§ 3.50 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
I beg to move,That this House respectfully regrets and unhesitatingly dissents from the Ruling given by Mr. Speaker that a question sought to be put down by the hon. Member for Nelson and Colne asking the Secretary of State for the Hotre Department to order an inquiry into whether a miscarriage of justice had occurred in the case of George Riley was not in order; and expresses the view that this Ruling is not in accordance with the precedents and practice of this House and imposes new, unnecessary and undesirable limitations on the ability of hon. Members to discharge their public duties.I want to say two things before coming to the main burden of my argument. The first is that although this Motion is, as it must be, in terms of a Motion of censure on yourself, Mr. Speaker, it is, I think, clear to you, and to all of us in the House, that no sort of reflection is intended upon the good faith of the Ruling to which exception is taken, and that the Motion was put down, at any rate in part, knowing that you, Sir, would have no objection to our so doing.
I would like to call the attention of the House to two passages in the OFFICIAL REPORT, Out Of Which this Motion arises. Both report your words, Mr. Speaker. The first is:It is because of the very considerations which the hon. Member was mentioning that I think that this is an important point and I have accordingly considered it with the greatest possible care. It would be in no sense unwelcome to me if the House chose to take the opportunity some time to consider whether my interpretation of the existing practice is right and whether this Ruling is right. However, I am afraid that I have considered the matter very carefully, and I do not think that further representations would cause me to change my mind about it.By that, I apprehend that you meant the representations made then and there on that occasion, Mr. Speaker.
Replying to a question raised later by my hon. Friend the Member for Oldham, West (Mr. Hale) you said:Personally, I should welcome it in every possible way if the House sought in proper time to challenge this my Ruling so that we might know the precise definition of the practice of the House about Questions pending the execution of a capital sentence. All these considerations do not, however, cause me to change my view about what the rule of the House is. Believing it to be such as that on 1774 which I have acted, I am bound to rule as I have done. Of course, no considerations of this kind arise later. They arise simply in the period pending execution of the sentence."—[OFFICIAL REPORT, 7th February, 1961; Vol. 634, c. 218–20.]We were all grateful to you, Mr. Speaker, first, for indicating that the course I am now pursuing was the proper course—I do not want to involve you in argument any further—but not altogether unwelcome, as this is a difficult subject about which there have been different Rulings on different points of order. In the second place, we are grateful to you for making it clear what exactly the challenge is about.
I wish to make it clear at the outset.—and this is the first of my two preliminary observations—that no one complains about the Ruling that Questions, pending the execution of a capital sentence, to the Home Secretary about the exercise of the prerogative of mercy are not called. That is not in dispute.
What is in dispute is whether the particular Question which I sought to put down was or was not an infringement of that rule—whether, in other words, to rule that it was an infringement of the rule was not, in effect, to extend the Ruling into an area where it had never previously been applied, and where, in my humble submission, it does not belong.
The House will have noticed that there is an Amendment to the Motion, in line 1, to leave out from "House" to the end and to add:upholds the well-established rule under which in any case involving a capital sentence the circumstances on which the exercise of the prerogative of mercy depends should not be made the subject of question or discussion in this House while the sentence is pending ".I hope that I shall not be thought offensive if I say that I regret that Amendment. I do so for two reasons, and there may well be others. First, three of the four right hon. Gentlemen who have put their names to the Amendment are Ministers who have administrative responsibilities which might be the subject of challenges of this kind. One would have thought, therefore, that, if there had to be an Amendment, it would have been better put down in the names of some right hon. or hon. Members who were not personally affected by it in the administration of Departments.
1775 The second reason why I regret this Amendment is that, with the greatest respect, it begs the question. If the House were to reject my Motion, and accept the Amendment, all that it would be doing would be evading and not answering the questions which are in your mind, Mr. Speaker, and in the minds of all of us. It would mean that the House would express no opinion at all about whether your Ruling did extend the area of that prohibition or whether it did not.
What the Amendment does is merely to restate in its most extreme form the formulation of the rule made eighty or ninety years ago which appeared again for the first time as an incidental part of Mr. Speaker Clifton Brown's Ruling on the point in 1947, and which you, Sir, referred to in the course of your own Ruling in the instant case. If it were to be done, we still would not know whether the Question that I sought to put down was or was not an infringement of what the Amendment describes asthe well-established rule under which in any case involving a capital sentence the circumstances on which the exercise of the prerogative of mercy depends should not be made the subject of question or discussion in this House while the sentence is pending.I have already made it clear that on this Motion that is not in issue. There are many of us who do not like this rule. There are many of us who would like to change it, to limit it, to modify it, or possibly to abolish it altogether, but that is not involved in your Ruling. What is involved in your Ruling is what does it mean and does it extend so far as you seemed to me to have extended it on that occasion.
There is one other preliminary comment. What is ultimately involved here is the sovereignty of Parliament. If this interpretation of the rule is correct, and if the present Home Secretary persists in his present practice of refusing all explanation, even after a capital sentence has been carried out, then at no time, before, during, or after a capital sentence, has this sovereign House of Commons any power to intervene or any right to be heard.
One has only to put the proposition in that form to persuade all of us that this is a matter to be approached with the greatest anxiety and the greatest care, 1776 because it would mean that in the operation of our criminal law that part of our penal code which is most severe, most irrevocable, and which causes most public distress and most public anxiety, the determination of the question, life or death, is not in the hands of any court, but is in the sole arbitrary discretion, exercised in secret, of the Home Secretary, without appeal and without responsibility. That is why I say that when we approach this question we must remember that what is involved is the sovereignty of the House of Commons itself.
It is not a new thing in our constitutional history for great questions of principle of this kind to arise in individual, limited cases. A nameless, humble person, someone who never would have thought to take his place in history, but for the events in which he became involved, becomes, as it were, the centre at which great constitutional principles are resolved and established or perhaps extended. That is so here. It is true that the exercise of our sovereignty can be done effectively only in so far as we preserve our own rules. Those rules are guide-posts to help us along the way. They are not a barbed wire fence to keep trespassers off the ground.
I want to say one other thing which, I hope it will be accepted, I say without offence to anyone. All of us who have been here more than a short time have overwhelming cause to be grateful to the Clerks at the Table for their courtesy and their help in a great many ways. We could not do our work without their assistance, without their co-operation and without their courtesy.
Having said that, I want to add something. The Clerks at the Table act in a consultative and advisory capacity. They exercise no judicial function. They have no right to decide any question. If it occurs to them when a Question or Motion, or anything else, is presented at the Table that in some way it transgresses or offends against a rule of order or an established convention or practice of the House, we are all grateful if they point it out to us, and, if they persuade us that that is so, then we are glad to comply with the advice which they give us. But if they cannot persuade us that it is so, then their business is not to decide it for themselves and treat you, Sir, as if you were some kind of court 1777 of appeal from a court of first instance. Their business then is to refer the disputed Question or Motion to you.
That was not done in my case—and I shall come to the instant case in a moment—and it was not done in the case of my hon. Friend the Member for Islington, East (Mr. E. Fletcher), who put down a Question, a general Question having nothing whatever to do with this case and to which no objection was taken. It was accepted and my hon. Friend heard no more of the matter until the next morning, when he found that it was not on the Order Paper. It was only at that stage that he came to you, Mr. Speaker, and ultimately, as one would have expected, the mistake which had been made was corrected.
What I am saying is that that is not how the House should operate its procedure. My hon. Friend's Question was accepted and, if there was a change of mind, the proper practice was to draw my hon. Friend's attention to it. If the Clerks had satisfied him, that would have been the end of the matter, but if not, it should have been referred to you. I think that it is important to make that clear.
How does this matter arise? My hon. Friend the Member for Birmingham, Ladywood (Mr. V. Yates) referred at the end of Questions today to his Question No. 51 on the Order Paper today. It was not reached for Oral answer. That Question was almost in the form and precisely of the substance of the Question which I sought to put on the Order Paper last Tuesday week. If my Question had been held to be in order, it would have appeared on the Order Paper for last Thursday and it would have been answered some time after 2.30 p.m. on that day.
It was a Question which asked for an inquiry to see whether there had been any miscarriage of justice in the case of one, George Riley. George Riley was executed at eight o'clock in the morning last Thursday, so that, had the Question been held to be in order, it would have been answered by the Home Secretary a week ago in circumstances which, at that time, could not possibly have given rise to any question about whether it was in order or not, because the capital sentence by that time would already have been executed.
1778 Whether that is a point of substance or not, I do not propose to inquire. I mention it for the completeness of the record and for no other reason, because I think that it would be a pity if the general question of principle with which we are faced this afternoon should be in any way embarrassed by being decided on a slightly technical point arising out of times and dates. Therefore, I leave the point, having just mentioned it.
What you held, Sir, and what is challenged, was that a Question which did not refer to a capital sentence, or any sentence, asking for an inquiry to see whether there was any possibility of a miscarriage of justice was in some way an infringement of the rule which lays down that Questions cannot be asked about the prerogative of mercy. It was not a Question about the prerogative of mercy. Mercy begins where justice leaves off, and, until it is established that there has not been a miscarriage of justice, the question of the exercise or the non-exercise of the prerogative of mercy cannot possibly arise. That was my submission. but you, Sir, held that, nevertheless, the two things were so closely associated that to ask about an inquiry necessarily involved, by implication at least, the question of the royal prerogative.
I think that I understand the machinalia of that decision very well. I think that the reasoning behind it is something like this. Suppose a Question was on the Order Paper, and the Home Secretary was of the opinion, or could be persuaded, that there might have been a miscarriage of justice, or, at any rate, that there was a sufficiently prima facie case to justify him in ordering the inquiry which, administratively, he has full power to order. Then, it is said, I imagine, in that case, we cannot conceive that any Home Secretary who came to such a conclusion would not postpone the execution until the inquiry was over, and such a postponement might well amount to a reprieve.
I am not concerned to dispute that proposition. What I do say is that the mere fact that, as an incidental result of a Question about something else, the Home Secretary is led to advise a reprieve does not make the Question about something else a Question involving the exercise of the Royal 1779 prerogative, and, in other respects, that is the long-established practice of the House, as I hope to establish in a moment.
In ruling that the Question was not in order, the Table, and I think you, Sir, had to rely, in the first place, upon the passage in Erskine May at page 358 of the Sixteenth Edition—the last two sentences in the first paragraph. One says:A question with regard to the exercise of the prerogative of mercy in connection with persons sentenced to capital punishment is not in order.Then, there is a reference (p), and the footnote to that reference shows a whole series of occasions when that rule has been applied, and, of course, the rule is not in question. The next sentence says:A capital sentence cannot be raised in a question while the sentence is pending.That is a little ambiguous, because, of course, the Question did not raise the capital sentence or any sentence, but I imagine that, since otherwise the two sentences could mean exactly the same thing, it was supposed that there must be some difference between them, and that, therefore, what was intended to be covered by the second sentence was something not already covered by the first.
If we confine our attention only to the two sentences in the text, there may be some plausibility in that view, but when we notice that there is a reference to a footnote (q), which contains only one authority, and that authority is an authority which quite expressly states that it relates to the prerogative of mercy, it becomes, I submit with great respect to you, Sir, and the House, perfectly clear that the second sentence is only referring, as the first sentence refers, to Questions affecting the capital sentence and Questions affecting the exercise, or the advice given by the Home Secretary to the Crown about the exercise, of the Royal prerogative.
That was, I suppose, a formidable difficulty, but there were things in the previous Rulings which might have lent some colour to it, and you, Sir, in your Ruling, relied upon them. You referred to the Ruling of your predecessor on 10th March, 1947, itself a Ruling in answer to a submission by myself aris- 1780 ing out of the well-known Gold Coast cases, with which the House was extremely interested in an active way in 1947. Mr. Speaker Clifton Brown at that time quoted Mr. Secretary Matthews—not an occupant of the Chair—in 1887 and 1889. He said:Moreover, it is obvious, as was laid down by Mr. Secretary Matthews "—I do not know what gave him the authority for laying anything down—in 1887 and 1889, in the Lipski and Maybrick cases, and has been consistently upheld by the Chair that ' it is … injurious to the administration of justice that the circumstances of a criminal case, on which the exercise of the prerogative of mercy depends, should be made the subject of discussion or of Questions in this House.' The House would, in such case, be claiming to be a court of appeal from the sentences pronounced by the courts, if it allowed itself to discuss and decide on the circumstances of these cases."—[OFFICIAL REPORT, 10th March, 1947; Vol. 434, c. 959.]I submit that it is plain that if the quotations which I have read mean that even where the prerogative of mercy is not directly involved we cannot ask Questions about the administration of justice in particular cases, it goes altogether too far, and has never been the practice of the House. If it means that the exercise or non-exercise of the prerogative of mercy is to act in some way as a court of appeal from the sentences pronounced by the courts, it is either nonsense—because the sentences of the courts are established by the courts and the question is only whether they shall or shall not be carried out—or, if it means more than that, namely, that the question of exercising the prerogative of mercy is, in some way, an appeal, the Home Secretary would be the sole court of secret appeal, because the appeal is considered most anxiously and carefully in every case. It seems to me that those expressions of opinion by Mr. Secretary Matthews have nothing to do with the matter, and afford you no assistance in this question.
This might lead us to review the whole question whether there ought to be any limit, but at this stage I am not concerned to argue that. What I am saying is that it is a rule strictly and rigidly limited to questions directly involving circumstances in which the courts have finished and the sentences have been passed; where there is no further judicial appeal and nothing further to be done except to carry the sentence out 1781 or not to carry it out. Only then is the House prevented from questioning or, as is now held, putting Motions on the Order Paper relating to, the exercise of the Royal prerogative.
This seems to me to be a stupid and purposeless rule. If it was accepted because there was some sort of quasi-appeal involved, I have dealt with that point. It has more usually been defended on another and much more attractive ground. It is said that the rule is a good one because this is so difficult and so embarrassing a question—involving so heavy a responsibility—that the Home Secretary ought not to be embarrassed in his exercise of it by being subject to pressure; by being harried, questioned, pursued, and appealed to by demonstrations of any sort. If that is the real reason for the rule it is ineffective. There is no freedom for the Home Secretary against such pressure in a case where sections of the public or members of the public are anxious and distressed, and convinced that a mistake is being made.
One has only to think of the Bentley case, where the Home Secretary was harried, pressurised and appealed to not only by people in this country, but by many friends of this country in other countries who were distressed and ashamed of that execution, to appreciate this. There were a number of other cases. I do not need to remind the House of them; we all know of them. We have all lived through these experiences. If it is a principle that the Home Secretary, in making up his mind, shall be protected from this pressurisation we will need something very much more extensive than the accepted practice of the House. All that does is to protect him from such pressure on the Floor of the House or on the Order Paper; it does not protect him from a wide variety of much stronger representations from all sorts of other people. It does not even protect him from pressure by hon. Members, because he is always courteous enough to see us if we want to make representations to him.
