HC Deb 05 May 1965 vol 711 cc1280-327

Amendment moved [28th April], In page 1, line 7, leave out "sentenced" and insert: liable at the discretion of the court."—[Sir J. Hobson.]

Sir J. Hobson

At our last sitting we were discussing Amendment No. 9 together with Amendment No. 13, which proposes to insert a new subsection (2). I was giving my reasons for preferring Amendment No. 9. This is a question which involves the liberty of the subject. I said that I preferred sentences to be passed by the judiciary and not at the discretion of the Executive, but that if it was thought necessary there should be some executive control over the length of time which convicted murderers stayed in prison perhaps Amendment No. 13 was an alternative, although, in my view, less satisfactory than Amendment No. 9. Amendment No. 13 would allow the public to know and understand what the judiciary thought was the proper length of sentence, though reserving to the Home Secretary the final decision about how long a convicted murderer should remain in custody. But he would have to declare, and it would be known, whether he was releasing the convicted murderer at an earlier or later time than the judge who had tried the case had recommended.

The only argument which I have been able to see as to why there should not be a sentence by the judiciary is that it may be said that a prisoner may develop in the course of his sentence, particularly a long sentence, after a conviction for murder, and that at the time a judge sentences a man he cannot possibly tell what the position will be many years later when the time comes for his release if a determinate sentence has been passed. This is the same for every criminal offence other than murder, or for a sentence of borstal or for life imprisonment under the present law. Surely we have reduced the crime of murder very much in the calendar and it has become simply one other of the criminal offences, many of them grave and many of them with dire consequences. In those circumstances, I do not see why the sentence for murder should not be treated in the same way as the sentence for any other serious offence.

Nor do I believe that we can tell from the conduct of a man in prison what are the prospects of his behaving well or of his being safe for release when he gets out into the world again. The Committee will perhaps remember that the Home Secretary's Advisory Committee on the Treatment of Offenders examined the position of preventive detention and, in particular, examined the circumstances in which there was a board which had power to recommend additional remissions of sentence for those who were thought more likely to be safe for release at an earlier dale than if they served their full time. If one went before the board and pursuaded them that one was a person who behaved oneself and who was likely to improve on release, one could be granted substantially more than the ordinary remission. It made a substantial difference; if they succeeded in persuading the board that they were persons with good prospects of having improved their conduct, some men were released a year or two years earlier than would otherwise have been the case.

But I do not think that the figures ever showed that the board succeeded in disentangling those who on release behaved better than those who had not had the privilege of early release. Indeed, I do not believe that the conduct of the people in prison is any indication of how they will behave outside prison. Those prisoners who resign all their individuality, who are very polite to the warders on every occasion, who make use of the library, who touch their hats to the governor and who never say a cross word to anybody have resigned all individuality and all attempts at self-responsibility. The prisoner who occasionally shows his distaste for his fellow men and the situation in which he finds himself, who is a great nuisance to the warders, and who gets a black mark, is nevertheless often best able to stand on his own feet.

Therefore, any idea that the Home Secretary or a board or anything else will be able to judge by the creepy-crawly behaviour of people in prison whether they will be satisfactory on release is a complete misconception. I do not believe that, in the generality of cases, one can draw a distinction between those who can safely be released early and those who cannot. There may be a few exceptional cases of men who, for mental reasons, appear to be unsafe for release, and in those circumstances no doubt they can be sent to a mental institution. It may be plain because of their mental condition that they are unsafe and that they should be treated as mental cases. But short of that, in the vast majority of cases I believe that it is impossible to distinguish between those who will behave well when released and those who will not.

If we place a group of men in a situation in which their release depends on the discretion of someone else and they do not know when it will come about, those who succeed in getting out early will cause the most intense jealousy, disappointment and bitterness among those who are not released. One of the most terrible things I ever saw was when four men went before the board under the provisions of preventive detention. Two succeeded in getting early release and two did not. The two who failed suffered a major human disaster in the fact that they had failed to secure release when the other two were being released. It will create a great problem in prison if some body, of whatever nature it may be, is to distinguish between one group of men and another group of men and to say that some should be released earlier than others. Such a situation creates a great sense of injustice.

10.45 a.m.

If the judges are passing sentence at least the public in general know what is happening. While some may feel that they are being more harshly treated than others on sentence, at least we respect the attempts at independence of the judges in administering fairly the law between men and men.

I am, therefore, pleading that we should not remit, as we shall if the Bill remains unamended, the whole of the power over men convicted of murder to the Home Secretary to release them when he pleases, on his judgment. There is a later Amendment dealing with the position about release, when we can look forward to the end of the period. It may be that there should be some machinery—I have doubts about it—by which sentences can be reviewed after five, eight or 10 years and every two years thereafter by some body, be it judicial or executive. But that is quite a different question as to who should pass sentence and in what form at the beginning of the sentence. Under the Bill it is purely a nominal sentence by the judiciary and a discretion in the Home Secretary. I submit that that is wrong and that we ought to treat murderers, now that the capital sentence has been abolished, in the same way as any other convicted man.

Mr. W. F. Deedes (Ashford)

This group of Amendments, the first of which has been very impressively moved by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson), presents certain difficulties to those of us who do not practise the law —much more than some of the earlier Amendments to the Bill. Even so, the layman can grasp that the Amendments raise two very serious issues. First, if hanging ends, what should be the alternative deterrent; secondly, how should the responsibility for that deterrent be shared between the executive and the judiciary?

On the first issue, I am not one who seeks a fearful alternative to hanging—who seeks, in the Home Secretary's words, a barbarous alternative. I have never been strongly attracted to a huge minimum sentence prescribed by law. It is quite unrealistic to attempt it. It seems to me quite contrary to the direction in which I think we should move when considering the responsibility of the judiciary. Moreover, it seems to me equally illogical that the sentence for the capital murderer must always be longer than in any other case simply because we have now demoted capital murder from suffering the supreme penalty.

In reality, we know that this is no longer practicable. It has been put out of question first by the sentences passed in 1961 on two spies of 25 and 42 years respectively and later by the sentences, with which the Committee is familiar, on the mail train robbers. Lawyers will judge this better than I can but I think that these will probably not be the last sentences of this kind. There may be exceptional occasions on which the judiciary will wish to pass exemplary sentences of this sort. My right hon. and learned Friend the Member for Warwick and Leamington illustrated in his earlier remarks, which I have read, their use in the past. Therefore, to insist that in future any sentence for capital murder must invariably go one better than exceptionally long sentences would be absurd.

What does not seem to be absurd but seams to me a necessity is that the the judiciary should be able, if they think fit, to pass such an exemplary sentence for a capital murder, and especially if a particularly heinous murder has been committed. Then I think the judiciary should be in a position to inflict a sentence which reflects the heinousness of that murder, and such a sentence could be seen not merely as a form of words, a formula, but as realistic.

I put it bluntly. I am quite ready to see passed over to the judiciary an alternative deterrent if hanging goes, and I think it would be wrong of this Committee to attempt to predetermine in this Bill what the maximum or minimum should be, but I am not prepared to see this responsibility assumed by the Home Secretary. That is my central point on these Amendments. I am sure it would be wrong, and any Members of the Committee who have doubts on this subject should study the words which my right hon. and learned Friend used on the last occasion, which certainly removed any doubt which I retained, that the deterrent should now lie at the discretion of the judiciary and not the Home Secretary; but I go on to say that I think it lies with the Home Secretary to show us why that should not be so, rather than the other way round. If this Bill is passed why should the punishment for murder henceforth remain in effect an indeterminate sentence? What special justification will remain, if this Bill is passed, for giving the Home Secretary a sphere of responsibility which he does not exactly exercise in any other field? The onus is on the Home Secretary to show why that should be so rather than on us to show that it should be the other way round.

In reality, if the judiciary are empowered to determine sentences, the Home Secretary loses no important safeguard which he exercises now. With any sentence of more than 10 years he is entitled, as I understand it, to order release on the grounds of the prisoner's health. With any sentence above 10 years the responsibility lies with the executive to review, and to exercise the Prerogative. So long as hanging remains, which involves a special exercise of the Prerogative, then I can see the need for a special relationship, as it were, between the Home Secretary and life sentence, a life sentence imposed as an alternative, but what special relationship remains if the Bill becomes law?

Surely, the rightful place of sentence for capital murder then belongs to the hierarchy of long sentences, which remain, and must remain, the responsibility of the judiciary. How can it be separated and justly arrived at by an executive who are not part of the judicial process? We depend for the general run of life sentences upon the collective opinion, the collective judgment, of the judiciary with their wide experience of long sentences for the worst kind of crimes. That is a very different thing. I would not assert that it is better or worse, but it is a very different thing from the personal views of the Home Secretary.

The right hon. and learned Gentleman has been very frank with both the House and the Committee about his personal views. He gave them fully on Second Reading and he has rehearsed them since, but they still remain and must remain—I am sure he will accept this—personal views. They may or they may not reflect the views of his predecessors, and, what is more important, his successors. They are personal views which could be changed at any time in the future. That is what we have to consider. They may, in fact, be at variance with the views of the judiciary. I as a layman have no right to say that the risk of such variance would be strong, but it does exist.

