§ Mr. Elwyn Jones (West Ham, South)
I beg to move, in page 7, line 1, to leave out from "shall" to end of the Clause and to addhave effect in relation to any offence tried after the date of the commencement of this Act".I move the Amendment in order to have light thrown on the very dark places of this Clause which, in the view of my right hon. Friends and myself, is at present in a most unsatisfactory state. The purpose of the Amendment is to ensure that those who are tried for murder after the date of the commencement of this Act shall have the advantage of its provisions—all those who are tried for murder after the coming into force of the Act.
The Clause in its present form does not seem to ensure that, and it seems to me to be an elementary requirement of justice that it should. The position if the Clause as it stands became the law of the land would appear to be this: if in a murder trial the indictment happens to have been signed before the date of the commencement of the Act, the Act will not apply to that case; if, on the other hand, the indictment is signed after the Act comes into force, then the Act will have effect.
The remarkable position which would result if the Clause became law would be that in the same assize, in the same calendar, we might have two separate murder trials, and in one the accused might be charged under the provisions of this Bill, while in the second the accused would be liable to be charged under the provisions of the law as it exists at present.
The conclusion that would result from that, quite apart from the inherent injustice of the situation, would indeed be remarkable. It is by no means a rare event for two murder trials to take place 801 in the same assize. Even in the distinguished assize town on the circuit where I am accustomed to practise—Carmarthen—we have had two murder trials in the same assize. Therefore, the grotesque situation which I have mentioned might, under the provisions of Clause 16 as at present drafted, still arise. In larger assize towns, such as Liverpool and Manchester, this is a contingency that could very easily arise when this Bill becomes the law of the land.
We would then find ourselves in that same assize with trials of accused men, of the same character, one man facing the possible supereme penalty of death and the other protected by the provisions of this Measure. One could have the situation where, in one court, a man might seek to run the defence of provocation by words—which would, of course, not provide him with any defence under the present law—whereas in the adjoining court, if another accused person had the advantage of this Bill, he would be able to enjoy the protection of the Measure itself.
Other possible contradictions of that kind readily occur to one, culminating in the form of the death penalty itself; with the simple form of Clause 10 contrasted with the grisly formality of the present form of the death sentence, with its reference not only to the form of the penalty but to the place of burial, which, I am bound to say, is a ceremony which never ceases to fill me with abhorrence and terror. Happily, that is to go.
In my submission, these possibilities are not fanciful. The interval between the date of the signing of the indictment and the date of trial may be substantial—I do not know how long it is. I see that the learned Attorney-General shakes his head, and it may well be that there is not a great deal of force in that part of my observations. But Clause 16 also says:This Act shall not have effect in relation to any offence, where …where, in the case of a court-martial, the court-martial has been ordered or convened before the date of the commencement of the Act.
The learned Attorney-General is even more familiar than I with the considerable interval that at any rate used to occur, in the days when he and I were concerned directly with these matters, between the 802 date when a court-martial was convened and the date of the actual trial. I do not know what the position is in Scotland. I am very sorry to see that my Scottish friends, having added such distinguished legal knowledge to the interesting discussions which we have had over the last four hours, have now left the battlefield, but they might well be able to underline the fact that in Scotland, too, there is an interval between the date of the service of the indictment and the date of the trial.
It may be objected that this Amendment will cause more trouble. For instance, it may be said that it will necessitate the drafting of a new indictment. I cannot see that there can be any technical objection to the terms of the Amendment in that they will involve the drafting of a new indictment, it may be, in a number of cases. There is already adequate provision under the Indictments Act, 1915, for amendments to be made where the justice in the case requires—indeed, at any stage during the trial itself. Certainly it can be done without any difficulty before the trial begins.
As some at least of the provisions of this Bill—and I emphasise the word "some"—will have the effect of improving the quality of our criminal justice, there will be no technical difficulty, therefore, in the formulating of a fresh indictment to cover the case of the man who was initially indicted, but not tried, before this Measure came into force. I feel that this is a matter of elementary justice. The Clause as it at present stands certainly gives me the impression of running the grave risk of producing inequality before the law for two accused men charged in the self-same assize, and I cannot believe that it can be the desire of the Government to achieve that grotesque injustice.