The only thing that it succeeds in doing is to prevent the House of Commons, as a House, from taking any cognisance of the matter until it is too late to have effect upon the question under discussion. Let us leave that. Accepting that the rule is there, what are 1782 its limits? The rule seems to me to extend the matter beyond all previous limits and in an undesirable way.
It used to be said that in our Constitution freedom slowly broadened down from precedent to precedent, to which there was once a parody to the effect that our freedom swiftly tumbles down from precipice to precipice. That has been the history of the matter of the Royal prerogative and the limits of the prohibition in the past fifteen years. First, it was said, "You cannot question the Home Secretary while he is still considering what advice he will give." A further step was then taken, and it was said, "Even after he has made up his mind what advice he will give, and has publicly declared what advice he has given, although it is conceded that he remains responsible to the House he shall not be questioned about it until the capital sentence has been carried out."
It was said after that, "He is responsible to the House. You can then question him. You can then put down Motions. You can then debate it. You can then hope". But the practice of the present Home Secretary has been to introduce a further limitation upon that in practice, because he says, "You may put down a Motion questioning what I have done in any particular case, because I am responsible to the House for what I have done as Home Secretary, but as Leader of the House I will decide whether there is ever any time to discuss the Motion".
In fact, the right hon. Gentleman says, "It is very difficult. There is not any time. I do not say there never will be. Perhaps some day a year hence, five years' hence, twenty, thirty or forty years' hence, we may find some time when all the parties affected are dead and buried and nobody has any interest in the matter any more ".
While the Leader of the House and the Home Secretary, in one person, is responsible as Home Secretary, but has the right as Leader of the House to say whether there shall be time or not, even that responsibility after the event becomes purely academic and there is no effective responsibility at all. That is the situation which obviously ought not to be made worse.
The question is: is there any way of testing the question whether a Question or Motion about an inquiry is subject 1783 to the rules which would affect a Question or Motion about the exercise of the prerogative? Have we any guide in the rest of our practice to help us to decide whether that question, which is the question which Mr. Speaker decided and which is now under challenge, was correctly decided or not? I think that, plainly, there is.
The Home Secretary has administrative powers which means, in suitable cases, administrative duties. So has, or had until recently, the Attorney-General. If it is true that a Question about an inquiry might involve the circumstances affecting the exercise of the prerogative, it is at least equally true, perhaps a fortiori true, that a Question to the right hon. and learned Gentleman the Attorney-General about his grant or refusal of a fiat to take the case from the Court of Criminal Appeal to the House of Lords involves the prerogative of mercy in exactly the same way. If it is argued that an inquiry means a postponement, it equally is true that a fiat to go to the House of Lords involves a postponement.
The case of the Attorney-General is stronger than that of the Home Secretary, because his decision, although administrative, has quasi-judicial qualities. It has never been disputed that it is perfectly proper to put down Questions to the Attorney-General, in a capital case where the capital sentence is pending, about his refusal of a fiat to take that case to the House of Lords. It is equally not disputed that it is perfectly proper to debate it before the capital sentence is executed.
These are not ancient instances. I have two, one in 1957, and one in 1958. I take, first, the case of Vickers. I hope that the House will forgive me for taking so much time, but I want to put the case as clearly as I can. Vickers, it will be remembered, was the first conviction of capital murder under the Homicide Act, 1957. No one can say that it did not raise important questions of law, one of which, at any rate ultimately, went to the House of Lords in the case of Reg. v. Smith.
In that case, the present Attorney-General, who has signed the Amendment on the Order Paper today, refused a fiat to take the case to the House of Lords. 1784 I was allowed to put down a Question to him by Private Notice. It is reported in the OFFICIAL REPORT, 17th July, 1957, Vol. 573, c. 1142. I asked why he had not granted the fiat and whether he would reconsider it. He answered, and there were a whole series of supplementary questions by myself and by other hon. Members which occupied six or seven columns of the OFFICIAL REPORT. At the end of it, Vickers being due to be executed the next morning, I asked leave to move the Adjournment of the House under Standing Order No. 9. This was refused to me certainly, but not on the ground that it had nothing to do with the prerogative of mercy.
§ Mr. Silverman
The parallel that I am drawing is that in the case under review this afternoon a Question about an inquiry as to whether there was a miscarriage of justice was disallowed on the ground that it involved the prerogative of mercy. I am pointing out that a similar Question, admittedly not about an inquiry but about an appeal to the House of Lords, was allowed when the capital sentence was still pending, and that although the special Adjournment of the House was refused, it was not refused on that ground, but on the ground—I do not know how this was arrived at—that, somehow or other, it was not urgent because it involved only the normal administration of the law.
§ The Attorney-General (Sir Reginald Manningham-Buller)
I am listening with great interest to the hon. Gentleman's argument. He is referring to the exercise of the prerogative and connecting it with the grant of a fiat by the Attorney-General under the power that used to exist. I put this to the hon. Gentleman, and I ask for his observations and comments. The Attorney-General's power to grant a fiat came and arose under the statutory provisions of the Criminal Appeal Act, 1907. Is the hon. Gentleman suggesting that that power was an exercise of the prerogative?
§ Mr. Silverman
I am saying the exact opposite; I thought I was, at any rate. I apologise to the right hon. and learned Gentleman if I have not made myself clear. I do not want to be repetitive, but could I, in two short sentences, put the point to him again?
1785 Whether the Home Secretary should order an inquiry is a question directed to him in his administrative or Departmental capacity. Whether the right hon. and learned Gentleman should grant a fiat to the House of Lords is a question addressed to him in his Ministerial capacity. If the inquiry were granted, or if the fiat were granted, it is common ground that a reprieve would immediately take place.
The House has repeatedly said that in the case of the fiat it is perfectly proper to put down Questions, and even to move Motions, provided that they are moved at times when the ordinary business of the House is not displaced. Under the Ruling it is said that the absolutely parallel matter of a Question addressed to the Home Secretary about an inquiry, which is equally a question about his Ministerial responsibilities, his administrative powers and rights and obligations —and which involves a reprieve as much or as little as a Question about a fiat to the Attorney-General—is disallowed, if the Ruling which is now challenged is correct.
I am saying to the House, and to the right hon. and learned Gentleman, that both those decisions cannot be correct. If it is not an infringement of the rule to ask him about a fiat, it cannot be an infringement of the rule to ask the Home Secretary about an inquiry.
§ Mr. Silverman
If the right hon. and learned Gentleman, who himself has been Attorney-General, is fortunate in catching your eye. Mr. Speaker, perhaps he will explain why it is a non sequitur. At the moment, I am unable to see it.
The only reason offered for saying that a Question about an inquiry is an infringement of the rule is that it is, in practice, inseparable from the question whether there should be a reprieve. So is a Question about a fiat, and I say, therefore, that it is plainly not a non sequitur at all to say that, if it is right in the one case, it is right in the other.
This is not a chance thing because this matter was raised in the course of the discussion in 1957. My right hon. 1786 Friend the Member for Clackmannan and East Stirlingshire (Mr. Woodburn) said:On a point of order. If this is a judicial function of the Attorney-General, how is the House entitled, first, to question him on it? Secondly, how can the Attorney-General be wholly judicial since he was also the prosecutor in the case? He called for a verdict, and it would seem that the court, having come to a decision, he has now vetoed the possibility of the verdict being questioned.Then the Attorney-General intervened, quite rightly, to say that he was not the prosecutor in the case at all.
Mr. Speaker said:With regard to the first point raised by the right hon. Member for East Stirlingshire (Mr. Woodburn), I myself had the same doubts as he has expressed, but I find that in 1911 the then Attorney-General, Sir Rufus Isaacs, was asked a similar question which was then allowed, and in face of that precedent I felt that I had to allow the Private Notice Question today. But I cannot allow a debate on it"— [OFFICIAL REPORT, 17th July, 1957: Vol. 573, c. 1148.]When he said that he could not allow a debate on it he meant a debate under Standing Order No. 9, which he had refused. This Ruling was followed only the next year in the case of Spriggs, when the right hon. and learned Gentleman was asked a similar Question by Mr. Howell, then the Member for one of the Birmingham constituencies, and again without any objection by anybody. So it seems to me that the Ruling that one cannot ask for an inquiry while a capital sentence is pending is inconsistent with the Ruling that one can ask about the refusal of a fiat to the House of Lords.
§ Mr. John Hobson (Warwick and Leamington)
Were not both these cases, and all those dealing with the fiat, cases in which the Attorney-General had not, before he exercised his discretion, had any question addressed to him? It was only when he had exercised his function that he could be questioned about a refusal. In this case, as I understand the hon. Gentleman did not intend to ask the Home Secretary about his refusal to have an inquiry, but whether he would actually exercise his discretion before he had exercised it.
§ Mr. Silverman
I am obliged to the hon. and learned Member. Of course, until the Attorney-General had refused the fiat no one would have dreamed of asking him why he had refused it.
1787 I did not seek to ask the Home Secretary why he had refused an inquiry. He had not refused an inquiry. The question had never been put. He had never been asked to held an inquiry. I wanted to ask him to hold an inquiry, just as I should have wanted to ask the Attorney-General to grant a fiat. It is quite true that the procedure is different. It is quite true that the approach to the Attorney-General is normally made by the legal advisers of the man involved in the case. But it could be asked by anybody; nobody denies that. If it is in order, as it clearly is, to ask why he refused, it would equally be in order to ask why he granted it and whether he proposed to grant it at all.
I find it impossible to draw any distinction between the two cases, and since, in the case of the fiat, this is a long-established practice which no one would now question, and since, in the case of the inquiry, there is no precedent at all, it would seem to me that all canons of construction require that the principle which applies to the fiat, which is as equally involved as the inquiry, should be decided in the same sense; and if that is right, the Ruling was wrong.
I wish to say a word or two—again, apologise—about the practical aspects of this matter. Suppose that this Ruling is right. What is then the position? I want the House to listen carefully. We are all disturbed about the Evans case. We are not all so completely satisfied as others are. I think that the investigations have established what, under our law, no man is ever called on to establish—his complete innocence beyond all reasonable doubt. I quite admit that there are others looking at the same evidence with at least equal skill, and perhaps much greater skill, and I have no doubt, with an equally open mind, who are not prepared to go as far as that.
Is there anybody who is prepared to say that Evans was guilty as charged? Is there anybody who is prepared to say that if we had known then what we know now my right hon. Friend the Member for South Shields (Mr. Ede) would not have stopped the execution? I heard my right hon. Friend at the Dispatch Box in one of the Evans debates—the man who wrote on the papers, "The law must take its course"—declare to 1788 the House of Commons—and we honour him for his courage in saying it—that Evans was not guilty as charged. Suppose that we had known it all in 1948? Some of it was known, but other parts were not. Suppose all of it had been known in 1948. If this Ruling is right no one in the House of Commons could have put down a Question to my right hon. Friend the then Home Secretary and asked him for an inquiry into it.
Is that a tolerable position? I know that some hon. Members would reply, "Well, what would that have mattered? You would have gone to the Home Secretary privately and told him it all in the privacy of his room and, of course, he would have ordered an inquiry straight away." But we cannot depend on that. He might not have seen the evidence as it ought to have been seen, or as the rest of us would have seen it. He might have refused the inquiry even then. It is conceivable and, if he had refused the inquiry, no one could have questioned him in the House of Commons until after Evans was dead. We would have to wait, as we have had to wait as it is, until ten years later, when the House of Commons, in an excess of shame, does not dare to oppose the First Reading of the Bill brought in by my hon. Friend the Member for Leeds, West (Mr. C. Pannell) to hand over the remains of this miserable wretch to his relatives. If the Ruling was right we could not have stopped it.
That is a past case. Let me tell the House about a present case: let me tell hon. Members about George Riley. The newspapers have told something, but there are things newspapers cannot tell. That is why we have Privilege in the House of Commons. We can and we must tell. George Riley was convicted of capital crime and hanged without there being one scrap of objective evidence against him. None, no evidence at all. The evidence on which he was convicted was not evidence that he had committed the crime, but evidence that he said he did. Is that enough? Is there any lawyer in the House who thinks it is enough?
I know of no country outside the Soviet Union in the great purge trials of the 1930s which has ever claimed that a confession—made to the police while in the custody of the police, after a man has 1789 been in the custody of the police for a long time and uncorroborated by any piece of outside evidence, retracted as soon as he got out of the hands of the police and had any advice and retracted on oath in court—was enough. Is that a safe basis on which the State can take a man's life? Even in the purge trials in the 1930s, however they brought it about, there was a public confession on which they relied. Even then, most of us would say if there is no evidence corroborating the confession, what good is the confession?
§ Mr. Peter Rawlinson (Epsom)
Is it clearly a matter of evidence? Has the hon. Member read the transcript of the trial? Can he say that so that we can be sure of the facts? Can we know from where he obtained the facts, so that we can take that into account?
§ Mr. Silverman
What I have said appears on the transcript. There are other things that I am going to say that do not and I am not going to be afraid to say them, but so far what I have said is not in dispute. It is on the record.
I was saying that in the parallel case to which I referred—I do not know whether it was a parallel—the confessions were never recanted, but in this case it was and there was not one scrap of evidence in support of it, none. What the jury in that case had to decide was whether what the man told the police while he was in their custody, bewildered and alone, was true, or whether what he told the jury, on oath, under cross-examination, was true. I suggest it was a totally insufficient basis for a conviction, let alone for the exercise of a capital sentence.
The right hon. Gentleman the Home Secretary told me that he did not think there was a scintilla of doubt, and I am sure that he believes that. I am sure that if he thought there was he would have advised a reprieve. I am sure that he is perfectly honourable, perfectly open-minded and that he acted in the utmost good faith, but is there anybody else who, on these facts alone, would say there is no doubt?
§ Mr. Hobson
There were twelve jurymen on whom the defendant had placed himself as representing his country.
§ Mr. Silverman
Now I am going to tell the House what the jury did not 1790 know, but the police knew and did not tell the jury. He said in his own account, when he was explaining how he came to write out in his own hand this confession, that the police came running to him saying, "Look, George, your footprints, your fingerprints, blood in the same group". Not a word of truth in it. There were no footprints, no fingerprints, there was no blood of the same group.
There was blood, the photographs and the medical evidence showed that the assailant must in all probability have used a weapon—Riley had no weapon—and that the whole place was bespattered with blood. The photographs are horrible. The assailant must have been covered with blood. There was no blood on Riley, except a couple of spots at the bottom of his trousers arising out of a dance hall brawl, nothing whatever comparable to what the medical evidence agreed must have been on the clothing of the assailant.
§ The Attorney-General
May I ask the hon. Member again—because it is important that we should know this are these statements based on what he has read himself, or as evidence based on a transcript of the shorthand note taken at the trial, or are they from a newspaper report?
§ Mr. Silverman
They are not taken from a newspaper. They are not taken from a transcript. I take the responsibility of saying that they are true. If the right hon. and learned Gentleman wishes to know the source of my information, I will give it to him privately, but not here.
