention gave me an opportunity of looking at my notes.

I should like to ask my right hon. Friend the Home Secretary, who, I understand, is to deal with this matter, whether my right hon. and learned Friend the Attorney-General will cease to appear in murder cases, if this Bill passes into law, when poison is the subject of the charge. He appeared in one case a matter of only a week or two ago. Is it not a little strange that, at a time when the Government are putting before the House of Commons the view that murder by poison is a secondary form of murder of minor importance in relation to the public interest, the same great principle should still be preserved? If my right hon. and learned Friend changes his practice, does that mean that the principle is changed? How can it have changed? How then can it be explained? Surely, there must be something wrong somewhere.

Another interesting point, which seems to emphasise the difficulty of drawing this line, arises when one considers the other cases in which the Attorney-General by practice and principle does appear in order to prosecute. Curiously enough, we find that the death penalty is preserved in all the cases in which he normally prosecutes for murder except one. In the case of treason—murder, of course, we know that that is not touched by the Bill at all: it is held that that should be retained as a capital crime. Of course, the Attorney-General would always prosecute in those cases, though, heaven knows, such cases are rare enough in these days.

Shooting a policeman—the case of Kennedy and Brown, for instance—is retained as capital murder. The Attorney-General certainly prosecuted in that famous case. The same applies to the so-called multiple murder. In the case of Haigh, the Attorney-General prosecuted, and we find that class of crime retained by Clause 5.

Thus, taking the test of the Attorney-General's appearance, based on this criterion of public interest, which he himself has invoked, we find, in effect, that all cases are out of step save one, namely, poison. On the Attorney-General's own criterion of the public interest, this line of demarcation just cannot be drawn at that point. On the former Home Secretary's criterion, there is no principle at all on which one can draw a line of demarcation.

4.45 p.m.

What, then, is the explanation of this situation with which we are now confronted? I feel that the Committee must be absolutely frank with itself about it. There is a mistaken idea that the matter of this present Bill must be dealt with on the basis of some kind of compromise, that those who are in favour of abolition in principle must, for some reason, say that they will not agree to the line being shifted any further past the crimes of shooting and explosion, that they have said, in other words, that the line must be drawn just before we get to poison, there being no particular reason for it except that they are not really prepared to agree on any other place.

I wonder whether that really is true. I wonder whether anybody amongst the abolitionists is prepared to give us a proper and logical statement of principle for drawing the line of demarcation exactly where we have put it. We have never heard it yet, and I appeal this afternoon to some of those who are believed to be opposed to this to give us such a statement. I am not thinking of the hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) or others who hold his views. We know why he is opposed to it. He and I have argued about these things on many occasions, and I have the greatest respect for his views, although I do not agree with them. He does not oppose this as a line of demarcation; he is opposing the whole of Clause 5.

Mr, Sydney Silverman (Nelson and Colne) indicated assent.

Sir L. Heald

We know where we are with the hon. Member for Nelson and Colne, but where do we stand with other hon. Members who say that they think this is the right place to draw the line? The Committee is, I feel, entitled to hear in due course today a considered argument which will justify drawing the line at this place, an argument on some positive principle, not as a matter of convenience, expediency or anything of that kind. The Committee ought to be told what is the line of demarcation to be drawn, and why.

Mr. Silverman

I am sure that the right hon. and learned Gentleman will remember those parts of the previous argument when many of us who have, as he quite rightly said, stood for complete abolition have always conceded that if a line could be drawn on any basis which would recommend itself to the generality of people on grounds of justice and practicability we were ready to consider it, but the difficulty in which everybody has been placed for fifty or sixty years has been to find any line of which one can really make any common sense.

I want to ask the right hon. and learned Gentleman this. Suppose that he has his way on the Amendment and this further exception is introduced and added to the exceptions which the Government are pressing upon the attention of the House of Commons. Will we be in any more logical a position then than we are now? Will all the anomalies have disappeared? Will he be satisfied that we have drawn a line which can be defended on grounds of common sense and justice?

Sir L. Heald

I always think it is better to take one fence at a time in these things. As it would be quite out of order for me to discuss anything other than poison at the moment, I must defer our interesting argument until later.

The first point, then, which I would put is this. Can we have a reasonable and logical explanation from those who are said to be only too willing to agree to the Bill on principle on certain lines as to why we draw the line here? Secondly, if they do not produce any satisfactory or convincing argument, will the Government then accept that it is their duty to deal with the matter on the basis of logical argument and of those things which are said in the House rather than to some suggested feeling that something will not be acceptable to some hon. Members?

On that line, perhaps I might add just this. It may be that the hon. Member for Nelson and Colne would agree about this, also. The other day, I was very much struck by the fact that an eminent and humane French judge, a very distinguished old gentleman, was in London and came to see me, mainly for the reason that he wanted to beg me to do all that I could to prevent this particular thing being done which is being done in Clause 5 of omitting murder by poison from the capital list when those other crimes were included. He said to me, "Many of us in many countries outside England have had a great admiration for your law and I beg of you not to do this particular thing which you are doing here in the way of leaving out poison for a reason that no one outside England can understand. Please do your best to avoid it." It is just an interesting matter that there are still people who have respect for our law, and I feel fortified by that.

Finally, may I make these two or three requests to my right hon. Friends that in reply they will not place undue weight on certain arguments that have been suggested? The first one I have heard is that there are only a few cases. That is a rather familiar argument. In a slightly different form, it is more usually about something being only a little one, but in that case it has more to do with life than death. I hope we shall not hear that argument because it really is not a very helpful one.

Another argument which has been suggested is that in Clause 6 there is a remarkable provision that if it can be shown that someone has done murder twice, he can be hanged. I do not know that that is a very good argument. Those of us who have had experience of this matter of poison, as I have, know that it is difficult enough to prove one case. If two cases have to be proved, that really seems to be rather remarkable. Of course, we know that Clause 6 was not mainly designed for that purpose, but it certainly would apply, I suppose, and it has been argued—I have seen it in print myself—that people are in the habit of doing more than one murder by poison, as history, unfortunately, shows; but what is not appreciated is that the difficulties of proof are such that that would in most cases be very ineffective.

Then we come to another case which is said to provide an answer to the demand that these horrible cases should be retained in the calendar of capital crimes. It is said that the case of mercy killers, so-called, prevents anything from being done. What is said, as I understand it, is that there are a few cases—again, very few; there is no question of comparison of numbers in that way—in which people are condemned to death for mercy killing by means of poison and that they have to go through the agony of the death sentence, and so on.

The first point which should be made about that is that it seems to be forgotten—certainly, in one article which I read the other day—that in a later Clause of the Bill the horrors of the death sentence are largely removed and the main objections about the black cap, the terrible language and so on, will no longer apply. The reprieve is, of course, something that would have to be applied in that case, as we all know, but one has to weigh these things.

Is it to be said that because some people may have to go through the unpleasant experience of having the word "Death" pronounced in their sentence, which they know will never take place, that is to be weighed against the retention of capital punishment in the gravest cases of all? At any rate, that is a matter that one must, no doubt, consider: and it can be considered. In considering it, however, we should bear in mind that while we cannot go into the technical details this afternoon, there is no doubt that a number of those cases of so-called mercy killing are not cases of poison at all. They are cases which would not come within the definition of poison.

I wish to say only a word or two more but I feel that it is necessary to say this. I believe that the country will not be satisfied unless it is convinced that the Government have given really serious and deep consideration to this point. I think there is serious public concern that the matter has been dealt with without any real regard for this point. The question is, what is to be done about it?

Mr. Leslie Hale (Oldham, West)

I should like to put to the right hon. and learned Gentleman a genuine question to which I do not know the answer. He has referred to the definition of poison. Is there a definition of poison at the moment on the Statute Book? If so, what does it indicate? It would help us to know.

Sir L. Heald

I am afraid that I cannot go into it in detail but I assure the hon. Member that there are pages in legal textbooks about it. There may be considerable argument as to whether certain things, which can be used very effectively, no doubt—I shall certainly not give the hon. Member any advice on the subject—to put an end to life, would be described properly as poison. I will not give away any information which I have on that. They are not necessarily noxious either in that sense. It depends how it is done. However, obviously, we must not discuss that today.

I am anxious to avoid detaining the Committee but I regard this as a serious matter. I know that there are hon. Members who have other Amendments, two of which are being discussed with the present Amendment. That is why I will not go further and trespass on the ground that they will cover. They will deal with certain aspects which it would not be in order for me to deal with on my Amendment. There is also—again, I cannot refer to it at the moment in anything but the most broad way—a new Clause in the name of an hon. Member who always puts forward very interesting ideas on these things, dealing with the possibility of making a general allowance for what is, I believe, called "mercy killing". It may be that that will be discussed.

5.0 p.m.

I am not in a position today to suggest the precise way in which this matter should be dealt with. Nor, I suggest with the greatest respect, are the Government really in a position to do so, because the matter has never been fully debated, and therefore I suggest—and I hope my hon. Friends will agree; I have had an opportunity of consulting a number of them—that it would be entirely wrong to come to a conclusion on this matter without full discussion. It is a highly complicated subject. There are three different Amendments. I therefore ask the Government to undertake, without giving any kind of promise, that they will give this question serious consideration with an open mind.

From what we have heard so far, it does not appear that the matter has been considered with an open mind. If, as we now know, there is very strong feeling and very serious alarm among the public—

Mr. George Benson (Chesterfield)

Why does the right hon. and learned Gentleman say that?

Sir L. Heald

I say that there is. If the hon. Gentleman does not think there is, it is open to him to say so when his turn comes. This is a matter which requires great consideration. I hope that it will be taken very seriously and that no final decision will be made until it has been reconsidered, so that only when we come to the Report stage shall we be told what are the Government's final views.

The Temporary Chairman (Mr. H. Hynd)

Mr. Paget.

Mr. W. R. Rees-Davies (Isle of Thanet)

On a point of order, Mr. Hynd. At what stage do you intend that we should deal with the Amendment in my name, in page 2, line 41, which I understood was to be taken at the same time as the Amendment which has just been moved?

The Temporary Chairman

Both the Amendments in the name of the hon. Member for the Isle of Thanet (Mr. Rees-Davies) are being discussed with the one which has just been moved.

Mr. Paget

We have listened to a most interesting speech by the former Attorney-General, the right hon. and learned Member for Chertsey (Sir L. Heald). There are certain matters to which I particularly wish to refer. First, the right hon. and learned Gentleman made a formidable attack on the Bill as a whole, and in that I am in general agreement with him. I think this is a rotten Bill and that we ought to put it into the waste paper basket, as, indeed, I hope in due course we shall.

I think, however, that at one point the right hon. and learned Gentleman went a little further in his criticism than I would go. I refer to his statement that there is no discernible principle in the Bill at all. As I have understood it, the case put from the Government Front Bench all along has been—and I epitomise it by saying this—where violence is resorted to, then only a violent remedy can give the public the assurance that that violence has been properly met.

Mr. Charles Fletcher-Cooke (Darwen)

If that be the principle, can the hon. and learned Gentleman explain the rejection of the Amendment by which the capital penalty was to be imposed for the crime of murder committed in the course of rape? Surely nothing could be more violent than that. Yet apparently that is not within the principle of the Bill.

Mr. Paget

If the hon. Gentleman would wait a little he would discover that I had intended to deal with that point. There are two seeming inconsistencies with that principle. First, there is rape, which the hon. Gentleman mentioned. Rape, I think, was quite rightly rejected by the Government because in cases of rape the killing is almost always unintentional. Therefore, it was not considered that such cases should be involved.

The other inconsistency, to which we shall come later, and which is capable of being corrected by an Amendment on the Paper, relates to two killings on separate occasions. That seems to me outside the principle, but it could be dealt with later.

Sir L. Heald

What about any murder done in the course or furtherance of theft? Is there any violence in that?

Mr. Paget

There is some criticism to be made on that point, but I am stating what the case of the Government Front Bench was, that the theft they had in mind, the sort of theft which would involve murder, would be a theft which involved a violent challenge to law and to possession. That, as I understand it, is the Government's case. I am not saying that I agree with it, but it provides some sort of consistency. Certainly to include poisoning would be entirely inconsistent with the Government's own case.

The second point is again a technical objection, and I am dealing with the technical aspects first. This is the real impossibility of definition. The Amendment says: … the administration of … any other noxious matter. Is a bullet a noxious matter? If it is not, what is it? Is the edge of a hatchet a noxious matter? Is powdered glass a noxious matter? No attempt has been made to define what poison is.

Is one to take the poison register and say, "If it is a registered poison, yes; if it is not a registered poison, no"? Are we to say, "If it is arsenic, yes; but toadstools, no"? The technical difficulty of providing any definition which could possibly cover this point has been amongst the reasons why the Government have, I think quite rightly, expressed themselves adverse to this kind of suggestion.

Having said that, I wish to tell the Committee why I personally feel most strongly about this matter. I have always asked the House, or the Committee—in whichever form we have attended to this—to consider such matters on three main tests. First, is it a superior deterrent to this form of crime? Of course, it is a deterrent; any punishment is a deterrent, but is it a superior deterrent? Secondly, is it reasonably certain? What are the chances of miscarriage of justice? Lastly, is it right? That is to say, what are the chances of redemption to which we are denying the personality of the person involved?

As to that, I should have thought that generally speaking, poisoners as a class were the least likely to achieve the redemption of their personality. On the other hand, these violent young men with whom Clause 5 deals, if they were given the chance to go on living and a chance to develop, are most likely to redeem or to save their souls. However, that is not the aspect with which I deal with the matter here. The first two considerations are, I think, those we should consider in relation to the poisoner.

I do not think anyone has suggested, and it certainly played no part in the speech of the right hon. and learned Gentleman the Member for Chertsey to suggest, that hanging is in the least likely to deter one single poisoner.

Sir L. Heald

I do not agree with that at all. Nor do I think it is relevant.

Mr. Paget

Let us see. The poisoner is a secret killer. The poisoner is a deliberate killer. That is why it is sought to include him. Nobody who calculates considers any reward which he could get for poisoning is comparable to the penalty of a life in jail. Nobody poisons except in the belief, and in his own mind the certainty, that he is going to get away with it. He is sure he is safe. In a sense that is why he is dangerous. Equally it is plain that is why this is no special deterrent. A chap who kills in violence, in rage, in passion, in circumstances in which he knows he will have to meet the consequences, may be deterred by the measure of the consequences. The calculating killer is never for a moment going to take the measure in his calculation because any penalty which he considers must in the terms of cold logic outweigh any advantage he has to gain.

Mr. Anthony Fell (Yarmouth)

I should have thought the hon. and learned Gentleman's premise completely wrong, and exactly opposite to the facts, that it is the poisoner who is a calculator, who is the person who takes into calculation the possibility of the final penalty.

Mr. Paget

Anybody who calculates at all with deliberation does not choose the reward which he can get, whether it be a Rolls Royce or anything else, as preferable to spending the rest of his life in jail, or even to a reasonable chance of it. The two things do not weigh. The poisoner feels he can get away with it, and experience shows he does pretty often.

That is the problem, but the real question with which I am concerned is the question of certainty, because it is in poisoning cases precisely that I believe the greatest risk of miscarriage of justice occurs. Certainly they are the sort of case in which the chances of miscarriage of justice are very much the largest.

I am now going to say something which, I think, will greatly shock a number of Members of the Committee. That of all the civilised countries—and by that term in this sense I exclude the totalitarians, who do not regard the individual's rights as comparable with State rights—our criminal law is much the least concerned with certainty. What we seek is decision and dispatch. In America, men will be years in the death cell while every effort is made to pursue every avenue which may possibly show uncertainty as to their guilt. That process shocks us. We take the view that a decision should be taken, that it should be taken with dispatch and that it should be final.

5.15 p.m.

In a case I am going in a moment to deal with, the case of Madame Benard, the most famous poisoning case in this century in France, the trial took five years because every avenue was pursued. If Mme, Benard, who, in the end, was proved perfectly innocent, had been tried in England, she would almost certainly have been hanged. I am not criticising us. I think that it is on balance better to get a decision, to have the trial and to act on it; but, if we are going to take that line, we ought not gratuitously to make an unalterable provision.

Let us take a few examples to illustrate what I am saying. The right hon. and learned Gentleman referred to two cases. I am going to take both those cases. Firstly, there was the case of the woman in the bungalow who was poisoned by rat poisoning by an employee, somebody who had come to live with her, who hoped to inherit her estate, such poor possessions as she had, as a reward for service, and then killed her with rat poison. It is the case of Mrs. Merrifield.

I ask the Committee to consider a moment what the evidence there was. There were two experts called. There was an expert called for the prosecution who said that the woman died as the result of the administration of phosphoric rat poison. There was the expert called by the defence who said that that was not the cause of her death and that she had died from natural causes. The jury had to decide between those two men. The expert called for the defence was no trivial witness. He was Professor Webster. Professor Webster has been head of the Forensic Laboratory at Birmingham as long as I have practised at the Bar. He has given evidence, since my criminal practice has been confined to the Midland Circuit, in every single murder case in which I have taken part, and given evidence for the prosecution, as the prosecution's witness. I think that, since the Attorney-General is also on the Midland Circuit, that is probably true of him, too.

The Attorney-General


Mr. Paget

It was. Certainly, until the right hon. and learned Gentleman assumed his present office, in every murder case in which he took part—and no doubt it also applies to the new Joint Under-Secretary of State—Professor Webster has been a witness for the prosecution.

How often have we been told that if there is the slightest doubt, a scintilla of doubt, the Prerogative of mercy is applied. The Home Secretary did not consider Professor Webster's opinion to raise even a scintilla of doubt. I have no doubt scores of men during Professor Webster's tenure of office have been convicted upon the basis of his evidence called by the Crown. How, then, does the Home Secretary justify not considering his evidence in the Merrifield case to raise a doubt in the mind of the prosecution?

There was a case in which there were those two men saying exactly the contrary on a matter of scientific knowledge and between them a jury who could know nothing about science and whose opinion was precisely worthless. They had to decide, and they decided in favour of guilt upon a direction from a judge who expressly told them that they need not be certain. I quote from memory what the judge said. I will give his exact words later.

Mr. Nahum was appearing for the defence, and the judge said, in effect, "Mr. Nahum has told you that you must be certain beyond doubt before you convict this lady. I tell you that is wrong. That is not the law. You have not got to be certain beyond doubt. All you have to do is to have sufficient confidence that you are right as would make you decide a matter in your personal business which you considered of real importance." That was the effect of the direction given in that case.

It was a case where a jury had to decide between two reputable experts who said precisely the opposite, the jury not being a jury of scientists or doctors and who were in no position to decide at all. I warn the Committee that in poisoning cases it is expert evidence, it is the weight of expert evidence which has to be decided, as between experts, by juries whose opinion on the matter can be of very little value indeed.

The other great factor in poisoning cases is that there is always a build-up of such appalling prejudice. I do not know whether anybody in this Committee is under the delusion that Dr. Adams can get a fair trial.

The Attorney-General (Sir Reginald Manningham-Buller)

Surely it is not proper to refer to any case pending.

The Temporary Chairman

Whether it is proper or not, I think that it would be better not to do so on this occasion.

Mr. Paget

I am merely referring to it as a common and present experience now that there cannot be empanelled a jury who have not discussed that case before they go into the jury box. There is nobody in the country who has not discussed it, or has not formed an opinion before he goes into a jury box. That is the sort of trouble you run into in poisoning cases. There was that sort of prejudice in the Merrifield case, and that made a difference.

Sir L. Heald

The hon. and learned Member says that that made a difference. Does he not think that he ought to be careful about what he says? I was responsible for the conduct of that case and cannot speak about it, but the hon. and learned Member is running a grave risk in making these ex parte statements about a matter of which he knows very little.

Mr. Paget

Can the right hon. and learned Member challenge one word of what I have said?

Sir L. Heald

Yes, almost every word.

Mr. Paget

Let the right hon. and learned Member do so, and I will give way.

Sir L. Heald

It would be entirely irrelevant to this debate. [HON. MEMBERS: "Why?"] The hon. and learned Member for Northampton (Mr. Paget) has made no attempt whatever to deal with the real argument on the line of demarcation. He is merely taking the opportunity of airing some of his well-known views.

Mr. Paget

That seems a very curious attitude to take. The right hon. and learned Member comes here to ask us to take lives and then says that it is irrelevant to discuss the particulars and to discuss whether certainty can be produced in these matters. It is a very odd attitude to say that almost everything I have said is wrong and, when challenged, not to give the details. Everything I have said is accurate, and the right hon. and learned Member knows it perfectly well.

Sir L. Heald

I would be glad to meet the hon. and learned Member outside the Chamber afterwards and give him the facts.

Mr. Paget

The Committee would like to hear them now.

Mr. Hale

My hon. and learned Friend the Member for Northampton (Mr. Paget) will remember for the duration of the debate that the rules of the House, as laid down from time to time, make it quite clear that one should never discuss a murder case when it is started and never discuss it while it is being tried and is sub judice. One should not discuss it after conviction because the case may go to appeal. If the appeal has been dismissed, one should not mention it because it might interfere with the exercise of the Royal Prerogative; and after execution one should not mention it because it is rather bad taste as frequently hon. Members have taken part in the trial.

Mr. Paget

And how can we discuss these vital subjects unless we are to look at things, not as they are in theory but as they are in reality, and unless we are to look at our experience? But I have said that there is this tremendous danger of prejudice, of previous discussion, which we can all feel round us in an existing case and which has occurred in other poisoning cases.

The right hon. and learned Member for Chertsey also mentioned the Seddon case. I would advise him, now that the prejudice has dispersed, to read the case again and see whether he is satisfied. Is he satisfied that Miss Barrow died of arsenic poisoning, and if she did, is he satisfied that the verdict was certain? On that second point, two people were charged—Mrs. Seddon and Mr. Seddon. One was acquitted and the other was convicted. Can the right hon. and learned Member find one piece of evidence in that case which applied to Seddon and did not apply to Mrs. Seddon? There were really three possibilities there. Either Seddon had done it alone or Mrs. Seddon had done it alone, or both had done it together.

Mr. Sydney Silverman (Nelson and Colne)

Or neither.

Mr. Paget

That is a different matter. Perhaps she was not poisoned at all.

As between those theories, it was Mrs. Seddon who had the only source of poisoning which was suggested—the fly-papers. It was Mrs. Seddon who had the burden of looking after Miss Barrow, and Miss Barrow was very little inconvenience for Seddon. He had the money in advance. He did not have to wait for her death. Let the right hon. and learned Member look through that case seriously and consider whether he can be satisfied that it was Seddon and it was not Mrs. Seddon.

Let the right hon. and learned Member then come to the other question and read the case in connection with the Benard case in France. Marshall Hall's case for the defence was that it was not a malicious poisoning. He said, "This is a case of somebody who has been taking arsenic over a very long period in the form of a tonic." He showed that by the fact that he alleged the arsenic had grown out with Miss Barrow's hair and had reached the ends of her hair. At that moment the prosecution scientific witness came out of the witness box, but he came back next day and said that the hair could have acquired this poison from the liquid in the coffee. That was the recalled evidence.

Now that same matter arose in the Benard case and the expert evidence was given—although Seddon was hanged—that it was established almost beyond scientific doubt, if that is not in itself a contradiction in terms, that that evidence was completely wrong. The explanation given by the prosecution could not have happened, and when one reads the Benard investigations in conjunction with the Seddon case, I think that anybody must have the deepest anxiety as to what happened in the Seddon case.

5.30 p.m.

Now I come to the Benard case itself, because Madame Benard was charged with having murdered by arsenical poisoning about a dozen people. I have forgotten the exact number, but it was of that order. The prejudice against her in France was enormous. She was brought up for trial, and the scientific evidence was challenged by the defence. What would have happened if she had been on trial here? The judge would have directed the jury, "You have to decide between the experts called by the prosecution and those called by the defence." In the light of the prejudice that existed, believe me, the prejudice would have made weight for what was lacking in evidence.

Things happen rather differently in French courts. Each time the prosecution experts came back and explained away what the defence had said, there was loud cheering in court, and there were groans as the defence witnesses came in. But under the French system issues of that kind are not left to a jury who are not competent to decide. Issues of that kind are sent to the laboratories for further investigation, and that process of sending it back to the laboratories went on for five years. At the end of five years of really careful scientific examination the conclusion was reached quite clearly that not one of Madame Benard's relatives had died of arsenical poisoning. Yet the tests produced by the prosecution were tests which have been accepted for half a century in our courts, and the kind of investigation which was possible in the French law would be impossible in ours.

I revert, therefore, to what I said at the beginning: of all civilised systems ours is the one least concerned with certainty in criminal matters. It was only reluctantly and in this century that we could be brought to agree to a court of criminal appeal at all; otherwise it was decision, execution. Our principle has always been that criminal law should be expeditious, final.

I do not say that this is a wrong principle. I hate a case dragging on for years and years, with people writing a couple of best-selling books in the death cell. Yet all that period is a pursuit of certainty. Equally I am revolted by the thought of a five-year murder trial such as they had in France. I do not commit myself to a precise time for a murder trial that took years but I am revolted by it. Yet, if we are to have expedition, it must be realised that we can have it only at the expense of certainty. Since we choose expedition at the expense of certainty, we have no right gratuitously to impose an irrevocable sentence. That is why we, of all countries, have the least right to have a death penalty, because we choose to make our criminal law rapid, expeditious and final, and we know we can only do that at the expense of certainty.

Of all cases where this difficulty arises, where prejudice is most likely to take the place of evidence, where the issues will be scientific ones which cannot satisfactorily be decided by a jury, we have no machinery in our law for sending it back to the laboratories and for further examination. So in poisoning least of all are we entitled to select it and to say, "In this, expressly and particularly, we choose to make an irrevocable decision." We ought to have the modesty to know of our own uncertainty.

Viscountess Davidson (Hemel Hempstead)

In a few words, Sir Gordon, I wish to support the Amendment standing in the names of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) and myself and other hon. Members.

Since I was a Member of the Standing Committee which for many weeks discussed the Criminal Justice Bill before the war, I have held the view that it would be wrong to abolish capital punishment. Incidentally, I have always felt strongly about the retention of corporal punishment in some cases. I have never changed my mind, because I have always felt convinced that capital punishment could, and sometimes did, act as a deterrent, and none of the many arguments and statistics that have been produced again and again have convinced me to the contrary.

I realise fully that some murders are committed without premeditation, but that is not so with poisoning, at least not all cases of poisoning. A man can murder by poisoning having thought it out for many months in advance certainly he has not committed it on the spur of the moment. Yet, under this Bill, he is not liable to suffer the punishment which in my opinion he deserves perhaps more than the man who has murdered without premeditation and on the spur of the moment.

I know that there are many hon. Members who wish to speak on this and on other Amendments. We have listened with great interest to the speech of the mover of the Amendment, who put fully before the Committee the views he holds, which many of us share. I want to add, therefore, only that I am in complete agreement with what my right hon. and learned Friend has said. I support the Amendment.

Mr. Hale

I personally agree with much of what the right hon. and learned Gentleman the Member for Chertsey (Sir L. Heald) has said. He pointed out, perfectly fairly and with his usual logic, some of the difficulties produced in this kind of legislation. Certainly if one uses the word "poisoning" for the moment in the sense in which it is normally understood by average members of the public and if one thinks of arsenic or strychnine and of the pain they cause, very often resulting in an alarming and lingering and miserable death, one feels a bitterness and hostility towards such secret, calculating, rather cold criminals, and it is extremely difficult to say what argument there can be for asserting that the penalty to be applied to a young man who uses a revolver shall be greater than that applied to a criminal who uses a deadly and painful poison. But the right hon. and learned Gentleman himself will have observed already that this argument can lead us into a dilemma. It can lead us either to impose the death penalty for the use of poisoning or it can lead us to abolish it for shooting, I prefer the latter method, and I hope to give some reasons why I do so.

I had hoped to give a modest word of welcome to the Home Secretary, but now that there have been some cheers which had in them an element of the facetious, I want to congratulate the right hon. Gentleman seriously, because it is of great value to the Committee to have a man of his acknowledged ability and experience in this difficult situation. I hope that we shall be able to approach the Home Secretary and talk to him seriously about some of the real and serious problems of penal reform which remain to be dealt with. Therefore, I say to the right hon. Gentleman seriously that we are grateful to see him in his present position. Whether he is keeping the seat warm for someone else, or not, we are sure that while he occupies it we shall have reason to appreciate his ability and his sincerity at the Home Office.

The right hon. Gentleman's predecessor, for whom I had a personal regard, and of whom I do not wish my remarks to imply any criticism, used to listen to us in the course of these debates with a slight air of wonder and seemed to think that we were manufacturing all sorts of obscure possibilities and all sorts of doubtful crimes as illustrations to reinforce an argument which he seemed to regard as somewhat technical.

