Clause 14.—(AMENDMENT AS TO PENALTY FOR CERTAIN ATTEMPTS TO MURDER.) (Hansard, 28 January 1957)

§ Mr. Willis
I beg to move, in page 6, line 27, to leave out from "subjects)," to the end of line 29 and insert "is hereby repealed".
The point is a comparatively simple one. The Amendment seeks to repeal the Criminal Law (Scotland) Act, 1829, and it does so for the reason that, as I understand the position, this Act is, in fact, obsolete in any case. [Interruption.] That is what I am told on good legal advice. The purpose of the Act is to make punishable by death certain crimes of violence against Her Majesty's subjects, and I am given to understand, once again on legal advice—and apparently my legal advice is different from that of hon. Gentlemen opposite—that all the offences under this Act can, in point of fact, be dealt with under common law procedure and, therefore, there is no reason at all why the Act should be continued.
Why are we cluttering up the Statute Book with Acts which no longer have any relevance to our proceedings today? I might say, Sir Gordon, that this Amendment goes along with the Amendment to the Second Schedule which also stands in my name, and which seeks to do the same thing.

§ The Lord Advocate
I quite agree with the hon. Member for Edinburgh. East (Mr. Willis) that this is an Act which is seldom used, but it is not in desuetude at all. It was used in the 1930's—I forget the exact date—but it is wrong to think, and I hope the hon. Gentleman does not think, that this Act creates offences. It did impose the very serious penalty of 789 death for those who were convicted of offences which were common law offences. It is purely an act for penalties.
I think that the Committee and the House of Commons should think very hard before they reduce a penalty in connection with the very serious offences of attempted murder, maiming, disfiguring, disabling and throwing sulphuric acid and the like to make a radical alteration in that sentence in conformity with the general purposes of the Bill. The death sentence is being replaced in the Bill in its present form by sentence of life imprisonment, but the present Amendment, if carried, would have the effect of removing, as it were, from the very serious offences a special penalty of their own, namely, life imprisonment. I advise the Committee to leave the Act on the Statute Book, amended as it is amended in terms of Clause 14, and not to remove it from the Statute Book altogether.

§ Mr. G. M. Thomson
Will the Lord Advocate tell us whether there is any comparable law in England and Wales which allows a sentence of life imprisonment to be passed for similar crimes? If there is, his case stands, but if there is not, I submit that his case falls. The case for the Bill has been argued from the Government benches this evening as being that there ought to be uniformity. I should be interested to know the position in England and Wales.

§ Mr. Willis
Can these penalties be given under common law? Is the specific authority of this statute required to be able to impose the penalty of life imprisonment for throwing sulphuric acid, for example?

§ The Lord Advocate
The answer to the last question is "No". Life imprisonment could be given without that Act, but if the Act remains in its present form it makes it obligatory upon the court to pass that sentence if the prosecution is taken under the Act. The prosecution would not be taken under that Act except in very extreme circumstances.

§ Mr. S. Silverman
I cannot follow this. We are all responsible for what the House of Commons does whether it affects our part of the United Kingdom or any other part. Here in the law of Scotland we have something which the Lord Advocate agrees to be obsolete.

§ The Lord Advocate
No.

§ Mr. Silverman
Well, virtually obsolete.

§ The Lord Advocate
No.

