HC Deb 02 February 1961 vol 633 cc1313-24

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Noble.]

9.37 p.m.

Mr. Leo Abse (Pontypool)

In these days when there is such a clamour for ill-considered and panic measures to deal with the current wave of repugnant murders, it is undoubtedly particularly important to ensure that indignation shall not engulf justice. Feelings of horror at the nature of these crimes are shared by all, but such feelings are inevitably felt even more strongly by those who are closely concerned with the investigations of such crimes and with the interrogation of any suspect.

The more horrible and more outrageous the crime, the more likely are emotions to be aroused which, unless carefully controlled by strict and well thought out procedures, can lead to grave and sometimes irremediable injustice.

The innocent man, with a ten-year-old brain, Timothy Evans, was strangled to death by the State because, in my view, horror of the crime which had been committed led to lynch law attitudes invading police station and court room. We have, therefore, serious warnings of the dangers, whatever may be the administrative conveniences, of permitting any unauthorised enlargement of existing powers of a detaining authority to question a man charged with murder.

It is quite certain that, when in 1883 the then Home Secretary, Sir William Harcourt, instructed the Treasury Solicitor, who at that time performed the rôle now performed by the Director of Public Prosecutions, that in future where there was reason to believe that a defence of insanity was to be set up in a murder case—I stress that, where there was reason to believe that a defence of insanity was to he set up in a murder case—he should take steps to have the mental condition of the accused inquired into by competent persons before the trial, there was no question of this being done to enable any accused to be brainwashed by a prison officer so that the prosecution may obtain evidence for its benefit and to the detriment of the defence. On the contrary, the then Home Secretary took this action to aid the defence. He had become seriously concerned that, owing to the inadequacy of evidence called by the defence, juries were convicting men of murder who subsequently were being found repeatedly at the statutory inquiry to be insane. Even this solicitude for the defence, however, was looked at with suspicion by the judges, who clearly were concerned that the defence's case should never be prejudiced by this procedure, and in 1904 after a judges' meeting, they insisted that not only must all medical reports obtained by the detaining authorities be handed over to the defence, but that in no circumstances must the issue of insanity be raised by the prosecution.

Again, in 1953, the Royal Commission on Capital Punishment pungently stated its objection to the proposal that the issue of insanity should ever be raised by the prosecution when the defence did not put forward the plea. Paragraph 448 of the Commission's Report states: The most serious objection to this proposal may be briefly stated: it may prejudice the legitimate interests of the defence. The prisoner's counsel, or the prisoner himself, may consider it in his best interests not to raise the issue of insanity but to concentrate on rebutting the evidence that he has committed murder. The defence may seek to establish that he did not commit the act, or to plead justifiable or excusable homicide. or to show that there was sufficient provocation to reduce the offence to manslaughter. If in such a case the Crown or the judge raises the issue of insanity, the prisoner's evidence, if he goes into the witness box, will inevitably be discredited, and whether he gives evidence or not, the case for the defence may he seriously prejudiced in other respects It is because these proceedings, hammered out to ensure a fair trail to a man accused of murder, which have hitherto been based on the Home Secretary's directive of 1883, the judges' meeting of 1904, and the basic principles enunciated by the Royal Commission in 1953, are now being breached and abused to the prejudice of the defence, that I have sought this Adjournment debate.

The Prison Commissioners, irrespective of whether or not it is the intention of the defence to raise the question of insanity, are now insisting on the right of their prison medical officers to attempt to interrogate every and any man accused of murder, and then to send the reports so obtained to the Director of Public Prosecutions. Under pressure, the Commissioners have acknowledged that the prisoner has a theoretical right to refuse to answer the medical officer but, in defiance of the Judges Rules, which prohibit any detaining authority attempting to cross-examine a man who has been charged with an offence, the Commissioners insist upon the right of their prison medical officers continuing to attempt to interrogate the man charged with murder even when those responsible for the defence of the accused have explicitly refused to give such consent.

As a result, if today a man charged with murder wishes to raise a defence quite removed from the issue of insanity. or quite removed from the issue of diminished responsibility; if, for example, he wishes to raise a defence of provocation that could cause him to be guilty of manslaughter but not murder. the Commissioners' present conduct is placing that man at a serious disadvantage.