Consequently, I will today take a precise case in detail as exemplifying some of the doubts in my own mind about the Amendment. There is a case made famous to the reading public by the brilliant pen of Mr. Edmund Pearson, who, in American writing on criminology, ranks with our own favourite, William Roughead. He dealt, perhaps rather more cheerfully than is usual with murder cases, with the case of Mr. Mike Malloy which occurred in the Bronx in New York State in 1932.

The circumstances were as follows. It could have been called in a sense a gang murder; perhaps more appropriately a club murder. Mr. Mike Malloy was a customer of what is, I believe, technically known there as a speakeasy, where he spent the greater part of his time, and, indeed, pursued most of his endeavours. The landlord of the speakeasy, with one or two of his friends, felt that there were opportunities for exploiting the law relating to insurance, and that insurance would provide a profitable investment provided that one eliminated the element of uncertainty which the average life insurance policy involves.

It was thought that as Mr. Malloy was rapidly drinking himself to death it could hardly be regarded as a very exceptional crime if they were to speed the parting guest. They were able to insure Mr. Malloy for 1,788 dollars. The principal members of the club were, with singular appropriateness, the owner of the speakeasy, an undertaker and a taxi driver, and the view was taken that each would be able to contribute to the enterprise his various forms of activity and knowledge which might be required or desirable to help Mr. Malloy on his way.

Mr. Malloy, beyond any doubt, was drinking himself to death. It was felt that the addition of a considerable quantity of free alcohol to his diet would bring about the desired result even if the overcrowded side-streets of New York in the early hours did not contribute somewhat fortuitously to what was hoped would happen. I pause to ask the right hon. and learned Gentleman to consider the case as far as we have got, because there are varying definitions of alcohol which come to us in our correspondence. I remember having long discussions with the Ministry of Transport which laid down that to say that "Guinness is good for you" is a perfectly proper and uncontroversial statement, but to say "It is bad for you" is political and that phrase cannot be exhibited upon the bridges or hoardings of British Railways. We are entitled to say that alcohol is good but not that it is bad, but there are people who think it is bad. Whether the administration of a constant supply of alcohol to Mr. Malloy in the form of free whisky, free brandy or other free drinks could be regarded as using a noxious thing would itself have presented a very difficult problem even to the ability of a New York jury, even if the motive were admittedly a criminal one.

However, that problem did not arise in this case because Mr. Malloy flourished on the alcohol. His cheeks grew redder. His self-confidence increased. He came along to the speakeasy every day asking for more alcohol. The club realised that Mr. Malloy was what might be called, in the language of a balance sheet, a wasting asset and that he would probably cost them more in alcohol than the insurance policy was likely to yield.

I am sorry to add, but it is very relevant to the argument, that the club decided to debase the currency of the murder and to replace the perfectly good alcohol by some very bad alcohol. They commenced to use wood alcohol, turpentine and methylated spirits in the form of a mixture, and it was felt that this might secure the desired result. The Minister will appreciate that all this might be regarded as a question of something in the imagination of the drinker and that so long as one thinks it is Romanèe Conti, or Berncasteler, or Chateau Yquem it does not much matter what it is. As the great Dr. Johnson once said, one can, but for imagination, be as happy in the arms of a chambermaid as in the arms of a duchess. But subsequent commentators have suggested that there is less formalism and, indeed, some advantages in the more plebian embraces, and the mixing of the strawberry leaf with the fig leaf involves a formality which might well be avoided.

5.45 p.m.

In fact, however, Mr. Malloy rejoiced in the alteration to his liquor. He said there was much more kick in the new form of drink, and he spent some considerable time profiting by this while the insurance moneys, in perspective, were being diminished and the club's hopes of revenue were going down. The right hon. and learned Gentleman ought to be able to tell us whether wood alcohol is a noxious thing in that connection and whether an attempt to kill a man by a mixture of wood alcohol, turpentine and methylated spirits would fall within the purview of the provisions before us.

Sir L. Heald

Would the hon. Gentleman allow himself to be used as an experiment in that way?

Mr. Hale

If Parliamentary salaries continue at their present level, that might be something for consideration.

There was then a meeting of the club, and it was felt that more direct action was necessary. On a very cold night in January the members took Mr. Malloy out in a slightly insensible condition. The undertaker was in charge, and the taxi driver was driving. They laid him out in the cold, and covered him reverently with snow, and then they poured cold water over him in 10 degrees of frost and left the body there, confident that nature would do the rest. Their confidence was misplaced. In fact, the undertaker contracted a severe attack of tonsilitis and was ill in bed for some time. Mr. Malloy arrived for his drinks as usual and made some apparently irrelevant comment about a change in the weather.

The right hon. Gentleman will still have to consider whether in these circumstances water could be a noxious thing. With his considerable knowledge of history, he will recall that at one time water was used as a form of torture. It was certainly so used in France for a long time. It will be recalled that the innocent Jean Calas and the guilty Madame de Brinvilliers had to absorb a very large amount of water in circumstances which left them in peril. Frozen water could, in itself, be deleterious to most people except Mr. Malloy.

There is no question that now there was a certain amount of despondency in the club. So depressed were they at the time that I am sure that if the Prime Minister had come along and offered to make them all viscounts if they would give up their activities, they would have accepted, even with some pleasure.

They decided to sublet the contract, and a couple of gangsters were employed. They also tried the effect of attempting to kill somebody else with Mr. Malloy's card in his pocket. Both ventures, unhappily, failed. Finally, Mr. Malloy was taken out and laid on a kerb, and the taxi, which was ever handy, was run over him several times fracturing most of the bones in his body, and the club members returned to await the payment of the insurance money. Before the insurance money came in, Mr. Malloy came out of hospital, said that hospital was a very thirsty place, and asked what could be done about it.

At that stage—perhaps it was at a slightly earlier stage in the proceedings—someone with medical knowledge came along and made some comments about botulism, ptomaine poisoning and so on. By reference to a handy encyclopaedia one will find that if sardines are left in a tin long enough they reach the stage of becoming a noxious thing. For some time the club caused sardines to be left in the open on various window sills, and they awaited the time when they could tell from the temperature, or the odour which arose, that the sardines could be put into sandwiches for Mr. Malloy.

At the end, those lacking confidence in the expertise of their scientific advisers suggested the addition of a few tintacks and bits of broken glass. These were added and Mr. Malloy eat this for some considerable time and grew thirstier every time. He said that there was something about sardines which gave one an appetite, and when Mr. Malloy said "appetite", he meant thirst.

That was the position when in desparation they took him upstairs, put a tube in his mouth, attached it to the gas and filled him full of gas to the extent that he went to a place from which normally no man ever returns. Nor did he, although he was brought back as a corpse for the inquest. The insurance companies having expressed some little dubiety about it, there was an inquest and then a trial in which all of these complicated questions should have been considered.

Although, let us say at once, we would all deprecate all this, nevertheless there was in the course of it something of the spirit of Samuel Smiles, something of the lessons one draws from Robert Bruce. Having put their hands to the plough, they ploughed the furrow to the end. In the end they found themselves keeping a seat warm, to use the modern terminology.

There it was. What were the noxious things? At what stage of the proceedings would they have come within the purview of the Amendment? Had Mr. Malloy's unhappy demise taken place at an earlier period, would they have come within the Amendment or not? It is absolutely impossible to incorporate in an Act of Parliament, when the matter with which we are dealing is the sentence of death, words which have so little meaning and which have so much application.

My hon. and learned Friend the Member for Northampton (Mr. Paget) made one of the most interesting, most constructive and most able speeches which I have ever heard him make. He raised some issues of importance to the Committee. He raised the issue of certainty. It is true that in criminal cases—and at some time the Committee might well consider it—we leave these questions to a jury of 12 men on the principle that the unanimity of 12 men, even when expressing only a fairly casual certainty, will be sufficiently convincing to produce the probability of certainty.

But judges still warn juries that it is very desirable that they should agree. Minorities on juries are still put under some pressure to agree with the majority. It is not unknown for juries to be sent back when they have disagreed time after time and to be told that it will cause great public inconvenience if the public is put to the expense of a second trial. Juries so rarely disagree that we are entitled to question what really does happen in a jury room and whether the unanimity is so readily arrived at as we are sometimes called upon to believe.

My hon. and learned Friend mentioned a case to which I do not intend to refer, but a whole series of cases of poisoning have become famous in the last 50 or 60 years and almost every one has raised the same problem. My hon. and learned Friend referred to the conflict of medical evidence. In every famous case there has been a great conflict of medical evidence. Those who practise in the criminal courts know perfectly well that when Sir Bernard Spilsbury went into the box, it was possible to call the Scottish forensic expert to contradict him. When the case was in Scotland, Spilsbury went north of the Border and gave evidence for the defence.

That happened not only in this country, but abroad. The most famous case is that of Madame La Farge, when Orfila, the most famous of all French poison experts, came into conflict with experts on the other side. My hon. and learned Friend referred to the practice in France of referring these matters to experts for advice, a very desirable and important practice, because in so many of these cases there is a conflict.

One does not want to quote controversial cases and I shall therefore refer to the case of Mr. Maybrick and the fly-papers when so much evidence for the defence was not called, so much evidence which was available and which by some mistake or lack of care was not called in time to be put before the court. Here was a case of a man using arsenic as an aphrodisiac, a man who had been consuming arsenic for years and there was evidence that he had ordered it. The lady who bought the flypapers said she was making cosmetics. She was convicted and sentenced to death, but finally kept in prison by the Home Office on a charge on which she had never been tried. Because of doubts of her guilt on the charge on which she was tried, the Home Office intervened and said there were doubts about whether Maybrick had died of poison, but she was to be imprisoned because there was no question that she had administered poison to him.

Mr. Ede (South Shields)

She was kept there by the Home Secretary and not by the Home Office. It is an important distinction.

Mr. Hale

I am very grateful and on such a matter I am perfectly certain that my right hon. Friend has attained that high degree of accuracy which we expect from him. The Home Secretary announced that there was doubt about the murder, but no doubt about the administration of poison. Presumably she was kept in prison on a charge of attempted murder on which she had never been tried.

There is the famous case of Dr. Smethurst, when one of the greatest of all the medical experts, Dr. Alfred Swaine Taylor, author of a great book on medical jurisprudence, went into the box at the assizes and said that the arsenic which he thought he had found in the body had actually come from the materials which he had used in the test, that in precipitating the arsenic on to gauze in Marsh's test he precipitated arsenic from the materials which he himself had provided. Yet that evidence had been given on oath at the petty sessions and it is to his credit that he had the courage to come forward and make so frank and free an admission of error. Had he not done so, the situation might have been more serious, though Dr. Smethurst was still convicted.

In the area of the greatest possible uncertainty the Amendment suggests introducing provisions for imposing an irrevocable sentence. Although I said that I agreed with the right hon. and learned Member for Chertsey about shooting, the case fails if one applies to it the test of brutality. Lizzie Borden took an axe, And gave her mother 40 whacks, And when she saw what she had done, She gave her father forty-one. She was, in fact, acquitted though criminologists have since raised doubts about the verdict of the Boston jury. If she had given them sleeping tablets when they went to bed, would that have been more serious? Would the giving of barbiturates be more criminal, a more punishable crime?

Some hon. Members have appreciated this point and have tried to put down Amendments which will cover this particular matter, which will say that mercy murders should be exempted from the more severe penalty. We will come up against another matter of great difficulty, we will meet problems which the Committee might one day find it necessary to have to face. I deplore the sentence for murder in these cases, cases where the sentence has been passed on a poor, harassed, overworked mother who has tried to put out of the way some deeply suffering, incurable, deformed child, deformed mentally or physically.

It is a rather shocking thing that we should have to go through all this panoply of threat and intimidation—

Mr. Fell indicated dissent.

Mr. Hale

The hon. Member shakes his head. He shakes his head at so many simple propositions. How many judges have said this! Sir Henry Hawkins was regarded as a very tough judge and yet he said that he detested having to go through the wretched procedure of passing a sentence which he knew would never be imposed on some unhappy woman after she had been dragged through her misery on a charge of infanticide or mercy killing. We abolished it for infanticide.

Mr. Fell indicated dissent.

Mr. Hale

The hon. Member shakes his head. We abolished it for infanticide.

Mr. Fell

I shake my head only because I wonder just where we shall arrive if we start upon this expedition. It is very difficult to know at what point mercy killing is more than condoned.

6.0 p.m.

Mr. Hale

I agree; that is exactly what I am saying. All these considerations are difficult. Every definition creates difficulty. But the voice which says, "How far are you going? If you start on the right road you may reach the wrong road" is the voice of Ellenborough—of the 1830s. This was the argument put forward against every judicial reform and every measure which was intended to bring some decency into our criminal laws and some sense and responsibility into our penal system. It has always been the argument.

I suggest that the Amendment moved by the right hon. and learned Gentleman is impracticable and must be rejected. I rather gathered from what he said at the end of his speech that he himself had some doubts whether or not to press the matter to a Division. I would say that one would have to vote against the Amendment if it were pressed to a Division, because it would introduce into our system a responsibility which juries would be unable to bear; a difficulty for judges which would make trials far more complex and, as my hon. and learned Friend has said, an additional element of uncertainty in trials which already have quite sufficient of that element. In those circumstances I urge the Committee to reject the Amendment and say that it is prepared to leave this part of the Clause as it stands.

Mr. W. R. Rees-Davies (Isle of Thanet)

I want to follow straight away the point which has been made by the hon. Member for Oldham, West (Mr. Hale). The Amendment standing in my name, which is also being considered now, goes a great deal further than the Amendment which has been moved, and tries to meet the point set out in the speech of the hon. Member for Oldham, West, namely, the question of mercy killing. The Amendment which I invite the Committee to consider is one which I feel will command the respect and, I hope, the support of many hon. Members. In part, it should command the support of those who are in favour of abolition and in part the support of those who favour retention.

This is designedly so, because the Bill is in the nature of a compromise. I should like to point out how the Clause will read if the Amendment is accepted. The liability for the death penalty would then be covered in the following terms: the following murders shall be capital murders"— that is to say, murders in respect of which the death penalty will be retained—

  1. (a) any murder done in the course or furtherance of theft;
  2. (b) any murder by shooting or by causing an explosion; or by administration of poison or of any other noxious matters,"—
with this proviso: provided that the murder shall not be a capital murder if the jury is satisfied having regard to all the circumstances of the case that the accused committed the murder with the dominant motive and in the belief that he was acting from a sense of mercy or with intent to save the person murdered from suffering. One can summarise the position by saying that the types of murder to which I have just referred will be capital murders only when they are deliberate and evil murders; in other cases, the proviso will apply. It will not be a capital murder if the jury is satisfied having regard to all the circumstances of the case that the accused committed the murder with the dominant motive and in the belief that he was acting from a sense of mercy or with intent to save the person murdered from suffering". The latter part of the Amendment follows largely along the lines of a new Clause which has been tabled in the names of the hon. Member for Oldham, West and others. I agree with his argument that it is not right in these days that someone who has put away a mentally deformed child should have to be found guilty of the crime of murder and sentenced to death even if one knows very well that that sentence will not be carried out. I believe the Government would take the view that the proviso should be supported were it not for the difficulties of Parliamentary draftsmanship inherent in giving effect to our desire in this matter.

The difficulty is that of being able to clothe in appropriate language the purpose which I have in mind. I say with all humility that this form of words is by no means the last word in draftsmanship on this subject. I agree with my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) in this matter. I put down the Amendment on the understanding that it would cause the matter to be raised as a question for detailed debate, so that those who are far better qualified than I can bear the spirit of the debate in mind and then try to carry into effect, in appropriate Parliamentary language, what I seek to do.

I am delighted that we now have with us a new Home Secretary, with whom I have had the advantage of discussing matters such as this as long ago as January, 1955, when, together with a number of my hon. Friends and other Conservative lawyers outside the House, we put forward certain proposals to reform the law of murder, all of which, I am happy to say, have already been incorporated in the Bill.

Mr. Percy Wells (Faversham)

People's views change when they become Home Secretaries.

Mr. Rees-Davies

I also notice on the Front Bench the new Joint Under-Secretary of State who, before coming to office, was good enough to support the purpose of the Amendment.

Mr. Wells

Is that how he got there?

Mr. Rees-Davies

I therefore have great pleasure in knowing that the views expressed both by my right hon. and learned Friend the Member for Chertsey and I myself will be sympathetically considered. I am under no illusion about the difficulty of trying to achieve an effective compromise in this matter. With the support of the House, the Government have already been able to go a very long way to reforming the law of murder. Just look at that for a moment. First, in Clause 1, the doctrine of constructive malice; that has been abolished effectively. Then in Clause 2, the doctrine of diminished responsibility; that has been introduced. Clause 3, provocation; that has been amended. So these reforms have been carried out which are directly in line with the compromise which I seek in Clause 5. In considering this Amendment, we must look at the Bill as a whole and see whether we shall have sufficiently reformed the law to secure the balance between abolition and retention without excluding poisoning.

I do not believe that the previous Home Secretary was correct in his interpretation that this Bill should be tested only by the yardstick of public law and order. I have never accepted that. In a speech, which I remember the hon. Member for Rossendale (Mr. Anthony Greenwood), who leads from the Opposition Front Bench in this matter, listened to with some care, I outlined what, in my view, were the ways of achieving reform to meet the needs. I said that we should substantially reduce the number of penalties for death by carrying out reforms, first, in mental responsibility, which is directly relevant here to its sister, which is the mercy killing, and, also, in cases of provocation where people act in the heat of the moment.

It is well known that four-fifths of the murders in this country are cases where mental responsibility is affected. The number of cases of deliberate poisoning is very small. There have been only three during the last seven or ten years. On the other hand, there are a certain number of those who poison or use noxious matters or who shoot or murder by causing an explosion, who do it for the purpose of mercy. They kill an old person dying of cancer—it may be their father or mother or a deformed child, or the victim may be someone in circumstances of a like nature.

We want to achieve the inclusion of all the murders which are truly evil for the death penalty. I do not accept the argument that the deterrent is the true test in regard to the retention or abolition of the death penalty. I believe that the true test is belief in whether the State should take life. That is far deeper than the question of a deterrent; whether the crime is so abhorrent that only the death penalty will suffice. That is the true test of whether or not to retain the death penalty.

Mr. Fell

I am in great difficulty on this point about mercy killing. I do not understand how my hon. Friend defines evil in this context. There are many people who would find it quite impossible to accept the view that mercy killing is evil.

Mr. Rees-Davies

I am obliged to my hon. Friend. I will deal with that point straight away. It is all a question of degree whether a thing is evil or not. I am referring to the case where the degree is accepted by everyone as being evil; whether or not they have, shall we say, particular religious views with regard to suicide or some such circumstance.

The deliberate poisoning for the purpose of gain was stated by the hon. and learned Member for Northampton (Mr. Paget) to be immoral and as one of the cases where redemption was unlikely. I shall turn in a moment to his three points. Therefore, I believe that the poisoner, if he poisons without any bona fide belief that he is doing it in a sense of mercy, or to save the person murdered from pain or suffering, is doing it from some sordid and evil motive of personal gain. If a person is murdered in that way, I believe the murderer should be included among those who suffer the death penalty.

I agree that, generally speaking, one should not discuss cases which are in the country at the present time, but allusions have been made to a particular case that is being heard today. I say only this—

The Deputy-Chairman (Sir Gordon Touche)

Order. The hon. Member should not refer to that case.

Mr. Rees-Davies

There has been wide and general reference in the debate to the principles, and that is why I have not mentioned the name. I will not go further, but it has been elaborated—

The Deputy-Chairman

The case cannot be discussed, because it is sub judice.

Mr. Rees-Davies

May I say this, then, Sir Gordon?

Suppose there is a case of poisoning where a person, to enable himself to accumulate a large amount of money, engages in poisoning a number of people for that motive only. Suppose, after consideration, such a person is found guilty of that crime. Is it really to be said that the public today would tolerate the abolition of the death penalty in those circumstances? I have not the slightest doubt that there would be a public hue and cry throughout the land demanding the death penalty for anyone, were he guilty of the deliberate murder of a number of people, particularly old women or old men, when the public believed that it had been done from a desire for gain.

Therefore, with that in mind, the Government will put themselves in the greatest possible difficulty, and this Bill may well become known as the "poisoners' charter", unless they are able to amend it in such a way that cases of deliberate murder are included where it is felt to be an evil murder.

What are the others? They are the gunmen, the professional armed criminals. Again, there was some observations by the hon. and learned Member for Northampton which drew a distinction between theft and armed robbery. In almost every case any murder done in the course of theft would clearly be one where the person was armed for the purpose of theft; and it would be in the furtherance of robbery that he used arms. Those are particularly evil murders. In the case of causing an explosion or shooting, and where bombs are thrown, they are also particularly evil murders. What would be the position in this country were a bomb thrown at a member of the Royal family, who was killed? Is it suggested for a moment that the public would not demand the death penalty?

Mr. Paget

Whether the offender were sane or insane?

6.15 p.m.

Mr. Rees-Davies

I say that it would be unreal. In the case of any bomb thrown anywhere in this country where the exposion caused deaths, I believe that we should retain the death penalty.

It may well be that we should consider the inclusion of cases where people are kicked to death; cases such as that which occurred in Upper Silesia, before the war, where people were deliberately kicked to death by members of the Gestapo and there was such a public hue and cry that the death penalty had to be resorted to. Those are the cases I have in mind. Poisoning should be included, because the test of public law and order is not quite sufficient as a yardstick to guarantee what the public really want and what they reasonably require.

The test, therefore, is: what is to be the line of demarcation? My answer is that the principle of that line is to devise the degree of cases where we have these deliberate killings which everyone will regard as evil rather than to accept the suggestion that the line is purely one of law and order. I do not think that it would have been necessary to have Clause 5 in the Bill at all. Had we reformed the law of murder as we have done in Clauses 1 to 4, and included Clause 6, we need not have gone as far as Clause 5 goes.

We should remember that under this Clause we are, in fact, abolishing murder as a capital crime and then proceeding to retain it only in these particular instances. Quite frankly, I would rather that it had been retained generally and that the whole matter had been done by a general reform of the law, so as to bring in a smaller group of cases in which the death penalty would have occurred.

Mr. Paget

Is the hon. Member aware of what happened the last time the House of Commons considered poisoning as being, upon the face of it, more evil than other matters? A cook of the Archbishop of Canterbury was suspected of poisoning his master's dishes and Henry VIII was afraid that a royal cook might follow his example. This House thereupon decided that in future all poisoners should be boiled slowly in oil.

Mr. Rees-Davies

I have no doubt that there are many people who might still adhere to that view about poisoners.

Mr. George Chetwynd (Stockton-on-Tees)

Where do we get the oil?

Mr. Rees-Davies

Oil or no oil, let me make one other point. I am not suggesting that we should apply the test of evil. I am merely saying that if we are seeking to exclude poisoners we cannot exclude them, because this is clearly one of those cases which causes a great deal of feeling in the public conscience, and one where, in those circumstances, we feel that the death penalty must be retained.

I conclude by saying that I entirely understand the difficulty of drafting a Clause to exclude mercy killing. I do not believe that any lawyer or any Parliamentary draftsman could be presented with the impossible. It is their task to do the impossible. This House has to lay down laws, and, provided that they give a clear yardstick to the jury, a great deal can be left to the jury themselves.

This particular draft which I have before the House has been, of course, considered by quite a number of members of the Bar of some experience, who maintain that it will be perfectly clear as it stands and that a judge could direct a jury perfectly well on this point. A judge would tell the jury that they must consider all the facts of the case, and that if they were satisfied that the accused committed murder with the dominant motive and in the belief that he was acting from a sense of mercy, or with the intent to save the person murdered from suffering, they would be entitled to find him not guilty of capital murder. On the other hand, if they found that he could not come within that proviso they would find him guilty of capital murder. That would have the advantage of taking away altogether the paraphernalia of the death penalty and enable the jury to decide, as they should, whether the death penalty should or should not take place, having regard to their finding of the circumstances of the case as laid down in the proviso.

Mr. S. Silverman

Does the hon. Member commit himself to the support of the principle that, if a murderer has been found guilty by the jury, the jury should then have a look at all the circumstances, to see whether it is a capital murder or not?

Mr. Rees-Davies

The hon. Gentleman did not listen to me on that point. I said that the jury would have to consider the test on the direction of the judge, and, in considering the direction of the judge, they would bring in a verdict of guilty of capital murder or not guilty of capital murder according to whether they were satisfied that the accused had got within the limits of the proviso as laid down or not.

Mr. Silverman

The hon. Member will remember that there was a unanimous but highly controversial recommendation by the Royal Commission which was designed to deal with the root problem of this whole controversy, that a thing that was technically the same offence was not in reality the same offence at all, and yet we had one rigid penalty for it. After examining every kind of way out of that dilemma, the Commission said, "Let the jury decide having regard to all the circumstances of the case." Does the hon. Member support that principle, or does he apply it to only a limited class of case?

Mr. Rees-Davies

Neither. I am very strongly opposed to the principle that the jury should decide the death penalty or not. I think that it would be wholly wrong for a jury to decide that in principle or at all. Nor will they decide it in this case. They will not even attempt to decide it. They will decide the facts. They will decide whether the accused had the dominant motive and the belief that he was acting from a sense of mercy. If they came to the conclusion that he had that dominant belief, and that he was acting from a sense of mercy, or that he did it to save a person from suffering and pain, and the motive was one of mercy in a broad sense, they would return a verdict of murder, not capital murder, and, in other circumstances, a verdict of capital murder.

This is exactly the substance of what is suggested by the hon. Gentleman who supports me in these matters and who also desires to see that mercy killings are left to the decision of the jury. There is no reason why the jury should not decide what is mercy and whether the person acts with a merciful intent or not. That is the way, in my view, in which this matter should be dealt with.

I hope that the Government will give very careful consideration to the whole of this question of poisoning and mercy killing and consider whether it is possible, in this very difficult Bill, ultimately to arrive at a draft, because I do not believe that hon. Members on this side of the Committee or on the other side have any real desire to try to make this Bill unworkable. There may be a few Members who want to do this but I am sure that, in the main, the Committee wants to arrive at a compromise and not merely to make the Bill unworkable. If there is that genuine and sincere desire on the part of the Committee, I feel sure that those who advise the Government in these matters will be able to advise on what will be an effective formula.

Mr. John Paton (Norwich, North)

I do not propose to follow the hon. Member for the Isle of Thanet (Mr. Rees-Davies) in all the ramifications of his speech. In the part of his argument dealing with mercy murders and the abhorrence with which he views the procedure in our courts with regard to those murders, we, of course, share his feelings and emotions.

I do not believe that there is a single hon. Member of this Committee who would wish to see perpetuated the horrible cruelty of sentencing to death perhaps a distraught woman who is unable to appreciate what the rest of us appreciate, namely, that there is not the slightest desire or intention on the part of anybody that she should, in fact, suffer capital punishment. We are all of us agreed on that, and so far as mercy killings are concerned we all would wish to see the present practice abolished altogether.

The hon. Member couples with his appeal for consideration for mercy killers the Amendment that was moved by the right hon. and learned Member for Chertsey (Sir L. Heald), and because the two things are coupled together in this Amendment it becomes, of course, completely unacceptable to those of us who are opposed to any extension of other categories of killings other than those already in the Bill. To us, this Amendment is completely unacceptable, and I hope that it will prove to be unacceptable to the Committee as a whole.

6.30 p.m.

I want to turn to another matter of very great importance which has emerged in this discussion. That is the issue of certainty in cases of poisoning. I was surprised, when my hon. and learned Friend the Member for Northampton (Mr. Paget) was dealing effectively with this matter, to hear some dissent from hon. Members on the Government side of the Committee, and particularly from the right hon. and learned Member for Chertsey. I support what was said about extreme uncertainty in cases of murder by poisoning, and I would quote another case to add to those which have already been put before the Committee.

The case will be known to every lawyer in this Committee. I shall deal with it as a layman as it presented itself to me, and not from the legal aspect. The case occurred about twenty years ago, and is entitled Rex v. Bryant. Having made a very close study of all the murder cases in this country over a long period, it seemed to me that in this case there emerged in its clearest form all the uncertainty that surrounds cases of murder where the cause of death is poisoning. An almost illiterate woman in the South-West was accused of poisoning her husband by the administration of arsenic. The Crown attached so much importance to the case that the Attorney-General himself, supported by another senior member of the Bar and two junior counsel, undertook the prosecution. For the defence, if my memory serves me aright, there was only one junior counsel.