As I understand it the judge has power to settle a maximum nominal sentence of 15 years which becomes 10 years in the end in respect of other kinds of crime. I must say, if I may, as the right hon. and learned Gentleman has already made known his views on this subject, that the logical consequence of what the right hon. and learned Gentleman said on Second Reading on the custody of long-term prisoners is that really he ought to be able to exercise his discretion on the terms of imprisonment served by all prisoners undergoing terms of imprisonment comparable to those terms actually served by murderers. In other words, if the most humane considerations will, as he has told us, guide him in deciding how long a man should remain in prison, why should that not equally apply to all long-term prisoners? What argument is there to be adduced in favour of murderers which cannot be adduced in favour of other and all long-term prisoners?

The Home Secretary, I think we all accept, is, in this respect, above political pressure, but he is not immune from it. That we have known from past experience. However, as my right hon. and learned Friend has pointed out, and as others had pointed out before the Bill came before us, the Home Secretary's reasons for his decision on the liberation of a murderer are and remain unknown.

The right hon. and learned Gentleman has told us that he will add to the existing practice under Section 27 of the Prison Act, 1952, of consulting the trial judge, as is now done for long sentences but not for life imprisonment. I think he has added the undertaking that he would seek a letter from the trial judge in the event of the trial judge not being available at the time when sentence comes up for reconsideration. This must, of course, remain a personal decision, and not permanent practice. I have no doubt that as long as the right hon. and learned Gentleman retains responsibility he will faithfully fulfil his undertaking, but he imposes no obligation on his successors, and one cannot think that this offers any safeguard for the future, and this can be of only limited duration. In any case, it does not alter the fact that he reaches his decision, as Lord Devlin has said, "by some rule of thumb which he does not publish and which he can change at any moment."

I can think of practical reasons why this discretion really ought to lie with the judiciary and not with politicians. The Home Secretary will certainly resist political pressure, but he cannot avoid being made subject to it, and it is known that he can be made subject to it. Suppose there were to occur—I pray there never will, but it could happen—a racial murder in this country, a murder which stirred profound public emotion inside and perhaps outside this country. As matters would stand under this Bill a life sentence would be passed by the judiciary. That is an indeterminate sentence, and the Home Secretary of the day could then find himself immediately under the strongest pressure, and there might, indeed, exist political reasons, outside his own sphere of responsibility, for reacting to such pressure one way or the other. This could, indeed, arise if the judiciary had passed a fixed sentence, but it would not arise in the same way, for it would clearly be seen where responsibility for the sentence lay, and that would be established.

11.0 a.m.

Finally, there is this point to be made. I think that as we reach the closing stages of the Bill Members of the Committee are under some obligation to see that we provide a strong, not brutal, but adequate deterrent to replace hanging. It seems to me abundantly clear that a fixed sentence delivered by a court in public, and publicly explained if necessary, must be far more effective than an indeterminate sentence privily terminated. The life sentence, which the world knows very well can be terminated without reason being offered by the Home Secretary, is not in my view an adequate deterrent.

It is not adequate because the weight of the life sentence is publicly assessed on the law of averages—the average length of a life sentence. This is admittedly a most misleading measurement. It is not one which we on this side of the Committee have used in the course of our debates, or at least we have not used it overmuch, but it is a measurement which will be applied, and the law of averages will suggest that life imprisonment comes relatively low in the scale of severe sentences, that it is a soft option, and that it must have a very considerable bearing on public opinion.

I think that it will affect the way in which murder comes to be regarded. The witness who told the Royal Commission that it was because men were hanged for murder that murder seemed to be such a terrible crime was not far off the mark, and I believe that only the judiciary sentencing publicly on the merits of each case can preserve public awareness of what a terrible crime it still can be.

Mr. Sydney Silverman (Nelson and Colne)

We are now considering a group of Amendments, and, as I understand it, Divisions will be allowed, if required, on three of them.

This category of Amendments is different from that with which the Committee has been concerned so far. So far we have been concerned with whether the general principle of the abolition of the death penalty shall be subject to any exceptions, and the Committee has decided in every case that it shall not be so subject.

I should like to say in passing that perhaps it has turned out to be a useful thing that the decision on these Amendments has been taken in a Committee of the whole House, and not in a small Standing Committee upstairs, because it has had the result of showing that the Committee has differed from all the Amendments and exceptions which have been moved, and has defeated them by substantial majorities, equivalent and comparable to the majority by which the House gave acceptance to the general principle on the Second Reading of the Bill.

We are now concerned with something else. If we have decided that the death penalty shall not be inflicted in any case of murder, it becomes vastly important what sentence shall take its place, and indeed in the course of the debate it has been indicated several times, and by more than one hon. Member, that the attitude taken by retentionists, or partial retentionists, might have been affected, might indeed have been changed, if the particular speaker had been satisfied that the alternative remedy proposed was adequate. For this reason it might have been more convenient if the rules of order had allowed this category of Amendments to be taken first, because then we might have been less troubled with some of the other Amendments. However, that was not possible, and we now have to consider the point at issue.

The first point that I should like to make about these Amendments, which have been very reasonably and persuasively argued, is that there seems to have been a radical or fundamental change of attitude on the part of those who would have liked, if they could have persuaded the Committee, to retain the death penalty. What has been the characteristic of English law throughout our history about the penalty for murder? It has surely been that murder is a crime apart, that it is so exceptional, so evil, so anti-social, that its treatment and its penalty are not to be assimilated as it were with the general criminal law. It has to be dealt with exceptionally because it is an exceptional crime.

It is that which led to one of the most objectionable things in the death penalty, namely, that it was automatic, that the court had no discretion, and where the jury returned a verdict of guilty of murder, the judge had no power whatever to consider the circumstances or the background. He had only to give effect to the jury's verdict and to the law of the land by passing a sentence of death.

The justification that was pleaded in defence of that irrational anomaly was that it was necessary because murder was an exceptional crime. What is now proposed by the retentionists is that it shall no longer be treated as an exceptional crime.

Mr. Mawby indicated dissent.

Mr. Silverman

The hon. Gentleman shakes his head, but if he reads Amendment No. 9 he will see that I am right. That Amendment says that the sentence shall not be fixed by law, that it shall be left to the discretion of the court, with a life sentence as the maximum. It is not automatic. If we accept the Amendment, murder will no longer be an exceptional crime. What has been argued in the course of defending these Amendments is that it should not be, and that the sentence should not be automatic because no other sentences are automatic.

If we accept Amendment No. 9, murder will be indistinguishable from manslaughter. The law about manslaughter is that the sentence is in the discretion of the court, with a maximum of life. Amendment No. 9 proposes that the penalty for murder shall be the same. This is surely a very strange attitude to be taken by people who have always said that murder is so exceptional a crime that the death sentence ought to be automatic for it.

This is not the proposal of the sponsors of the Bill. We still think, as we have always thought, that murder is an exceptional crime, to be exceptionally treated. No court ought to have a discretion to pass any sentence less than a life sentence where there is a conviction of murder. But then people will say, "Do you mean that? Do you mean that everyone who is convicted of murder shall spend every day of the rest of his natural life in gaol until he there dies?"

This has never been our law. A life sentence has never been literally interpreted at any time in the whole history of our country. A man who is subject to a life sentence is never, under our present law or practice, released—that is to say, he is never discharged from that sentence. He is always subject to it. He may be released on licence, but when he is he is subject to recall, and he may be subject to recall even though he does nothing wrong and commits no further crime. If, for any reason, the Home Secretary becomes satisfied that it is no longer right to leave him free he can cancel his licence, and should cancel his licence—and on appropriate occasions he has cancelled his licence.

The right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) said how wrong it was that the length of a man's sentence should be determined not by the court but by the personal discretion of the Home Secretary, arrived at in secret. That was a persuasive, appealing and attractive point. But how much more persuasive, appealing and attractive was it when what the Home Secretary had to determine, as a matter of his personal discretion, in secret, without argument and without appeal, was not how long such a prisoner was to remain in gaol but whether he should live or die?

I do not remember that the right hon. and learned Gentleman—who has always been in favour of retaining the death penalty, subject to the Royal Prerogative of mercy—was ever so eloquent about the personal right of one man to decide a question of life and death on his own responsibility, in secret, as he was last week about his right to do the same thing not in respect of life or death but whether or not to release a man on licence.

We have never interpreted a life sentence literally. As I understand the practice, neither has it ever been the arbitrary decision of one man. These are matters for the Home Secretary, and the sponsors of the Bill will be very ready to accept or not to accept any or all of these Amendments, according to the advice given by the Home Secretary. But, as I understand it, decisions relating to a life sentence and a release on licence have never been arbitrary ones.

In one form or another, all the Amendments ask that there shall be some judicial association with the decision when a man shall be released on licence, if he ever is. There is nothing new about that. In practice there has always been a judicial association with that decision. As I understand the statements made by various Home Secretaries from time to time, there has never been any intention to change it. What judicial association has there been? The Home Secretary of the day has always consulted the trial judge when the trial judge has still been available. He will continue to do so, and so he should.

