§ Order of the Day for the Second Reading read
§ LORD DARLING
My Lords, I venture to ask your Lordships to give a Second Reading to this Bill, which would alter the law in one important respect regarding trials where the insanity of the person accused is alleged. I should not have ventured to bring a matter of this importance before the Legislature but that owing to the appointment of a Committee by the late Lord Chancellor, the Earl of Birkenhead, the matter has become one which can hardly be left in the position in which it at present stands. The Committee which was appointed to inquire into this question made a Report some months ago, and I had thought that action would have been taken by some one far more capable and better entitled to address your Lordships than I can pretend to be. But nothing has been done. I feel certain that the public expects that the matter should at all events be discussed, and therefore I brought in this Bill and now move its Second Reading. I am perfectly well aware that there will be considerable opposition, and what is about to begin may develop into a pitched battle. But it has often happened that some poor franc-tireur has begun what has in the end become a most important victory. And I am aware that the heavy artillery is in position and will be brought to bear upon this Bill before much time has elapsed.
I may be excused for reminding your Lordships of what has long been the position of persons accused, let us say, of murder, because that is the simplest case and because this excuse is very seldom alleged except in cases of murder. I will therefore deal with this as though it were a case in which the person is accused of murder. The law has long been that insanity, as recognised by the law of England, entitles the accused person to escape capital punishment. The law long 444 was—in fact, until 1883—that in such a case, if the jury came to the conclusion that the accused was insane, the verdict was "Not guilty," because the accused was insane at the time of committing the act which otherwise would have been a crime; and therefore the accused was ordered to be detained during His Majesty's pleasure; that is, he was sent to a lunatic asylum. By a phrase that law was altered, and one of the improvements which I desire to make (and I think no one will contest this) involves the repealing of the Statute passed in 1883. There is no need to go into why it was passed. There were no good reasons for passing it at all and no reasons were ever alleged when it went through, either by your Lordships' House or the House of Commons. The law was altered in this respect: that if a person was proved to be insane the verdict was to be "Guilty of doing the act charged but insane at the time." I think your Lordships will agree that that is perfectly illogical and indefensible. To be guilty involves crime; to commit a crime involves the having of what the law calls mens rea, but a person who is insane has no knowledge of right and wrong, and it is absurd to say "Guilty of an act": one might as well say "Guilty of playing cricket or football," or doing many other things which involve no crime, although they are highly inconvenient very often. But this Act was passed and one of my proposals—an innocent proposal, and one that I hope may induce your Lordships to read this Bill a second time if the rest has to be thrown over, for that can be done in Committee—is to bring back the law to what it was before this absurd Statute was passed.
I will say no more about that, but come to the more contentious part of the Bill. With regard to that, the law of England recognises that, a person should be declared "Not guilty" upon indictment if insane in the sense of the law of England. My reason for bringing in this Bill is that there has long been a contest between the medical specialists and the law. These medical specialists have contended, and still contend, that directly they say that a person is insane in their sense he shall be absolutely unpunishable, no matter what crime he may have committed. Some of them call themselves determinists; some of them contend that we are merely automatic creatures, who 445 act with no control whatever over our motives or our actions. The law of Eng land has never recognised that, and I hope never will. But, it has recognised that a person may be insane in a legal sense, and so entitled to a verdict of" Not guilty "where the act ho has done, if clone by a sane person, would involve a verdict of "Guilty" and a following punishment. It is so long since the law stood in this position that no doubt there must be some modification owing to modern research and recent knowledge.
Lord Hale wrote his "Pleas of the Crown" in the seventeenth century. It is a book reverenced by those who have regard and affection, which I and most lawyers process, for the Common Law of England. The Statute Law—those may praise it who admire it Lord Hale wrote this:In process of time the Common Law received a greater perfection, not by change of the Common Law, as some have thought, for that could not be but by Act of Parliament; but men grew to greater learning, judgment and experience, and rectified the mistakes of former ages and judgments.Lord Hale's book which was written so long ago as that was so esteemed then that the House of Commons, in 1680, ordered it to be printed for the benefit of those who bad studied the Common Law and it has been a text book ever since. But notice what he says. He recognises that that has been done which is what I would ask should be further extended; he recognises that as men grew to greater learning, judgment and experience (most flattering to ourselves) they rectified the mistakes of former ages and judgments.
When he wrote that, what was the condition of medical knowledge? Very different from what it is to-day. I suppose nothing has advanced more than medical learning since the time of Lord Hale down to our own days. It has advanced by leaps and bounds within the last ten or twenty years. At that time, in 1680, Harvey's discovery of the circulation of the blood was very recent. Seven years before that date Molière had just produced "Le Médecin Malgré Lui."At that time the bourgeois who was told by le médecin malgré lui that the lungs were on the left side of the body and the heart on the right, was perfectly satisfied when the doctor said to him that it was so formerly, but "nous avons changé tout cela. "The doctors then knew practically nothing, if 446 I may say so, and le médecin malgré lui knew about as much as the most learned of them. But since that time knowledge has so advanced that things can hardly be left where they are at present.
We administer the law as it was laid down in 184.3. In that year, if your Lordships will pardon me for reminding you of it, Mr. Drummond, who was Secretary to Sir Robert Peel, was murdered by a man named McNaghten, in Whitehall. McNaghten mistook Mr. Drummond for Sir Robert Peel. McNaghten was a man who suffered from delusions. He suffered from some wrongs, as he supposed, and his delusion was that all these wrongs were caused, as he said, by the Tories. I hear some of your Lordship, saying that he was not alone in that delusion. He was not: but the melancholy part of it is that in some important families of this country that particular delusion became hereditary. So McNaghten, thinking that he had a grievance against the Tories, made up his mind to sacrifice Sir Robert Peel, of whose politics at that time I have not enquired. It may be that he was already merely a Peelite. At all events McNaghten made up his mind to destroy him but, by mistake, be killed Mr. Drummond, his secretary.
When McNaghten was tried he was defended by Mr. Cockburn, Q.C., afterwards Lord Chief Justice Cockburn, and, as your Lordships may suppose, he was defended in a speech of marvellous brilliance. He was acquitted on the ground of insanity, but I imagine that there was great public dissatisfaction with the result. He was found to be not guilty because insane, and yet he had killed a perfectly harmless man who had given him no provocation whatever. Thereupon an unusual thing was done. The Judges were summoned to this House. The Judges attend to consult and advise whenever the House desires their assistance. They come here by a Writ which they receive at the beginning of every Parliament. The Judges were asked then to come here and to give their opinions not upon a purely hypothetical case, though I believe they might be asked to do that, but upon this case of McNaghten. They gave their opinions, which have been embodied in the Common Law of England ever since.
One may say, of course, that they merely expressed what was the Common Law, 447 for the Judges had no legislative authority whatever, and have not now. They expressed their opinion in certain statements which are now known as the Rules in McNaghten's Case. Whenever a Judge sums up in a case of murder, he lays down the law in the terms of the advice then given to your Lordships' House by the Judges who were summoned; I think that thirteen of them attended. The two Rules which matter are these. The jury are told to inquire whether, when he did the act which resulted in the death of the man, the defendant knew the nature and quality of the act that he was doing; and to answer this further question: Did he know that the doing of the act was wrong? If so, he is guilty. If he did not know this, then he is not guilty on the ground that be Was insane.