§ The Attorney-General (Sir Reginald Manningham-Buller)
It is certainly not the intention of this provision to give rise to inequality between two persons charged with murder. But I am sure that the hon. and learned Member for West Ham, South (Mr. Elwyn Jones) will appreciate that whether the Royal Assent is given in the course of one assize or between two successive assizes, there will be and must be different law operating in relation to the cases tried after the Royal Assent and 803 to the cases tried before the Royal Assent. On that, I think, we agree.
It does not seem to me to add very much to the point which the hon. and learned Gentleman has made to attach importance to the illustration that he gave of two separate trials for murder at the same assize. The problem arises even at the same assize or at consecutive assizes. I was interested to note that the town of Carmarthen, which I well remember, seems to have had two murder trials at the same assize, which I am sure is a very remarkable event in the history of Carmarthen.
The real problem here, when one is altering the law in relation to murder under Part I and distinguishing between capital murders and other murders in Part II, is at what stage and at what point of time to effect the transition. The Amendment proposed by the hon. and learned Gentleman says that the transition shall applyin relation to any offence tried after the date of the commencement of this Act".Of course, in one sense this Bill as it now stands will apply to that. But this Amendment does not really meet the problem which has got to be faced and to which we feel the Bill gives the right solution.
The problem really is this. No one can at the moment foretell when the Royal Assent will be given. We want this Bill to come into operation as soon as possible. Let us consider the possibilities. There are not so many murder trials in a year. The Royal Assent may come at a time when a murder trial is going on. I am sure the hon. and learned Gentleman will agree that it would be quite impracticable to alter the law under which that trial is being held in the course of that trial. Therefore, one has got to fix some point of time in relation to the trial so that the change of law will or will not operate in relation to that point of time.
In the course of another case, the Royal Assent may be given before the indictment is signed. The signing of the indictment is equivalent to the return of a true bill by a grand jury; there is no fixed time for the signing of an indictment, which may take place after Commission day. It is the bill of indictment, of course, which has to be preferred 804 before Commission day; signing may take place afterwards.
If the Royal Assent is given before the indictment in a particular case is signed, then, under the Bill, the trial will be subject to the provisions of the Bill. I am sure that the hon. and learned Gentleman will agree that that is all right; he will, I imagine, find nothing to complain about there. Two problems remain: what is to be done in relation to a trial which is going on when the Royal Assent is given, and what is to be done in relation to a murder trial where the indictment has been signed before the Royal Assent is given?
The hon. and learned Gentleman would go this far, at any rate, that the trial which is going on when the Royal Assent is given should be carried on under the law as it was before the Bill came into force. I imagine that he will agree with that. What, then, about a case where the indictment is signed and a few days elapse, as they may in some parts, though not very often, and the Royal Assent happens to be given between the signing of the indictment and the commencement of the hearing? The hon. and learned Gentleman suggests that such a case should be heard under what I might call the new law under the Bill.
I do not agree with him, and I hope that he will, on reflection, agree with me. Before the Bill becomes an Act, one could not prefer an indictment for the offence of capital murder. That can be done only after the Bill becomes an Act. Although there are powers for amending an indictment when it is defective, there is not, I think, power to substitute for one statement of offence a statement of offence of a different character. But for this provision, the difficulty would be this. If there were an indictment, before the Royal Assent, charging murder in one of those cases which would remain capital under the Bill, the only sentence, if an amendment could not be made—and I do not think it could—which the court could pass on conviction, if the Bill applied, would be a sentence of life imprisonment. I take that as an illustration of a case where, under the present law, there would be a death sentence and where, under the Bill, there would still be a death sentence.
805 That would really be a very odd and a very remarkable result. It would be absurd if the effect of the Bill were to make it impossible to convict of capital murder those whose offences were capital both under the present law and under the Bill.
We have given much thought to the problem. It is a transition problem. Our view is that the right place to make the break is at the signing of the indictment, which really is the start of the trial for murder, although, as I say, there may be a few days—never a long time, I believe—between the signing of the indictment and the commencement of the hearing.
