HC Deb 29 January 1957 vol 563 cc927-51

Where any person has been convicted of murder falling within Section five or Section six of this Act, the jury so convicting him shall, after the conviction has been recorded, be required to consider on such evidence as shall be offered on either side whether there exist in that case extenuating circumstances and on their recording a verdict that there are such extenuating circumstances that person shall not be liable to suffer death.

Provided that where a person has pleaded guilty to murder falling within Section five or Section six, a jury shall be empanelled before sentence is passed to inquire whether extenuating circumstances exist and on their recording a verdict that there are such extenuating circumstances, that person shall not be liable to suffer death.—[Mr. S. Silverman.]

Brought up, and read the First time.

Mr. S. Silverman

I beg to move, That the Clause be read a Second time.

The Clause has the double distinction of having been unanimously recommended by the Royal Commission and almost unanimously rejected by legal opinion afterwards. Those two statements are not quite so irreconcilable as they sound. The Royal Commission was fully conscious of all that could be urged against the proposal, and most of those who have found it unattractive have not been worried by it, because they have been in favour of abolishing the death penalty.

The Royal Commission's proposal was that where there is a charge of murder—although in this case it should be "where there is a charge of capital murder"—if the accused pleads guilty the trial shall proceed like any other trial. Evidence shall be called both ways; there shall be speeches and a summing-up, and the whole proceedings shall be directed to the single issue which the jury has been charged to determine, namely, whether the prisoner at the Bar be guilty or not.

What is then suggested is that unless the jury finds that he is not guilty, which, naturally, is the end of the whole proceedings, instead of the court proceeding directly to sentence there is, as it were, a second trial which is directed, in effect, to deciding whether or not, in all the circumstances, the murder ought to be visited with the capital penalty.

In other words, if I may paraphrase the proposal, the jury which has convicted the accused must then be invited to decide whether or not it will make a recommendation to mercy—as in many cases it does—with the proviso that if it does so the death sentence shall be neither pronounced nor carried out, and that this second verdict shall be arrived at with both prosecution and defence entitled to lead and to cross-examine such evidence as it thinks fit to place before the jury upon that issue.

Whether that second proposal is quite in accordance with what the Royal Commission recommended I am not sure; it probably is not. I myself would conceive, however, that if the issue is to be decided by a jury it should be decided on such evidence as may be called.

Mr. Philip Bell (Bolton, East)

Will the hon. Gentleman help us by giving a definition of "extenuating circumstances"? That is the difficulty. Does mercy killing provide an extenuating circumstance? Is shooting a Fascist dictator an act in respect of which extenuating circumstances could be pleaded? We must have some definition.

Mr. Silverman

I see no reason why I should give any definition at all. I think that it would militate very greatly against the usefulness of the proposal if Parliament were to limit the discretion of the jury in such cases by laying down a statutory definition of "extenuating circumstances". That would fly directly in the face of all that is claimed to be of advantage in the proposal, for reasons to which I shall refer shortly. If the hon. and learned Member for Bolton, East (Mr. Philip Bell) will have the patience to listen to me, I think that he will understand my argument, although I may not be able to persuade him of the merits of the proposal.

My own view is that if a jury is to be invited to say whether or not a certain murder was, in circumstances of that nature, to be regarded as carrying the capital penalty, it should do so upon evidence. It is obvious that we could not have a trial in which only one side was entitled to advance evidence or offer argument. The difficulties which the hon. and learned Member sees would be no difficulties at all, because any deliberations for or against the proposition that extenuating circumstances existed would be offered to the jury, thus avoiding the necessity for limiting and question-begging definitions.

Mr. Charles Doughty (Surrey, East)

It is not so much the jury or those who have to cross-examine the witnesses who will be in difficulty; it is the judge who has to direct the jury upon the question whether there are extenuating circumstances. Is he to be given no assistance in these cases?

Mr. Silverman

If we had any definition I believe that, so far from giving the judge assistance, it would make his task infinitely more difficult.

Mr. Doughty

The Clause is ridiculous without a definition.

Mr. Silverman

It will help if hon. Members are not too hasty either in forming opinions or in intervening. I say that with diffidence because I very often intervene myself, but in this case it is better to see the argument in the round before bringing in particular points; otherwise, we may take an unbalanced view of the matter.

I say at once that the objections to the proposal are only too obvious. The first is, as the hon. and learned Member for Bolton, East has said, the extreme difficulty of forming any clear view—as a matter of principle—of what amounts to extenuating circumstances. Of course, it is an extremely difficult question—and it is precisely for that reason that it is probably better, if we are entertaining the proposal, to leave both judge and jury unfettered. I certainly agree that it will be an extremely difficult task whether we define it or not.

Mr. Paget

Both in France and in some of the States of America they have this provision, and it works quite satisfactorily. There is no definition; the question is left entirely to the jury. Belgium is another country where the provision operates quite satisfactorily.

Mr. Silverman

If my hon. Friends and hon. Members opposite make my argument one piece at a time they will save me from having to trouble the Committee at all.