Now, doctors of all descriptions have quarrelled with this and have said that it takes no notice of a further possibility—that it simply deals with the intellectual qualities of a man and these are not exhaustive in the case of insanity. It is desired to add to the Rules in McNaghten's case another Rule which I venture to propose in this Bill. I had better, perhaps, read the very words. It is proposed to recognise the McNaghten Rules—they are printed in the Bill—and to add this to them, that the accused is entitled to a verdict of not guilty on the ground that he was insane
if, at the time the act was done or omission made which caused the death, he was suffering from such a state of mental disease as therefrom to he wholly incapable of resisting the impulse to do the act or to make the omission.
That introduces what is known as the doctrine of irresistible impulse. I recognise, of course, that this is a most controversial matter.
I would point out that when McNaghten was on his trial before three Judges—Sir Nicholas Tyndal, Baron Alderson and another—Mr. Cockburn made a remark in the course of his address to the jury which I desire to read to your Lordships to show that this is no new idea, that it is not heard of in the Courts or in Parliament for the first time. This is what Mr. Cockburn said:—Modern science has incontrovertibly established that any one of these intellectual and moral functions of the mind may be subject to separate disease and thereby the man may be rendered the slave of uncontrollable impulses impelling or rather compelling 448 him to the commission of acts such as that which has given rise to the case now under your consideration.And he quoted from a book which I believe is of great authority: the Lord Chancellor, I have no doubt, is acquainted with it though I have very small knowledge of it myself. It is the work of David Hume who was a philosopher, though not, perhaps, the greatest of that name. He was David Hume who afterwards became Baron Hume, a Scottish Judge. Mr. Cockburn cited Hume's "Commentaries on the Law of Scotland," and read a good deal from the work.
I will read to your Lordships one passage only, which I take from Mr. Cock-burn's speech. Baron Hume said that—Such a disease as deprives the patient of the knowledge of the true aspect and position of things about him … and gives him up to the impulse of his own distempered fancy "—excused him, in the eyes of the law, as being an insane man. Mr. Justice Stephen, not as a Judge but in his treatise on the laws of England, laid it down that, in addition to the McNaghten Rules, this Rule, which I would ask your Lordships to authorise, was already part of the law of England. That has been disputed, but he was a man of very great learning, well remembered by all who still study the law, and he laid it down as being his opinion that it was already part of the law of England.
I would venture to read, in order to show your Lordships that this view has occurred to Judges long before this Report was produced, a few more words. In Oxford's case—that was the case of a man who shot at Queen Victoria in 1840, and who was tried before Lord Denman, Chief Justice—Lord Denman said:—A person may commit a criminal act and not be responsible. If some controlling disease was, in truth, the acting power within him which he could not resist, then he will not be responsible.Those words used long ago are very strong. "If some controlling disease was, in truth, the acting power within him which he could not resist "—almost the very words which we desire to make the law by Statute to-day. There is complete justification, I submit, for the opinion of Mr. Justice Stephen—Sir Tames Stephen as he then was—when he wrote those words that the Rule was "already part of the law of England."
449 Now I come to much more recent times, and to rear the end of what I have to say to your Lordships. I desire to read what Judges have quite, lately said upon this matter. This has not been recognised yet by the Court of Criminal Appeal as the law of England and therefore there is a necessity for a Statute. In the course of the case of Victor Jones which came before the Court of Criminal Appeal in 1910, Lord Alverstone, then Lord Chief Justice, said—There is no need here to enter upon a disquisition as to the terms in which the question ought to be left where a person is prevented by defective mental power or mental disease from knowing the nature of his acts or controlling his conduct. It is not made out in the case that appellant was not in a condition to be aware of the nature of his act or that he was prevented from exercising self-control.Your Lordships see that the evidence there proved that that was not his condition, but the Lord Chief Justice went on to say—A grave responsibility will lie upon this Court whenever it shall become necessary to decide those large and important questions which have been raised in the argument.Later, in 1915, in the Court of Criminal Appeal, Mr Justice Bray made a pronouncement upon this subject. Mr. Justice Bray was well known to us all in the King's Dench, of which I was proud for many years to be a Judge, as a man who had devoted himself absolutely to his profession. He was a very learned lawyer, and his opinion was accepted by those with whom he sat, or who heard it delivered, as being an opinion of very great authority. I will read to your Lordships his words in the case of the King v. Fryer in 1915. He stated the McNaghten Rules as I have read them, and then went on to say—That is the recognised law on the subject, but I am bound to say it does not seem to me to completely state the law as it now is, and for the purposes of to-day I am going to direct you in the way indicated by a very learned Judge (Mr. Justice Stephen) and follow his direction that if it is shown that the prisoner is in such a state of mental disease or natural mental infirmity as to deprive him of the capacity to control iris actions, I think you ought to find him what the law calls him—insane—because it seems to me that if there is such a disease of the mind not caused by any accident but an actual disease of the mind such as to deprive him of the capacity of controlling his actions, in my opinion a jury should find him insane if that is 6hown to have existed at the time of doing the act.450 It is plain from that that Mr. Justice Bray recognised that such was the law of England, and he laid it down, in summing up to a jury, that the very thing which I ask your Lordships to declare to be the law of England by this Bill was recognised as the law of England.
Another case which I should like to read to your Lordships—and it is the last one—is the case which caused very great excitement a few years ago. It is the case, of Ronald True, who was found "Guilty," after being defended on the ground that he was insane, and sentenced to death. Then there came an inquiry by the Home Secretary such as must take place—I will tell your Lordships presently a little more about that—by reason of the existence of Statutes, and, he was found by medical experts to be insane. Though he had been condemned to death, the Home Secretary—Mr. Shortt, I think, was Home Secretary, and his action was very much misunderstood and unjustly criticised and condemned by people who knew nothing about the matter—had no option but to excuse this man from being sent to the gallows, and order him to be sent to a lunatic asylum, not because the verdict of the jury was wrong, but because afterwards, when he was examined, he was found to be insane.
True was tried by Mr. Justice McCardie. Mr. Justice McCardie, happily, is still a Judge of the King's Bench Division, and, as everybody recognises, a Judge of very great learning indeed. Mr. Justice McCardie, in the trial at the Old Bailey, summing up, said this:Now I shall leave to you, gentlemen, a further point. I must say the case has given me much anxiety because of the conflict of opinion which has existed in the past and exists at the present time as to the law, and I shall put this point to you: that even if the prisoner knew the physical nature of the act, and that it was morally wrong and punishable by law "—your Lordships note that that specifies the two McNaghten Rules—yet was he through mental disease deprived of the power of controlling his actions at the time; if "yes," then, in my view of the law, the verdict should be ' guilty but insane.'Mr. Justice McCardie laid it down that the law already is just what I am asking your Lordships to assist in declaring to be the law by giving a Second Reading 451 to this Bill. The case did not arise in the Court of Criminal Appeal. The jury found True to be guilty, and he was sentenced to death. It is difficult to get these cases before the Court of Criminal Appeal because where a jury say "Not guilty" there is no appeal. The Crown cannot appeal, and it is therefore difficult to get a decision of the Court of Criminal Appeal on these points. But in what I have read you have the dicta upon this point of Lord Denman, Lord Alverstone, Mr. Justice Bray and Mr. Justice McCardie, adopting in so many words the opinion of Sir James Stephen that this is already the law of England.