11.15 a.m.

As I understand it, the Home Secretary has also always consulted the Lord Chief Justice, as head of that branch of the judiciary which is mainly responsible for the administration of the criminal law. I understand that he proposes still to do so, and so he should. None of the Amendments which the Committee is now considering proposes anything more than that. Every one of them, although providing that the court shall do this, or that, or the other, is careful to leave the Home Secretary's decision still valid.

What is proposed?—that what has always been the regular administrative practice shall become a formal practice.

Sir Kenneth Pickthorn (Carlton)

I ask this question not to be tiresome but because I am quite ignorant. The hon. Member has repeatedly said "always". What does he mean? When did the period begin? At what date did these practices become established, and how do we know that they have been continuous?

Mr. Silverman

I think that I know this because Home Secretaries have said it. Correspondence has been published. Statements have been made in Committee and in Second Reading debates. If there is still any doubt about it, my right hon. and learned Friend is still here and presumably will take part in the debate.

Sir K. Pickthorn

That is not an answer to the question that I put. What is the date from which the hon. Member is sure that the practice has been as he has stated it? What was the beginning date?

Mr. Silverman

I repeat what I have said, and if there is anything wrong with it the Home Secretary can put the matter right. At the moment, I ask the right hon. Gentleman to believe that what I have said is right. I have taken some care about it, and I do not want to be diverted from the general trend of my argument in order to go into details in debating a matter which, I am sure, would not be generally regarded by the Committee as necessary. What is being asked in these Amendments is that what has always been the practice, and what is intended to continue to be the practice, shall be made not an administrative practice but a formal statutory procedure.

I ask the Committee to consider what advantage would be gained by that. In the first place, while the discretion of the Home Secretary remains, it is subject to a fetter. There is a significant difference between consultation and a statutory recommendation made in court. There is no need for it, and the Home Secretary would not be bound by it; it would only make things more difficult. Let us suppose the suggestion were accepted that there should be a judicial recommendation of a minimum period of imprisonment—one of the more attractive suggestions that have been made. At the moment the Home Secretary is free never to release a man at all.

There are a number of cases where a man has not been released although he has been detained for more than 20 years. Suppose a court were to say that a man must be detained for a minimum period of—shall we say—15 years. The Home Secretary would be in great difficulty in keeping him in custody for more than 15 years after such a judicial recommendation. Yet in the course of time it might become perfectly clear that the man ought not to be released because it was not safe to release him. In many other cases if a court had directed that there must be—as one Amendment says—a period of 25 years, it is absolutely inevitable in practice that it would be an exception. If it were not, it would be absurd, because it would mean that in many, many cases which would cry aloud for mercy after a suitable period, the Home Secretary would not be allowed to release the person concerned until the passage of a quarter of a century, after which it would not be worth while from the point of view of anyone, including the prisoner, to release him at all.

I suggest to the Committee that on consideration it will be felt that there ought to be retained, first, the principle that murder is an exceptional crime and that there ought to be an automatic life sentence for it. There is no reason why we should depart from that principle, and certainly no reason why retentionists should wish to depart from it. Secondly, a life sentence should not now begin to be regarded as literally a life sentence since it never has been so regarded. Thirdly, there are two factors in determining the date on which a man might be released on licence, one of them capable of being determined by the trial judge—namely, the inherent wickedness of the crime—and the other not capable of being determined by the trial judge because it would depend on what happened to the man in the course of years. The discretion of the Home Secretary should be judicially exercised—not in the formal sense—by taking into account the opinion of the trial judge as to the inherent wickedness of the crime, and all other available information which he could obtain as to what became of the man and whether it would be reasonably safe to let him loose again. To substitute for that, years and years afterwards, some appeal to a court would surely be an unnecessarily cumbersome and difficult system to work and no improvement on the present system. Presumably, the appeal would be heard in public, and the prisoner would have the right to be represented. Possibly the Home Secretary would have the right to be represented. The police might have the right to be represented at this hearing to decide whether the time had come, not to release the man, because he would not be discharged from the sentence, but to allow him out on licence, on trial, subject to recall.

What hon. Members think about these things will be a matter for them. I am sure that they will listen with great care to what advice the Home Secretary has to offer. I see no advantage in the acceptance of any of these Amendments, and, unless the Home Secretary advises otherwise, the sponsors of the Bill advise the Committee not to accept them.

Sir Peter Rawlinson (Epsom)

In discussing this group of Amendments we have moved into an entirely different sphere from that relating to matters which we were discussing earlier. I was interested to hear the sponsor of the Bill pay tribute to the fact that the earlier Amendments had been discussed in a Committee of the whole House. We have now entered on what many may think is a discussion of the most important part of the Bill and the most important and responsible part of our deliberations in this Committee.

It is of some significance that one may look across at the benches opposite and see that the sponsor of the Bill—the hon. Member for Nelson and Colne (Mr. Sydney Silverman)—the right hon. and learned Gentleman the Home Secretary, two Ministers of State and the Government Whip are the only people sitting there, when we have to decide matters upon which a decision should be arrived at, surely, upon argument and not on preconceived notions. It is not a decision which should be taken upon what has been decided elsewhere at some other time. People who revere and respect this House may surely be a little surprised that, when we come to this argument which, however we may decide, is something of the gravest and greatest importance, we have only had a speech from the promoter of the Bill, setting out, with characteristic vigour and force, his opposition to this group of Amendments. It will be very strange indeed if anyone wanders in to take his place on the benches opposite, and resists these Amendments, or makes a speech not having listened to the debate so far. I have no doubt that my right hon. Friend the Member for Birmingham, Hands-worth (Sir E. Boyle) will speak against these Amendments, but he sits on this side of the Committee and has perhaps formed the view that it is best to leave this decision with the Home Office. In what way—

Sir Edward Boyle (Birmingham, Handsworth)

With respect I agree with what has been said by my right hon. and learned Friend. I think I am right in saying that 270 hon. Members of the party opposite voted for the Second Reading of this Bill and one hon. Member voted against it. It seems to me that slightly more than five Members of the party opposite might have been present for what is surely one of the most important group of Amendments that the Chair, in its wisdom, has selected.

Sir P. Rawlinson

I agree with my right hon. Friend and I appreciate his disappointment. This is a matter on which I thought the Committee would come to a decision after cross-voting and after different people had expressed the different ideas which they might have, but that is not to be.

This is a Bill to abolish capital punishment and make further provision for the punishment of persons convicted of murder. Hon. Members on this side of the Committee who have taken an interest in the Bill—and people outside—will note the entire absence of hon. Members on the benches opposite during this debate.

Sir Stephen McAdden (Southend, East)

On a point of order, Sir Samuel. In view of the cogent arguments of my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) who is an opponent of the Bill, and the intervention of my right hon. Friend the Member for Birmingham, Handsworth (Sir E. Boyle) who is a supporter of the Bill, would you now be prepared to accept a Closure Motion?

The Deputy-Chairman

I am not prepared to accept such a Motion now.

Sir P. Rawlinson

That point of order having been dealt with, I trust that we shall not have the usual spectacle of someone coming into the Chamber to move the Closure of this discussion as we have had happen with monotonous regularity on previous occasions when we have been given our "ration" of two-and-half hours of discussion on these important matters.

This group of Amendments is, perhaps, the most important and interesting in the whole of the proceedings on the Bill. Now, the unique penalty—save for what may happen upon Third Reading but assuming that the majority persist—will be abolished. So murder, the unique crime, will fit itself into the same scale as other offences which we, from time immemorial, have said shall be punished according to the discretion of the court. The court is given the discretion to make its decision, to weigh up how terrible was the crime and to assess the circumstances of the offender, after which it would make that decision. We singled out murder as a crime deserving a unique penalty which, by the provisions of the Bill, will now disappear. What, then, should this Committee decide to do, having taken that decision?

11.30 a.m.

Why should not murder be put into the scale of the other offences, leaving to the discretion of the court the right to be able to speak—as a court does—in the name of the community in sentencing a man to a term of imprisonment for the punishment of the offence which he has committed? The Home Secretary is to speak in this debate. I do not know whether he has come here with his mind already made up. I do not know whether he has come prepared with a decision. I do not know whether what we are saying is making any impression on or any headway with him. It may be that he has already decided. If he has not, I hope that he will consider the arguments which have been put before him by my right hon. and hon. Friends and remember that there are others who wish to speak. I hope that he will listen to them and not announce a decision here and now before the debate has been heard and this matter discussed. To public opinion outside, it seems right that when the judge at a trial comes to sentence, he should speak as the voice of the community, to condemn a man, perhaps to life or other imprisonment, for his act.

Surely we have not gone so far in our thinking, and have become so loose in our application of principle, that we shall never consider the position of society and look always only at the offender to see what can be done to change him. There should be the voice of the community, allowed to say, "This was a fearsome and terrible crime, and you shall suffer punishment for it". The community should be able to condemn. This is the task of the community. Hon. Gentleman opposite talk, in other political matters, about the community, about society and its voice. This is what the judge does when a man is convicted of a bestially and wickedly committed crime.