How will that work? It will deal with the problems to which I have just been drawing attention, of the part-heard case when the Royal Assent comes and the difficulty with regard to the statement of offence in the indictment which is signed before the Royal Assent for what one might call a capital murder not charged as such in the indictment. It will mean that all those cases where the indictment is signed after the Royal Assent will be subject to the Bill in its entirety.
All those cases—and I think there will be very few of them, if any—where the indictment is signed before Royal Assent, and the hearing of the case has not started before Royal Assent or is part heard when Royal Assent is given, will be tried under the old law. One has to face up to that, and it is the only effective way to make the transition. It means that the defence of diminished responsibility cannot he relied upon if that case arises. It may well not do so. In fact, Part I of this Bill could not be relied upon. But that can be dealt with and adjusted, should that case arise, by the exercise by my right hon. Friend of the Royal Prerogative.
The hon. and learned Gentleman is aware, I am sure, of what the predecessor of the present Home Secretary said in the House on 23rd February last year about the exercise of the Royal Prerogative:Each case will be considered on its merits, regard being had to the special considerations relating to that case and all relevant considerations of either a public or private nature."—[OFFICIAL REPORT, 23rd February, 1956; Vol. 549, c. 581.]If there were a case where the accused was convicted of murder under the old 806 law after the Royal Assent because the indictment was signed before the Royal Assent or the case was part heard when Royal Assent was given, it would be right for my right hon. Friend to pay full regard to that in determining whether or not to exercise the Royal Prerogative.
I hope that I have satisfied the hon. and learned Gentleman that the solution propounded in this Clause is the correct one. I agree with him that it is not easy to devise a satisfactory way of making the transition. We have done our best to find the best solution, and I hope that I have made clear the reasons why we have come to that conclusion.
I want to say one more word about the ordering and convening of courts-martial. I know that the hon. and learned Gentleman has great experience of these matters. I can claim a little myself. Whilst not making any promise, I will consider whether it is possible to find some point of time in relation to a court-martial which is likely to be more closely related to the commencement of the hearing of the case than the actual making of the convening order. If such a point of time can be found nearer to actual commencement, it will reduce the possibility of one of these cases being started before Royal Assent and finished after it. Of course the chances of a court-martial for murder taking place at that time would be very remote indeed.
I hope that I have been able to satisfy the hon. and learned Gentleman of the difficulties of this problem and that we have found the best solution to the problem which will operate with the least inconvenience.
§ Mr. S. Silverman
The right hon. and learned Gentleman has demonstrated with great lucidity that there are many technical problems involved here, and that it is not easy to find the right point at which to make a statement in confidence that no anomalies will result. The Attorney-General said that certain results would be absurd. I am afraid that in the context of this Bill that is not an attractive reason to advance, because there will be so many absurdities under the Bill anyhow that one more or less can hardly make much difference. The only really intolerable thing would be that there should ever be in this country an execution in circumstances in which the existing law on the date of the execution would 807 not have authorised it, and that that should have happened merely by some accident of time in the signing of the indictment or the arranging of the date of the trial. That would be an intolerable thing which we are all anxious to avoid.
While it is impossible to expect the Attorney-General to give undertakings as to the future exercise of the prerogative of mercy by another member of the Government, we should like to be satisfied that in no circumstances would that absurdity be allowed to happen.
§ 10.30 p.m.
§ The Attorney-General
Perhaps I might answer that point in this way. There is the further safeguard, of which the hon. Gentleman is fully aware, that all murder cases in this country are dealt with for the prosecution by the Director of Public Prosecutions, and I am certain that the Director will do his utmost to see that, by a short adjournment or some machinery of that sort, there is no part-heard murder case. I am sure that the courts will do their best to assist and to ensure that any case is either concluded before the Royal Assent or starts afterwards, in which case no problem will arise. I mention that as a further safeguard. I do not believe that we shall be troubled with this problem, but obviously some provision has to be made in the Bill in relation to it.
§ Mr. Anthony Greenwood
I rise only to say that I fully accept the explanation given by the Attorney-General. When we considered this matter before the Committee stage it seemed to us that it should apply to any offence tried after the Act came into force. The right hon. and learned Gentleman has advanced good arguments as to the difficulties which would arise if that were the case. As he says, this is purely a transitional problem and only of ephemeral importance. In the circumstances, I think it might expedite the work of the Committee if my hon. and learned Friend the Member for West Ham, South (Mr. Elwyn Jones) would consider withdrawing the Amendment so that we might go on to other matters.