The Bill seeks to provide that if it is proved that a man, through a disease of the mind—and that is postulated—cannot control the act which he does, and which otherwise would be criminal, then the verdict is to be "Not guilty because insane," and the asylum follows. I would ask my noble and learned friend Lord Sumner, who I understand is to move the rejection of this Bill, to state categorically whether he, and those who think with him, recognise that there is actually such a thing as uncontrolled impulse due to disease of the mind? If they say "No," then they are in direct conflict with practically all the medical opinions of the day. If they say "Yes," then I ask these further questions: If you recognise it, why have the man condemned? Why, if he is suffering from disease of the mind which renders him incapable of controlling his action, condemn him? Why not find that he is not guilty because he cannot control himself, and send him to the proper place, the lunatic asylum? I respectfully ask my noble and learned friend to answer these questions.
I have already said that this matter was submitted to a Committee by my noble and learned friend the Earl of Birkenhead. Who were they? A Committee of greater authority upon such a matter could hardly have been found. They were not psychologists or medicopsychologists. They were all practising lawyers with a good deal of experience in such matters. I will read their names. The Chairman was Lord Justice Atkin, and I need say nothing as to his competency to investigate such a matter as this, or matters far more difficult Then there was Sir Ernest Pollock, who was Attorney-General and is now Master of 452 the Rolls, a man of large experience of the criminal court. The next was Sir Thomas Inskip, who became Solicitor-General. The next was Sir E. Marshall Hall, who has enormous experience chiefly in defending persons, often with great success. The next was Sir Herbert Stephen, a son of the great Judge, whose name I have already mentioned, and who is well-known as a man of great legal learning and very far from being a sentimentalist. In fact, I think that Mr. McNaghten would have shot him at sight as being a Tory of the most extreme description. The next was Sir Richard Muir, who was for years leading counsel for the Crown appointed by the Public Prosecutor to prosecute at the Old Bailey and all over the country. The next was Sir Archibald Bodkin, the present Director of Criminal Prosecutions. The next was Sir Edward Troup, well known as the adviser for many years of the Home Secretary. Then there was Sir Ernley Blackwell, who succeeded Sir Edward Troup, and is a man of the greatest influence and experience in these matters.
What did they recommend? They made their Report—Sir Herbert Stephen differed on one point, but as that point is not involved in this Bill I will not refer to it further—and they said—it is on page 8:It was established to our satisfaction that there are cases of mental disorder where the impulse to do a criminal act recurs with increasing force until it is, in fact, uncontrollable. … We appreciate the difficulty of distinguishing some of such cases from cases where there is no mental disease, such as criminal acts of violence or sexual offences where the impulse at the time is actually not merely uncontrolled, but uncontrollable. The suggested Rule "—That is, the Rule I have put in this Bill—however, postulates mental disease; and we think that it should be made clear that the law docs recognise irresponsibility on the ground of insanity where the act was committed under an impulse which the prisoner was, by mental disease, in substance deprived of any power to resist.That is the recommendation of this Committee.
Why was it appointed? Why were these men, specially competent to give an opinion, asked to investigate and give their opinion if no notice was to be taken of it? I simply ask your Lordships to declare to be the law that which they recommended should be made the law and 453 which Judges have already declared to be the law. The Rule as I would have it—I do not want to be too long as I have spoken long enough already—is already the law in Germany, Italy, South Africa and Queensland. Therefore, in two important Dominions it is recognised as being the law and it is also recognised in two European countries as well.
There is one other matter which is mentioned in the Report, and to which I would draw attention. One of your Lordships who is sitting near to me has been Home Secretary, and must have had experience as to what happens according to Statute. As I have stated, if, after conviction, the Home Secretary has reason to believe from information brought to his notice that the prisoner is even then insane, he is bound to appoint medical experts to examine the prisoner; and if they report that, he is then insane, the man must, without any further trial, be sent to a lunatic asylum. He cannot be hanged. The Committee have dealt with this matter. They say that it is absolutely necessary, and so it is. I do not desire to interfere with it in any way. But what does it involve? The jury have heard all the inquiry, they have had the summing up according to the law and they have found the man to be guilty, and yet there must be an inquiry afterwards at the instance of the Home Secretary, in very many cases—in every case which excites much public attention and the trial then, as to whether he is insane or not, takes place in camera before two or three medical experts. If they say the man is insane, he cannot be hanged.
This Report recognises that they go into the whole trial, that they consider, not only the questions which they put to the man and his answers, but also that which happened at the trial, and they come to an opinion which obliges the Home Secretary to say that the man must not pay the ordinary penalty of his crime. Why do they do it? They do it because they are allowed to introduce into their inquiry that which I desire to have introduced at the trial. They do it because they extend their inquiry beyond the Rules in the McNaghten case. I would ask: What is the position? How is that logical or possible to defend? Suppose the question were: "Is the man an educated man?" That has to be tried 454 and tested, and you empanel a jury in a court of law and ask them if the man is educated. That is the question as to which the jury has to say "Yes" or "No." The Judge would say: "You will consider whether he can read, and you will consider whether he can write."That is like the two Rules in the McNaghten case. The Judge will go on to say: "If he can write, and if he can read, you will say that he is an educated man; if he can neither read nor write you will say that he is not an educated man." Supposing the jury say: "He can read and he can write, and we find him to be an educated man," what happens next? There comes a further tribunal who, in a room alone, consider the further question whether he can do sums, whether he understands arithmetic or, it may be, algebra, and if he does not they reverse the finding of the jury and say that he is not an educated man. "He can read and he can write, "they say," the jury in their darkness find that he is an educated man; but we know better. He cannot do sums, and therefore he is not an educated man." Is not the case a precisely parallel one? What can one say of such logic as that?
I have only a word or two more to add. I am at the disadvantage of everyone who opens a case, because I do not know what the objections will be, but I have a notion that many people object for some such reason as this. They say: "If you pass a Rule like this, it will enable practically everybody to escape; juries will take advantage of this Rule to say that the man is insane." I am bound to say that this supposition does not appeal to me. For fifty years I have been in the practice of the law, and for twenty-six years I was a Judge of the King's Bench. I have therefore seen many juries and had to do with many trials, and it may surprise some people to know that I believe in trial by Judge and jury. A member of your Lordships' House took as his motto (and the family bear it still) the words, "Trial by jury." It is not trial by jury exactly, it is trial by Judge and jury. I would not trust juries to decide this or any other important question unless they received proper and adequate direction upon points of law, but where they receive proper and adequate direction upon points of law, such as they are sure to get, then I believe that juries are—I will 455 not say certain, but as sure as we can make sure of things in ordinary human affairs, to come to a right verdict, to a verdict which satisfies the public conscience.
Law is not an exact science—it is not like chemistry—but if it satisfies the conscience of the public, then I think the law does its duty, and I do not believe that juries are not to be trusted in this matter when they are trusted in so many other matters. People say that they will act according to their temperament. It was written by Mr. Wordsworth, who had studied the matter from Westminster Bridge, that the river which washes the walls of this House "glideth at his own sweet will," and many people seem to think that juries have the freedom of the Thames in flood. But they have not. The stream of English justice has long been canalised and directed and controlled, and while it is so directed and controlled I believe that this power may as safely be entrusted to the juries of England as the power which they now have. I thank your Lordships for listening to a too long speech, but it is an important question, and I trust that your Lordships may at all events allow this Bill to be read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Darling.)