§ The Attorney-General
The hon. Member has said that the photographs and evidence showed that the assailant must have used a weapon and must have been covered with blood. The hon. Member said "evidence". Has he read the transcript?
§ Mr. Silverman
I have not read the transcript. The evidence I am referring to is that of Professor Webster, of the Forsenic Laboratory at Birmingham, a man whose authority the Attorney-General, I am sure, will not question.
I am coming to the point that I most wanted to make. When the solicitor defending the man went to have a look at the house, he found missing from the 1791 wall alongside the staircase two large pieces of wallpaper. He was curious enough to ask what had happened to them. The police told him, "These pieces of wallpaper were covered with blood, so we tore them off and sent them for examination to see what kind of blood, whose blood".
Nobody has ever seen those pieces of wallpaper since. The police say that they have somehow got lost. Where are they? Why did they get lost? They were of such a height as to be consistent, most probably with the assailant himself being covered with blood, going down the staircase and brushing against the wallpaper. Therefore, he must have had blood on his shoulder. Riley had none on him. Please do not ask me for my authority. Take it that I have checked it to the best of my ability and will, if he wants it, give the right hon. and learned Gentleman my authority another time.
After the confession the police officer in charge of the case rides with Riley in a police car to the committal room, and on the way he says, "What did you do with the handbag, George?" Riley says, "What handbag?" That is the last reference to a handbag. Nobody ever heard of the handbag again, and there is no evidence that a handbag was ever missing. Curious, is it not?
Now something about the policeman himself, because who was telling the truth about the circumstances of that confession in the police station depends to some extent on the credibility of the principal police officer. That principal police officer has within the past twelve months been suspended from duty on an accusation of which he was cleared—I will give the circumstances of how he was cleared in a moment—that he had tampered with witnesses and sought to induce them to alter their evidence in an inquiry by the Ministry of Health into an allegation by three women that they had been charged, or someone had been charged, fees by a doctor who had treated them under the National Health Service.
This officer took the statements, and then there were complaints that after he was finished with them he went back to the women and sought to get them to alter their statements in favour of the doctor against whom the complaint had 1792 been made. Another officer investigated the matter. The papers were sent to the Director of Public Prosecutions who, in turn, sent them back to the Chief Constable and said, "There is something to inquire into here, certainly, but perhaps not sufficient to involve a criminal prosecution. Hold a disciplinary inquiry yourself."
The Chief Constable held his disciplinary inquiry. He had in front of him the evidence of the three women who had made the complaint, and they made it again for him. No doubt the money had passed by cheque—no question about it. They said that the police officer had been to them and sought to get them to change their evidence. The police officer said that it was not true, and the Chief Constable preferred the evidence of his police officer to the evidence of the complainants. That is all. In this way he was exonerated, though if the jury had known that they might perhaps have added it to the other factors. They were out for two hours.
Is there anyone in the House who does not think that there is sufficient there to inquire into? Maybe the Home Secretary will inquire into it, but Riley is not interested any more. The point I am making is that, if this Ruling is correct, Evans may not be the only case in which a man is hanged, where there ought to be an inquiry and where no inquiry takes place at any effective hour. That is all. We have to consider our position very carefully.
§ Mr. Elwyn Jones (West Ham, South)
Will my hon. Friend tell the House whether this information about the police officer was known by the representatives of the accused at the trial?
§ Mr. Silverman
This is a difficult one, but I will answer it. It was known by the solicitor defending Riley, but whether that solicitor passed on the information to learned counsel defending Riley I do not know. The solicitor defending Riley was in a difficulty, because he knew these facts only because he had acted for the police inspector in the disciplinary inquiry to which I have referred and, no doubt, felt a professional difficulty about using in one case information which came to him only in the course of his professional relationship with another trial. There is another reason, too.
§ Mr. Rawlinson
Would the hon. Gentleman also agree that the solicitor acting for Riley was in difficulty in knowing, as he did, that, if there was a complaint of credibility, Riley's own character was such as could be put in evidence if he were to challenge the credibility of the police inspector?
§ Mr. Silverman
That is the other difficulty to which I refer, but since something has been said about Riley's character, let it be said that there is nothing in his record involving dishonesty. One of the worst features of this confession in the police cell are the innocent words which, in the end, killed him. The confession of a murderer does not make it a capital offence except the offence be committed in the course of theft. But, somehow or other, there came into the statement just sufficient words to convert a non-capital crime into a capital crime—the words, "I only wanted some money."
We have to be careful how we worry the Home Secretary in capital cases. It is quite wrong to harry him in every case. I am asking the House to believe that when I asked for an inquiry I thought, as I still think, that in the Riley case there was plenty to inquire into. There may be other cases. If this Ruling is correct, we shall never be able on the Floor of the House, until after the event and when it is too late to do any good, to ask for any investigation of them at all.
I submit to the House, to those who are with me in not liking capital punishment, to those who reluctantly think it necessary to retain it—no one on either side of this great argument has any interest in perverting the course of justice in order to produce an acquittal or a conviction; even those who are most passionately convinced that we must sometimes exercise the death penalty are not in favour of hanging the wrong man—that, if this Ruling is correct, we are preventing ourselves from doing our duty in cases of this kind. That is the point. True, there would be no such difficulty if we could get rid of the death penalty altogether. I should not be in order if I argued about that. and I will not do so.
Before 1957, we hanged, on an average, a dozen people a year. Since 1957, 1794 we have hanged, on an average, two or three people a year. Is there anybody so addicted to the gallows and the hangman that he thinks that the damage to society which might result from no longer hanging a couple of wretches a year is in any way compensated for by the risks we run in doing it?
§ 5.11 p.m.
§ The Secretary of State for the Home Department (Mr. R. A. Butler)
I beg to move, to leave out from "House" to the end of the Question and to add instead thereof:upholds the well-established rule under which in any case involving a capital sentence the circumstances on which the exercise of the prerogative of mercy depends should not be made the subject of question or discussion in this House while the sentence is pending ".I should like to say without disrespect to the bon. Member for Nelson and Colne (Mr. S. Silverman) that I shall not speak for so long as he did. That is not because I do not attach importance to the issue. It is because I want other hon. Members to take part in the debate. I hope that I can summarise what I want to say at not too great length. This arises from no disrespect to the hon. Member because, although I do not agree with much of what he said, no one can doubt his sincerity or fail to mark his manner of presentation.
The Motion in the name of the hon. Member for Nelson and Colne and other hon. Members asks the House to express the view that the Ruling recently given by Mr. Speaker wasnot in accordance with the precedents and practice of this House and imposes new. unnecessary and undesirable limitations on the ability of hon. Members to discharge their public duties.For the opening part of his speech the hon. Member said that he did not question the main issue to too great an extent, namely, that before a capital case is ruled upon by the Home Secretary, advising in one way or another on the exercise of the prerogative of mercy, there should not be Questions in the House. He went on to question whether the fact that his own Question about an inquiry was ruled out of order was not an undesirable extension of a principle which has been established. I apprehended that quite clearly from his speech.
On the other hand, in the course of his long speech there is no doubt that the 1795 hon. Member referred from time to time to the original issue and questioned it. We all know each other in the House and we know each other's oratory. The hon. Member is nothing if not thorough in his oratory and he examines searchingly the very issues which he proposes as being acceptable.
On the strength of that, while I do not propose to burke or avoid the issue which he had in his mind, namely, whether Mr. Speaker's Ruling was an undue extension of the past practice, it is essential for me as the Home Secretary of the day to rehearse very shortly, in view of the hon. Gentleman's speech, the Rulings which have been hitherto made and the principles upon which we work.
Mr. Speaker declined to allow the non. Member to put down a Question to me asking whether I would order an inquiry into whether a miscarriage of justice had occurred in the case of George Riley.
The Government take the view that it is a long-established practice of the House, as I shall now show, not to discuss the exercise of the prerogative of mercy in a capital case while the capital case is pending. In this connection there is a distinct difference between the statutory powers in relation to his fiat which are vested in the Attorney-General, which he will deal with shortly at the end of the debate, and the exercise of the prerogative of mercy by the Home Secretary.
Mr. Speaker referred on 7th February, as his predecessors have done, to the statement made by Mr. Matthews on 12th August, 1887. I need not read this again because it was read by the hon. Gentleman. It was in regard to the case of Lipski. This is the first case which I have been able to trace in which a Home Secretary was asked in a case involving the death penalty to give information before he had given his advice to the Crown or, where he decided to tender no advice for a reprieve, before the sentence had been carried out. Mr. Matthews said:I think it highly inexpedient and injurious to the administration of justice that the circumstances of a criminal case, on which the exercise of the Prerogative of Mercy depends, should be made the subject of discussion in this House.That is of some importance as a basis, but it might be less important if it had not been so frequently followed up.
1796 Mr. Matthews maintained this view in further statements on 22nd August, 1889, and on 14th March, 1892. This was followed up by his successor and one of my predecessors as Home Secretary, Sir Matthew White Ridley on 13th July, 1899, Mr. Ritchie on 22nd February, 1901, and Mr. Akers-Douglas on 18th December, 1902. They all followed up this practice and it was accepted by the House for many years. It was not until 1920 that Mr. Speaker was called on to give a ruling on the subject.
On 29th November, 1920, Mr. Speaker Lowther refused to accept a Motion for the Adjournment in the case of Cyril Saunders. He said this:… I could not accept such a Motion. It would be an interference with the ordinary administration of the course of justice. It has been laid down on previous occasions in this House that no Motion for the Adjournment could be accepted in such a case."—[OFFICIAL REPORT, 29th November, 1920; Vol. 135, c. 931.]Mr. Speaker Lowther gave a similar ruling in another case on 1 I th March, 1921.
On 13th June, 1922, Mr. Speaker Whitley gave a similar ruling on a similar Motion in relation to the case of Ronald True. In 1934 Mr. Speaker Fitzroy declined to allow a Question asking the Home Secretary to reconsider his decision in the case of Ernest Brown.
We now arrive, after that gradual accretion of statements by Home Secretaries followed by rulings from the Chair, at cases which will be within the recollection of many hon. Members on both sides of the House. I refer especially to the Rulings given by the predecessors of Mr. Speaker in 1947 in relation to the Gold Coast murders and in 1953 in the case of Bentley. Mr. Speaker Clifton Brown in the former case stated the position with admirable clarity. I beg to be excused for reading this short passage:The practice of the House makes a complete distinction between capital sentences and other forms of punishment, so far as the Prerogative of Mercy is concerned. Whereas the remission of a sentence of imprisonment, for example, can be urged upon a Minister at any time after its imposition, a capital sentence cannot be raised in Question or Debate while the sentence is pending. After it has been executed, the Minister responsible may be critcised on the relevant Vote in Supply, or on the Adjournment. I have stated that that is the practice of the House, and I cannot alter the practice of the House."—[OFFICIAL REPORT, 1st May, 1947; Vol. 436, c. 2180–1.]1797 This Ruling, which follows on all the others I have quoted, was maintained by Mr. Speaker Morrison on 27th January, 1953, when the hon. Member for Nelson and Colne himself sought to move the Adjournment under Standing Order No. 9 in the case of Bentley and in July of the same year when several hon. Members wished to move the Adjournment on the ground that the House should have an opportunity to discuss the report of the inquiry in the case of Evans before the execution of Christie.
§ Mr, S. Silverman
Was that a slip of the tongue'? I do not think that I ever sought to move the Adjournment of the House in the case of Bentley.
§ Mr. Butler
The hon. Gentleman raised it, and I would certainly accept his recollection if it proves that I have made a mistake, because he must recollect what he did himself.
§ Mr. Silverman
What I was seeking to do was to put on the Order Paper a Motion which was ultimately disallowed, and I raised with Mr. Speaker the question of whether the Motion ought not to have appeared. That is all.
§ Mr. Butler
On 9th May, 1956, the same Speaker gave a similar ruling in another case, in which the Minister concerned was the Colonial Secretary.
I hope that I have demonstrated, therefore, to the satisfaction of hon. Members that this practice has long been accepted by the House, and that when it has been called into question it has been consistently upheld by the Rulings of successive Speakers—
§ Mr. Jeremy Thorpe (Devon, North)
Perhaps the Home Secretary will allow me to intervene, as he now appears to be moving to another point. He is giving us authority for the proposition that the exercise of the prerogative of mercy cannot be called into question. As I apprehend it, the hon. Member for Nelson and Colne (Mr. S. Silverman) accepts that. Can the right hon. Gentleman give us authority for the proposition that the exercise of the executive power of the Home Secretary in a capital case is not open to challenge if that executive power coincidentally might impinge on the exercise of the prerogative? For that proposition, can he give authority?
§ Mr. Butler
Everything derives from the exercise of the prerogative, and that exercise of the prerogative, as I have said, has been ruled upon in matters directed to the execution of capital cases by the Chair consistently up to this date. I cannot go further in answer to the hon. Gentleman.
Before I come to discuss the suggestion made by the hon. Member for Nelson and Colne that the subject of his proposed Question was quite a different matter and… had nothing to do with the prerogative of mercyI should like briefly to say something of the reasons for this practice which will, I hope, commend themselves to the House.
First, there is the constitutional position of the Home Secretary in regard to the exercise of the Royal prerogative. The duty laid upon him is to tender such advice as he thinks right. It is only when his advice has been given and has taken effect that this House can properly challenge the manner in which he has discharged his responsibilities, and seek to bring him to account. That, I think, is the constitutional position that all my predecessors have accepted, and under which they have worked.
The second reason arises from the nature of the duty imposed on the Home Secretary. Once a case has been decided by the courts, the duty of the Home Secretary is to consider whether there are any extenuating circumstances or whether there may be any doubt as to the prisoner's guilt that would justify him in recommending the commutation of the capital sentence. Sir, one at least of my predecessors is in this Chamber, and I think that he will agree that in the discharge of that duty—which is certainly the most onerous and painful of the duties of his office—the Home Secretary takes into account all available information, including information that cannot be made public, and has regard to all relevant considerations and circumstances.
He has before him the transcripts of the proceedings at the trial and in any appeal. He has before him all the representations that are made to him from any quarter, including those made by Members of this House—and I am grateful that the hon. Gentleman, in his passionate sincerity in speaking on this matter, did, at least, do me the credit 1799 of saying that I have tried to decide these matters honestly and sincerely, and to listen to the representations made to me, which I will always undertake to do. The Home Secretary also frequently has before him a good deal of information coming from a variety of sources which, for one reason or another, could not be or perhaps, was not before the court.
He has full reports on the prisoner's history and background. If there has been a medical inquiry into the prisoner's mental condition—and one is held whenever there is the slightest ground for thinking it necessary—he has a report of that. The Home Secretary undertakes, opersonally or through his advisers, such consultations with those who have knowledge of the case as are likely to be helpful. But, when all the consultations are over, and when all the available material has been studied, the final decision whether to advise the exercise of the prerogative is one that the Home Secretary must take alone.
