§ 2.48 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR
My Lords, I rise to move that this Bill be now read a second time. It is some ten years since a project was put forward for a comprehensive review of our criminal procedure and practice, and it is more than twenty years since such a review has, in fact, been carried through. The present Bill constitutes such a comprehensive review, and during the last few years—as, indeed, throughout the whole period of twenty years—much work has been done on this question by various Committees and by the Home Office. I should like at the outset to pay my tribute to the work which the noble Viscount, Lord Templewood, did. Although this Bill modifies in many and important respects the proposals which he made, and although we think that, in some respects at any rate, we have improved on his proposals, the fact remains that a large part of this Bill is due to the work and activities of the noble Viscount.
The Bill contains much complicated detail. It deals with all sorts of matters which are, like the dictionary, a trifle disconnected. It therefore becomes very difficult in a Second Reading speech to deal adequately with the topic in hand. I propose merely to deal with the broad outline of these proposals, conscious of the fact that we shall have a Committee stage, and we shall then be able to give time and consideration to these individual 391 matters. We are fortunate to-day—and we shall be fortunate on the Committee stage if we have it—to have the assistance of some of those who have great experience in this matter. Particularly, I may refer to the Lord Chief Justice, whose knowledge of this subject is unique. I very much hope that he will be able to give us a good deal of his time when we come to the consideration of various matters on Committee.
If I may touch a personal note for a moment, this subject of prison reform and penology has been one which has been of great interest to me for many years past. It was when Mr. Bridgeman, as he then was, was Home Secretary that I first started my visits to prisons. I received every encouragement from him, and I have received every encouragement from successive Home Secretaries. I think I may say that I have visited nearly all the prisons in this country and Scotland, as well as those of many foreign countries. When I started twenty-five years ago it all seemed so easy. I thought the lines upon which reform should be carried through were so clear and so simple. I confess that, having now learned a good deal about the subject, I am baffled and perplexed about many of the solutions which we ought to adopt.
I think the difficulty arises from the fact that we want to carry out two objects at the same time. In the first place, obviously, we want to try to reform the prisoner. We want to restore his self-respect, and we want to ensure that when he goes out again he can stand on his own feet as a useful, responsible member of society. On the other hand, we want so to arrange our affairs as to deter prospective criminals from embarking upon crime. Those two horses, the deterrent and the reformatory, are especially difficult to drive in double harness. If one or other is given his head, the vehicle which you are driving is likely to be ditched. In the course of my investigations I have many times heard the cynic say: "Of course, the whole trouble is this, that half the people ought never to be there and the other half ought never to come out." Like most aphorisms, that one contains just a fraction of truth. At all events, I am quite sure that we can all of us agree on this. The greatest mistake we can make is, unless it is 392 absolutely necessary, to send young people to prison for a first offence: and that—if we are honest with ourselves, and it perhaps contains an admission of failure—for two reasons. In the first place the young person in prison will be contaminated by evil associations and, secondly, he may think that prison is not so bad after all. Have we also not heard it said: "They cry when they come to prison for the first time; they laugh when they go to prison for the second time." Therefore, in discussing this matter to-day, I should like to start with the young offender. Let me here say, before I start upon any particular topic, that I hope most devoutly that the merits of this Bill will not be lost or obscured by a discussion of the interesting topic of whether we should or should not suspend the death penalty. The Bill contains so much that is admittedly good that we should consider it on its own merits.
The first question about the young offender is the question of remand. It is often necessary, before he is adjudged guilty, that a young person should be remanded in custody. Under the existing law, a young person up to the age of 17 must go to a remand home unless he is certified as being too depraved or too unruly for that treatment. But so far as people over 17 are concerned, there is nothing for them at the present time but prison if they are remanded in custody. Clause 26 of this Bill contemplates for all under 21 that there shall be either remand homes or remand centres, which shall be set up as opportunity offers, and when the necessary accommodation is available. Let us hope then that there will no longer be, for those under 21, any question of remand to prison. I wish we could contemplate a similar provision about imprisonment, but, unhappily for some of those under 21 or even 17, there is no other course available. All I would say, speaking for my colleagues on the Bench—and I am sure they will agree with me—is that prison for these young people should be regarded as absolutely the last resort. Accordingly, in Clause 17 of the Bill, it is provided that, before imprisonment is imposed on a young person, the court must be satisfied, having regard to all the circumstances and facts relating to the individual, that there is no other way of dealing with the case. At the present time, the law is that a young person under the age of 14 cannot be sent to prison 393 The Bill proposes to increase that age to 15. The Bill proposes that, so far as magistrates' courts are concerned, they shall not send a young person to prison under the age of 17.
The fact that we are eliminating, or trying to eliminate, prison, presupposes that there are available other methods to deal with these people, such, for instance as the approved school order, Borstal, fine, binding over or probation. But this Bill proposes a further course. It proposes that for those between 14 and 21 we shall establish detention centres to which these young people can go for periods of three months—or, exceptionally, six months—where they can have the benefit of a sharp reminder, by discipline and hard work, that they must put themselves straight. The success of any such scheme depends primarily not upon the bricks and mortar, but upon the staff and upon the régime. We must do everything we can to see that we provide, in addition to the buildings, a highly qualified and highly trained staff and régime. Then we must also try to provide and strengthen the provision for probation homes at which we can give suitable training to these young people, or probation hostels where the young person sleeps at night and from which he goes out to his work in the day-time. I believe we may not unreasonably hope that it will be done on these lines. Accordingly, Clause 74 of the Bill authorises the Secretary of State to finance similar homes for this purpose.
Clauses 42 and 43 provide that these homes shall be subject to the inspection of his inspectors and that he shall have the right to approve the persons who are in charge of the homes. The idea is not at all unlike the idea which the noble Viscount, Lord Templewood, had of what he called, I think, the "Howard Homes," but we consider that the present arrangement is likely to be more efficient and more practical. Then if, in the last resort, it is necessary to send a person to prison, the Bill provides that there shall be a system of release on licence under supervision by an appropriate authority. I hope that in time, when we have provided these buildings, it may become possible to restrict still further the right of justices to imprison young persons. Accordingly Clause 17 provides that if and when the Home Secretary is satisfied that 394 he has the necessary facilities, he may propose a resolution to both Houses of Parliament and, on receiving the approval of both Houses, may extend this provision.
The Bill deals with probation. It largely consolidates the existing law, but consolidates it with considerable improvements in all directions. Clause 5 is an illustration. Clause 5 provides that it may be required that a young person, with his consent, shall be put under medical care in order that he can have mental treatment. Clause 12 provides that a conviction must precede a probation order, but that in effect the conviction can be wiped out so long as there is satisfactory conduct during the probationary period. I think all of us who have studied the work of the probation officers would like to pay a tribute to the work they have done. They have made a most valuable contribution in this field, and I am perfectly certain that anything we can do to strengthen their hands in this matter is work well done. Again, with regard to the Borstal system, we largely consolidate the existing law, but consolidate it with considerable amendments. In the first place we say that the minimum sentence must now be twelve months and that the system under which to-day young people up to the age of 23 can be sent to Borstal shall be changed so that the age is cut down to 21. I think that nearly all Judges with experience in this matter would agree that this is a wise reform. We provide further that the courts shall have power to sentence to Borstal wherever they think it advisable in the interests of the offender so to do.
I pass from the young to the old—and I am thinking particularly of the hardened offender. At the present time the machinery under the Prevention of Crimes Act—an Act of 1908—is not working satisfactorily. Perhaps it is because a sentence of penal servitude for the particular crime has to be passed before a sentence of preventive detention can be given; perhaps it is because the offender has to be charged on indictment accusing him of being an habitual criminal. At any rate, the effect is that there are today in our prisons only thirty persons in all undergoing preventive detention. Accordingly, we provide in the Bill, under Clause 20, that in the cases there specified 395 a person may be sent directly to preventive detention for a period of from two to four years. In exceptional cases, where the record of the offender is really bad, we provide that it may be from five to fourteen years. That is a drastic power, but experience has shown, I think, that it is necessary, and for this reason: that if you have a man who has shown by his record that he intends to lead a life of crime, then it is only fair that the community should be protected from his activities for a long period. Clause 48 of the Bill provides that during this period of preventive detention the Home Secretary may make special rules as to treatment and the like.
The clauses of the Bill which abolish the old phrases "penal servitude," "hard labour," "divisions," and so on, are, I think, merely a recognition of the fact that to-day those differences have ceased in practice to matter. The abolition of penal servitude, incidentally, involves the abolition of the "ticket-of-leave" system, which, in my belief, has involved considerable hardships in certain cases. In place of it we provide, under Clause 21, that a person who is released from prison may have to keep some Society (to be approved by the Home Office) acquainted with his movements and address; and it is only if he fails in that respect that he will come under any obligation to report to the police.
There are many procedural changes in the Bill. For instance, the courts may, under this Bill, inflict fines in cases of felony; and they may allow time to pay the fines. There is an extended power to grant bail; there is a simplification of the procedure as to appeals, and a change in the procedure with regard to the taking of finger-prints of persons retained in custody. I think sufficient safeguards are provided to ensure that the power will not be abused. Clause 37 contains a very useful provision enabling the police to give merely formal evidence by production of documents. Clause 40 is a clause which I have long wanted to see, and I commend it to your Lordships. It provides that the Judge may order the payment of costs of a successful defendant, whether in the court of first instance or in the Court of Criminal Appeal. There is no doubt that it is sometimes a great hardship for a man 396 who is accused and who is put to considerable expense in defending himself, not to be able to recover costs. I hope the machinery of Clause 40 will be made wide use of in appropriate cases. I have selected more or less at random some of the provisions of the Bill. I hope none of your Lordships will think that because I have not selected others, the others are not important. I think I have said enough to show that the Bill contains a collection of very useful matters, each of which will be discussed on the Committee stage, if your Lordships so desire.
There are two more controversial matters on the Bill which I want to discuss quite briefly. The first is the abolition of whipping. When the noble Viscount, Lord Templewood, brought in his Bill some ten years ago, this was a matter of great debate and great concern. I think all of us acknowledge it to be the fact that, during the discussions on this Bill in another place, there were very few speakers who supported whipping; it certainly is the fact that there was no Division in favour of it. Consequently, I suggest to your Lordships that that being the state of opinion on the matter, we should be wise to accept the clause, for better or for worse, whatever we may think.
That brings me to the other topic, the question of the desirability of doing away with the death penalty. To be quite frank with your Lordships, I must confess that here I find myself in a somewhat embarrassing position—for this reason. I am accustomed, at least in this House, to speak for a united Party, but it is the fact that in this House, as in another place, many of my colleagues whose opinions I have come greatly to value take a view which is diametrically opposite to my own. I think I should be careful how I use an occasion when I happen to be the Government speaker to advocate a point of view which, for them at any rate, strikes a completely false note. On the other hand, holding as I do this great office, and being for the time being the head of the Judiciary, I owe it to myself and to your Lordships to make it quite plain that I am not in favour of the proposed change.
I entirely understand the motives which have led other people to take a different view. Of course, a hanging is a grim and horrible business. And so, my Lords, is murder. I feel that there is only one possible justification for retaining 397 capital punishment—namely, that one believes that capital punishment acts as a deterrent, and therefore cuts down the number of murders which otherwise would be committed. It is because I believe that that I am opposed to the abolition of capital punishment. I cannot prove it. In the nature of things, no one can ever prove it. It must be a matter of impression and of one's own personal opinion. I have told your Lordships my personal opinion. Others feel that the fact that there is this penalty, with all its grim squalor, makes these cases loom far larger in the public estimation and attention than they otherwise would. These squalid stories become repugnant to everybody. They are unhealthy; they are morbid; and, if we did not have this punishment, that would not be the fact. That is their point of view. They reinforce their point of view by a consideration of the experience of foreign countries. If one looks at the evidence of these foreign countries it is fair to say that there is a good deal to be said for the point of view that, notwithstanding the abolition of the death penalty, the number of murders has not gone up. But consider for a moment, if you will, what is the alternative penalty, because that is what matters.
Let us take the case of Belgium, which is often quoted. I am giving your Lordships these facts from the Report of the 1929 Commission. And let me say, in parenthesis, that I as much as anybody was responsible for setting up that Commission. Therefore, I had no very strong views about the matter at that time; I was anxious to find out the facts. What is the position in Belgium? In Belgium the position is that a murderer who is sentenced nominally to imprisonment for life is usually allowed out after some twenty-five years, but he serves the first ten of the twenty-five years in solitary confinement. You will find, in the evidence given before that Commission, evidence of a man who had spent thirty-six years in solitary confinement. Speaking for myself, I do not for a moment doubt that there are fates worse than death, and I am quite certain that nobody in this House or in another place would for one moment tolerate the conception of any such penalty as that. Logically, one is perfectly entitled to say, "Look at what has happened in Belgium." One can say, "Well, 398 you see, the abolition of the death penalty had no ill-effects; there are no more murders." On the other hand, if one says that, then, logically, one must be prepared to say, "I will accept the Belgian remedy."Yet none of us would accept that. Therefore, I come to the conclusion that, logically, it is fallacious to rely on the experience of foreign countries, unless one is to accept the remedy which they propound.