§ LORD SUMNER had given Notice to move, as an Amendment, That the Bill be read a second time this day six months. The noble and learned Lord said: My Lords, in moving the Amendment which stands on the Paper in my name, I hope that neither my noble and learned friend nor your Lordships will suppose that I have any desire to treat in too summary a manner the Bill which he has introduced, or to behave as if the impression which has been justly produced by the extremely effective address to which we have listened were one that nevertheless might be swept aside as of no importance. The truth is that this is a single-clause Bill, or even a single-subsection Bill; it is a Bill which proposes to alter the law relating to the responsibility for crime committed by persons suffering from mental disease in a wholly novel and radical way. If your Lordships were to give the Bill a Second Reading you would give to this principle an approval which would be of the 456 greatest gravity, and would make the Committee stage a wholly minor matter.
§ This principle can be discussed, in so far as it can be discussed at all, here and now on the Second Reading as well as, and, I believe, much better than, on the Committee stage, and there is nothing in this Bill—although my noble and learned friend has referred to one very minor clause—that would, in my humble opinion, justify us in carrying the matter beyond this stage, unless it is intended not merely to discuss but to pass the Bill. If it was ever intended that this Bill should become a part of the law I must say that for my part I should have thought that it was a charge which should have been made solely at the instance of the Government, and on the responsibility of Ministers. There is one minor clause to which I might allude, perhaps, because I think it is not without some bearing upon the necessity which has been urged for this legislation. It is as follows—"This Act shall not extend to Scotland or to Northern Ireland." This is a Bill to remove from criminal responsibility those who commit a crime under an irresistible impulse. Why should it be confined in that way? Is it that in those countries not even madmen act upon irresistible impulse, or any impulse at all, or is it because if applied to Scotland or the North of Ireland the people who come from those parts of the country would refuse to have anything to do with the Bill?
§ I was asked a question by my noble and learned friend. He prefaced it by describing me as heavy artillery, which was rather depressing, but he asked me a question which is perfectly fair, and which I will endeavour to answer to the best of my ability. He asked: Do you recognise that there is such a thing as uncontrollable impulse due to disease of the mind? That, of course, must be understood to mean disease or uncontrollable impulse as distinguished from the other two branches of his clause; that is to say, cases where the criminal at the time of the act knows, understands and appreciates the physical nature and quality of the act done, and knows, understands and appreciates that the act done was wrong. Now, speaking for myself, I do not understand what is the supposed frame of mind, arising from disease, in 457 which a person does know the physical nature and quality of his act, and does know that the act done is wrong, and, notwithstanding, is suffering from such a state of mental disease that he is wholly incapable of resisting the impulse.
§ The only relevance of my confessing my inability to understand this intricate piece of psychology is to allow me to say one word in aid of juries. Juries must approach a question like this pretty much as I should. I think that juries, if asked that question, would feel themselves dismayed at having to answer it, and I do not think it is right to add to the puzzles which twelve men and women in the jury box have now to solve, by needlessly complicating the questions put before them in that sort of way. But since the Committee presided over by Lord Justice Atkin, adopting the view of a number of medical men who came before them, have said that it was established to their satisfaction that there are such cases, I am prepared to accept their better opinion and agree that such cases there are.
§ Then says my noble and learned friend: Well then! why should such a person be condemned? As to that there are two or three answers. For eighty years such a person has been condemned, if such a person has ever been brought before the Courts, and if the jury has been of opinion, under the direction of the Judge, that he was not insane; and I do not notice that in the Report of the Committee, or in the speech which we have just heard, there has been any serious attempt made to show that actual injustice has ever occurred—that there has ever been a case, that could be quoted, of plain injustice under the existing law. The question I should have liked to ask my noble and learned friend would have been this. His experience in these matters is immensely greater than mine. It is, I suppose, in length and richness not exceeded by that of any living Judge. Does he think that such cases as these are frequent? The Committee does not say so. All the Committee does say is that cases of mothers seized with an impulse to cut the throats, or otherwise dispose of their offspring, to whom they are normally devoted, are not uncommon.
§ They are not uncommon. That is undoubtedly so, but I never knew that 458 there was any difficulty arising with regard to those eases, because Judge and jury all do their best, and I think rightly do their best, to put such acts in what I conceive to be their proper light, and the verdict, I am sure with the full approval of the Judge, is that the act was done in a state of temporary insanity. There is no need in such a case as that to go beyond the limits of McNaghten's case as we know it. I remember one case in my own experience, in which nobody had any intention of allowing a verdict of "Wilful murder" to be found, nor was it. There are cases in which, for one reason or another, that coarse is not taken. The wretched person, no doubt, is sentenced to death, but the Judge takes as much care as he can that she shall not know what he is saying, and the exercise of the prerogative of mercy is as certain as that the sun will rise next day. Unless we believe that this class of case is common, and cannot be dealt with under existing law, what reason is there for altering the law? We ought not to legislate for exceptional cases.
§ My noble and learned friend pointed out how these cases can be dealt with, and as I conceive, most properly dealt with. There is an obligatory inquiry in some cases, and, of course, in all cases when the Home Secretary thinks it right for it to be held, and upon the results of the inquiry it is for him to advise the Crown, in his discretion, upon the exercise of the prerogative of mercy; and if there are cases in which some such frame of mind can be discovered, and validly established, as would make it wrong that the person should expiate his crime upon the scaffold, the ordinary course is taken and his sentence is commuted. Except in capital cases the remedy takes another form which is equally effective. In capital cases only one sentence, that of death, can be passed. This Bill does not propose to alter that; but in all other cases, where the trial Judge has a discretion over the sentence, as a matter of course he takes into account, when he passes sentence, any evidence which he may have before him showing that there were exceptional circumstances not amounting to a defence of insanity, such as evil communications, a tainted inheritance, and so forth, which might justly lead him to mitigate the sentence.459
§ Can it be that we want more than that for the purpose of dealing with cases, which are not very numerous and in which we should not succeed in satisfying the medical profession? Those of your Lordships who will read this very interesting Report of the Committee will find that there were two schools represented before it. One was that of an institution bearing the somewhat appalling title of the Criminal Responsibility Committee appointed by the Medico Psychological Association of Great Britain, and they stood up for what I understand to be the view of alienists of the extreme school, the view that the law cannot define insanity, that Judges cannot direct juries as to what is insanity, and that the only way in which these cases should be tried is to let the medical expert tell the jury what he thinks about it, and then let the jury say for itself, out of its own head, whether a man is to be convicted or acquitted. There are even persons who go further than that, and say the inquiry ought not to take place in the presence of a jury, or by a jury, but in camera, by medical men specially qualified to pronounce whether minds are diseased or not.
§ My noble and learned friend said at the conclusion of his speech that he apprehended that your Lordships would be told that very grave results would follow if this Bill were passed, because juries could not be trusted. I do urge upon your Lordships that if this Bill were passed very grave results would follow, because you must remember that this defence is applicable, not merely in capital cases only, but in cases from the gravest down to the smallest offence, and it can be no more right to punish a person who is legally incapable of being responsible, whether he has stolen sixpence or whether he has assassinated his enemy. What would be the result, if this defence were to be made legally open to any ingenious person who thinks that he is able to raise it? I must say I think the result would be somewhat formidable.