From the very beginning there was brought against this almost illiterate woman in that court an overwhelming weight of legal reputation and prestige which was bound to influence the minds of the members of the jury strongly when they were called upon to make their decision. The central feature of the case was the difficulty the police had, despite the most careful inquiry over a very wide field and a long period of time, to discover the source from which the woman acquired the arsenic with which her husband was said to have been poisoned.

Eventually, they got evidence that there was supposed to have been a tin of weed killer in the house, and the woman was alleged to have destroyed it by consuming it in the washhouse boiler. A very well-known expert of the highest repute was produced by the prosecution to give evidence that the amount of arsenic contained in the ashes of the coal fire was very much in excess of the normal amount of arsenic found in such fires. There is no doubt that the jury were satisfied on that evidence that the woman had destroyed in that washhouse boiler the tin alleged to have contained the arsenical preparation.

A few days after that decision was reached and the woman had been condemned to death, a report of the case was seen by a man who was then the greatest authority in the country on the chemical elements in the ashes of a coal fire as the result of combustion. He was Professor William Bone. He wrote a letter to The Times, and he wrote also to counsel for the defence. He tried in every way possible to him to inform public opinion that the evidence given by the Crown expert as to the arsenical content of the fire showed that, in fact, there was rather less arsenic present than it was normal to find in the ashes of a coal fire. It was obvious from what the professor said that the Crown expert had been wrong in the conclusion he had drawn.

The Temporary Chairman (Sir Norman Hulbert)

The hon. Member is going rather far from the Amendment. He should not go into too much detail of the case to which he is referring.

Mr. Paton

The issue of certainty in cases of poisoning is one of the central things that we must discuss in the Committee. Surely I am entitled to cite another example to add to those already given by other hon. Members, without challenge from the Chair. A quite overwhelming weight of testimony has been produced in this matter, and I must ask to be allowed to conclude the argument I am presenting.

The conclusion was that not only was it true that the fire contained a little less than the average amount of arsenic customarily found in such fires, but that it was impossible that any tin containing an arsenical mixture could possibly have been burnt in that fire. The central point of the prosecution's case was shown by Professor Bone to be without foundation.

The point which ought to concern us here is that a man produced by the prosecution as of the highest repute and authority, as a Crown expert witness usually is, was shown to have been wrong in the conclusions given in his evidence. Yet everyone must be aware that that evidence was probably decisive in bringing the jury to a verdict of "Guilty". On that verdict the woman was allowed to be hanged. Sir John Simon, who was then the Home Secretary, said in the House of Commons that there was sufficient other evidence to justify the verdict and the punishment. The Lords of Appeal said that they could not consider the evidence from the scientific gentleman. As the result of these quite extraordinary proceedings that woman was allowed to be hanged.

I have cited this case to add to the testimony already given by my hon. and learned Friend the Member for Northampton and the hon. and learned Member for Bolton, East (Mr. Philip Bell) to show that the issue of uncertainty where poisoning is the instrument is among the gravest that we can consider.

Let me turn to the arguments adduced by the right hon. and learned Member for Chertsey in introducing his Amendment. It was significant that his main argument was an appeal to the emotions. He said that his case more or less rested on the prospect of an old lady being slowly done to death over many months by repeated doses of arsenic and finally perishing in indescribable agony. That is the sort of appeal with which the debate on capital punishment has been surrounded for many years. Let me point out to the right hon. and learned Gentleman that there are as wide differences in the effects of poisons as there are in other kinds of murder, whatever instrument is used.

There are, as we well know, poisons which, so far from producing agonies or cruel circumstances, by their nature are very humane in the death they administer. It seems preposterous to try to apply an argument of this kind and to ask the Committee to accept what the Royal Commission so definitely rejected—an attempt to grade murder according to the degree of heinousness connected with the crime. It cannot be done. Even in this illogical Bill it cannot be done.

This is a Bill which, as the right hon. and learned Member for Chertsey knows, affronts logic in every way, because it makes certain exceptions of kinds of murder which shall be capital crimes whereas the generality of murders are not to be capital crimes. If someone clubs an old lady to death with a club under circumstances of indescribable brutality, he will not be charged with murder as a capital crime, but if he shoots an old lady and instantaneously kills her with a bullet he will be guilty of a capital crime. It is no good trying to argue that on any logical ground.

I suggest to the right hon. and learned Member that he wants to add another illogicality to the illogicalities already in the Bill. I suggest to the Committee that the sensible thing to do is to accept the judgment of the Royal Commission. I would ask the Committee to apply that conclusion, not only to these Amendments, but to the Bill itself, because the Royal Commission showed how completely impossible it is in any rational way to apply the grading system and to solve the most difficult problems of definition which inevitably attend it. I hope that the Committee will quite overwhelmingly defeat this Amendment and subsequent Amendments of a similar kind.

Mr. Peter Rawlinson (Epsom)

I find myself not attracted by either of these Amendments. As I understood the purpose of the discussion, it is to persuade us that the words appearing on the Notice Paper should be inserted in the Bill. For reasons which are not the same as some which hon. Members opposite have advanced, I am unable to support that suggestion. I do not think that the words: or by the administration of poison or of any other noxious matter are satisfactory. They would give rise to great difficulties in the courts. I do not believe that they could be properly administered. An impossible task would be presented to judge and jury in interpreting those words.

With reference to the second of the two Amendments, I think it would be a great error if, in any way, the law were allowed to give a charter not to poisoners, but to mercy killers. I have always been upset emotionally by the form of the death penalty which has to be pronounced, but which everyone knows will not be carried out. That, however, will be altered by this Bill. It would be very wrong for this Committee to include any words which could give any attraction or encouragement to mercy killing.

Apart from the moral ground, I also think the words which it is suggested should be included are not words which can be properly interpreted by a court of law. The words "suffering" and "dominant motive" do not appeal to me as having that certainty and clarity which is wanted in the criminal law. I am not so certain as hon. Members opposite about the lack of certainty which they say exists in the administration of English criminal law.

6.45 p.m.

The hon. and learned Member for Northampton (Mr. Paget) spoke about the practice in the United States of America. Delay does not of necessity make one more certain. I would warn the Committee that, unless hon. Members have been quoting—as they may have been—from the shorthand notes of cases on trial, their examples cannot be reliable. I say with respect to hon. Members that in the newspaper reports, and sometimes in the published reports of cases, not all the evidence is given—not, indeed, all the relevant evidence. Although I appreciate the arguments in the examples which have been given to us, I think it would be dangerous to rely on them in that isolated form. Reference was made to Professor Webster, who was cited as a great authority who had always given evidence for the Crown, but in one case was called for the defence and his evidence rejected on that occasion. I wonder what would have been said if all the persons in the cases in which he gave evidence for the Crown had been acquitted.

Mr. S. Silverman

I know that my hon. and learned Friend the Member for Northampton (Mr. Paget) hardly needs assistance from me, but in justice to the argument I suggest that the hon. Member for Epsom (Mr. Rawlinson) has missed the point entirely. My hon. and learned Friend was saying that here was a man upon whose evidence the Crown had repeatedly relied to secure a conviction and to execute the accused after obtaining it. The view was taken that when the very same expert gave evidence for the defence—which, if believed, would have established the innocence of the accused—it should not be regarded even as raising a doubt about the validity of the conviction.

Mr. Rawlinson

With respect, I did not misunderstand what the hon. and learned Member was saying. A witness is called for the Crown as a witness and as an expert to give his evidence. If his evidence is acceptable to the jury and that plays any part in the conviction of the accused, that is perfectly proper and perfectly reasonable. It may be, however, that his evidence is rejected. It makes the witness no less an expert because his evidence is rejected. When his evidence is given for the Crown and rejected or accepted it carries no more weight than when his evidence is given for the defence and is accepted or rejected.

Mr. Paget

All I was saying was that in poison cases one often has inexpert juries to judge between experts and there must be an element of uncertainty in their judgment. I was putting it no higher than that.

Mr. Rawlinson

I do not want to delay the Committee, as I know that it is getting near the time for this discussion to be wound up. It is not only on the expert evidence that juries have to decide, as the hon. and learned Member for Northampton will know. That is only a part of the evidence. It may be an important part, but it is only a part. No proper prosecution would demand any form of conviction if that were the sole evidence. Because I am not attracted by the forms of these Amendments, quite apart from the moral question of mercy killing, I would advise the Committee not to accept the Amendments.

Mr. Paget

Surely the question whether the person died of poisoning is always and essentially a necessary question. That is always a question which can only be answered by the expert. That vital question has to be decided between experts.

Mr. Rawlinson

I accept that, but, of course, it is not the only evidence on which a person is convicted.

Mr. Anthony Greenwood (Rossendale)

I wish to oppose the Amendment on grounds rather different from those put forward by the hon. Member for Epsom (Mr. Rawlinson). Before I do so, however, there are two small courtesies I should like to perform.

First, I wish to say how sorry we are that Major Lloyd-George is no longer with us. He has been so long a part of what we might call the "homicide scene" that it is a matter for regret to some of us that he has himself fallen a victim to the "executioner's axe". Those of us with some sense of history and tradition will regret the fact that, for the first time in over half a century, the House is without a Lloyd George. At the same time, we on this side of the Committee propose to remedy that very shortly in the Carmarthen constituency.

Having said that, I should like also to extend a welcome to the new Home Secretary and to his Joint Under-Secretaries. We have some feeling of apprehension about the right hon. Gentleman, because we are afraid that he will be overburdened with the number of offices which he holds. He is not only Lord Privy Seal and Leader of the House of Commons, but, as we know from Question Time today, the right hon. Gentleman speaks for the Prime Minister, and he is also Home Secretary.

We would like to urge the right hon. Gentleman very sincerely indeed to look after himself. We are afraid that too many all-night sittings might impose a great strain upon him. We are ready to do everything we can to help, and to go home at 10 o'clock every night, or even to defer the Bill until the right hon. Gentleman has more time at his disposal. I know that the right hon. Gentleman wants the Bill to become a good Act, and that he will not stint the Committee for time in giving consideration to it.

We are optimistic, however, that the advent of a new Home Secretary will mean that a greater air of liberalism will prevail in the Government's handling of this subject. When we debated capital punishment in February, 1956, Major Lloyd George stressed that, as the Government regarded this as a matter of conscience, it should be a matter for a free vote, and the right hon. Gentleman opposite, in winding up the debate for the Government, said: When we have a free vote, we naturally expect to base our actions, if perhaps after necessary further deliberation, on the decision of the House."—[OFFICIAL REPORT, 16th February, 1956; Vol. 548, c. 2635.] Conscience has not changed materially since February of last year, and I hope that the right hon. Gentleman, on contentious matters of this kind, which are matters of conscience, will allow a free vote to his side of the Committee. We certainly still persist in our view that this is a matter of conscience which should rightly be left to a free vote. Therefore, all I can now do is to express my own point of view upon the Amendment.

I am against hanging for all offences, and, therefore, I do not like this Clause, because it will retain hanging for a number of offences; but I am still more against the Amendment of the right hon. and learned Gentleman the Member for Chertsey (Sir L. Heald), because if it were accepted, and became part of the Bill, it would increase the number of offences for which hanging is regarded as the appropriate punishment. That is the first ground on which I personally shall feel bound to vote against this Amendment, if it is forced to a Division.

My second ground is one which is based on the Government's own declared purpose—the purpose to which the hon. Member for the Isle of Thanet (Mr. Rees-Davies) referred—the purpose of retaining hanging for offences which are against public order. Because I base my objection to the Amendment upon the Government's own arguments, I hope that the Home Secretary will get off to a good start by advising the Committee to resist this Amendment. I know that we get into difficulties over issues of this kind, and I thought that a number of speakers from the benches opposite did not really appreciate the test which the Government had laid down—the test of offences against public order.

It is not the test of heinousness, or the test of the degree of premeditation, as the noble Lady the hon. Member for Hemel Hempstead (Viscountees Davidson) seemed to think. It is solely a question of retaining hanging for offences which are against the Queen's peace.

We have told the Government over and over again that in trying to achieve this compromise they are flying in the face of all experience, as my hon. Friend the Member for Norwich, North (Mr. J. Paton) reminded us a few minutes ago.

Sir L. Heald

Is the hon. Gentleman not aware that in every murder indictment there appear the words "against the Queen's peace"? Is he not a little off the rails there?

Mr. Greenwood

I have no doubt about that, but it is quite clear that the former Home Secretary was using the words in rather a different sense. If the right hon. and learned Gentleman wants to persist in that, then hanging must be retained for all offences against the Queen's peace. There was, apparently, a strange distinction in the mind of the former Home Secretary, which, I thought, was still the guiding principle in the Bill before us. Whether it is so or not, I think it is true to say that once we try to get degrees of murder of this kind, and if we try to achieve the line of demarcation to which the right hon. and learned Member for Chertsey referred, we produce the most absurd illogicalities of the kind which he himself is trying to introduce into the Bill this evening. This is an example of the kind of mess which we create once we compromise upon matters of this kind.

There are two forms of killing which I find peculiarly repulsive. There is the murder committed by the man who kills a child in the course of rape, and there is the murder committed by a man or woman who, deliberately and slowly, poisons his or her spouse. At present, under the Bill as it is, both these murderers get the life sentence, whereas the man who kills in the course of theft is to be hanged.

That is a position—and I have some sympathy with hon. Gentlemen opposite who have voiced this—which the Government will find it very difficult to withstand, but where hon. Gentlemen opposite fail to grasp the point is that this is a position which is absolutely inevitable if we try to achieve a compromise of the kind which the Government are trying to achieve here. I do not think that we can avoid inconsistencies and illogicalities if we try to arrive at some line of demarcation, or if we compromise in any way upon this issue.

I hope that the Government will realise that there will be a great deal of resentment at the fact that they should be keeping hanging for somebody who shoots the Prime Minister but not for somebody who poisons his wife or who rapes a little girl and then kills her; but that is the Government's headache and not ours. I only mention it because it is an example of what happens when a Government starts compromising on issues of this kind. That is what happened to the Labour Government, when they compromised upon this issue in 1948.

If we accept this Amendment today, I think we shall go a long way towards producing almost exactly that same hotch-potch to which Her Majesty's judges and another place were so absolutely opposed in 1948. It is very doubtful whether another place, with the advice of Her Majesty's judges and the very distinguished lawyers there, will feel able to accept the Bill as drafted by the Government; but if we accept the Amendment of the right hon. and learned Gentleman I think we make it virtually certain that another place will reject the Bill when it arrives there.

Therefore, because I think that, although this is a Bill which is difficult to defend, it will be much more difficult to defend if we insert the Amendment which the right hon. and learned Member for Chertsey has brought forward. I hope that, on this his first appearance in his new incarnation, the right hon. Gentleman will advise the Committee to reject the Amendment. Whether he advises the Committee to do that or not, I shall feel bound to go into the Lobby against it. I regret that the right hon. and learned Gentleman the Member for Chertsey has brought the Amendment forward.

7.0 p.m.

The Secretary of State for the Home Department and Lord Privy Seal (Mr. R. A. Butler)

This is a very difficult Amendment upon which to make one's first speech as Home Secretary, and I should like to thank hon. Members for the remarks which they have made about the new team which is responsible for these important matters. I should also like to say how much I pay tribute to my predecessor. There was not better House of Commons man, and it would be very difficult, I think, to find a better Home Secretary. If I can carry on some of the traditions which he brought to his office I shall be only too proud to do so.

My right hon. and learned Friend the Member for Chertsey (Sir L. Heald) asked me whether this matter could not be left to the Report stage. I think that we had better start as we mean to go on, that the matter should be decided now. I do not think that I should leave any question of ambiguity about this subject; and if that should be the keynote of our approach to this Bill and to the genera] problems which face the Home Office it might be a very good thing to say so at the start.

That does not mean that this problem is not extremely difficult. When formulating this Bill we considered the question of poisoning, and as the hon. Gentleman the Member for Rossendale (Mr. Anthony Greenwood) has said, I myself had a certain amount to do with the debate on this broad question when it took place a year ago; and, of course, I had a certain amount to do, in my previous and present incarnation as Lord Privy Seal, in framing Government legislation.

We recognised then, as we do now, that some feel that if there is to be capital punishment the poisoner is pre-eminently the type of murderer for whom capital punishment should be retained, but I think it wise, at this stage of our discussion, to remember that the Bill was not drafted necessarily to take into its scope the types of murder which strike people as being particularly heinous. That is because we do not believe that a line can be drawn, by Statute, between the more heinous and the less heinous.

That is really the answer to the hon. Gentleman's interjection about the happenings of 1948—a matter to which I referred when I spoke on the subject a year ago. The difficulties of the Administration in 1948 were due, as is partly brought out in the Royal Commissions Report, and as is also noticed by all students of the matter, to the difficulty of defining degrees of murder, and we do not propose in this Bill to go further than we have so far succeeded in going in the drafting of the Clauses now before the Committee.

May I say, very shortly, why we have restricted the Bill to certain types of murder? The Bill has been restricted to certain types of murder, and our decision springs from the conviction that, while the retention of capital punishment is essential if we are to maintain the peace, its scope should be restricted to those types of murder which strike most clearly at law and order. Therefore, I repeat, the Clauses do not attempt to distinguish degrees of murder according to their heinousness or dreadfulness.

The Clauses are based on the different principle of reducing the scope of capital punishment to the minimum necessary for that preservation of law and order, and confining it to those forms of murder for which it is not only a particularly necessary, but is also believed to be a particularly effective, deterrent. If we recognise that, we can all listen to the very sincere contributions that have been made, but can realise that there is some purpose behind the Bill, and that, when it becomes law, as I believe it will, we shall know that, while it has its limitations, its definition is, at any rate, clear.

Now, about poisoning. The hon. Member for Oldham, West (Mr. Hale) made a particularly moving speech on the subject of poisoning, laced with his usual humour. It certainly moved more people into the Chamber than it moved out, which is one of the characteristics of the hon. Member that, alas, most of us do not share. As he rightly said, the commonest type of poisoner is, as he described it, the poor, harrassed woman who, perhaps from mental instability or domestic unhappiness, because circumstances have become too much for her, tries to gas herself and her children, and, perhaps, succeeds in killing only the children. Some people, when they think of poisoners, forget that type of case and think only of a Seddon or a Mrs. Merrifield—and I would say, in answer to the hon. and learned Gentleman the Member for Northampton (Mr. Paget), that I do not propose to go into that case again.

My right hon. and learned Friend the Member for Chertsey said that it would be wrong to mention numbers. I shall not go into his other arguments, on which he said that I must not waste time. He said that it would be wrong to mention numbers, but I think that it is legitimate to get this into perspective, and I will, therefore, greatly daring, mention some of the cases that have arisen.

Since the beginning of 1951, an indictment of murder has been preferred in 42 cases of poisoning. In 23 of those 42 cases a parent, usually the mother, killed children in pathetic circumstances such as the hon. Member for Oldham, West described; cases of the kind to which I also have referred. A further 3 of those 42 cases—that is, in addition to the 23—could be described as mercy murders—and I shall, in a moment, answer the argument advanced on that. In only 10 of the 42 cases was sentence of death passed, and only one of those sentenced to death, namely, the person referred to by the hon. and learned Member for Northampton, was executed.

If we sum up the position, we find that only five people have been executed for poisoning in the last thirty years. Therefore, there is a consideration, which I do not say should be the final one but which is a consideration, which prompts the Government not to accept the Amendment, namely, that they should avoid putting persons on a capital charge who will, from experience, clearly not be executed.

I will take the advice of my right hon. and learned Friend—it is often very advisable for the Government to take it—and will not go into some of the other arguments which he asked me not to traverse on this occasion. That being so, I will pass for the moment to the Amendment spoken to by my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies), and I should like to thank him, first, for his gracious remarks about the team which, at the Home Office, is now assisting the Law Officers on this Bill.

It is suggested that this objection which I have made—that making poisoning a capital murder involves putting on a capital charge people who will afterwards not be executed—could be overcome by making an exception for mercy killers. That is the object of the hon. Gentleman's Amendment. However, on examination we find—and this was, I think, brought out by my hon. Friend the Member for Epsom (Mr. Rawlinson)—that such an exception would not overcome the difficulty. As the figures which I have quoted earlier show, out of 42 indictments only 3 related to cases which could be described as mercy killing, and 23 cases were killings in pathetic circumstances of a different kind. Moreover, to make an exception for mercy murder creates considerable difficulties by itself, as, I am sure, those who have wrestled with the problem of drafting an Amendment on this point have found.

To make an exception for mercy murder involves making the question of whether a capital offence has been committed turn on the motive of the killer. While I may not, at present, have great experience in my present post, I do know a good deal about legislation, and I know that both English and Scottish law have always avoided and eschewed definitions in terms of motive which it is extremely difficult for a jury to assess. That is, I think, a capital point which should be remembered.

Mr. Paget

How does the right hon. Gentleman distinguish between motive and intention? Intention is always part of the law of murder. Where does the distinction come in? I do not quite understand it.

Mr. Butler

I am coming to the point about dominance which is included in the second Amendment in a moment, and I will try to help the hon. and learned Member for Northampton. May I pursue my argument until I reach that?

In paragraph 179 of its Report, the Royal Commission quoted, for example, the difficulty of deciding whether a daughter had killed her invalid father from compassion, from a desire for material gain, from a natural desire to bring to an end a trying period of her life, or from a combination of motives.

In the light of that advice and the experience which we have, I have studied the Amendments which have been put down. They show the very great difficulties involved in drafting an Amendment or Amendments to except mercy killing. If I say that I think that these efforts have not been successful it is not because I believe that my hon. and learned Friends are incompetent in drafting, but because I do not think that it is possible to overcome the difficulties satisfactorily.

I come now to the point made by the hon. and learned Member for Northampton. The term "dominant motive" has been suggested, and it is used in the Amendment on the Notice Paper. Although the word "dominant" may be helpful in some contexts, I doubt whether it really helps very much. Where there may be several strong motives—and I refer back to the example given by the Royal Commission—how is the jury to decide which is dominant? A further difficulty arises when one considers what is to be the nature of the suffering which is to reduce the killing from capital to non-capital murder.

One leaves the question of motive, one leaves the question of dominant motive, and one comes to the question of degree of suffering. Can one simply say "suffering"? Looking at this matter humanly, all of us are liable to suffering of one kind or another as we grow older. I do not think that any public opinion would tolerate an attempt to define as mercy killing acts done from motives of the purest mercy, designed to bring a sufferer's life to an end because he or she suffers an affliction which is often the lot of the elderly.

Once one starts to qualify suffering, leaving aside all problems of definition, one finds oneself in further difficulty. How much did the victim suffer? Here again, quite humanly, I would say that the threshhold of pain varies with different people, and nothing is more difficult to assess than other people's pain.

The Government have looked both at the main issue in relation to the concept upon which the Bill was founded and drafted and at the very human and, in fact, sometimes ingenious devices by which it is hoped to move an Amendment to except mercy killing. We have looked at the problem of poisoning from both these angles. I say quite simply and clearly that we have come to the conclusion that we must omit poisoning from the list of capital categories altogether. This is the advice which I am obliged to give to the Committee and which I ask it to accept.

In conclusion, I should like to say that we have been working on this Amendment now for nearly three hours. We have a great deal of work to do in this Bill and we want to conduct our business in as reasonable and human an atmosphere as we can. I would appeal to hon. Members to come on to some of the many other Amendments we now have to face, because we not only have this Bill but we have also a very full Parliamentary Session, with many requests from the Opposition for extra days to fit in. If we do our work sensibly, I think we can fulfil it. I therefore suggest that we bring this matter to a conclusion and pass to the other Amendments on the Notice Paper.

7.15 p.m.

Mr. M. Philips Price (Gloucestershire, West)

As one of those on this side who support the Bill, I should like to ask the indulgence of the Committee for a very few minutes so that I may give my views upon this Amendment.

On the face of it, it seemed to me at first to be an Amendment which I should wish to support, because the question of moral heinousness cannot be altogether outside one's judgment in considering matters of this kind. There is, however, another consideration here which acts upon my judgment, namely, that I want to see the Bill passed. I know that there are difficulties on the Government side, and a compromise has, I believed, been reached along the lines indicated in the speech of the Home Secretary just now. If that is so, as I think it must be, I would not like to see any Amendment introduced into the Bill which would make its working difficult or would cause difficulties on the Government side in getting the Bill through the House.

I, like the right hon. and learned Member for Chertsey (Sir L. Heald) and the hon. Member for the Isle of Thanet (Mr. Rees-Davies), want to see reform in the law of murder, but at the same time I feel that there are certain crimes for which the death penalty must be retained. Although I realise that there is much to be said for including the poisoner, the moral turpitude in certain cases, coming within the category of poison murder being such that one's natural feeling is to include them, there are, on the other hand, as the Home Secretary has shown us, so many borderline cases and other cases which certainly cannot be included that I feel that it is much better to leave it alone.

One must draw the line somewhere, and it is better to draw the line at the preservation of law and order. I am satisfied that there would be dangers in withdrawing the death penalty from the "gangster" type of case, when a man is prepared to shoot his way out, perhaps shooting police officers in the process. Such cases are in a quite separate category which tends towards the disruption of society; they are of a type which we might find developing here as they developed in the United States of America—the Chicago gangster type. We see them now in Cyprus, under Colonel Grivas, where for political reasons murders by explosives and guns are organised.

Such murders as those stand in a separate and definite category. I feel that the Government are absolutely right to stand firm upon that. Much as I would like to include others for reasons of moral turpitude, I think we must stick to things as they stand and ensure that we get this Bill, because that is the really important point. The maintenance of an ordered society is the main purpose of the Bill, and I hope it will be attained.

Sir L. Heald

When I moved the Amendment, I made it quite clear that it was drafted in a form such as would enable us to have a chance on the fundamental question of principle. I made it quite clear also that there were questions as to whether the wording of it should be as it stands in my name or whether other matters, such as that which my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) raised, should be brought into account.

I certainly should not be prepared to advise my hon. Friends to carry this matter to a Division. I said that in my view it is the responsibility of the Government to decide a matter of this kind. My right hon. Friend has told us of the Government's view. I am a loyal supporter of the Government in a matter of this kind and, certainly in view of the fact that the form of my Amendment is not by any means that which could go into the Bill, I think that the right course for me to take—and I know that my hon. Friends agree with me—is to ask leave to withdraw my Amendment.

Mr. S. Silverman

The Home Secretary, in a temperate and extremely lucid speech of the kind that the Committee always expects from him, made an appeal to the Committee, now that we have been dealing with this proposed Amendment for three hours, to bring the discussion to an end and to proceed to other matters. I am bound to say that it seems to me that this is rather cool. The whole of the Bill and all the Parliamentary time devoted to it is a complete waste of Parliament's time. The Bill was entirely unnecessary. It raises issues—

The Temporary Chairman (Sir Norman Hulbert)

The hon. Member must keep to the Amendment.

Mr. Silverman

I am afraid I do not quite follow what it is suggested I am doing wrong. The right hon. Gentleman invited us not to continue the discussion of the Amendment, for reasons which he gave. I cannot myself advise the Committee to accede to that request, because I consider that the right hon. Gentleman's reasons are bad reasons. I want to examine his reasons and rebut them, and I want to offer reasons on my own account why the Committee would be well advised to continue the discussion of the Amendment for some time, because it throws very great light on a great many of the matters with which we are concerned and with which, with respect, I think it is not in any way out of order or a transgression of any kind to say to the right hon. Gentleman that, if his object is to save Parliamentary time, the proper and legitimate way to do it is to withdraw his Bill. There are very good reasons for saying so.

We already know the opinion of the House of Commons on the Amendment with which we are now dealing. This is not the first time that the House of Commons has debated it. It is not even the first time that this very House of Commons has debated it. We had a long Committee stage on the Death Penalty (Abolition) Bill. This very Amendment, or something very like it, was then moved. We had a long debate on it at that time.

Sir Hugh Lucas-Tooth (Hendon, South)

There was no discussion of the question of poisoning.

Mr. Silverman

I do not have records in front of me, but we had debate after debate on this question, which is repeatedly being debated on the Amendment: namely, ought abolition to be absolute? If not, ought there to be exceptions? If there ought to be exceptions, what are the principles on which there ought to be exceptions, and what are the particular exceptions to be made?

I do not think that the hon. Baronet intended to convey to the Committee that throughout that series of debates and discussions the question of poisoning was never mentioned. It was mentioned repeatedly, and by the hon. Baronet himself. We know what the House of Commons decided. After considering the matter in principle and after considering a large number of detailed Amendments designed to give effect to the principle that there ought to be some exceptions to the general principle of abolishing the death penalty, it decided on every occasion except one, in Committee, that it would stand by the principle of complete abolition; and the House of Commons, at the Report stage, removed the one solitary exception that had been made in Committee.