On the other hand, I realise the morbid attraction which is brought to these cases at the present time by reason of the death penalty. I further realise how inexpedient and wrong it is that we should use a penalty if it is repugnant to a large section of public opinion. The recent vote has shown that this penalty is now repugnant to a large section of public opinion. I was responsible for—at least, I agreed with—the advice which the Home Secretary gave to another place on this matter, and I was also responsible for saying that I agreed to this matter being left to a free vote of the House. If the free vote of the House had been given in the way that I think right, I should certainly have relied upon it. Equally, as the free vote of the House has been given the other way, I must rely upon that. Otherwise I should find myself in the position of a batsman who has been given "out" by a decision of the umpire. He may think it a bad decision but, when the umpire's finger goes up, his duty is to walk back to the pavilion.
We shall try this experiment. I have no doubt about that. If, contrary to my fears, the experiment turns out to be a success, no one will be more ready to admit his error than I. But I cannot feel that the present time, when we have this distressing wave of crime, when we have gangsters going about with arms to a greater extent than ever before, is a wise moment to try this experiment. Since it has been decided, however, that it is the right thing to do, let us now go forward. At any rate, I for myself accept the decision. None of us wants to go on with this horrible business if we can do without it, and therefore, so far as I am concerned, I support the conclusion which has been reached. No one can assert with any degree of certainty what will happen, but this I will say—and this bears upon some of the figures which the noble and learned Viscount, Lord Simon, asked me about to-day—that it is quite certain that 399 a Home Secretary in the future, operating under the new system, may have to take a different view with regard to the period which these people shall serve than that which has hitherto prevailed. We may then find that we shall get very different results.
I have tried to present fairly the two points of view. There are, as I have said, many people, for whose judgment I have a great regard, who feel strongly about this matter. No one can say whether they are right or wrong until we try. Therefore I would say, "Let us try." I try with misgiving, I try with anxiety, but also I try with the hope that my worst fears may not be realised. If we pass this Bill now we shall all be wiser about the matter in a few years' time. That, at any rate, is the view which I desire to present to your Lordships. I thought it right not to conceal my own point of view and to present the other point of view fairly, and to leave your Lordships in no doubt at all as to what I feel is the right thing for me to do in these circumstances. I beg to move.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.23 p.m.
§ VISCOUNT SIMON
My Lords, it is clear from what the Lord Chancellor has just said that this important Bill contains many clauses which reformers would unquestionably welcome and approve—subject, of course, to close examination of the Bill in Committee. Added on to it, and inserted at the head of it, however, is another proposal—inserted contrary to the judgment of the Cabinet, contrary to the advice which was given after mature consideration on behalf of the Cabinet, and, as the Lord Chancellor has just told us, contrary (and indeed diametrically opposed) to the view which he, with his great responsibility, has been led to form.
I would like first to say a word about those parts of the Bill which I think may be sure of welcome and approval in this House, but I cannot avoid a preliminary comment on the highly disputed matter which is introduced as the first clause. I entirely agree with my noble and learned friend that we must not allow the presence of that first clause to overshadow the whole of the Bill. This is not a Bill like some measures, which on 400 Second Reading can be discussed simply by considering some general overriding principle which the clauses work out in detail. If, for example, we have a Bill for the nationalisation of an industry, or a Bill for the disestablishment of a Church, it is proper on Second Reading to confine oneself to the general considerations which that proposal evokes. But this Bill is a collection or bundle of proposals—most of them I think meritorious—which do not form a common proposition, and some of which have very little to do, or indeed nothing to do, with anything else. To take a simple example, the clause in the Bill which says that a man may have his finger-prints taken if he is arrested by the police has no sort of connection with the valuable proposals for improving our treatment of adolescent and juvenile wrongdoers. Indeed, the proposed taking of fingerprints does not, I think, apply to children under 14. Whether or not that particular proposal about taking finger-prints will result in the arrest by the police of people who otherwise might have been only summoned, is a question which no doubt we shall consider when the Committee stage is taken.
On the general matter of the Bill, excluding for the moment Clause 1—and at this stage I do not intend to say anything either on the clause about flogging, which I have no doubt will be a matter for serious consideration later—I am glad that the Lord Chancellor began by acknowledging, as we all should, that the origin, and I think the inspiration, of the body of the Bill is largely due to my noble friend Lord Templewood. His Bill, which was introduced just ten years ago, when he was Home Secretary in an earlier Government, was a result of the energy and interest which he put into the subject of penal reform. It was the gathering up of various conclusions that had been reached after close study by a series of Committees and Commissions which had dealt with various aspects of the subject and, I must not omit, after close consideration with the Prison Commissioners, who speak with great experience and who contributed a great deal. I have always deeply sympathised with my noble friend Lord Templewood, and on public grounds have also regretted, that his finely conceived effort of ten years ago did not 401 reach the Statute Book. It is worth remembering that his Bill not only received its Second Reading in another place, with general consent and approval, but also passed through a long and detailed Committee stage, during which the general approval was at no time withheld. Then, the preoccupations of the House of Commons in the growing gloom of worsening international relations made it impossible to carry the Bill further. I see around me now many who were in the other place during that time. They will confirm my words when I say that there has seldom been a Bill of first-class importance which has commanded throughout so general and so warm support as did the measure of the noble Viscount, Lord Templewood. Indeed, this was so strikingly the case—and perhaps it is worth while making this particular quotation—that after the war broke out, on November 9, 1939, Mr. Attlee, who was then Leader of the Opposition, asked the Government whether, even in war time, the Bill could not be proceeded within view of the general desire that the important reforms contained in the Bill should be passed and that all that work should not be lost.It must be a great satisfaction to Lord Templewood that, ten years later, so much of the good work in which he played a primary part is likely to achieve fruition.
Now we have that Bill, as I have said, in some respects restated, with additions, alterations and remissions. It is the Bill in a new dress—perhaps we may say the Bill with the "New Look." I am not sure what view will be taken in Committee of some of the changes. I can see arguments for some of them. I am not quite so sure about some of the others. But, at any rate, the clauses of the Bill—apart from one or two which I have especially excepted—are such as we shall undoubtedly desire with all our hearts to adopt. I am glad that there are members in this House—the noble Lord, Lord Holden, for example, is one—who have an intimate acquaintance with such branches of this subject as the probation system, and we may be sure that our discussions hereafter will not only be of great interest but will be carried on by many who know the subject well. The proposition that by every possible effort one should avoid sending young people to prison, and that this resolve should be 402 expressed in statutory language and in some cases, by prohibition, seems to me as one who has taken a great deal of interest in these subjects, one of the greatest importance.
The noble and learned Viscount the Lord Chancellor referred to the remand of children and young persons—usually by magistrates' courts. The child or the adolescent comes before a magistrates' court. It is impossible to deal with the whole of the case and to reach a conclusion then and there. Often inquiries have to be made and some postponement is absolutely necessary. What is to be done with this young creature in the meantime? I rejoice that we should be making provisions which will define that matter more precisely and more in accordance, I am sure, with the opinion and conviction of those who have seriously studied it. I was a little doubtful when, as I understood him, the noble and learned Viscount the Lord Chancellor said that the present law did not permit magistrates to send children to prison on remand. It may be so, but I must confess that I think I recall a case—and I protested about it in your Lordships' House at the time—in which a child who had been before a magistrates' court was found on remand in Oxford prison—a prison for old offenders, grown up men. The result of such imprisonment is likely to be perfectly scandalous. The child goes in, it may be, in considerable dread. He finds that instead of being severely treated he is regarded as a pet. He comes out of this experience with the proud consciousness that he has met some of the "old lags," and, in many cases, his whole attitude both to prison and to crime is prejudiced. All that we shall have to go into in detail.
I would make this further observation: that we must not suppose we are reaching a millennium. Of course, there are clauses in the Bill, perfectly admirable in themselves, which will certainly require the provision of remand centres. I do not know whether the provision of remand homes will be required, but I think every authority ought to have one available. If those interested will look at Clause 18 they will see what seems to me an admirable enactment: that a court dealing witha person who is not less than fourteen but under twenty-one years of age403 mayif it has been notified by the Secretary of State that a detention centre is available for the reception from that court of persons of his class or description order him to be detained in a detention centre….To carry that out may involve building. We cannot hope to get this new scheme in complete working order without a good deal being done to provide the means by which some of these excellent provisions are to be translated into law.
I do not want to detain the House—especially after the characteristically clear statement of the noble and learned Viscount the Lord Chancellor—about these comparatively uncontroversial but excellent clauses, but I do want to spend a few minutes, if I may, in making a respectful suggestion for a new clause, which, so far as I can see, would be within the purposes of the Bill, for, as the title shows, one of its purposes isto amend the law relating to the proceedings of criminal courts.I hope that before this Bill is presented for the Royal Assent it may include a clause which will get rid, once and for all, of what I regard as a preposterous anachronism which attaches to your Lordships' House.
The House is no doubt aware that if a Peer of the Realm is charged with committing a felony, he has, at the present time, to be tried in a special court called the Court of the Lord High Steward, assembled, I suppose, in existing circumstances, in the corridor outside—certainly there would be no room for it here. On the last occasion when it assembled, not so very long ago, in 1936, it was attended by 200 to 300 peers, all wearing their robes. It consists, if I may say so with respect to your Lordships' House, of a mob of persons, presided over by the Lord Chancellor under a special Commission, carrying a white wand, which he solemnly breaks across his knee at the end of the proceedings to show that the Court is for the time being discharged. The Peer has to face this unpleasant experience. He may be innocent, but he cannot say, "Waive all this, and treat me like anybody else." The existing law is that he must be tried by this grotesque and antiquated arrangement. It is a Court, but it is a very ancient Court, and it is high time that provisions were made that a Peer who is charged with a felony should 404 be treated in the same way as anybody else.
In case any noble Lords should be contemplating a breach of the criminal law (which I do not for a moment assume), I would like to point out for your Lordships' information that it would be very useful to learn accurately the difference between a misdemeanour and a felony. If it is a misdemeanour, you go to the Old Bailey and stand in the dock like anybody else. Obtaining money by false pretences is a misdemeanour. Stealing, however, is a felony. The line between those two is sometimes difficult to draw. Take the best legal advice before you commit yourselves to an undesirable form of crime! But there are other absurdities quite as ridiculous. According to the books the rule does not apply to an Irish Peer who is a Member of the House of Commons. To other Irish Peers who are Members of your Lordships' House it does apply. To put it in a more personal form—although each case I take is, of course, the very wildest hypothesis—if Lord Winterton were to commit a felony, he would go to the Central Criminal Court, but if the Lord Chairman of Committees, the Earl of Drogheda, equally improbably, were to be "caught out" in such a case, he would appear before the Court of the Lord High Steward. And still more extraordinary! I see opposite me the Bench of Bishops, and perhaps I may be allowed to mention this, as possibly it will be a piece of information: the Spiritual Peers of this House are not regarded in law as noble by blood. The consequence is that, in the inconceivable case of any member of that Order committing a crime, either felony or misdemeanour, and I will add, being found out, he would be tried just like any common man.
On the other hand, however—and this is most extraordinary—it is a tradition and right of the Spiritual Peers to attend in this crowd of persons drawn from this House to try a Peer, but with this refinement: that while they attend and take part, they ask leave to withdraw before sentence is pronounced. Is it not high time that we took advantage of this Bill and got rid of all that? If I am able to carry out my present purpose I shall, on my own account—it is not a matter on which I have been able to consult my fellows—put down as a new clause an 405 Amendment to that effect, and I hope it may receive special consideration from the noble and learned Viscount the Lord Chancellor.
Finally, my Lords, I come to Clause 1 of the Bill. It is really impossible for us not to refer to it on Second Reading, and I think we all feel that the noble and learned Viscount the Lord Chancellor was completely justified in making some reference to it himself to-day. I do not wish to criticise. His position is a very difficult one. But consider the history of this clause for a moment. It was introduced into the Bill on Report stage in another place in most unusual circumstances. The Home Secretary, who may be regarded as having a special background on this subject, pointed out that Lord Templewood's Bill of 1938 did not contain any provision interfering with capital punishment. It was true that ten years ago there was an Amendment moved which would have had much the effect of the present Clause 1, but the then Home Secretary resisted the Amendment and resisted it successfully. In regard to the present Bill, the Home Secretary told the House of Commons—and I have thought it well to extract the exact words he said—that:The Government have given most careful consideration as to the course which should be pursued on this occasion.He then gave figures which showed that crimes involving serious violence had substantially increased since 1938. He showed how, in the last few years, to an increasing extent, criminals engaged in violent crime had adopted the practice of carrying lethal weapons, usually firearms, and he went on to say:The Government…that is, the Lord Chancellor's Government, the Cabinet—feel that they cannot, in these circumstances, regard the time as opportune to include in the Bill a provision for the suspension or abolition of the Death Penalty.When, on Report stage in another place, the proposal which is now Clause 1 of this Bill was brought forward, the Home Secretary repeated, in even more urgent terms, the view of the Cabinet that the proposal should not be adopted; but on a free vote of the House the clause was inserted in the Bill by 245 votes to 222.