It is rarely an easy task. It is usually one of the utmost difficulty, involving great anxiety. It must be taken by the Home Secretary personally, to the best of his ability, using all the information and advice available to him, and acting according to his conscience. It has long been accepted that in taking his decision he should not be subject to the pressure of Parliamentary discussion.
Neither I as Home Secretary nor Parliament can re-try the case, a point that anybody assuming the office of Home Secretary has borne in most clearly on his mind after his first few cases. Parliamentary discussion, in which it would very often be impossible for the Home Secretary—as the Royal Commission on Capital Punishment accepted—to disclose the facts and considerations that are before him, and to which he must give weight, is not likely to assist in such a vital decision.
If this is all agreed, and if the longstanding practice used in relation to the prerogative is to be maintained, I suggest, as Mr. Speaker did last week, that the same consideration should preclude a discussion of any suggestion of an inquiry.
This is where I come to the hon. Member's second point. The only purpose for 1800 which the Home Secretary could direct the holding of an inquiry would be to assist him in deciding whether or not to recommend the exercise of the prerogative. It would be a very strange situation if the House, holding as it has done that the exercise of the prerogative should not be the subject of debate while a capital sentence is pending, should regard as proper to discuss, in that situation, whether the Home Secretary ought to hold an inquiry with a view to assisting him in his decision on the question of recommending the exercise of the prerogative—
§ Mr. Clement Davies (Montgomery)
The Home Secretary is saying that there should not be any inquiry, but surely it was an inquiry that was held into the conviction of Adolf Beck that led to the establishment of the Court of Criminal Appeal?
§ Mr. Butler
I am glad the right hon. and learned Gentleman has intervened. I was not saying there could not have been an inquiry: I was upholding the Ruling of the Speaker in relation to a question about an inquiry which I maintain trenches on the previous Ruling—which, I submit, was the correct Ruling—by the Speaker, because a debate on the matter would inevitably traverse the same ground as a debate for the exercise of the prerogative—
§ Mr. S. Silverman
The right hon. Gentleman said just now that the only purpose of such an inquiry was to assist the Home Secretary in deciding whether to exercise the prerogative of mercy. Does he really mean that? In the Rowland case, the Court of Criminal Appeal directed the Home Secretary, as far as it could, to hold an inquiry to see whether there had been a miscarriage of justice before the execution, not for the purpose of seeing whether there should be a reprieve but to see whether Rowland had been rightly convicted. So with Evans and Christie —an inquiry was ordered, but it was not to see whether there should be a reprieve but whether or not they had been rightly convicted.
§ Mr. Butler
The hon. Gentleman spoke for more than an hour and twenty minutes and I am speaking for a very short time. My claim is, first of all, that the case is absolutely made out of non-questioning of the Home Secretary 1801 in the period while he is deciding on the exercise of the prerogative.
My second point is that if the Speaker allowed a Question upon an inquiry—and I am grateful to the right hon. and learned Member for Montgomery (Mr. C. Davies) for making clear what I have in mind—a debate on that matter would inevitably traverse the same ground as a debate for the exercise of the prerogative. That is my claim. I put it quite simply and shortly, and I think that I am correct. The Home Secretary would, in my view, be subject to the same pressures and would be under the same handicap in taking what in this case also, can only be his personal decision. I do not think that this could be assisted by Parliamentary debate, or that it is proper for it to be taken in the atmosphere of Parliamentary debate.
That is my view, and that is why we on this side are moving this Amendment to the hon. Gentleman's Motion. We are not moving it in any spirit that need cause him any offence but are doing so merely because we regard it as a fair and decent exposition of the practice of the House which we have known to date.
Before I sit down, I must refer briefly to the case of George Riley which has given rise to the debate. I say "briefly" for this reason. I have with me all the precedents of my predecessors right through the last century, long before Mr. Asquith. On a similar occasion nearly seventy years ago, Mr. Asquith said that he did notfor one moment dispute the constitutional right of the House to question, to criticise, and, if necessary, to censure the action of a Minister in the performance of his duty",but it is clear that it has not been the practice for the Home Secretary to state in detail the reasons on which his decision on the exercise of the prerogative of mercy was based.
I have examined what my predecessors have said in this matter. I have what was said by Sir Matthew White Ridley. I have another precedent by Mr. Akers-Douglas in 1904, and one on 18th April, 1911, by Mr. Churchill who, when asked to state the considerations which influenced him in refusing a reprieve for Stinie Morrison said:It would not be in accordance with the usual practice which has long received the approval of this House to enter upon a dis- 1802 cussion of reasons for the exercise or refusal of the prerogative of mercy in capital cases." —[OFFICIAL REPORT, 18th April, 1911; Vol. xxiv, 621–2.]That is the doctrine which has been handed down to me and for which I have quoted the most respectable statements that I can find. I wish to maintain that rule which, I think, is sound and necessary. It is of the utmost importance that the House should not seek to constitute itself as an additional court of appeal a function which, as Mr. Asquith said on the occasion which I have just mentioned,with the best will in the world it could only discharge incompletely and imperfectly.Although the hon. Member has brought forward points in regard to the case, I cannot find a better description to apply to them than to say that, in the words of Mr. Asquith, the House in considering them could discharge its dutywith the best will in the world … only incompletely and imperfectly.He has brought forward points which, I think, could all be answered, and I think that my right hon. and learned Friend has something to say about the case itself.
I want to say this as Home Secretary. In Riley's case, I gave the closest consideration to all the facts and information which had been put before me, including information which was not, and some of which could not have been, before the court. I took into account also the representations which were made to me on Riley's behalf by hon. Members and by persons outside, and I took the special course of seeing personally some hon. Members, including the hon. Member for Nelson and Colne. A very painful and arduous duty it was, although conducted in the right spirit by those who saw me, for which I thank them. After the fullest consideration, I was satisfied that Riley had been rightly found guilty of murder committed in the course of the furtherance of theft, and I therefore regret that I had no other possibility than to take the course I did. I say "regret" because of the very heavy burden lying upon me in any such decision.
The hon. Member referred to various points. There is only one in relation to the police which I want to mention. The allegations against the inspector on the earlier occasion to which he referred 1803 were considered by the Director of Public Prosecutions at the time, and he found in them no ground for action. A formal disciplinary inquiry was held. The inspector was found not guilty of the conduct charged against him. It is surely repugnant to our normal concepts of fair play and justice to accuse a man a second time of an offence of which he has once been cleared. I do not myself accept that the inspector was not properly cleared of these charges.
For the rest, I have satisfied myself of the prisoner's guilt, and I can assure the House that, after close and prolonged scrutiny of the evidence before the court as well as other evidence available to me, I could find no ground for recommending a reprieve. It was indeed a heavy decision, and my main task today, leaving aside this particular and tragic case, is to show, on the basis of precedent, on the basis of the statements of my predecessors and of the predecessors of Mr. Speaker that on the question of whether an investigation into the possibility of an inquiry would be a proper subject for Questions to be put on the Paper, I have no hesitation in saying that our Amendment should be accepted. I am most strongly of opinion that the long standing practice of the House should be maintained, and I therefore commend the Amendment to hon. and right hon. Members.
§ Mr. Elwyn Jones
Will the Home Secretary deal with the important constitutional question raised by my hon. Friend, namely, the situation which can arise where there is a coincidence in the office of Home Secretary and Leader of the House which, with the Home Secretary in his capacity as Leader of the House, could result in blocking, even after the carrying out of the death sentence, discussion of the matter on the Floor of the House? It seems to be a matter of great importance, in the light of my hon. Friend's comments.
§ Mr. Butler
That is a perfectly legitimate point. It so happens that several of my predecessors have been Home Secretaries as well as Leaders of the House. It is not an uncommon combination, as the right hon. Member for South Shields knows. I agree that there are occasions where there might be conflict of opinion.
1804 The hon. Member for Nelson and Colne has been very patient with his Motion. I have not been trying to avoid it simply because I do not want to meet it, although I should be governed by what I have said today about my difficulties in giving reasons, which are respectable and have precedent for them. At the same time, I am convinced that the Leader of the House on this occasion is behaving with just as much tenderness and reason towards the Home Secretary as any Leader of the House would. One of the sincere difficulties has been to find time. We have deliberately found time for this Motion in relation to Mr. Speaker, but, of course, I do not preclude the possibility of further time being found, although we are at an extremely busy time of year.
§ Mr. G. R. Mitchison (Kettering)
Am I right on the following point of practice, that the prerogative of mercy is exercised in cases other than those involving capital punishment, the difference between its exercise in cases of capital punishment and in the others being that all cases of capital punishment are automatically reviewed by the Home Secretary of the day, and other cases are reviewed only on their being brought to his attention and considered by him to be suitable for review?
§ Mr. Butler
We deliberately put in our Amendment the words "involving the capital sentence" in order that the other question should not be brought into the debate or should not be governed by all the considerations which I have put. As regards the physical point about whether all the other cases come to me, the answer is that they could not, of course, because there are so many of them. They are governed by a rather different procedure.
§ 5.37 p.m.
§ Mr. Victor Yates (Birmingham, Ladywood)
I listened in amazement to the Home Secretary, and feel extremely sad to think that the right hon. Gentleman should have put forward a case resting solely on all the past precedents of history and not attempted to look at the urgent questions which we have put to him.
My hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) did not discuss this matter with me. When I came to the House on Monday, 1805 6th February, I had read an article in the Observer about the Riley case and I had had information presented to me, some of which my hon. Friend has submitted to the House. As I think the right hon. Gentleman will agree, it is my usual custom to ask the Minister to inquire into a matter and, if it be not undertaken, I exercise my right to ask about it in the House. I immediately wrote to the Home Secretary on 6th February saying that I had received information concerning this case. I asked him to study it because, I said, it created the gravest doubt in a case which rested entirely on the validity of the prisoner's confession. That information was conveyed to me on the Monday.
I was very troubled about this matter. I wrote to the Home Secretary and gave him specific information about certain allegations connected with this case. I appreciate that the right hon. Gentleman was willing to see me, but I am bound to say that I shall regard that Monday evening, when he sent for me and when I saw him in his office, as a black Monday evening, for I had the feeling that, even though he told me that the information which I had given him was in his briefcase, and that he was taking it home to study with all the other relevant information, the right hon. Gentleman had then made up his mind in the matter. When I learned the following morning that two people had received a letter by the first post in which it was stated that the right hon. Gentleman had declined to consider a reprieve, I felt even more strongly about the matter.
My hon. Friend the Member for Nelson and Colne has referred to the setting up of an inquiry. I appreciate that it is extremely difficult to decide the matter on legal grounds. After all, this concerned three persons who had made written statements, copies of which I have, in which they alleged that the police inspector involved in the case had attempted to persuade them to alter their evidence. I agree that the officer was exonerated, but I must say to the right hon. Gentleman that the legal opinion of a person who was present at the investigation, and who was representing the person concerned, is clearly stated in the letter which I submitted to him. He said: 1806I considered the proceedings, and particularly those in the afternoon, to be a denial of elementary principles of justice and fair play.Consequently, the papers were sent to the Law Society.
Why did not the Home Secretary consider that it would have been wise—I realise that the Home Secretary is not listening to me—
§ Mr. Yates
This was a matter in which the life of a man was at stake. I should have thought that he would have been willing to have inquiries instituted about the allegations which were made. The Home Secretary has told us that at no time, whatever information we may be able to bring forward, may we table a Question in the House on the matter and that it cannot be raised because of past precedents. He has quoted words which explain the past practice of the House, but I think that changed circumstances demand that the House should look at this matter again.
I am pleased that the Home Secretary said that this may not be the end of the discussion. I remember Mr. Speaker Clifton Brown using the words on 1st May, 1947, to which the right hon. Gentleman referred. He said:The practice of the House makes a complete distinction between capital sentences and other forms of punishment, so far as the Prerogative of mercy is concerned. Whereas the remission of a sentence of imprisonment, for example, can be urged upon a Minister at any time after its imposition, a capital sentence cannot be raised in Question or debate while the sentence is pending. After it has been executed, the Minister responsible may be criticised on the relevant Vote in Supply, or on the Adjournment."—[OFFICIAL REPORT, 1st May. 1947; Vol. 436, c. 2180–1.]I appreciated that there was some force in the argument. But we had not had the case of Timothy Evans then. That had not arisen.
We are now in this position. In the case of a sentence passed by a court of law which is not as serious as a capital sentence, we may always ask the Minister a Question and we can always take action which may eventually lead to a change in that sentence. We may appeal to the Home Secretary to use his influence. But in the most serious case of all, where a life is at stake, then, whatever information we can bring forward, it can never be considered. In view of the facts that we now have about the Timothy Evans 1807 case, surely it is time that the House reconsidered its past practice.
I referred last week to the fact that I did not believe that the time at our disposal was sufficient to discuss the whole principle of this matter. Suppose that it had been known at the time of the Evans case that there were buried in his garden the remains of two women who had been murdered. If it could have been proved that the principal witness for the prosecution had committed those murders, what effect would that have had on the jury? Surely the jury would have had some doubt in the case. But even if that evidence could have been put forward, under the constitutional practice and theory, my right hon. Friend the Member for South Shields (Mr. Ede), who was then Home Secretary, could not have changed his decision.
§ Mr. Yates
Later, yes, but if the constitutional position had been that we could not raise the matter, then either he would have had to call for an inquiry, which, no doubt, he would have done, or said that the sentence should not be carried out pending a further discussion of the matter. My hon. Friend the Member for Kensington, North (Mr. G. H. R. Rogers) raised the matter while Christie was under sentence of death.
The Home Secretary has put the House in a straitjacket. It is a complete travesty of the principles of democracy if we know that evidence that should be examined is not examined.
We have put before the Home Secretary evidence concerning the principal witness for the prosecution—the police inspector—in the Riley case. We put information to the right hon. Gentleman concerning the doubt that existed and the fact that on the method by which evidence was obtained, there was a suspicion, and that even though the officer was exonerated, it was by a police inquiry and not an independent inquiry. From my information and knowledge about what happened, I have not the slightest doubt that an independent inquiry would have produced an entirely different view. For that reason, I feel very disturbed that we are powerless to raise a question concerning this matter.
1808 I should like to quote from last Sunday's Observer, which quoted the book Battle for the Mind, by Dr. William Sargant, who, according to the newspaper,claims that while an entirely false confession is not likely to be extracted in under twenty-four hours of interrogation, a much shorter time is sufficient to produce serious factual distortions in cases where the suspect is suffering from emotional stress.The article goes on to say, and I entirely agree:But in those cases (not very numerous) where an uncorroborated confession of the ' I did it' variety "—undoubtedly, this is one of them—is made by an accused while he is alone with the police in a police-station, his statement should be excluded entirely at the trial, unless he himself repeats it before the court.So long as the suspect makes the statement at the scene of the crime or in his own home, there is no objection to the statement being admitted. But the exclusion of confessions by those taken to a police station for questioning would ensure more thorough investigations of crime and would put an end to the nagging suspicion that some men are convicted on statements extorted by the police.Knowing what I have studied about psychiatry and about suggestions that can be made to persons who are under emotional stress, I feel very disturbed. A book has just been written about Timothy Evans which gives evidence of this beyond any shadow of doubt. This man had been in a police station for seven hours. Heaven knows what happened. If the jury had known the facts which I have submitted in a letter to the Home Secretary, and had the jury known the additional facts which my hon. Friend the Member for Nelson and Colne has brought forward, I think that there would have been an element of doubt.