I am much obliged to my hon. and learned Friend. I know that this proposal is not entirely new. First, however, I want to submit what the difficulties are because even though it works very satisfactorily in many countries—which is because in those countries the difficulties have been overcome; and I agree with my hon. and learned Friend that they are by no means insuperable—I must concede that the difficulties are there. The first one is that which I have just mentioned.

The second is that it seems, at any rate at first sight, to introduce a new principle into our criminal law. It has always been said that the functions of the judge and the jury are quite different; that whereas it is in every way right that the jury should decide questions of fact, and the judge has nothing whatever to do with that part of the case, so, when the conviction has been recorded, it is the business of the judge—the jury having nothing to do with it—to say what shall be the penalty. This is a clear division of functions which, over a great part of our law, works very well indeed, and I think that few, if any, would seek to change it.

7.30 p.m.

The second important objection to this proposal is that at first sight, it seems to change and confuse what always has been the separate functions of judge and jury. Without wishing to labour this unduly, I suggest that neither objection is insuperable. I will take the first one, where the circumstances in a particular case justify the conclusion that there are sufficient extenuating circumstances to make it wholly wrong to execute the supreme penalty. I suggest that the argument is not carried much further when we say that this is a difficult question. Of course it is, but it is one which has to be decided in each particular case.

Were we able to say, "This is so difficult a question that we will not try to decide it at all," then the objection as to difficulty would be a good one. But that is not the situation. In the law as it stands, and as it will be if the Government have their way with this Bill, the situation is that that question will have to be decided in every case by someone, and, in connection with the circumstances of each case, considered on the merits of that case.

Against the proposal of the Royal Commission it is said that it is better that the Home Secretary should do it as he always has done. In the light of all we now know, does anyone really think that this is a question better decided in secret by one man? It is said that this is an enormously burdensome task to lay upon a jury. But there are not many juries in murder cases. A very small percentage of the community would ever have this duty to discharge and no one would ever have to discharge it alone. Is that not better than that every single case over the period during which he holds office should be decided by the Home Secretary, by one person? If the thing be so burdensome, surely it is better to spread the burden than to saddle one unfortunate Minister with the job of reaching a decision.

Were decisions reached according to ascertainable principles, it might be possible to argue that it is better done by one man, who could apply a similar kind of yardstick over a period, than to leave it to be decided specifically in each case; when, in one case, there might be a sympathetic jury and, in another, a more hard-hearted or callous jury. But the Home Office has always told us that each case is considered on its merits. Without putting too fine a point on it, or comparing the record of one man with another, obviously it is true to say—and it will be readily conceded—that Home Secretaries differ one from another as much as juries might be expected to do. So the objection about the supreme difficulty or the arduous nature of the job does not take us much further, since a decision has to be made.

Let us come to the second main objection which is, of course, a serious one: that we are taking away from the judge and giving to the jury the right to decide sentence. But we are not really. This is the one case in which the judge cannot decide sentence. He has no discretion. The whole point of the principle of allowing the jury to decide the question of guilt and, the jury having brought in a conviction, then leaving it to the judge to impose what he, in his judicial experience considers, the proper penalty, goes by the board as soon as we realise that in this case the judge cannot use his discretion. He cannot seek to make the punishment fit the crime, or measure the penalty by the degree of moral turpitude involved, or the presence or absence of extenuating circumstances.

In every other case, yes; because in every other case there is a range within which the judge is allowed freedom of manoeuvre and elasticity in his judgment. But this is a rigid penalty. So it is no use saying that we are taking from the judge the power to determine sentence. In capital cases the judge has no power to determine the sentence. All we are really doing is taking away the question of a reprieve from the secret, uncontrolled, unexplained, unjustified, undiscussed decision of the Home Secretary—taken no man knows how—and giving it to a jury in respect of whose decision everyone will be able to say, "That is what they had before them; we know exactly what they had to decide and we know what they decided." It seems to me that these are powerful answers to what I concede are powerful objections.

Finally, I wish to direct the attention of the Committee to the circumstances which made the Royal Commission unanimous about this proposal. It is no light thing that the Royal Commission was unanimous, because, seeing as it clearly did, all the difficulties, anticipating, as it clearly did, that the proposal would be unattractive in many influential quarters, the Royal Commission nevertheless decided, by a unanimous vote, to make the recommendation. Its reason was exactly the rigidity of the law which it was appointed to consider. Everyone who has taken part in this discussion in modern times has put his finger on the basic weakness of our law of murder. It is that murder is not one crime; it is a wide variety of crimes.

People sometimes say that murder is the worst of crimes and deserves the heaviest of penalties. Certainly, some murders are the worst of crimes, but not all. I can think of some crimes which are not murders and are not capital crimes, but which are much worse than some of the murders we have heard about. Every hon. Member of this Committee, and certainly every hon. Member who practices law, knows that. It is not true that murder is always the worst crime. The weakness of our law is that all those things called murder, and which are murder by our law, are not one crime at all, but a wide variety of crimes. Yet the law insists on attaching to all of them the same penalty, and that the most severe penalty which it is in our power as a community to attach.

