HC Deb 19 May 1981 vol 5 cc245-9

No person shall be liable to suffer death for having committed the offences under the following provisions:

Brought up, and read the First time.

10.1 pm

Mr. Arthur Davidson (Accrington)

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

The purpose of the clause is to abolish the remaining offences under the various Acts dealing with the Armed Services which still carry capital punishment. It may come as a surprise to many people to learn that there are several offences, 12 of which are listed in the clause, for which the sentence of death is still the penalty. The offences are set out in the memorandum printed on page 59 of the report of the Select Committee on the Armed Forces Bill, and I shall not weary the House by retailing them on this occasion.

It is not my purpose to initiate a major debate on capital punishment. There was one more offence which carried capital punishment. That was spying for an enemy on board one of Her Majesty's ships when committed by a civilian, but the Government got rid of this offence in clause 17 as a response to the 1971 Select Committee recommendation that the Minister of Defence should review the need for the retention of the death penalty, particularly with a view to reducing the categories of offences for which it may still be awarded.

I am moving the clause because I believe that the response of the Ministry of Defence, although clause 17 is welcome, should have been considerably bolder. The justification for the retention of the death penalty is set out concisely in the evidence on page 75 of the Select Committee's report: Retention of the death penalty is considered necessary as a deterrent given that a potential offender on the battle field who may well be killed at any time as a result of obeying orders is unlikely to be deterred from assisting the enemy by the possibility of no more than imprisonment. That is the basis of the Service need for the retention of the death penalty. That is a matter of opinion. There is no way in which it can be tested. No Service man is likely to come along and say "I would have failed to make known information received from the enemy but for capital punishment". There are no figures on which to base the honest assertion made by the witness because, fortunately, offences that carry capital punishment are extremely rare. Capital punishment for these offences is not mandatory. Most Service men, in the unlikely event that they wished to assist the enemy, would know that the capital punishment offence was most unlikely to be carried out.

Two other countries in NATO—Germany and Portugal—have done away entirely with capital punishment without, it seems, any increase in attempts by their Service men to "assist the enemy". It is true that some NATO countries have capital punishment for more offences for Service men than the United Kingdom. No doubt their arguments for retaining offences for capital punishment that do not carry capital punishment in this country will be the same as those used by the Ministry of Defence to justify offences that carry capital punishment here.

The Soviet Union has capital punishment for the most obscure offences. I would not, however, regard the legal system in the USSR as one that we would necessarily wish to follow. I feel sure that the basic patriotism, training, discipline, and high standards of our Service men make it unlikely that Service men would contemplate assisting the enemy and so putting the lives of their colleagues at risk. The time has come to get rid of these anomalies. I hope that the very act of my drawing attention to them will make that day come somewhat nearer.

Mr. Bruce George (Walsall, South)

I support my hon. and learned Friend the Member for Accrington (Mr. Davidson). The question of the death penalty will not go away. Only today, at Question Time, the Prime Minister was obliged to comment on the death penalty. She said that no initiative would come from her Government to introduce legislation to restore the death penalty. As my hon. and learned Friend says, it probably comes as a surprise to many people, not least to some who served on the Committee, to see the range of offences for which both civilians and military personnel can be subject to execution.

The death penalty, as we have been told, can still be exacted for serious misconduct in action when committed with intent to assist the enemy and for failure to suppress a mutiny with intent to assist the enemy. Although there are many instances where the death penalty can be legally exacted, there have been few occasions when the ultimate sanction of the State has been applied. It is easy in debates of this kind, if one has fixed views for or against the death penalty, to come to a swift response. If one believes in capital punishment, one will have few dilemmas in looking at military law in connection with the death penalty.

There will be those who, on ethical grounds, oppose the death penalty in all circumstances in civil and in military affairs. I confess that I approach the question of the death penalty in military law with some apprehension. The arguments are not at all simple when applied to a nonmilitary sphere. Those who may reach the same conclusion as myself will probably do so following a great deal of internal debate, soul-searching and agonising.

Persuasive arguments were presented in favour of exacting the ultimate sanction in times of conflict. It was pointed out to hon. Members that the ultimate sanction could be exacted even in what was not a war-time situation but a situation such as Northern Ireland where a state of war does not legally exist.

May a soldier, for example, find himself in a situation that is different from that experienced by those in civilian life? If one believes that that is so, one reaches certain conclusions. Despite the strength of the argument presented by the Ministry, by the documentation and by witnesses from the Ministry of Defence, I am not persuaded that the existing law should be retained. I am pleased that one category has been eliminated and I hope that further categories will likewise be eliminated. I do not understand the reason for excluding one category while not excluding other categories.

I am not persuaded by the arguments of the Ministry of Defence, although it was a near-run thing, as I shall outline in not too great detail. I do not want to jeopardise the lives of sailors, soldiers or airmen in a conflict that in many instances could lead to death. However, in the Federal Republic of Germany and in Portugal the death penalty has been abolished for military offences. As my hon. and learned Friend the Member for Accrington said, there are some strange reasons in other countries why a person may be executed. I understand that in the United States and in France striking the flag without authority can lead to one's demise and departure to "another place". That seems a severe penalty for something that does not strike me as being a capital offence.