The Home Secretary may think that there is no doubt. It is not a matter of what the Home Secretary thinks. Rather is it what the court and the jury would have thought in those circumstances. I am shocked to think that we must go on knowing that a miscarriage of justice occurred in the case of Timothy Evans. I shall never forget the statement in the House by my right hon. Friend the Member for South Shields, who was then Home Secretary. In a tense moment, he told hon. Members that when the Criminal Justice Bill was before the House, he had never said that a mistake could not be made. He realised, however, that 1809 a mistake in some form had been made. That was an admission which everybody in the House regarded as a courageous thing for a former Home Secretary to say. There are many of us in this House who never want a situation of that kind to develop again.
I am sorry to think that the Home Secretary did not consider that in the present case there was even a minute doubt which could have led to an investigation. I certainly believe that this matter will not end here. The House must consider and probe it further. We must ensure that a fairer method is adopted if we are to have real justice in these cases. It is not sufficient for the Home Secretary, in his own office, to have information that we do not have, or for him to feel that justice has been done. People outside must see that justice is done. I do not believe that in all the circumstances, people will feel that justice has been done until investigation is made into a case of this kind.
I therefore object to the Government's Amendment to the Motion, though not because I think that Mr. Speaker was altogether wrong. I realise that Mr. Speaker himself said, in effect, "If you care to change this practice, it will be satisfactory to me." At the same time, the Home Secretary and the Government are proposing an Amendment which asks us now to go forward supporting this principle when new facts have come into our possession. In two cases, there has been an intolerable result and I hope that the House will never rest until we have a change in our method.
§ 5.58 p.m.
§ Sir Lionel Heald (Chertsey)
I do not wish to detain the House at any length, but I should like to say a few words arising from what the hon. Member for Birmingham, Ladywood (Mr. V. Yates) has been saying. It is most important that it should be appreciated why this principle should be maintained, where it arises and what it leads to. It has been acted on for many years and I suggest that it is not only justified, but required, first, on principle having regard to the constitutional background; secondly, as a matter of practical expediency; and, thirdly, on precedent. It is with regard to the first of these matters that I want briefly to detain the House.
1810 It has been suggested—indeed, there is a learned article on the subject in The Times this morning—that there is doubt with regard to the question of whether the Home Secretary's consideration of his action in relation to the possible exercise of the prerogative of mercy is, indeed, a matter of prerogative at all. It is right that it should be made clear that, at least as I see it, that is an entirely unfounded view.
It may be helpful to the House to state briefly exactly what is the basis of the Home Secretary's action. It has been pointed out that we are dealing here particularly with the procedure which arises in connection with the execution of the death sentence. We must understand how that arises. When a man is condemned to death the sheriff is ordered by one of Her Majesty's judges to carry out the sentence and he is bound to do so by law. The document which requires him to perform his function is a prerogative document. That can only be stayed, in cases where there is no appeal, by the issue of another prerogative document which is issued in appropriate cases by the Home Secretary, called the "respite" or "reprieve". The Home Secretary has no right to issue such a document in any other character than as the direct representative of the Sovereign who, of course, is equally represented by the judge who made the order condemning the individual to death.
Therefore, the first act which has to be performed by the Home Secretary is to decide, not as an administrative officer, but as the direct representative of the Crown—in his original capacity as the Secretary of State, the Secretary to the King or Queen—whether he should issue that document. If he does so, it has the effect of staying the order of execution. It is well to remember that such a respite may also be issued, according to constitutional law, by the judge himself or by other judges. In the first case it is issued ex-mandato regis —that is to say, directly in the name of the King—and in the second case it is issued ex-arbitris judicis—that is to say. arising in the ordinary course of justice.
That leads to the course that if the Home Secretary performs the prerogative on behalf of the Crown the execution is stayed and thereupon, in the case of commutation of sentence, a conditional pardon is prepared which is 1811 signed by the Sovereign. That substitutes imprisonment for the sentence of death.
One therefore sees that the act which results in a reprieve is twofold and both parts of it are direct exercises of the prerogative. It should, therefore, be appreciated that in this matter we are dealing with a prerogative subject and that it is not a matter of judicial action, except in the sense that the Sovereign is the fountain of justice. Just as the judge can act in the Sovereign's name to apply a respite, so the Home Secretary acts directly in his name in doing the same thing from a different point of view. We must, therefore, realise that we are in a very special field and would be doing something about which we must be very careful, if we tamper with it or alter it.
Let us also remember that it is the duty of the Home Secretary, in every case where a man has been condemned to death, whether there is a petition or not, to make a full and careful inquiry. That inquiry is described in The Home Office, a book originally the work of Sir Edward Troup, which has recently been brought up to date by Sir Frank Newman, both well-known members of the Home Office. In that book it mentions that in the Home Secretary's room there is a card, of which many of us have heard, which says, "You can never hesitate too long before deciding that a man must die".
This solemn reminder serves to emphasise the gravity of the most exacting of the Home Secretary's duties, that of considering whether there are grounds for the exercise by the Crown of the Royal prerogative of mercy. In every case where a man stands under sentence of death it is the solemn duty of the Home Secretary to carry out a full inquiry.
If we consider the present case, it appears from what the hon. Member for Ladywood told us that the facts which the hon. Member for Nelson and Colne (Mr. S. Silverman) raised—and no one doubts their sincerity and anxiety in the matter—were brought to the notice of the Home Secretary. I hope that the hon. Member for Nelson and Colne will listen, because I want to make it perfectly clear that what I am going to say is no possible reflection on him. Is he 1812 not saying that in the circumstances of this case, his view of the facts that he has investigated should take the place of the Home Secretary's review of the facts?
§ Mr. S. Silverman
I am not quite clear whether I have got the right hon. and learned Member's point but, if I have, may I say that I do not believe any of the facts set out in my speech are contested by anyone?
§ Sir L. Heald
The hon. Member agrees that they were brought to the notice of the Home Secretary. If we accept, as I would suggest in this very serious matter we must accept, the basic principle that the Home Secretary should carry out, and must carry out, this inquiry in every case, it is essential that we should apply it seriously and strictly and not allow any substitution to be made in the exercise of the Home Secretary's duty.
I spoke of expediency and I would put it in this way: how can it be right that an inquiry of this kind, a solemn consideration involving facts and evidence which could not possibly be brought forward in court, should be considered by 630 people? That is what is being suggested. If we allow that to be done, we are, as was said by Mr. Speaker Clifton Brown, substituting another court of appeal in this House and one that will take account of the different views of 630 different individuals.
§ Mr. Silverman
On this point, I am 100 per cent. in agreement with the right hon. and learned Member. I could imagine no more stupid form of criminal investigation, or one more evocative of error after error, than to be subject to appeal in the Division Lobbies of the House of Commons with the Whips on. That is not what I am asking. I am asking for an inquiry.
§ Sir L. Heald
I am obliged to the hon. Member. As I have already said, I do not wish to detain the House. I know that my right hon. and learned Friend will deal with the other question I should have liked to discuss with the hon. Member and perhaps we shall have an opportunity to discuss it in some other place.
I wish particularly to deal with what might be called the second leg of the Motion and to try to point out to the 1813 hon. Member for Ladywood that there is concerned in this matter a very deep constitutional question, and that if we differ from him, as we do, it is on very sincere grounds. We are here dealing with a fundamental constitutional matter and unless we can find a most deeply convincing reason for interfering with it we must refuse to do so.
§ 6.10 p.m.
§ Mr. Eric Fletcher (Islington, East)
I desire to detain the House only for a few minutes, but I wish to do so because I was one of the hon. Members whom the Home Secretary was kind enough to see last week. As my hon. Friend the Member for Nelson and Come (Mr. S. Silverman) has already mentioned, I had a Question down on this subject which was considered by Mr. Speaker very largely because of my hon. Friend's Question. I do not think that I dissent from a great many of the things which the right hon. and learned Member for Chertsey (Sir L. Heald) has said, but the debate, which has been most useful, has, of course, covered much wider fields than the topic on which he chose to concentrate.
It seems to me that there are a large number of issues involved here which it is important to keep distinct. If one studies the terms of the Motion and the Amendment one finds two different issues, the first being whether Mr. Speaker's Ruling was correct according to the precedents, and, the second whether, if it was correct, it is a Ruling which should be confirmed or should be changed.
I will not elaborate on that question except to express my opinion. I should have thought, after looking at the precedents and hearing them quoted today, that Mr. Speaker's Ruling was in accordance with precedents. That, as is recognised, does not conclude the matter because Mr. Speaker gave the Ruling with great reluctance and expressed the view that the matter was one which should be reviewed by the House.
The important question therefore is not whether the Ruling was in accordance with precedents but whether it should be renewed or revised, and for that reason I am a little sorry that the Government have put their Amendment on the Order Paper.
1814 There is another point on which I think it is important to maintain a distinction. We have heard a great deal about the prerogative of mercy, and we have heard something about the due administration of justice. These two things are quite distinct. 1 agree with what was said by the right hon. and learned Member for Chertsey and others that the Home Secretary in advising the Sovereign on the prerogative of mercy is exercising a very special function for which he, and he alone, must be responsible.
I agree also that it would be quite ridiculous to substitute either this House or any other body for the Home Secretary as the person on whom that very onerous duty must devolve. That being so, I am fully in accordance with the doctrine which has been propounded that until a decision has been reached on whether the prerogative of mercy should be exercised or not, it would be wrong for the House, by Question or Motion to seek to affect that decision. After it has been given, there may be criticism of it.
But what concerns me in this whole matter is not so much the exercise of the prerogative of mercy as the administration of justice. It will be appreciated that there may well be a number of cases in which the prerogative of mercy is exercised for reasons which have nothing to do with the trial. It may be exercised because of the age of the culprit, because of the sex of the culprit, because of his previous record, his sanity or lack of sanity and because of a whole variety of circumstances which have nothing whatever to do with the trial. But having said that the House is not directly concerned with the prerogative of mercy before it is exercised, we are surely agreed that the House is vitally concerned with the due administration of justice.
We would all recognise that the Home Secretary, in a most difficult and embarrassing task, reached, as he always does, an honest and sincere decision and that in doing so he takes into account not only the circumstances of the trial but certain facts favourable, or perhaps unfavourable, to the accused which have not been mentioned at the trial. It is not enough for him to be satisfied about 1815 the guilt of the accused. It is also necessary for him to be satisfied that, assuming certain facts which have come to light since the trial had been known to the jury, the conviction would still have stood.
What has affected us in this case is the circumstance in which the confession was obtained and the lack of corroborative evidence. My approach is quite different from that of some of my hon. Friends. They are convinced, lifelong believers and advocates of the complete abolition of capital punishment, and therefore I can appreciate their concern. I have never been an out-and-out abolitionist. I have never voted for the complete abolition of capital punishment. I have always believed that for certain classes of crimes retention of capital punishment is essential.
I speak, therefore, with even greater concern on the subject because what disturbs me is not merely that the capital penalty has been exacted but that it appears to have been exacted as a result of a miscarriage of justice. I am concerned, as I said at Question Time, about cases where there are convictions following a confession with no corroborative evidence.
The House should realise that it is not only in capital cases that concern has been felt in recent years about the conduct of the police and the way in which, in some cases they obtain a conviction. Because if concern be felt about the way accusations made against the police are dealt with, there is now sitting a Royal Commission on the whole subject of relations between the public and the police.
My hon. Friend the Member for Birmingham, Ladywood (Mr. V. Yates) has explained that the police witness in this case, unknown to the jury, had recently been involved in certain accusations that he had persuaded witnesses to change their evidence. We know that this sometimes happens. We also know that there had been a police inquiry into that conduct and that he had been whitewashed by his police superiors.
This, however, does not conclude the matter. In fact, it has hardly any relevance to the credibility of the police 1816 witness. One of the things which the Royal Commission set up by the Home Secretary is examining at the moment is the disquiet and concern about the way in which all accusations against the police are dealt with.
I have in my possession evidence given to me by inside sources, by reputable officers in the police, who have told me how when charges against their subordinates in the Metropolitan area are made, a police inquiry is set up with in effect direction that there should always be a whitewashing result. This is axiomatic. The Council of the Law Society has, in the last few days, made representations to the Royal Commission, which have been published urging, for this very reason, that accusations against any policeman should be the subject of inquiry by an independent tribunal.
In the case of Mr. Riley, the policeman had been exonerated by a domestic tribunal set up by his own superiors who, of course, had an interest in exonerating him because they thought, rightly or wrongly, that unless they did so it would redound to the ill-credit of the police force. But because there is this background of feeling about the way in which accusations against the police are dealt with nowadays, it seems to me that evidence of charges against the police which might not have weighed with the Home Secretary might very properly have weighed with the jury. It is difficult to know what exact degree of weight he would give to it, but I have no doubt that a jury would give great weight to it.
The other thing which is most important is that the confession was made by Riley while in the police station, without access to legal advisers or to friends of any kind. I have some reason to believe —I have heard this, but have no proof—that at the time he was under some influence of drink. In such circumstances, one is liable to say things one would not say at another time. Held in the police station, with all the pressure of the police around him, he made a confession which he subsequently repudiated on oath, and there was no corroborative evidence at all.
Those facts do not seem sufficient to me to justify a conviction in any case. still less in a capital case. If the capital 1817 sentence, with its awful finality, is to be retained, then it is more than ever necessary that in these cases the House should be satisfied that there can be no possible miscarriage of justice.
Although the House may not have the right to interfere with the prerogative, it is entitled to satisfy itself—as I do not think any of us are satisfied at the moment—that our standards of criminal justice are as perfect and as pure as they should be. Cases do arise when there is a miscarriage of justice. This has a very serious bearing on the question of when the Homicide Act is to be reviewed.
§ Mr. Speaker
Order. I confess the misfortune that I had to leave the Chair during the opening speech and may not, therefore, have followed all the debate, but I have some difficulty in understanding how amendment of the Homicide Act can be related to the Motion or to the Amendment.
§ Mr. Fletcher
I appreciate your Ruling, Mr. Speaker, and I shall not pursue that matter. I was about to bring my remarks to a conclusion by expressing great concern about the working of the Homicide Act. There are doubts throughout the country about it. The Riley case followed upon the revelations in the Evans case. I hope that as a result of this debate there will be a review of our procedure to enable us, while not affecting the tradition of the prerogative, to express at all times any criticism that we may have about the administration of justice in any criminal case, particularly a capital case.
§ 6.25 p.m.