§ Mr. Elwyn Jones
In view of the most lucid and helpful observations of the right hon. and learned Gentleman, I do not wish, in the circumstances, to press the Amendment. The Attorney-General has 808 placed on the record for any future Ministers who may be concerned with these matters the fact that it is certainly the will of the House of Commons that no injustices, of the kind which I contemplated might arise, shall arise in the enforcement of the criminal law relating to murder.
The right hon. and learned Gentleman has also rightly drawn attention to the existence of the all-seeing eye of the Director of Public Prosecutions, who, admittedly, would not arrange the timing of the beginning of a murder trial if the "bush telegraph" indicated that the Act was about to take effect.
I attach particular importance, in view of my own experiences, to the undertaking of the Attorney-General to look again at this possibility and the unsatisfactory nature of the reference to the date of the convening of a court-martial, bearing in mind certainly my own recollections, and perhaps some of those of the Attorney-General, of the fact that a considerable gap in time was in some cases liable to arise.
In the circumstances, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause ordered to stand part of the Bill.
§ Clause 17 ordered to stand part of the Bill.
§ The Attorney-General
I beg to move, That the Chairman do report Progress and ask leave to sit again.
We have made very good progress today. My right hon. Friend asked me to say how sorry he was that he was detained on other business and was unable to be here for the concluding stages. I hope that we shall make as good progress tomorrow and be able to conclude the Committee stage of this Measure at a reasonable hour.
§ Mr. Anthony Greenwood
It is only right that I should express my disappointment that we are not to make more progress with the Bill than we have done. Some of us had hoped that we would make inroads into the new Clauses, but we appreciate that right hon. Gentlemen opposite are perhaps getting tired. We are very glad of this new evidence that they are to be more solicitous of their health than they have been in the past. We think that that is a sign of growing redemption on their part.
809 We have made good progress with some of the most difficult parts of the Bill, and although I regret that we have not gone further, I think that it would be wise to adjourn discussion now and start on the new Clauses with fresh minds tomorrow. I hope there will be no dragging our feet tomorrow and that we shall be able to conclude the Committee stage.
§ Mr. S. Silverman
I do not wish to introduce any note of dissent in this most unaccustomed example of complete unanimity between my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) and the Government about a Bill on which I thought we agreed about nothing, not even about the moment we should agree to report Progress. We were getting on nicely and learning a great deal. I certainly learned a great deal about Scottish law which I hope will be of value to me some day, although I do not see how.
I rise not to oppose the Motion, but to say that this is probably the last occasion for many years that we shall have the opportunity—apart from the general principle of the abolition of the death penalty—to discuss qualifications and compromises of any kind. The Royal Commission sat for a number of years and made a large number of recommendations—I believe it was 60. It may well be that none of those recommendations will commend itself to the Committee but, in view of the progress we have made, I earnestly hope that as long as we make reasonable progress tomorrow it will not 810 be thought necessary to complete the Committee stage tomorrow, if in fact there still remain to be discussed new Clauses based on perhaps unanimous recommendations of the Commission which would otherwise never be examined by Parliament. That would be most unfortunate and I hope that we shall not be under great pressure to complete the whole of the Committee stage tomorrow and so treat with complete disrespect the labours over many years of one of the most valuable Royal Commissions which has ever sat in this country.
§ The Attorney-General
We can, if more time is required, go on later tonight discussing the new Clauses, but I do not think that that will be the desire of the Committee. We must, if we can, as my right hon. Friend has said, finish the Committee stage tomorrow night. I am sure that we will do our utmost to give consideration to all the new Clauses. We have already done so, but we will give our reasons for our decisions about them, and I ask hon. Members to bear that in mind. If the Committee wants to continue tonight to discuss the new Clauses, we can do so, but in view of the tenderness which has been expressed for the health of my colleagues and myself, I do not want to prolong the agony of stopping here and discussing the new Clauses tonight.
§ Question put and agreed to.
§ Committee report Progress; to sit again Tomorrow.