This Report contains a table of figures analysing, over twenty-two years, the percentages of those who have been sent for trial and have then been found guilty but insane, or have been found insane before trial on arraignment, and it is divided according as the crime was murder, attempts and threats to murder,
manslaughter, wounding and attempted suicide, or other offences. The figures are well worth a little examination. I read what the report says on the subject on page 19:—
It will be seen that the percentage of insane …
this is, of course, insane on the existing, well settled law, not the insane plus my noble and learned friend's addition—
to the total charged in murder charges is over 33 per cent.…
that is,33 per cent. over the whole twenty-two years—
while in charges of attempted murder, manslaughter, wounding and attempted suicide, the percentage falls to 2 per cent., and in other crimes to less than 2 per cent.
What is the conclusion to be drawn from that?
§ Is it that insane persons are immensely more prone to murder than to any other offence? Is that what accounts for 33 per cent. of insane persons in murder charges, and 2 per cent., say, in stealing and such like charges? Is it that when a man is really mad his attempts to murder are so constantly successful that there are only 2 per cent. of them in charges of attempted murder as against 33 per cent. of actual, successful murder? Or is it that it is only in cases where the gallows loom before the criminal that juries can bring themselves to pay very much attention to the defence as it is commonly raised? Is it that, in cases where there is no question at all of a death sentence, those who advise the prisoner and the prisoner himself—who, whether or not he knows right from wrong, does know the gallows from a term of imprisonment—consider that it is not worth while raising a defence like that; because, of course if the defence is successful his doom is the criminal lunatic asylum?
§ I do not mean to say that the defence of insanity is not constantly raised and supported by persons who perfectly believe in the validity of the defence. But what I do say is that it is a speculative defence, that it is constantly raised on the chance that you may get round the jury with it somehow, and I think these figures conclusively show that neither the prisoner nor his advocates think it is a defence that is worth putting up, if there is any chance of getting off with a comparatively moderate sentence, on some other grounds That, at any 461 rate, is my conclusion from those figures, and I should certainly like to know what other conclusion it is reasonable to suppose one could draw in those circumstances.
§ Another thing that I should like to point out is this, that the defence of insanity in a large number of cases is not merely a speculative defence, it is a rich man's defence. I never heard myself of the defence of insanity being set up, apart from cases of a horrible character—except kleptomania, when people go and steal stockings and ribbons at the sales. Then you hear a good deal about it. But in no other class of cases that I remember is it thought to be worth while to say that you did not know the nature and quality of the offence. Of course, if you put it in a more attractive form, and say "I felt an irresistible impulse; there was some attractive object, and I said to myself ' No I must not,' but I felt the, devil tempting me, and went and took it"—if you made that a defence, no doubt we should hear more of it. And how anybody is to tell, except from an examination of the circumstances of the crime itself, what was the state of the criminal's mind I cannot tell. There are people who say: "Oh he was mad, because his crime was so horrible; sec how he cut his victim's throat—he must be mad." There are other people who say: "I do not know anything about him, but since he was in prison or was convicted I have conversed with him, I have put questions to him, and I have come to the conclusion that he has an abnormal mind, and that he suffered from an irresistible impulse." That is the kind of argument that would be put before juries, and juries are to be placed in the painful position of having to say whether they think it is absurd or not.
§ Knowing as must be the case, so little about the mental state of a person who has stolen or murdered, or whatever it is, how can one say that insanity is not sufficiently protected, as it has been for eighty years, namely, that if a person does not know at the time the physical nature of what he is doing, or does not know that it is wrong, owing to mental disease directly leading to that result, then he is not to suffer the penalty of his crime. I greatly dread, not so much that there will be an increase in the number of murders, but that there will 462 be a considerable increase in the number of crimes of violence on women and children if a defence like this should be legal, and should once have a success. The passion under which such crimes are committed can be easily represented as bearing such a guise of irresistible impulse that it would need but a small addition of circumstances of atrocity or taint in the family to give a criminal no small chance with a jury which was not prepared to harden its heart.
§ There is a point upon which I should desire to dwell but that I see that my noble and learned friend the Lord Chief Justice of England is present. The Committee had before it doctors and doctors only. The Committee was admirably qualified to know what the view of the profession is and what the experience of Judges is. Therefore I say nothing whatever against the Committee for not taking any evidence from that side with which they were perfectly familiar. But I think that before we pay very much attention to the medical side of this question we ought to weigh against it the opinion and the experience of the Judges of England, and as to that I trust that your Lordships will receive some most useful assistance if my noble and learned friend thinks fit to address your Lordships. One thing, however, is clear—that with the exception of the opinions of Sir James FitzJames Stephen in his book on Evidence and the one isolated direction given by Mr. Justice McCardie in the case of Ronald True, which was not, I think, a case of irresistible impulse but of a man who was out of his mind—
§ LORD SUMNER
My noble and learned friend is right; but with the exception of those and two or three more—mere grains of sand in the great current of legal decision for nearly three generations—I do not think there has been any serious dispute or criticism from the Judges and very, very little from the legal profession of the adequacy and substantial justice of the Rules in McNaghten's case. Of those Rules I would say that they do not pretend to define what insanity is. Who can do that? But they do say that in certain circumstances even a madman may be 463 responsible for his crimes. Does anybody seriously say that a madman should never be responsible for his crimes? And when you come to the point at which there is sufficient moral capacity to know the difference between right and wrong and a crime is committed, why should not the criminal be punished for an offence which he must ex hypothesi have known was wrong and which he committed for some motive, corrupt or obscure, of his own.
There remains this point. I suppose that those who advocate this change are animated, or believe themselves to be animated, by a feeling of mercy and tenderness for the criminal. We are not now discussing the suitability of capital punishment. I do not think that a motion to abolish it would have had very much chance before persons so experienced as your Lordships. But there are persons so constituted that when it is proposed that a criminal should expiate his crime on the scaffold their feelings of compassion overpower their judgment and their reason and, owing to an obscure process which I confess I do not fully understand, they say at once that it is so dreadful that a person should be hanged. Of course it is a dreadful thing; but let us look at the other side of it.
Is it so merciful to spare a murderer and to send him for life to a criminal lunatic asylum? You consign him to a living tomb. Is it so merciful that such a person should remain there for the rest of his days herded with other criminals whose minds are diseased? Is it merciful to the public and to other possible victims that you should say: "His impulses are being kept under control and he seems to have recovered; let us set him at liberty." Supposing that those very impulses, if it was a genuine, case of irresistible impulse, are only kept under control because he is confined in a criminal lunatic asylum and is watched, and the man is haunted by the knowledge that these impulses are still strong within him and he knows not when, round the corner or behind a closed door, they may come upon him of a sudden and he may repeat his crime. On the other hand, supposing it has been a speculative defence, that the jury is persuaded to let him off, that he is not mad at all and never was, is it merciful to him that he should spend his days associating with people who are not 464 of his kind except that they have committed crimes which may be excusable while he has committed a crime which is not excusable?