When your Lordships come to Committee, I think you will have to consider 406 this clause very seriously indeed. I hope that on all sides, including the Government side, it will be decided by a free vote. What we have here in our hands may be the safety or jeopardy of citizens outside, and nobody who takes his matter seriously can regard that as a mere matter of Party discipline. I was glad to notice that the noble and learned Viscount the Lord Chancellor, whatever he may have said about Clause 1, did not roundly assert that the case in its favour was overwhelming. I took occasion—possibly some of your Lordships may have noticed it—to criticise an assertion which occurred in one of our leading journals. What I did not know at that time, but what I have learned since—and it is certainly a very interesting matter—is that the sentence:The case for the suspension of capital punishment is overwhelming,though it appeared in the leading articles of The Times which I read, and which I suppose many people near London read, had no place whatever in the earlier editions of that revered newspaper which went to Scotland or the North of England. I have had quite a number of letters, and, indeed, some communications from noble Lords who come from those northern parts, to tell me that my letter seemed to have a certain argumentative value, but that when they looked back they could not find the sentence about which I complained.
Those of your Lordships (if there are any) who still take an interest in textual criticism may perhaps speculate as to how that came about. It looks to me very much as though the original author of the article had written it without that sentence—which, incidentally, made complete nonsense of the conclusion, because if the case was overwhelming, why should the House of Lords be told that they would be perfectly justified in throwing it out? I think that at a later stage some editorial blue pencil must have been used to express the view which I, perhaps rather fiercely, ventured to controvert. Nobody, I think, will say in this House in this debate that the case is overwhelming. The truth is that it is a case that has to be carefully and impartially weighed. And I, who have at the present time formed an opinion against Clause 1, am perfectly willing and wish to weigh other arguments as impartially as I can.
407 While that is so, I hope that I may be forgiven in my turn—though in a much humbler position than the Lord Chancellor—for telling the House in a few sentences my personal view on this matter. I was not one of the ex-Home Secretaries who were privileged with an invitation to give evidence before the Committee of 1930 presided over by the Reverend James Barr, and neither was Mr. Winston Churchill, although both of us had had experience in the Home Office. Since then I have done my best to discharge my duty in that office again. If I may speak of myself for one moment, I am a man who has had the duty of prosecuting, and at other times of defending, in the courts in a number of cases of murder. Looking back, I do not know which of those two duties was the more trying and exacting. I have given much thought to this question, both from the practical and the theoretical point of view. I think I may claim that I am a man whose make-up is such that I find unduly drastic treatment, even of one who has offended, something which arouses my deepest feelings of resentment and indignation. If there is anybody in this debate, or out of it, who can convince me that my view is wrong, nobody will be more relieved than I.
Without arguing the case in detail—which would be quite improper at this stage—I may be forgiven if I endeavour to put forward four of the considerations which weigh with me. All I ask is that other people should weigh them too. The first is one which I think has been very little considered; at any rate, it has been very little expressed. It has to do with the man who is not a murderer at all. I entirely agree with my noble and learned friend on the Woolsack that the practical question is whether our existing law, which requires a murderer on conviction to be sentenced to death by the Judge, operates as a deterrent—not necessarily as a deterrent in all cases, but as a deterrent in quite a number of cases—and so discourages additional murders. It may be that in some cases it does not operate as a deterrent. I can well understand the force of the argument that when a man, in the heat of passion or provocation, is in the act of perpetrating the crime, the deterrent force of our existing law at that moment is, at least, doubtful. But I am sure that even in that 408 case our long practice may not operate, perhaps unconsciously, in the mind of the perpetrator. So much has been learned in recent years of these subconscious reactions that it is widely appreciated now that, even if a man is not realising it at the time, the traditions of the society in which he lives have, in fact, an influence on him. I do not admit that it can never operate then.
But have we not to consider the influence of the present law on quite another type of person? There are many people who have a strong reason for wishing that somebody else were dead, and they are not all murderers. There are those whose lives are not controlled, as they should be, by moral consideration, to whom the disappearance of another human being would seem to bring untold relief. There may be a man who is in a torment of anxiety because he has had a mistress and he is going to marry another lady. Is it not certain that such a man may well say to himself: "I wish she were out of the way. What a relief it would be to me if I heard to-morrow that she had dropped dead!"? Take a second example, a man who is utterly worn out with attending to some aged or half-witted person, who can never be other than an almost intolerable burden, and of whom it might be said he would be better dead. These people do not as a rule commit murder; it is the rarest case, I suppose, that they do. But are you sure that some of them, if they are without sufficient moral foundations, do not toy with the idea? And among the influences which dissuade them and force them to put such wickedness aside, you must ask yourself how much is due to the fact that, in the long tradition of our society, murder stands completely apart from other crimes. In every other ordinary crime the sentence is within the discretion of the Judge, subject to a maximum. In this case, and in this case alone, the sentence is automatic. It marks the crime as a crime that stands out beyond all others, bringing the threat of dreadful doom upon the perpetrator if he is detected, threatening his name and even the name of his family with terrible consequences. I ask myself: Does the existence of that terrible consequence bring any pause to the man who is sorely tempted to use violent means to get rid of the one and only obstacle to his relief?
409 I think we should ask ourselves whether, in those circumstances, it is reasonably safe to say that the prospect of a term of imprisonment is equally operative as a deterrent. No statistics will tell us the answer to that question. The answer is in the judgment and the common sense of individuals. We have all suffered from temptations of one kind or another, and we have to ask ourselves whether there are not people, communing with what they should do, who, because of the existence of the death penalty, reject Lady Macbeth's exhortation to "screw your courage to the sticking-place" and do the deed. Some of your Lordships may not think this consideration important. I mention it as one that has been little urged in the debate, and, searching my own heart and trying to judge the actions of fallible and perhaps wicked creatures, I am only sure that that consideration weighs with me.
We must all realise that murders are not all of the same nature. Where there has been serious provocation or extenuating circumstances, the Home Secretary—and I have served in that office—after long and careful consideration and with the advice available of men best able to help him, not only advises a reprieve but rejoices to advise a reprieve. In my experience, he searches diligently to find such materials, if he can, in the discharge of his agonising duty. But can cold-blooded, deliberate, coolly planned murder be classified and dealt with in the same way—the poisoner who plans, by secret and wicked means, by stealthy doses, to destroy the life of his wife or his enemy, waiting for his victim's death in agony, the man who plots in advance every detail of his crime, deliberately and coolly, and plans every detail of a supposed alibi? How can one regard that class of case as governed by the same considerations as the first? Our law is one which places responsibility for drawing that distinction into the hands of a responsible Minister of State, and my own experience leads me to think that on the whole that is a better way than endeavouring to define the difference by words in an Act of Parliament, the exact meaning and application of which may lead to dispute.
There is a third consideration. We shall have to ask ourselves: What is society to do with such a person as the cold-blooded deliberate murderer, if the utmost penalty is the penalty of imprisonment? The 410 answer which the Lord Chancellor gave me to-day is very illuminating on that, and some of his observations bear closely upon it. We have to realise, and everybody has to realise, that in this country, in actual fact, there is no such thing as imprisonment for life. It has been one of the results of the teaching of modern penologists, and many thoughtful men, that to shut a person up completely for the whole of his life, without the prospect of earning one day's remission for good conduct, condemned there until he rots in the grave, is one of the most horrible, bestial, barbaric treatments that was ever invented by one man to impose upon another I agree entirely with the Lord Chancellor that it is a doom far worse than death. We have long ago swept that away. You may visit the Château of Touraine; you may see the place where some notorious victim has been kept, year after year, shut up in a cage or in a dungeon. Thank Heaven we long ago got rid of all that in this country. Solitary confinement, shutting the man up so that he shall see no other human being, except perhaps the warder or chaplain, is a cruelty which no civilised society would justify.
Secondly, we have to ask ourselves how we are to deal with these cases which, under this clause, will be what one might call "let off." My own study of the science of penology, such as it is, leaves me, as it has left every reformer in that field, with the view that such a doom is worse than death. No one with practical knowledge of our modern prison system would deny that it would be a grave reversal of enlightened prison treatment if the man is to have no hope of earning remission by good conduct but is to be left endlessly in the confines of a convict establishment, with no prospect of release at any time. Yet, if you do let him out, what is the kind of man you are letting out? Not a murderer who is now reprieved and who may well, at any rate in the course of time, have appreciated that he must control his murderous impulses, but possibly a man of a very different kind. I am afraid we are placing a great strain on our credulity if we think every such person can be reformed in the course of serving a sentence in prison.
Lastly, we shall have to ask ourselves whether the years immediately before us are really wisely chosen for the purpose 411 of making this experiment. The police force is under-manned; the policeman is armed with a truncheon; and I, with some knowledge of the administration of the Metropolitan Police, would deplore bitterly the idea that we were likely now to have a police force in this country whose members go about carrying lethal weapons. The police deserve all our support in their difficult task. But what is the position they will be in if this step is taken? As the noble and learned Viscount the Lord Chancellor said, there is a new type of criminal abroad. It is a sad reflection that, to a large extent, these are men who during years of war have been actually trained for the purpose of perpetrating sudden slaughter. These people are now carrying weapons, and it seems to me that we shall have to consider seriously whether the years immediately following the present are the years in which this so-called "experiment" should be tried. What about the warders in the gaols? What, indeed, about the other inhabitants of the gaols? A convict prison may well contain a man who has committed the shocking crime of defrauding his ward of great sums of money to line his own pockets; a man who has amassed wealth by a fraudulent series of company promotions; and many other types of persons. Such persons despise, loathe, and condemn the cold-blooded murderer just as much as you or I; and I think it needs very great consideration before you decide to house these people together.
I apologise for putting these observations at this stage and I will not detain your Lordships longer. But I sincerely desire to know how these considerations—and there are others—are really to be met. I would end by saying this. To my mind we have no right, on the material before us, to risk an experiment which may put in jeopardy innocent human lives. It is all very well to argue these things out as though they were abstract propositions, but I conceive that Parliament is here to protect the interests of everybody so far as it can; and when I heard the noble and learned Viscount the Lord Chancellor say just now in his speech, "No one can say whether we are right or wrong until we have tried," I shuddered. By what right are we to say: "Let us try this experiment. No one can tell whether we are right or wrong 412 until we have tried; and if at the end of the period more human lives have been sacrificed, well, that is just the luck of the thing, and we can consider whether we will go back"?
I do not agree that the onus of this matter is on those who desire to maintain the present law. When the evidence given is examined, and when some of the statements that were made to secure the vote in the other place are examined, I do not think that they will be found to throw any burden of proof upon those who seek in this matter for more serious reasons than at present exist. All this has nothing to do with the general merits of this Bill. If I have transgressed by dealing with this matter at too much length, I apologise; but I regard it as one of those issues on which there is nothing which gives the slightest encouragement to the idea that public approval has been given to the change. I think that these considerations are so important that it is necessary to mention them even on the Second Reading of the Bill.
§ 4.16 p.m.
§ VISCOUNT SAMUEL
My Lords, I do not propose to address you at great length, and I intend to devote my observations almost entirely to the one subject which is uppermost in the minds of all of us, and that is the proposed suspension for five years of the death penalty, provided for in Clause 1 of the Bill which now comes before us. I would, however, preface my observations by paying a tribute to the noble Viscount, Lord Templewood, for his great exertions in preparing the original Criminal Justice Bill, and to congratulate him on the fact that he now sees in this measure those efforts coming to fruition. I do not underestimate the importance or value of the Bill. It is one of the great virtues of this Bill, taken as a whole, that on the Second Reading stage it is unnecessary to dwell upon any of the provisions.
One clause, however, I would mention in passing, since it may prove to be controversial when we reach the Committee stage, and that is the clause for the abolition of whipping of adults as a judicial sentence. Like every other living ex-Home Secretary, I consider that that penalty should be abolished, and I welcome that clause. The expert Committee who carefully investigated this matter, after long deliberation and in an elaborate Report, unanimously recommended the abolition 413 of whipping as a judicial sentence. It exists in no civilised country in the world except here in England and Wales (it does not exist even in Scotland), in one or two of the British Dominions, and, I believe, in the States of Delaware and Maryland, in the United States. It is the last relic of the system of physical torture as a punishment for crime which came down to us from the Middle Ages; and the whole of it has now been abolished with this one exception.
With regard to the death penalty, like the noble and learned Viscount, Lord Simon, I speak with the responsibility of having held the office of Home Secretary in this country, though it is true only for a period of a little over two years; but for five years I was High Commissioner for Palestine, where I had to deal with death sentences which, in proportion to population, were far more numerous there than in this country. I should be glad indeed if I could support any proposal which would relieve others who hold in this country the office of Home Secretary from the mental strain which devolves upon the Secretary of State when he is dealing with these cases. His is a single responsibility. The jurymen who try the case have the duty only of finding as to the facts. The judge has no discrimination and, when a verdict of guilty is brought in, his task under the law is only to pronounce sentence. The Court of Criminal Appeal, if they find no legal grounds on which to reverse the sentence, can take no action. They do not have to consider the case on its merits. The advisers in the Home Office who prepare most careful and elaborate reports on each case in turn are, of course, only advisers. His Majesty the King, in whom is vested the prerogative of pardon under the Constitution, acts always on the advice of his Minister. It is the Home Secretary alone who has to decide whether a man shall live or die.