Why are we discussing the matter again now? The right hon. Gentleman knows what the House of Commons thinks and he knows what it thinks in a fashion more authoritative than any discussion he could get tonight on the Amendment or on anything that will be moved throughout the rest of the Bill. Member after Member behind him will, throughout this whole series of proposed Amendments, vote against his better judgment, against his declared judgment—

The Temporary Chairman

I must ask the hon. Member to confine himself to the Amendment which is before the Committee and not to the whole series of Amendments.

Mr. Silverman

That is precisely what I am doing. I am saying that the right hon. Gentleman already knows the opinion of the House about this Amendment—about any Amendment—and I am reminding him of the circumstances in which he got that advice. He asked for it himself. He said, in effect, "Do not pay attention to any group loyalties of any kind. Never mind the party alignments. Never mind the Whips. Look at the matter according to your own conscientious judgment and vote Aye or No according to what you really believe." All that the right hon. Gentleman is inviting the House of Commons to do throughout this Bill is to cast a vote under the pressure of organised Whips, through the party system, in order to get a decision in defiance of what he knows the conscientious judgment of the House to be. In those circumstances, to say that those of us who desire to examine each one of the Amendments as put forward, and see what is in them or what there may not be in them, can be accused of wasting the time of the Committee really seems to be a little much.

The right hon. Gentleman finds himself in controversial difficulty about this, but it is a difficulty of his own making, as I have been trying to point out. It is all very well to say, "Oh, but what we want to do is to introduce a differentiation directed to those murders which are most offensive to law and order", but why? Suppose that the right hon. Gentleman succeeds in defining one or two categories of murder which, in some mystic sense as yet undefined, are of greater offence to the Queen's peace than other forms of murder, and so, he says, having defined those, let us apply the death penalty to those, although we remove it from a great many crimes whose moral turpitude is greater. Why does he want to do it? What is the purpose?

Behind the proposal must inevitably be the belief that the death penalty is in a unique sense a greater deterrent, either for murdr generally or for that particular type of murder, than any other murder which society has it in its power to inflict. If the right hon. Gentleman believes that, he ought not to be abolishing the death penalty at all. It really is the greatest nonsense in the world to say that the death penalty is an effective deterrent in the case of a man discovered by a policeman in the course of a crime and shooting his way out than it is in a wide variety of other cases.

7.30 p.m.

Of course it is not. The right hon. Gentleman is in the difficulty that has always bedevilled the controversy, namely, the impossibility of so categorising murders that one can say with any show of plausibility that the death penalty is a more effective deterrent in some of them than in others. That is an adventure which cannot be successfully achieved. If one departs from that and says that what counts is not the greater deterrent effect but the greater moral turpitude of the crime, the right hon. Gentleman is giving a completely persuasive and overwhelming answer.

The right hon. Gentleman will have to learn a great deal of patience between now and the final stages of the Bill. He knows as well as I do what the truth is. He knows that there is no halfway house at all in this matter. No right hon. or hon. Member in the House has a clearer conception of that proposition than the right hon. Gentleman. He knows that the whole business of trying to make distinctions is hopelessly unreal and unjust.

Why does he, in these circumstances, go on inviting the House to do things which, in his own judgment and in his own heart, he knows to be wrong and completely and utterly ineffective? He talked about numbers. He traversed the argument of the right hon. and learned Member for Chertsey who said that it is unimportant to consider how many cases are affected. The right hon. Gentleman said it was important to consider that. If it is important to consider that on this matter, it is important to consider it wherever it occurs.

The Government's position is really the reductio ad absurdurm of the retentionist case. The retentionist case must rest, if it rests on anything solid at all, on the deterrent effect of the penalty. Over the past fifty or sixty years we have been executing an average of twelve persons a year. The former Home Secretary's estimate of the effect of this Bill if enacted unaltered, unmodified and unimpaired was that that number would be reduced by 75–80 per cent. If numbers are relevant, this means that, if the Government have their way, we shall be executing not twelve but two or two and a half murderers a year on average. If that is not a demonstration of the absurdity of the argument that only the death penalty preserves us from unlimited murders, then I am afraid that a great many of us were taught Euclid at school in vain.

It is nonsense to say that we of all the civilised countries in the Western world, or nearly all of them, will not be able to preserve law and order, though all other countries can, unless we continue to execute two unhappy men and

women every year from now on. The right hon. Gentleman would never commit himself to such an argument. Yet that is the inevitable implication of what he is asking the House of Commons to do.

Let us make an end of it. We have a new Home Secretary. We have new Joint Under-Secretaries of State. We have a new Prime Minister. We have not yet got a new House of Commons, but, without waiting for the new House of Commons, let the new brooms sweep clean, and let the first thing they sweep away be this intolerable, mischievous, unrealistic and fundamentally dishonest Bill.

The Parliamentary Secretary to the Treasury (Mr. Edward Heath) rose in his place and claimed to move, That the Question be now put.

Question put, That the Question be now put:—

The Committee divided: Ayes 214, Noes 180.

Division No. 34.] AYES [7.35 p.m.
Agnew, Sir Peter Crowder, Petre (Ruislip—Northwood) Holland-Martin, C. J.
Aitken, W. T. Currie, G. B. H. Hope, Lord John
Alport, C. J. M. Dance, J. C. G. Hornby, R. P.
Amery, Julian (Preston, N.) D'Avigdor-Goldsmid, Sir Henry Hornsby-Smith, Miss M. P.
Amory, Rt. Hn. Heathcoat (Tiverton) Deedes, W. F. Hughes, Hallett, Vice-Admiral J.
Anstruther-Gray, Major Sir William Donaldson, Cmdr. C. E. McA. Hughes-Young, M. H. C.
Arbuthnot, John du Cann, E. D. L. Hurd, A. R.
Armstrong, C. W. Eccles, Rt. Hon. Sir David Hylton-Foster, Rt. Hon. Sir Harry
Ashton, H. Eden, J. B. (Bournemouth, west) Iremonger, T. L.
Baldwin, A. E. Emmet, Hon. Mrs. Evelyn Irvine, Bryant Godman (Rye)
Barber, Anthony Errington, Sir Eric Jenkins, Robert (Dulwich)
Barlow, Sir John Farey-Jones, F. W. Jennings, J. C. (Burton)
Barter, John Fell, A. Jennings, Sir Roland (Hallam)
Beamish, Maj. Tufton Finlay, Graeme Johnson, Dr. Donald (Carlisle)
Bell, Philip (Bolton, E.) Fisher, Nigel Johnson, Eric (Blackley)
Bennett, Dr. Reginald Fletcher-Cooke, C. Joseph, Sir Keith
Bevins, J. R. (Toxteth) Foster, John Joynson-Hicks, Hon. Sir Lancelot
Bidgood, J. C. Fraser, Sir Ian (M'cmbe & Lonsdale) Keegan, D.
Biggs-Davison, J. A. Galbraith, Hon. T. G. D. Kerby, Capt. H. B.
Birch, Rt. Hon. Nigel Garner-Evans, E. H. Kerr, H. W.
Bishop, F. P. George, J. C. (Pollok) Kimball, M.
Body, R. F. Gibson-Watt, D. Kirk, P. M.
Boothby, Sir Robert Glover, D. Lagden, G. W.
Bossom, Sir Alfred Godber, J. B. Lambert, Hon. G.
Boyd-Carpenter, Rt. Hon. J. A. Gomme-Duncan, Col. Sir Alan Lambton, Viscount
Boyle, Sir Edward Gower, H. R. Leavey, J. A.
Brooke, Rt. Hon. Henry Graham, Sir Fergus Legge-Bourke, Maj. E. A. H.
Brooman-White, R. C. Grant, W. (Woodside) Legh, Hon. Peter (Petersfield)
Browne, J. Nixon (Craigton) Grant-Ferris, Wg Cdr. R. (Nantwich) Lindsay, Hon. James (Devon, N.)
Bryan, P. Green, A. Linstead, Sir H. N.
Bullus, Wing Commander E. E. Gresham Cooke, R. Lloyd, Rt. Hon. Selwyn (Wirral)
Burden, F. F. A. Grimston, Hon. John (St. Albans) Longden, Gilbert
Butcher, Sir Herbert Grosvenor, Lt.-Col. R. G. Low, Rt. Hon. A. R. W.
Butler, Rt. Hn. R. A. (Saffron Walden) Gurden, Harold Lucas, Sir Jocelyn (Portsmouth, S.)
Carr, Robert Hall, John (Wycombe) Lucas, P. B. (Brentford & Chiswick)
Channon, Sir Henry Harris, Frederic (Croydon, N. W.) Lucas-Tooth, Sir Hugh
Chichester-Clark, R. Harvey, Air Cdre. A. V. (Macclesfd) McAdden, S. J.
Clarke, Brig. Terence (Portsmth, W.) Heald, Rt. Hon. Sir Lionel Macdonald, Sir Peter
Cooper-Key, E. M. Heath, Rt. Hon. E. R. G. McKibbin, A. J.
Cordeaux, Lt.-Col. J. K. Hesketh, R. F. Mackie, J. H. (Galloway)
Corfield, Capt. F. V. Hill Mrs. E. (Wythenshawe) McLaughlin, Mrs. P.
Craddock, Beresford (Spelthorne) Hill, John (S. Norfolk) Maclay, Rt. Hon. John
Crowder, Sir John (Finchley) Hirst, Geoffrey McLean, Neil (Inverness)
MacLeod, John (Ross & Cromarty) Pilkington, Capt. R. A. Summers, Sir Spencer
Macmillan, Rt. Hn. Harold (Bromley) Pitman, I. J. Sumner, W. D. M. (Orpington)
Macmillan, Maurice (Halifax) Pitt, Miss E. M. Taylor, William (Bradford, N.)
Macpherson, Niall (Dumfries) Pott, H. P. Temple, J. M.
Manningham-Buller, Rt. Hn. Sir Reginald Powell, J. Enoch Thompson, Kenneth (Walton)
Markham, Major Sir Frank Price, David (Eastleigh) Thompson, Lt.-Cdr. R. (Croydon, S.)
Marlowe, A. A. H. Profumo, J. D. Thornton-Kemsley, C. N.
Marples, Rt. Hon. A. E. Raikes, Sir Victor Tiley, A. (Bradford, W.)
Marshall, Douglas Rawlinson, Peter Tilney, John (Wavertree)
Maude, Angus Redmayne, M. Turner, H. F. L.
Mawby, R. L. Rees-Davies, W. R. Turton, Rt. Hon. R. H.
Maydon, Lt.-Comdr. S. L. C. Remnant, Hon. P. Vane, W, M. V.
Milligan, Rt. Hon. W. R. Ridsdale, J. E. Vaughan-Morgan, J. K.
Molson, Rt. Hon. Hugh Robertson, Sir David Vosper, Rt. Hon. D. F.
Mott-Radclyffe, Sir Charles Roper, Sir Harold Wakefield, Sir Wavell (St. M'lebone)
Nabarro, G. D. N. Ropner, col. Sir Leonard Wall, Major Patrick
Nairn, D. L. S. Russell, R. S. Ward, Rt. Hon. G. R. (Worcester)
Neave, Airey Schofield, Lt.-Col. W. Ward, Dame Irene (Tynemouth)
Nicholls, Harmar Scott-Miller, Cmdr. R. Whitelaw, W. S. I. (Penrith & Border)
Nicholson, Godfrey (Farnham) Shepherd, William Williams, R. Dudley (Exeter)
Nicolson, N. (B'n'm'th, E. & Chr'ch) Simon, J. E. S. (Middlesbrough, W.) Wills, G. (Bridgwater)
Nugent, G. R. H. Spearman, Sir Alexander Wilson, Geoffrey (Truro)
Oakshott, H. D. Speir, R. M. Wood, Hon. R.
Orr, Capt. L. P. S. Stanley, Capt. Hon. Richard Woollam, John Victor
Osborne, C. Stevens, Geoffrey Yates, William (The Wrekin)
Page, R. G. Steward, Harold (Stockport, S.)
Pannell, N. A. (Kirkdale) Steward, Sir William (Woolwich, W.) TELLERS FOR THE AYES:
Peyton, J. W. W. Stewart, Henderson (Fife, E.) Mr. E. Wakefield and
Pickthorn, K. W. M. Stoddart-Scott, Col. M. Colonel J. H. Harrison.
Pike, Miss Mervyn Storey, S.
Ainsley, J. W. Grey, C. F. Mellish, R. J.
Allaun, Frank (Salford, E.) Griffiths, David (Rother Valley) Messer, Sir F.
Allen, Arthur (Bosworth) Griffiths, William (Exchange) Mitchison, G. R.
Awbery, S. S. Hale, Leslie Monslow, W.
Bacon, Miss Alice Hall, Rt. Hn. Glenvil (Colne Valley) Moody, A. S.
Bence, C. R. (Dunbartonshire, E.) Hamilton, W. W. Morris, Percy (Swansea, W.)
Benn, Hn. Wedgwood (Bristol, S. E.) Harrison, J. (Nottingham, N.) Mort, D. L.
Benson, G. Hastings, S. Moss, R.
Beswick, F. Hayman, F. H. Moyle, A.
Blackburn, F. Herbison, Miss M. Neal, Harold (Bolsover)
Boardman, H. Holman, P. Noel-Baker, Rt. Hon. P. (Derby, S.)
Bottomley, Rt. Hon. A. G. Holmes, Horace Oliver, G. H.
Bowden, H. W. (Leicester, S. W.) Holt, A. F. Oram, A. E.
Bowen, E. R. (Cardigan) Houghton, Douglas Orbach, M.
Boyd, T. C. Howell, Denis (All Saints) Oswald, T.
Braddock, Mrs. Elizabeth Hoy, J. H. Owen, W. J.
Brockway, A. F. Hughes, Cledwyn (Anglesey) Padley, W. E.
Brown, Rt. Hon. George (Belper) Hughes, Emrys (S. Ayrshire) Paget, R. T.
Brown, Thomas (Ince) Hughes, Hector (Aberdeen, N.) Paling, Rt. Hon. W. (Dearne Valley)
Burke, W. A. Hunter, A. E. Pannell, Charles (Leeds, W.)
Butler, Herbert (Hackney, C.) Hynd, J. B. (Attercliffe) Parker, J.
Champion, A. J. Irvine, A. J. (Edge Hill) Paton, John
Chapman, W. D. Irving, S.(Dartford) Pearson, A.
Chetwynd, G. R. Isaacs, Rt. Hon. G. A. Peart, T. F.
Clunie, J. Janner, B. Pentland, N.
Coldrick, W. Jay, Rt. Hon. D. P. T. Plummer, Sir Leslie
Collick, P. H. (Birkenhead) Jeger, Mrs. Lena (Holbn & St. Pncs. S.) Popplewell, E.
Collins, V. J.(Shoreditch & Finsbury) Jenkins, Roy (Stechford) Price, J. T. (Westhoughton)
Cove, W. G. Johnson, James (Rugby) Probert, A. R.
Craddock, George (Bradford, S.) Jones, David (The Hartlepools) Proctor, W. T.
Crossman, R. H. S. Jones, Jack (Rotherham) Pryde, D. J.
Cullen, Mrs. A. Jones, J. Idwal (Wrexham) Randall, H. E.
Dalton, Rt. Hon. H. Jones, T. W. (Merioneth) Redhead, E. C.
Davies, Ernest (Enfield, E.) Kenyon, C. Reeves, J.
Davies, Harold (Leek) Key, Rt. Hon. C. W. Roberts, Albert (Normanton)
Davies, Stephen (Merthyr) King, Dr. H. M. Roberts, Goronwy (Caernarvon)
Dodds, N. N. Lawson, G. M. Rogers, George (Kensington, N.)
Dugdale, Rt. Hn. John (W. Brmwch) Lee, Frederick (Newton) Ross, William
Ede, Rt. Hon. J. C. Lee, Miss Jennie (Cannock) Royle, C.
Edwards, Rt. Hon. Ness (Caerphilly) Lever, Leslie (Ardwick) Shurmer, P. L. E.
Edwards, Robert (Bilston) Lindgren, G. S. Silverman, Julius (Aston)
Fernyhough, E. Lipton, Lt.-Col. M. Silverman, Sydney (Nelson)
Fienburgh, W. MacColl, J. E. Simmons, C. J. (Brierley Hill)
Fletcher, Eric McGhee, H. G. Slater, Mrs. H. (Stoke, N.)
Forman, J. C. McGovern, J. Smith, Ellis (Stoke, S.)
Fraser, Thomas (Hamilton) McKay, John (Walisend) Soskice, Rt. Hon. Sir Frank
Gibson, C. W. MacPherson, Malcolm (Stirling) Steele, T.
Gooch, E. G. Mallalieu, E. L. (Brigg) Stewart, Michael (Fulham)
Gordon. Walker, Rt. Hon. P. C. Mann, Mrs. Jean Stones, W. (Consett)
Greenwood, Anthony Marquand, Rt. Hon. H. A. Strachey, Rt. Hon. J.
Grenfell, Rt. Hon. D. R. Mason, Roy Stross, Dr. Barnett (Stoke-on-Trent, C.)
Sylvester, G. O. Weitzman, D. Williams, Rt. Hon. T. (Don valley)
Taylor, Bernard (Mansfield) Wells, Percy (Faversham) Williams, W. R. (Openshaw)
Taylor, John (West Lothian) West, D. G. Willis, Eustace (Edinburgh, E.)
Thornton, E. Wheeldon, W. E. Woodburn, Rt. Hon. A.
Timmons, J. White, Henry (Derbyshire, N. E.) Woof, R. E.
Ungoed-Thomas, Sir Lynn Wigg, George Yates, V. (Ladywood)
Osborne, H. C. Wilkins, W. A. Younger, Rt. Hon. K.
Wade, D. W. Willey, Frederick Zilliacus, K.
Warbey, W. N. Williams, Rev. Llywelyn (Ab'tilery)
Watkins, T. E. Williams, Ronald (Wigan) TELLERS FOR THE NOES:
Mr. Short and Mr. Deer.

Question put accordingly, That those words be there inserted:—

The Committee divided: Ayes 2, Noes 346.

Division No. 35.] AYES [7.45 p.m.
Boyd, T. C. Fletcher, Eric TELLERS FOR THE AYES:
Mr. P. Wells and Dr. King.
Agnew, Sir Peter Cove, W. G. Hesketh, R. F.
Ainsley, J. W. Craddock, Beresford (Spelthorne) Hill, Mrs. E. (Wythenshawe)
Aitken, W. T. Craddock, George (Bradford, S.) Hill, John (S. Norfolk)
Allaun, Frank (Salford, E.) Crowder, Sir John (Finchley) Hirst, Geoffrey
Allen, Arthur (Bosworth) Crowder, Petre (Ruislip—Northwood) Holland-Martin, C. J.
Alport, C. J. M. Cullen, Mrs. A. Holman, P.
Amery, Julian (Preston, N.) Dalton, Rt. Hon. H. Holmes, Horace
Amory, Rt. Hn. Heathcoat (Tiverton) Dance, J. C. G. Holt, A. F.
Anstruther-Gray, Major Sir William Davies, Ernest (Enfield, E) Hope, Lord John
Arbuthnot, John Davies, Harold (Leek) Hornby, R. P.
Armstrong, C. W. Davies, Stephen (Merthyr) Hornsby-Smith, Miss M. P.
Ashton, H. D'Avigdor-Goldsmid, Sir Henry Houghton, Douglas
Awbery, S. S. Deedes, W. F. Howell, Denis (All Saints)
Bacon, Miss Alice Deer, G. Hoy, J. H.
Baldwin, A. E. Dodds, N. N. Hughes, Cledwyn (Anglesey)
Barber, Anthony Donaldson, Cmdr. C. E. McA. Hughes, Emrys (S. Ayrshire)
Barter, John du Cann, E. D. L. Hughes, Hector (Aberdeen, N.)
Beamish, Maj. Tufton Dugdale, Rt. Hn. John (W. Brmwch) Hughes, Hallett, Vice-Admiral N.
Bence, C. R. (Dunbartonshire, E.) Eccles, Rt. Hon. Sir David Hughes-Young, M. H. C.
Benn, Hn. Wedgwood (Bristol, S. E.) Ede, Rt. Hon. J, C. Hunter, A. E.
Bennett, Dr. Reginald Edwards, Rt. Hon. Ness (Caerphilly) Hurd, A. R.
Benson, G. Edwards, Robert (Bilston) Hylton-Foster, Rt. Hon. sir Harry
Beswick, F. Emmet, Hon. Mrs. Evelyn Iremonger, T. L.
Bevins, J. R. (Toxteth) Errington, Sir Eric Irvine, A. J. (Edge Hill)
Biggs-Davison, J. A. Farey-Jones, F. W. Irving, S. (Dartford)
Birch, Rt. Hon. Nigel Fell, A. Isaacs, Rt. Hon. G. A.
Blackburn, F. Fernyhough, E. Janner, B.
Blyton, W. R. Fienburgh, W. Jay, Rt. Hon. D. P. T.
Boardman, H. Finlay, Graeme Jeger, Mrs. Lena (Holbn & St. Pncs, S.)
Body, R. F. Fisher, Nigel Jenkins, Roy (Stechford)
Boothby, Sir Robert Forman, J. C. Jennings, Sir Roland (Hallam)
Bossom, Sir Alfred Foster, John Johnson, James (Rugby)
Bottomley, Rt. Hon. A. C. Fraser, Thomas (Hamilton) Jones, David (The Hartlepools)
Bowden, H. W. (Leicester, S. W.) Garner-Evans, E. H. Jones, Jack (Rotherham)
Bowen, E. R. (Cardigan) George, J. C. (Pollok) Jones, J. Idwal (Wrexham)
Boyd-Carpenter, Rt. Hon. J. A. Gibson, C. W. Jones, T. W. (Merioneth)
Boyle, Sir Edward Gibson-Watt, D. Joseph, Sir Keith
Braddock, Mrs. Elizabeth Glover, D. Keegan, D.
Brockway, A. F. Godber, J. B. Kenyon, C.
Brooke, Rt. Hon. Henry Gomme-Duncan, Col. Sir Alan Kerby, Capt. H. B.
Brooman-White, R. C. Gordon Walker, Rt. Hon. P. C. Kerr, H. W.
Brown, Rt. Hon. George (Belper) Gower, H. R. Key, Rt. Hon. C. W.
Brown, Thomas (Ince) Graham, Sir Fergus Kimball, M.
Browne, J. Nixon (Craigton) Grant, W. (Woodside) Kirk, P. M.
Bryan, P. Grant-Ferris, Wg Cdr. R. (Nantwich) Lambton, Viscount
Bullus, Wing Commander E. E. Green, A. Lawson, C. M.
Burke, W. A. Greenwood, Anthony Leavey, J. A.
Butcher, Sir Herbert Grenfell, Rt. Hon. D. R. Lee, Frederick (Newton)
Butler, Herbert (Hackney, C.) Gresham Cooke, R. Lee, Miss Jennie (Cannock)
Butler, Rt. Hn. R. A. (Saffron Walden) Grey, C. F. Legh, Hon. Peter (Petersfield)
Carr, Robert Griffiths, David (Bother Valley) Lever, Leslie (Ardwick)
Champion, A. J. Griffiths, William (Exchange) Lindgren, G. S.
Channon, Sir Henry Grimston, Hon. John (St. Albans) Lindsay, Hon. James (Devon, N.)
Chapman, W. D. Grosvenor, Lt.-Col. R. G. Linstead, Sir H. N.
Chetwynd, G. R. Gurden, Harold Lipton, Lt.-Col. M.
Chichester-Clark, R. Hale, Leslie Lloyd, Rt. Hon. Selwyn (Wirral)
Clunie, J. Hall, Rt. Hn. Glenvil (Colne Valley) Low, Rt. Hon. A. R. W.
Coldrick, W. Hall, John (Wycombe) Lucas. Sir Jocelyn (Portsmouth, S.)
Collins. V. J. (Shoreditch & Finsbury) Harrison, J. (Nottingham, N.) Lucas, P. B. (Brentford & Chiswick)
Cooper-Key, E. M. Harvey, Air Cdre. A. V. (Macclesfd) Lucas-Tooth, Sir Hugh
Cordeaux, Lt.-Col. J. K. Heath, Rt. Hon. E. R. C. McAdden, S. J.
Corfield, Capt. F. V. Harbison, Miss M. MacColl, J. E.
McGhee, H. G. Pentland, N. Stoddart-Scott, Col. M.
McGovern, J. Peyton, J. W. W. Stones, W. (Consett)
McKibbin, A. J. Pickthorn, K. W. M. Storey, S.
McLaughlin, Mrs. P. Pike, Miss Mervyn Strachey, Rt. Hon. J.
Maclay, Rt. Hon. John Pilkington, Capt. R. A. Stross, Dr. Barnett (Stoke-on-Trent, C.)
McLean, Neil (Inverness) Pitman, I. J. Summers, Sir Spencer
MacLeod, John (Ross & Cromarty) Pitt, Miss E. M. Sumner, W. D. M. (Orpington)
Macmillan, Rt. Hn. Harold (Bromley) Plummer, Sir Leslie Sylvester, G. O.
Macmillan, Maurice (Halifax) Popplewell, E. Taylor, Bernard (Mansfield)
MacPherson, Malcolm (Stirling) Pott, H. P. Taylor, John (West Lothian)
Macpherson, Niall (Dumfries) Powell, J. Enoch Taylor, William (Bradford, N.)
Maddan, Martin Price, David (Eastleigh) Temple, J. M.
Mallalieu, E. L. (Brigg) Price, J. T. (Westhoughton) Thompson, Kenneth (Walton)
Manningham-Buller, Rt. Hn. Sir R. Price, Philips (Gloucestershire, W.) Thompson, Lt.-Cdr. R.(Croydon, S.)
Markham, Major Sir Frank Probert, A. R. Tiley, A. (Bradford, W.)
Marples, Rt. Hon. A. E. Proctor, W. T. Tilney, John (Wavertree)
Marquand, Rt. Hon. H. A. Profumo, J. D. Timmons, J.
Marshall, Douglas Pryde, D. J. Turner, H. F. L.
Mason, Roy Randall, H. E. Turton, Rt. Hon. R. H.
Maude, Angus Rankin, John Ungoed-Thomas, Sir Lynn
Mawby, R. L. Rawlinson, Peter Usborne, H. C.
Messer, Sir F. Redhead, E. C. Vane, W. M. F.
Milligan, Rt. Hon. W. R. Redmayne, M. Vaughan-Morgan, J. K.
Mitchison, G. R. Reeves, J. Wade, D. W.
Monslow, W. Remnant, Hon. P. Wakefield, Sir Wavell (St. M'lebone)
Morris, Percy (Swansea, W.) Ridsdale, J. E. Wall, Major Patrick
Mort, D. L. Roberts, Albert (Normanton) Warbey, W. N.
Moss, R. Roberts, Goronwy (Caernarvon) Ward, Rt. Hon. G. R. (Worcester)
Mott-Radclyffe, Sir Charles Robertson, Sir David Watkins, T. E.
Moyle, A. Rogers, George (Kensington, N.) Weitzman, D.
Nabarro, G. D. N. Roper, Sir Harold West, D. G.
Nairn, D. L. S. Ropner, Col. Sir Leonard Wheeldon, W. E.
Neal, Harold (Bolsover) Ross, William White, Henry (Derbyshire, N. E.)
Neave, Airey Royle, C. Whitelaw, W. S. I. (Penrith & Border)
Nicholls, Harmar Russell, R. S. Wigg, George
Nicholson, Godfrey (Farnham) Schofield, Lt.-Col. W. Wilkins, W. A.
Nicolson, N. (B'n'mth, E. & Chr'ch) Scott-Miller, Cmdr. R. Willey, Frederick
Noel-Baker, Rt. Hon. P. (Derby, S.) Shepherd, William Williams, Rev. Llywelyn (Ab'tillery)
Nugent, G. R. H. Short, E. W. Williams, Ronald (Wigan)
Oakshott, H. D. Silverman, Julius (Aston) Williams, Rt. Hon. T. (Don Valley)
Oliver, G. H. Silverman, Sydney (Nelson) Williams, W. R. (Openshaw)
Oram, A. E. Simmons, C. J. (Brierley Hill) Willis, Eustace (Edinburgh, E.)
Orr, Capt. L. P. S. Simon, J. E. S. (Middlesbrough, W.) Wills, G. (Bridgwater)
Osborne, C. Slater, Mrs. H. (Stoke, N.) Wilson, Geoffrey (Truro)
Oswald, T. Smith, Ellis (Stoke, S.) Woodburn, Rt. Hon. A.
Owen, W. J. Soskice, Rt. Hon. Sir Frank Woof, R. E.
Padley, W. E. Spearman, Sir Alexander Woollam, John Victor
Paget, R. T. Speir, R, M. Yates, V. (Ladywood)
Paling, Rt. Hon. W. (Dearne Valley) Steele, T. Yates, William (The Wrekin)
Panned, Charles (Leeds, W.) Stevens, Geoffrey Younger, Rt. Hon. K.
Parker, J. Steward, Harold (Stockport, S.) Zilliacus, K.
Paton, John Steward, Sir William (Woolwich, W.)
Pearson, A. Stewart, Henderson (Fife, E.) TELLERS FOR THE NOES:
Peart, T. F. Stewart, Michael (Fulham) Mr. E. Wakefield and
Colonel J. H. Harrison.
Mr. S. Silverman

I beg to move, in page 3, line 1, to leave out paragraph (c).