The more one endeavours to adjust in one's own mind the problems connected with moral responsibility as enforced by the law the more difficult they become. My own experience of trying prisoners was not a long one, but it made no little impression upon me. I am satisfied for my own part that severity in punishment often serves the best public uses. I am satisfied for my own part that criminals are deterred both by the certainty of punishment and the fact that it is speedy, and I think that it would be a mistake to remove from these irresponsible beings that outside pressure which is exerted at present by the knowledge that if they fail to control what they ought to control they may find themselves punished by the law. That outside pressure constitutes a valuable additional protection to a weak and imbecile mind. Above all, we ought to consider not so much the fortunes or the interests of a particular criminal as the cause of the public at large. Persons who wander through life liable from mental disease to the commission, sometimes cunningly, sometimes in hot blood, of crimes which they know to be crimes and which they find themselves powerless to resist, are persons against whom the public interest rises up so powerfully that I think it must overshadow every other consideration, and I appeal to your Lordships to say upon this occasion that no case has been made out for an endeavour to change the law which, though imperfect as all human laws are, has, so far as I know, done little or no injustice in the last eighty years.
§ Amendment moved—
§ Leave out ("now") and at the end of the Motion insert ("this day six months").—(Lord Sumner.)
§ LORD HEWART
My Lords, if I intervene for a moment in this debate I do so with great reluctance, partly because silence is always to be preferred to speech and partly because I would far rather support than oppose any proposal which comes from my noble and learned friend the author of this Bill. But I am told that it may be right for me to state what is the opinion of His Majesty's Judges of the King's Bench Division, who are also the Judges of the Court of 465 Criminal Appeal, upon this matter. I have not had an opportunity of consulting directly all my colleagues, who are now fifteen in number; but I have consulted twelve of them. Of those twelve, ten are, like myself, emphatically opposed to this measure, one is emphatically in favour of it, and one is doubtful. We hoped that the risk of any such measure as this had gone by. The Report to which reference has been made was published some five or six months ago, and shortly after that publication, if I remember rightly, a Question was asked in another place about the intention of His Majesty's Government and the reply—again, if my recollection serves me—was that in view of the weight of opinion against the proposal of the Report His Majesty's Government did not at present propose to legislate.
It is in that state of affairs that this Bill for some reason or other, is brought forward. I join, if I may say so, in urging on every ground that this House should not commit itself to the principle which is embodied in this Bill. My noble and learned friend who moved the Second Beading of the Bill, referring to the Rules, as they are called, in McNaghten's case—the Rules derived from the answers which the Judges gave to the questions in that case—spoke of something which he described as the two Rules which really mattered. I cannot help thinking that that phrase goes some way to explain the injustice, if I may use the expression without offence, which my noble and learned friend seemed to do to the law which he is proposing to change.
What was it that was laid down in those opinions, and has been followed for the past eighty years, not merely in this country but also in Scotland? The fundamental proposition of the whole matter is that every person in this country is presumed to be sane and to be responsible in law for his actions. The second proposition is that if a defence of insanity is set up it must be proved—not tentatively suggested, not vaguely indicated, as so often happens, but it must be clearly proved. What is it that has to be clearly proved? The answers to these questions show that three things at least must be clearly proved if that defence is to succeed. First of all, it must be clearly proved that at the time of committing the act the accused person was suffering from disease of the mind. 466 Secondly, it has to be proved that by reason of that disease of the mind, and not for any other reason, the accused at that crucial time was labouring under a defect of reason. Thirdly, it has to be proved—and here come in two alternatives—that in consequence of those two matters the accused at that moment was disabled in one or other of two respects, cither that he did not know the nature and quality of his act—that is to say, he did not know what he was doing; he thought he was peeling an apple when in fact he was cutting a throat—or, if he did know what he was doing, that at any rate he did not know he was doing what was wrong.
Now it is proposed to add to these alternatives at that third stage in the proof a fresh choice to the accused, and that choice is, if I may be pardoned for reading it again, to show that "at the time the act was done or omission made he"—that is, the accused person—"was suffering from such a state of mental disease as therefrom to be wholly incapable of resisting an impulse to do the act or make the omission." I do not dwell upon the phrase an "irresistible impulse" to make an omission. No doubt it indicates something which may happen. But that proposal, as my noble and learned friend truly said, is by no means novel. One finds it in all the places that have been mentioned. One finds it in a foot-note to Sir James FitzJames Stephen's "History of Criminal Law," and there have been from time to time summings up in capital cases where a Judge has, I will not say adopted, but coquetted with that proposal.
When the noble and learned Lord says that therefore it may be the case that that doctrine is even now a part of the Common Law of England I am bound to make one observation. Under the law, as it now stands, it is only an unsuccessful defendant who can carry his cause to the Court of Criminal Appeal. The prosecution can never come to the Court of Criminal Appeal and say: "Here is a summing up which was far too favourable to the accused, which completely misstated the law in his favour." Once a jury have acquitted, no matter upon what summing up, the Court of Criminal Appeal has nothing to say to the matter. And, therefore, with great respect, I submit that it is nothing to the point to say that you can pick out, in eighty years of 467 reported cases, an occasional passage here and there in which a learned Judge has used language which seems to adopt or to favour some such proposal as this. But my noble and learned friend could, if he had been so minded, have quoted case after case from the reports of the Criminal Appeal Court in which this doctrine is expressly repudiated, and in which the law is stated to be now as it was laid down in McNaghten's case
Upon what grounds, and for what purpose, is it contended that this fundamental and far-reaching change should be made? My noble friend says it is upon the ground of this Report, and he quoted a part of the paragraph in which the palmary examples relied upon by the Committee are mentioned. The Committee say:It was established to our satisfaction that there are cases of mental disorder where the impulse to do a criminal act recurs with increasing force until it is, in fact, uncontrollable.Then follows the passage about mothers and children. Yes, but is it not right to read the next sentence in this Report? The Report goes on to say in the very next sentence—In practice, in such cases the accused is found to be guilty but insane.In other words, in practice, in the examples relied upon, and the only examples relied upon, for this recommendation and for this Bill, no unjust result follows, but precisely that result follows which this Bill would make formally correct. That is really the proposal of the Committee:We think that it would be right that such cases should be brought expressly within the law by decision or Statute.In other words it is desired to give a formal correctness to a kind of decision which in a proper case is found possible, and is made now.
What would the effect be if you are to adopt this large and comprehensive formula for the purpose of dealing with that limited class of case already dealt with quite fairly under the law as it now stands? What a door is being opened! I am not in the least comparing my experience with that of the noble and learned Lord—not in the least—though in the course of the past twenty years I have had some experience in prosecuting people for murder, and in defending them 468 for murder, and in trying them for murder. But I respectfully suggest that in practice if this new limb were to be added to the alternatives in the Rules in McNaghten's case it would be impossible to distinguish between the impulse of the person said to be suffering from mental disease, and the impulse of the ordinary offender who is moved to commit a crime by the desire for gain or revenge.