The problem, more for the retentionist than for the abolitionist, is how to alter the law as to avoid that situation and to have a variety of penalties in respect of a wide variety of crimes. Once we embark upon that investigation we discover, as everybody discovers who has ever made the attempt, that it cannot be done easily. If ever there were a demonstration of that fact, it is in the Bill. The Government have found that the degree of moral turpitude does not provide a suitable yardstick. They have tried the principle of public order, as if it were conceivable that some murders would be an offence against public order and others would not. They have narrowed it down by a definition in which they talk about the rights of property, a very strange principle to apply in such a context.

The hon. and learned Member the Joint Under-Secretary of State shakes his head. I shall not delay the Committee by quoting things that have been said from the Government Dispatch Box attempting to justify the distinctions made, but I think there will be universal agreement that if the Government are seeking to satisfy the public sense of justice the Bill lamentably fails. I am sure there are Government supporters who believe that although the Bill does not satisfy anybody's sense of justice it is nevertheless right. I am trying to show that every attempt made by anybody by whatever method and in whatever context to differentiate the penalty according to some differentiation of the crime ends in failure. I do not think anyone will seriously dispute that.

If we cannot have the penalty fitting the crime by classifying the crimes, what are we to do? The Royal Commission said that in those circumstances there was nothing left but to leave the decision to be made without classification or categories but by individual cases being taken on their merits. The task of the jury in that position is no more difficult than under the Bill. It will not be more difficult to define or decide in a particular case whether there are extenuating circumstances than to decide whether it is a case of diminished responsibility. These are all difficult questions, but the task will not be made any greater by the course which I am suggesting.

7.45 p.m.

Ultimately, the Commission said, when the advantages are weighed against the disadvantages and we decide that the disadvantages outweigh the advantages, and that we could not modify the law at all, we had better abolish it. That is the dilemma in which the Royal Commission has left the Government. The Royal Commission was not asked to consider abolition but what modifications were possible on the basis that capital punishment for some murders was to be retained. It came to the unanimous conclusion that there was only one way to do it, but the Government say, "We are not prepared to do it in that way". If we are not prepared to do it as the Commission proposed, and there is no modification or qualification justified, we shall have to abolish the law altogether; but the Government refuse to do that.

The Government insist upon trying to distinguish one murder from another by a yardstick that is plainly unsatisfactory and in the teeth of the unanimous opinion that that cannot be done. Having decided that they will retain capital punishment and will change the law to make it less rigid, more adaptable and more in conformity with the natural sense of justice, the Government's only decent course is to accept my proposal, either in the form in which I make it, or in the form in which the Royal Commission made it, but anyhow to accept the principle and to incorporate it in the Bill.

Mr. Doughty

I ask the Committee not to accept the proposed new Clause, which is much more revolutionary than anything I have heard for a very long time respecting the practice of the law.

It would mean that at the conclusion of a possibly lengthy trial the jury would have to start all over again with a new trial on the question of extenuating circumstances. One of the elements of our criminal law is that the parties, and particularly the accused, know the evidence which to be called in the case. Before any trial takes place and after we decide whether a man is guilty or not of murder, are we to give notice to him that after conviction we propose to call evidence to prove that there were extenuating circumstances?

It would mean that at every criminal trial the accused would be faced with the knowledge that he did not know all the evidence that was going to be called, and counsel for the prosecution and defence would have to go to the court armed with evidence, on the assumption that the conviction was going to take place, in order to prove or disprove that there were extenuating circumstances.

I have no hesitation in saying that, although I have the greatest respect for the common sense shown by juries, we could not have a more unsuitable tribunal than a jury to decide this question. It is difficult for any Home Secretary to decide it, although he has opportunities for making examinations, sending for people, including the very judge who tried the case, and of cogitating upon the matter and coming to an unhurried conclusion. Is it fair or right to ask twelve people to come to such a conclusion immediately after hearing such evidence as may be called before them upon this one case?

Look at the wording, "extenuating circumstances" what does that mean? In nearly every case it can be urged that there were extenuating circumstances. If one person has been annoyed by another by means of unjustifiable words, and he murders, it is an extenuating circumstance that he was annoyed by the offensive words. Are we to say that that person ought not to be convicted of wilful murder? How can any judge who is doing his duty properly direct the jury on what is meant by "extenuating circumstances" in such a way as to bring the crime from the category of wilful murder to one in which the penalty for murder should not be imposed? This proposed new Clause would not only impose a radical change in the law, but it would impose upon judges and juries tasks which for them would be quite impossible, and it would certainly result in far more miscarriages of justice than can possibly occur under any branch of the law at present existing.

Mr. Hector Hughes

The hon. and learned Member for Surrey, East (Mr. Doughty) has stigmatised this very proper new Clause as revolutionary. That does not seem to me to be a good argument. In the first place, it is not revolutionary, as I hope to show, and, in the second place, even if it be, that is not a reason for rejecting it. It should be considered, and accepted or rejected on its merits.