I would beg hon. Members—not those opposite because there are none, but those on this side of the House—to go to some courts to see the attitudes of some of those who appear in the dock. Nobody should be without compassion or pity for someone who has committed a crime. Nobody with any experience of the courts ever lacks that compassion or pity, but there are some scenes which stay in one's recollection of the attitude of a person who has committed that crime which calls for society to cut him down to size, to tell that person what society thinks of his conduct. We have now arrived at this new position, for the first time in the history of this country, that murder shall be treated in the same way as manslaughter, though probably as an aggravated form.

There are many degrees of murders, as we know. There is the kind of murder for which the sentence should be tempered with the greatest pity and com- passion and should be of the smallest duration. Why should not the judge be able to say, "You have committed this crime of murder, but this was a crime committed in such circumstances that it would not be right for society to keep you in prison for longer than six months."? Why should he even have to send the man to prison? Why should that not be left to his discretion too?

At the other end of the scale he should be able to say, in the name of society, "This is a terrible, wicked and evil crime and society will not tolerate this behaviour. You will therefore suffer 20 years' imprisonment." This is what public opinion is concerned about. This is what all the real worry over this Bill has been about. The real worry has been about whether the executive will be strong enough, or the officials who advise the Home Secretary wise enough, to be able to decide and to see that society needs protection, and, in certain circumstances, requires that people should be kept in prison for very long periods. If we do not give the judiciary in this case—as we do in others—the power to say that the punishment should mark the offence, why do it in any case? Is all sentencing to be in the hands of the faceless, anonymous men who make decisions and give advice? Surely that cannot be right. The public will not tolerate it.

If we are to move into this new and different era with regard to punishment of this offence, I suggest to the right hon. and learned Gentleman that he should see whether this is not the best course to adopt. He or a future Home Secretary can come back to the House and say, "This is not the right system. Let us change it." Surely, first and foremost, we should see that the judiciary have the power to mark out the crime. I wholeheartedly support these Amendments.

The Secretary of State for the Home Department (Sir Frank Soskice)

We have had speeches this morning on a new aspect of the Bill. We have had a reply, which I thought was notable, from the sponsor of the Bill, my hon. Friend the Member for Nelson and Colne (Mr. Sydney Silverman). While paying him tribute, with respect to his arguments—which I thought were most convincing and to which I would not wish to add a great deal—I would correct, if I may, one slight inaccuracy into which I think he fell, on the question of consultation with the judges.

As I stated during the Second Reading debate, I think quite correctly, if, in the case of a fixed sentence, the Home Secretary advises the Sovereign to exercise the Royal Prerogative of mercy, it has been, over a long time, the practice of the Home Secretary to seek consultation with the judges. This has also been the practice when the Home Secretary is deciding whether he should recommend to the Sovereign that the Royal Prerogative of mercy should be used to commute a death sentence to one of life imprisonment.

It has, however, not previously been the practice to consult the judges when the Home Secretary is considering whether to release on licence a person serving a life sentence, in the exercise of his powers under Section 27 of the Prison Act, 1952. When this Bill was being considered in the House, it seemed to me that there was force in the view which has been put forward that the views of the judges should be taken into account by the Home Secretary in exercising his power under that Section to release on licence.

That being so, I indicated to the House during the Second Reading debate that I proposed, after speaking to the Lord Chief Justice, to make it the practice—and I hope that the practice may commend itself to my successors—when I am deciding whether I shall exercise the power of release on licence under Section 27, to seek consultation with the trial judge, if he is available, and with the Lord Chief Justice.

I also intimated that it would be of the greatest assistance to me if the trial judge would be so good as to let me have a memorandum after he has completed the trial, bringing to my notice any special features which characterised the crime of murder for which that individual had been sentenced.

Sir J. Hobson

Up to now the practice has never been to consult the Lord Chief Justice. Is the position now to be that, in addition to the trial judge, the Lord Chief Justice will be consulted? That was not announced on Second Reading. Is it a change since Second Reading?

Sir F. Soskice

It has not been the practice of the Home Secretary to consult before deciding to exercise his power of release under Section 27 of the 1952 Act in the case of a person serving a life sentence and the power relates only to such a person. I intimated that I proposed to adopt the following practice, which might commend itself to my successors. In the first place, I expressed the hope—and learned judges have been so good as to respond to it—that I should be furnished with a memorandum by the trial judge bringing to notice any special features of the crime of murder in the particular case.

Secondly, I should always hope—and I hope that my successors would do so—in years to come, when the question arose of releasing a particular person sentenced hereafter to life imprisonment, to seek consultation with the trial judge. I recognise that in the nature of things, when the question of release arises some years hence, it may not be possible to have access to the learned trial judge. He may not be alive. I therefore hope that the Home Secretary would have available to him a memorandum furnished after the trial by the trial judge and would in any case be able to have consultation with the Lord Chief Justice of the time.

But the obvious source of information of which the Home Secretary would wish to avail himself would be that which could be furnished by the trial judge who had conducted the trial. He might no longer be alive. If not, the Home Secretary of the day would have the memorandum which that trial judge had prepared. He would also have access to the Lord Chief Justice of the time, although the latter might be under the disadvantage that he had no first-hand knowledge of the circumstances of the trial. That is the proceeding which I indicated on Second Reading that I would introduce. That is the practice which I have followed and shall continue to follow.

Sir J. Hobson

I understand that the Home Secretary's intention in relation to the trial judge, if available, or to the Lord Chief Justice would be only to deal with aspects of the crime and its seriousness and would not include the reference to the judiciary of the information in the Home Secretary's possession as to the condition of the prisoner and the development of his personality in the interval. It would be only in reference to the trial and the crime as committed. Is that correct?

Sir F. Soskice

I do not envisage that it would be as formal and precise as all that. I have no doubt that in conversation with the trial judge, if I were still under that duty some years hence, I should certainly put before him the effect of my reports. But, primarily, I should desire to ascertain from him whether he had in his mind any special features which rendered the crime particularly vicious or seemed to indicate that there was some particular viciousness in the person convicted, or, conversely, whether he thought that there were some mitigating circumstances which ought to be prayed in aid in favour of the individual concerned. I can only speak of what I should myself propose to do when the time arose. But no doubt each person holding the office which I hold—if he thought lit to follow that practice—would act as he thought appropriate in the circumstances.

Mr. Edward Gardner (Billericay)

Has the Home Secretary considered, and if not will he consider, the possibility of making a reference to the court of criminal appeal? This is the subject of another Amendment, and I do not want to widen the scope of this discussion, but it would be interesting to know whether the point has been considered by the Home Secretary.

Sir F. Soskice

I can assure the hon. and learned Member that I have considered all these possibilities and that before I decided what my attitude should be, I took them all into account to meet the kind of view which has been expressed by the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson). While I should be out of order in anticipating such reply as I may make to the later Amendment, I might say now that I do not feel that it has a great deal to commend it and that I hope that the House will not accept it.

I hope that the Committee will not adopt either Amendment No. 9 or Amendment No. 13.

Mr. Ian Percival (Southport)

Before the Home Secretary leaves the memorandum, will he deal with this aspect of it? One of the advantages from the prisoner's point of view at the moment is that everything said by the judge is said in open court and is heard by him and his advisers. In giving a very severe sentence a judge commonly expresses his reasons for doing so. This may give the prisoner's advisers some opportunity to make representations to the Home Secretary if, by chance, there has been a mistake.

The memorandum to be prepared by the judge must relate to the seriousness of the crime in the eyes of the judge and must, therefore, be relevant to the term which the man must serve as a punishment. Will it be available to the man's advisers so that if there are any errors in it which may be demonstrated, his advisers can bring them to the Home Secretary's attention—or is this a chance which must be taken and is it to remain a private document?

11.45 a.m.

Sir F. Soskice

I always try to give way in debate, but the result sometimes is that I have to inflict myself at undue length on the audience which is so good as to listen to me. I was coming to that point, which is clearly relevant and which I intended to fit into the sequence of my argument.

The proposal in both these Amendments, although they differ, is, broadly speaking, that the trial judge should either say, "In the case of this prisoner his sentence will be 15 years" or, "In the case of this prisoner his sentence should be not less than 15 years". That is the proposal put forward. In my submission, there are a great many objections to it.

May I begin by seeking to correct some of the language of the right hon. and learned Member for Warwick and Leamington? He said that the issue involved was whether the judiciary should simply impose a nominal sentence and that the real sentence should be decided by the Executive—that the choice was between sentence by the judiciary and sentence by the Executive. With great respect, that is a complete misdescription of the situation. The sentence under the terms of the Bill and the sentence, apart from capital murder, under the terms of the Homicide Act, 1957 is not a nominal sentence at all. It is a sentence of imprisonment for life, and the words "imprisonment for life" mean imprisonment for life. While I am certain that the right hon. and learned Gentleman does not mean to convey that impression, his words produced a mistaken impression of what the situation is.