The test—certainly since the Homicide Act, 1957—in deciding whether provocation is of such character as to justify a reduction of the charge from murder to manslaughter, is whether such provocation would have prompted a hypothetical reasonable man to slay another. If prison medical officers—nearly all of whom, lamentably, lack any psychiatric diploma—after repeated interrogation of a man in custody, hand over a report to the Director of Public Prosecutions indicating any sign of unbalance in the accused—albeit, an unbalance that is short of insanity or one amounting to the condition of diminished responsibility—the unfortunate accused in those circumstances can find himself convicted of murder, whereas if such a report had not been provided to the prosecution the man would rightly have received the punishment attracted to a conviction for manslaughter.

I am not raising this matter because it is an academic issue. I am satisfied that cases have occurred in which, if the accused had not had a brainwashing report extracted from him by the prison medical officer, the jury would in all probability have brought in a verdict of manslaughter and not of murder. Again, out of the prison medical officer's interrogations, or out of the questioning by the so-called independent psychiatrist—who is also employed by the Prison Commissioners for this task—out of all those questionings, which oft-times last many hours and are spread over many days, the most intimate details of the man's life are uncovered. All the blemishes are revealed, some fact and some fantasy, and handed over to counsel for the prosecution who can utilise them in cross-examination of the accused, even though the defence are pleading that it is a manslaughter case and are in no way raising the issue of mental incapacity.

I am urging the Home Secretary to get back to his predecessor's original intentions; namely, that report should only be obtained if mental incapacity is to be raised by the defence. Nowadays, that is only if a defence of insanity or of diminished responsibility is to be pleaded. A simple inquiry to those in charge of the defence can speedily settle the question whether the reports are required, and if insanity or diminished responsibility is to be pleaded the co-operation of the defence in a medical and psychiatric investigation will, I am certain, be forthcoming.

However, if the existing malpractices continue, we are in danger of verdicts of murder being given as a consequence of clandestine investigation conducted in a prison cell between a doctor and a patient he has compulsorily acquired, and not as a result of evidence which would otherwise have been placed before an open court.

It will be clear to the Parliamentary Secretary that in raising this issue I am raising something concerning medical ethics, too. This issue certainly raises the question: should a doctor tell? Are the Prison Commissioners going to insist that their employees, the prison medical officers and their temporarily hired outside psychiatrist, must go on attempting to interrogate and medically observe any man charged with murder, although neither he nor his legal advisers consent to such an interrogation, and then, to the patient's prejudice, voluntarily hand over a report, for which they receive payment, to the Director of Public Prosecutions? Doctors swear the Hippocratic Oath: Whatsoever things I see or hear concerning the lives of men in my attendance on the sick, or even apart therefrom, which ought not be be noised abroad I will keep silence thereon, counting such things as sacred secrets. The position now being adopted by the Prison Commissioners is requiring their medical employees, in my view, flagrantly to be in breach of their oath, and of the Judges Rules. It is arising because the Prison Commissioners are assuming powers that they do not possess and because they are seeking to apply mechanically procedures which, though perhaps suitable in cases of gross insanity of cases where the defence places the mental health of the accused in issue, are certainly not applicable in other murder cases.

I ask the Home Secretary to end procedures which are clearly causing considerable embarrassment to medical officers and defence lawyers and which, in my view, already have precipitated unfortunate court decisions.

I recognise that I may well have raised issues to which the Parliamentary Secretary will require further consideration should be given. I appreciate that in going over the historical factors which have led to this situation, and the facts I have stressed, and that there has intervened the Homicide Act, I may cause him to feel it necessary that further inquiries should be made. I trust that weight will be given to the complaints I make. I stress they are not academic complaints but ones which arise in professional practice. I hope after he has had an opportunity to give full consideration to these problems, there will be a revision of the instructions at present given to the Prison Commissioners.

9.50 p.m.

The Under-Secretary of State for the Home Department (Mr. David Renton)

The hon. Member for Pontypool (Mr. Abse) has done a useful service in drawing attention to these matters, although I must say that I wish that he had felt it within his power to do so in a way which did not cast reflections upon people who are, after all, only doing their duty in carrying out the present authorised practice and procedure which have been followed for a very long time.

I am advised that the present arrangements for conducting medical examinations and for forwarding copies of medical reports have been in operation for about fifty years. During that time, both the method of taking the examinations and the procedure for forwarding the reports have been examined carefully and in detail by the Royal Commission to which he refers.

I think it is right, therefore, that I should ask him to think twice about these allegations of brain-washing by people in the public service who are doing their duty according to the authorised practice.