It is in the light of those feelings that all of us who have been through that moral strain must come to our opinion and our conclusion upon this issue. Nevertheless, we have the same duty of advising Parliament, in so far as it rests upon us to advise, as we had to execute that duty itself; and we must do it without being swayed in our judgment by the very natural feelings that we must retain, having passed through such ordeals. In 414 my view two false arguments are used in support of the proposal for the abolition of the death penalty which may be put aside at the outset. One is that, as a matter of conscience, it is always wrong to take a human life, in any circumstances. Indeed, if that view were held, it would decide the matter straight away. That is the error of the pacifists who will not take up arms in any war for any purpose, and who would submit to seeing their country conquered and oppressed by an armed enemy rather than engage in resistance. The advocates of this clause have not carried that principle into effect, because they leave the death penalty still remaining for treason and for piracy.
The other argument, which I think is obviously a false one, is that because murders still continue the death penalty is no deterrent. That reasoning would lead to the abolition of any penalty for any crime, since crimes have still continued and trials have taken place. For example, take a comparatively trivial offence like shoplifting. It might be said that those who are guilty of shoplifting are subject to the harsh and, in many ways, barbarous punishment of imprisonment; that imprisonment has proved to be no deterrent because there are still cases of shoplifting; and, therefore, that you might as well substitute a fine. Since the one is not a deterrent, what does it matter whether you have the sentence or not? There is no such thing as a negative statistic. No statistician can count the number of crimes that have not been committed but which might have been committed; and therefore that argument also should be put aside.
Of greater weight is the experience of other countries. That, indeed, should lead us to be ready to reconsider the whole matter. But that experience is not uniform. In several of the States of America, the death penalty was abolished but, after experience of the result, was re-established. After a careful reading of the debate on this matter in another place a few weeks ago, I do not see that anyone has referred to the experience of France. There, M. Grévy, who was President from 1879–1887, was a convinced opponent of the death penalty and reprieved the great majority of the cases that came before him. However, public 415 opinion in France by 1887 had insisted that the death penalty should be applied. Later, M. Fallières, who assumed office in 1906, holding the view of M. Grévy, reprieved all the cases that came before him in his first two years. But here again, in September, 1908, a vote in the French Chamber had the effect of requiring him to stop that practice, and capital punishment which had been suspended was restored. And it continues to-day.
I am greatly influenced in this matter by the consideration of whether public opinion in this country now approves of the abolition of the death penalty, because this is a matter in which we must carry public opinion with us. If the general opinion of the nation is hostile, we may possibly have shocking results, if outrageous crimes are committed and if the only penalty to be inflicted is a period of years of imprisonment. Happily, we in this country have been free from political assassinations, but other countries have not. One does not know whether, in times of tumult and great controversy, and possibly of distress, we might not have political crimes such as bomb-throwing, leading to a number of deaths. Such things might occur. And if they did, and the death penalty were abolished, it might be difficult to protect the person who was supposed to have committed the crime from the fury of the crowd—as events in history have often shown us. It is essential that we should do as we do now, and that in such an event the police should make it their business to rescue for trial the person who is apparently the author of such an outrage. A crowd, acting in a state of extreme excitement, may easily lay hands on a person who is quite innocent, and a man who may be proved afterwards to have had nothing to do with the offence may suffer at their hands. Therefore, arrest and judicial trial are essential in every civilised country.
Secondly, there are the cases of policemen who are killed in the execution of their duty; and not only the police but all private individuals who, as good citizens, come to the assistance of the police—as, for instance, in the recent Antiquis case, where an innocent person, quite unconcerned, helping to obstruct the path of a criminal who had committed a murder, was shot and killed. Subsequently, your Lordships will recall, the murderer was 416 executed. Then there is the position of the prison warders, because a man already serving a life sentence has no further penalty to fear if he murders a warder. Once the death penalty has been abolished nothing worse can be done to him than would be done otherwise, except that he may be kept a few years longer in prison. No adequate deterrent is there to protect the lives of the prison staffs. Fourthly, there are murders such as those instanced by the noble and learned Viscount, Lord Simon, as being of a planned and callous character, long prepared and deliberately carried out. There has been more than one case both here, in France, and possibly elsewhere, of persons who have been convicted of a series of murders, frequently of the same character. Those cases stand in a special grade of horror.
What public opinion is in this country has been illustrated by a poll taken last year. The Gallup Polls are often extraordinarily revealing of the mood of the people. Sometimes they may err, but as a rule they have proved to a considerable extent to be reliable. In June of last year the question of capital punishment was put to the usual sample of the whole population—people of all classes, ages and Parties, and of all districts. The results given in percentages, were that 68 said that they approved the retention of the death penalty, 25 said that they favoured its abolition, and 8 expressed no opinion. Strangely enough, those tests were also applied in several other countries, and in Canada the result was identical—68 per cent. again were in favour of retention. In France also there was a striking similarity—once more 68 per cent. In all three cases the number was the same, though the figures of those who expressed no opinion and those who were against differed. In the United States opinion was divided evenly, and in other countries the death penalty had been abolished and a poll was not taken. If those figures had been the other way—if 68 per cent. had expressed opinion in favour of the abolition—then I am quite certain that the advocates of immediate abolition would have quoted them as conclusive proof that the time was ripe. But if these tests are reliable, since two-thirds of those questioned have declared that they favour the retention of the death penalty, then I think it is legitimate to quote the fact in favour of that opinion being carried into effect.
417 But it is not only the ordinary man in the street who has expressed that opinion. The Home Secretary, in one of the declarations he made in the debate in another place but one which I think the noble Viscount did not actually quote, said:The Government find, after the most careful review of this subject, that they cannot recommend the House to support the clause…We believe that the time is not ripe for undertaking this particular reform. I do not myself believe that public opinion in the country is in favour of this clause at this time.I do not, however, hold the view that we have to choose between the clause in the Bill or leaving things just as they are. I do not think that this proposal for the suspension of the death penalty for five years has any logic in it. Time is not the test. What we need is discrimination in its application. It has often been suggested that the law should create two degrees of murder. We have, of course, two degrees already in the distinction between manslaughter and murder. For my own part, after giving some study to the question, I doubt whether it would be possible to frame an adequate definition whereby to divide the first degree from the second degree. It is very difficult to frame a definition which would include those four categories which I have suggested and, at the same time, exclude others. However, the machinery exists for making this particular discrimination—namely, in the discretion vested in the Home Secretary. It is a very flexible and adaptable machinery and it is, in fact, now in operation, for reprieves are as numerous as executions.
The Home Office was kind enough to provide me a few months ago with some figures. I have not since asked them to include those for last year, 1947, but the figures I have are for the twelve years 1935 to 1946. During those years 273 sentences of death were passed. Of that number 113 were executed, 136 were reprieved and, in addition, there were 24 who were found to be insane. The average is that 23 death sentences are passed each year, 10 of the criminals are executed, 11 are reprieved, and 2 are found to be insane. I made a suggestion when I had the privilege of giving evidence before the Select Committee in 1930 which I adhere to now, and I submit it to your Lordships for consideration. It is that the practice under which the Home Secretary acts should be changed. Now he 418 intervenes only where there is definite reason why the law, as it is said, should not take its course. Of course, if there is any doubt as to the man's guilt, then there can be no doubt as to the Home Secretary's action. Where there is doubt there can be no doubt; for the fact that there is doubt should decide the matter for the Home Secretary. Where also there are clearly extenuating circumstances, such as a recommendation to mercy from the jury, then the Home Secretary would hesitate long before he refused to accept that recommendation; but otherwise, unless he finds specific grounds for intervention, the law takes its course and the prisoner is executed.
The suggestion I would submit is that the contrary should be the case, and that the practice should be established that the Home Secretary should reprieve except in such cases as the four categories that I have mentioned. If it is thought that such a penalty may be exacted, persons might not be tempted to commit similar crimes. Uncertainty would remain in the minds of criminal individuals as to whether they would be hanged or not, and that would perhaps be quite a good thing. I suggested in my evidence eighteen years ago that this might be brought about by a Resolution to that effect passed by the House of Commons; but on consideration I have some little doubt about it, first, because I am not sure that it would not be regarded as an interference with the Royal Prerogative, and secondly, because your Lordships' House would probably insist upon the right of a similar Resolution, and might take a different view from the other place. But it is not essential that any formal act should be performed at all. We have the good British custom of letting our law follow upon our practice. The declaration of a principle very often follows upon the adoption of a certain practice, rather than preceding it. What would be needed would be a declaration of the Government of the day, with an expression of the opinion of both Houses, as to its desirability, together with the consent of His Majesty; and an undertaking might be given that the whole matter should be considered afresh at the end of five years.
When we are asked to follow the example of other countries, let us remember that, so far as I know, none of those countries suddenly passed a law to abolish 419 the death penalty. There may have been exceptions—I am not sure—but all those about which I have seen particulars have proceeded along these lines: that they have left capital punishment on their Statute books, but have allowed it to fall into abeyance through administrative action. The last execution in Holland took place in 1860. In Belgium it was in 1863, although I believe that Belgium still has capital punishment on its Statute Book. In Norway it was in 1875; and in Denmark in 1892. The right honourable gentleman Sir John Anderson, who has had great experience in this matter, recommended this course at the end of his speech in the House of Commons, using a single sentence, which he did not elaborate. He ended his speech by saying:A much better and safer method would be an administrative adjustment of the criterion upon which the Prerogative of mercy is recommended by the Home Secretary.The late Sir Alexander Paterson, who has also been quoted in this connection, advocated not abolition but allowing the matter to fall into abeyance. The Select Committee of the House of Commons on Capital Punishment on the last page of their Report in 1930 made some conditional recommendations. They said that should Parliament decide to maintain the death penalty, certain Recommendations should be made. The fourth of these Recommendations reads:That there might be a still larger exercise of the Royal Prerogative, and a raising of the line that has come through precedent to mark the limit of its application; and that such a raising of the line could be effected through a Resolution of the House of Commons.That was similar to the advice which I had given in the evidence to which I have referred. As to the desirability of this being done by Resolution of the House of Commons, perhaps that is a matter which requires further consideration. As to the action to be taken by your Lordships, that will be decided only when we come to the Committee stage. I have no doubt that the course then taken will depend very greatly on the opinions expressed on one side or the other in the present debate on Second Reading.
I do not agree with the noble and learned Viscount the Lord Chancellor in saying that your Lordships' House should regard themselves as precluded from 420 judging this matter on its specific merits by reason of the fact that the House of Commons, on a free vote, has taken a particular course. There are cases in which your Lordships' House subordinates its judgment as to what is right and desirable owing to its own constitutional position. Such a case is one in which a Government whose Bill is under discussion have had a clear mandate from the people for the policy which is being carried into effect. That cannot be claimed in this case. If it had been so, how would it have been possible for the Prime Minister and the Home Secretary to vote against this clause, and for the Government as a whole to advise the House of Commons not to accept it. Nor can it be said, in view of that circumstance and the attitude of the Government themselves, that the general weight of the House of Commons was behind this proposal. Consequently, I submit, it is the duty of your Lordships not to take into account the Parliamentary situation at the moment. Your Lordships House must bear its own responsibility for taking what in its opinion is the right course in the presence of history and in accordance with what it may consider to be the wishes of the nation.
§ 4.45 p.m.
THE LORD BISHOP OF WINCHESTER
My Lords, it may be thought fitting that some opinion should be expressed from these Benches in regard to a measure which has been so long in preparation and is so wide in its scope and so obviously humane in its intention as the measure which we are now considering. It may also reasonably be supposed that on these Benches we ought to be characteristically more concerned with the sphere of grace than with the sphere of law, with such matters as repentance and forgiveness rather than with crime and punishment. But circumstances to-day combine to show that those two spheres are profoundly interdependent. The prison reformers and the law reformers increasingly recognise the value of spiritual and moral appeals in their treatment of offenders; and preachers and moralists alike have cause to realise that their appeals are little likely to be heard, or even understood, in societies in which there is a growing disrespect for law and in which anarchy increases.
421 This Bill contains many provisions, the wisdom or the value of which I lack the expert judicial experience to assess. But the heart and core of the Bill is fairly plain, and it has been made lucid by the speech of the noble and learned Viscount the Lord Chancellor. I am sure we are all sorry that discussion on one particular subject should so cloud the general debate on this great measure. It has, I take it, a two-fold intention. The first is to treat the hardened offender pretty seriously and severely, by extending the period of his detention and by applying to him a richer selection of vigorous treatments, while on the other side the Bill is designed to extend and increase the probation method of dealing with those who are likely to respond to gentler and kindlier handling. I am sure that I speak for the majority on these Benches in extending a most sincere and warm welcome to this measure and in joining in the tributes which have been paid to its original begetter, Lord Templewood.