The hon. and learned Gentleman also asked whether it would be fair to ask the same jury immediately after the trial to try another issue arising on the same set of facts. It seems to me that the answer is not the one he gave, but is obviously "yes". They are the best tribunal because they are already conversant with the facts. They have just been hearing the facts. They have heard them adduced in evidence.

Mr. Doughty

I said nothing of the sort. What I said was a fresh trial upon fresh evidence of which no notice has been given—not upon the facts which they have already heard.

Mr. Hughes

Precisely. It is a fresh trial on the same or further evidence which would be relevant to the question of extenuating circumstances, and it seems to me that that very jury would be the best tribunal to try that second issue not only at the most appropriate time but at the only time when it would be possible for them to do it.

I support this proposed new Clause because it seems to me to be inherently just. I think I am right in saying that the mover said—and if he did I agree with him—that it gives legislative effect to long practice. The mover of the Clause made a very powerful argument. It has long been the practice in our courts for juries to recommend to mercy. That was a disorderly and illogical way of expressing their opinion upon the issue of extenuating circumstances. But the proposal in this new Clause puts that disorderly and illogical procedure upon a logical basis. Let us look at it clearly. It proposes first the trial on the issue of murder, and if the jury should come to the conclusion that the accused is guilty of either kind of murder—murder simpliciter or capital murder—then under this new Clause they would be asked to try the second issue.

The effect of this is clear and practicable. The hon. and learned Member for Surrey, East asked for a definition of extenuating circumstances. He said this issue could not be tried without a definition of extenuating circumstances. It seems to me that it would be impossible to define extenuating circumstances because for many reasons they are so various. I am sure the hon. and learned Gentleman would agree that they are even more various than the length of the Lord Chancellor's foot. It seems to me that this question of extenuating circumstances is essentially a question of fact for the jury and not for the judge.

The whole basis of this proposed new Clause seems to me, put shortly, to be this. It is best to decide one issue at a time. A jury would be asked to decide the one question of murder—guilty or not guilty—and then if they found a verdict of murder, what would be more natural than for them to proceed to consider and determine the other issue of extenuating circumstances? The jury is the proper tribunal to do it, and that is the proper time to do it because they will have just heard all the direct evidence in the trial on the issue of murder. Then they proceed to the second issue of extenuating circumstances or no extenuating circumstances.

It is obvious that the jury are the proper people to hear and determine that issue, and, indeed, to hear any further evidence which may be relevant to the issue of extenuating circumstances, and that is the proper time to do it. The proper time is immediately after the conviction. The same jury, conversant with those facts, reconsider the evidence, consider any fresh evidence relevant to that particular issue, and in that way justice will be done.

It seems to me that this new Clause may have a certain appearance of novelty about it, but fundamentally and essentially it is a good Clause which will help the operation of justice. I therefore support it.

Mr. Ede

All hon. Members who have so far taken part in this debate are lawyers. I am not a lawyer, and I am not going to deal with the legalistic part of the arguments, but I have had a little experience of dealing with the results of the deliberations of juries on the simple issue of guilty or not guilty.

I have been very happy to be associated so far with my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) in his opposition to this Bill and in the promotion of the Bill which he introduced in the last Session. I regret, therefore, that on this occasion I find it impossible to agree with him, and if this matter goes to a Division I shall have to vote against the new Clause.

In the first place, I am not certain what happens if the jury disagree on the second issue. That is a very important point. I can only assume that there might be a second trial on that issue—not before the jury which heard the whole of the first case, but before a new jury, and, as far as I can see, then the whole case would virtually have to be retried.

8.0 p.m.

Mr. Silverman

Perhaps my right hon. Friend will remember that according to the Royal Commission's proposal, albeit not reproduced in this new Clause, before the decision of the jury about extenuating circumstances had any application, there had to be a unanimous verdict.

Mr. Ede

My hon. Friend is always complaining that other people anticipate the points he is going to make, but he is very adept at falling into the same error himself. This is a very good example of it.

One of the things which is said, and it is, I agree, a very weighty argument, is that in existing circumstances the final decision is left to one man, the Home Secretary. If a jury has to be unanimous, it may very well be that again the decision is left to one man or woman, that one man or woman not communing with his or her own conscience but with eleven other people who have made up their minds.

I served on a jury only once; it was a coroner's jury. I was faced with a situation where I was one against eleven. In the end we were unanimous because the eleven came to the conclusion that it was easier for them to agree with me than for me to agree with them. My hon. Friend the Member for Oldham, West (Mr. Hale) today instanced a case where, as he said, there were two trials, and somehow or other he knows that at the first the jury were eleven to one in favour of taking one course and at the second trial the jury were eleven to one in favour of taking the other course. But on each occasion the jury disagreed.

I have never heard of any scheme for dealing with this matter of what is to happen when a person has been found guilty of a capital crime which did not in the end leave it possibly to the decision of one person. I would say that if it has to be left to the decision of one person it is better that he should be one person acting with a sense of direct and imposed personal responsibility rather than one person who accidentally finds himself in that position.