§ Mr. Silverman
If the Lord Advocate does not think that it is obsolete, virtually obsolete or ought to be obsolete, I cannot understand why the Clause is in the Bill. The present law of Scotland is that these offences, not the offence of murder, can be regarded as capital offences. The Lord Advocate wants to change that, and that is what I meant when I said that he regards the law as obsolete.
The Lord Advocate's defence for changing it in this form is that he wants to keep in a suitable case the penalty of imprisonment for life even though the capital sentence is no longer applicable. That view is understandable. My hon. Friend then asks him whether, supposing one merely abolished this part of the Scottish law which makes these offences capital offences without prescribing that the alternative penalty should be imprisonment for life, that would mean that in a suitable case Scottish courts could not inflict under the common law the penalty of imprisonment for life.
That was a very relevant and extremely intelligent question. The Lord Advocate gave him an extremely intelligent and an extremely honest answer. He said, "No, it would not. If the death sentence for this offence is abolished without requiring the court to impose a sentence of life imprisonment, the court can still impose a sentence of life imprisonment in a suitable case, but can impose some other sentence in a case where life imprisonment seems to the court in its discretion to be too heavy." Why not do it that way?
The Lord Advocate then said, "Because we want to have a rigid penalty; because we are abolishing the death penalty in a case where nobody believes the death penalty ought to be applied; we want to take away from the court any discretion to make the punishment fit the crime and fit the term of imprisonment to the circumstances of a particular case; we want to make absolutely certain that in these cases there shall be a sentence of life imprisonment". He offers no reason why. If we are to abolish the death penalty in those cases which do not involve murder. 791 cases in which it is wholly wrong to impose the death penalty, why fetter the discretion of the court about what the appropriate penalty shall be? That is completely incomprehensible, like everything else in the Bill.

§ Mr. G. M. Thomson
I want to repeat my question to the Lord Advocate, which I think he overlooked in answering another point. Is there any Statute in England and Wales comparable to this Criminal Law (Scotland) Act, 1829?

§ Mr. Willis
The Lord Advocate's answers have so far been most confusing. I still do not know what purpose the Act serves. As I understand the Lord Advocate, anybody can be prosecuted for any relevant offence—and in that Act the offences are numerous—under common law and can receive a sentence of life imprisonment for those offences. Why do we need a special Act? The right hon. and learned Gentleman said that we want to make this a specific penalty for those offences. Does that mean that there cannot be a smaller penalty?

§ Mr. Willis
If there is a smaller penalty, why not proceed against the accused under common law under which they can be given a smaller penalty? Under common law can be done everything which can be done under the provisions of the Act. Why then continue the Act?

§ Mr. S. Silverman
My hon. Friend has just asked the Lord Advocate whether, if the Clause is passed as it stands, the court can pass a lesser sentence than imprisonment for life and the Lord Advocate indicated assent.

§ The Lord Advocate
The hon. Member has misunderstood me. I intended to convey by nodding that there could be a smaller sentence if he was not charged under this Act. If the charge is under this Act, there is only one sentence which the court can pronounce.

§ Mr. Ross
I want to deal with the evidence given by the Scottish Home Department before the Royal Commission. What about Section 5 of the Act, which imposes certain powers? It refers to the power of the prosecutor to restrict the pains of law. It is only when he intervenes that the court is denied the 792 right to pass sentence of death and must pass any other lower sentence.

§ Mr. Silverman
I apologise for interrupting so long, but we want to get the matter clear. I admit that I do not know very much about it. I am simply trying to follow the argument. The Lord Advocate says that if a man is charged with a relevant offence, but not under the Act, he may be given a sentence which falls short of imprisonment for life. I follow that but, with all respect to the Lord Advocate, that is completely irrelevant to the argument, because if he is not charged under the Act the penalty of death will not apply anyhow.
In this Clause we are dealing with what should happen to a man charged under this Act, or the relevant law which is to be amended by the Bill. Without the Clause such a man might he sentenced to death. What the Clause provides is that he shall no longer be sentenced to death, but it also provides, unless I have misread it, that in substitution for any reference to a sentence of death there shall be a reference to a sentence of imprisonment for life.
What my hon. Friend wanted to know was whether that left the court any discretion at all. I feel that the Lord Advocate now agrees that it leaves the court no discretion of any kind, and that provided the Clause is relevant to the case the sentence must inevitably be one of imprisonment for life.

§ Mr. Willis
Perhaps I may now continue, after that very long interruption. I am thankful to my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), because he has put the point which I was trying to put and, not possessing his legal training, probably not putting so well. As I understand the position we can proceed against a man under common law and sentence him to any punishment up to imprisonment for life. Under the law that we are trying to repeal—if I understand the Lord Advocate correctly—if we proceed against such a man we must sentence him to life imprisonment. if we can sentence him to something less there is no argument for retaining the Act of 1829, because we are in exactly the same position as under the common law.
The Lord Advocate's argument for retaining the Act is that if we proceed 793 under it we must sentence the man to life imprisonment, and he says that it is desirable to do that. Surely it is prejudging the case to decide, before a man is found guilty, that he must be sentenced to imprisonment for life. I am not a lawyer, but it seems to me to be fantastic nonsense, and completely unjust.