Section 27 of the Prison Act, 1952, then gives a discretion to the Executive. It is that a sentence—a genuine, real and severe sentence—havinig been passed by the courts, the Home Secretary shall decide whether there are circumstances which produce an abbreviation of that sentence. It has been said that, on average, the sentence works out at nine years, but I have pointed out on several occasions that that is a purely mathematical average, and that it derives from the fact that persons previously sentenced to death have had their sentences commuted because it was found that there were some mitigating circumstances.

However, it is not the case that that must necessarily be the sentence which must be served by persons who are sentenced to life imprisonment under the 1957 Act. In some cases it may be less. In others it may be more. In some cases it may be very substantially more. Indeed, as I have said, in some cases the Home Secretary may, however reluctantly, come to the conclusion that the sentence should, in fact, be one of life. I mention again that this is a terrible thing to inflict on any human being and that, any Home Secretary would, naturally, feel utter distaste if he were driven to the conclusion that it was his duty to inflict such a sentence. No doubt, if he felt that that was his duty, he would discharge it. That is the real position.

The right hon. and learned Member for Epsom (Sir P. Rawlinson) said that the public would revolt about this proposal and he interpreted public opinion to be wholly hostile to it. I remind him that this has been the position under the terms of the Homicide Act, 1957, apart from cases of capital murder. In the case of persons sentenced under that Act for non-capital murder the position is precisely what it is today. It is that the person is sentenced to imprisonment for life and that his hopes then depend on the exercise by the Home Secretary of the power specifically given to him under Section 27 of the 1952 Act. The public has not revolted or complained about that. That is the system that the sponsors of this Bill propose to perpetuate.

In effect, in the case of the two or so persons a year who have been executed in recent years, it is proposed to substitute the existing system followed with the sentences of life imprisonment passed on persons convicted of non-capital murder under the 1957 Act. That system has not worked badly. It has not provoked that measure of protest to which the right hon. and learned Member for Epsom referred. It has not worked at all badly, and if Home Secretaries form wrong judgments they can be questioned in Parliament about the exercise of their discretion.

The right hon. and learned Gentleman used the phrase "decided in secret". The words "in secret" have an emotive content in this country. We dislike the word "secret", but it must be remembered that we are concerned with decisions and details which, by custom and by the common consent of both sides of the House of Commons, are not subject to the fullest public scrutiny. Decisions of that sort are manifold and we have believed it desirable that in a whole range of different situations we must trust certain individuals to exercise their discretion on material which is furnished to them, which, in its nature, must be confidential and which, if disclosed to the light of day, might harm a great many people and might make it difficult for such material to be brought into being. As I say, we have agreed that certain individuals must be trusted and these individuals, who hold particular appointments, we trust to exercise their discretion.

If the discretion is exercised badly by Ministers or a Home Secretary, it follows that the individual exercising his discretion loses the confidence entrusted to him, and that is the way our democracy works. That is why the individual concerned is open to be questioned on the issue. If I am asked about the detail of why, in a particular case, I have exercised or have refused to exercise my discretion, then ordinarily, in the exercise of my discretion, if it affects individuals and matters of a confidential character relating to them—and this material might be concerned with their psychology, character, development, propensities, family connections and so on—I would be most reluctant—and the House of Commons has shown great tolerance to previous Home Secretaries in this matter—to disclose the actual detail.

I hope that hon. Members will show sufficient confidence in that part of the exercise of my duties. If I fail to release someone or if, in the exercise of my discretion, I do release someone, I hope that the matter will be left there. However, if hon. Members consider that I have exercised my discretion badly, my discretion is open to be criticised. That is what the House of Commons is for.

The proposal is that instead of that system—supplemented, as I said, with the additional precaution of consultation with the learned judge, which I have initiated—there should be the more formal proceeding of the fixing of either an actual sentence or a minimum sentence by the court. I hope that that proposal will not commend itself to the Committee. Learned judges are persons of great standing. They must be, or they would not have been appointed. However, their knowledge of the prisoner must, of necessity, be limited to the time during which they have opportunities of gaining knowledge of him—that is, during the time of the trial.

The judge sits on the bench and has the prisoner in the dock before him. The trial may last for a day, three days or, if it is a long one, perhaps a month. It is during that period that the learned judge must gain his experience of the person he sentences. He sentences by reference to the quality of the offence, the type and character of the offender and such relevant circumstances as he takes into account.

By contrast to that, with the assistance of his advisers, the Home Secretary has the opportunity of watching the progress of the individual for years. He has constant reports on him and he must consider, as I have pointed out, first, the protection of society—that is his first duty—and, secondly, that it is not in the public interest, nor does it accord with our sense of humanity, to keep people in prison, perhaps rotting in prison, for longer than is absolutely necessary.

Relevant to those considerations, and relevant to the question as to whether the person can be safely let out, must be the psychological reports which are from time to time made about prisoners. Those reports are concerned with their conduct, how they are settling down in prison, whether they have outside family contacts which can be restored, and general material about them upon which a Home Secretary can base an estimate and conjecture—and it must be conjecture—whether they can safely be let out again; whether letting them out would constitute a danger; whether there is a likelihood that the same sort of thing will occur again; or whether there is a real chance of sending them back to their families, work and surroundings where they may be able to lead lives as useful citizens in future. It is a matter of estimate and conjecture and I earnestly put it to the Committee that if somebody must make that estimate and conjecture, the Home Secretary is in a far better position, with the advice he gets, to embark on the task than a learned judge who has, in the nature of things, only a limited opportunity of knowing the man.

Sir P. Rawlinson

I appreciate the force of the right hon. and learned Gentleman's comments, but will he explain to the Committee why, if the Home Secretary is the best person to determine when a man who has been convicted of murder should be released, he is not the best person to determine when a man who has been convicted of rape, manslaughter, and so on, should be released?

Sir F. Soskice

In the case of any person who is sentenced to life imprisonment, whatever the offence, Section 27 is applicable. In the case of a person who is convicted and sentenced to prison for a fixed term of say 10 or 15 years for an offence, there is available the exercise of the Royal Prerogative.

12 noon.

It is not easy in precise terms to say in what circumstances the Home Secretary recommends the exercise of the Royal Prerogative. There is a general power and responsibility, and a privilege, vested in the Home Secretary of tendering advice to the Sovereign which may cover the kind of case where the general interest of society requires that, because new circumstances have come to light which were not known at the time of the trial, or because there is reason to think that the individual is beginning to deteriorate, or for some other reason which one cannot precisely categorise, the Sovereign should be advised to release him. Therefore, the matter is not simply limited in the sense that the right hon. and learned Gentleman suggests.

The policy of Parliament, as I understand, is that when one has the supreme sentence of a life sentence, the most severe sentence that can be passed on anybody, then one should have a special statutory power of a much larger and more elastic character to recommend a release subject to licence. If a prisoner is released by exercise of the Royal Prerogative he is released for all purposes, but if he is a person sentenced to a life sentence and therefore exhypothesi convicted of a more serious crime, the policy of Parliament is that he should not go completely free and untrammelled but that he should always be liable to recall; and people are recalled.

Speaking for myself, if, in a case of a prisoner out on licence, I felt that his conduct indicated that he might possibly commit offences again I would not hesitate to recall him. My predecessors have not hesitated to do so. I would recall him with reluctance, but, nevertheless, I would not hesitate to do so. I hope, therefore, that that system can be allowed to continue.

I spoke of the limited opportunities which a learned judge has to get to know a prisoner, but there are also two practical difficulties which I should like to put before the Committee. Experience shows—I do not say conclusively, because this is an area in which conclusive propositions cannot be easily stated—that if the court says, "This man should go to prison for 12 years "—although that is a sentence which in the case of the second Amendment should not necessarily result in his release because Amendment No. 13 provides that the court should recommend a minimum sentence, though, in fact, it will be regarded as the actual sentence—

Sir J. Hobson

The Home Secretary once before seemed to indicate that he has not appreciated that Amendment No. 13 has no idea of imposing a minimum sentence, but simply says that there should be a recommendation which the judge makes public and which the Home Secretary can accept or not as he pleases, maintaining complete control of the time when he releases the prisoner, although the public will know what the judge has said.

Sir F. Soskice

I am obliged. I misreported the effect of the Amendment and I accept the correction, but the effect of that Amendment even as corrected may well be that if the court recommends a particular time, the prisoner, his family and his friends will think that that is the time which he will serve, less the usual good conduct remission.

If the Home Secretary does not let the man out at that time, less a third good conduct remission, the maximum of disappointment and embitterment will result. This will be a serious disadvantage. We do not want to spread embitterment more than can be helped. This is why one tries to treat prisoners on a completely fair and impartial basis.

The converse is that we may have a case in which the trial jduge, estimating the quality of the offence and putting such assessment as he can on the character of the prisoner says, "I think that eight years would be enough". The Home Secretary of the day when the eight years are up, or less one-third remission—and I do not know whether that would be applicable in terms of the Amendment—says, "This man should certainly not be out. It is quite obvious to me from the advice given to me that the offence for which he was convicted is the sort of offence for which he has a propensity." It may be a sex offence, or something of that sort, and the Home Secretary might say, "I would certainly not wish him to go free at the end of this period." Nevertheless, especially if Amendment No. 9 is accepted, where the judge with the limited opportunity of judging the man, has come to a more favourable view of that man and his safety as a person to be reintegrated into society, the Home Secretary of the day would have no power to retain him. Therefore, that would not adduce to the public interest.