§ Mr. Peter Rawlinson (Epsom)
I join with the hon. Member for Islington, East (Mr. Fletcher) in welcoming the debate. The hon. Member for Nelson and Colne (Mr. S. Silverman) moved the Motion with his usual clarity and sincerity. It is of great importance, and it is important that the House should be able to come to a decision on the Motion and the Amendment because, if the Amendment is passed, an end would be put to the uncertainty that is nagging the minds of hon. Members about their rights in this House.
It is important in the interests of the House that it should be perfectly clear what the rights of Members are in cases 1818 like this. Passion will always be aroused while we retain capital punishment. The very atmosphere of the House of Commons makes passion very much more passionate.
It is an inherent part of the character of this House that we debate against each other and in between each other, discussing party matters at one moment and then matters such as this the next. It is rarely a place for cool argument. It is on such matters as this that passions become aroused. Statements are made which people genuinely believe to be statements of fact, but which, nevertheless, may be disputed by other Members.
It is horror at the penalty which leads protagonists to less balanced judgments. To debate this matter in the House of Commons is the worst possible thing to do. The House becomes a court of appeal, jaded and tired after political battles. It is the worst possible appellate tribunal and the worst possible jury.
I remind the House that Edmund Burke said that the end of the British Constitution was to bring twelve men into the jury box. Twelve men have been in the jury box in the case of Riley. The hon. Member for Islington, East and two other hon. Members opposite have spoken about this case. My information is different from theirs. I understand that there was corroborative evidence—that there was some evidence of blood, of glass in the shoe, and that the ring on the man's finger could have caused the injuries found on the woman.
§ Mr. Rawlinson
It can be seen that we disagree. That is why I say that it is a bad thing that these matters should be debated on the Floor of the House, and at a time when there is some feeling between the parties.
The hon. Member for Islington, East spoke about Riley making a statement while under the influence of drink. In fact, it was a written statement, written by Riley. The hon. Member also talked of the whitewashing of police officers. Many of our police are accused by persons who have interests to gain. Of course an officer will want to have a disciplinary committee, and every accused police officer is taken before such a committee. Is that to be called 1819 whitewashing? It is a little unfair to do so, and I think the accusation is made because we are the wrong people to discuss this matter. The best evidence is the evidence of a person who confesses voluntarily.
§ Mr. Rawlinson
A retraction may sometimes be in the best interest of the person, but it may be that when he seeks and obtains the legal advice of his solicitor he changes his mind.
§ Mr. Leo Abse (Pontypool)
I believe the hon. and learned Gentleman is a member of a committee which recently indicated the need for fundamental changes in relation to confessions. Is he now going against that committee in suggesting that confessions are so reliable?
§ Mr. Rawlinson
Of course not. I am not standing against anything. I am demonstrating that this House is the worst possible place to have these matters debated. I was a member of the Lawton Justice Committee and I was chairman of the Inns of Court Consue Committee which gave evidence before the Royal Commission on the Police. Members of that committee included some who are now judges, some recorders, and many who appear regularly to prosecute and to defend. We came to the conclusion that there was some evidence that some confessions are obtained by means of bluff and persistent questioning, and we recommended some strengthening of the judges' rules. All I am indicating is that a voluntary confession is the best possible evidence of a man's guilt which one can get, namely, if the man freely says, "I did it".
I remind the hon. Member for Nelson and Colne, as other hon. Members, that there are many criticis of the advantage which is now given to the prisoner in the present English system of law. Jeremy Bentham wrote:If all the criminals of every class had assembled and framed a system after their own wishes, is not this rule the very first which they would have established for their own security? Innocence never takes advantage of it; innocence claims the right of speaking as guilt invokes the privilege of silence….That conception advocated by Jeremy Bentham is alien to us, but Sir James Stephens, Professor Glanville Williams, 1820 and my hon. and learned Friend the Member for Northwich (Mr. J. Foster), who wrote a minority report, take that view. I do not agree with it, but in this case there was a confession in the man's own handwriting and the jury heard him give his evidence on oath and must have disbelieved him. How can we then say in the House at this time that we know better? I suggest to hon. Members that because of what is their sincerity and their dislike of the formidable character of the punishment they then want to pick upon each individual case, which they would not have done if the man had only been sentenced to some years of imprisonment.
I do not want to detain the House, but I repeat that the Home Secretary should be left to make these judgments and form these difficult decisions in private. Hon. Members in the House are political creatures. When Members of Parliament are Members of delegations, representing a society or some other interest outside Parliament, then they are better able to take a balanced view. But when they are questioning the Home Secretary in the House, they become political animals performing political acts. It is in the interest of justice that the present position, as I think it is set out in the Amendment, should be maintained so that there shall be no questioning or inquiry as suggested in the Motion.
§ 6.32 p.m.
§ Mr. Jeremy Thorpe (Devon, North)
The hon. Member for Nelson and Colne (Mr. S. Silverman) has generously said that he would rather have another hon. Member winding up on his behalf, and that I feel privileged to do.
§ Mr. Thorpe
I appreciate that.
The Home Secretary came to the House with a brief which was carefully prepared, but which was based on the assumption that the main point of the challenge would be as to the right to question him about the exercise of the prerogative of mercy, and those were the arguments which he adduced. But that has never been challenged by those who support the Motion.
Two propositions are indisputable. The first is that the exercise of the 1821 prerogative of mercy is not open to challenge, and the second is that Executive acts, which are the responsibility of the Home Secretary, are and always have been open to challenge. To those two propositions the right hon. Gentleman has added a third, which is novel. It is that when the questioning of such Executive acts involves an impingement on the exercise of the prerogative of mercy, Questions relating to that Executive act automatically become entitled to the protective covering applied to Questions relating to the exercise of the prerogative. That is a new departure and an extension of existing practice.
The Home Secretary has said that the two matters are indivisible. It is conceded that at times it is difficult to separate the two. It is conceded that at times the one impinges on the other, but it is our submission that that is not sufficient of itself to afford the protective covering to Questions which relate exclusively to an Executive act.
The prerogative of mercy involves one thing and one thing alone—the issuing of a pardon, either a complete pardon, in which case the convicted man goes free, or a conditional pardon, in which case he will be detained during Her Majesty's pleasure, or there will be commutation. Even the reprieve, although it is an indispensable procedural act prior to the exercise of the prerogative of mercy, is not an exercise of the prerogative. The date of the execution is set by the sheriff and the reprieve is simply a request by the Home Secretary to the sheriff to stay his hand in order that time may be afforded for further consideration being given to the exercise of the prerogative.
Indeed, as mentioned in the article by Mr. Iwi, in The Times, when a sentence of death is passed, if a reprieve is granted, the decision is a Ministerial decision and the prerogative is at no time involved.
To back up his argument, the right hon. Gentleman spoke of what I would call the indivisibility argument, maintaining that a commission of inquiry was inextricably bound up with the exercise of the prerogative simply and solely because the sole purpose of such an inquiry would be to assist him in deciding whether or not to exercise the prerogative of mercy.
1822 Is the right hon. Gentleman seriously suggesting that that is the only reason why a commission of inquiry could be set up? Why was the commission of inquiry under Mr. Scott Henderson set up? Was it not to see whether there had been a miscarriage of justice? It was set up while Christie was still under sentence of death, and there was no question at that time that he should be reprieved or that the inquiry might produce evidence or recommendations which would lead him to exercise the prerogative in respect of Christie. It was set up to inquire whether there had been a miscarriage of justice in the case of Evans. How can it be said that because a convicted man has the good fortune still to be alive, it should be less desirable to inquire whether there has been an error of judgment or a miscarriage of justice?
Even in the Podola case, there was a Section 18 reference by the Home Secretary to the Court of Criminal Appeal, to see whether Podola had been properly convicted. That was done on the right hon. Gentleman's own initiative, was an Executive act, had nothing to do with the prerogative, and would, therefore, have been open to Questions.
The real point is that it is accepted that the exercise of the prerogative cannot be challenged, and the right hon. Gentleman has produced impressive authority for that, but no authority whatever for the proposition that Executive acts are not open to question. The mere fact that an inquiry might impinge on the prerogative might make hon. Members more cautious and might make it less ethically desirable, but certainly the mere impingement per se is no reason for shifting the protective cloak over the one because the one cannot be separated from the other. The purpose of the Motion is to say that there is a dangerous extension of existing practice which must be checked and held.
§ 6.38 p.m.
§ The Attorney-General (Sir Reginald Manningham-Buller)
I have listened with interest to the observations made by every hon. Member who has spoken, and I now want to reply to some of the comments which have been made. I agree with the hon. Member for Devon, North (Mr. Thorpe) that the first question for consideration is whether the Question of the hon. Member for Nelson 1823 and Colne (Mr. S. Silverman) is or is not within the rule which has been adhered to for so many years. It is worth bearing in mind the words of Mr. Secretary Matthews, to which my right hon. Friend referred, uttered in 1887, when he said:… it is highly inexpedient and injurious to the administration of justice that the circumstances of a criminal case, on which the exercise of the Prerogative of mercy depends, should be made the subject of discussion or of Questions in this House.I should like the hon. Member for Devon, North, in view of his interesting observations, to bear this in mind. If a judicial process is terminated and if, as there was in this case, there is an appeal to the Court of Criminal Appeal and that appeal has been dismissed and no further appeal to the House of Lords is made, should there be any inquiry that would raise doubts as to the propriety of the conviction then the only way in which that situation could be dealt with would be by the exercise of the Royal prerogative of mercy. Indeed, in my opinion, that is so, and there is no other way whereby, in the event of an inquiry establishing that something has gone wrong, the sentence, passed in accordance with the law, can be avoided.
§ Mr. Thorpe
Suppose, in a capital case, the matter had been tried and decided, had been before the Court of Criminal Appeal and been upheld, and been to the House of Lords and again been upheld, and, thereafter, there was new evidence, is the right hon. and learned Gentleman suggesting that it would not be possible to make a Section 18 reference for this matter to be gone into by the appropriate criminal court?
§ The Attorney-General
If the case had gone to the House of Lords, I am not quite sure what the answer to that would be. There is a power, it is in Section 19 of the Criminal Appeal Act, for the Home Secretary to make reference in certain circumstances. That is a special statutory power.
I am dealing with the general proposition. Hon. Members opposite are not asking for machinery for sending the case to the Court of Criminal Appeal for its view, perhaps, on the effect of the evidence. They are not asking for that to happen, but for an inquiry to be held by some other body, and the point I am making is that even if it was held 1824 by any other body and it emerged that there might be some doubt about the propriety of the conviction, the only way in which the sentence which was passed in accordance with the law could be altered would be by the exercise of the prerogative.
I hope that I have made that point clear, because from it this follows. When hon. Members are asking for an investigation or an inquiry to be held, they are, in fact, asking for something which necessarily contemplates, if one result occurs from that investigation, the exercise of the Royal prerogative. I do not believe that we can possibly draw the line where the hon. Member for Nelson and Colne and the hon. Member for Devon, North have suggested.
I do not know that any useful purpose will be served by my reminding the House of the many precedents to which my right hon. Friend referred, and which you, Sir, followed in reaching your conclusions about this question. All I would say on this part of the debate is that, in my submission, it is perfectly clear that this kind of question necessarily conflicts with the long-established practice and custom of this House.
Throughout this debate, starting with the speech of the hon. Member for Nelson and Colne, great anxiety has been expressed about the facts, and I should like to put that word in inverted commas, of the Riley case. I think that perhaps it would not be inappropriate if I made a few observations with regard to an aspect of the matter on which the hon. Member for Nelson and Colne and the hon. Member for Islington, East (Mr. Fletcher) spoke with such strength, raising matters with which I should like to deal.
The first, I would remind the House, is that this case was brought before a very experienced judge, Mr. Justice Barry, and before a jury who knew, from the start, from the nature of the charge, that a verdict of "Guilty" could only be followed by sentence of death. When we are considering what we have read in the papers about the case, that is something which, as my hon. and learned Friend the Member for Epsom (Mr. Rawlinson) indicated, we ought all to bear in mind. No jury is ready or keen to return a verdict of capital murder, and no jury will do so, unless it is satisfied beyond all reasonable doubt of the guilt 1825 of the accused. It was satisfied in this case, after hearing the accused and after hearing him cross-examined and the other witnesses, and must have been satisfied that the accused's confession was true.
The appeal against conviction was heard on 23rd January by the Court of Criminal Appeal, presided over by the Lord Chief Justice. The judgment of the court was short, and I should like to read it to the House. The Lord Chief Justice said:This is an appeal by the appellant from his conviction of capital murder at Stafford Assizes. The Court has considered the matter with care, and at the hearing Mr. Northcote, appearing for the appellant, has very fairly and frankly said that he and those advising the prisoner have come to the conclusion that there is no point of substance which can be put forward in this case. In those circumstances, the appeal is dismissed.That was on 23rd January. On 5th February, the Observer published an article, to which the hon. Member for Birmingham, Ladywood (Mr. V. Yates) referred and which the hon. Member for Nelson and Colne must have read because many of his observations—
§ Mr. S. Silverman
The Home Secretary will confirm to the right hon. and learned Gentleman if he asks him that I wrote to him a letter about this case a week before the Observer article appeared.
§ The Attorney-General
I was only saying that I feel sure that the hon. Gentleman must have read this article, because many of the points made by him are exactly the same points that were made in this article. The article began by casting doubt on Riley's confession, and doubt was cast on it by the hon. Gentleman in the course of his speech today. He said that it was uncorroborated by any piece of evidence and that there was not one scrap of objective evidence against Riley. In relation to this confession, the Observer said:Was he "—that is, Riley—however, in fact subject to suggestion? He may have been.I should like to say that there was no dispute that Riley's confession was written out by him and signed by him. There was no dispute at any time that parts of it were true. It was at his trial that Riley said that the parts that incriminated him were not, and one of the facts which 1826 the article did not bring out was that Riley in the course of his trial admitted that before he wrote his confession the words of the caution were read out to him.
I should like to read a few short passages from the record of evidence. Riley is being cross-examined. The first question is:You are a grown man; did you think if you made this statement admitting you went into the house and struck this old lady down that you would be allowed to leave the police station and go away?—A.: Well, I didn't think. All I thought was if I made a statement like that they would just leave me alone.Q.: They had not threatened you at all?—A.: They had not been threatening me.
Q.: They had been kind?—A.: They were treating me kindly, but they just would not let me go out.
Q.: But to enable yourself, to let yourself be got out, you were willing to make a statement. which according to your evidence is utterly untrue, but which incriminates yourself; seriously, is that what you are saying?—A.: Yes."
Then, he was asked:The whole of that actual statement is in your own handwriting, isn't it?—A.: Yes.Q.: You were sat down at the desk, you were given the form and a pen to write with? —A: Yes.
Q.: You were allowed to write what you wanted to, weren't you?—A.: Yes.
Q.: In fact, part of the way through you asked to have some tea sent in?—A.: Yes.