What is the criticism which for three quarters of a century has been made upon this kind of proposal? It is this. Under the law as it now stands it is possible to apply a criterion to that which is alleged as the sign, the manifestation, of the prisoner's insanity. Did he know what he was doing? The evidence may help the jury from the surrounding circumstances to say whether he did or did not. Did he know that what he was doing was wrong? Again the evidence may help the jury from the surrounding circumstances to answer the question. I remember the case of a poor woman I defended many years ago who had killed another woman by strangulation. And when she had done it she called in the neighbours to see what she had done, and she said: "It was my duty to do it; I have performed my duty, and I am free." But what is the external criterion to be applied under this new doctrine? Will it not be said that the mere act itself shows that the man was uncontrolled I And because the impulse was not controlled the jury will be invited, with much eloquence and some evidence, to say that it was uncontrollable.
In cases where there is evidence of real marital disease antecedent to the commission of the alleged crime, and there is no evidence of a motive which might influence a sane person, juries have no difficulty in finding either that the accused did not appreciate the nature of his act or that he did not know it was wrong. But in cases where there is no such evidence of mental disease antecedent to the alleged crime mental experts may be found to say that the alleged crime itself affords evidence that it was committed under an irresistible impulse and that it may on that ground be inferred that there is mental disease. If that is so, the result may be to transfer to the medical profession the responsibility to the law of a great number of ordinary criminals.
469 Reference has been made to the kind of inquiry which in some cases is conducted after verdict under the Criminal Lunatics Act, 1884, upon the order of the Home Secretary. It is said that it is illogical that when the inquiry is ordered the area of investigation is wider than that covered by the Rules in the McNaghten case. Yes; but the result of the inquiry is not to reverse the finding of the jury. Not in the least; the finding of the jury stands. But take the illustration which has already been referred to, the notorious case of True. What happened there was that it was sought to show at the trial that at the time of the committing of the act the prisoner was insane. The attempt failed, and the prisoner was found "Guilty." There was an appeal to the Court of Criminal Appeal, and that Court, having considered the only question in issue, whether there was evidence upon which the jury could properly find their verdict, dismissed the appeal. Then something arose subsequently. While that condemned person was in prison the prison doctors came to the conclusion that, whatever might have been his condition at, the time of the committing of the act, now at any rate he was in some sense insane. There followed, as there was bound to follow because the Statute is imperative, an inquiry into the question whether he was insane. He was found to be insane, and because in some sense he was insane he was not hanged. There followed, if I remember rightly, a letter from that condemned person to a friend saying in effect, "You see I am not going to be hanged. I knew I was not going to be hanged, and I was right."
If question there is to be about the inquiry ordered in such cases by the Home Secretary I would venture to suggest to my noble and learned friend a different kind of problem. How comes it that when the question for the Judge and jury is whether this accused person was insane in the precise and limited sense which the Rules in the McNaghten case formulate, it is right afterwards to put to the medical board on inquiry into the then existing condition of the condemned person the question at large as to whether there is some sense in which he is insane? Would it not be more in accordance with reason and justice, I do not mean merely justice to the man but justice to the community and to the public, that upon the second occasion also the inquiry should be of a 470 limited character—some such inquiry as this: If this condemned person is now-hanged, is there any reason to suppose from the state of his mind that he will not understand why he is being hanged? However that may be, I suggest that it is quite improper to draw from the comprehensiveness of the inquiry which at that stage is permitted to medical experts any unfavourable criticism of the limited inquiry which the criminal law permits to the jury with reference to the prisoner's state at the time of the committing of the act.
My noble and learned friend said that as medical science grows, as knowledge increases, it is right that the criminal law should keep pace with it. What does that mean? Does it really mean that from time to time, as medical theory expands, the Rules of the criminal law are from time to time to be modified? Is it not far safer to say: Let medical science clothe with new meaning, with a changed meaning, and with ever-increasing meaning the term insanity. Yet the law will still ask: Is this person to be excused because he did not know what, he was doing, or, if he did, because he did not know that he was doing wrong?
I refrain from entering further into this discussion, and I will add only one-word. My noble and learned friend quoted from Sir Matthew Hale. May I quote one other sentence from him which is not without relevancy to this inquiry. That great Judge and great man said in a famous case—When I am invited to pity the criminal I reflect also that there is a pity due to my country.I yield to no one, not even to my noble and learned friend with his great experience, in my respect for juries. But is this fair to juries? Is it right that a prisoner who puts forward this excuse, and is able by expensive evidence to back it, should be permitted to propound to the jury the sort of puzzle which this new doctrine would involve? I say nothing of the difficulty in summing up which it would cause, but it is quite obvious that the task of a Judge in capital cases would be immensely increased if the law were to be changed in this way, not because injustice is being done, but in order to provide a more exact formula to justify a few verdicts 471 which are already being returned. I support the Amendment that this Bill should not be read a second time.
§ THE LORD CHANCELLOR (VISCOUNT HALDANE)
My Lords, at the commencement of this discussion the question was put by my noble and learned friend Lord Darling why, having regard to the importance of this subject, it should have been left to a private member of your Lordships' House to deal with it, instead of its being dealt with by the Government. It is indeed an important matter, and I feel that I ought, if only in a few-sentences, to tell your Lordships why the Government have not sought to deal with this matter. The question is defined in my noble and learned friend's Bill. Two propositions are there recognised: (1) that when a man does not know what he is doing, or does not know the moral quality of his act, then be is not to be held responsible; and (2), that when he acts under an uncontrollable impulse, due to mental disease, that is sufficient ground for absolving him from the consequences of his act. We have listened to a discussion of great importance, because we have not only had the advantage of the great experience—as Lord Sumner said, the almost unrivalled experience—of my noble friend Lord Darling, but we have bad a most important speech from Lord Sumner himself, who is also a Judge of great experience, and we have had the further advantage of listening to the Lord Chief Justice of England, the head of the Common Law, who has given us the reasons why he is unable to support this Bill.
It has been truly said in the course of the debate that this is a one-clause Bill. Section 2 is useful and unobjectionable, but it does not matter. It deals with a smaller point. That which really does matter is the proposal to introduce into the law the proposition that, if a person suffers from mental disease which gives rise to an uncontrollable impulse, under which impulse he acts, then, notwithstanding that he knows what he is doing and notwithstanding that he knows the moral quality of his act, he is to be absolved. That is a proposition which, taken in the abstract, has a great deal to be said for it. Abstractly it is right, but the objection to it has been pointed out in the course of the debate. It is that it gives rise to a question which is incapable of solution 472 except in the actual individual case. It is not a fair question to put before a jury.
Take a very simple illustration of a minor kind. There is the offence of kleptomania, which is very common. A large number of people, chiefly women, are brought before the magistrates every week who are clearly subject to kleptomania. They act, no doubt, under an irresistible impulse, but they act knowing the difference between right and wrong and knowing what they are doing. I have talked to magistrates on the subject, and I find that they exercise great tact and manage to deal with such cases so that the severe penalty is confined to very bad cases. Suppose the principle of paragraph (c) of Clause I of this Bill were accepted in such cases as this. You would at once meet with the defence of uncontrollable impulse, which would be set up with great force in many of these cases. In this small matter it seems to me that it would be very dangerous to act upon the principle which is now proposed, and which it is desired to extend to major offences.