My main reason for favouring the new clause is that the death penalty has been implemented on few occasions over the past 40 years. In 1942 three soldiers in the Ceylon garrison were convicted of and executed for armed mutiny. In 1942 a soldier was executed for treachery after having been taken prisoner. I understand that 45 men were convicted of murder outside the United Kingdom before the abolition of the death penalty. I am not saying that the law has become completely in abeyance, but the fact that the ultimate sanction has been applied so infrequently gives me good reason to support the view that it is an unnecessary deterrent even during a conflict.

I add to that my objection on ethical grounds. During a military conflict there is the risk of a miscarriage of justice in the heat of the moment. I confess that the Ministry advanced strong arguments why the process would not be telescoped. Nevertheless, in the heat of battle one cannot be certain of its eventual outcome. The arguments are not crystal clear. A military situation is different from a civil situation. The arguments are finely balanced. Despite the Ministry's persuasive arguments I am of the opinion that the deterrent argument has not been overwhelming when set against ethical considerations.

Finally, the fear of summary justice during a time of conflict persuades me that on balance I should oppose the Ministry's argument and support the new clause.

10.15 pm
Mr. Bob Cryer (Keighley)

I support my hon. and learned Friend the Member for Accrington (Mr. Davidson). It is an anachronism that we should be considering the death penalty for certain offences in the Armed Forces while it has been largely abolished for civilians, as the Select Committee's report observes. As my hon. and learned Friend has said, both West Germany and Portugal have abolished the death penalty for a similar range of offences.

Mr. Robert Atkins (Preston, North)

It has not been abolished in Russia.

Mr. Cryer

The Minister said in evidence to the Select Committee that the Warsaw Pact countries were not taken as a model. Presumably that is not an argument that weighed with the Ministry of Defence.

My hon. and learned Friend the Member for Accrington specifically asked Mr. Dromgoole, who was giving evidence to the Committee: As far as you know have they had a problem in peacetime? The reply was: We are not aware of any predicament which the Germans might have experienced under this heading. We have troops stationed in Germany, which is one of our NATO Allies, with which we work closely, and the death penalty has been abolished there. The question was put to a representative of the Ministry of Defence whether any problem had arisen and the answer was that it had not.

The penalty is clearly otiose. The last occasion when it was put into effect was nearly 30 years ago. It is absurd that we should carry on this fiction, which requires that if people are to give of their best and not aid the enemy they have to have the threat of the death penalty. Surely any army of efficiency and effectiveness, as has been said again and again in the previous debate, does not need such a deterrent, which has not been used. If we have reasonable Armed Services, they do not need the threat of what appears to be something that is not even well known.

The members of the Select Committee had to be assured that the members of the Armed Forces were aware of that deterrent. Some of the witnesses said that they were reasonably sure that the people were informed—at least the officers knew about the deterrent. However, presumably it would apply to the other ranks as well. If they do not know about it, it can hardly be an effective deterrent.

Therefore, the general conclusion is that the penalty is otiose and out of date, but thankfully it has been largely abandoned in this country. It should be abandoned for the Armed Forces.

The Under-Secretary of State for Defence for the Army (Mr. Philip Goodhart)

As the Committee will be aware, the 1976 Select Committee on the Armed Forces Bill recommended in its report that the Ministry of Defence should review the need for the retention of the death penalty, particularly with a view to reducing the categories of offence for which it may be awarded.

The review has been carried out. Under clause 17, the scope of the death penalty is reduced by the abolition of the death penalty as the maximum sentence under section 93 of the Naval Discipline Act 1957 for spying for the enemy on board one of Her Majesty's ships or within a naval establishment outside the United Kingdom and Colonies.

There are now five classes of offences in each of the Service Discipline Acts which apply to Service men which carry the death penalty. These include such offences as communicating with the enemy, obstructing operations, mutiny or incitement to mutiny, and surrender of a place to an enemy without lawful excuse. The sentence of death can apply only where the offence was committed with deliberate intent to assist the enemy or, in the case of mutiny, to avoid or impede operations against the enemy.

The offences which I have described are of the utmost seriousness because they can put in danger the force to which the accused belongs and might threaten the outcome of a battle or campaign. It is worth remembering, as the hon. and learned Member for Accrington (Mr. Davidson) reminded us, that there are parallels in other NATO countries, with the exception of the Federal Republic of Germany and Portugal, for all of the United Kingdom offences attracting the death penalty. At least four NATO countries—Belgium, France, Norway and the United States of America—have a greater number of offences attracting the death penalty in wartime than we do. It is worth noting that they are all countries where the death penalty in civilian life is used exceptionally sparingly, if at all.

In contrast with NATO practice, in the Soviet Union in war some 16 criminal offences are punishable by death. They range from insubordination through desertion to abandonment of a sinking warship.

The Armed Forces are convinced that the death penalty is a deterrent at time of war, and I ask the hon. and learned Member for Accrington to seek to withdraw his new clause. Alternatively, I ask the Committee to reject it.

Question put and negatived.

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