HL Deb 04 May 1909 vol 1 cc722-9

Order of the Day for the Second Reading read.


My Lords, your Lordships will expect me to explain in a few sentences why this Bill has been introduced, and the reason that it takes the present form. Your Lordships will remember that at a late stage of the Children Bill last session my noble and learned friend on the Woolsack introduced a clause which provided, in effect, that in every case of murder of a child up to the age of one year by the mother, the Judge trying the case should have the option of sentencing the person as if convicted of manslaughter instead of pronouncing the sentence of death. My noble and learned friend supported that proposition on two main grounds. The first was the mockery, as he properly called it, under some circumstances, of pronouncing the death sentence in a case in which it was known that it would not be carried out, and he referred to the fact that the death sentence in the case of the murder of an infant child by the mother had not been carried out for something like twenty-seven years. He also urged his clause upon the ground that there would be a greater opportunity of getting convictions.

I felt obliged—and the majority of your Lordships agreed with me—to oppose the Lord Chancellor's proposal. It was open to the serious objection that it placed the death penalty in the option of the Judge, and, in my judgment, for reasons which I gave last year but need not repeat again, it would be a disastrous thing in the administration of the Criminal Law if any such option existed. In that view I was supported by the majority of your Lordships, and the clause did not pass. An appeal was then made to me from more than one quarter of the House, notably from the Bench of Bishops, that, as I had recognised to the full how undesirable it is that the death sentence should be pronounced where there is no reasonable probability of its being carried into effect, I should endeavour to deal with the matter so as, at any rate, to get rid of that objection.

The clause of last year proposed to deal with the deaths of children up to the age of one year. That, of course, might have been modified. A most careful examination of this question has led me to the conviction, in which I am supported by those who are working every day in connection with the protection of child life, that the number of child murders is so great—I will not trouble the House with the statistics, although they are alarming—that we ought to do nothing to in any way spread the feeling that there is to be any less punishment in cases of child murder. Therefore, I felt that I was bound to deal with the case from the point of view in which I could meet the objection raised by the Lord Chancellor—namely, in regard to the pronouncement of the death sentence. After careful consideration and consultation with others competent to express an opinion, it seemed to me that the only way in which I could do that was by applying to a limited class of child murder the privilege now given in a number of cases of recording the death sentence instead of pronouncing it.

Then I had to consider the class of case to which that ought to be applied. It unquestionably ought not to be applied to cases where the child is murdered after the recovery of the mother from her confinement. Deliberate murders of infants from three to six or nine months by poor women who desire to get rid of their offspring are among the worst murders. Then there are, again, murders where preparation has been made, even before birth, for getting rid of the child. Therefore I have limited the Bill to cases in which the mother has not fully recovered from the effect of giving birth to the child, and in which the learned Judge thinks there ought to be an exercise of the prerogative of mercy.

It will be said, and truly said, that I am attempting to alter the considered opinion of the Judges of the day in 1860. I have attached to the Bill a short Memorandum reminding your Lordships that in cases of piracy (with attempt to murder) and burning of dockyards, cases in which, as in murder cases, sentence of death necessarily follows (12 Geo. 3. c. 24. s. 1; 7 Will. 4 and 1 Vict. c. 88. s. 2), there is express statutory authority under the existing law for following the procedure adopted in the Bill, namely, recording the sentence of death without actually pronouncing it 4 Geo. 4 c. 48; 7 Will. 4 and 1 Vict. c. 77. ss. 3 & 4); and up to 1862 that might have been done in cases of murder. As a result of the appointment of a Committee, on which many eminent Judges sat, the Act of 1862 was brought in, and since then the death sentence must be pronounced in all cases of murder. I recognise the weight of that authority, and hesitated before introducing a contrary proposal; but I did feel that the case made by the Lord Chancellor for preventing the solemn pronouncement of the death sentence in cases where it would not be carried out ought to be met as far as possible. It seems to me that the best way of meeting it is that proposed in the Bill. I am quite aware that this Bill does not go as far as the proposal of the Lord Chancellor. As to my noble and learned friend's opinion, he will, of course, state it for himself. I did not introduce the Bill without conferring with him. I have also communicated with the Home Secretary, and as far as the Bill goes, he approves of it, though he would be glad to see it go further. Personally, I cannot conscientiously say that I think it ought to go further. I beg to move.