I ask the Committee, therefore, to look at the implications of the proposals and ask whether the present system has worked badly or well. It has been tried since 1957 in the case of murder and [since 1952] in the case of other crimes which carry a life sentence and there has not been much criticism of it. If the exercise of discretion is bad and wrong it should be attacked in the House of Commons. That is what the House is for and that is why the Minister is responsible to the House. I greatly hope that the Committee will reject these Amendments. I take this short opportunity of making—

Mr. Deedes

It is quite impossible to trace from the record of life sentences served and terminated the precise effect of the sentences on a particular criminal. In other words, the statistics remain a vague and quite unrevealing indication of how the life sentence is working.

Sir F. Soskice

I am not sure that that is an objection to the way in which the thing works. Obviously, when a man comes out one keeps track of him. He is on licence and one knows roughly his subsequent career.

I was about to say before that intervention that sometimes the expression "warder" is used in discussion of persons who are not warders, but prison officers. This is wounding to them. It misrepresents their functions in the modern prison system. It has been of the greatest interest and encouragement to me to ascertain from my contacts that the desire to treat prisoners on a very different and modern basis comes from the Prison Officers' Association itself. It would be desirable, therefore, in debate not to describe these officers in a way which might be taken as an indication of their functions 100 years ago, but is very wide of the functions which they perform, which they wish to perform, and conceive themselves to be performing, quite rightly, at present.

Mr. W. Rees-Davies (Isle of Thanet) rose

Sir F. Soskice

I was coming to the question whether the trial judge's memorandum will be available to the prisoner. The answer is that it will not. The memorandum must be something which is confidential to the Home Secretary. It is a private statement of the judge's opinion, formed by him as a result of the trial and written out and sent to the Home Secretary, who would necessarily treat it as something confidential to him. I hope, therefore, that hon. Members will accept that that is the right decision. There must be some degree of confidence in the matter.

Mr. Percival rose

The Chairman (Dr. Horace King)

Order. Before I call the hon. and learned Gentleman to intervene, may I point out that interventions prolong speeches?

Mr. Geoffrey Wilson (Truro)

Why not?

Mr. Percival

With great respect, Dr. King, this is a point of such importance—the Home Secretary appears to take the same view—that it ought to be discussed thoroughly without reference to the clock. That is the view I take and the view which I urge on the Committee.

There is a difficulty here when the automatic sentence would be life imprisonment. In all other cases in which a judge has a discretion, there may be a good many matters which do not come out during the jury trial because of the rules which do come out in the plea in mitigation which is always made when the court has discretion as to sentence. In the cases we are considering, since the sentence would automatically be one of life imprisonment, there will be no plea in mitigation and, therefore, no opportunity to bring to the attention of the trial judge facts which might have a bearing on sentence although they would have no bearing on the trial as to guilt or innocence.

These matters will not be in the judge's mind in preparing the memorandum. This difficulty must be resolved somehow. It could, perhaps, be resolved by inviting the legal advisers of the man on trial also to submit a memorandum akin to a plea in mitigation, and then the Home Secretary would have the two. There seems to be the possibility in a case in which there would be no plea in mitigation that the memorandum of the judge may be based on an incomplete picture of all the relevant circumstances.

Sir F. Soskice

I do not think that that difficulty will really arise. What one envisages is a short note from an experienced judge which he will make within a few days, or possibly hours, after the conclusion of the trial of a person for whom counsel has appeared and on whose behalf counsel will have spoken and adduced everything he can in favour of his client.

The learned judge, exercising his discretion and great experience, and in the knowledge that he is preparing a confidential document, will write just a few lines giving any special impression he has formed. A Home Secretary of any judgment, one hopes, would realise that it was a document which had not been tested by argument and would bear that in mind in evaluating any observations made by the learned judge.

I do not think that this is a serious difficulty. It will simply be a short note of any special point that the learned judge thought ought to be borne in mind, and I hope that the Home Secretary could be trusted to treat it as such. The learned judge would certainly use his discretion to make only such observations in his memorandum as he felt could perfectly safely be made with complete fairness to the persons involved.

Mr. Mawby

The Committee is extremely grateful to the Home Secretary for explaining what he intends to do in the future if the Bill ever reaches the Statute Book. But I thought that the hon. Member for Nelson and Colne (Mr. Sydney Silverman) was being a little too clever in suggesting that this was an argument in which the retentionists were trying to take away any suggestion of the unique nature of the crime of murder. The retentionists are seeking to do nothing of the kind. It is the hon. Gentleman and his fellow supporters of the Bill who are seeking to do that, and the Committee has already taken a certain view about it. All that I and other retentionists are concerned to do is to make sure that, whatever we do, people are still aware of the unique nature of the crime of murder.

The Home Secretary referred to the great responsibility which he must carry, to protect society while, at the same time, making certain that a proper standard of humanity is observed, that a prisoner should not, in the right hon. and learned Gentleman's words, be allowed to rot in gaol, suffering steady deterioration of all his mental faculties. There is this balance to be kept in which the Home Secretary will always have the final word.

In our efforts to protect society, we have not only to remember that the Home Secretary will from time to time have to decide whether a man who has committed murder should be released into society but we should ask ourselves what would be the effect of these Amendments upon others who might in certain circumstances be prepared to attempt murder. This is a most important question, and it has cropped up throughout all our discussions on the Bill. The argument has been about what sort of deterrent effect the death penalty has upon those who might contemplate murder. Statistics have been bandied back and forth, but it still remains very much a matter of opinion.

12.15 p.m.

People generally in this country believe that a life sentence is an average of 10 years and, unless a change is made, that is what they will continue to believe. I am concerned about the effect upon a person who commits a crime, but who then knows that the sentence which would be passed upon him, if caught, would be more than the term of imprisonment which he would suffer, in practice, if he committed murder in an effort to evade capture, but was captured none the less. Very many people are worried about just this point, and they would feel much happier if they could be sure that the whole of criminal society realised that the punishment for any crime committed would not be as severe as the punishment for murder—perhaps, the despatch of a witness—in order to improve the chance of escape.

Very few people nowadays believe that the law ought to be concerned with wreaking vengeance, but, rather, they believe that the law should be there to protect society and to make certain not only that the person who commits a crime will be taken away from society but also that the nature of the crime and the sentence for it are known and are such as to deter others from committing similar crimes. This, I am sure, is the attitude of society in general nowadays. Therefore, our main consideration is to treat the crime—

Notice taken that 40 Members were not present;

Committee counted, and, 40 Members being present

Mr. Mawby

At least, we have seen that many of the supporters of the Bill are in the precincts so, presumably, they are still reasonably interested in these and other Amendments.

I was making the point that we must ensure that there is still retained in the mind of society a clear idea of the unique nature of the crime of murder and certain knowledge in the mind of the criminal that he cannot get away with a lesser crime by disposing of a witness and suffer a lesser punishment or one which, in practice, is no longer than the one which he would suffer for the original crime.

All the way through, we have concerned ourselves with the murderer, and we must, as the Home Secretary has said, take into account his future actions, views on how he conducts himself in prison, and so on. But we must never lose sight of the principle that the murderer must always take second place to the murdered. The murdered have committed no crime; they have had their life taken by someone else.

The hon. Member for Nelson and Colne believes that the death penalty as such does not deter anyone from committing murder if he is so minded. I take the opposite view.

Mr. Sydney Silverman

The hon. Gentleman should not make that sort of statement. I have never said that the death penalty did not deter anyone. I have said—and I think that it has been overwhelmingly proved all over the world—that it does not deter any more than any other appropriate penalty would deter.

Mr. Mawby

I am glad to have that clarification from the hon. Gentleman, which puts his views into the correct perspective.

I put it in this way: he believes that the death penalty no more deters anyone than the present life sentence. Yet the Home Secretary said that a sentence to life imprisonment means just that, and, technically and theoretically, one could probably accept that that was so; but, in practice, of course, the average is nine years' imprisonment. Obviously, the person who is seen to be a really "bad hat" would be kept in prison, but it would be his actions subsequent to the murder rather than the nature of the crime he committed or his character before he committed it which would determine whether he was released in 9 or 29 years.

I am very grateful to the Home Secretary for correcting a misconception entertained by the hon. Member for Nelson and Colne by saying that he would now seek consultation with the trial judge in any case in which he was thinking of releasing on licence someone who was serving a life sentence.

Mr. Sydney Silverman

I said that, too. There is no misconception. There is no difference of opinion between us on that point.

Mr. Mawby

I understood the hon. Gentleman to say that in these circumstances the Home Secretary already had consulted the trial judge. What the Home Secretary said was that in the past where there was a fixed sentence and he was called upon to suggest the exercise of the Royal Prerogative, he normally formally did this, but now he expects to extend this line of always consulting with the trial judge even on matters where life sentence is involved.