The Chairman

It will be convenient if, together with this Amendment, the Committee discusses the four following Amendments in the name of the hon. and learned Member for Northampton (Mr. Paget), in page 3, lines 1, 2 and 3.

Mr. Paget

On a point of order. I think it is clear that the last Amendment in my name, in page 3, line 4, at the end to insert: Provided that the killing shall have been intentional is not included. I do not think that it is suitable for discussion with the other Amendments.

The Chairman

I said that we were discussing the first four Amendments in the hon. and learned Gentleman's name.

Mr. Paget

I am much obliged, Sir Charles.

Mr. Silverman

Subsection (1, c) reads: any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody; The purpose of this provision appearing in the Clause at all is to provide another exception to the general principle which is to be found in Clause 7, which says: No person shall be liable to suffer death for murder in any case not falling within section five or six of this Act. In other words, the scheme of Part II of the Bill is, by Clause 7, to abolish in principle the death penalty, retaining in Clauses 5 and 6, however, certain exceptions to that general principle.

On approaching the Amendment the first observation that one must make is that which falls to be made repeatedly in the discussion of every Amendment, namely, the general objection to making any exceptions at all. In this case, some of the things that I was saying in the few hasty remarks I made upon the last series of Amendments that we discussed are even more important. Paragraph (c) happens to be very like the only Amendment made to the Death Penalty (Abolition) Bill during its Committee stage last Session, and then, as it were, repealed when the House came to consider the matter again on Report. In other words, to invite the Committee now to allow this part of this Clause to stand part of the Bill would be to invite the House of Commons to reverse, under pressure, its own specific, considered and reconsidered decision, when it was invited by this very Government to come to a decision according to its own judgment.

8.0 p.m.

At this stage, I do not know what may be the ultimate fate of this Amendment. But suppose it should happen that after appropriate debate the Committee should divide upon it, and that in the Division the Amendment should be defeated and subsection (5) should remain part of the Bill. The Government will then have succeeded in driving, stampeding or intimidating a Committee of the House of Commons to pass a law which will result in the execution of people, when they know, we know, the country knows and the world knows, that we do not believe in it at all.

This is an astonishing course of conduct for any Government. I find it an astonishing procedure, even for this Government. It seems to me to be in utter defiance of the whole spirit of our institutions, and to be calculated to bring those institutions into disrepute in our country, and in the world, at a time when, after all, the freedom and civilisation of the world depends in large part on their preservation at a time when they are under violent attack.

Why do the Government want to do this? We have had from the Home Secretary some attempt at statistics. The Government have been looking at figures, and, presumably, they have been looking at figures in respect of the last Amendment and this Amendment, too. Will they tell us how many men or women will be executed during the next ten years on the basis of this paragraph (c); and on the assumption that the graph over the next ten years is exactly like that for the past ten years? Has the calculation been made? Do not let anyone say again that numbers do not matter. The last Home Secretary thought that numbers did not matter, and where is he now? The present Home Secretary told us only a few minutes ago that the figures were very relevant; that it was important to consider in relation to any proposed exception how many crimes are affected and how many executions are affected.

We are entitled to ask the Joint Under-Secretary about that. I should like to offer my own felicitations to him on his new office. I can only hope, as I believe, that he has been given this well-deserved promotion for other reasons than his activities in this matter. In the past I have paid my humble acknowledgements, and I repeat them now, to his very valuable work in that part of the field which deals not with the death penalty, but with the law of murder itself. He devoted considerable attention, even before he became responsible for the exposition of Government policy, to every aspect of this matter. I am sure that he has the figures at his fingertips. How many is it, out of the 12 people a year which, on a average, we have executed for the better part of the century?

If the number is infinitesimal, will the Government explain why they think it worth while to bring such pressure on hon. Members opposite to violate their consciences to achieve this? If the thing is defended according to the Home Secretary's explanation to us a little while ago on the basis of law and order, surely in that regard the figures would be of importance. Are there enough figures to make it worth while to keep this exception in the Bill? We have been told repeatedly, and I believe we have on every occasion been told with the utmost sincerity, that nobody wants to keep the death penalty for its own sake; nobody likes it. Everybody would rejoice—whether we who want the abolition of it altogether are right or wrong—if the right hon. Gentleman could only be persuaded, or could persuade himself, that society can safely do without it. If that is so, if the figures are so few as to make it demonstrable that society is virtually as safe without it as with it, why do the Government want hon. Members to do violence to their consciences in order to re-enact now what they repealed last Session?

Before I deal with one other matter I would say something else—without anticipating what my hon. and learned Friend the Member for Northampton (Mr. Paget) may be saying very soon. The Clause is full of terms of art. My hon. and learned Friend has put down a series of Amendments to remove some of them, but not all of them. any murder done in the course or for the purpose of resisting or avoiding— I say nothing about in the course or for the purpose"— my hon. and learned Friend will deal with that— —or preventing a lawful arrest … Do hon. Members think that "a lawful arrest" is self-explanatory? The casebooks are full of cases depending entirely on the question of what powers of arrest a constable has.

I know it is unusual—and I must ask the indulgence of the Committee—to refer to any matter in one's own professional experience, but I was professionally connected with a case which became a classic. The case of Leachinsky v. Christie was decided in the House of Lords. I think it was 1945 by the time it reached the House of Lords. That was a case in which a man had been arrested by two Liverpool detectives and who claimed that the arrest was unlawful.

In the court of first instance, the learned judge decided that he was wrong. He went to the Court of Appeal and the three judges there unanimously decided that he was right. The defence took the matter to the House of Lords. The defendants were two Liverpool police officers. They were supported in the proceedings, as was right and proper and always happens in these cases, by the Liverpool Watch Committee.

But who took the matter to the House of Lords? It was not the officers, not the Watch Committee altogether, it was the Home Office who insisted on going to the House of Lords and they went there in a case in which they could only succeed if they established the proposition that in our country an arrest may be lawful if made in silence.

They knew that they could not succeed in upsetting the judgment in the man's favour in the Court of Appeal unless they could persuade the House of Lords, sitting in its judicial capacity, to say that a British policeman could arrest a British citizen without a warrant and without telling him what for. They lost, and I cite this matter to show that this business of resisting a lawful arrest is not nearly so simple as people who have not had professional experience of the difficulties might imagine.

Suppose that the unhappy Mr. Leachinsky had resisted arrest. Suppose that he or one of the police officers, or both, had been unlucky and an accidental blow while Mr. Leachinsky was defending his liberty against attack by the executive had, unfortunately, killed a policeman. Under this Clause he would have been tried for murder. The question of whether he was guilty of capital murder would depend on a fine, long-drawn argument through the courts as to whether, in the particular circumstances of that case, the police officer had or had not the lawful power of arrest.

Hon. Members may say, "What is wrong with that?" What is wrong with it is surely perfectly clear. If the lawyers and the courts and the Home Office could be so wrong about what the lawful power of arrest was, why should this unfortunate Mr. Leachinsky have to decide it on the pavement at the moment he was being arrested under penalty that if he decided wrongly he would be hanged? In addition, therefore, to matters which my hon. and learned Friend will be inviting the Committee to consider when he moves his Amendment, I draw the attention of the Committee myself most seriously to this question of lawful arrest or legal custody.

Under our law a man is not bound to submit to unlawful arrest. The effect of this Clause will be to make people less ready to defend their liberties, because they feel that if, in defending their liberties, in the end they should turn out to be technically wrong they may be guilty of capital murder. It is quite a serious matter. Again, I say to the Government that I could understand their persistence in the matter, I could understand their obstinacy and inconsistency in the matter if they could show that the number of cases was so large that the risk of injustice was less than the risk to security. But if the numbers are so small that that cannot be shown, then what possible reason for this particular exemption can be put forward?

It was said, I think by my hon. and learned Friend in discussion of the last Amendment, that murder by poisoning was the most likely of all these difficult situations to be that in which the risk of miscarriage of justice was greatest. No one who heard him would doubt for a moment that he established beyond reasonable controversy that the risk of miscarriage of justice in those cases was very high. I concede that at once. I am, however, not sure that he persuaded me that the risk of miscarriage of justice in those cases was higher than the risk of miscarriage of justice in this case. Indeed, nearly all—all except one—of the sensational miscarriages of justices with which this House has been concerned in the last four or five years have been precisely cases which would fall under this paragraph.

8.15 p.m.

Would anyone with any professional experience doubt for a moment that the risk of a miscarriage of justice occurred in these cases where the principal evidence for the prosecution must inevitably be evidence of identity—identification by persons who never saw the man before in their lives? In a murder case which I have written about a man was ultimately hanged after being identified by three different persons, but on three different occasions. One man identified him as the man who bought something in his shop in the afternoon. Another, a woman, identified him as being the man she had seen in a cafe at about 10 o'clock that evening. The third identified him as being the man that he saw arguing with a woman at the corner of a dimly-lighted street about midnight.

None of the three had ever seen turn before. None of them saw him for long. Each one of the three gave a description to the police at the time of the man whom they saw which could not be reconciled with the man against whom they ultimately gave evidence, and which could not be reconciled with one another.

That was the case of Rowland where, after conviction, another man confessed to the crime and where, for reasons that I have spent months and months trying to understand, and failed, it was decided that his confession was, beyond doubt, false. Three or four years later this man committed the same kind of offence and gave himself up to the police. He was found guilty, but insane. Why this man was found guilty but insane I have never been able to understand. There was no doubt that he knew what he was doing. There was no doubt that he knew that it was wrong. It was this very knowledge that drove him to the police station to make a confession.

Why was he found guilty, but insane? He went to Broadmoor and, after a few years, hanged himself. I defy anyone who has studied the records to come to any other conclusion than that the verdict was wrong. I defy any honest man of normal intelligence to read the records and to come to the conclusion that—

The Chairman

I am listening very carefully to the argument of the hon. Gentleman and I hope that he will make it relevant to the issue raised in his Amendment.

Mr. Silverman

I must be even more tortuous and unlucid in my argument than normally, because I am doing my best to show not merely that the argument is relevant but that it lies at the very root of the matter we are discussing.

No one wants to hang an innocent man. The argument that I am pressing upon the attention of the Government is that if they retain the powers in this subsection they run a risk of hanging innocent men which is greater than in a large number of other cases. I am inviting the Government to accept my Amendment on that ground. I should be surprised to find that the argument is in any way irrelevant.

To prevent miscarriages of justice, I am directing the attention of the Government to particular cases where miscarriages of justice have not merely occurred, but where the Government have admitted that they have occurred. It is difficult to imagine any type of argument more relevant than that. Perhaps I may turn again to the instance which I have in mind.

Somebody attacked a policeman, either in the course of a robbery or in attempting to escape after the robbery, in the precise circumstances contemplated in the subsection. Three men were arrested and were charged. The police officer concerned gave evidence that these were the three men who had attacked him. Suppose that policeman had died as the result of the attack and his evidence had been given by a statement taken when he was known to be dying. The statement would have been used against the three men and the policeman could no longer have been cross-examined about it. He was a police officer of long experience. No one was better trained than he to see, recognise and remember faces. He had the best opportunity for knowing who were the three men who attacked him, for they were very close to him. He swore that these were indeed the three men.

The men were convicted and were sentenced to long terms of imprisonment. Everybody knows now, although the policeman was perfectly honest, that, honest or not, he was wrong. It is another of those cases of casual, hurried glimpses in chance encounters of one sort or another that are the very cases in which miscarriage of justice is most likely. Inevitably, they depend very largely, and, in some cases, entirely, on identification. It is clear beyond argument that the risk of miscarriage of justice in this class of case is very high indeed.

Why do the Government want to take the risk? To achieve what? What are the figures and what is the size of the problem? What is the evil which the Government think can be cured by this subsection? Only the desire of the Government to push this matter at all costs, right or wrong, reasonable or unreasonable, can excuse them for resisting the Amendment, if it be true, as I am sure it is, that the number of cases involved is very, very small.

I appeal to the Government. We are coming now to the end of a long and involved controversy in which opinion has been deeply and sincerely divided. On the Government's own assessment we are almost at the end of it, and if the Government have their way we shall in future execute two human beings a year instead of the 12 which has been our average for the better part of a century. Out of those two, how many are covered by this provision? Let us be reasonable and not doctrinaire. Let us look at the facts.

There are people who say that the State has in no instance the right to take life. I am not concerned with that argument. There are people who say that once life has been taken another life should be sacrificed for it. I am not concerned to argue that. I am addressing my argument to all those who are in the middle of those two extremes and who are prepared to retain the death penalty where it can be shown to be necessary, but are determined not to have it unless that can be shown. I invite the Government to show why it is necessary in this case, or to accept my Amendment.

Mr. Nigel Fisher (Surbiton)

Now that I am no longer Parliamentary Private Secretary to the Home Secretary, I have for the first time an opportunity to take a small part in these debates, which I much welcome. I am not a lawyer, but as I understand it this paragraph (c) seems to give to ordinary members of the public the same protection as, under similar circumstances, would be given to the police under paragraph (d). It seems to protect the ordinary citizen, who is trying to prevent a criminal getting away after he has committed a crime, or who is trying to help the police to make an arrest.

I do not know, but I should think that the hon. Member for Nelson and Come (Mr. S. Silverman) is perfectly right. I should think there is not any considerable number of cases of murder in this category; but there are perhaps some. I submit that if there are any at all it is not unreasonable to make provision for them. It seems that if we omit this paragraph altogether, as the Amendment seeks to do, we would almost encourage a criminal to shoot his way out of a difficult situation. That is the way I read it. I believe the death penalty is a unique deterrent to the professional criminal.

Mr. S. Silverman

The hon. Member believes that about all murders; one understands that very well. What we are dealing with now is not a general principle applicable to all murders, but some method of discriminating between those murders which are capital crimes and those which are not. We want to know why this murder in particular should be capital and others should not be. The hon. Member said that it was enticing a professional criminal, but that man would still be guilty of murder. There is no more reason why he should be guilty of capital murder than a great many others which are exempted from that guilt by the Government's Measure.

8.30 p.m.

Mr. Fisher

I see the point made by the hon. Member, but the basis behind the whole Bill which we have frequently discussed in the Committee today and on previous occasions is the preservation of law and order. That is the principle upon which the Government rested in framing the Bill. The hon. Member may not think it is much of a principle nevertheless it is the principle behind the Bill, and has been so stated on many occasions. It is a principle which provides the only possible line of demarcation, probably, on which to base any legislation at all.

Mr. Silverman

Does not the hon. Member see my difficulty? I would not press my own difficulties on him, but there are difficulties which many others have in this matter. How can we say that one murder is an offence against law and order and another murder is not? It is not a principle of discrimination at all.

Mr. Fisher

It is laid down in this Bill, and is perfectly tenable by way of argument, that some types of murder—such as shooting and explosion—are, by their very nature, more likely to be prejudicial to law and order than other sorts, such as strangling or poisoning. One is perfectly entitled to this view, this possible line of demarcation which is the basis of the Bill. Of course, the hon. Member for Nelson and Colne does not like the Bill, and naturally argues against it. By omitting this subsection I think we would encourage the professional criminal to shoot his way out of a difficult situation if he felt that by so doing he could avoid recognition or capture.

We would encourage him to carry arms and, perhaps, to use them if the occasion arose. I should imagine that it is when a man is trying to escape that he is most liable to use a weapon against anyone, not only against the police, but against any member of the public who might stand in his way. Therefore, this provision seems to me to help the ordinary citizen who is trying to do his duty, and I hope that it will remain part of the Bill. I think it will afford protection to ordinary people doing their best, and I hope that it will not be withdrawn, but that instead the hon. Member may decide to withdraw his Amendment.

Mr. Paget

The hon. Member for Surbiton (Mr. Fisher) has sought to defend this Clause on a particular instance. He feels that there should be some protection for the householder whose house is invaded by a professional criminal. Within the sort of spirit of this Bill—with which of course I do not agree—I can see that that would be reasonable, but that is not what the Clause provides.

This is a Clause of quite extraordinary breadth. I am afraid I have not got it before me and cannot quote what the Lord Chief Justice said in another place when a previous compromise Bill, produced by the Labour Government, came before the House of Lords. That was a Bill which, compared to this, was precision and simplicity itself. The Lord Chief Justice then said that one of the conditions of the criminal law was that it should be precise, comprehensible and that a man should know when he was committing a capital offence and when he was not. I do not think it can really have been foreseen how many technicalities are involved by the question of lawful arrest alone. Here we are not dealing—because it is dealt with in another paragraph—with the case where a man knows that he is up against a policeman and therefore ought to look out. This is the case of a man who really might not have the smallest idea whether what is happening is lawful arrest or not.

I will just give the Committee a list of the various offences, other than invasion of a man's house by an armed criminal, which can involve arrest. They are a curious, miscellaneous and odd list, through which no particular principle seems to run. They are found under the Bankruptcy Acts, the Coinage Offences Act, 1936, the Children and Young Persons Act, 1933, the Criminal Justice Act, 1933, the Criminal Law (Amendment) Act, 1912, the Dangerous Drugs Act, the Firearms Act, the Larceny Act, 1861, and the Larceny Act, 1916, the Licensing Act, 1872, the Malicious Damages Act, 1861, the Metropolitan Police Act, 1839, the Night Poaching Act, 1828, and the Night Poaching Act, 1844, the Offences against the Person Act, 1861, the Official Secrets Act, the Prevention of Crimes Act, the Prevention of Offences Act, the Prison Act, the Protection of Animals and Pets Act, the Riot Act, the Road Traffic Act, the Street Betting Act, the Vagrancy Act

Mr. S. Silverman

In his long list, my hon. and learned Friend has omitted a very important one, which is very germane to his case. It is the Customs (Consolidation) Act, 1886.

Mr. Paget

Well, Archbold forgot that one.

If we are attempting with some precision to provide that there shall be some certainty about what is and what is not a capital offence, to require a chap to know whether his particular offence falls under some section of one or other of that odd catalogue of Acts or not seems to me a somewhat peculiar thing to do.

But, beyond these Acts altogether, the common law right of arrest in private individuals, apart from a policeman, is quite staggeringly wide. This would mean that one was making, selecting or keeping a capital offence any killing which had taken place during a riot or demonstration. If, when we had the Suez demonstration and there was trouble with the mounted police—true, under that Act now, he would have to intend a fairly high level of violence in order to resist what he thought was wrong, but if he exercised that violence to arrest and killed, it would make him guilty of a capital crime.

I am going to read to the Committee, as it seems to me important, what Russell has to say with regard to this, because I do not think that people can realise that this is only one part of the difficulty of this Clause when we come to my particular Amendment, and I will deal later with the others. This is simply a question of what is and what is not lawful arrest, and this quotation has reference to the suppression of riots. Russell says: The power and duties of public officers and private persons with reference to the suppression of unlawful assemblies, affrays, routs, and riots, rest partly on the common law and partly on statutes. On the constitution of the office of justices of the peace they have given power to restrain rioters and all other barrators, and to pursue arrest, take, and chastise them according to their trespass and offence, and to cause them to be imprisoned and duly punished according to the law and customs of the realm. This statute has been construed as authorizing single justice to arrest, or by parol command to authorise the arrest of, persons riotously assembled. That means that if one is in any demonstration, rout or riot and anyone tries to get hold of one and bring one in, it will depend on whether he has been told to pull one in by a magistrate or has done it himself whether the offence is a capital one or not. It is getting tremendously into the realm of the vague and the speculative.

To continue: Other early statutes, still unrepealed, were passed for the suppression of riots"— in the reigns of Richard II, Henry IV and Henry V: The first two require the use of the posse comitatus by the sheriff, etc., in cases of riot, rout and unlawful assembly, and authorise the arrest of offenders and the recording of offences committed in the presence of the justices. Again, therefore, it may depend on whether one comes under one of these ancient statutes and whether or not the offence was committed when the justice was looking—it is on that that a hanging depends.

Again: The third provides for the case of default by justices in enforcing the Act of 1411, and prescribes punishments for great and petty riots and for neglecting to aid in suppressing riot. And it has been held to be an indictable misdemeanor to refuse to aid a constable in suppressing a riot or affray. The duties of private persons in such cases were thus expounded by Tindal, C.J. in his charge to the grand jury in the case of the Bristol Riots, as follows: 'By the common law every private person may lawfully endeavour of his own authority, and without any warrant or sanction of the magistrate, to suppress a riot by every means in his power. He may disperse, or assist in dispersing, those who are assembled; he may stay those who are engaged in it from executing their purpose; he may stop and prevent others whom he shall see coming up from joining the rest; and not only has he the authority, but it is his bounden duty as a good subject of the King to perform this to the utmost of his ability. If the riot be general and dangerous he may arm himself against the evil doers to keep the peace. Such was the opinion of the judges of England in the time of Queen Elizabeth, the Case of Arms, although the judges add that it would "be more discreet for everyone in such a case to attend and be assistant to the justices, sheriffs, and other ministers of the King in the doing of it."' One sees the width of this. If there is a riot, anybody who tries to stop that riot—and the person who is being stopped may feel that he is on the right side just as much as does the man who is doing the stopping—all that has to be worked out afterwards—but anybody who thinks that he is stopping someone else has a legal right to arrest. The attempt to arrest is lawful and the prevention is unlawful, and if a killing results it becomes capital murder. Surely the Government do not intend to be as vague, as uncertain, as odd as this. Do they really think that they will get away with this in another place, when the law lords come to look at it?

Let us go on: The duties of officers as to the suppression of rioters are thus laid down by Tindal, C.J., in the Bristol Riots case. 'Still further, by the common law, not only is each private subject bound to exert himself to the utmost, but every sheriff, constable, and other peace-officer, is called upon to do all that in them lies for the suppression of riot, and each has authority to command all other subjects of the King to assist him in that undertaking.' By an early statute, which is still in force, any two justices, with the sheriff or under-sheriff of the county, may come with the power of the county, if need be, to arrest any rioters, and shall arrest them; and they have power to record that which they see done in their presence against the law; by which record the offenders shall be convicted, and may afterwards be brought to punishment. And here I must distinctly observe, that it is not left to the choice or will of the subject, as some have erroneously supposed, to attend or not to the call of the magistrate, as they think proper, but every man is bound when called upon, under pain of fine and imprisonment, to yield a ready and implicit obedience to the call of the magistrate and to do his utmost in assisting him to suppress any tumultous assembly. 8.45 p.m.

Thus, we are here bringing in every killing which may take place in hot blood in any riot which may occur. I should have thought that if one wanted the death penalty at all, the last place one would want it would be in this sort of semi-political row. But that is what is here provided. Where there are riots and civil commotions—and if this Govern- ment goes on much longer as they have been, they will have them—what happens when somebody gets killed? Either we hang the killer and we create a martyr in a vastly emotional situation, or we do not hang him and are frightened to carry out the law. That is always the dilemma in which the death penalty puts the Government in a case arising out of civil disturbance. I should have thought there was nothing more embarrassing to a Government, and yet it is this sort of thing which is sought to be introduced by this odd and uncertain provision.

Do we really want to include night poachers? Here, under a special Measure, it is sought to include any killing which may be involved in night poaching. If there is a fight in the dark and a gun goes off, or something of that sort, that is to be murder. Of course, it is a very grave offence, and people ought not to behave like that; but it is hardly in the categories for which one is seeking to provide.

So much for vagueness on this question of lawful arrest. It just is not good enough. In order to find out whether it is or is not lawful arrest, one can search some thirty miscellaneous Statutes as well as the complicated precedents of the common law.

There are other ambiguities in the Clause. In paragraph (c) the words are any murder done in the course of … resisting or avoiding or preventing a lawful arrest. If those words are necessary, then if the act is done "in the course of" it is not necessary that it should be done with any idea of either resisting or escaping. If "in the course of" includes or involves resisting, the words are unnecessary because the word "resist" is there.

What sort of circumstances does the Attorney-General contemplate are in the course of … resisting or avoiding or preventing a lawful arrest which are not for any of those purposes? If they are not for that purpose, why should we include them in the special category at all? What is the point of including them unless we say, "Here is a special thing for which we want to provide the utmost sanction; we do not want people resisting arrest"? Why add this provision to say, "Because we do not wart people resisting arrest, we will make it capital for them to do something which is not attempting to resist arrest at all"? What is the point of it? What does it mean? Why is it there? Has it wandered in vaguely, or what is it there for?

If the murder is in the course … of … avoiding … lawful arrest but is not either for the purpose of resisting it, or, indeed, in the course of resisting it, or of preventing it, what is the offence of "avoiding"? Again, I ask this question, and I ask whoever replies on behalf of the Government to tell us: what is the offence which they are contemplating which is a murder … in the course or for the purpose of … avoiding … arrest but which involves no attempt either to resist or to prevent that arrest? What is it that the Government have in mind?

Where the Government are saying, "We will pick only one-sixth of what have been murders because essentially we wish to retain that one-sixth as capital murders", it is essential that they should explain why they want particular definitions. What do they want "avoiding" for? What is the case which they contemplate would be brought in by "avoiding" and which would not be brought in if "avoiding" were not there, and why do they want it?

I turn to the next one, "or preventing". What is the act which the Government have in mind? It really is up to them to tell us what murders they think require this special prevention, and why. What is the offence which they contemplate and have in mind and which consists of "preventing a lawful arrest" but does not involve either "resisting or avoiding" it? The words can only be justified if they have a purpose. What is that purpose?

This is not something in which we say, "Let us put in some nice general words and include everything", because that is the very thing which it is the purpose of the Bill not to do. This Bill is to exclude everything except one-sixth. General words of exclusion would be justified, but not general words of inclusion. If these are not mere general words, what are they intended to include?

Again, why do the Government want or … effecting or assisting an escape … from lawful custody"? What particular thing is contemplated there? If those words are left out, what is cut out?

The words: rescue from legal custody will remain. What is something done in the course or for the purpose of … effecting or assisting an escape which does not involve a rescue from legal custody? What do they contemplate? Surely these are things which we are entitled to know. In a Bill whose purpose is to exclude the great majority, general and vague words will not do.

The only voice we have heard from the Government benches is that of the former P.P.S. of the Department concerned, who probably has some idea of what the Government intend. Is it that they want to protect the ordinary householder, the sort of lady whom we read about, whose house the two escapees from Rampton broke into, terrorising her and threatening her with an axe? We want to make it clear that somebody like that who resists that sort of invasion—

The Attorney-General

On a point of order. Surely it is quite wrong for the hon. and learned Gentleman to mention matters in cases which are sub judice. It has been published in the Press in relation to Rampton that certain charges have been made. This is the second occasion on which the hon. and learned Gentleman has referred to cases which are pending. He must know that it is quite wrong, and I ask you, Mr. Hynd, to rule that it is wrong to make a reference, explicit or implied, to cases which are pending.

The Temporary-Chairman (Mr. H. Hynd)

It is out of order to refer to these cases which are sub judice.

Mr. Paget

I hope that you will not rule until you have heard me on the point, Mr. Hynd. In my submission, it is not in the least out of order. What is out of order is to prejudge that which is sub judice, to do that which would be a contempt of court if it were done by a newspaper. In just the same way as a newspaper is free to publish a story with regard to two men who apparently, according to the newspaper, broke into the house, so am I able to refer to that story. I am not in a position to prejudge whether they were guilty or not, or what their offence will be, but—

The Temporary Chairman

It is distinctly laid down in Erskine May, in page 437, under the heading, "Matters Pending Judicial Decision" that— Matters awaiting the adjudication of a court of law should not be brought forward in debate … I rule that the hon. and learned Gentleman is out of order.

Mr. Paget

I entirely agree that if I brought forward and sought to prejudge that which would go forward before a court, I should be utterly wrong. If a newspaper correspondent sought to do that he would be in contempt of court. I should be out of order, but I can say just what a newspaper correspondent can say: neither more nor less.

The Temporary Chairman

I ask the hon. and learned Gentleman not to make any further reference to this particular case.

Mr. Paget

I bow to your Ruling. In fact, I had no intention of referring to it further. I was simply taking an illustration of an item of news in this morning's paper to illustrate the sort of thing which we had been told that the Clause was intended to cover.