Q.: And it was sent in?—A.: When Inspector Brumpton spoke to me about the statement, I then asked for a cup of tea.
Q.: And then towards the end of the statement you said, 'I suppose it is no use putting an apology here, is it? '; do you remember saying that?—A. Yes.
Q.: And Brumpton said, You put on there what you like '?—A.: Yes.
MR. JUSTICE BARRY: That is right, is it?—A.: Yes, I remember that."
That is the evidence of Riley on that matter. I am reading it because I think it right to do so, in view of the suggestion—
§ The Attorney-General
I thought it right to do that in view of the suggestion that he was in some way induced 1827 by Inspector Brumpton to make the statement in his own handwriting. I know that he was in the police station for some time. [HON. MEMBERS: "For seven hours."] It was less than that. Inspector Brumpton was not there in the afternoon. He came back because he heard that Riley wanted to make a further statement, and that statement was written down in those circumstances.
There is another matter to which the hon. Member for Nelson and Colne referred and to which I feel I must also refer, because it is a very serious charge. It is really a charge against the police of the deliberate suppression of pieces of vital evidence in a capital murder charge.
§ The Attorney-General
I want to deal with that charge. It is the same charge as was made in the Observer, namely, that two large pieces of wallpaper had been taken down from the staircase; that they were missing and—so the hon. Member said—that nobody has seen those pieces of wallpaper since. The Observer went on to say that they were missing because they did not fit in with the police theory of the crime. That is a very serious charge in any case, and a particularly serious one in a capital murder case.
The facts were not like that at all. They were that one piece of wallpaper was taken from the staircase and another from the bedroom in which the lady died. The piece taken from the staircase was sent off for examination to see if the blood group could be ascertained, but there was not sufficient blood on it to permit of identification. That piece of wallpaper, together with the other, was present at the magistrates' court but, inadvertently, it was not put in as an exhibit. There was a reference to it at the assize court, and I understand that the defence knew all about it. It had no relevance whatsoever, because it was not possible to find out the blood group of the blood stain on it.
Despite that, it has been thought right to make this serious charge of the suppression of vital evidence by the police. It is no more than my duty to bring to the attention of the House the facts in relation to that matter, which do not 1828 in the least degree warrant a charge of that nature being made against the police.
§ Mr. Fletcher
It is most valuable for the Attorney-General to state that it is part of the duty of the police to adduce any pieces of evidence, or any facts in their possession, which are favourable to the accused.
§ The Attorney-General
I did not put it in quite that way. The rule is to give the names of any witnesses and to produce any material evidence. This was not material evidence. I have explained why it was not put in as an exhibit. If it had been put in it would not have told either way. I am told that at the trial the defence was informed of its existence, and it is available now. I do not know where the hon. Member got his information, but he was clearly wrong when he said that nobody has seen those pieces of wallpaper since.
§ Mr. S. Silverman
Does the Attorney-General say that those two pieces of wallpaper are now in existence.
§ The Attorney-General
Yes. The piece from the bedroom was made an exhibit. It is in existence, unless the exhibits have already been destroyed. I do not think that they have.
I could give other instances of criticism of the article that appeared in the newspaper, and there is one more that I ought to mention, because the hon. Member raised it. It concerns the conversation which took place between Riley and Inspector Brumpton on the way to the magistrates' court. It is alleged that the Inspector said, "Where did you put the handbag?" The Inspector has been asked about that, and he not only says that he has no recollection of saying anything of the sort; he simply does not see how he could have said anything of the sort because, after Riley's arrest and before he was taken to the magistrates' court, the police had found the handbag in its normal place, in the lady's bedroom, untouched. It is inconceivable that he could have asked that question. That is 1829 the kind of thing which gets published and gives a false impression both of the character and conduct of the police and the administration of justice in our country.
I am sure that if the hon. Member had had the opportunity of examining the transcript he would have qualified many of his statements. I am not seeking to criticise him. I know that in the absence of a transcript it is easy to become inaccurate. But if he had seen the transcript I know that he would say that the case was different from what it appeared to be from the newspaper article. Having read the transcript, I can feel no ground for anxiety about the conclusion reached by the jury. I feel that the Court of Criminal Appeal was right when it said that there was no point of substance which could be put forward in relation to this case.
§ 6.57 p.m.
§ Mr. G. R. Mitchison (Kettering)
I must apologise to the House. Owing to a misunderstanding on my part, I did not rise as I had intended to do before the right hon. and learned Gentleman the Attorney-General spoke. My only consolation is that, as when Jonah spoke outside the walls of Nineveh there were two voices, one—if I remember rightly —a great and thunderous voice, and after that a still, small voice, so, in this case, the still small voice is mine, following that of the right hon. and learned Gentleman. I do not wish to discuss the case, nor shall I say anything about the more general matters involved, except that I wish fervently to see capital punishment abolished. I believe that to be the view of the great majority of my right hon. and hon. Friends.
We do not regard the Motion as involving any difference of party politics, or anything of that sort. Therefore, if my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) calls a Division we shall not put the Whips on. We regard this as a matter for personal judgment.
Having said that, I want to turn back to the Motion and the Amendment. They raise a comparatively narrow, but very important, point. The Motion asserts categorically, Mr. Speaker, that your Ruling was something to dissent from; that it wasnot in accordance with the precedents and practice of this House and imposes new, 1830 unnecessary and undesirable limitations on the ability of hon. Members to discharge their public duties.I thank my hon. Friend the Member for Nelson and Colne for having been persistent in this matter. He raised it and made a speech with that deep sincerity on questions of this sort which we all know him to have—and made it, moreover, in an interesting and very thorough fashion.
I have looked at the precedents. I do not agree with the conclusion which my hon. Friend wishes us to accept. There can be no doubt, save in so far as any doubt is introduced by the matter of an inquiry. It seems to me that the substance of the question is this. Under our Constitution we leave it to the Home Secretary, and to the Home Secretary alone, to review the whole evidence and other matters which have not been put in evidence but which are relevant to the question of mercy. He does not act, cannot act, and ought not to act, as a further court of appeal. He exercises the functions of mercy and not the functions of justice, and that body, which has been occasionally overlooked by some speakers, the Court of Criminal Appeal, is the last word, subject to cases of appeal to the House of Lords, on questions of justice.
The right hon. Gentleman is called on, therefore, on the question of mercy, and it is equally our Constitution that in exercising his duty in that matter—and a very difficult, arduous, and trying duty it must surely be—he is not to be troubled by pressure from outside more than is inevitable, and certainly no new channel ought to be opened for pressure of that kind.
After all, a demand for an inquiry made in the publicity and the circumstances of this place is a form of pressure, just as is the asking of a Question or the moving of a Motion or something of that sort. All those latter things are, undoubtedly, on every precedent, inadmissible. I therefore conclude, on the principle of the matter, that there can be no doubt that the form in which this matter was raised is not sufficient to take it out of the ambit of the precedents.
I turn for a moment to the question of the merits which, I think, is raised by the Government Amendment. confine myself to the position of the 1831 Home Secretary. If I put a simple question, it seems to me to be a vital one. We have at present this method of exercising on behalf of the Crown, and, therefore, in effect, of the whole community, the duty of mercy where it is appropriate to exercise it. We leave it to a single high officer of State. We leave it to an officer of State who is, I believe, the oldest of the officers of State, or at any rate of the Secretaries of State in the country; a person who, whatever view we may have of him personally or politically, is holding an office of the highest distinction, one calling for very high qualities indeed.
We leave it to that one man, and not to anyone else. On a question of this sort even he would not claim infallibility. Surely from all that we have heard today one thing is perfectly plain, that if the ultimate verdict in cases of this kind is to be given by twelve Englishmen nobody would claim that they were always infallible either. Nobody who knows juries would claim anything of the sort, but it is the best way we have so far found of doing it. What I have been listening for during the course of the debate was a suggestion, as regards the Home Secretary, of some better way of doing it. I have not heard it.
I cannot believe that pressure in any form from this place would help a bit.
§ Mr. Michael Foot (Ebbw Vale)
Is not this an additional safeguard, the proposal that an hon. Member should have the chance before the fatal action is taken of proposing an inquiry in certain circumstances in this House which might lead to an additional protection against the fatal decision being made?
§ Mr. Mitchison
I cannot so regard it. It adds one further piece of machinery, and apparently whether or not that addition is to be made is to depend on the actions of hon. Members in this House. I cannot think that we are the right body for that sort of purpose.
§ Mr. Mitchison
My hon. Friend must allow me to answer one question before he comes charging in to ask another.
My hon. Friend the Member for Nelson and Colne and the hon. and learned Member for Epsom (Mr. 1832 Rawlinson) were quite clearly united on one thing, that this House is the worst possible place to try any sort of appeal, or to deal with this type of question.
§ Mr. Foot
I do not think Opt anybody was suggesting, certainly I was not, that the House should act as a court of trial, or retrial, or a court of appeal. What is being suggested is that the House might propose that an inquiry should take place before the decisive action occurred, an inquiry which would operate as some form of court of appeal and, no doubt, report to the House, but that is different from saying that whether a man is to be hanged is to be decided by the House.
§ Mr. Mitchison
I have already said, and I repeat, that I should like to see the abolition of capital punishment. My hon. Friend and I can agree on that.
If we are to have one form of procedure in one case, and another in another case, and it is to depend on whether a Motion is moved in the House, that seems to me to be complete confusion between the functions of justice and the functions of mercy in a matter of this kind. I must beg leave to differ from my hon. Friend. I assure him that many of my hon. Friends do not share his views on this question. Having said that, let us leave it there.
I mentioned that uniformity seems to be essential, and I mean uniformity of procedure. I do not mean uniformity of results. I do not think that, in general, it is a good plan to have inquiries in some cases and not in others. I would not regard the recent case in which there was an inquiry, the Evans case, as a very good justification for the practice of having inquiries. It is very much better to leave things as they stand. I therefore repeat that this is a matter which we on this side regard as one for personal judgment. Mr. Speaker, I do not think that your Ruling was wrong. I do not think that there is any room for improvement, at any rate that appeals to me, in the exercise of the function of mercy in these cases, and they are very peculiar cases.
It may be said that the right hon. Gentleman the Home Secretary is carrying out an Executive function but, whether it is called that or not, it is certainly a unique function, and is carried out in a unique way.
§ 7.10 p.m.
§ Mr. S. Silverman
I understand that I have the right of reply on the Amendment. If I exercise it, I can assure the House in advance that I do not intend to speak for more than a few minutes. The late Lord Morley once said that a man may say a thing once perhaps as he would have it said, but he cannot say it twice. So I do not want to review the debate or repeat anything which I have said before.
I want to say a word to the Attorney-General in view of the remarks he made about the Riley case which, I gladly concede, were made only in reply to remarks from myself and from other hon. Members who have taken part in the debate. One of his hon. and learned Friends said earlier that there could be no worse criminal tribunal than the House of Commons, and I think we all agree. But I wish—I hope that the right hon. and learned Gentleman will not mind me saying so—that the Attorney-General had remembered that in his references to the Riley case. He seemed to me to be not only inviting this House to try Riley again, but doing it a little uncandidly.
The issue before the jury at the trial was whether Riley's confession to the police was right, or whether his withdrawal of that confession before the jury was right. I suggest to the right hon. and learned Gentleman, with great respect, for his consideration, that if he is to refer to that matter at all, it is a little unfair to take out of their context a few passages from the cross-examination and tell us nothing whatever about what Riley said when he was giving his own evidence under examination by his own counsel. It really is a little unfair.
There was a question about the wallpaper. The right hon. and learned Gentleman tells us now what it would have shown, or what it did show. He has much more experience than I and he will know that if that paper had been made available to the defence at the right time they might have asked Professor Webster to examine it and he might have found other things than the prosecution found.
The right hon. and learned Gentleman made one other reference, to the Court of Appeal. He said we could be quite satisfied about it, because it was admitted before the 1834 Court of Criminal Appeal that in the appeal there was no point of substance. Of course there was not. The court of Criminal Appeal, as nobody knows better than the right hon. and learned Gentleman, is not a court of retrial. This is not quarter sessions. The Court of Criminal Appeal has no right whatever to interfere unless either the verdict was perverse, or there was some miscarriage or misdirection at the trial; and counsel for Riley quite properly admitted that in this case there was neither.
It was precisely because the points of doubt were not those which the Court of Criminal Appeal could consider that there was a case for an inquiry, and that is the point which I thought my hon. and learned Friend the Member for Kettering (Mr. Mitchison) failed to understand. Of course, it is perfectly clear that if we were entitled to put down Questions asking for inquiries in capital cases before execution, this could be abused. It could be used, as my hon. and learned Friend said, as a form of pressure on the Home Secretary in order to bias him in his consideration of whether to exercise the prerogative of mercy. That would be a very improper abuse of the right, and I am not saying that no Member of Parliament would ever do it. But I think that very few hon. Members would ever do it.
In the exercise or judgment of what are our rights and what is the practice of the House—I am sure that my hon. and learned Friend the Member for Kettering and other hon. Members will agree with me—we are entitled to rely on the integrity and responsibility of hon. Members. We are not always engaged in some kind of conspiracy to defeat our own rules. But because a thing can be abused is no reason for saying that it ought not to exist. There are occasions, obviously—
§ Mr. Mitchison
I must put myself right with my hon. Friend. I should hate him to have the impression that I doubted his integrity or responsibility, or, indeed, that of anyone else. But people do have different views about these matters.
§ Mr. Silverman
They do indeed. I concede to my hon. and learned Friend that if the right to ask for an inquiry were raised as a kind of engine of oppression in a surreptitious way, to get 1835 in order a Question about the prerogative of mercy which otherwise would be out of order, that would be wholly wrong. There is such a risk involved in my proposition, but it does not deal with my point that there are other cases where an inquiry as to whether a miscarriage of justice has occurred has nothing ultimately to do with the quite different question of what one ought to do with a convicted man once it has been established that there was no miscarriage of justice.
It is not only a question of formally exercising the prerogative of mercy. There was the Rowland case which I hope that the Home Secretary will bear in mind. That is the case where a man was convicted of murder, but where somebody else said that he did it. It went to the Court of Criminal Appeal and the court heard the evidence of Ware. Those who talk of the sacrosanctity of confession might bear that in mind. Ware confessed to the murder of which Rowland was convicted and for which, ultimately, he was hanged.
The Court of Criminal Appeal said that it could not decide this. It said that the Home Secretary had powers of his own. He could investigate. The Home Secretary of the day did set up a court of inquiry, just as the right hon. and learned Gentleman did in the Evans case and as did my right hon. Friend in the Rowland case. This was not to advise or help the Home Secretary about the prerogative of mercy but to determine whether Ware's confession was true or Rowland's denial was true, a different function.