There have been suggestions, for instance, though not in this new Clause, that there should be a committee of five to advise the Home Secretary. I have never been quite sure how that committee would deliberate and reach a decision. In fact, I think it is sometimes suggested that such a committee should have power to decide by a majority. Even then, with a committee of five, if it is two and two with the fifth man having to give his declaration, it is the decision of one person again. If the five are to be unanimous, four wishing to take the more extreme course and one against, the responsibility is again left on one person.

One must be very careful on these occasions not to get into difficulty under the Official Secrets Act. Although I have no doubt that the privilege of the House would protect one, I want to be very careful how far I give indications which migh embarrass other people who have to fill the responsible office of Home Secretary in this respect in the future. I hope the Committee will accept that on all the files of my predecessors which I examined there was always an indication that very great care had been taken in reaching a decision.

When one has a case which may be border-line, one has put in front of one the files which deal with similar cases in the past. One has the opportunity of examining them. One can call for any advice, professional or lay, which one may feel one ought to have before reaching a decision. I cannot conceive of any jury having the opportunity of considering in public some of the things which a Home Secretary feels he ought to know. In fact, I can think of circumstances in which the person one would have to call in public, if that were the procedure, would be very reluctant indeed to come to give in public the kind of statement which he will, I do not say willingly, but quite unreservedly make when he knows that it will not go beyond the responsible person who has sent for him.

I have greatly admired the courage of my hon. Friend the Member for Nelson and Colne in the fight he has put up against this Bill. I regret that I was not in this country when he started his fight. Had I been, we might not have got as far by tonight as we have. Since I have come back, this is the first occasion on which I have not very heartily supported every proposal he has put forward, and I hope he will acquit me of doing on this occasion other than give my honest opinion to the Committee, as I know he would desire me to do if I felt I had to speak at all.

I am bound to say that I do not like the idea of imposing this further task upon a jury at the end of a long case. During the course of a trial, the members of a jury have been put to very severe mental tests when, as in my experience juries generally do, they have tried to follow meticulously every twist and turn in the case, when they have listened to the closing appeals of counsel and the summing up of the judge, and have then retired and considered the evidence they have heard, sometimes trying to disentangle it from some of the closing speeches which have followed the evidence.

We must remember that the twelve men or women of a jury have been brought together for this particular occasion. Many of them will never have been in a court before. I sometimes feel that those of us, not only counsel or solicitors but magistrates, who attend courts fairly frequently do sometimes fail to realise when we are at quarter sessions the different attitude that jury men and jury women, who have never been in a court before, take towards the course of a trial conducted before them compared with the attitude of those of us who are more accustomed to the process. To impose this further new duty upon them would. I think, he to put upon them an intolerable burden.

I think, too, that most of the things that would be present to their minds can generally be conveyed to the Home Secretary by the judge. Generally—I hope I am not saying anything that goes just beyond what I ought to say—a judge does pass some comment on the calibre of the jury which tried the case. I am quite sure my hon. Friend will understand what I mean. It is a difficult idea to convey, but there are some juries which are rather better than others. That is always assuming that all juries are good. It is not saying that there are bad juries and good juries, but is merely saying that some juries are better than others. By the attitude that they have adopted while they have been in the box, possibly for four or five days, they show a discrimination that entitles the judge to make comments particularly on the recommendations that they have made.

As I understand, nothing in the Bill prevents the jury from making a recommendation if they think fit. They may find a man or woman guilty of capital murder and are then perfectly entitled to make a recommendation in such terms as they think fit. I shall not comment on the way that some of these recommendations appear to have been reached. All I say is that I imagine juries will still have that power.

For the reasons I have given—and after all I was Home Secretary for a longer period than any other person since the great Reform Act; that was mere survival—

Mr. S. Silverman

It was good survival.

Mr. Ede

It was my survival. In my experience, people were very jealous of other people's jobs, but nobody was ever jealous of the Home Secretary's job— that might have helped my survival. But I did have to have a number of consultations; I did make certain minor administrative arrangements with regard to the way in which I could get advice in the way of widening it, which, I have no doubt, the Joint Under-Secretary will be able to find out about when he gets back to the office. Heavy as the responsibility is—and it is a responsibility that no man should ever hunger to have—I believe that that is the best way of discharging it of all those that have been suggested so far. As far as I am concerned, I cannot do other than oppose the new Clause.

Mr. Frederick Willey (Sunderland, North)

I do not wish to detain the Committee for more than a few minutes, but as I had the pleasure and privilege of serving as Parliamentary Private Secretary to my right hon. Friend the Member for South Shields (Mr. Ede) I must say that I disagree with almost everything he has said. I am still convinced by the very lucid argument deployed by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman).

Mr. S. Silverman

This is surely much more revolutionary than anything I said.

Mr. Ede

I am quite sure that my hon. Friend will agree that he was never consulted about any of these issues himself, nor either invited or allowed to express any opinion.