Moved, That the Bill be now read 2a.—(Lord Alverstone.)


My Lords, I have a few words to offer to your Lordships on the subject of this Bill. The House will recall that on the consideration of the Children Bill last session I moved an Amendment that in cases of child murder it should be in the discretion of the Judge, if he thought right, to abstain from imposing the death penalty, and to inflict, instead, a lesser and more proper sentence on the guilty prisoner. The grounds upon which I maintained that proposition were plainly stated. In the first place, it is wrong that the terrible and solemn event of passing sentence of death in a Court of Justice should partake of the character of mockery. My noble and learned friend said there had not been an execution for such an offence for twenty-seven years. Not for sixty years has there been any execution for such an offence, whatever Home Secretary, whether legal or lay, has been in office. The second ground was that the knowledge that the death sentence would be imposed in such cases prevented evidence from being obtainable for securing suitable and proper punishment for those who were guilty. That proposition has never been contested or denied. The third reason which I gave was that the same dread of committing the power of death over these unfortunate persons into the hands of the Executive Government moved juries to return verdicts of not guilty. In these circumstances it seemed to me a small thing to ask that His Majesty's Judges, who have to discharge the painful duty of seeing that a proper verdict is given, so far as they can, in cases of life and death, should be entrusted with part of the prerogative of mercy, so that they should be able of themselves to say that this sentence should not be passed and that the wretched person should not be put in the agony of the dread of death when it was certain that the sentence would not be carried out. I cannot myself honestly say that I understand why His Majesty's Judges should object to being invested with this particular part of the prerogative of mercy.

Your Lordships did not assent to my proposal last year, but it was only rejected by a narrow majority. I was defeated by six votes, which, in this House, having regard to the experience of recent years, may be regarded as rather a triumph on my part. I was, however, defeated; but I am glad that what was said on that occasion has borne a little fruit. Now my noble and learned friend the Lord Chief Justice proposes that the sentence of death, instead of being pronounced in open Court, should be recorded in secret. But the punishment will still remain unless the Sovereign interposes. I think that with the knowledge that the punishment remains, the same influences will still operate on witnesses and juries. All that will happen is that the sad pageant of passing the death sentence in open Court will be dispensed with. Except for what takes place in Court, there is absolutely no difference between the present law and the law as it would be after this Bill passed. I shall certainly vote for the Bill, although I should be glad if it went further. But I am sure the Lord Chief Justice will not be surprised if, supposing that it is not altered in your Lordships' House, it comes back from another place wearing a very different appearance and going much further.


My Lords, the House is in a somewhat novel position. We have the Lord Chief Justice recommending a Bill which is to practically abolish the penalty of death according to law in certain cases by a statement that the crime of infanticide, at which it is directed, is appallingly on the increase. That is an extraordinary proposition; and my noble and learned friend on the Woolsack has suggested that he is going to vote for the Bill under the belief and conviction that it is to come back to this House a very different Bill from what it is at present. I must say I do not think that is a very respectful mode of suggesting legislation to any deliberate assembly.


I said supposing the Bill not to be altered in this House in the first instance. I did not exclude that hope.


Of course I accept that correction, but I gathered from what the Lord Chancellor said that his vote would be given for the Bill because he thought it would be altered. I confess that I entertain the same view towards this Bill that I did when its substance was last before the House. To any one who knows the statistics of infanticide, it is very unwise to take away from that crime the terrors that follow upon it. I believe that the present system acts as a deterrent, though not so much as it should do. This Bill is only to apply to those who may be supposed not to have recovered from the effects of child birth. The answer I make to that is that the Judge to whom so much is to be entrusted could not have performed his duty, or otherwise the conviction could not have taken place in that case. For those reasons I certainly shall vote against the Bill, and I am extremely sorry that this question should be, as I think, somewhat trifled with in the mode in which it has been. There is one reason, I think a very good reason, apart from what the Lord Chancellor has said, why the Judge should not be entrusted with this power. The power still exists of relieving from the death penalty where it is considered it ought not to be carried out, and that power is committed to the Government of the day, who exercise it subject to responsibility to Parliament. To entrust the Judge with the power of remitting the death penalty is to shift responsibility which ought to be borne by the Government of the day. That was one of the things gravely commented on a good many years ago, and which led to the alteration of the law in the year 1862, by which it was rendered necessary that the sentence of death should be pronounced by the Judge, leaving the power of remission to the Government of the day.