That said, there are one or two doubts in my mind concerning this Bill—not very serious, perhaps, but worth mentioning—in regard to which I should be grateful for some reassurance. I am sure that many of us will agree that this Bill has been so long in gestation that it is a little unfortunate in the time of its birth—in more ways than one. I am bound to ask myself whether this may not be another Bill some of the provisions of which it may be impossible to carry out owing to the exigencies of the time, and other provisions of which, if carried out, owing to the exigencies of the time may be in danger of turning confusion into chaos.
I recall that the noble and learned Viscount the Lord Chancellor rebuked the noble Marquess, Lord Reading, in the debate on the gracious Speech eighteen months ago, for expressing regret that this Bill had not by then been brought forward. The Lord Chancellor said in effect: "Ah! but this Bill involves a great deal of building, and I think it ought to be put off until building on a large scale, as we hope, becomes possible again." The Bill certainly does involve a great deal of building. A vast number of remand hostels, homes, detention centres and prisons will be necessary, and I ask myself: Has the situation so changed that 422 we can embark on this elaborate programme in the near future? Again, it is essential, for the purposes of this Bill, that there should be accommodation for hardened offenders who will be serving immensely longer terms of imprisonment. Go into any of our prisons to-day, and you will find the governors completely at a loss because their establishments are so overcrowded. In some cases two or three prisoners are sleeping together in one cell. We cannot take advantage of the many existing methods of special treatment because governors of the prisons cannot secure the accommodation which is necessary.
We have had experience of some other measures which have done harm as well as good through being hurried forward without regard to the times. Some of us feel that rather deeply with regard to the raising of the school leaving age, that its consequences have been fraught with dangers for schools and also for children. Some of us feel that the National Health Service Act may yet have the effect for a time of depriving people of adequate medical assistance, with the entirely praiseworthy intention of some day or other providing medical attention for all. Some of these measures seem to have behind them a kind of momentum which carries them forward regardless of contemporary conditions to which they have to be applied.
This Bill is unfortunate in the time of its birth. It seems to me that although, when it was first thought of, it could reasonably lave been urged that the treatment of offenders had a certain priority claim upon public attention, that would be a difficult statement to uphold now. The people who have a priority on our attention to-day are not the people in prison, but the people who ought to be there and are not—the great number of criminals who at the present time are allowed to go scot-free and who are bringing the law, and the power of enforcing it in this country, into serious discredit. I would make this point very seriously It is difficult to exaggerate the profound ill-effects on the public conscience which this temporary collapse of the law is bringing about. I know that that is no final argument against this Bill and of course I do not suggest it as such. But I feel that those who promote this Bill 423 ought to conceive themselves as under a serious obligation to press forward far more effectively than they have done hitherto with the enlargement of the police force, building it up and making it really effective. I ask them whether honestly and truly they think that the inclusion of Clause 1 will assist them in that supremely important work. I think it is bound to make their work much more difficult.
I realise that the central interest in this Bill lies, rather unfortunately, in Clause 1. And I feel at a disadvantage in trying to say something on that great subject from these Benches, and from my point of view, without more having been said in support of it. It makes one feel that one is flogging a dying if not a dead horse. I cannot but feel there is more to be said in favour of the first clause as it stands than has so far been mentioned in your Lordships' House. I want to be quite honest. The most difficult argument to counter, though it does not control my mind, is the fact that capital punishment takes away permanently all possibility of reforming in this life the person who is affected. The fact that this is a difficult subject is evidenced by the way in which even Christian thinkers have differed about it through the years. That is significant, because it may reasonably be thought that a belief in the future life is a decisive factor, at one point, on the view we take. I do not forget that St. Augustine, as quoted in the Report of the Committee, and our greatly revered leader, William Temple, in evidence before the Committee, took a view contrary to that which has been defended to-day. I do not know what view William Temple would have taken if he had been giving his evidence now, in these post-war years. As to St. Augustine, the death penalty in his time was administered in a very different way from that in which it is administered to-day.
I shall not try to make the various points which I should have tried to make, and which have been effectively made by the noble and learned Viscount, Lord Simon—and still more, perhaps, from my point of view, by the noble Viscount, Lord Samuel—but I will underline what was said about taking the decision on this subject on its merits. It is unthinkable 424 that this House should allow its opinion on this subject to be governed by thoughts of what effect it may have on the Parliament Bill, or any consequence of that kind. The country is waiting for an honest expression of your Lordships' mind on this subject, and it would be wrong not to see that they have it. I should like to emphasise again, and even more strongly, the point that in the administration of the death penalty we have at this time in this country an extraordinarily rich and flexible system and mode of action. It has been evolved, bit by bit, partly through statutory changes and partly through experience as people went along, but which, when you think about it, is an extraordinarily rich and, I believe, satisfactory provision. I say this as one who has been privileged to see pastorally a good deal of several murderers after they have been condemned to death. There is so much opportunity (more opportunity than the public either realise or, perhaps, can be allowed to realise) for the exercise of mercy, as well as for the satisfaction of justice. We must be satisfied by the strongest possible reasons that we are not interfering arbitrarily and needlessly in so happy a balance of forces as are embodied in our administration of the death penalty at this time. I think we should be wise to leave the question to the day—if ever such a day comes—when no British jury can be found to find any one guilty of murder without a recommendation to mercy.
Again, I should like to emphasise, from the point of view of one who sits on these Benches, the point made by the noble Viscount, Lord Samuel, about the inadequacy of the principle of the sacredness of life—at any rate as stated in another place in such an unqualified manner. That does not seem to me, in its unqualified form, either a reasonable or a Christian principle. Of course Christians believe in the sacredness of human life and, to some extent, in the sacredness of all life. But it has never been a characteristic of Christian belief to say there is nothing sufficiently sacred to allow of life being surrendered or taken for its sake. If anyone is interested in the official view of the Church of England on this subject, I may recall the modest language of the Thirty-seventh Article of Religion, which says that for sufficiently 425 heinous offences Christian men may be put to death. I would go further and recall the words, and the author of the words:It were better for him if a great millstone were hanged about his neck, and he were cast into the sea.I find it difficult for anyone to suggest that those words imply an unqualified reverence for human life as such.
If I do not take up too much of your Lordships' time, I would venture to add a few suggestions for the consideration of your Lordships. First of all, I would suggest that we ought all to beware in thinking about the death penalty, lest the almost pathological fear of punishment in almost any form which is so common to-day enters into our judgment and, without our knowing it, affects our decision on the death penalty. No doubt there are excellent reasons for the disuse of punishment in home and school, and in other spheres. In the past it has been often used excessively and stupidly, but there are also sinister reasons behind the lost belief in punishment as something which has any essential and intrinsic value and any possible remedial effects on persons to whom it is given. God forbid that we should go back on much of the progress that has been made in regard to the use of punishment. I would, however, draw your Lordships' attention to this fact—and I think those who are most keen on prison reform will feel that this is a pertinent question—that the more we have made provision, by our prison treatment and in other ways, for appealing to the better nature of criminals, the more frequently we find that there is less better nature to which to appeal. I believe that when you look deeply into the matter, it may well be felt that one of the reasons is that we have gone too far in the way of fear of the use of punishment. It is possible even that the heyday of what I might call Patersonian optimism in this matter has, at any rate for the time being, passed. I feel that perhaps in some respects this Bill is a little infected at some points by an excessive fear of punishment. I certainly view with some alarm the extent to which the door is opened to the opinions and influence of more medical men and more psychiatrists.
But I would go further still, and take the opportunity of recalling to your Lord- 426 ships' minds what I would call the social aspect of punishment. I believe that this is one of the most relevant considerations in regard to the difficult point at issue. We all know, and yet we all tend to forget, that originally punishment is awarded by society as a kind of summons to individual members of society to make reparation and atonement for actions which, in the judgment of society as a whole, menace its well-being or its continued existence. In that sense, from the beginning right through history, punishment awarded by the community has served in the most profound way to express, to satisfy and, above all, to educate the conscience of the community. I know that, largely owing to Christian influences, there has grown up inside what I may call the objective social view and social use of punishment; a quite different use of punishment, which is governed primarily by consideration of its remedial effect upon the individual offender. But though that is perfectly right and healthy (and may that kind of development go as far as it possibly can) I suggest that it is easy to think too lightly that we can get along without the primitive framework whereby punishment is awarded by the State in a quite objective way.
I feel that this goes deep and, with all respect to previous speakers, I believe that the deepest point is not just whether the death penalty deters a certain number of people from committing murder—whether it reduces or increases by a certain fraction the number of murders—but what the effect of abolishing the death penalty on the education of the conscience of the community as a whole will be; how far it will affect the general sense of the wicked-ness of wickedness, the general sense of the criminality of crime, and the general sense that some crimes are infinitely more heinous than others. I think that in such a community as ours people's minds are affected as regards what is right and what is wrong largely by what the State penalises and the extent to which the State penalises; and that principle can only be left behind at great risk and great danger.
One other aspect of the primitive objective view of punishment is certainly the principle of equivalence; the idea that in some sense the punishment should be the equivalent of the crime. I know that it is easy to make fun of that, and to draw out its absurd aspects in primitive society, but 427 here again I believe there is a profound wisdom which, with things as they are, we neglect at our peril. Certainly there is the danger in this Bill—though I do not press the point—that if we think merely in individual terms and make the punishments so flexible that they vary with every individual, we shall, by making our system as flexible as that, make people's idea of what is right and wrong too flexible also. I am surprised, especially on reading the report of the debate in another place, at the number of Socialists who take a profoundly individualistic view of punishment. They are not alone in that, because one of the strongest exponents of the case against Clause 1 in another place was thankful that our legal system had no trace whatever of the social function of punishment left in it.
Lastly, I would refer to something that was well said by the noble Viscount, Lord Simon, recalling the sense of the profound difference between the death penalty and any other kind of penalty. The death penalty has about it a vertical dimension and, therefore, in my view, is capable of arousing, and does in fact arouse among an immense number of people, what I can only describe as a quasi-religious sense of awe. I am told that there are people with perverted ambitions who want to become murderers to get notoriety, and the like. There may be such people; there probably are. But I suggest that, if that is so, the people who are responsible are the people who write up murder cases in the way that they do in the papers, rather than those who feel sincerely that capital punishment ought to remain.
I have been speaking about capital punishment and the death penalty because I believe that one cannot really discuss the suspension of the death penalty without forming a judgment in regard to the death penalty itself. I can well understand that those who wish to see the death penalty abolished will vote for the suspensory clause, on the principle that half a loaf is better than no bread. But, if one does not take that view, then I cannot see any real reason for supporting Clause 1 as it stands. After all, what is going to decide in the next five years whether there are a few more murders or a few less is not the mere suspension 428 of the death penalty. Many other factors will come in: for example, the strength of the police force; the number of deserters who are about trying to live on their wits; and, possibly, the question whether the spirit of enterprise is still so largely and widely diverted from legitimate channels. Beyond that, I urge that the question to be considered is not simply whether there will be a few more murders or a few less, but the whole attitude of the British people to what I have described as the criminality of crime, and to the majesty of the whole system of law from top to bottom. We cannot come to a decision about the effects of this clause on that in five years. I hope I have not detained your Lordships too long. It is with such a serious reservation, and with the one or two doubts I expressed at the start, but also with sincere appreciation of the great bulk of this measure so far as I understand it, that I support the Motion.
§ 5.10 p.m.
§ LORD OAKSEY
My Lords, I have to crave your Lordships' indulgence, as this is the first occasion on which I have addressed your Lordships' House. I would not wish to do so in so important a debate as this were it not that I have had considerable experience in the administration of criminal justice. It is for that reason alone that I make the speech that I am going to make and in which I intend merely to act as a witness for the result of my experience as a Judge in criminal justice. I am not unaware that some people think that His Majesty's Judges—and perhaps Judges in general—are inclined to be hardened by the administration of criminal justice. I do not take that view, and I believe that my brethren on the Bench have as their highest ambition not only to be just Judges but to be merciful Judges.
I would remind your Lordships that it is the Judges of this country who have established the fundamental principle of the criminal law that a man is presumed to be innocent until he is proved to be guilty. That has been evolved as a principle by the Judges of this country, and not by the Legislature. I submit to your Lordships that the administration of the criminal law during the period that I have been on the Bench, at any rate, has been a merciful administration of justice, and 429 that full use has been made during that period of the system of probation and of binding over which is consolidated and to a large extent perhaps improved in the Bill which is before your Lordships' House.
Now I want to say a few words upon the question of the proposed abolition of the capital sentence, and also upon the proposed abolition of hard labour and whipping. I am quite aware that what I say about hard labour and whipping will probably not meet with the same approval of your Lordships' House as my views upon the subject of the abolition of the capital sentence, but I feel that it is my duty to express my opinion upon it. In the first place, I consider that all these punishments—the capital penalty, hard labour (in so far as it still exists, and if it exists, as I think it ought to exist) and whipping—are all the greatest deterrents. It is not because I view those punishments with equanimity that I wish them to be continued. I have the greatest horror of the capital sentence; I have the greatest horror of imprisonment; I have the greatest horror of whipping: but I have a greater horror for the crimes for which they are imposed.