Mr. Willey

I at once assure my right hon. Friend that there is no danger of any breach of the Official Secrets Act. I wish to deal with the matter in very general terms.

As my hon. Friend the Member for Nelson and Colne admitted from the start, there are many disadvantages in this proposal, but the disadvantages arise out of the retention of capital punishment. There are bound to be difficulties as long as capital punishment remains. As I understand its Report, the Royal Commission was implicit that the time had come for the abolition of capital punishment. It was explicit that if capital punishment was retained, allowing for all the disadvantages this was the best course to follow. I therefore call the attention of the Committee to the fact that the Government, in resisting the Clause, as I anticipate they will, are rejecting entirely the recommendations of the Royal Commission.

8.15 p.m.

What is the main disadvantage of the present procedure? Why should it be offensive to all lawyers? The reason is that here we have the most serious major penalty determined, not by judicial process, but by executive action. That is the most offensive of all the alternatives.

Mr. Ede

Does my hon. Friend mean to say that if the new Clause is carried, when a jury finds that it is a case of capital murder without extenuating circumstances, the Home Secretary will not still have the duty of considering whether he shall make a recommendation to the Crown?

Mr. Wiley

That would be a diminished disadvantage still persisting. The major disadvantage, the thing which should be abhorrent to all lawyers—it may be unavoidable, but the argument that it is unavoidable has not been advanced—is that this decision of life and death is taken by executive action. My right hon. Friend cannot inform the Committee upon what grounds it is taken.

What is the purpose of raising the question of what are extenuating circumstances when no one has the slightest idea what are extenuating circumstances at the moment? No one has the slightest idea of what factors are taken into account by the Home Secretary when taking his decision. We know, because Home Secretaries in the past have made revelations, that some Home Secretaries have exercised their responsibilities on what, to lawyers, are very odd grounds. We know that one of the most distinguished of Home Secretaries exercised the power of recommending a reprieve on what, to anyone else, would be regarded as a very trifling circumstance.

We do not criticise him for that—it showed that he had a large, generous heart and human compassion—but the factor which he revealed as the one apparently determining the exercise of the Royal Prerogative, against the advice given to him Departmentally, was not a matter which would carry very much weight with people who are judicially trained.

I should have thought that as in this Bill we are retaining capital murders on the express ground that these murders are offensive to the Queen's peace—in other words, we are retaining them in the name of the State—it was incumbent upon the court to examine in open court the question of extenuating circumstances. This might be very difficult. It might lead to a patent and obvious distinction and differences in criteria taken by different courts, but that would be an argument—an unavoidable argument—for proceeding to the abolition of capital punishment. If we retain capital murder on the ground that these murders are particularly offensive to the Queen's peace, we ought to make it the responsibility of the court to determine whether there are extenuating circumstances.

It is conceded that Her Majesty's judges are not very enthusiastic about accepting this responsibility and we, I think, would take the view that it would be placing a very heavy burden upon them to take the decision as to extenuating circumstances. We therefore, I should have thought, would be bound to accept the conclusion very reluctantly arrived at by the Royal Commission and to say that if we had reached this stage in the reduction of capital murders, it would be right and proper that this is a question which ought to be considered in open court.

Mr. Simon

The hon. Member for Nelson and Colne (Mr. S. Silverman) has never been afraid of being in a minority or of urging a minority view, and, naturally, he is not deterred in this case by the fact that, as he says, the overwhelming mass of legal opinion is against him— and. I think it would be fair to say, public opinion as expressed in the organs of the Press on the publication of the Royal Commission's Report—is against this proposal. Perhaps he rather naturally clings to the fact that this was a unanimous recommendation of the Royal Commission.

I confess that my initial approach to this problem, when I was allowed to have a mind of my own and was not merely part of a powerful collective mind, was even more of a minority view. I found myself attracted by the South African system whereby the jury could find extenuating circumstances but would be required by the judge to state what they were, and the sentence of the court then fell to be determined by the judge on the answer of the jury.

I see that that seems to get some measure of approbation from some hon. Members here, but, on the whole, it did not commend itself very far; yet it always seemed to me to be the best system if we were to have this sort of discretion. As the hon. Gentleman very fairly said, this jury discretion has not commended itself to informed opinion, and the right hon. Gentleman the Member for South Shields (Mr. Ede) has given the Committee some overwhelming reasons why it is not acceptable.

The hon. Member for Nelson and Colne put forward the fact that it was a recommendation of the Royal Commission. I think that the first thing to note is that it was on a narrow balance of argument, and in the context of the old law and not of the law as amended and, as I believe, very much improved and humanised by this Bill. Secondly, the Royal Commission never put its scheme to the witnesses who came before it, and the debates in the House of Lords on this very matter show that there were a number of arguments which the Royal Commission did not consider and which were put forward by former Home Secretaries like Lord Simon and Lord Samuel.