§ Mr. Mackie
The extreme penalty.

§ Mr. Willis
But we are going to decide to inflict the extreme penalty before we even try the man. That is quite unjustifiable. I cannot see how the Lord Advocate can possibly say that it is justifiable.

§ Mr. Ross
I am getting quite lost through the incompetence of the Government, both in respect of the advice received from the Royal Commission and what the Government say now. Paragraph 18 of the Report says: Section 5 of the Criminal Law (Scotland) Act, 1829, saves 'the power of the prosecutor to restrict the pains of law'. It is customary for the Lord Advocate to restrict the pains of law in the case of any offence against the Act of 1829; this means that the court is precluded from passing the sentence of death but may pass any lesser sentence.

§ Mr. Willis
That is surely not a very justifiable position. I cannot see why the Lord Advocate wants to retain the Act.

§ Mr. Silverman
He does not want a Report stage.

§ Mr. Willis
I was coming to that. It seems very relevant when we remember that the Government are not prepared to change one provision, no matter how unjust or unreasonable it may be. They want to push the Bill through without Amendment.

§ Mr. Silverman
It might as well be the Boundary Commission.

§ Mr. Willis
I have discussed the Amendment with competent members of the Scottish Bar. They think that it is ridiculous to keep the Act on the Statute Book. From the arguments adduced by my hon. Friend I am inclined to agree with them, although I am not a lawyer.
9.45 p.m.
The arguments have been most unsatisfactory, and they do not justify the continuance of this Act at all. I do not know when this Act was last used, but certainly at present there does not seem to be any 794 justification for it. The right hon. and learned Gentleman was boasting a short time ago about Scottish law, and saying how we liked to act on the common law and that sort of thing, and did not like to be tied. Now, he has come along to defend precisely the opposite. What does the right hon. and learned Gentleman believe? Has he any definite principles which he applies to legal matters?
Lord Cooper and certain other eminent legal personages in Scotland used to have certain very good principles in considering these matters, but I cannot see that the right hon. and learned Gentleman has any good principles, because in one minute he is on one side of the fence and in another minute he is on the other side. It is purely a matter of what happens to be for the convenience of the Government, and I would ask the right hon. and learned Gentleman to treat his profession in a more dignified manner. [Interruption.] Certainly. I see one of his cronies along the bench laughing, but the right hon. and learned Gentleman had an unfortunate experience a short time ago when he was snubbed by the Scottish judges when acting as the tool of the Government. He was trying to withdraw certain documents, and the Scottish judges quite rightly snubbed him. I want to see the right hon. and learned Gentleman standing up for his profession and acting with a little dignity, and not as the tool of the Government. Certainly, this provision is most unjustified, and I would ask the right hon. and learned Gentleman, even at this late stage, to consider repealing the Act.

§ Mr. Ross
I think that we must have further clarification from the Lord Advocate on this question of the 1829 Scottish Act, and that he should tell us exactly what the position is. So far as I can judge, it is that this Act which was introduced in 1829 extended the penalty of death to certain crimes, and we have had the benefit of the Royal Commission in giving us the information about what these crimes were. They were: Wilful shooting, stabbing, poisoning or strangling of any of Her Majesty's subjects, the throwing of sulphuric acid or any other corrosive substance with intent to murder or cause grievous bodily harm. So far as I know, the procedure under that Act carries an automatic penalty at the moment—the penalty of death—unless 795 the Lord Advocate himself invokes Section 5 of the same Act, in which case—and only if he does invoke it—the court is permitted to pass a lesser sentence. In fact, the court is precluded from sentencing the accused to death, but may pass a lesser sentence.
It is obvious from what has been said by the Lord Advocate, and from what is contained in the submissions to the Royal Commission, which were made by his own Department, that sentence of death is thus never pronounced except for murder or treason; in other words, this sanction which he now desires to continue has never been invoked in respect of the ultimate penalty. Now, the right hon. and learned Gentleman wants to insert, instead of death, imprisonment for life, which means once again that if the case proceeds under this Act, the only penalty will be imprisonment for life, unless the Lord Advocate invokes Section 5. There is a very dangerous principle here. Indeed it is an attempt to submit the whole case to the judgment of one man—the Lord Advocate—who is to prejudge it, and it is only if he intervenes at all that a sentence less than imprisonment for life can be passed. [Interruption.] If the Solicitor-General for Scotland wishes to deny what I am saying, he has ample opportunity to rise and speak.
We wish to know from the Lord Advocate whether he is retaining some power which he has never used when the death penalty was the automatic penalty under the 1829 Act, and that he does not agree with the suggestion of my hon. Friend to get rid of this obsolete Act altogether and proceed under common law.