I would ask your Lordships to consider the atmosphere in a criminal court in this country when a murder trial is going on. Everyone who has at any time been in a criminal court can feel the tense anxiety which is felt not only by the Judge, but by the jury, by the police and by every person who enters that court. What is it that inspires that sense of anxiety? What is it but a horror and a fear of death? Again, one hears frequently put forward as a reason for the abolition of the capital penalty the fact that the carrying out of the sentence has a terrible effect upon the prison officers, and that everyone in the prison is so shocked by the carrying out of capital sentences that the whole prison is disorganised. Is it not really the same horror of death, the same instinct for self-preservation, which inspires those who are in favour of the abolition of the capital penalty? In those circumstances, how can it be said that the fear of death is not a real deterrent, and not the greatest deterrent? Are criminals, or would-be criminals, the only people who have no horror of death? I put it to your Lordships that it is one of the fundamental characteristics of human nature 430 that the capital penalty is the thing which is most dreaded of all.
It is sometimes said by those in favour of the abolition that it is a question of conscience. The noble Viscount, Lord Samuel, and the right reverend Prelate, the Bishop of Winchester, who has just spoken, have both shown that that is not a true statement or a sound argument. I put it to your Lordships that it is not a question of conscience; it is a question of nerve. When one thinks of whether it is a question of conscience, one has to think of what one feels about imprisonment. To take away a man's freedom is surely just as contrary to one's conscience as to take away his fife. In fact, as bat great prison reformer, Sir Alexander Paterson, said in his evidence before the Committee in 1930, to condemn a man to imprisonment for more than fifteen years involved such a mental and physical deterioration in the man that it was worse than death. Therefore, it seems to me that there is only a difference in degree between imposing the capital penalty and the penalty of imprisonment. In that way, I submit that the question of conscience does not really enter into it, except, of course, in so far as every judgment that one gives is a conscientious judgment.
It seems to me a most extraordinary and irrational thing that in this Bill, whilst corporal punishment generally is abolished, it is retained for certain cases within the prisons. If corporal punishment is no deterrent, what is the point of retaining it for offences against prison officers? Is it the view of the Government that prison officers alone should be protected, and that the police and the public should not be protected? I pass then from the question of deterrents. I submit to your Lordships that these are the great deterrents: first, the capital penalty; secondly, imprisonment, and lastly, whipping.
I want now to ask—although I think the point has to some extent already been clearly and forcibly put by he noble and learned Viscount, Lord Simon—is this the time in which to introduce this change in the law? The statistics which were given in another place by tire Home Secretary showed the great increase of crime, and the increase is so great that the prisons are overcrowded. Then there is the fact that we as a nation have just been join- 431 ing with other countries in putting to death our enemies in Germany. It seems to me somewhat difficult to justify putting to death your enemies—who, after all, committed their crimes in the heat of war, and against people whom they regarded as their enemies—and at practically the some time abolish the penalty of death in your own country. I would also put it to your Lordships that the time is not ripe, because there is a lack of discipline in the country which gives rise to this wave of crime; and anything which interferes with the country's ideas of discipline should be discouraged. This is a subject which was forcibly dealt with by the right reverend Prelate.
The noble and learned Viscount, Lord Simon, also dealt with the question of what is to be done with murderers when they are released, and what punishment is to be inflicted upon them. The Bill says nothing about it. Is the sentence to be one of ten years, or of fifteen years, or of twenty years, or is it to be for life? And, of course, Clause 52 provides that the Home Secretary may order a murderer's release at any time: he may let him out in a month. There are, of course, infinite varieties of murderers; and I put it to you that the present system, with its complete flexibility, is one which should not be altered. First of all, there is the trial before a Judge and jury; and, as your Lordships know, the Judge is most anxious to explain to juries the presumption of innocence of which I have reminded your Lordships, and to go most thoroughly into every possibility of innocence on the part of the prisoner. The juries themselves are equally anxious to acquit the prisoner if they can. The criminal then goes, as a rule, before the Court of Criminal Appeal, where the case is again most anxiously examined; and then you have the completely flexible examination by the Home Secretary, who has the opportunity, if he wishes, to see the Judge who tried the case. In some instances I myself have been interviewed by the Home Secretary, and have discussed the whole case with him. He has absolute flexibility whereby to decide whether or not the prerogative of mercy should be exercised. I cannot think that any classification of murderers or of murders would be of real benefit. It is far better, in my respectful opinion, to 432 leave the matter as it is—completely at the discretion of the Home Secretary.
Now I wish to say a word or two on the subject of hard labour and whipping. I have already said that I believe that some form of severe punishment ought to be instituted, that hard labour ought to be re-introduced, and that whipping and hard labour act as most severe deterrents. The principal reason why I advocate that is that at the present time there is an absolute division between the Judge who tries the case and the prison officials who have the care of the man afterwards. If this Bill is passed, and is to apply to prisoners over twenty-one years of age, there will be no way in which the Judge can affect the sentence except by the length of time for which he imprisons the man. There are many cases in which a crime has been committed of a nature which is so shocking that the Judge feels it essential that the man should be made to remember his crime, and never to forget it. A man may have committed a crime under the influence of drink; he may be a man who is of immense importance to his family. And yet the only way in which the Judge can give that man an adequate sentence is by ordering him a long term of imprisonment—which is the very opposite of what he desires to do, because he wishes to let the man out again to his family as quickly as possible.
I remember particularly one case that I had to try, where a man who was said to be an extremely good father and an extremely good husband had, under the influence of drink, violated his own daughter of under five years of age. How is one to deal with such a case as that? What does hard labour mean? It means nothing more than a plank bed for the first fortnight of imprisonment. But now, even the name is to be taken away, and the prisoner is to go into the care of the Prison Commissioners—who probably know nothing whatever about the case, because they cannot possibly go into the facts in the same detail as the Judge does before he sentences the prisoner. The Prison Commissioners cannot see the man other than as a man who has been found guilty of indecent assault, or larceny, or burglary or whatever it may be; and they see him as a captive, not as a free man. They do not see what he has done; they see him only in a category of prisoners. They cannot in those circumstances make the punishment, as I think it should, fit the crime. 433 I am not advocating any intolerable severity of punishment, but I submit to your Lordships and to the Government that there should be some distinction in the forms of imprisonment which can be imposed by the Judge who has to try the case.
There is one further point that I wish to make. I think it would be a good thing if provision could be brought into this Bill to increase the assistance which is given by the Government to discharged prisoners. But I wanted to submit to your Lordships the reasons why I oppose the abolition of the capital penalty and of the other penalties to which I have referred. In my view, they ought to be retained, because they are fundamental punishments which the ordinary man can understand and for which he will never lose his dread.
§ 5.29 p.m.
§ LORD TEVIOT
My Lords, it is, I feel, a great privilege to follow the noble and learned Lord who has just sat down, and I wish to congratulate him on a great speech, full of wisdom and of good advice. I only hope that those in another place who voted for the abolition of capital punishment will read that speech and will gather wisdom and perhaps an altered opinion therefrom. As I am sure your Lordships would wish to do if you were in my position, I most heartily congratulate the noble and learned Lord on his magnificent speech, and look forward to being present on many occasions in the future to hear him speak again.
The decision which was come to by a free vote in another place is a very grave one. I am in entire agreement with what the noble and learned Lord who has just sat down said about the reasons for retaining the various punishments to which he referred. I hope that in the end your Lordships will reverse the decision arrived at in the other House. I do not think that much has been said about this point, but I am wondering whether any of those who voted in the way they did in another place have ever experienced the sorrow, the misery and the suffering caused in the families of people who have been brutally murdered or brutally knocked about. I cannot believe that any who have had that experience would have voted as those Members did. As I understand it, the death penalty is not imposed with any idea of punishment and vengeance. In 434 my view, the whole idea of this penalty is to stop the individual from ever committing that crime again. With regard to the imposition of fifteen years' imprisonment, I understand that there are many cases where men have come out and have committed the same offence again. For that reason, I feel that there is no quest on whatever but that we should continue the present practice.
I have not been in your Lordships' House all the afternoon so I do not know whether anybody has raised this point. However, I am told that each year there are quite a number of people who disappear and are never heard of again, I am also told that the police are very suspicious of certain people who are at large and who may be responsible for those disappearances. But there is no evidence to convict them and, therefore, they roam abroad and no doubt get an opportunity of committing the same crime again. These unknown murderers are a menace to society. We know that to-day there are one or two of them at large in this country but they cannot be caught. I was so glad to hear the noble and learned Lord who has just spoken go into some detail in regard to the great investigation that takes place at murder trials. It would seem almost impossible that there could be a miscarriage of justice, and I do not believe that there is, because if there is one iota of suspicion that the man or the woman concerned is not guilty, a reprieve is granted. There is another matter upon which I feel very strongly. We look about the world to-day and what do we see? We see the rule of law, as always understood by civilised nations, being usurped by the rule of murder. We all know the meaning of the word "liquidation." There seems to me to be no question whatever that the weakening on penalties of this sort is just pandering to those in the world who carry on their vicious persecution of people and rule by fear. I consider he present to be a most dangerous time in which to relax any penalties, particularly those for violent crimes.
The position of the police has been mentioned. The abolition of these penalties must weaken the position of the police. I understand that we are 6,000 policemen short in London to-day. What chance is there of obtaining many recruits in view of present conditions? They are 435 batting on a pretty bad wicket now, knowing that every gangster in the country is armed with a gun whilst they are not. We have recently seen instances of brutal murder which have been occasioned because of that fact. This splendid force of police should not be put into a worse position than that in which they are to-day. From the remarks of those in the police force to whom I have spoken, I believe that the last thing they want is to be armed. But I cannot see any alternative. If capital punishment is abolished, it will be necessary to take into serious consideration the question of arming our police who, after all, are responsible for the safety not only of our families but also of our possessions.
I believe that a strong and fairly treated police force would be a great safeguard against a brutal minority Government, if we should ever have one here. We see conditions in other countries where the police force has been influenced and affected by not getting proper treatment. We all know the result, and we can mention several countries where it would have been all to the advantage of the people if the police had been in a better position. After all, what is this idea? I am quite certain that the whole of this idea is merely political; it cannot be anything else. I have read various speeches and many of them seem to contain nothing but emotional politics. Do not let this noble House of ours be carried away by anything of that sort. In the totalitarian States there is this rule of murder, this liquidation. Do not let us forget that. We are a little inclined to say: "Oh, that sort of thing cannot happen here"; but I cannot believe that the Prime Minister would have made the speech he did the other day about the Communists unless he knew how dangerous the situation was in regard to the matter to which I have just referred.
I feel very strongly about this subject, and the speeches to which I have listened to-day, made by great men with great knowledge of the law, naturally appeal to a layman like myself, as I am sure they must have appealed to other members of your Lordships' House. The noble and learned Lord who has just spoken referred to the question of deterrent. A man is sentenced to death. Does not the fact that in nearly every 436 case he appeals against the sentence show his fear of death? As the noble and learned Lord who has just sat down has explained to us so well, that fear in itself is a deterrent to crime. There is just one thing I should like to suggest. I am wondering whether our present system, by which the final word is given by the Home Secretary, is not rather an unfair one. I make this suggestion: that when the trial has taken place and an appeal is lodged and is not successful, a tribunal of some of the great Judges might be set up to give the final decision. If one puts oneself in the position of a Home Secretary who has just taken office with a case coming before him, one realises that it is extremely difficult for him to come to a decision, no matter whom he can consult. I feel that if we had somebody such as I suggest to make the final decision, it would be better. Unlike the Lord Chancellor, I am not at all influenced by the way in which a minority of the members of the other place voted. In this case I shall wholeheartedly support the Cabinet view on the matter.
§ 5.41 p.m.
§ LORD HOLDEN
My Lords, in warmly supporting this Bill I had not intended to refer to any controversial matter but entirely to confine my remarks to probation work. However, I think some of your Lordships might think I was burking the matter which certainly is foremost in your minds, so on this occasion I would like to be the first to say that I wholeheartedly support the abolition of whipping and capital punishment. I have done so for the past twenty years. Ever since I was a candidate for the Liberal Party in the 1929 Election I have publicly stated so, and to me it is a matter of conscience and a moral issue. I am not influenced by statistics on either side, either to prove that this suspension which is adumbrated by the Amendment in another place is likely to fail or otherwise.
Having said that, perhaps your Lordships will allow me to pass on to less controversial matters. On reading through the Bill, I think your Lordships will agree that to a large extent its successful operation depends upon the probation service. I feel there is no doubt about that. Apart, of course, from its reformatory and humane clauses, one of the main objects of the Bill is to keep young people out of 437 prison, which is obviously something which can not only mar but even ruin a young person's life. In the few short remarks I propose to address to your Lordships I would like to say one or two things on the main probation provisions of the Bill, although I do so with more trepidation than usual after the kindly remarks of the noble and learned Viscount, Lord Simon, in regard to my supposed knowledge of the subject. Up to now, probation has been regulated mainly by the Probation of Offenders Act, 1907, and this envisaged three methods—by a dismissal, a binding over or the placing of an offender under probation. Under the new Act the word "probation" will refer only to people who are actually put on probation, that is, under a probation officer. That, I think, is a good arrangement.