Thirdly, it does seem to me that it would be wrong to treat the recommendations of the Royal Commission as in any way sacrosanct. We are bound to be most grateful to the Royal Commission for the superb piece of documentation which its Report represents and for the very clear way that every issue is argued, but, after all, if we look through the Bill so far as it has been approved by this Committee, we find that we have not accepted the Royal Commission's recommendations about constructive malice, for we have gone farther in some respects than the Royal Commission. The proposals relating to diminished responsibility have had, I think, the unanimous approbation of this Committee, and yet the Royal Commission came down against them.

As to suicide pacts, this Committee has found it right to go to some extent beyond what the Royal Commission recommended. Therefore, it seems to me that it would be illogical and unsound to say that, because, on a very narrow balance of argument, it came down in favour of jury discretion on extenuating circumstances, it should have any undue weight with this Committee.

Moreover, the hon. Gentleman's proposal differs in an important respect from the recommendation of the Royal Commission. What he says, to meet, I think, an overwhelming argument that was put forward in the debates in the House of Lords, is that it should be evidence called by the prosecution as well as the defence, and that the evidence of the defence shall be cross-examined. It was pointed out in the debates in the House of Lords that the Royal Commission's scheme whereby it was only the defence which would call evidence and address the jury at the second trial was open to very grave objections, one of the weightiest of which was that it put the judge, who had to sum up after one side of the presentation of a case, in an impossible position. The hon. Gentleman has gone counter to the recommendation of the Royal Commission to try to meet that objection.

I would remind him—I am sure that he has it in mind, because he knows this Report so thoroughly—of what the Royal Commission said, because it puts the objection to his proposal so clearly. In paragraph 560 the Royal Commission said about this very proposal: It would, however, be contrary to the recognised traditions of the Bar that counsel for the prosecution should be put in a position where he was pressing for the death sentence or even appeared to be doing so. It would therefore seem preferable that he should take no active part in the proceedings on the issue of sentence, but should be present only as amicus curiae. He should not call witnesses, or cross-examine witnesses called by the defence; nor should be his duty to put before the court any information favourable or unfavourable, about the prisoner's character or antecedents. Then there is the further objection, which was put forward by my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) on this aspect of the new Clause, that in a trial, normally and almost necessarily, according to our thoughts as to fairness to the defence, the defence knows in advance what evidence will be called from the depositions given before the magistrates, which tell the defence what case they are going to meet. For the second part of the trial, whereby mitigating circumstances are determined, it would be very difficult to devise machinery to provide for that sort of thing which would not be open to very grave objection from the point of view of the defence.

The hon. Gentleman goes on to say that whether there are circumstances which demand a capital sentence must be answered in any event, and that the jury is a better tribunal to decide that than the Home Secretary. That is really the crux of the matter. I would be the first to recognise the force of his observation, which was put with great power by the hon. Gentleman the Member for Sunderland, North (Mr. Willey), that here we are leaving the determination of the sentence in effect to be made by the Home Secretary on the advice and representations privately tendered, and no reasons being given.

One of the reasons which, I know, animated my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) in pressing, as he did, for the defence of diminished responsibility to be added to our code of homicide was to limit the generality of these cases because that was a discrepancy between the rigidity of the M'Naghten Rules on the one hand and the mental factors taken into account by the Home Secretary on the other.

That has now been amended by Clause 2 and it seems to me that takes away a great deal of force from the objection put forward by the hon. Member for Sunderland, North (Mr. Willey). But in the end the answer, it seems to me, with respect, was conclusively given by the right hon. Member for South Shields (Mr. Ede). He told us what I did not know before—that he had held office longer than any Home Secretary since the Reform Bill, which leads me to wonder whether his spiritual ancestor was Sir Robert Peel or Lord Sidmouth.

Mr. Ede

Mine is Sir William Harcourt.

8.30 p.m.

Mr. Simon

At any rate, we recognise that the right hon. Gentleman speaks from great experience in these matters, and he has pointed out that the Home Secretary is able to weigh here a great many factors, far more factors than are open to any jury. He can weigh matters that would be very difficult to present properly to a jury. He has a consistent yardstick, owing to the tradition of his office, which has been remarkably consistent. The hon. Member for Nelson and Colne (Mr. S. Silverman) says that the Home Secretary varies as much as a jury in his judgment, but the answer to that was given in the Report of the Royal Commission on Capital Punishment, I think in paragraphs 38 to 43, where it dealt with the Home Secretary's discretion to advise the exercise of the Royal Prerogative.

The Royal Commission showed that there had been a remarkable consistency over the years, there being a slight tendency to greater leniency over the period 1900 to 1949 the practice otherwise having been fairly consistent. The Home Secretary has his expert advisers and yesterday the right hon. Member for South Shields paid tribute to the meticulous care that they take and the very scrupulous care to be fair and merciful in the recommendation.