My Lords, as one who has for some years taken great interest in the reform of our Criminal Law, I regret that I find no cause for enthusiastic support of this Bill. I must congratulate my noble and learned friend the Lord Chief Justice on his appearance to-day as a Criminal Law reformer. That is a role which I am afraid has not been played hitherto by our principal Judges. My noble and learned friend, with every good intention, has introduced a measure which, if analysed, cannot be satisfactory to anybody. My noble and learned friend in this very proposition gives the key to what the remedy ought to be. Why should he not say that if the conditions to which he refers exist and the woman takes the life of the child at a time when she has not recovered from the effects of child-birth, the offence should then become one of manslaughter? If that were the provision in the Bill it would meet all the objections and would throw upon the Judge the responsibility of saying what the sentence should be. How is humanity benefited by this Bill? Do you spare the feelings of the prisoner? What is to be her fate? She is to be told, as she descends into the cell, possibly by the female warder, that the sentence of death has been recorded against her. The fact remains that it is the sentence of death. But the proposition of my noble and learned friend gets rid of the deterrent effect of the death sentence being pronounced in open Court. I ask, Is this an advance in criminal reform? I say it is not. I was at one time in despair that we should have any reform in our Criminal Law. We have lately had several great reforms. My noble and learned friend Lord Halsbury gave us the reform under which prisoners are permitted to be examined in their own defence. We were told that all the evils possible would result from that reform; but now we have Judges bearing testimony to its value and thanking the Legislature for allowing them the opportunity which this reform affords of acquitting innocent persons who might otherwise have been convicted. Then my noble and learned friend on the Woolsack gave us the Court of Criminal Appeal. We were again told that that would produce evils, but it is working wonderfully well, and innocent people are being set free by virtue of that Court. Had my noble and learned friend suggested in this Bill that if, owing to a woman's condition after child-birth, she had committed a crime that might rank as manslaughter, we could then insist that the Judge should bear the responsibility of saying that she should not be sentenced to death but to exactly that amount of punishment that represented the measure of her crime.

On Question?—

Their Lordships divided:—Contents, 75; Not-contents, 18.

Canterbury, L. Abp. Morley of Blackburn, V. Haversham, L.
Loreburn, L. (L. Chancellor.) Ridley, V. Herschell, L.
Wolverhampton, V. (L. President) Selby, V. Hindlip, L.
Crewe, E. (L. Privy Seal) Hylton, L.
Bangor, L. Bp. Lawrence, L.
Bedford, D. Lochee, L.
Airedale, L. Lovat, L.
Lansdowne, M. Allendale, L. Ludlow, L.
Salisbury, M. Alverstone, L. [Teller.] Mac Donnell, L.
Balfour, L. Marchamley, L.
Beauchamp, E. (L. Steward.) Barnard, L. Monk Bretton, L.
Camperdown, E. Barrymore, L. Monkswell, L. [Teller.]
Cawdor, E. Belper, L. Mount Stephen, L.
Cromer, E. Biddulph, L. Newlands, L.
Dartmouth, E. Blythswood, L. Newton, L.
Hardwicke, E. Braye, L. Northcote, L.
Lauderdale, E. Brodrick, L. (V. Midleton.) O'Hagan, L.
Morley, E. Burghclere, L. Pentland, L.
Roberts, E. Colchester, L. Reay, L.
Vane, E. (M. Londonderry.) Colebrooke, L. Ribblesdale, L.
Waldegrave, E. Courtney of Penwith, L. Sanderson, L.
Egerton, L. Sandhurst, L.
Cross, V. Ellenborough, L. Savile, L.
Falkland, V. Eversley, L. Shuttleworth, L.
Hampden, V. Farrer, L. Sinclair, L.
Hardinge, V. Fitzmaurice, L. Waleran, L.
Knutsford, V. Grannard, L. (E. Granard) Weardale, L.
Marlborough, D. Liverpool, E. Curzon of Kedleston, L.
Lovelace, E. James, L.
Bath, M. Nelson, E. Kinnear, L.
Bristol, M. Macnaghten, L. [Teller.]
Ampthill, L. St. Davids, L.
Cathcart, E. Atkinson, L. Saye and Sele, L.
Halsbury, E. [Teller.] Collins, L. Zouche of Haryngworth, L.

Bill read 2a accordingly, and committed to a Committee of the Whole House.

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