§ Mr. Ede
As I read this Clause, it imposes a minimum sentence of life imprisonment if there is a conviction under the law of 1829. I am opposed to inserting minimum punishments in legislation such as this. From my experience of the courts, limited as it is, I find that there is no more likely way to fail to get a conviction than to have a minimum sentence which a jury regards as being much too grave for the crime. In fact, the Government have shown their belief in that by some of the alterations which have been made in the law relating to road traffic offences, because it was believed that part of the difficulty in 796 securing convictions before juries was because of the belief that penalties which had to be imposed if convictions were recorded did not meet the justice of the case.
The 1829 Act was passed at a time when the attitude of the public towards crime and punishment was different from today. If the penalty of life imprisonment is the only one which can be inflicted under this Act as amended by the present Bill, either the right hon. and learned Gentleman will never use the new Act or it will operate in such a way that a person who should be convicted will not be convicted. If the penalty is left to the discretion of the judge, with a maximum penalty inserted, the law would be amended with greater effect; in the event of my hon. Friend's Amendment to repeal this Act altogether not being acceptable to the Minister. To put in a minimum penalty of life imprisonment is not in accordance with the feelings of ordinary people.
The hon. and learned Joint Under-Secretary of State for the Home Department went to get a reference book in order to answer a question by my hon. Friend the Member for Dundee, East (Mr. G. M. Thomson) who asked whether there was any law of England which compelled the court on a conviction, to impose a penalty of life imprisonment. Although I know that my hon. Friends from Scotland regard the law of England with the greatest contempt, I hope that we may have an answer to that question.