Let us take it purely in the abstract. We are told that it is considered essential and necessary to protect householders whose houses are invaded, and to let them know that they can protect themselves, that they can try to seize people who burst into their houses and that if, in resistance, they are killed, then the person who kills them will know that he runs a capital risk. That is the justification which we are given for the Clause. It is the only justification which we have been given. The Government really cannot, when they want something for so limited a purpose, put in words of such enormous content as I have described. It is utterly wrong and utterly unreasonable.

Let the Government take the Bill back, reconsider it, and confine it to what they really want, and then let us have a look at it. I cannot believe they appreciated the width, vagueness and uncertainty of what is proposed to be done. I ask the Government to consider, if only for their own protection, what will happen to the Bill in another place. It is wretchedly bad legislation.

9.0 p.m.

Mr. Hale

In speaking on the last Amendment, the Home Secretary gave a succinct and fairly clear account of the Government's intentions in formulating the Bill. It struck me as the clearest and most informative account that we have had. I do not deny at all, and would not wish to deny, that there is substantial public opinion and substantial argument in favour of the view which he put, which is that if one is virtually to abolish capital punishment it may well be necessary to retain it in those cases where enforcement of justice demands retention for special reasons.

I do not wish to try to particularise what the right hon. Gentleman said any more than he did, for I might put words into his mouth which he would not wish to say, but all of us appreciate that there has always been a case for saying that police officers, in the execution of their duty, sometimes have to face appalling risks. They take them in this country with great courage, normally taking them without carrying arms of any kind, and they are entitled to look to the House of Commons to consider that aspect of the matter with care and conscientiously. I believe I am right in saying that, whether one refers to Home Secretaries or the Home Office, that is a consideration which has been properly and rightly present in the minds of those concerned, and is necessarily present in the minds of those in a Department which is concerned with the enforcement of law and the administration of the police. No one would question the fact that a substantial argument can be made out for this.

Those of us who have seriously considered the matter in the past and devoted a good deal of time and attention to it have often found ourselves impressed by the very special argument that armed burglars represent a menace, and that if capital punishment were abolished armed burglars might be more tempted to use their weapons than they have been in the past. It is a case where, as often happens, unfortunately, in this House, we may be taking a risk on behalf of other people. However, most of us have rejected the argument, and on a good many grounds.

The Clause we are considering is, as my hon. and learned Friend the Member for Northampton (Mr. Paget) indicated, something of an abortion and something of an abortion on an abortion. It creates a double complexity. I would ask the right hon. Gentleman and the Joint-Secretary of State, the hon. and learned Member for Middlesbrough, West (Mr. Simon), to bear this in mind. If I might digress, I should like to join in congratulating the hon. and learned Gentleman upon his elevation. Congratulations to anyone upon becoming a member of the present Government are somewhat tinged with speculation as to the future. On the best authority, I learn that members of the Government have their names painted in one coat of paint only, so there is a feeling of uncertainty about it. Nevertheless, we offer the hon. and learned Gentleman our hearty congratulations, and we shall await events.

Clause 1 abolishes constructive malice except in two selected cases. The doctrine of constructive malice was the doctrine which virtually said that if one was committing one crime and accidentally, fortuitously or without deliberate intent killed someone, one was then guilty of murder, even in the absence of intent to murder. That doctrine has always been criticised by the judges. Under the Bill it is to go, with the exception of what we are now discussing. If, though without deliberate intent, one commits a homicide while resisting arrest, then the doctrine of constructive malice is not abolished and it is still murder.

Let us have a look at Clause 1 (2). It says: For the purposes of the foregoing subsection, a killing done in the course or for the purpose of resisting an officer of justice, or of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody, shall be treated as a killing in the course or furtherance of an offence. Surely that is clear. It is one of the very few parts of the Bill which I do find clear. Hon. Members will find that the words are almost exactly those in the Clause which we are now considering in another connection, except that the words "officer of justice" have been left out.

We now have it that if the Bill goes through, if one commits an involuntary homicide by resisting arrest by an officer of justice, then it is murder. The use of "involuntary homicide" was a little unfortunate. Perhaps I should have said that a killing without malice aforethought in the course of the felony of resisting arrest is murder.

Now, the Clause which we are now considering, eliminating the words "officer of justice," says that if that killing takes place in the course of resisting any arrest, then it is not only murder, but capital murder. In other words, virtually the same considerations obtain twice, first, turning a killing which is not otherwise murder into murder, and then declaring it capital murder. In those circumstances the difference in wording of the two Clauses is singularly unfortunate.

It will mean that a different set of considerations will apply to one decision by the jury as to whether it is murder at all and to the other decision of the jury as to whether it is also, in precisely the same circumstances, capital murder, because the words "officer of justice" are of themselves words of some rather special importance and, in some connections, can be regarded as terms of art.

Let us first consider by whom arrests of this kind can be made. There is, of course, the normal and obvious example of an arrest made by a police officer in the course of his duty. Let us take the ordinary case of pursuance of a warrant. It is material that the Committee should remember that a lawful arrest may be made of a perfectly innocent person, a lawful arrest may be made of the wrong person, a lawful arrest may be made under a warrant incorrectly completed, or a lawful arrest may be made of some person mistakenly identified for somebody else.

All those arrests are lawful, because the test of "lawful" in that connection is not what is in the mind of the victim of the arrest, but what is in the mind of and what is the authority of the person making the arrest. So there is a conflict in which two quite different tests are being made and in which we are laying down that the test to apply to the prisoner is what is in the mind of the person who makes the arrest and what is his knowledge and what is his authority, all matters that may not be known to the prisoner. That is a normal case.

What is an officer of justice? We have sought information on this on a great number of occasions, but I apprehend, at least in the absence of any special definition, that an "officer of justice" includes all those officers authorised by the courts in a whole variety of circumstances to make arrests. If there is contempt of court in a branch of the High Court, then the tipstaff of the court is sent to make the arrest, to detain the person and escort him to prison.

I am bound to say that very few of us know who the tipstaff is, except on the remote occasions when someone gets up in the court and shows that he is obviously the tipstaff. He carries no obvious device and wears no uniform. He performs other functions in the court, although I do not know what they are. When the moment arrives when outraged justice feels its conscience moved, and a High Court judge feels that emotion which was felt by many hon. Members this afternoon, a sense of outraged dignity—I do not have much dignity to outrage—off goes the tipstaff to make an arrest.

Do not let us forget that this is about the only form of imprisonment which, technically speaking, has no duration. If a person is arrested for contempt of court he is imprisoned until that contempt has been purged. If a person is arrested for contempt of court he is imprisoned for an unspecified term—an indefinite period—until some action is taken on his behalf by way of a purgative; by way of affidavit, and not by dangerous drugs.

These are serious matters, although the impression of outraged dignity, whether in connection with the Houses of Parliament or the judges, is apt to occasion a certain amount of mirth on the part of the non-participating observer. They involve long terms of imprisonment, and are imposed not merely for affronts to a judge but for non-compliance with the orders of the court, such as failing to swear affidavits; failing to lodge accounts and—commonest of all—failing to surrender a treasured child because a judge has come to the conclusion that one is a guilty person in a matrimonial dispute, or, if not, that one is the less likely person to make a suitable guardian for the child.

In these cases the tipstaff makes the arrest. It may be said that there are not many cases of tipstaffs having been killed in the course of their duty—but there are not many cases of other kinds of officers of justice being killed in that way. We have asked for the relevant figures, and I will give way if the Attorney-General wants to tell me how many cases there have been in this country to which the Clause would have referred. I can think of only one—the case of Police Constable Edgar. It was a serious case, but it is about the only one that comes to my mind.

Let us now consider the county court. There we find a very different state of affairs. Virtually the only method available to a county court for enforcing its judgments is by means of arrest. An order is made that a person should pay a sum of money and if he does not pay the person to whom he owes the money goes to court and proves his means. Finally, there is the issue of a judgment summons, and a special order is made. County court judges, being usually of a kindly nature, are most reluctant to use These powers, but there comes a moment at which the frustration of the court is such that a debtor who has constantly defied the court will be ordered to be arrested. In such a case the arrest will be made by the process of the county court bailiff. I believe that he can call upon the police in certain events, but, normally, such judgments are executed by him.

Then there is the petty sessional court. Here, much of the procedure, such as that exercised under the Small Tenements Recovery Act, 1838, has to be exercised by the person himself—the landlord who is levying the distress for rent. We live in happier times today, but I remember such cases when I was young, and I still hope to continue to live rather longer than this Government. In my early days this was a commonplace thing. The officer read out the warrant to the person and then, all too often, the landlord himself, or his agent, levied the distress—he put out the furniture and turned out the unhappy tenant, his wife and his family. All this was lawful process, under the direct authority of the court.

As my hon. and learned Friend has said, that is not all. In the past, in its infinite wisdom, Parliament has authorised a great number of people to make arrests in special circumstances. There is the authorised gamekeeper, wandering about at night, when there never is a greater possibility of a miscarriage of justice. Justice may be carried on in the dark, but it is not always possible to identify the accused in the dark.

9.15 p.m.

I recall a case from my own experience where a couple of armed poachers were stopped at night by a gamekeeper on land belonging to Sir George Beaumont, a very well-known and greatly respected landowner. The poachers ran away, which, on the whole, was a sensible thing to do. The gamekeeper thought he knew who they were and ran round to their homes and waited for them to come in; and when they came he arrested them. The men were most indignant. They said that they had not been near the land of Sir George Beaumont on that night. They had been there the night before, but on that night they were on the land of Earl Ferrers, and they were prepared to prove it.

The poachers being sportsmen, and Earl Ferrers being on the bench. I was able to produce the men who were on Sir George Beaumont's land and who were not prepared to see such a gross miscarriage of justice of that kind occur. That was one of the occasions when it was prevented from happening. But in a mistake of that kind there is a very real possibility of a miscarriage of justice.

Do not let us forget that it is in this field that some notable miscarriages of justice have occurred. We should remember, with every desire to support officers of justice in the execution of their duty, and particularly police officers, that this is one of those occasions in which a man naturally becomes to some extent a judge in his own court. Whether a person assaulted a policeman first in the struggle, or whether the policeman assaulted the man first, has been the subject of considerable argument. Before the Labour Party became respectable, there were a number of us who had more than a personal interest in some of these discussions.

Mr. S. Silverman

My hon. Friend means more than a professional interest.

Mr. Hale

More than a professional interest, and certainly a personal interest. I am bound to say that in the past I have had my own little conflicts and they came rather near to the point at which we might have had to seek the determination of some court of justice; and upon reflection, I was rather happy that it was not necessary to seek that determination. There could have been argument on the matter.

Mr. Raymond Gower (Barry)

Surely the hon. Gentleman was a Liberal candidate in those days.

Mr. Hale

I was certainly a Liberal candidate, but I am not prepared to say that I was a better man when I was a Liberal candidate than I am now. In my youth, I had a little more brawn than discretion. Now I seek, with discretion, a new method of emphasis, which is what I am trying to do at the moment.

Mr. F. H. Hayman (Falmouth and Camborne)

Would my hon. Friend care to comment on what might happen if an hon. Member of this House were ordered to leave his place by Mr. Speaker, and something should occur to the officer coming into the Chamber to remove him? Would he then come within the ambit of this Clause?

Mr. Hale

That has happened. So far as I know, no Serjeant at Arms has ever perished in the course of these conflicts, and I am prepared to hope that that will not happen. Of course, combats have taken place, both in this honourable House and even to a greater extent in the democratic assemblies abroad, where conflicts with authority have taken place and where there have been arrests by officers of justice.

I do not know whether, if a murder took place in the Royal Palace of Westminster, it would be amenable to ordinary justice. I would say, without desiring any incitement of feelings of any kind, that if a murder did happen on these premises it would enable us to resolve some disputed questions which have entertained lawyers for years, and to which, when he was an hon. Member of this House, Sir Alan Herbert devoted careful and thoughtful attention. But if I proceed with that matter in detail, I shall be getting away from the ambit of the Amendment now before the Committee.

I am at the moment referring the Committee to arrests by officers of justice, but this Clause does not refer only to that. It refers to any arrest. It may well be beyond dispute that anyone can, in certain circumstances, make an arrest—

Mr. S. Silverman

The question is, what circumstances?

Mr. Hale

Yes. The question is, what circumstances? There are two main circumstances which permit an ordinary person to elevate himself into an officer of justice and make an arrest. The first is if he sees a felony being committed. This is an interesting definition, because there is not a lawyer who can tell us what is a felony and what is a misdemeanour. It is certainly well known that there are grave offences that are misdemeanours and many slight offences that are felonies. As Shaw once said, this House is in the habit of doing things at twelve o'clock at night that no ordinary assembly would do even at ten o'clock in the morning. I have never had an opportunity of sorting out the laws and giving some elucidation of the problems.

The second and more important matter in this connection is that an ordinary individual can be called upon by the police to render assistance. If a police officer is struggling with someone whom he suspects of committing a crime and whom the police officer thinks he has the duty and right to arrest he can call on any passer-by for assistance, and if that passer-by does not respond he is himself liable to be charged as an accessory or with an offence against the law. The result is that any one of us going home tonight may well be called upon to assist in making an arrest.

Under the terms of this Clause now it may very well be that one of the ideas in the mind of the Parliamentary draftsman is the curious dichotomy between the two Clauses that a person resisting arrest by a police officer and then causing in the struggle the death of some other person who has come to assist and not the police officer would then be guilty of capital murder. I do not think that the Under-Secretary would dispute that that is what the Clause means as it stands. If one resists arrest by an officer of justice and, in the course of doing so, commits a homicide involving another person who has come properly to the assistance of that officer it is capital murder even if the homicide was not deliberately intentional but caused in the course of the struggle, provided, of course, that sufficient violence is used. I am not saying for a moment that if someone slips off the pavement and falls under a vehicle in those circumstances it would involve that. But there need be no intent to kill.

Sir H. Lucas Tooth

In the speech of Major Lloyd George in the OFFICIAL REPORT, explaining Clause 1 of the Bill, he said: Clause 1 abolishes the doctrine of constructive malice. Its effect is that a killing in the course of a felony, resisting an officer of justice, avoiding or escaping from legal custody or from arrest will not be murder unless it is done with intent to kill."—[OFFICIAL REPORT, 15th November. 1956; Vol. 560, c. 1155.]

Mr. Hale

The Clause says: Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence. For the purposes of the foregoing subsection, a killing done in the course or for the purpose of resisting an officer of justice, or of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody, shall be treated as a killing in the course or furtherance of an offence. Surely that is what it means. If we have now reached a basis of agreement, I say at once that any statement that I make about this Bill I make with hesitation.

Mr. Rawlinson

Does the hon. Gentleman argee, in that case, that there must be the intent to kill or the intent to cause grievous bodily harm?

Mr. Hale

I do not, and I do not know of anyone else who does.

Mr. S. Silverman

No doubt my hon. Friend will remember the debate we had on that very Clause as a whole. My right hon. and learned Friend the Member for Newport (Sir F. Soskice) demonstrated to conviction that the Clause to which my hon. Friend's attention has just been drawn was completely meaningless, because there was no murder that could be committed except in the course of committing another offence.

Mr. Hale

Certainly. As I was about to say, any statement I make about this Bill I make with hesitation because I do not know that I understand it thoroughly and I do not believe that anyone on the Front Bench opposite understands it thoroughly. I think that the explanation given by the Home Secretary an hour or so ago was about the most intelligible that we have yet had and the only one about which we had any certainty.

It is suggested that we should listen to a somewhat ghostlike voice from a person who is now in another place. We are not normally allowed to quote what is said by people in another place, and, therefore, to rely upon the utterances of a disembodied Parliamentary spirit, floating uneasily between this place and another place until it comes to rest, is at least a matter of some dubiety. I shall listen to it with attention. I am prepared to admit the possibility of error. It is only to try to clear up the possibility of error that I am on my feet now. I have no personal desire whatever to discuss this matter if one can have no hope of certitude about it.

The subsection does not finish there. We are all indebted to my hon. and learned Friend the Member for Northampton (Mr. Paget). I hope that he will press his Amendment to a Division. Paragraph (c) speaks of assisting an escape or rescue from legal custody". Legal custody has nothing necessarily to do with it or with officers of justice, or with warrants of arrest, or whether some person is there to take somebody into custody or not. If it means anything at all, legal custody can involve almost any form of detention and a great many forms of guardianship, short of abduction. In the old days one of the favourite local hobbies of the lads of the village was abducting wealthy heiresses. Abduction clubs were quite a feature of the social life of Ireland. It was the kind of thing a gentleman could do. He might not owe money to the tradesmen or have gambling debts, but he could abduct an heiress, and public sympathy was usually with him when he did.

Legal custody involves many forms of detention and escape from it may mean escape by order of a court. It seems to involve escape from a mental institution. The words "legal custody" could not be wider. They might apply to mental defectives, and to people in remand homes and various other places under order. I do not know whether the words would not involve the detention in an ordinary household of an infant child by its father. That is legal custody.

Under the circumstances, perhaps the time has come to ask right hon. Gentlemen on the Government side of the Committee to elucidate what the Clause was intended to mean. Having heard what it may mean, will they tell us what they would like the Clause to mean? When we have that information we may be able to continue the discussion to the point at which we can arrive at an agreed solution of what is undoubtedly an extremely difficult problem, and on which we are desirous of giving those right hon. Gentlemen all the assistance in our power.

9.30 p.m.

The Attorney-General

I have listened to the whole of this debate and I will endeavour to reply to the various points which have been made.

The hon. Member for Oldham, West (Mr. Hale) raised, I thought the most serious point of all before proceeding to amuse us by reminiscences of one kind and another. He raised the point in regard to Clause 1. I expected that someone would do that and I was rather surprised that it had not been done before. I shall be glad to convince him—I hope I shall be able to do so—that his argument on that matter is not well-founded. Clause 1, which we debated at length, merely deals with the abolition of the doctrine of constructive malice and establishes that to constitute the crime of murder there must either be an intent to kill or an intent to do grievous bodily harm, or the real likelihood of killing or doing grievous bodily harm. That is in no way affected by this provision.

The hon. Member will see that paragraph (c) is carefully drawn by saying murder and to constitute murder in the light of Clause 1 we would have to have those intents. I am grateful to the hon. Member for raising the point and I hope that, on reflection, he will agree that there is really nothing in the point, for to come within paragraph (c) the murder must have the intent or the real livelihood of the kind to which I have just referred. That is what I expected would be raised and I am grateful to the hon. Member for giving me an opportunity of dealing with it.

A question which has caused a great deal of comment is what is meant by "lawful arrest". Of course, there are many occasions on which a lawful arrest can be effected. In the books one finds a considerable number of cases as to whether or not the arrest was effected lawfully. I can assure the hon. Member that it is the decision of the Government that those who do commit murder in the full sense of the word while in the course of or for the purpose of resisting or avoiding or preventing a lawful arrest should remain liable to the capital sentence.

I think I can deal quite shortly with the drafting points which have been made. I do not suggest that they were not important. The hon. and learned Member for Northampton (Mr. Paget) asked why we had the words "in the course of". He asked whether anything done "in the course of" would not also be done "for the purpose of". The reason we have used in the course of or for the purpose of is to prevent the argument arising, as it might well arise in a particular trial if we had only one of those phrases, "This was done, it is true, 'in the course of' but this murder was not committed 'for the purpose of resisting or avoiding or preventing lawful arrest'".

Mr. Paget rose

The Attorney-General

Will the hon. and learned Member allow me to continue? I did not interrupt his speech and I want to deal with the various points which have been made.

That is the reason for inserting the two phrases and I do not think that it will give rise to any difficulty. It would be a question of fact in each case, whether it was "in the course of" or "for the purpose of", but, if it is a deliberate murder done either in the course of or for the purpose of resisting or avoiding or preventing a lawful arrest in the view of the Government that should be liable to the death sentence.

The hon. and learned Member asked why we have the words, "avoiding a lawful arrest." We put them in because we believe that those words are necessary for the proper application of this paragraph. If I might give an instance, as I was asked by the hon. and learned Member to give one, a person may see a violent crime committed and go to telephone the police. He is the only person who is a witness to that crime. The person committing the crime sees the witness going to communicate with the police and then kills him. That is an unlikely case, but in such a case one could not say that the murder was "for the purpose of" preventing an arrest. The murder of the one witness could be said, though, to be a murder "for the purpose of" avoiding an arrest. This Clause, in our view, is no wider than is required to achieve the object the Government had in mind by its insertion.

Mr. Paget

Was the right hon. and learned Gentleman here when the Home Secretary argued so powerfully against including categories on the basis of motive? Here we are including, apparently on the illustration, something which is the purest motive. We are deciding that it shall be a capital offence if one kills somebody because it is thought that one wanted to prevent that person giving evidence that might lead to one's arrest. It is the most extra-ordinary thing.

The Attorney-General

The hon. and learned Gentleman may think it is, but I disagree with him. My right hon. Friend the Home Secretary spoke about dominant motives, which was the expression in the Amendment under consideration. I think there will be no difficulty in the courts in determining whether a particular act or a particular murder was done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest.

Mr. S. Silverman

I do not understand the right hon. and learned Gentleman's reference to the man who commits the murder of a material witness. I should have thought that one could make out a case for saying that that was done to prevent or avoid conviction, but how can it be said that it would be done for the purpose of avoiding arrest? If we do say so, how do we then distinguish between avoiding and preventing? Which would it be, avoiding or preventing?

The Attorney-General

For the purpose of this Clause, it does not matter which it is; it is one of them. I was dealing with the eye-witness, not the witness in court, the person who happened to see a crime being committed, when the violent criminal, to avoid his arrest, destroys that one witness of the Crown to avoid evidence of identity.

It could not be said that it was a murder for the purpose of preventing lawful arrest, though it might be argued. What is certain is that by including both words, this position is covered. [Interruption.] I am sorry if the hon. Gentleman does not follow me. I have done my best, and I hope he will see that if we re-write any of the words in the sub-paragraph we shall certainly be opening a rather wide door for a good deal of legal argument on very narrow grounds. There may be legal argument, anyhow Some would say that that is not a bad thing. I would only say to the hon. Gentleman that I am quite satisfied that if we leave any of those words out we may well create a whole series of anomalies which are undesirable.

I should like to come back to the main object of the inclusion of this category, and that is really the point which the hon. Member for Nelson and Colne raised in his speech. The hon. Gentleman challenged the necessity of this category at all, and he put it on the basis that there will not be many persons convicted under this category. How many will there be in the next ten years? That was the question the hon. Gentleman asked me. I do not know. I think there will be very few, because it is not the object to try to secure the maximum number of executions. The object is to try to secure that murders are not committed, and we believe, as I have said—and it has been said before—that here it is essential to retain the capital sentence in the public interest in the categories described in this Clause.

It really would be very ridiculous, I suggest, when the Committee has approved the inclusion of murder done in the course of or furtherance of theft as being liable to the capital sentence, to decide that murder done in the course of avoiding lawful arrest after the commission of the crime of theft should not carry the same penalty. One goes with the other, to some extent. I have listened to the long speeches which have been made expounding the criticisms made of this Clause, and I do not think that there is much more I need say, except this to the hon. Member for Nelson and Colne. I cannot agree with him that there would be more chances of a miscarriage of justice under this paragraph (c). I do not think that the chances are increased at all, and I cannot agree with the hon. Gentleman in the views which he expressed about the Rowlands case or again in relation to the use of a golf club if, in fact, the police constable had died. I feel quite certain that if the policeman had died the accused would have told the truth and not falsehoods.

Mr. S. Silverman


The Attorney-General

Because if charged with murder the chances are that they would tell the truth as to where they had been and would never be convicted. However, I am not dealing with that, but merely saying that I do not at all accept the hon. Gentleman's proposition in regard to this Clause. I submit to the Committee that this is an essential provision in this Bill, and a provision which should be retained.

Mr. Paget

There is one point on this. If this is to include the killing of the material witness, what murder does it not include? It is very difficult to contemplate a murder in which the victim would not be a material witness.

The Attorney-General

The hon. and learned Gentleman cannot really have listened to what I said. I said that, in certain circumstances, it might be for the purpose of avoiding arrest. I was trying to give him an instance of the possible application of this provision in a Bill which, I was glad to notice, the hon. Member for Oldham, West thought to be, on the whole, a well-drafted Bill.

Mr. Silverman

Before the right hon. and learned Gentleman finally resumes his seat, I wonder whether I might ask him to clarify something that he misunderstood, no doubt by my fault. I did not say that this paragraph which I want to remove would increase the danger of misidentification and consequent miscarriages of justice. I said not that it would increase them but that this category of cases afforded the widest scope for possible miscarriages of justice.

The Attorney-General must know, as those of us who practise in the criminal courts know, that there is, especially at the criminal bar, among the most experienced practitioners at the bar, a growing disquiet about the tolerance by the court of known miscarriages of justice in cases of misidentification. I refer to the kind of argument that the man involved, certainly under this Clause, is very likely to be a man with a record, and the attitude of the court is, "What does it matter if he is sometimes convicted for what he did not do? There must have been many times when he was not convicted for things that he did do."

I am not raising this as any kind of bogey, and I am certainly not making any attack upon the administration of justice, but the right hon. and learned Gentleman must know that at the criminal bar there is growing anxiety over this kind of attitude to faulty identification.

The Attorney-General

I do not think that the point really arises on this Amendment, but in view of what the hon. Member has said, perhaps I may be permitted to say just this. There have been one or two, but not very many, cases where there has been difficulty of one kind or another as to identity. Those cases, I agree, are disturbing when they occur, but I could not support the hon. Gentleman in what he has said; that there is a feeling at the criminal bar of lack of concern about such matters. I really do not think that that is right. I certainly do not believe that the view. "Well, if he has been wrongly convicted this time, he probably has a record and ought to have been convicted some other time" is growing. I find no confirmation anywhere of that. But if the hon. Gentleman likes to discuss it with me on an occasion when, perhaps, it would be more in order, I shall be only too glad to hear anything that he has to say about it.

9.45 p.m.

Mr. Kenneth Younger (Grimsby)

I do not imagine that the Attorney-General would really claim that he has met in any detail the arguments which have been advanced from this side of the Committee. It certainly did not seem to me that he was seriously attempting to do that. In particular, he will not expect that his appeal to the Committee to accept this paragraph because it is as good as paragraph (a) about theft would have very much appeal at any rate to those of us on this side and those on the other side who, throughout these debates, have tended to share the point of view which I have always expressed.

All the Attorney-General was able to do was to convince us once again of what we have already become convinced of in our earlier discussions, namely that all these attempts from (a) to (e) to make some kind of exception from the general principle of the Bill do little more than create anomalies. Everybody knows the old story. Everybody knows that attempts have been made to do this for 100 years. They have always failed, and the Attorney-General has been no more successful than his predecessors.

One must either attempt to make decisions on the basis of very broad principle, as, for instance, on the question of premeditation, in which case one creates gross anomalies and injustices, or one must give that up and try to pick out narrower categories as is done here, in which case one ends up with what the Lord Chief Justice, in connection with the 1948 Clause, called a mere hotchpotch. Further, one tends to give rise to the sort of doubts which have been introduced here, particularly by my hon. and learned Friend the Member for Northampton (Mr. Paget) in the subsequent Amendments we are discussing with the principal one at this moment.

What has occurred is that the Government have picked out a list of miscellaneous offences, each one of which makes some kind of appeal to some particular group of persons as being a category which ought to be exceptionally treated. When one looks at the list as a whole, there is no coherent principle at all to be seen running through it. I am bound to say that I should have thought that that would be very distasteful to all practising lawyers and to all who have a respect for the intellectual integrity of the law. This was, in fact, the main objection raised by all the law lords to all attempts of this kind in 1948, and even those of us who at that time were anxious to see some kind of compromise accepted were bound, I think, to admit the force of their arguments.

In those debates, a phrase was used to this effect—I am not quoting it verbatim—that the essentials of the criminal law were simplicity, certainty and an absence of capriciousness. It is surely on the first of these, simplicity, that the Attorney-General ought to have much more doubt than he seems to have about the use of the expression "lawful arrest". I thought the Attorney-General dismissed my hon. and learned Friend's arguments far too briefly on that matter. After all, one knows that even for the police officer it is not easy to know when an arrest is going to be lawful. It always seems to me that one of the heaviest burdens put upon the young police constable is to go out on the streets and have to decide in a moment whether he is entitled to arrest or not.

If it is difficult for the police officer, how much more difficult is it for the person who finds himself subjected to arrest. If he is being subjected to arrest by someone dressed in police uniform, in most cases he will probably think that discretion is the better part of valour, and, even if he doubts whether it really is a case for arrest, he will be unlikely to resist. But the situation is very different if the person purporting to arrest him is not a police officer, or, at any rate, is not visibly a police officer; and such a case is, of course, covered by the provision we are discussing.