Mr. Abse

I am criticising the practice of the Prison Commissioners in giving instructions of this kind to their employees. My criticism is directed to the Prison Commissioners, who must take responsibility for what I regard, however long-standing it may be, as a malpractice. I am definitely asking that employees who are placed in this position should be relieved of the embarrassment which the instructions are placing on them.

Mr. Renton

If I may say so, I think the hon. Gentleman has quite missed the point of what I was suggesting, that is to say, that the use of this extremely unpleasant and opprobrious term, "brain-washing" was quite inappropriate to the practice, whether it be a sound practice or not. I hope that he will find it in himself to withdraw that allegation, because it really is not a fair one to make. It is, I understand, an allegation which he made in correspondence at an earlier stage. Naturally, I made inquiries about what the practice is, and I can assure the House that to call it brainwashing is a most inappropriate description.

Mr. Abse

Will not the hon. and learned Gentleman agree that what occurs, in fact, is that psychiatrists, who are well trained in investigating the condition of a man's mind, for long periods of time, for days, if necessary, interrogate a man who is facing a serious charge and who is alone in either a hospital ward or a prison? The hon. and learned Gentleman may not like the term, but. whether one calls it a psychiatric investigation or calls it brain-washing, what occurs is that they are investigating the man's brain and they are endeavouring to obtain all the information they can out of him.

Mr. Renton

I shall not bandy words and phrases with the hon. Gentleman any more. I simply say that it has for a very long time been the established practice that a person who is in prison awaiting trial upon a charge of murder should receive a medical examination as to his physical and mental condition. It is true that he may be seen not merely once but quite frequently, but to say that he spends days being placed under rigorous cross-examination is, of course, very far from the facts.

I hope that it will be agreed by all who have a knowledge of the administration of the criminal law that it is desirable for two principal reasons that medical reports should be obtained, including reports on mental condition, upon prisoners who are about to stand trial upon a charge of murder. First, the defence may wish to raise a plea of "Not fit to plead", of insanity. of diminished responsibility, or some other defence to the charge of homicide, and will not be able to do so unless it is properly armed with adequate medical evidence, recent and thorough. So, in the first place, it may be in the interests of the defence that such evidence should be available.

The second reason is this. If such evidence is made available, it should be placed in the hands of the court. The court itself, especially in a case in which it is suggested that the prisoner is not fit to plead, will have to use same initiative in placing this issue before the jury, and it is therefore right that the court should have the medical report in its possession. As I say, this practice was considered by the Royal Commission, which, for those broad reasons, affirmed it as a sensible practice.

I think that where the hon. Gentleman possibly has reason to doubt the practice—I say this without prejudice—is when copies of the report reach the hands of the prosecution. It was made known to the Royal Commission that that might happen. It also came to the attention of of the former Lord Chief Justice, Lord Goddard, that this might happen. The question of whether the prosecution should receive reports is naturally one which has engaged the attention of the Home Office and of the other authorities concerned. As a matter of practical convenience, it has found it desirable to let, at any rate, the Director of Public Prosecutions have a copy of the Report because, after all, he is a responsible public authority whose office has a tradition of fairness in the prosecution of cases. If there is a medical report on a man's mental condition available, perhaps the best and surest way of ensuring that it reaches the court is that the Director of Public Prosecutions should be told that there is a report and should know of it contents, and then counsel for the prosecution can always be alerted to inform the judge that there is a medical report if the need should arise.

Mr. Abse

I hope that the hon. and learned Gentleman understands that this report gets into the hands of the prosecution and is maintained in the prosecution's hands. If there is anything in issue, the defence does not need to rely on the Prison Commissioners' psychiatrist. With legal aid available, the defence can and does obtain its own psychiatrist. There is no need for dependency on the prosecution.

Mr. Renton

The hon. Gentleman was quite right in saying that the Prison Commissioners' medical officer's report is not the only report which could be obtained, but there have been many cases in which easily the most convenient way of obtaining an accurate up-to-date report on a prisoner's mental condition is by the long established procedure of obtaining a prison medical officer's report.