Another change which I welcome is that no longer have recognisances to be demanded from offenders. Again, I am glad to see that the consent and willing co-operation of every offender of 14 years and over is to be required for a probation order, although people under 14 may be placed on probation without their being prepared to give that willing consent and co-operation. For binding over, which I think has often made for difficulty in the past, has now been substituted the power to discharge the offender, provided that no offence is committed for twelve months from the time of his charge. I am sure that this will be of great advantage in the working of the probation system. I am also glad that the Bill gives an entirely new power, that of insisting that an offender shall receive medical attention where necessary, or when the Court is satisfied on medical evidence that this is necessary. I know that psychiatry is sometimes laughed at, particularly with regard to young people, and sometimes the more old-fashioned method of the big stick is applauded and advised. Personally, I have never been one of those who believe that if you hit a young person long enough you will, in the end, make him a good citizen.
I also welcome the new procedure for probation committees, which have, of course, been in existence for a very long time. But I think there is one point particularly which will cause some difficulty—namely, that every probation committee are required to provide a sufficient number of probation officers, or at least to 438 appoint a sufficient number of probation officers, for their petty sessional division. I know, from slight experience, the great difficulty that exists of finding probation officers, and I am quite certain that hat requirement will impose on probation committees a very difficult task. I am also glad to see, as another new measure, hat one woman is to be appointed by each probation committee of every petty sessional division; and also that all women or girls who are placed on probation will have to be placed under the supervision of a woman probation officer. I would also like to welcome some of the new financial arrangements—in particular, that which enables the probation committee, under safeguard, to incur expenses without in every case obtaining the approval of the local authority concerned.
Now I must refer to a clause which causes me anxiety, despite what was said by the noble and learned Viscount on the Woolsack in a passing reference to it. It is Clause 4, subsection (1). It is a matter about which I may be entirely wrong, and I should like to be proved so. Under the present law, a court of summary jurisdiction can make a probation order without proceeding to a conviction. Under this clause that is impossible. So far as I understand it, a court of summary jurisdiction will in future be unable to make any order for probation without previously convicting an offender. May I give an example of my anxiety? A young person can now be put on probation without conviction and, when; hat person comes later in life to answer a questionnaire, perhaps for employment or particularly for the Armed Services, in answer to the question, "Have you ever been convicted in a court of law?" at the present moment he can truthfully say, "No, I have not." So far as I can see, if this clause as it is now drafted is passed, that will no longer be possible. It is within my knowledge, and I think of all of us who have had anything to do with probation work, that many people have succeeded in re-establishing themselves in society just because no conviction has been recorded against them in a court of law. If I read this clause aright I cannot help thinking that this is a retrograde rather than a progressive step for the probation service, and I know that it will cause a great deal of alarm with probation officers in London, with whom I have had certain contact.
439 At the beginning of my remarks I referred to the importance of the probation service. This Bill depends to an extreme degree on the probation service and, as a corollary of that, naturally, upon the probation officers, whether men or women. We have certainly progressed since the late days of the last century, when the probation service was a voluntary one; and one might call the probation officers missionaries of our courts of law. We have given them further facilities, particularly with regard to training, not only in this Bill but also in the Probation Officers (Superannuation) Bill, which was introduced last July by the noble Lord, Lord Walkden, and which sought to improve their condition on retirement. In my opinion, there is no finer body of public servants in this country than our probation officers. I am quite certain that, in the future, when the time arrives for larger emoluments and greater amenities to be extended to all public servants, His Majesty's Government will not forget our probation officers.
§ 5.50 p.m.
§ LORD SCHUSTER
My Lords, it is late, and I do not propose, unless I lead myself astray, to address your Lordships at any great length. In particular, I do not intend on this occasion to say anything at all about the death penalty, except this. We have been invited to try an experiment. I, for one, do not feel inclined to take part in an experiment which may be at the expense of risk to the lives of every policeman and every warder in the country. Before I pass from that to the main substance of the Bill, I would like to say one word in answer to an observation which was made by the noble Lord, Lord Holden, a moment ago. Of course, I cannot pretend to possess anything like his knowledge or to have had his experience of the probation system. But I think I ought to say (and I know this view is held by many others besides myself, people who have experience of it, though perhaps not so great experience as that of the noble Lord) that we attach very great importance to the change made by Clause 4 (1). It has always seemed to many of those who are most interested in this matter of probation that a system which pretended that a person had not been convicted when, in fact, he had, 440 was an absurd system. It was all the more absurd because it enabled the person concerned afterwards to say truthfully that he had not been convicted, although in fact he had been put on probation for the sole reason that he had committed a crime. He was, in fact, in a position to deceive a person before whom he appeared. I do not wish to enter into controversy with the noble Lord, because I greatly value his opinion, but I felt that I ought to say that before proceeding further.
To come to my main argument. We are faced, so far as we can foresee, with a wave of crime, a wave of crime which is particularly distressing, because it seems to come from the younger members of the population. It is due, no doubt, to causes which it is difficult to analyse. In the first place, probably, the disturbance of the war has had a good deal to do with it. Secondly, if I may say so respectfully in the presence of the right reverend Prelate, it is due to the weakening of the traditions of religion. Thirdly, it is due, I think, to the new view which many large sections of the population are taking of crime and punishment. There is no doubt, in my mind, that far too much now is done to fuss over, to pet and to commiserate with the criminal, and far too little to commiserate with his victim. I am sure that this induces a frame of mind which is wrong in itself and—although this is repeating what the right reverend Prelate has already said—it tends to banish the idea of punishment. Punishment, grievous as it must be to anyone to inflict it, is the essence of the criminal law. It is the essence of many other laws also, but without punishment neither the reformation, which is urged, nor the deterrents, for which we strive, can be achieved. Nor can the sense of security which is necessary to our social existence, prevail.
Ever since 1925—if I may be allowed to indulge in personal reminiscence for a moment—when I sat at the feet of the late Lord Haldane, than whom there was no more eager and zealous promoter of the probation system, I have watched that system and sympathised with it. And, within my small limits, I have put it into operation. I have no doubt that it has proved of great value, and, pausing there, I would like to repeat, merely for the discharge of my own conscience, 441 what has already been said in this House about probation officers. They perform a task which sometimes seems to me impossible. They work extremely hard, bringing both sympathy and hard-headed advice to the courts, but they do not sentimentalise over the convicted person or the person placed on probation. They do their best for him and in many cases, no doubt, put him in the right way and keep him there. While I say that about the probation officers, I would like to say a word also about another force, in another connection, the police. In my own county, at least, no session of a criminal court ever passes in which the police do not say a good word for the convicted prisoner. They are just as much the friend of the prisoner as the probation officer. I do not mean that after conviction they are his friend to the same extent as the probation officer; but they are his friend. I have never known a police officer who has failed to be helpful in the way I have mentioned. I am not now speaking of such an important court as that over which my noble friend Lord Oaksey presides, but of inferior courts such as Courts of Quarter Session and magistrates' courts. In such courts, I have never known police officers do other than their best for the prisoner. They never do anything to make his case worse than he makes it himself.
In the circumstances, what does this Bill offer to us? We have heard a chorus of congratulation about it and there are in it, no doubt, many valuable provisions. Some were mentioned by the noble and learned Viscount who sits on the Woolsack—the power to inflict a fine for felony, the cutting down of the Borstal age from 23 to 21, the enlargement of powers of preventive detention. All these, and particularly the last, are matters for which those who have taken an interest in punishment and in the administration of the criminal law have striven for years; and they are greatly to be welcomed. I pick these out only because the noble and learned Viscount touched upon them, but there are other matters which are also valuable. Broadly speaking, what does the Bill do? It envisages an almost bewildering series of buildings in which things are to happen. Everyone who has to do with the criminal law—and particularly who is acquainted with the work of such courts as the Courts of Quarter Ses- 442 sion and magistrates' courts—desires classification. Without classification the work of the reformation of the younger offender who must go to prison (I will say a word in a moment about sending him to prison) is impossible. In this connection, I did not say this before, so perhaps I should say it now. None of the courts with which I have been associated has ever sent anyone to prison if any other way of dealing with him could be found. I ask the House to take that for granted, as something that is common ground between us all. But, as I say, what is done in this measure?
In the first place the Bill gives legal effect to what has actually been the fact for some time—the abolition of the distinction between penal servitude and hard labour. The abolition both of the use of those words and of those systems is a fact to which it is now sought to give statutory sanction. That change seems to me to point to the fact that what has been clone in the last few years must have been irregular. The Bill abolishes—I do not know if it does so in words but it does so in fact—the old business about divisions. I admit that the distinction between penal servitude and hard labour has already disappeared in practice. I regret both changes. The convicted prisoner, whether convicted on his own confession, after pleading guilty, or by the verdict of the jury, has been heard in court. The case against him has been heard and all that can be said in his favour has been said. The police officer and the probation officer have both done their best to inform the mind of the chairman of all the circumstances of the case, so far as they know it. A report of it is probably published in the local paper, and the neighbours know about it, It seems to me desirable in those circumstances that the effective sentence to be passed on him should be the sentence of the court before which he has been tried, not a term of imprisonment subject to the jurisdiction of the Secretary of State for Home Affairs. I deeply regret that provision. Maybe it is past praying for and I am probably wailing in the wilderness, but I regret it.
Now we have before us the promised—but not more than promised—establishment of probation (that is, pure probation without hostels or homes), approved probation hostels, approved probation 443 homes, probation institutions not approved but inspected by the Secretary of State, remand centres, remand homes, detention centres, and finally, Borstal institutions. If there were any hope that any of those places would be built at any time one can foresee, and that people would be found in sufficient numbers to man them, there would be something in it. But there is not a hope. If there were, in connection with the penal system, any opportunity for building, what should be done would be to pull down one or two of the prisons I know and entirely rebuild them. To talk about setting up these places is illusory. The Bill leads us nowhere. It appears that all this is to be carried out but we will not get any advantage from it even in the lifetime of the youngest member of this House. I would like to say this about remand homes. It has been a complaint for years—a vocal and well justified complaint—that younger offenders have to be put in prison because there is no room in remand homes. The case mentioned by the noble and learned Viscount, Lord Simon, is well within my recollection and it arose simply because the boy could not be allowed loose and had to be put into Oxford prison, which is a most unsuitable place for putting any boy—I may say, a most unsuitable place for putting anyone.
Again let me remind your Lordships that I am not talking from the point of view of the Assize Court or the Old Bailey, but from the point of view of the Quarter Sessions and the magistrates' court. The Bill puts a vast complexity of work and distinctions upon the shoulders of the magistrates and their clerks, a burden of work which I am absolutely confident they cannot bear. I know the Home Office has always contained highly enlightened men with a great knowledge of all that has been tried and done in penal reform and the treatment of prisoners; but I doubt the greatness of their knowledge of the actual physical, practical work of a Quarter Sessions or Bench of magistrates. The reason I doubt it, among other things, is that some years ago my noble friend who sits on my left, Lord Roche, was appointed by the Home Secretary to be Chairman of a Committee (on which I had the honour to serve) to consider the position 444 of magistrates' clerks. There was no political idea behind the appointments and no particular recommendation was to issue from the Committee, as I regret to say has sometimes been the case on some Committees on which I have served. We reached the conclusion that until the position of the magistrates' clerk had been strengthened and the machinery at his command perfected, and until more money was available for the service of the court, the magistrates' clerk had enough, and more than enough, in his present duties.
The Committee reported before the end of the War, in 1944, and I think all members of that Committee would agree that the first step towards any improvement in the administration of justice by the magistrates' courts and by Quarter Sessions should be to act on as many of the recommendations of that Committee as are practical. I believe that all are practical, but some, I admit, are controversial. I am certain that something can be done if more money is found for the service of the court. Nothing, so far as I know, has been done. Many of the clerks are serving for less than nothing—that is literally true. Some of them are serving with insufficient money even to circulate to the magistrates the circulars which the Home Office send them. Some of them are given insufficient money to provide the books without which no criminal court can discharge its duties. God forbid that we should not give a Second Reading to the Bill; but I would suggest to the Home Office that the first business in hand is to perfect the plans whereby these things will be done, and then set about finding money to build all the institutions described in the Bill. That is all I have to say on the Bill. If your Lordships will permit me, when we come to Committee I would like to return at much greater length to the question of the death penalty and of whipping; but I will spare your Lordships any further remarks on that subject to-night.
§ 6.8 p.m.