Let your Lordships dismiss from your minds the fear that anybody who has acted under an uncontrollable impulse, which he cannot resist when he commits the crime, is likely to be hanged. In the Home Office every case is considered, the report of the Judge after conviction has taken place in a case of this kind is studied, and in such a case the extreme penalty would never be inflicted. There are provisions of the law by which the Home Secretary is not only entitled but in some cases bound to call in expert opinion as to the prisoner's state of mind. Suppose we accepted this alternative as an alternative which the law recognises as a ground for the absolution of the offence in every case, and which is so presented to the jury, there would arise the kind of defence which my noble and learned friend Lord Sumner calls a speculative defence, which would almost invariably be put forward whenever the case to be defended was weak on every other ground. In such a case the most likely way would be to bring up the proposition that the act was committed under an uncontrollable impulse. It is a very difficult thing, in the first place, to define the word "uncontrollable," as is shown by the experience of magistrates who have had to deal with cases of 473 kleptomania, and I would like your Lord-ships to ask yourselves what would be the position of the jury when such a proposition was brought before them as that the prisoner was through mental disease incapable of resisting the impulse to commit the crime. Almost invariably somebody would be found to come forward and give expert evidence that a state of mental disease existed.
I do not speak as an authority on these matters, but I have given some attention to the subject of psychology. Any more vague science at the present time, any science in which vague terms can so readily be made to do duty for clear conceptions. I do not know. It is a most dangerous science to apply to practical affairs. I read recently a book in which it was suggested that education ought to be reduced to mathematical and psychological principles, but nobody knows what other science would be brought in to assist the criminal if once you allowed the psychologists to have their unguided way. I am not saying a word against the advance of medical science, which has been 90 notable during the last few years, or against the advantages of bringing psychology to bear where it can be useful. These scientists are excellent servants, but they are not always reliable masters, and I have no doubt in my own mind that in a very large number of cases there would always be found people who would come forward and say that mental disease was present, rendering the act uncontrollable. What is the unfortunate jury to do? A tender-hearted jury is apt to be merciful, and a jury of that kind would be likely to say that they were not in a position to contradict the evidence of these eminent scientific gentlemen, and would therefore accept it. I only put that as an illustration of the danger of regulating the administration of the law by propositions of that kind.
The Lord Chief Justice has told us that the Common Law is a law which adapts itself to circumstances. It is a great mistake to suppose that the Rules which absolve a person who does not know what he is doing, and does not know the distinction between right and wrong, are hard and fast Rules which cannot in any way be extended in their application. I think this Bill might create a misunderstanding on that point. They merely 474 consist of the advice given to this House by very distinguished Judges that such was the state of the law as they understood it. No doubt the proposition was laid down on great authority, but I have never heard of these Rules embarrassing any Judge who really had a case before him in which justice required an acquittal, or preventing him from giving such direction to a jury as would enable them to apply these Rules in cases where they ought to be applied, in cases, for instance, where the impulse was so dominant as to deprive a person of freedom or of any realisation of what he was doing.
We have not recognised in this country the passion crime, which is recognised on the Continent—the crime for which the defence is put forward that it was inspired by passion. We have not recognised that, and I hope we shall not do so. I much prefer to leave it to the general discretion which a jury, under the direction of a Judge, exercises. It is quite true there may be, as was pointed out by Lord Darling, theoretically a case coming within the abstract terms of the third alternative in Clause 1 of the Bill For such a case, as I have already said, an ample safeguard is provided by the powers of the Home Secretary, and I think it is equally safeguarded by the discretion which His Majesty's Judges exercise, and the good sense of juries.
I have only risen to say what is in my mind about this matter because what is in my mind is the reason why we did not introduce legislation such as my noble and learned friend proposes in this Bill. For my part, having given all the thought I can to it, and read the admirable Report of the Committee through and through, I cannot bring myself to see that it would be a good addition to the law to introduce this new proposition. Holding that view I am unable to support the Bill, and I am equally unable to devise words which should remove from the third paragraph of Clause 1 of the Bill the difficulties which have been pointed out in the course of the debate.
§ LORD DUNEDIN
My Lords, it is not proposed to apply this Bill to Scotland. Lord Darling quoted some words, but I do not think directly attributed them to Baron Hume. Baron Hume wrote two ponderous volumes on the criminal law 475 in Scotland, but the noble and learned Lord will search them in vain for anything which in the slightest degree gives countenance to paragraph (c) of Clause 1 of this Bill, which is really the Bill itself. I do not intend really to intervene in this debate. What I should have felt impelled to say has been so much better said by Lord Sumner and the Lord Chief Justice that it would be quite futile for me to add anything. At the same time I do not think I should be justified in giving a silent vote, and for this reason, that for thirteen years, as Advocate Depute, Solicitor-General and Lord Advocate, I was cognisant of every criminal process in Scotland which came before the High Court, and I conducted many of them, and for eight years, as Lord Justice General, I was head of the Criminal Court and tried more than one case in which the defence of insanity was raised. Now there are certain convictions which, although capable of being supported by argument, are really borne in upon one, not as the result of argument, but as the fruit of experience, and it is because upon such a subject I feel such conviction from experience that I think that if this Bill were passed it would open the door to subterfuge and impede the proper carrying out of the criminal law.
§ VISCOUNT CAVE
My Lords, I will not detain you more than a very few minutes, but having very recently held high legal office in this House I do not want the debate to conclude without giving, quite shortly, my opinion. I put out of account the suggestion that the provisions of paragraph (c) of Clause 1 of this Bill are already the law. If that be so we really do not need the Bill, but in fact the Committee do not so report. My noble and learned friend realises that they said quite clearly that the proposals which they made would alter the law as it stands to-day.
I will only give two reasons why, in my view, this would be a very dangerous change to make. In the first place I feel sum that if you allow this new plea of irresistible impulse caused by mental disease, you will find it set up in very many cases of serious crime, and it will be the duty of the Judge to charge the jury in the terms of that paragraph in this Bill. I am seriously afraid that the last result may be that in many cases crimes caused either by sexual passion or 476 by anger and vengeance, which to-day meet with just punishment, may escape punishment altogether. Where there is a compelling impulse of that kind it is always taken into account either by the Judge at the trial or, in the event of conviction, by the Secretary of State when he comes to consider the sentence: but if this Bill passes that man will be entitled not only to mercy but to be found not guilty of the crime with which he is charged, and I think in that way great injustice to the community will be caused, and crimes which to-day meet with punishment will escape unpunished.
I have only one further point to make, and it is this. The proposal is that the man who commits a crime under an irresistible impulse caused by mental disease shall escape. Now one of the objects of the criminal law is the prevention of crime, and with that view to provide some motive force which will assist a man in resisting the impulse to crime. If you pass this clause you remove that protection against crime, that assistance which I firmly believe has turned the scale in many cases and enabled a man to resist the impulse to crime, and you will make irresistible an impulse which now is resistible and resisted because of the penal law. And the result will be that some crime which we escape to-day will then be committed. I feel very strongly that it is in the public interest that this Bill should not pass.
§ LORD DARLING
My Lords, as this proposal of mine has not been supported in debate, and having regard to what the Lord Chancellor said as to the possibility of this question being really authorita tively considered by the Judges, in the same way as a similar matter was considered in the McNaghten case, I do not think that I should serve any useful purpose, nor indeed be respectful to your Lordships, in asking that you should read this Bill a second time. I do not quite know what the process should be—whether the Second Reading should be negatived, or whether I should withdraw my Motion.
§ On Question, Motion negatived and Amendment agreed to accordingly.