It seems to me almost impossible for the victim of an arrest to know with any certainty at all whether someone who is in civilian clothes is effecting a lawful arrest or not. We all know that that type of dispute is liable to come up in the case of an arrest anyway, quite irrespective of the Clause, but it seems to me particularly unsuitable to make big issues depend upon this sort of legal nicety, and particularly the issue of life or death.

Instances were given of appeals which have gone up to the House of Lords and which, presumably, must have taken a considerable time. If there is one thing upon which the whole of the public insists in capital cases, it is that there should be promptness. The public would not tolerate capital cases dragging out on legal technicalities. Once again, we come back to the point which was so much emphasised by the Lord Chief Justice. It is for that reason that there must be simplicity.

The typical murder case is, I think, from the legal point of view, a relatively easy type of case for the judge to explain in his summing up to the jury. As the law at present stands, unless he has complicated questions of constructive malice—which I hope we will do away with in any case—the judge has the simple issue of an incident and whether the accused person did it, and he is putting the facts. It will certainly be much more complicated if he has to put it to the jury that they have to consider all these phrases about "in the course … of", "for the purpose of" and "avoiding or preventing".

I shall not repeat the arguments of my hon. and learned Friend the Member for Northampton (Mr. Paget) on those points. I did not find it at all easy to follow the Attorney-General's reply, particularly in the distinction which he seemed to be drawing between "avoiding" and "preventing". It seemed to me that what he was saying was, "Whether it is 'for the purpose' or whether it is merely 'in the course', whether it is 'preventing' or 'avoiding', we want to cover every kind of case where there is an avoidance of an arrest and where, more or less at the same time and place, there is also a killing." That seems to me to be tying together different sets of circumstances which really are not sufficiently similar to justify being picked out for this exceptional penalty.

I thought that the Attorney-General was even less satisfactory on the question of identity, but in his second intervention my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) made the point which has to be made on that; and I leave it there. I only want to repeat that the Clause has not succeeded, as we knew it could not succeed, in avoiding the difficulties which have defeated all previous draftsmen of making some exception which was free from complication, uncertainty and capriciousness.

The Attorney-General, it seemed to me, said very little to justify picking out this particular category. It is very much associated in all our minds with the need to protect and to give confidence not only to police officers in particular, who have such dangerous duties to perform, but also, incidentally, to private citizens. All of us, whatever our view on this, feel a deep responsibility on that score. What I cannot understand is how anybody, whatever his views about the death penalty as a deterrent, who feels responsibility for the police could really accept this sort of solution, because in accepting the rest of the Bill he has really given away to so large an extent the proposition that the death penalty is a deterrent at all. If he really believes it to be a deterrent, he must include not only this, but scores of other things which have been left out of the Bill.

In that I can see the logic of those who are really full-scale retentionists, but I cannot see the logic of the Government's present Bill. On the other hand, those of us who do not believe that the death

penalty is a unique deterrent but who nevertheless have a full regard for the need for giving safety to the police, must oppose this sort of clause. We do not feel that their safety would be in any way endangered if this were to be removed and we must oppose the incorporation of what seems to us a wholly unnecessary and, in the intellectual sense, not very respectable, anomaly in the British criminal law.

Question put, That the words proposed to be left out stand part of the Clause:—

The Committee divided: Ayes 187, Noes, 139.

Division No. 36.] AYES 19.55 p.m.
Agnew, Sir Peter Gurden, Harold Marshall, Douglas
Aitken, W. T. Harris, Frederic (Croydon, N. W.) Maude, Angus
Alport, C. J. M. Harrison, col. J. H. (Eye) Mawby, R. L.
Amery, Julian (Preston, N.) Harvey, Air Cdre. A. v. (Macclesfd) Maydon, Lt.-Comdr. S. L. C.
Amory, Rt. Hn. Heathcoat (Tiverton) Heald, Rt. Hon. Sir Lionel Milligan, Rt. Hon. W. R.
Arbuthnot, John Heath, Rt. Hon. E. R. G. Mott-Radclyffe, Sir Charles
Armstrong, C. W. Hesketh, R. F. Nabarro, G. D. N.
Ashton, H. Hill, Mrs. E. (Wythenshawe) Nairn, D. L. S.
Atkins, H. E. Hill, John (S. Norfolk) Neave, Airey
Baldwin, A. E. Hirst, Geoffrey Nicholls, Harmar
Barber, Anthony Holland-Martin, C. J. Nicholson, Godfrey (Farnham)
Barlow, Sir John Hope, Lord John Nicolson, N. (B'n'm'th, E. & Chr'ch)
Barter, John Hornby, R. P. Nugent, G. R. H.
Bell, Philip (Bolton, E.) Hornsby-Smith, Miss M. P. Oakshott, H. D.
Bevins, J. R, (Toxteth) Hughes Hallett, Vice-Admiral J.
Bidgood, J. C. Hughes-Young, M. H. C. Osborne, C.
Biggs-Davison, J. A. Hurd, A. R. Page, R. G.
Birch, Rt. Hon. Nigel Hylton-Foster, Rt. Hon. Sir Harry Pannell, N. A. (Kirkdale)
Bishop, F. P. Iremonger, T. L. Peyton, J. W. W.
Bossom, Sir Alfred Irvine, Bryant Godman (Rye) Pickthorn, K. W. M.
Boyd, T. C, Jenkins, Robert (Dulwich) Pike, Miss Mervyn
Boyd-Carpenter, Rt. Hon. J. A. Jennings, J. C. (Burton) Pitt, Miss E. M.
Boyle, Sir Edward Jennings, Sir Roland (Hallam) Pott, H. P.
Bromley-Davenport, Lt.-Col. W. H. Johnson, Dr. Donald (Carlisle) Price, David (Eastleigh)
Brooke, Rt. Hon. Henry Johnson, Eric (Blackley)
Bullus, Wing Commander E. E. Joseph, Sir Keith Price, Philips (Gloucestershire, W.)
Butcher, Sir Herbert Joynson-Hicks, Hon. Sir Lancelot Profumo, J. D.
Butler, Rt. Hn. R. A. (Saffron Walden) Kaberry, D. Ralkes, Sir Victor
Carr, Robert Keegan, D. Rawilnson, Peter
Channon, Sir Henry Kerby, Capt. H. B. Redmayne, M.
Chichester-Clark, R. Kerr, H. W. Rees-Davies, W. R.
Cooper-Key, E. M. Kimball, M. Remnant, Hon. P.
Cordeaux, Lt.-Col. J. K. Kirk, P. M. Ridsdale, J. E.
Corfield, Capt. F. V. Lagden, G. W. Rippon, A. G. F.
Craddook, Beresford (Spelthorne) Lambert, Hon. G. Roper, Sir Harold
Crowder, Sir John (Finchley) Langford-Holt, J. A. Ropner, Col. Sir Leonard
Currie, G. B. H. Leavey, J. A. Russell, R. S.
Dance, J. C. G. Legge-Bourke, Maj. E. A. H. Schofield, Lt.-Col. W.
D'Avigdor-Goldsmid, Sir Henry Legh, Hon. Peter (Petersfield) Scott-Miller, Cmdr. R.
Deedes, W. F. Lindsay, Hon. James (Devon, N.) Simon, J. E. S. (Middlesbrough, W.)
Donaldson, Cmdr. C. E. McA. Linstead, Sir H. N. Spearman, Sir Alexander
Eccles, Rt. Hon. Sir David Longden, Gilbert Speir, R. M.
Eden, J. B. (Bournemouth, West) Lucas, P. B. (Brentford & Chiswick) Stevens, Geoffrey
Errington, Sir Eric Lucas-Tooth, Sir Hugh Steward, Sir William (Woolwich, W.)
Farey-Jones, F. W. Macdonald, Sir Peter Stoddart-Scott, Col. M.
Fisher, Nigel McKibbin, A. J. Storey, S.
Fletcher-Cooke, C. Mackie, J. H. (Galloway) Summers, Sir Spencer
Fraser, Sir Ian (M'ombe & Lonsdale) Sumner, W. D. M. (Orpington)
Garner-Evans, E. H. McLaughlin, Mrs. P. Taylor, William (Bradford, N.)
George, J. C. (Pollok) Maclay, Rt. Hon. John Thompson, Kenneth (Walton)
Glover, D. MoLean, Neil (Inverness) Thompson, Lt-Cdr. R. (Croydon, S.)
Godber, J. B. MacLeod, John (Ross & Cromarty) Thornton-Kemsley, C. N.
Comme-Duncan, Col. Sir Alan Macmillan, Rt. Hn. Harold (Bromley) Tiley, A. (Bradford, W.)
Graham, Sir Fergus Macmillan, Maurice (Halifax) Tilney, John (Wavertree)
Grant, W. (Woodside) Macpherson, Niall (Dumfries) Turner, H. F. L.
Grant-Ferris, Wg Cdr. R. (Nantwich) Maddan, Martin Turton, Rt. Hon. R. H.
Green, A. Manningham-Buller, Rt. Hn. Sir R. Vane, W. M. F.
Gresham Cooke, R. Markham, Major Sir Frank Vaughan-Morgan, J. K.
Grimston, Hon. John (St. Albans) Marlowe, A. A. H. Vosper, Rt. Hon. D. F.
Grosvenor, Lt.-Col. R. G. Marples, Rt. Hon. A. E. Wakefield, Sir Wavell (St. M'lebone)
Wall, Major Patrick Williams, Paul (Sunderland, S.) Woollam, John Victor
Ward, Rt. Hon. G. R. (Worcester) Wills, G. (Bridgwater) Yates, William (The Wrekin)
Ward, Dame Irene (Tynemouth) Wilson, Geoffrey (Truro)
Whitelaw, W.S.I.(Penrith & Border) Wood, Hon. R. TELLERS FOR THE AYES:
Mr. E. Wakefield and Mr. Bryan.
Ainsley, J. W. Houghton, Douglas Pentland, N.
Allaun, Frank (Salford, E.) Howell, Charles (Perry Barr) Popplewell, E.
Allen, Arthur (Bosworth) Howell, Denis (All Saints) Price, J. T. (Westhoughton)
Awbery, S. S. Hoy, J. H. Probert, A. R.
Bacon, Miss Alice Hughes, Cledwyn (Anglesey) Proctor, W. T.
Benson, G. Hughes, Emrys (S. Ayrshire) Randall, H. E.
Beswick, F. Hughes, Hector (Aberdeen, N.) Redhead, E. C.
Blackburn, F. Hunter, A. E. Roberts, Albert (Normanton)
Blyton, W. R. Hynd, J. B. (Attercliffe) Roberts, Goronwy (Caernarvon)
Boardman, H. Irvine, A. J. (Edge Hill) Ross, William
Bottomley, Rt. Hon. A. G. Isaacs, Rt. Hon. G. A. Short, E. W.
Bowden, H. W. (Leicester, S.W.) Janner, B. Silverman, Sydney (Nelson)
Bowen, E. R. (Cardigan) Jay, Rt. Hon. D. P. T. Simmons, C. J. (Brierley Hill)
Braddock, Mrs. Elizabeth Jenkins, Roy (Stechford) Skeffington, A. M.
Brookway, A. F. Jones, David (The Hartlepools) Slater, Mrs. H. (Stoke, N.)
Brown, Rt. Hon. George (Belper) Jones, Jack (Rotherham) Smith, Ellis (Stoke, S.)
Brown, Thomas (Ince) Jones, J. Idwal (Wrexham) Soskice, Rt Hon. Sir Frank
Burke, w. A. Jones, T. w. (Merioneth) Steele, T.
Champion, A. J. Kenyon, C. Stewart, Michael (Fulham)
Coldrick, W. King, Dr. H. M. Stones, W. (Consett)
Collick, P. H. (Birkenhead) Lawson, G. M. Stross, Dr. Barnett (Stoke-on-Trent, C.)
Collins, V. J.(Shoreditch & Finsbury) Lee, Frederick (Newton) Sylvester, G. O.
Craddock, George (Bradford, S.) Lever, Leslie (Ardwick) Taylor, Bernard (Mansfield)
Cullen, Mrs. A. Lipton, Lt.-Col. M. Timmons, J.
Dalton, Rt. Hon. H. MacColl, J. E. Usborne, H. C.
Davies, Stephen (Merthyr) McGhee, H. G. Wade, D. W.
Deer, G. McGovern, J. Warbey W. N.
Dugdale, Rt. Hn. John (W. Brmwch) McKay, John (Wallsend) Watkins, T. E.
Ede, Rt. Hon. J. C. MacPherson, Malcolm (Stirling) West, D. G.
Edwards, Rt. Hon. Ness (Caerphilly) Mallalieu, E. L. (Brigg) Wheeldon, W. E.
Edwards, Robert (Bilston)
Ferny hough, E. Mann, Mrs. Jean White, Henry (Derbyshire, N.E.)
Fienburgh, W. Mason, Roy Wigg, George
Forman, J. C. Mitchison, G. R. Wilkins, W. A.
Fraser, Thomas (Hamilton) Monslow, W. Willey, Frederick
Gaitskell, Rt. Hon. H. T. N. Moody, A. S. Williams, Rev. Llywelyn (Ab'tillery)
Gibson, C. W. Morris, Percy (Swansea, W.) Williams, Ronald (Wigan)
Gordon Walker, Rt. Hon. P. C. Moyle, A. Williams, Rt. Hon. T. (Don Valley)
Greenwood, Anthony Neal, Harold (Bolsover) Williams, W. R. (Openshaw)
Grenfell, Rt. Hon. D. R. Oram, A. E. Willis, Eustace (Edinburgh, E.)
Grey, C. F. Oswald, T. Woodburn, Rt. Hon. A.
Hale, Leslie Owen, W. J. Woof, R. E.
Hall, Rt. Hn. Glenvil (Colne Valley) Paget, R. T. Yates, V. (Ladywood)
Hayman, F. H. Paling, Rt. Hon. W. (Dearne valley) Younger, Rt. Hon. K.
Herbison, Miss M. Pargiter, G. A. Zilliacus, K.
Holman, P. Parker, J.
Holmes, Horace Pearson, A. TELLERS FOR THE NOES:
Holt, A. F. Peart, T. F. Mr. Royle and Sir L. Plummer.
Mr. Paget

On a point of order. It was always our intention and wish to divide on the four Amendments in my name which we discussed with the last Amendment, because in our view they raise quite different matters. When the original Amendment was moved, Sir Charles was in the Chair. I was asked whether I agreed to having those four Amendments discussed with the other, and I certainly did agree. I then rose to move my four Amendments, and I did, as I thought, move them. I said, "I beg to move the next four Amendments in my name", and no objection was taken to that.

It is therefore my submission that the Committee ought to be entitled to express its views on those Amendments which have been moved. The rule which gives the Chair power to select Amendments is a whole power. There is no power to select an Amendment for the purpose of debate but not for Division, because once an Amendment has been selected there is a Question before the Committee which can be resolved only by the Committee answering that Question. In my submission, that is what happened in this case. I humbly submit that we should be entitled to express our opinion on these various important points.

Mr. Silverman

Further to that point of order. May I submit a slight extension of the point raised by my hon. and learned Friend? I base my submission on the assumption, which I believe to be correct, that my hon. and learned Friend did actually in form expressly move each of these Amendments and did so at the invitation of the Chair, who said that they could be moved and discussed together with the Amendment upon which the Committee has just reached a conclusion.

What my hon. and learned Friend has submitted is that the Committee must dispose of these in some way, by adopting or rejecting them, or by allowing them to be withdrawn. I submit that the discussion can still proceed upon each and all of these Amendments. They have been moved. No Closure has yet been even moved, let alone permitted by the Chair.

The Deputy-Chairman

These Amendments have not been moved.

Mr. S. Silverman

Begging that question for the moment—I said on the assumption that they had been moved—the Amendments are still before the Committee and, until the Committee decides to end the discussion on them, they are still open to be discussed and, in my submission, cannot be disposed of except by collecting the voices of the Committee.

The Deputy-Chairman

The position is that these Amendments were not selected and certainly were not moved. The Committee's decision is now that paragraph (c) shall stand part of the Clause and these Amendments therefore obviously fall.

Mr. Anthony Greenwood

I understand from my hon. Friends who consulted the Chair before these discussions today that the Amendments tabled by my hon. and learned Friend the Member for Northampton (Mr. Paget) were in fact down for selection. My hon. and learned Friend indeed says that he actually moved them. I should like your guidance on that, Sir Gordon.

The Deputy-Chairman

In the first place, I can assure the hon. Member for Rossendale (Mr. Anthony Greenwood) that they were not selected and, in the second place, could not be moved, because the previous Amendment was before the Committee.

Mr. Charles Royle (Salford, West)

It is certainly within my recollection that, in consideration of the matter, Sir Charles said that they were selected and that the discussion would take place on the main Amendment and the four following ones. I submit that now that the main Amendment has been rejected, discussion should be allowed on the four following Amendments so that their worthiness may be considered. The phrases "in the course or"; "or avoiding"; "or preventing", and of effecting or assisting an escape or are all phrases to which we may object. We surely have a right to have a collection of voices whether or not the Committee is in favour of these words.

Mr. Paget

When you say, Sir Gordon, that these Amendments could not be moved because another Amendment was before the Committee, surely that cannot be right. I have frequently said, "I beg to move" a certain Amendment "and also the Amendment on page so and so, which is consequential". One moves the two Amendments at the same time.

The Deputy-Chairman

In fact, only one Amendment can be moved at a time.

Mr. Silverman

This is a very difficult point. We are dealing with an important matter I submit to you, Sir Gordon, that the question whether an Amendment has or has not been moved is not a question of law or procedure for the Chair to rule upon, but a question of fact. Whether or not the Amendments had been selected; whether there was a misunderstanding about it at any time, or whether the decision of the Chair had been given in this form, that form, or the other form, is irrelevant. We were all here; my hon. and learned Friend said that he moved his Amendments. We all heard him move them. I submit that it is not open to the Chair to rule that a fact which we all heard did not in fact happen. In fact the Amendments were moved, and upon that basis all that you, in the Chair, can decide is what the further course of debate with regard to those Amendments can be. It is not possible to cut the Gordian knot by saying that it did not happen; it did happen.

The Deputy-Chairman

There is no question of cutting the Gordian knot. It is quite a simple and familiar procedure. The question whether a Question is put or not depends upon whether it is proposed from the Chair. These Amendments were never proposed from the Chair. What was proposed from the Chair was the Question, That paragraph (c) stand part of the Clause. The Committee has now decided that the words which the Amendments suggest should be left out are to stand part. We cannot possibly go back upon that decision.

Mr. Younger

The Committee must have misunderstood the intention of the Chair. It would be very useful if the matter could be cleared up. It is within the recollection of all hon. Members who were here that Sir Charles MacAndrew said, when we started, that the four subsequent Amendments could be discussed. That is perfectly clear. The Chair subsequently allowed them to be moved—although that may not technically be so—and discussed in considerable detail.

What could have been the point of allowing a procedure of that kind unless it were going to be possible for the Committee in some way or other to reach a decision upon these Amendments? It is quite clear that if the Amendment to leave out paragraph (c) had succeeded all the other Amendments would have fallen. It now appears that because that Amendment was not accepted we are now not allowed to take a decision upon the other Amendments. Therefore, in no circumstances, from the start of the discussion, was there any possibility—according to your Ruling—of the Committee taking a decision, yes or no, upon any of these matters which it had been told specifically by the Chair could be discussed.

That seems to be an absurd situation. All hon. Members who were listening to my hon. and learned Friend move his Amendments were under the impression that it would be possible for the Committee to decide this matter one way or the other; otherwise there was no necessity for wasting the time of the Committee upon it.

The Chairman

I was in the Chair when the hon. Member for Nelson and Colne (Mr. S. Silverman) moved his Amendment, in page 3, line 1, to leave out paragraph (c). I did not say that the following four Amendments would be called to a Division.

10.15 p.m.

Mr. Younger

I think you did say at a later stage, in answer to an intervention by my hon. and learned Friend the Member for Northampton (Mr. Paget), that it was in order for all these Amendments to be discussed together. If, as now appears to be the case, it was going to be totally impossible for the Committee to take any decision in favour or against them, what was the purpose of the Committee discussing them for so long? We were under the impression, with all these being discussed together, that subsequently, in the event of paragraph (c) remaining in the Bill, it would be possible to decide whether the Committee wished to accept the subsequent Amendments. If not, the whole procedure appears to have been the loss of a matter of several hours.

The Chairman

I cannot understand that. The original Amendment was to leave out paragraph (c). Had I proposed to call a Division on the first Amendment of the hon. and learned Member for Northampton I should have said the words proposed to be left out stand part to "in" in line 1. The hon. and learned Member for Northampton asked me how many of his Amendments were being taken, and I said that his fifth Amendment was not in that group. I imagine that that is the one now before the Committee, namely, in page 3, line 4, at the end to insert: Provided that the killing shall have been intentional.

Mr. Hale

May I venture to seek your guidance, Sir Charles? It is within our recollection and yours that my hon. and learned Friend the Member for Northampton was under a slight misunderstanding at the outset of the discussion and he rose on a point of order, interrupting my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), who was opening the discussion, and said, "May I ask which Amendments in my name are being discussed with this Amendment?" You were good enough to reply, "Certainly, I only called the first four."

The Chairman

That is right.

Mr. Hale

And my hon. and learned Friend's Amendments were being called and discussed.

The Chairman

I never said they were being called. I never used the word "called" at all. I had no intention of calling them for a Division. The proof of that is the way in which I put the original Question, because I should have had to save for them if they were to be called, which I did not do.

Mr. Hale

I am by no means asserting your precise words, I am merely trying to recall a set of circumstances. My hon. and learned Friend the Member for Northampton had four Amendments in his name which were to be discussed and which have been discussed now since eight o'clock. They have been discussed. I should like to seek your guidance on how we terminate the discussion. An Amendment was on the Order Paper. It was certainly moved by my hon. and learned Friend, and the discussion has continued for over two hours. In my submission, that cannot be determined by voting on something else. I am trying to put a difficult point in two parts. It seems to me that unless and until the Committee voted, as it has voted, that this Clause remains part of the Bill, the question of leaving out a word or two here and there could not arise.

Had the Committee decided to leave out the paragraph, my hon. and learned Friend's four Amendments would have fallen; they would have become impracticable. But they have not, because we have left in the paragraph and now we come to the question whether certain words are to come out and that is a matter to which many of us attach considerable importance. It being recorded in HANSARD, and presumably in the Votes and Proceedings, that the Amendment has been discussed, how do we indicate the decision of the Committee? How is the Amendment rejected unless it is negatived by agreement or voted on? Presumably it stands under discussion and the discussion has never terminated in any Parliamentary way.

I suggest that whether there has been a misunderstanding or not—and no one imputes or would wish to impute anything other than the possibility of a genuine misunderstanding—but a genuine misunderstanding having occurred, surely it is necessary that we either negative or vote on these Amendments in one way or another to bring the discussion to an end.

The Chairman

No, the position is clear if the Committee pays attention to the procedure on the Committee stage. The hon. Member for Nelson and Colne moved his Amendment, and I announced that it was to be discussed with four Amendments in the name of the hon. and learned Member for Northampton. The hon. and learned Member wondered about his fifth Amendment, which I said was to be called separately when we got to it. When I put the Question, which I did before I left the Chair, the Question I put was that the words proposed to be left out stand part—that is, paragraph (c). Had I been going to call the others, I should have had to save—which I did not—paragraph (c). That has been voted on, and, I gather, stands part of the Clause. There is nothing more to be said, and the next Amendment to be called is the Amendment in the name of the hon. and learned Member for Northampton, in page 3, line 4, at the end to insert: Provided that the killing shall have been intentional. I cannot do anything else.

Mr. S. Silverman

I am afraid, Sir Charles, that I did not find it anything like so clear as that. If I may say so with respect, if it is intended that Amendments shall not be selected at all the usual indication given from the Chair is that the following four Amendments are not selected, but, of course, the point of them may be discussed in connection with the main Amendment which is selected and which has been called. There is no point in saying that the next four Amendments are selected for discussion in conjunction with discussion on the main Amendment I submit that there is no such thing as calling an Amendment for one purpose and not for another. If the Amendment is called and it is moved, then of course, again with great respect, Sir Charles, the Chair has no option but to propose that Question to the Committee in its proper place, and I submit that its proper place is now.

Certainly, the Question on any of my hon. and learned Friend's Amendments could not have been put from the Chair before, because they would obviously have not arisen if I had succeeded in persuading the Committee to delete the paragraph altogether. Therefore, the Committee has to decide first whether it wants this kind of exception or not. If it does not want this kind of exception, we do not have to discuss the form of the Question. The Committee has decided to keep this kind of exception in, and now that the Amendments have been moved by my hon. and learned Friend, the Question ought now surely to be put to the Committee whether we want to amend the formal words in the sense moved by my hon. and learned Friend or not.

As is customary, my hon. Friends and myself took some trouble and, with your very great kindness and co-operation, Sir Charles, were assisted in doing that, to ascertain at the beginning what Amendments were selected and what were not selected or out of order. I have a marked Paper, and I understand that at the very beginning of the discussion it was intimated that these Amendments would be selected but would be discussed together.

The Chairman

The position is perfectly clear. Reference was made to the practice that I am always willing to mark Members' Notice Papers if they come to see me, which I do regularly. It is a convenience for everyone. I never had the slightest intention of having Divisions on these other Amendments. Even if I had, I did not put the Question in such a way that I could have done.

Mr. Royle

On a point of order, Sir Charles—

The Chairman

I am not going to have this point of order further discussed. I have made the position perfectly clear, and if hon. Members do not take the trouble to learn the procedure, I cannot be responsible for that. I have acted absolutely correctly, according to the rules, and I am not going to have my Ruling discussed any further.

Mr. Royle

I should like to say that we do not for one moment doubt your attitude in the Chair, Sir Charles. All this has probably arisen through a misunderstanding and only a misunderstanding. For the future guidance of the Committee, are we now to know that when the Chair informs us that certain Amendments are to be taken together that that does not of necessity mean that they are all to be selected and that there is a further discrimination between the selection of Amendments and the selection of Divisions?

The Chairman

If an Amendment is selected to be called, of course there may be a Division on it. We have often discussed a number of Amendments together, and I have said, "We can have a Division on this, that or the other of them when we come to them". On this occasion I did not say so, and I did not make any attempt to say it. The position is clear. I am often doubtful about things I do, but on this matter my mind is as clear as a bell that I am absolutely correct. On the first discussion, we took three Amendments together and there was no Division on the others. If anybody had asked me about it, I would have told him the position at once.

Mr. Paget

Well, Sir Charles, one lives and learns. I quite appreciate that you are quite right, but we thought it was otherwise.

I beg to move, in page 3, line 4, at the end to insert: Provided that the killing shall have been intentional. This Amendment is designed, like the abortive Amendment, to restrict the extraordinary wideness of the Clause and to do it by adding words instead of subtracting them. When I was addressing the Committee before, I sought to indicate that the words of the Clause were wide and vague, but I had no conception of how wide they might be until I heard the Attorney-General. He told the Committee that any murder done in the course or for the purpose of resisting or avoiding or preventing lawful arrest meant that we brought within the Clause the murder of somebody who might be a material witness in a case. That seems to bring within the subsection very nearly every conceivable murder. It is difficult to think of a murder in which the victim would not have been a material witness if he had survived.

Then the right hon. and learned Gentleman said, "That is not what I really said. I said, 'killing a material witness for the purpose of preventing him giving evidence which might result in an arrest'". That seems to involve the very question which, on numerous occasions, including today, we have been told by the Home Secretary we must not include.

We must now categorise murder according to the kind of motive. God alone knows the motives of a man. We cannot even define the crime, let alone the particular motives behind it. Motives are invariably mixed. One may talk about the dominant motive and one always considers the dominant motive, because there is practically no human action which has a single motive to it. Here we are told that we are including the killing of a material witness—which includes every killing—if it should have a particular motive. That, incidentally, is, of course, only one of the killings to which the vague Clause refers.

10.30 p.m.

If we are to make any sort of sense of the Clause, we need some words of definition. I say that murders of this class should not be capital if they are, in fact. accidental. That is all that this Amendment provides. But if we are going to put murders of this particular class into the capital one-sixth of total murders which it is the purpose of the Bill to retain as capital, then at least within this category one should confine oneself to those murders in which the killing is intentional.

If my Amendment were accepted—and it does not seem to me to go a tremendous length—it would still be capital murder if one killed in the course or furtherance of theft whether one intended to kill or not. It would still be capital murder if one killed by shooting or causing an explosion whether one intended to kill or not. It would still be capital murder if one killed a police officer acting in the execution of his duty, or someone assisting him, whether one intended to kill or not. It would still be capital murder if a prisoner killed a warder whether he intended to kill or not, because each of those are relatively—I speak relatively although they are too wide and too vague—possible definitions in this tremendously wide, uncertain difficulty of the murder done in the course of or for the purpose of resisting or avoiding or preventing a lawful arrest.