The real question raised by the Ruling, which Mr. Speaker himself desired the House to answer, was whether a Question about such an inquiry is more like a Question relating to the prerogative of mercy or more like a Question relating to the grant of a fiat by the Attorney-General for a further appeal to the House of Lords. If it is the second, the rule does not cover it. If it is the first, the rule does cover it. I concede that this is not an easy question. My protest was only against those who think it is. It is a difficult question and Mr. Speaker invited the House of Commons to help him in deciding whether the view he took was right or wrong.
1836 That brings me to my difficulty about the Amendment. I am in a very great difficulty about the Amendment. If I may use a frivolous comparison, it is what a football referee would call offside. If I were to withdraw my Motion and accept the Amendment, and the Amendment became the substantive Motion, and was unanimously accepted by the House, what would be the result? The result would be that the question which Mr. Speaker wanted us to answer would be evaded and avoided, and he would get no answer; because we would then have decided what we already know, that where the prerogative of mercy is concerned we cannot have Questions until the execution is over. We know that. The question is whether that rule applies, or does not apply, to Questions about an inquiry into whether there has been a miscarriage of justice. The Amendment that has been put down looks as if it has been put down deliberately to avoid answering the question.
§ Sir Harmar Nicholls (Peterborough)
I wonder whether the hon. Member is correct in saying that Mr. Speaker asked this House to answer the question.
§ Mr. Silverman
If the hon. Member had come in at the beginning, instead of the end, of the debate, he would have heard all that fully explained. I do not want to take the time of other hon. Members telling him about it at this stage. That would be a little unfair.
The question would remain unanswered and the whole debate would have been wasted. We would have reaffirmed a rule which, whether we like it or not, is not being challenged in this debate. What is the good of having a debate, then? Everyone would say it was a useful debate, it was quite right to raise the matter, it was conducted very properly and, in the end, let us not answer it. That is the Amendment. Suppose we divide on the Question. Are we any better off? Is this the kind of question which can be resolved by the arithmetic of the Lobbies with the Whips on? There are no Whips on this side of the House, but they are on the other side of the House, or are they not?
This is not an easy question. If I am in order, before I sit down I should like to make this proposal to the right hon. Gentleman. I should be prepared to 1837 withdraw my Motion and let his Amendment fall with my Motion if he will agree with me that we have reached a stage now when no harm could be done if we had another look at the whole matter in order that it could be done quietly, not with Whips, not with Divisions, not with excited or unexcited debate, but a calm, patient, judicial inquiry such as could be conducted by a Committee appointed by Mr. Speaker, or a Select Committee appointed by the House to look at the whole matter.
Maybe we would reaffirm the whole position as the Home Secretary would like it. Maybe amendments or qualifications would suggest themselves. Does not the right hon. Gentleman think that this would be a more profitable way of dealing with the matter after the debate than for us to rush into the Division Lobbies, declare the result and then go away leaving all our problems unresolved? Before making any decision about it, I am sure that the House will give the right hon. Gentleman leave to indicate, if he will tell us, what is his attitude to the proposal I have made to him.
§ 7.23 p.m.
§ Mr. R. A. Butler
1 speak again with the permission of the House. The hon. Member for Nelson and Colne (Mr. S. Silverman) mentioned this idea to me and I have had the opportunity of consulting my right hon. and hon. Friends.
§ We can see the motive of the hon. Member in wishing to get this matter settled in a way he would think suitable, but on examination of his proposal we infinitely prefer our Amendment to be accepted by the House. We think that our Amendment carries on the tradition of the House in a way that has been accepted on this side and by hon. Members opposite and by many who have spoken in the debate.
§ Therefore, while I appreciate the spirit in which the hon. Member has put forward the suggestion, I must ask that our Amendment should be accepted. I hope still that a Division will not be necessary and that the Amendment may be accepted by the House. Nevertheless, we would like the Question to be put.
§ Mr. S. Silverman
I must say, in response to that, that the Home Secretary, by his intervention, has made a Division on both Questions inevitable. He knows as well as I do that the Division will be meaningless and that nothing will be decided by it. What he obviously wishes to do is to avoid putting his decisions to the test of any judicial or quasi-judicial inquiry and I hope that the House will draw the inference from that.
§ Question put, That the words proposed to be left out stand part of the Question:
§ The House divided: Ayes 60, Noes 253.1839
|Division No. 56.]||AYES||[7.25 p.m.|
|Allaun, Frank (Salford, E.)||Grimond, J.||Pearson, Arthur (Pontypridd)|
|Awbery, Stan||Hart, Mrs. Judith||Plummer, Sir Leslie|
|Beaney, Alan||Hughes, Cledwyn (Anglesey)||Proctor, W. T.|
|Bowles, Frank||Hughes, Emrys (S. Ayrshire)||Roberts, Albert (Normanton)|
|Brockway, A. Fenner||Jenkins, Roy (Stechford)||Shinwell, Rt. Hon. E.|
|Butler, Herbert (Hackney, C.)||Jones, Dan (Burnley)||Short, Edward|
|Butler, Mrs. Joyce (Wood Green)||Kelley, Richard||Silverman, Julius (Aston)|
|Castle, Mrs. Barbara||Lee, Miss Jennie (Cannock)||Silverman, Sydney (Nelson)|
|Craddock, George (Bradford, S.)||Lewis, Arthur (West Ham, N.)||Skeffington, Arthur|
|Cronin, John||Loughlin, Charles||Spriggs, Leslie|
|Davies,Rt.Hn.Clement(Montgomery)||Mallalieu. J.P.W.(Huddersfield,E.)||Swain, Thomas|
|Davies, Harold (Leek)||Mellish, R. J.||Swingler, Stephen|
|Davies, S. O. (Merthyr)||Mendelson, J. J.||Symonds, J. B.|
|de Freitas, Geoffrey||Moody, A. S.||Taylor, Bernard (Mansfield)|
|Dodds, Norman||Oram, A. E.||Thorpe, Jeremy|
|Driberg, Tom||Oswald, Thomas||Warbey, William|
|Edwards, Robert (Bilston)||Paget, R. T.||Williams, Li. (Abertillery)|
|Fernyhough, E.||Pannell, Charles (Leeds, W.)||Zilliacus, K.|
|Finch, Harold||Parker, John (Dagenham)|
|Forman, J. C.||Parkin, B. T. (Paddington, N.)||TELLERS FOR THE AYES|
|Galpern, Sir Myer||Pavltt, Laurence||Mr. V. Yates and Mr. Foot.|
|Agnew, Sir Peter||Barber, Anthony||Beamish, Col. Sir Tufton|
|Aitken, W. T||Barlow, Sir John||Bell, Ronald|
|Allan, Robert (Paddington, S.)||Barter, John||Berkeley, Humphry|
|Ashton, Sir Hubert||Ratsford, Brian||Bevins, Rt. Hon. Reginald (Toxteth)|
|Atkins, Humphrey||Baxter, Sir Beverley (Southgate)||Biggs-Davison, John|
|Bishop, F. P.||Hay, John||Pearson, Frank (Clitheroe)|
|Black, Sir Cyril||Heald, Rt. Hon. Sir Lionel||Percival, Ian|
|Brooman-White, R.||Heath, Rt. Hon. Edward||Peyton, John|
|Bourne-Arton, A.||Henderson, John (Cathcart)||Pitman, I.J.|
|Bowen, Roderic (Cardigan)||Hicks Beach, Maj. W.||Pitt, Miss Edith|
|Box, Donald||Hiley, Joseph||Pott, Percivall|
|Boyd-Carpenter, Rt. Hon. John||Hill, Dr. Rt. Hon. Charles (Luton)||Powell, Rt. Hon. J. Enoch|
|Boyle, Sir Edward||Hill, Mrs. Eveline (Wythenshawe)||Price, David (Eastleigh)|
|Braine, Bernard||Hill, J. E. B. (S. Norfolk)||Price, H. A. (Lewisham, W.)|
|Brewis, John||Hinchingbrooke, Viscount||Prior, J. M. L.|
|Brooke, Rt. Hon. Henry||Hirst, Geoffrey||Prior-Palmer, Brig. Sir Otho|
|Bossom, Clive||Hobson, John||Profumo, Rt. Hon. John|
|Browne, Percy (Torrington)||Hocking, Phlllp N.||Proudfoot, Wilfred|
|Bryan, Paul||Holland, Phlllp||Quennell, Miss J. M.|
|Bullard, Denys||Hollingworth, John||Ramsden, James|
|Butler, Rt.Hn.R.A.(Saffron Walden)||Holman, Percy||Rawlinson, Peter|
|Campbell, Sir David (Belfast, S.)||Holt, Arthur||Redmayne, Rt. Hon. Martin|
|Campbell, Gordon (Moray & Nairn)||Hope, Rt. Hon. Lord John||Rees, Hugh|
|Carr, Compton (Barons Court)||Hopkins, Alan||Rees-Davies, W. R.|
|Carr, Robert (Mitcham)||Hornby, R. P.||Renton, David|
|Channon, H. p. G.||Hughes Hallett, Vice-Admiral John||Rhodes, H.|
|Chataway, Christopher||Hughes-Young, Michael||Ridley, Hon. Nicholas|
|Clark, Henry (Antrim, N.)||Hulbert, Sir Norman||Rodgers, John (Sevenoaks)|
|Clark, William (Nottingham, S.)||Hurd, Sir Anthony||Roots, William|
|Cleaver, Leonard||Hutchison, Michael Clark||Ropner, Col. Sir Leonard|
|Cole, Norman||Iremonger, T. L.||Russell, Ronald|
|Cooper, A. E.||Irvine, Bryant Godman (Rye)||Sandy', Rt. Hon. Duncan|
|Cordeaux, Lt.-Cot. J. K.||James, David||Scott-Hopkins, James|
|Cordle, John||Jenkins, Robert (Dulwich)||Seymour, Leslie|
|Corfield, F. V.||Jennings, J. C.||Sharples, Richard|
|Costain, A. P.||Johnson, Dr. Donald (Carlisle)||Shaw, M.|
|Coulson, J. M.||Johnson, Eric (Blackley)||Simon, Rt. Hon. Sir Jocelyn|
|Courtney, Cdr. Anthony||Johnson Smith, Geoffrey||Smithers, Peter|
|Craddock, Sir Beresford||Joseph, Sir Keith||Speir, Rupert|
|Critchley, Julian||Kerby, Capt. Henry||Stevens, Geoffrey|
|Crosthwalte-Eyre, Col. O. E.||Kershaw, Anthony||Steward, Harold (Stockport, S.)|
|Crowder, F. P.||Kimball, Marcus||Stodart, J. A.|
|Cunningham, Knox||Kitson, Timothy||Storey, Sir Samuel|
|Curran, Charles||Lagden, Godfrey||Studholme, sir Henry|
|Dalkeith, Earl of||Leather, E. H. C.||Summers, Sir Spencer (Aylesbury)|
|Dance, James||Leavey, J. A.||Sumner, Donald (Orpington)|
|Deedes, W. F.||Legge-Bourke, Sir Harry||Tapsell, Peter|
|Digby, Simon Wingfield||Lindsay, Martin||Taylor, Edwin (Bolton, E.)|
|Donaldson, Cmdr. C. E. M.||Linstead, Sir Hugh||Taylor, W. J. (Bradford, N.)|
|Doughty, Charles||Longbottom, Charles||Teeling, William|
|Drayson, G. B.||Loveys, Waiter H.||Temple, John M.|
|du Cann, Edward||Low, Rt. Hon. Sir Toby||Thatcher, Mrs. Margaret|
|Duncan, Sir James||Lucas-Tooth, Sir Hugh||Thomas, Leslie (Canterbury)|
|Eccles, Rt. Hon. Sir David||McAdden, Stephen||Thomas, Peter (Conway)|
|Ede, Rt. Hon. C.||MacArthur, Ian||Thompson, Richard (Croydon, S.)|
|Eden, John||McLaren, Martin||Thornton, Ernest|
|Elliot, Capt. Walter (Carshalton)||Maclay, Rt. Hon. John||Tilney, John (Wavertree)|
|Emmet, Hon. Mrs. Evelyn||MacLeod. John (Ross & Cromarty)||Turner, Colin|
|Farey-Jones, F. W.||Macmillan,Rt.Hn.Harold(Bromley)||Turton, Rt. Hon. R. H.|
|Finlay, Graeme||Macpherson, Niall (Dumfries)||Tweedsmuir, Lady|
|Fisher, Nigel||Madden, Martin||van Straubenzee, W. R.|
|Fraser, Ian (Plymouth, Sutton)||Maitland, Sir John||Vane, W. M. F.|
|Freeth, Denzil||Manningham-Buller, Rt. Hn. Sir R.||Vaughan-Morgan, Sir John|
|Galbraith, Hon. T. G. D.||Markham, Major Sir Frank||Vosper, Rt. Hon. Dennis|
|Gammans, Lady||Marshall, Douglas||Wade, Donald|
|Gardner, Edward||Marten, Nell||Wakefield, Edward (Derbyshire, W.)|
|Gibson-Watt, David||Mathew, Robert (Honiton)||Wakefield, Sir Wavell (St. M'lebone)|
|Glover, Sir Douglas||Matthews, Gordon (Meriden)||Wall, Patrick|
|Glyn, Sir Richard (Dorset, N.)||Maxwell-Hyslop, R. J.||Ward, Dame Irene|
|Gooch, E. G.||Maydon, Lt-Cmdr. S. L. C.||Webster, David|
|Goodhart, Philip||Mills, Stratton||Wells, John (Maidstone)|
|Goodhew, Victor||Montgomery, Fergus||Wells, Percy (Faversham)|
|Gower, Raymond||More, Jasper (Ludlow)||Whitelaw, William|
|Green, Alan||Mott-Radclyffe, Sir Charles||Williams, Dudley (Exeter)|
|Grimston, Sir Robert||Naharro, Gerald||Wills, Sir Gerald (Bridgwater)|
|Grosvenor, Lt.-Col. R. G.||Neave, Airey||Wilson, Geoffrey (Truro)|
|Gurden, Harold||Nicholls, Sir Harmar||Wolrige-Gordon, Patrick|
|Hamilton, Michael (Wellingborough)||Nicholson, Sir Godfrey||Woodnutt, Mark|
|Harris, Frederic (Croydon, N.W.)||Noble, Michael||Woollam, John|
|Harris, Reader (Heston)||Nugent, Sir Richard||Worsley, Marcus|
|Harrison, Brian (Maldon)||Oakshott, Sir Hendrie|
|Harvey, Sir Arthur Vera (Macclesf'd)||Osborn, John (Hallam)||TELLER FOR THE NOES:|
|Harvey, John (Walthamstow, E.)||Osborne, Cyril (Louth)||Colonel J. H. Harrison and|
|Harvie Anderson, Miss||Page, John (Harrow, West)||Mr. Peel.|
|Hastings, Stephen||Partridge, E.|
§ Proposed words there added.
§ Main Question, as amended, put and agreed to.
That this House upholds the well-established rule under which in any case involving a capital sentence the circumstances on which the exercise of the prerogative of mercy depends should not be made the subject of question or discussion in this House while the sentence is pending.