§ Mr. G. M. Thomson
I wish to reinforce the plea of my right hon. Friend the Member for South Shields (Mr. Ede). I know that the learned Lord Advocate did not intend to be discourteous over this matter, but there has been a great deal of to-ing and fro-ing across the Floor. My question was whether there is any comparable statute in England. I must confess that I am getting into a state of confusion. My hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) admitted ignorance of the Scottish law, and I must confess considerable ignorance of the law as it relates to any part of the United Kingdom.
As I understood the argument advanced by the Secretary of State and, I think, by the learned Lord Advocate earlier this evening on another Amendment, they were standing by the principle 797 of uniformity of penalty as between one part of the United Kingdom and another. If they still stand by that principle, and if it is the case as my right hon. Friend suggests that there is no comparable Statute in England which imposes the minimum penalty of life sentence, then, of course, the consistent thing for the Government to do is to accept my hon. Friend's Amendment.
This, of course, is not the only place in which the Government seem to be quite inconsistent and certainly very confusing on the matter. It is only a very few minutes ago since the learned Lord Advocate was telling my hon. Friend the Member for Nelson and Colne that Scottish law had an advantage over English law in that it enjoyed greater flexibility. Now the same learned Lord Advocate in the same discussion is rejecting my hon. Friend's Amendment because he wishes rigidity as against flexibility in Scottish law. I think he should tell us where he stands.
I am not merely confused but alarmed by one other aspect of the matter, the very important aspect raised by my hon. Friend the Member for Kilmarnock (Mr. Ross). He quoted the statement made right at the beginning of Part I of the Royal Commission's Report. The Report is a very bulky volume and few of us could say that he has been through every page thoroughly, but I should have thought that the Lord Advocate would at least have known what was on page I and that what had been quoted from it is really inconsistent with what he has been telling us about the court being compelled in existing conditions, if my hon. Friends' Amendment is not accepted, to impose a certain sentence.
It is possible that the Lord Advocate has overlooked the evidence which was given by his own Scottish Office to the Royal Commission. That evidence seems disturbing to me. It is that the Act of 1829 saves the power of the prosecutor to restrict the pains of law. It goes on to say that the court is precluded from passing the sentence of death but"— on the intervention of the Lord Advocate— may pass any lesser sentence. 798 I have only two comments to make. If we accept the Bill as the Lord Advocate proposes and if when this Measure is invoked by the Lord Advocate's Department the court is then compelled to pass a minimum sentence of life imprisonment, we shall, in fact, be passing over to the prosecution before the case has ever been opened or argued in court the judgment of the court if guilt is proved. That seems to me to be a complete abrogation of what I should have thought was the elementary principle of the prosecutor and the judge not being the same person.
If, of course, the situation is not as the Lord Advocate has told us tonight, but is as the Scottish Office told the Royal Commission it was, the situation still seems to be wrong in principle and in law, and I say this as someone who does not understand the law. It means that if we keep this Act on the Statute Book the Lord Advocate can intervene and ask for any lesser sentence. In other words, here again the Lord Advocate appears to be taking upon himself the function which was essentially, I should have thought, the function of the judge, and the simple answer to all these inconsistencies and confusions seems to he to accept my hon. Friend's Amendment. It is a very reasonable Amendment and one which apparently enjoys the support of the Scottish legal profession.
I understand the difficulty the Lord Advocate might have got into at this time of night and this stage of the Bill. I suggest to him that perhaps it might be a good idea if he were to say. "This is more complicated than it seemed. Perhaps we should take it away, have a look at it, and talk about it on the Report stage."

§ The Lord Advocate
I do not want there to be any uncertainty about the position of the prosecutor in this case. As I pointed out to the Committee earlier, the Act of 1829 does not create offences but creates penalties. The practice for the prosecution when it has reported to it offences which might well come under that Act—if they were attempts to murder, throwing sulphuric acid and the like—has been to consider whether they might be charged as ordinary common law offences with no reference to the Act at all. That would be the normal way. Since the passing of the Act, however, it 799 has been possible to charge and have reference to this Act, when a compulsory sentence—if I may so put it—of death was the only sentence which the court could pronounce, unless Section 5 were brought into operation—namely that the prosecutor restricted the pains of law. The prosecutor can restrict the pains of law in one sense by not prosecuting under the Act at all, or not making reference to the Act. In another way, he can restrict the pains of law at the end of the trial.
I was asked by the hon. Member for Dundee, East (Mr. G. M. Thomson) whether there was in England an Act with a compulsory life imprisonment. I understand that up to the present moment there is no such Act on the Statute Book. Compulsory life imprisonment is included in the present Bill, and the Committee will remember that compulsory life imprisonment was included in a Bill discussed last Session.

§ Mr. S. Silverman
I am certain the Lord Advocate does not intend or wish in the least to mislead the Committee. Life imprisonment in the two cases to which he has referred is for murder, in substitution for the capital sentence. It is common ground that, in the discussion we are now having, we are not dealing with murder at all.

§ The Lord Advocate
The right hon. Member for South Shields (Mr. Ede) indicated that he disapproved of compulsory sentences—in other words, he said that one would never get a conviction—

§ The Lord Advocate
—that it is more difficult to get a conviction with a compulsory sentence. It might have been a more appropriate moment to remove the compulsory sentence in 1949, when the Criminal Justice Bill was being passed. I do not think there is any real substance in that.
I return for a moment to the hon. Member for Nelson and Colne (Mr. S. Silverman) who pointed out, quite rightly, that we are not dealing here with murder, whereas in the Bills to which I referred, we were dealing with murder, but the 1829 Act dealt with the most revolting crimes. I do not think it is going 800 too far to invite the Committee to say that whereas in the past they have carried a compulsory sentence of death, in place of that the Committee should provide compulsory imprisonment for life.