We have the Attorney-General's own word for it that it is intended to include the killing of any material witness if it be for the purpose of silencing him. That means, if the jury finds that to be the motive, almost any murder because any murder does silence a material witness. We say that we should at least confine ourselves to the intentional case because murder still involves a lot more than intentional killing. It involves, first, an intention to kill. It involves, secondly, an intention to commit a serious injury. It involves, thirdly, an intention to do something that is intrinsically likely to endanger life, and, fourthly, it involves an intention to do something which is intrinsically likely not necessarily to endanger life, but to cause the risk of serious injury.

All those motives about and beyond the intention to kill amount to murder and in those classes they amount not merely to murder, but to capital murder. I say that within this vague definition Clause those intentions bring the matter far too wide.

Let us take the simplest case—not the rather farouche case of which I have some doubts as to whether the courts would really agree with the Attorney-General if it came up. Let us take the quite simple case. What about the man who is escaping in a car? He is driving at a reckless speed through the streets. He is doing an act which is intrinsically likely to cause serious injury. He is seeking to avoid arrest. If he skids on to the pavement and, as a result, not merely an innocent passer-by but a confederate of his in the car with him is killed, do we wish to make that capital murder?

Is that the sort of murder which we wish to make capital—a case where the intention is the intention to escape. and nothing is intended beyond escape? A car is driven too fast in order to try to escape, and as a result of the crash a confederate in the car is killed. By this Clause that is not merely murder but capital murder. Is that the intention? I do not wish to waste the time of the Committee; in these tremendously wide definitions one could go on indefinitely as long as that sort of case, the unintentional killing, is brought within the really absurdly wide, unthought out, capricious wording of this Clause, which has just been selected and shoved into a list to deal with particular objections, to try to get a compromise in negotiation.

It is one thing to try to line up something which will do as a compromise when we are negotiating; it is quite another thing to take that compromise and put it into an Act and say that upon those words shall depend whether a man lives or dies. On that point it is reasonable and proper to have some better definition, and I do say that in this Clause, when we are bringing in these wide provisions, we should confine ourselves to an intention to kill. In this category, accidental killing should not be made capital murder.

The Joint Under-Secretary of State for the Home Department (Mr. J. E. S. Simon)

In rising for the first time to speak at this Box I use no empty formula when I say that I am in need of the indulgence of the Committee. I am very grateful indeed for the kind things that have been said about me in the earlier debates, and I assure the Committee that I shall endeavour not to dissipate too quickly the fund of good will and kindness that has been placed at my disposal.

The hon. and learned Member for Northampton (Mr. Paget) has put forward an Amendment to Clause 5 (1, c) to provide that the killing in the cases covered there must be intentional. The Committee has already determined that paragraph (c) shall remain as it stands in the draft Bill, and all that it is now concerned with is what is the intention that must be proved in order to make the crimes coming within that paragraph capital murder.

The hon. and learned Gentleman says that all his Amendment provides is that it shall not be capital murder where the killing was accidental. But in point of fact the Amendment goes considerably beyond that The Committee, in discussing and passing Clause 1 of the Bill, has decided that the doctrine of constructive malice shall be abolished; in other words, that to constitute the crime of murder at all what must be proved by way of intention is an intention to kill or an intention to do grievous bodily harm or do acts which are inherently likely to kill or do grievous bodily harm. In this category alone it is proposed to derogate from that and to say that one must prove not an intention to do grievous bodily harm, but an actual intention to kill.

In discussing Clause 1, it was, I think, the general view of all hon. Members of the Committee who took part in the discussion that it was right to extend the malice which has to be proved beyond an intention to kill and to include an intention to do grievous bodily harm or do some act which is inherently likely to cause grievous bodily harm. The hon. Member for Nelson and Colne (Mr. S. Silverman) went so far as to say that explicitly.

In the view of the Government, there is certainly no reason to alter that rule in the cases covered by paragraph (c). Let us take, for example, the case of a citizen who tries to prevent the escape of someone who has committed a serious felony in his presence and who is killed in the course of that attempt. Why, in that case, any less than in the case of a police officer, should it not be sufficient to prove that the accused intended grievous bodily harm and killed? What is the difference between the two cases?

Mr. S. Silverman

One is capital and the other is not.

Mr. Simon

They are both capital, whether or not it is a policeman who is involved, if it is in the course of a theft, for example, or in any of the cases which the Committee has already passed. If it is a killing committed in the course of a theft, it is sufficient to prove that the accused intended to do grievous bodily harm, and, since this Amendment applies only to this particular paragraph, it is accepted that in that case it is sufficient, where there is proof of an intention to do grievous bodily harm and death results, for that to be capital murder.

Why should it be different in the case of a custodian who tries to prevent the escape of somebody who has broken into his premises and who chases him out of the premises so that it does not come within the terms of paragraph (a)?

Let me take the case of someone who tries to prevent the criminal driving away. The hon. and learned Gentleman the Member for Northampton will recollect that there was a case which came very close to this, a case where a public-spirited citizen tried to stop certain criminal assailants driving away and who lost his life in circumstances where there was no direct intention to kill but an intention to do an act which was inherently likely to kill or, at the very least, do grievous bodily harm. In the view of the Government, it would be very wrong to say that in that sort of case there should be a higher degree of intention which the prosecution should have to prove than in the other cases which the Committee has already discussed and passed.

10.45 p.m.

Mr. Paget

Does the hon. and learned Gentleman realise that what we are discussing it not whether it shall be murder, but whether it shall be capital murder? Three well-known criminals of a gang killed Captain Binney, who tried to stop the car, but since the Home Secretary came to the conclusion that the killing, whilst certainly murder, had been unintentional, he reprieved those three men. He reprieved them precisely because the killing had been unintentional. He took the view that it should not be capital if it was unintentional. That is exactly what we are trying to say in the Amendment.

Mr. Simon

It would certainly not be fitting for me to discuss the motives, even if I knew them, that animated the Home Secretary in advising the Queen on the exercise of the Prerogative; but where it were firmly established that there was an intention to do grievous bodily harm, or an intention to do some act which was likely to kill, even though there was no specific intention to kill, it would surely affront conscience that that should be any less serious a crime than in the cases covered by paragraphs (a) or (b), which we have already discussed and passed.

It is because paragraph (c) is felt to be necessary to preserve and maintain public order, and to protect ordinary citizens who go to the assistance of the police in the maintenance of order, that the Government feel that there is no reason why there should be any particular rule attached to it so far as intention is concerned; and I must ask the Committee to reject the Amendment.

Mr. S. Silverman

It is not to be denied that the hon. and learned Gentleman has established that the task of drawing distinctions which are readily appreciable, even here, is a difficult task and that the distinctions which it is sought to draw, and, in particular, the distinctions which my hon. and learned Friend the Member for Northampton (Mr. Paget) is seeking to draw, in this particular exception to the general principle of abolishing the death penalty, are a little tortuous and artificial. I submit that it is not for the Government to rely upon that. The artificiality arises not out of my hon. and learned Friend's Amendment. It arises out of the essentially artificial nature of the Bill which the Government have seen fit to place before the House of Commons.

The distinctions which it is sought to draw here are no more difficult than the distinction between killing by shooting, on the one hand, and killing by poison, on the other hand. A thing which certainly will not be understood outside these four walls and which certainly will not carry, whatever else may or may not carry, the active consent or acquiescence of the interested public, is that they will not be able to understand exactly why it has seemed right to the Government that the use of one weapon shall make a murder capital and the use of another weapon shall not. It is in that atmosphere of artificiality that we have been compelled to try to make some kind of sense out of a Bill which really is from A to Z a defiance of common sense.

If one were to seek to justify the kind of distinction that the Joint Under-Secretary was decrying as between what it is necessary to prove under subsection (1, a) and the obligation on the prosecution which my hon. and learned Friend seeks to lay upon them under subsection (1, c), it is perhaps to be found in the distinction between a murder done in the course or furtherance of theft and a murder done not in the course or furtherance of theft but in seeking to avoid a lawful arrest on what might be a trivial charge. It is that which I submit to the Committee justifies my hon. and learned Friend in suggesting that there should be a greater onus upon the prosecution in the one case than in the other.

Let me take an imaginary case to illustrate the kind of distinction that I am drawing. A man parks his car in an unauthorised place. Particulars are taken by the police officer, whose duty it is to see that the few cars that the Government have allowed us to retain upon the highway keep moving, and in due course a summons is issued and served by post. The summons contains a return day on which it is the duty of the defendant to appear in court and either defend himself against the allegation that he parked his car in the wrong place or admit that he did park his car in the wrong place and throw himself upon the mercy of the court. He does not turn up and he does not write a letter and he is not represented. The court, in those circumstances, has the power to issue a warrant for his arrest.

This is not a fanciful or fictional situation. It has happened on innumerable occasions and will go on happening. There is not the slightest doubt that an arrest by a police officer armed with a warrant would be a lawful arrest. The man does not want to be arrested—not an unnatural frame of mind—and he does not regard himself as so very serious a criminal because he parked his car in the wrong place and did not answer the summons. It is very wrong of him to park his car in the wrong place, and it is even more wrong of him to commit the contempt of court of not appearing before the magistrates; but, all the same, a man may be guilty of both those offences without having any great sense of moral turpitude.

When he sees the policeman coming along he says, "This can easily wait for another day." His car is at the door, perhaps again parked in the wrong place, and he does not want to be "pinched" again, so he gets into the car and drives away. In his excitement he drives too fast and on the wrong side of the road. Let us be serious for a moment. There might be a child in the road. Because of the man's over-eagerness or over-anxiety, and without the slightest intention of either killing or doing bodily harm to anyone, he nevertheless, by his gross carelessness, kills the child in such a way that he might in other circumstances be guilty of manslaughter. Under this part of the Clause he would then be guilty not merely of murder, but of capital murder. There is no escape from that. That is exactly what Clause 5 says in so many words.

It is true, as the Joint Under-Secretary said, that we have already agreed, at least by a majority, that if that sort of thing were to happen while a man was engaged in theft, that ought to be treated as capital murder, but surely it is quite a different thing if the kind of lawful arrest from which he is seeking to escape is a triviality of the kind I have described. Is it really so unreal a distinction to say that in the case I have described a man ought not to be guilty of capital murder, unless an intention to kill can be positively proved?

Sir L. Heald

Will the hon. Member explain how it would be that in those circumstances he would come within the subsection at all, because the first thing he must have done is commit murder and the hon. Member has himself said that it would be manslaughter.

Mr. Silverman

No. I did not say quite that. I know that it is getting a little late and we are all getting a little sleepy. If the right hon. and learned Gentleman made that mistake when he was not sleepy—I can hardly believe it. He must be sleepy. I did not say that it was manslaughter. I said that it would be manslaughter if that kind of accident were to occur when the man was not engaged in committing some other crime, but it might very well be murder if it were proved that the man was escaping from lawful arrest.

Mr. Rees-Davies

What the hon. Member has just indicated is quite wrong. This would not be a murder at all, but a clear case of manslaughter and nothing more, because the words are: … any murder done in the course of … If a child is killed in the course of driving, it is not murder and not done for the purpose of avoiding arrest.

Mr. Silverman

The hon. Member is mistaken. He very frequently is. He is again mistaken on this occasion.

Mr. Paget

Surely the question here is one of fact. The definition of murder which we are given here is intentionally to do an act intrinsically likely to endanger life or limb. A serious accident is likely to result in that. If the car is driven in a manner which the jury holds is intrinsically likely to cause death or serious injury and it does, that is not manslaughter but murder, on the definition we have been given.

Mr. Silverman

I have no doubt whatever that my hon. and learned Friend is right and I do not propose to give further illustrations or arguments. What I am suggesting is that something which is capital murder, if done in the course of theft, ought not necessarily to be regarded as capital murder if it is done in the course of resisting arrest on a trivial charge in trivial circumstances.

Mr. Paget

It was really bound to be murder in the very instance.

11.0 p.m.

Mr. Silverman

That is in the case discussed both by my hon. and learned Friend and by the Under Secretary, in his reply. I would not say that precise circumstance, but certainly analogous circumstances were held to be murder. But in any case, I do not think that we need pursue the argument on the basis of the particular analogy which I suggested. Hon. Members may well think that analogy was rather overdrawn, and perhaps a little remote, but any one of us can now think of analogies not nearly so remote. Anyone can see it would be readily possible and undoubtedly right that a thing could be held to be capital murder in one set of circumstances, when exactly the same event would not constitute, or ought not to constitute, capital murder in other circumstances; and it was precisely that kind of distinction that my hon. and learned Friend was seeking to draw and that I was attempting to describe.

If it is said that this whole attempt to draw the fine-spun distinction is artificial and unreal, I am not concerned to dissent from that. Of course, they are artificial and unreal, of course they depend on quasi-mystical, hair-splitting definitions, but, I repeat, that is not the fault of my hon. and learned Friend. It is in that kind of context that we are compelled by this Bill to make our proposals and to justify them, and to distinguish one thing from another, when every one of us knows that on any moral or sensible grounds the thing is completely unreal.

The thing really will not work. It makes nonsense of our criminal law in the department of it where we should take particular care to be sensible and just, and I say to hon. and learned Gentlemen that if they are not prepared to do that tonight there may come a time when they may reconsider the whole matter, when they really will begin to get down to the basic, human realities of this issue, and preserve Parliament from making itself ridiculous with these long-drawn-out arguments about things that really have very little relation to what we all know to be the practical facts. The Under-Secretary would do better to reconsider whether he should not accept the Amendment which my hon. and learned Friend has moved.

Mr. Paget

I am glad that we have the Home Secretary with us, because I feel the argument should be put to him. The Attorney-General has told us that in paragraph (c) the words "or avoiding" are included to cover the case in which the witness of a crime is seen by the criminal and is then killed in order that his evidence may not result in an arrest. I then put it to the Attorney-General, "But does that not cover every crime of murder?" because it was difficult to discover a murder in which the victim would not have been a material witness. He then said that it would depend on whether the intention was to prevent the man giving evidence on which the arrest might follow. I then referred him to the fact that the Home Secretary had explained to us expressly, on an earlier Clause, that motivation must not be the test.

Here was a question where a modification was, on his own definition, being made the sole test. Now we are asking, if, in this Clause, we are having these very wide definitions, whether we cannot confine capital murder, and only capital murder, to those cases falling within paragraph (c) in which the intention is to kill.

After all, there is a limit to the absurdity in which we can indulge and to the arbitrariness of our rulings. if we reject the poisoner, as we have done, and say that his offence shall not be capital; if we are dealing with a man who commits rape and say that his offence shall not be capital, surely it is unreasonable to say that a man does not intend to kill anybody, but desires only to escape in a car which he drives in a reckless manner, shall have committed a capital offence. Even if in the particular instance where it happened, in the case of the people who killed Captain Binney, although they were dangerous criminals they were reprieved because what they did was unintentional—even though at that time six times as many people were being executed as is now intended. To keep that in the Bill is unsuitable.

Therefore, now that the Home Secretary is present in the Chamber, I urge him to consider whether, in the case of this particular category, he should confine himself to the people who intend to kill. I hope that the right hon. Gentleman will express an opinion on it.

Mr. R. A. Butler

I was aware of what the Joint Under-Secretary was saying. I was engaged in some discussion which I could not avoid. I have nothing to add to what he has said. We believe that this Amendment is misconceived.

If the hon. and learned Member for Northampton (Mr. Paget) will refer to what the Attorney-General pointed out in the debate on the Amendments to Clause 1, he will realise that, in future, it will be incumbent on the prosecution, constructive malice having been abolished—which is a vital feature of the argument—to prove the ordinary and full, to use a technical term, mens rea in all cases of murder. We do not believe that the insertion of the word "intentional" in Clause 5 is necessary. That is why we regard the Amendment as being misconceived and cannot accept it. I understand the motive of the hon. and learned Gentleman in moving it, but we do not believe it to be necessary.

Mr. Paget

I am grateful to the right hon. Gentleman, because if he is with me in my intention, and only regards the Amendment as unnecessary, I shall be more than satisfied if he will undertake to look at the matter again and consider whether the Amendment is necessary.

It is true that in Clause 1 we have removed constructive malice. What constructive malice meant is that where, in the case of a felony or in the course of avoiding arrest, action is taken which of its nature is unlikely to injure either life or limb, but by an accident it does in fact kill, that was murder. Now, as a result of Clause 1, it is no longer murder. One is left, as the right hon. Gentleman has said, with the ordinary mens rea necessary to constitute a crime of murder.

But that ordinary mens rea is much wider than an intent to kill. The ordinary mens rea involves, first, an intention to kill; secondly, an intention not to kill but to cause serious injury—that is, an intention to maim—and, thirdly, without the intention either to kill or to maim, the intention to do an act intrinsically likely either to kill or to maim. Those are the three heads which amount to mens rea in murder in the ordinary case, and will continue to be so.

I say that in this particular case—and I am extremely glad to hear that the Home Secretary's intention is my intention—only the intention to kill should be made a capital offence; that is, in the context of avoiding arrest. It really is taking arbitrariness too far to say that a poisoner shall not be guilty of capital murder, nor the rapist, but that the man who drives a car in a reckless manner to escape arrest, and who is intrinsically likely to endanger life, is in any way guilty of murder. That he shall be selected to be guilty of a capital offence seems to be taking things too far. The intention being the same, I would be very well satisfied if the Home Secretary would agree to look at this again and see whether my contention is not right.

Mr. Butler

I have been out of the Chamber and what I must obviously do is to read the hon. and learned Gentleman's original speech, and the speech which he has just made. I must confine myself to saying that now.

Mr. S. Silverman

I hope that the Home Secretary can go a little further with the very modest suggestion which my hon. and learned Friend has just made. The Home Secretary may even save a little time by so doing.

We have here a great anomaly. May I put just one more imaginary case to the Committee? There may be a man who is most certainly guilty of rape and it may very well happen, as it has frequently and unhappily happened in the past, that the victim of his crime dies in such circumstances that the man is undoubtedly guilty of murder. Under the Government's measure that man will not suffer capital punishment, because the Government is not proposing that a murder committed in the course of rape shall be classed as a capital murder.

Now, suppose that that man kills in the course of his violent lust, and is guilty of murder although not capital murder, and on his way home or from the scene of his foul crime sees a policeman. That policeman may try to arrest him, and to avoid arrest the man kills, not necessarily the policeman, but anybody who happens to be in the vicinity. We shall then have the utterly indefensible anomaly of a man not suffering the extreme penalty for the murder which he undoubtedly committed, and which everybody knows he committed, but suffering it for a murder which he did not intend to commit at all.

Is that the kind of way that this country, in the middle of the twentieth century, proposes to go?

Question put, That those words be there inserted:—

The Committee divided: Ayes 80, Noes 144.

Division No. 37.] AYES [11.15 p.m.
Allaun, Frank (Salford, E.) Holmes, Horace Proctor, W. T.
Awbery, S. S. Howell, Charles (Perry Barr) Roberts, Goronwy (Caernarvon)
Bacon, Miss Alice Howell, Denis (All Saints) Ross, William
Benson, G. Hughes, Emrys (S. Ayrshire) Royle, C.
Beswick, F. Hughes, Hector (Aberdeen, N.) Short, E. W.
Blyton, W. R. Hunter, A. E. Silverman, Sydney (Nelson)
Bowden, H. W. (Leicester, S.W.) Janner, B. Simmons, C. J. (Brierley Hill)
Bowen, E. R. (Cardigan) Jay, Rt. Hon. D. P. T. Slater, Mrs. H. (Stoke, N.)
Boyd, T. C. Jones, David (The Hartlepools) Soskice, Rt. Hon. Sir Frank
Braddock, Mrs. Elizabeth Jones, J. Idwal (Wrexham) Stewart, Michael (Fulham)
Brockway, A. F. Jones, T. W. (Merioneth) Stones, W. (Consett)
Champion, A. J. King, Dr. H. M. Thornton, E.
Coldrick, W. Lawson, G. M. Usborne, H. C.
Col lick, p. H. (Birkenhead) Lever, Leslie (Ardwick) Warbey, W. N.
Craddock, George (Bradford, S.) MacPherson, Malcolm (Stirling) Watkins, T. E.
Cullen, Mrs. A. Mason, Roy West, D. G.
Dalton, Rt. Hon. H. Mitchison, G. R. Wheeldon, W. E.
Deer, G. Morris, Percy (Swansea, W.) Wigg, George
Ede, Rt. Hon. J. C. Moyle, A. Witkins, W. A.
Fernyhough, E. Neal, Harold (Bolsover) Willis, Eustace (Edinburgh, E.)
Forman, J. C. Oswald, T. Woof, R. E.
Fraser, Thomas (Hamilton) Paget, R. T. Yates, V. (Ladywood)
Gaitskell, Rt. Hon. H. T. N. Palmer, A. M. F. Younger, Rt. Hon. K.
Greenwood, Anthony Pargiter, G. A. Zilliacus, K.
Hale, Leslie Parker, J.
Hayman, F. H. Pentland, N. TELLERS FOR THE AYES:
Herbison, Miss M. Popplewell, E. Sir Leslie Plummer and
Holman, P. Price, J. T. (Westhoughton) Mr. Blackburn.
Agnew, Sir Peter George, J. C. (Pollok) Lucas-Tooth, Sir Hugh
Aitken, W. T. Godber, J. B. Macdonald, Sir Peter
Amery, Julian (Preston, N.) Graham, Sir Fergus Mackie, J. H. (Galloway)
Arbuthnot, John Grant, W. (Woodside) McLaughlin, Mrs. P.
Armstrong, C. W. Grant-Ferris, Wg Cdr. R. (Nantwich) Maclay, Rt. Hon. John
Ashton, H. Green, A. McLean, Neil (Inverness)
Atkins, H. E. Gresham Cooke, R. Macmillan, Rt. Hn. Harold (Browley)
Baldwin, A. E. Grosvenor, Lt.-Col. R. G. Macmillan, Maurice (Halifax)
Barber, Anthony Gurden, Harold Macpherson, Niall (Dumfries)
Barter, John Harvey, Air Cdre. A. V. (Maccfesfd) Maddan, Martin
Bevins, J. R. (Toxteth) Heald, Rt. Hon. Sir Lionel Manningham-Buller, Rt. Hn. Sir R.
Bidgood, J. C. Heath, Rt. Hon. E. R. G, Marshall, Douglas
Biggs-Davison, J. A. Hesketh, R. F. Mawby, R. L.
Birch, Rt. Hon, Nigel Hill, Mrs. E. (Wythenshawe) Maydon, Lt.-Comdr. S. L. C.
Bishop, F. P. Hill, John (S. Norfolk) Milligan, Rt. Hon. W. R.
Body, R. F. Hirst, Geoffrey Mott-Radclyffe, Sir Charles
Boyd-Carpenter, Rt. Hon. J. A. Holland-Martin, C. J. Nabarro, G. D. N.
Boyle, Sir Edward Hope, Lord John Nairn, D. L. S.
Bromley-Davenport, Lt.-Col. W. H. Hornby, R. P. Neave, Airey
Brooke, Rt. Hon. Henry Hornsby-Smith, Mitt M. P. Nicholls, Harmar
Bryan, P. Hughes-Young, M. H. C. Nicholson, Godfrey (Farnham)
Bullus, Wing Commander E. E. Hylton-Foster, Rt, Hon. Sir Harry Nicolson, N. (B'n'm'th, E. A Chr'sh)
Butler, Rt. Hn. R.A. (Saffron Walden) Iremonger, T. L. Nugent, G. R. H.
Channon, Sir Henry Irvine, Bryant Godman (Rye) Oakshott, H. D.
Chlchester-Clark, R. Jennings, J. C. (Burton) Page, R. G.
Cooper-Key, E. M. Johnson, Eric (Blackley) Panned, N. A. (Kirkdale)
Cordeaux, Lt.-Col. J. K. Joseph, sir Keith Peyton, J, W. W.
Corfield, Capt. F. V. Kaberry, D. Pickthorn, K. W. M.
Craddook, Beretford (Spelthorne) Keegan, D. Pike, Mist Mervyn
Currie, C. B. H. Kimball, M. Pitt, Miss E. M.
Danoe, J. C. G. Kirk, P. M. Pott, H. P.
D'Avidgor-Goldsmid, Sir Henry Lagden, G. W. Price, David (Eastleigh)
Deedes, W. F. Lambert, Hon, G. Price, Philips (Gloucestershire, W.)
Donaldson, Cmdr. C. E. McA. Langford-Holt, J. A. Profumo, J. D.
Eden, J. B. (Bournemouth, West) Leavey, J. A. Ralkes, Sir Victor
Errington, Sir Erie Legge-Bourke, Maj. E. A. H. Rawlinson, Peter
Farey-Jones, F. W. Legh, Hon. Peter (Petersfield) Redmayne, M.
Fisher, Nigel Linstead, Sir H. N. Roberts, Sir Peter (Heeley)
Garner-Evans, E. H. Longden, Gilbert Ropner, Col. Sir Leonard
Russell, R. S. Sumner, W. D. M. (Orpington) Wall, Major Patrick
Schofield, Lt.-Col. W. Taylor, William (Bradford, N.) Ward, Rt. Hon. G. R. (Worcester)
Simon, J. E. S.(Middlesbrough, W.) Thompson, Kenneth (Walton) Ward, Dame Irene (Tynemouth)
Smithers, Peter (Winchester) Thompson, Lt.-Cdr. R.(Croydon, S.) Whitelaw, W. S. I. (Penrith & Border)
Speir, R. M. Tilney, John (Wavertree) Williams, Paul (Sunderland, S.)
Steward, Harold (Stookport, S.) Turton, Rt. Hon. R. H. Wilson, Geoffrey (Truro)
Steward, Sir William(Woolwich, W.) Vane, W. M. F. Yates, William (The Wrekin)
Stoddart-Scott, Col. M. Vosper, D. F.
Storey, S. Wakefield, Edward (Derbyshire, W.) TELLERS FOR THE NOES:
Summers, Sir Spencer Wakefield, Sir Wavell (St. M'lebone) Mr. Wills and
Colonel J. H. Harrison.
Mr. Royle

I beg to move, That the Chairman do report Progress and ask leave to sit again.

I do not propose to make a speech, but merely to suggest that we have had a very good day's debate and that the next Amendment on the Notice Paper would obviously take quite a long time to consider. It is the Amendment dealing with any murder of a police officer acting in the execution of his duty, etc. I move this Motion so that the Home Secretary may tell us his intentions as far as time is concerned.

Mr. R. A. Butler

I am quite ready to accept the Motion. I suggest that we do not take the next Amendment at this late hour, but that we start with it tomorrow. I do not want to deliver a homily at this time of night, but I want to point out that we must make some progress with the Bill. We intend that the Bill shall become law.

There is also a great deal of other very serious business to be transacted by the House. It is important, therefore, that if reason is shown in accepting the hon. Member's Motion at an hour like this tonight the Committee should join in making progress in the future. I realise that hon. Members, and hon. and learned Members in particular, have many important points to put forward, but I also realise that there is a disposition to make the Bill spin out a bit. That is not a disposition which we like to see. What we want to see is the disposition to argue the points, as indeed the last point put was argued, as substantial points. If we do it in that spirit, I think we can make progress, and I hope that we can approach tomorrow's sitting in that spirit in order to make some progress with the Bill. I would be glad, therefore, to accept the hon. Member's Motion, on the understanding that we all try to make as much progress as we can.

Mr. S. Silverman

I should like to say that, for my part, I agree with every word the right hon. Gentleman has said. Of course, points must be argued that are substantial, and, of course, if the Government really want this rather absurd Measure to proceed they are entitled, while they command a majority in the House of Commons, to see that it shall ultimately reach the Statute Book. But there is a duty upon us, which I hope we are discharging with moderation, to see that we do not make ourselves more ridiculous than we need, and, being faced with a Bill of which it is really almost impossible to make any common sense, to do our honest best to make it as sensible as it is capable of becoming.

Mr. Anthony Greenwood

I am glad that the Home Secretary has responded to the suggestion of my hon. Friend the Member for Salford, West (Mr. Royle), but I hope that my hon. Friend will not leave the right hon. Gentleman in any doubt that we really cannot give any binding undertakings on such a matter as this. This Bill contains Clauses which many of us think are very foolish indeed. We believe that it is necessary to subject them to the closest examination. I do not think that any of us on this side, or anyone who sympathises with us, would feel in a position now to give an unqualified undertaking to expedite the progress of this Measure.

Question put and agreed to.

Committee report Progress; to sit again Tomorrow.

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