I should invite the hon. Gentleman's attention to the Answer which my right hon. Friend the Home Secretary gave when the hon. Gentleman tabled a Question about this matter. My right hon. Friend said: It has for long been the established practice for a report on the mental condition of any prisoner charged with murder to be furnished by the prison medical officer to the court through the Director of Public Prosecutions, who supplies a copy to the defence. The Royal Commission on Capital Punishment approved this practice, but recommended that such prisoners should in future be examined by an independent psychiatrist of standing as well as by an experienced member of the prison medical service. The Government accepted this recommendation. I see no reason to disturb the existing arrangements, which have been generally accepted as being necessary and desirable in the interests of justice."—[OFFICIAL REPORT, 15th December, 1960; Vol 632, c. 74–5.] I must point out that, as far as I am aware—the hon. Gentleman can correct me if his information is otherwise— It being Ten o'clock, the Motion for the Adjournment of the House lapsed, without Question put, Motion made, and Question proposed, That this House do now adjourn.—[Mr. F. Pearson.]

Mr. Renton

If the hon. Gentleman has information to the contrary, no doubt, he will intervene and say so. So far as I a in aware, the complaint which he has made tonight is the only complaint which has been brought to notice that the practice is in any way an unsuitable one. I think that the experience of those who have seen this practice at work, whether from the point of view of the Prison Commission and the Home Office, or, indeed, from those who practice in the courts, and that includes myself, would accept this as a practice which is not abused and one which in a vast number of cases has been to the benefit of the accused.

Mr. Abse

Would the hon. and learned Gentleman be good enough to direct his attention to the point that I am making, and which I say has arisen in cases, namely, the intention of the Royal Commission and the historical facts within the Royal Commission showing that these reports should be given only when the defence put the question of a. man's sanity in issue. When in fact the mental health of the man is not put in issue by the defence, as in the case of a charge of manslaughter, why in defiance of what the Home Secretary clearly laid down, and which was clearly intimated in the Royal Commission's Report and decided on by the judges in 1904, are the Prison Commissioners not bothering to find out in any way at all whether sanity is in issue? That is the crux of my complaint, and that is what the hon. and learned Gentleman has not dealt with.

Mr. Renton

That is not the only point involved, and I hoped that I had made that clear at the outset of my remarks. Obviously, if sanity is likely to be in issue, then one of these reports should be obtained in any event. There are various other reasons I have mentioned beside the issue of sanity which make these reports certainly not only valuable but necessary. As I have said, they have become a matter of routine administration for the past 50 years or more in cases in which there is a charge of murder. I will consider further what the hon. Gentleman has said tonight. He kindly said that he did not expect a final answer from me now. I should like to consult my right hon. and learned Friend the Attorney-General. Meanwhile, I must stress again that our experience is that this practice is a beneficial one, that it has not been abused and that the complaint which the hon. Member has made appears to be an isolated one.

I know that the hon. Member has in mind the facts of a particular case to which he has invited our attention in the Home Office. It would not be proper for me to comment on the facts of that case and the hon. Member would not expect me to do so. I should, however, add this, although not because it arises from that case. It is an appropriate general comment which I should make in answer to the hon. Member. These reports are not made in any sense for the purpose of cross-examination by the prosecution and should never be used for that purpose. If in a particular case the hon. Member finds that such reports are used for such a purpose, I hope that he will invite the attention of my right hon. Friend the Home Secretary or of my right hon. and learned Friend the Attorney-General to it. The hon. Member and I would easily agree that there should not be any such cross-examination. The hon. Member is inviting us to bring this practice to an end altogether. I must give him a clearly emphatic answer in the negative that we are not prepared to do that.

Mr. Abse

I have not asked that. I have been endeavouring by everything I have said to point out that when the prosecution knows from the defence that a man charged with murder has a defence which will be put forward touching upon his mental condition, quite clearly, as has been laid down in the past, there should be every opportunity to the prosecution and to the Prison Commissioners to investigate the man's mental condition so that evidence is available before the court either to rebut the defence case or, if necessary, to confirm it.

But it is quite contrary to all justice that when the defence does not intend to bring the mental health of the man into issue the prosecution should take it upon itself to investigate the man's mental condition. What has happened is that it has come about by routine methods, as the Under-Secretary has said, by mechanical application of procedures without taking into account what was originally directed by the Home Secretary and without taking into account the full effect of the new Homicide Act, with its embodiment of the law concerning provocation and the "reasonable man". These directives and changes have been ignored and the matter needs to be looked at afresh.

I am not saying that in all cases there should not be a psychiatric inquiry by the Prison Commissioner. I am saying that in cases which do not involve any issue by the defence of mental health, there is no right to investigate the man's condition in this way.

Question put and agreed to.

Adjourned accordingly at seven minutes past Ten o'clock.