I call to mind part of a speech by my right hon. Friend the Member for Woodford (Sir W. Churchill) about this matter, which was quoted in the debates in another place but which appears in the OFFICIAL REPORT of the House of Commons for 15th July, 1948. My right hon. Friend then said: One of the great privileges and advantages we have in our present system of procedure is that the Home Secretary is unfettered as to the advice which should be tendered in the use of the Royal Prerogative. At every point in our system of criminal justice the benefit of the doubt is given to the accused. At every point in the subsequent consideration of a capital sentence, when it has been passed, the same bias is shown in favour of the convicted person. But when justice and the law have done their best within their limits, when precedents have been searched and weighed, mercy still roams around the prison seeking for some chink by which she can creep in."—[OFFICIAL REPORT, 15th July, 1948; Vol. 453, c. 1439.] My right hon. Friend the Member for Woodford was, of course, himself at one time Home Secretary.

It is quite obvious that the same spirit is still general today in that there is this meticulous search by the Home Secretary himself in weighing whether to advise the exercise of the Prerogative of mercy, the very element which it is proposed to give to the jury under the new Clause in deciding whether there may be some extenuating circumstances which would justify the respite of the capital sentence.

It is really a matter which experience has shown that the Home Secretary can carry out properly maintaining standards, and to the public's satisfaction. As my hon. and learned Friend the Member for Surrey, East said, it is impossible to construe a way for the jury to determine what are extenuating circumstances, and there are bound to be some extenuating circumstances. As the right hon. Member for South Shields said, to put this burden on the jury after its members have been through the strain of a long and wearing case, making heavy demands on their mental and moral powers, is something which we should not contemplate, which is quite alien to our present and approved code of penal procedure, and which has the very grave disadvantages that the right hon. Gentleman pointed out.

Finally, as I pointed out, the balance of argument, even on the Royal Commission's own showing, was obviously very narrow. The arguments for adopting jury discretion are far less strong after this Bill than they were before. This Bill greatly reduces the number of cases in which persons will be sentenced to death, and particularly in the sphere where the jury discretion would be most likely to operate properly, namely, in the sphere of mental responsibility for crime. There will certainly be anomalies if the decision is left to the jury and the Royal Prerogative has to remain in reserve.

Therefore, for the reasons put forward by my hon. and learned Friend the Member for Surrey, East and by the right hon. Gentleman the Member for South Shields, I must say that the Government cannot accept this proposed Clause.

Mr. S. Silverman

The fact that the decision of the Royal Commission was reached on a narrow balance of argument I do not find particularly impressive. It is rather like the narrow balance of argument to which Mr. Micawber reduced the difference between happiness and misery; provided the balance swings down on one side, the exact weight of the deciding factor hardly seemed relevant, let alone important.

I think I made it clear in the speech in which I moved this Motion that the disadvantages of this proposal were perfectly plain to me, as indeed they were to the Royal Commission. It was not perhaps really necessary that they should be pointed out again and again, because the question is not whether there are disadvantages or not—we all know that there are—but whether it is better to bear those disadvantages than to have the disadvantages of the death penalty itself and the exemptions from it determined as they always were.

I must confess, too, that I was greatly surprised to hear the Joint Under-Secretary of State quote from the evidence of the right hon. Gentleman the Member for Woodford (Sir W. Churchill), who was Home Secretary a very long time ago. I would not say a single word that might cause anxiety or further self-examination in so dreadful a matter to any right hon. Gentleman on either side of the Committee who has ever had, or might ever have again, this job to face. I am bound to say, however, that after the painstaking and detailed analysis of reprieves over the past ten years made in a pamphlet published by the Observer, in which there were collected into one list cases in which reprieves were granted and into another list cases in which they were refused, I would defy any rational person to detect any principle on which one list could be separated or distinguished from the other.

If I hear the hon. and learned Gentleman say that no one is ever executed in whose case there is discoverable the faintest ground on which a reprieve might be justified, he leaves me almost speechless with astonishment. Was it so impossible to find a ground in Bentley's case or Mrs. Christofi's case or Ruth Ellis's case? If we were really looking for a ground on which to save those lives, was it really impossible to find one? Let us stop talking nonsense about this and stop being complacent about it. The point is that there is no such principle, and the pretence that there is one is merely pretence and nothing else.

I do not want to divide the Committee on this issue. If the Royal Commission had been free to make a recommendation about the death penalty itself, I do not believe that it would ever have made such a recommendation. From its point of view, it was nothing but a very bad second-best.

Mr. Ede

Before my hon. Friend goes any further, I hope he will understand that I do not abate at all my belief that abolition is the proper thing and that, of the two alternatives posed by the Royal Commission, that is the one which the Government ought to have taken.

Mr. Silverman

I have fully understood that. If I did not expressly say so, it was because I am certain that everyone who has heard my right hon. Friend on this subject clearly understands that that is the position. As I say, the Royal Commission itself was making this proposal only as a very bad second best. I know that my right hon. Friend agrees with me—he has just confirmed it—that if the Government reject it as he rejects it, they ought to reject it for the reasons and on the basis that my right hon. Friend rejects it—because it is much better to get rid of this obscene futility once and for all.

Having said that, and in view of the division of opinion and of the fact that, whatever the Government may say, this penalty has already to all practical intents and purposes been abolished, I beg to ask leave to withdraw the Motion.

Motion and Clause, by leave, withdrawn.