We could have long discussions about the question of the memorandum which he would ask the trial judge to put forward, but I do not believe that there is much in this at all. As we have been told, the trial judge would make out a short memorandum giving his views and attitude at the time the prisoner was con victed. I do not visualise that the defendant will be ill-treated, or lose any of his rights because he cannot see the memorandum. It must obviously be a confidential document between the trial judge and the Home Secretary.

But if we are to show the general public that we are concerned about their fears we must correct their view that a man who is sentenced to life imprisonment will, in the main, be released after 9 or 10 years. I believe that the very nature of the Bill means a complete change and that in these circumstances we ought now to tell the trial judge, "You will take into account all the circumstances and be able to state your opinion in public that this person will serve a life sentence, and the minimum number of years that you suggest should be X years." If this is done, it will reduce a little the misgivings of many of the general public, and so I hope that the sponsor of the Bill will seriously consider accepting one or other of the Amendments.

12.30 p.m.

Mr. John Peyton (Yeovil)

During the time I have been in the House of Commons I do not recollect hearing any Minister speak with such earnestness and at such a length on any subject which arose in the consideration of a Private Member's Bill as the Home Secretary did this morning.

I want to make my own position absolutely clear, since it was questioned at an earlier stage. I have on no occasion voted against abolition, though it is true that during the stages of the Bill I have voted on a number of occasions against the Closure.

I feel disappointed by what the Home Secretary said. It seems to amount to no more than a rather slight reshuffling of the administrative pack and the insertion maybe of one or two extra cards. I believe that Parliament is being asked to take a very large step involving, to my mind quite rightly, the abolition of a particularly beastly but formal procedure. When we abolish one formal procedure, I believe that there must be an element of formality in whatever alternative is adopted so that public opinion has at least some evidence and understanding of what is going on.

I recollect the hon. Member for Nelson and Colne (Mr. Sydney Silverman) saying in a debate on this subject, 10 years ago, that it was important to keep within hail of public opinion. I share that view. Unless at least for some interim period some means is adopted of showing the public what thought precedes the decision to release a man, there is great danger of our getting right out of touch.

I believe that the way in which the Home Secretary spoke was tantamount to a belated admission that this is a Government Bill—something which we have suspected all along. I confess to great disappointment that the Government have ducked their responsibilities. They have not really been prepared to accept at a very much earlier stage the burden of saying what they themselves would do. Apparently, they preferred to dodge the odium of a large section of public opinion—

The Chairman

This may all be very true, but the hon. Gentleman must come to the Amendment.

Mr. Peyton

I am sorry that you should think I am out of order, Dr. King.

Let me put it this way: the real point here is what alternatives the Government are prepared to sponsor. What the Home Secretary said with great eloquence was that he hoped very much that the committee would reject all the alternatives. As I understand, the only thing which he is prepared to put in place of the alternatives which my right hon. Friends have suggested is some informal consultation in which there will be no element of public examination.

Sir F. Soskice indicated assent.

Mr. Peyton

The Home Secretary nods. I am grateful for his confirmation. It is this about which I am concerned. If this had been a Government Bill, I believe that by now the position which the Home Secretary is seeking to take up would have become quite untenable, that he would have been forced into the position of putting forward constructive alternative proposals instead of dodging behind the screen of a Private Member's Bill.

The Home Secretary has once again said that "life" may, in extreme circumstances, be "life". As I have previously said, I believe that such assurances are absolutely hollow and meaningless if one seeks to wash down the throat of an unwilling public a reform for which it may not be quite prepared. I believe that the Home Secretary has a much heavier duty upon him to discharge than he yet appears to have recognised.

I agree entirely with what was said by my right hon. and learned Friend the Member for Epsom (Sir Peter Rawlinson). We are here engaged on, so to speak, a second chapter, on which I part company to a large extent with the Government and the sponsor of the Bill. We are engaged in consideration of alternatives, and this is a quite different argument from those that we have previously had. We now face the situation that the Government benches have been almost entirely empty all the morning. This is a difficult discussion. It is easy for hon. Members to say that they have other things to do and that they will dodge it, particularly if they are abolitionists. However, I find the spectacle of the empty Government benches this morning nauseating.

Despite the most offensive doubt which the hon. Member for Nelson and Colne once cast upon it, despite the fact that I am an abolitionist and so this poses a certain embarrassment, and despite the fact that I am well aware that my constituents do not support the attitude which I have taken up, I find it horrifying that at this second most important stage of the Bill those who have always appeared to regard the matter as some high crusade should have indicated the importance which they attach to these debates by their absence.

There are many people, in my view, who would be willing to accept or look again at this reform. Reform pushed down unwilling throats is very unpleasant. It is very desirable that we should be able to persuade people that the Measure on which we are embarked is right and deserves their support, at least for a trial period. There are many people who would be willingly convinced of the common sense of the abolitionist cause if they saw its sponsors taking the proposals for alternative punishment more seriously.

I do not know whether I am asking too much in suggesting that perhaps the sponsor of the Bill and even the right hon. Gentleman the Paymaster-General should listen to the debate instead of talking to each other. As we have the Paymaster-General here now, there is at least a suspicion that he has been responsible for this petty manœuvre of making the House of Commons sit as a Committee at 10.30 a.m.—

The Chairman

Order. Every hon. Gentleman has a right to have all sorts of opinions, but their expression must be linked to the Amendment under discussion. The hon. Gentleman must speak to the Amendment.

Mr. Peyton

I very much doubt. Dr. King, whether all that the Paymaster-General has been saying in an inaudible voice over the last few minutes has been connected with the Amendment.

As one who has been for a long time a convinced abolitionist, I find it very hard to describe the chagrin which I feel at the way in which the House of Commons in general and those on this side of the Committee, in particular, have been treated. They have been put in an embarrassing position, and no consideration whatever has been given to their views. I object to the way in which this matter has been handled from start to finish. Now, finally, we have clear evidence that hon. Members opposite, in supporting a Government Bill, are not prepared to give any thought at all to alternatives to capital punishment and are not even prepared to be here physically as evidence that they have opened their minds to the arguments that are deployed and to the feelings of the public.

The Minister of State, Home Department (Miss Alice Bacon)

I have listened very carefully to everything that the hon. Gentleman has said, but I am not clear whether he is for or against the Amendments we are discussing.

Mr. Peyton

I am glad to be able to clear the hon. Lady's mind. In view of the Government's conduct and of their total unwillingness to put forward any proposals of their own which merit consideration, I am against the Government on these Amendments.

Sir Edward Boyle (Birmingham, Handsworth)

This group of Amendments is surely the most important one to arise during the course of the Committee stage. That is why many of us on this side of the Committee have attended throughout the discussion. Whatever view we take, we recognise the great significance of these Amendments.

When the House of Commons carried the Bill by a large majority On Second Reading, I interpreted the decision as meaning that the House, by a pretty big—indeed, overwhelming—majority, did not want us to continue with the 1957 Act or to produce a still further modified provision for capital punishment for murder, more limited than the 1957 Act. But it was perfectly clear in the debate that many hon. Members who were broadly in support of the purpose of the Bill were concerned about the alternative; and I recall that, when I was fortunate enough to catch Mr. Speaker's eye on the Second Reading, I said that we ought to bear in mind when we voted that for many of us this was not easy.

I spoke about the importance of explaining our view to public opinion. In fact I received a great deal of applause for that remark from the other side of the House and I am bound to say I would have expected, therefore, a few more Members opposite to have wished to take part in this particular discussion.

I very much regret that we have had such a one-sided debate this morning. I think that we are entitled, in discussing this Amendment, to draw attention to the contrast between the general atmosphere in the House on the Second Reading and the appearance of the Committee during these proceedings this morning.

Despite very strong temptations I have not, unlike the hon. Member for Yeovil (Mr. Peyton) who has just spoken, altered my own view on this subject since the Second Reading. I still personally believe that the moment of conviction for murder must be the wrong moment to make a rational judgment as to how long a murderer should stay in prison. I am of that opinion for two reasons, which I gave to the House in the Second Reading debate.

The first is what I called at that time the emotional reason. When all is said and done, the murder trial is a beastly event and I do not believe that it is the best time, emotionally, to make a final judgment. Secondly, and this is a point which the Home Secretary has made and which has arisen several times this morning, I believe that nobody at the moment of a conviction really knows enough about the murderer, or what induced him to commit the crime to reach a final conclusion on this matter.

Here I agree with the view of the Home Secretary that we can hope to learn more over a period of time and it is for this reason that the length of stay in prison of a murderer should not be decided by a fixed minimum sentence at the time a person has been found guilty.

I would like to make one further comment on the interesting point raised by my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) when he said that the judge speaks, when he sentences a person, as the voice of the community. There could be some difference of view as to how far we should accept this concept. I must confess I always feel uneasy at the concept of the criminal law attempting to enforce morality as such or of the criminal law as the expression of the voice of the community. In any case, it is surely perfectly reasonable to hold that the voice of the community should not make itself heard finally at the moment of sentence. We can hope to learn more about a murderer after he has been in prison for some time.

I am impressed, in this connection, with the evidence about those who have been convicted for murder in recent years. I agree with those who regard murder as a unique offence, if only because of the number of cases that have rightly been judged as falling, under the heading of diminished responsibility, and the number of cases that seem, as it were, on the verge of diminished responsibility. I believe that murderers come into a very special category and that it is wrong for the voice of the community to try to reach finality before there has been a full opportunity to study a murderer and what induced him to commit this crime.

12.45 p.m.

Sir Peter Rawlinson

Would my right hon. Friend not agree that the law is, or should be, the voice of the people and that somebody must speak that voice? Why is it that a judge is, on any occasion, for any offence and any offender permitted to sentence a man? Why should it not be retained in the hands of Home Office officials to decide what sentence the rapist or the brutal robber should serve if his arguments on this occasion are correct?

Sir Edward Boyle

The Home Secretary dealt with that particular point in his speech, but I will gladly answer my right hon. and learned Friend on other aspects of this matter.

I personally have some sympathy with those who rather doubt the concept of the purpose of the criminal law being to speak as the voice of the community. I think that it has been that concept which has been responsible for the fact that, throughout our history and throughout the history of so many countries, it has been so much easier to add to the criminal law than to subtract from it.

But I should agree that there is much in the point of my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson), who said that the most difficult issue we are concerned with when dealing with murder is striking a balance between the penological aspects of punishment and the deterrent aspect. This is a matter in which, it seems to me, the judiciary have a propel part to play.

I believe that murder is a unique offence and that murder alone in the whole hierarchy of punishment should be singled out for the life sentence. I still believe that this life sentence should be an indeterminate sentence under the responsibility of the Home Secretary. This leads to the issue of the proper spheres of responsibility as between the Home Secretary and the judiciary. The Home Secretary has made it perfectly plain throughout our debates that it is a responsibility he cannot discharge unaided. When he is considering the use of his Royal Prerogative of mercy he must take into account judicial opinion. The right hon. and learned Gentleman has explained to us how he proposes to do this. I should have thought that this must be right, for two reasons.

The first is because the judges are responsible for the protection which law offers to society and it is at this point I agree with my right hon. and learned Friend about the importance of striking a balance between the penological and the deterrent aspect. I am not satisfied that the Home Secretary cannot do this. I did think, with great respect, that my right hon. and learned Friend, in his speech, went further than I would have done in suggesting that the Home Secretary would always tend to have a bias on the penological side.

The Home Secretary will remember that I raised this with him at one of our earlier debates in Standing Committee. I am satisfied that the present Home Secretary, and I believe also future Home Secretaries, will recognise the need to strike the balance fairly here and will recognise that what is ideal penologically may not be ideal from the point of view of a prison sentence as a deterrent.

There is some tension here and it is no good glossing over this. Some mur- derers may have to be kept in prison for longer than would be penologically ideal, but that the Home Secretary recognises this and I believe that his successors will also do so. There is a second reason why judicial opinion should be taken into account. In Lord Devlin's very interesting article in the Observer, before Christmas, he made an important point. He said: In a free society every question which affects the liberty of the individual, whether it be for a decade, a year or a day is a question for a judicial body. I do not think that is really disputed. There is certainly a part here for the judiciary to play, but I believe that in the particular case of murder there is also a part which the Executive must play.

Surely there is one thing that a Government Department can do more effectively than the judiciary and that is to pull together the whole range of available information, including penological information. I recall that my former colleague Mr. Aubrey Jones once said that whatever mistakes Government Departments can make there was one thing a Government Department was in a good position to do, and that was to pull together a whole range of relevant information on a subject. This will be more important for the future, bearing in mind that penology is a growing subject. After all, we are having a very rapid university expansion and one expects that penological studies will grow. I think that the Home Office is well suited to pull together all the relevant information which must be taken into account when a decision has to be reached.

Mr. Rees-Davies

I entirely accept my right hon. Friend's argument that the Home Office is in the best position to evaluate the facts, but would he not agree that the person who would be best at giving the decision upon those facts would be the judiciary?

Sir E. Boyle

I wish that we could have spent more time discussing my hon. Friend's Amendment No. 10. I would certainly wish to consider that suggestion very carefully, but I think that it is best that the Home Secretary should have the ultimate responsibility and be recognised as the person who ought to take the decision. I personally should regret any procedure which, as it were, devalued the advice which the Home Secretary receives from his executive machinery, and in the last analysis the responsibility for deciding, granted the unique character of murder as a crime, should rest on the right hon. and learned Gentleman and his successors.

There are just two other points which have been raised in the debate, and on which I should like briefly to comment. A number of hon. Members have been concerned about, as it were, the secrecy aspect—the fact that the memorandum submitted by the judge will not be published and that the public will not know the whole basis for the Home Secretary's decision. I do not wish to say anything improper, but surely it may well be that an experienced judge will have a feeling about a case which he could quite properly express in a memorandum, but which it would be less proper for him to express publicly. That is why I welcome the fact that the Home Secretary proposes, where possible, to consult the trial judge, because I am bound to say that at times Ministers may have to bear in mind quite important evidence which could not be precisely set out in a published document.

Finally, my right hon. Friend the Member for Ashford (Mr. Deedes)— and I am sorry to have missed part of his speech—said that public opinion would judge this matter by the length of the average sentence suffered by a murderer. I think that this is true, but it ought not to decide our verdict in this matter. I come back to the point that ultimately we as hon. Members must do what we think is right and I hope that the Committee will forgive me if I say that the idea of retribution, which many people and good people retain, can die rather hard—that is to say, many people feel that even if we do not have capital punishment, none the less one wants to feel that murderers are being sufficiently severely treated. I think that it is quite true that for that reason public opinion will tend to judge by the average sentence, but I do not believe that this fact should influence the decision.

One views this matter in terms of the classical doctrine of punishment. The Home Secretary has made it quite clear that he has every sympathy with those who stress the need for the incapacitation of murderers who could be a danger to the public. In our earlier discussions he made it absolutely plain that he himself would never release a murderer whom he felt could be a danger to the public. But I would hope that as a Committee, and irrespective of any feeling on the part of public opinion we would rule out the retributive approach.

As I have said, there is a real difficulty about holding the balance fairly as between the penological and the deterrent aspects. I agree with those who think that the Home Secretary ought to consult the judiciary about this, but, none the less, for the reasons which I have explained to the Committee, after listening to this morning's debate—and I am sorry that I could not be present for the end of the previous session of the debate—I still believe that the ultimate responsibility should rest with the Home Secretary, and that is why I shall not be able to support these Amendments which has been so ably moved.

Mr. Sydney Silverman rose in his place and claimed to move, That the Question be now put, but The CHAIRMAN withheld his assent and declined then to put that Question.

Mr. Gardner

This is the most critical of the most important series of Amendments which the Committee has had to consider. Their importance and the way they have agitated the minds of hon. Members have been vividly shown by the speech of my hon. Friend the Member for Yeovil (Mr. Peyton). The Amendment is critical and important because it goes to the heart of the discontent about a Bill which seeks to abolish capital punishment without putting in its place what many of us believe ought to be but is not an adequate and satisfactory alternative punishment.

There are many of us who feel that the Bill as it stands makes a mockery of the criminal law. The view that murder is a unique crime is mainly derived from the fact that, as the Royal Commission agreed, it is the gravest of all crimes and deserves the severest of all punishments. In the view of many of us punishment for murder ought to measure and reflect the gravity of the crime. In our opinion, life imprisonment does not come anywhere near satisfying that requirement. It is a mere empty formula, as it has been described, and it was described by the late Archbishop of Canterbury when he gave evidence before the Royal Commission as a degradation of the law.

In effect, it means, as the Home Secretary has said, an average of nine to 10 years' imprisonment.

Sir F. Soskice indicated dissent.

Mr. Gardner

The Home Secretary shakes his head. I do not want in any way to misrepresent what he has said, but on Second Reading he made it clear that the sentence which would be passed and which he would be reluctant to exceed would be round about nine to 10 years, or thereabouts, and his view was, and one understands this, that any period of imprisonment beyond nine to 10 years would mean that normal human beings undergoing that term of imprisonment could not do so without their personality decaying.

A sentence of life imprisonment which on average would be no more than nine to 10 years' imprisonment is wholly inadequate as a sentence likely to have a deterrent effect upon a would-be criminal.

Mr. Sydney Silverman rose in his place and claimed to move, That the Question be now put, but The CHAIRMAN withheld his assent and declined then to put that Question.

Mr. Gardner

When, as in this country, we have a law still on the Statute Book which allows a person who injures cattle to be sent to prison for 14 years—and it may be an old and obsolete law, and I am sure that cattle are just not worth that—the Committee has to ask itself what human life is worth when we decide what punishment should flow from the felonious destruction of human life. The alternative sentence in the Bill is ludicrously inadequate.

Because it is so inadequate and so unsatisfactory, there are many people, abolitionists like my hon. Friend the Member for Yeovil, who wish to see the punishment of hanging abolished, but who, at the same time, are wholly dissatisfied with what will happen if the Bill passes into law and for murder there is only the punishment of life imprisonment.

It being One o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again, pursuant to Resolution [18th March].

Committee report Progress; to sit again upon Wednesday next.

Sitting suspended.

Sitting resumed at 2.30 p.m.