My Lords, I am the first speaker to rise and speak as a common man, and I say that on this matter the common man deserves to be heard. I adopt every word of the extremely courageous and able speech of the noble prelate, the Lord Bishop of Winchester. It was a magnificent speech and 445 I support every word of it. What is the condition of things to-day? Some of these cases are within my own knowledge, and some are written of in the papers. Girls in broad daylight are molested in the tubes of London and fly to the streets for safety. Women come to me and complain that their children are molested on the way from school; that they cannot get hold of the people and that, if they do, they cannot get a conviction. We have horrible cases of rape like that drawn to the attention of your Lordships by the noble and learned Viscount on the Woolsack about a year ago. We have the revival of the highwayman, with footpads carrying on their activities within a stone's throw of His Majesty's Palace. We have burglary. The noble Viscount, Lord Samuel, told us on one occasion, that there were only one or two houses in his street that had not been burgled. He himself had not been exempt. I, likewise, have not been exempt. We have lonely women assaulted and murdered at their doors for other reasons. These crimes are becoming more and more common. The answer to all this is in the Bill that is now before your Lordships' House.
There are two matters of the utmost importance which are entirely neglected in this Bill. One is that the citizen has a right to be protected; and not only has he a right to be protected, but he has a right to feel that the Government of his country are willing to do everything that is necessary to protect him. If not, there will be trouble in another direction. A further matter—the right reverend Prelate made this point—is that people who suffer under the various crimes which I have mentioned to your Lordships demand that there shall be some kind of requital. It is all very well to say: "That is revenge. We are a good country; we must not practise revenge. That must not be said at all." It may be wicked to harbour sentiments of revenge, but I ask your Lordships: Is harbouring a sentiment of revenge, the natural human desire for requital, to be compared in wickedness with the acts that cause that desire? I suggest that the point we have reached to-day is that people will in the end take much stronger measures to defend themselves than they have been willing to take hitherto. They will have to do so.
446 With regard to the point of revenge, I would like to remind your Lordships that the whole principle of British law started in the theory of compensation. Your Lordships all remember that when we were at school we learned about the mythical man who tried to save up enough money to be able to afford to kill the King, but who, at the end of a long life of toil, could afford only an Archbishop. You will find the possibility of that in the Laws of Northumbria. That is the principle of compensation. If there is one defect in this Bill which stands out more than any other, it is that there is no suggestion that the Government will give any compensation to those who have suffered from the failure of the Government of the country to protect them. Think of the wretched victims of crimes like those which the noble and learned Viscount on the Woolsack detailed to us. It is not merely the obvious physical trouble; there may be ruptured kidneys, and all sorts of internal troubles, as the result of these acts. These people are left where they are, and are told: "There is nothing to be done for you. We cannot compensate you." Bat every possible thought and care is taken over the men who perpetrate these crimes. If there is any justice in the Criminal Justice Bill, I think that some compensation should be paid to the victims who have suffered from the failure of the Government of the country to protect them.
It is all very well to say that the severity of the punishment does not prevent crime. The severity of the punishment does prevent crime. I have searched through the English history to find which of the Saxon Kings it was of whom it was said that in his time a maid could travel with a bag of gold from one end of the country to the other without harm. I could not find who it was, but I found four likely candidates. One, of course, was King Alfred, of whom I have heard it said that he was able to hang very valuable bracelets on his roads without their being touched. King James I of Scotland earned a similar reputation. These men were merciful men, but they administered a severe code of justice, very exactly and very justly. Their mercy consisted in that fact.
It is the experience of humanity in the past that the nature of the punishment serves as a deterrent. On that point I 447 would like to say that I agree with the noble Lord, Lord Oaksey, in what he said about whipping. It is not a question, as my noble friend Lord Holden said, of whipping a boy until he is good; it is the fact that you have the power of the rod behind you. I know that I differ from a lot of my noble friends on the Benches opposite, when I say that I would never send a boy to a school where the master had not the power of the rod. I agree that that is a matter of principle. But if you trust such valuable things as a boy's mind and a boy's soul to a man, I think you are very careless in your judgment if you will not trust his body to the same man. Is that a very peculiar outlook? I certainly would be glad to see some form of whipping. I entirely agree that this Bill does a great deal for young people, but I feel that gentler methods often need reinforcement.
That does not mean that I am critical of the great extension of probation. I am very much in favour of that. The longer you can reasonably keep people out of prison, the better pleased I am. I can speak with some experience, because, on His Majesty's Service and entirely without crime, I myself have done six months in prison, and I know full well what it is like. I am entirely with the noble Lord, Lord Oaksey. If you are going to make prison a much rarer thing, and keep people out of prison as long as possible, then you ought to make sure that when they do go to prison they dislike it. It seems to me to be going too much in one direction to abolish hard labour and penal servitude at the same time as you are extending probation. The prisons should be left as they are.
The noble and learned Viscount on the Woolsack, in his very able speech, suggested that this is, after all, only an experiment, and that we should try it. I am quite sure that when he said that there was not far from his mind—probably it was within his mind—the very first rule that he and I learned about experiments, fiat experimentum incorpore vili—make your experiments on something that does not matter. As a representative of the common man and the more or less law-abiding citizen of the country, I am a person upon whom this experiment is to be tried. But, much more important, your Lordships will notice that the crimes 448 I have detailed, which can be found reported in any newspaper to-day, are mainly crimes against women and children. These are the people on whom the experiment is to be tried. I am certain the noble and learned Viscount on the Woolsack would be the last person in the world to say that those two classes I have mentioned are people who do not matter.
§ 6.20 p.m.
THE EARL OF DARNLEY
My Lords, in spite of the strictures of the noble Viscount, Lord Samuel, upon those who look at the matter from the point of view of conscience, I am going to devote the few minutes in which I shall inflict myself upon your Lordships to looking at this Bill, especially Clause 1, from this point of view. I would like to ask your Lordships first to acquit me of charges of attempting to be didactic, because the ideas that I am going to put over are not my own, and I am only trying humbly to forward them. In fact, although we have heard to-day some of the vast evidence that can be produced in this country by masters of evidence—and possibly the best evidence that could be heard in Europe if not in the world—I have little evidence behind me. In fact, if you asked me to prove it I should not attempt to do so. Nevertheless, I venture to suggest an alternative method of looking at this question of capital punishment. The ethical order on this subject of taking life is to me absolutely direct. It is that it is forbidden; there are no qualifications whatever.
But humanity has always retained the right to disregard or vary this order, according to the supposed needs of the moment; and so for centuries, when they have felt in danger, either from an excess of local crimes or from the coming into prominence of a possible national aggressor, they have always hanged the murderers and made war on the aggressors. That may be human nature and easily understandable—as of course it is—but it is not, I suggest with great reverence and respect, giving much credit to the Supreme Intelligence who gave the order. To my humble opinion, the limited human mind has no right to question or vary the instructions given by an Intelligence whose wisdom and ability to foresee the beneficial results of its orders cannot possibly be understood. To make out, as the world 449 has always done, that statistics of crime at home, or the aggressor character of individual nations abroad, provide a justifiable reason for breaking such a command, seems to me, in my humble opinion, to be, shall I call it, a lèse divinité of a serious character. Possibly it has been the cumulative cause of the world-wide morass of misery, murder, poverty and apprehension in which the world is now floundering, and of the consequential increase in local crime in countries such as ours.
I therefore most respectfully urge that this primary step in the preservation of human life—which is a state, after all, that no human mind can understand, and no scientist, for all his atomic skill, can reproduce—should be inaugurated forthwith, whatever the human evidence may be, in the hope that from this beginning the elimination of all crime, both internal and international, by ethical means, may be gradually moved into realisation, and that the ghastly horrors and miseries of war, and their consequential civil crime, may give way to international civil good feeling, as they assuredly will when the commands of this Supreme Wisdom are venerated and observed. It does not mean, as the noble Viscount rather suggested, that we should submit to a wave of internal crime or, as too ready critics suggest, lie down before conquests from an outside foe. It means a realisation that crime of all kinds comes from faulty human relations, which all parties have caused and which all must cure themselves, not only by ceasing to kill, but by the elimination of causes which make men and nations into murderers.
I venture to suggest to your Lordships that we should here make an act of faith, and give not a formal but an enthusiastic Second Reading to this Bill which does incorporate this important change. I hope your Lordships will acquit me for the few minutes that I have addressed you of didacticism or of any form of superiority. The quality of mercy, if it is allowed to fall as the gentle dew from Heaven, will assuredly benefit the human race. But if it is strained in the sieve of human calculation it will assuredly lose its potency.
§ 6.25 p.m.
§ LORD KERSHAW
My Lords, the noble Lord, Lord Saltoun, claimed to be the first member of your Lordships' 450 House to speak as a common man. I venture to address your Lordships as one of the great unpaid who has spent many years of his life in administering the very law that we are now considering. It seems to me that there are one or two fundamental facts that we need to bear in mind when considering this subject. Perhaps first I should say that by far the greater number of crimes are dealt with in the magistrates' courts, courts of first instance, and they have the problem in its most intimate form. Secondly, I think we should remember, when considering this very great problem, that most offenders are ordinary folk like ourselves. There is no criminal class. Criminals and law-breakers are drawn from all classes, and no one can serve on the Bench for long without realising that there are a great many people who are greater enemies of society than those who are brought before us, but who escape the law because they know how to do so. There is at this moment an exploitation of the public which this country has probably never seen before, and which is within the law. Therefore, I think of that as I am sitting on the Bench and I also think—as I believe all magistrates should—that "There but for the grace of God…." When you think of these other crimes against society which never appear as crimes in the Calendar, it enables you to deal with those unfortunates who are brought within your court much more humanely than otherwise you would.
I agree with the noble Lord, Lord Schuster, who said that there is a great danger of fussing over the criminal or the law-breaker and not fussing quite enough over the victim. I remember that when unemployment was quite common in this country we used to have the uneasy feeling that more was done for the discharged prisoner, by way of finding him employment, than was done for the honest man who was never within the prison gates. Those are problems that we face every day, and we have to be careful that we hold the scales evenly in whatever we wish to do for the prisoner. As a layman in these matters, I welcome Clause 8, which says that where it is inexpedient to inflict punishment and that a probation order is not appropriate, the court may discharge absolutely or conditionally. That I regard as an extremely valuable provision. I consider 451 that magistrates are too frequently liable to put people on probation because it is easy to do so. I often feel that the best thing to do for the man before me is to put him on his honour not to come up again; and, so far as I know, it works. It is better than putting him on probation and making him feel that he is constantly under the surveillance of someone.
In contradistinction to my noble friend, Lord Holden, I am in favour of a conviction being precedent to placing anybody on probation. There again, I have not the slightest doubt that owing to the laxity of the present system magistrates have not been too particular to see that the case before them was proved, if they thought that, taking the whole of the circumstances into consideration, it would be a good thing for the man or boy that he should go on probation. That is not their function. The man is there charged with a certain offence, and I think it is right that he should be convicted of that offence before any sort of treatment is meted out to him. I was reading the other day a little booklet issued by the Clarke Hall Fellowship—at a meeting of which I understand the noble and learned Viscount the Lord Chancellor is to take the chair next week. James Mills, the High Prosecutor of Edinburgh, says in that booklet:To isolate the overt act—that is, the physical act which constitutes the law breaking; the striking of the blow or the removal of the article—to fail to see it in its context and to appreciate its motivation, may be a denial of justice.I think that is true, and that when considering the seriousness of an offence one should pay due regard to the circumstances in which the offence occurred.
It has been my lot to consider the difficulties of working people in other quarters. One is forced to the conclusion that environment, upbringing, domestic circumstances, housing shortages and all that kind of thing, contribute to the problem that we are trying to consider here to-day. I feel, however, that in considering how generous we can be towards people who break the law, we ought to be particularly careful to distinguish between the one-offence man and people who are in positions of trust, as, for instance, policemen, postmen, dockers and railwaymen. I think that even if it is a first offence, in those cases 452 they must be made to understand the penalty that has been meted out previously, and they should be prepared to take their medicine if they break the law.
I am delighted to hear that we shall be able to make the offender pay damages or compensation. I am delighted also to hear that if imprisonment is imposed on a person under the age of twenty-one, the court will be called upon to state the reason why it is imposing imprisonment. I think that is a most useful provision. I hope, too, that we who are dealing with a case in the lower court, where the prisoner has chosen to be dealt with summarily, may at a later stage be able to pass it on to the Sessions, in order that they can give a sentence that is properly fitted to the crime with which we are dealing. We have not had that power in the past. I welcome the statement of the noble and learned Viscount the Lord Chancellor that there is to be power to take evidence by certificate. This will be extremely useful and will save much valuable time for police and other people.
I am not going to detain your Lordships on the subject of capital punishment, except to say that, roughly speaking, I stand where the noble and learned Viscount stands in that matter. I have my own doubts about the abolition of capital punishment, but I am not sure that it is a subject upon which Parliament itself should not take a lead. I am not sure that it is a fitting subject for the emotional consideration that would be given by the population generally. So much depends on what has happened in a particular neighbourhood at a particular time. For instance, I am quite sure that in certain parts of North London, if the people were canvassed on this matter at the present time they would all be in favour of capital punishment, merely because a policeman was shot a few weeks ago in that neighbourhood. I am not sure, therefore, that it is not the duty of Parliament, whichever way either House chooses to go, to give the nation a lead in a matter of such importance, a matter which arouses such emotion and sentiment.
It has, however, seemed to me that there is something in the suggestion that there should be degrees of murder. It has been my lot to deal with three murderers 453 in the first instance, none of whom was subsequently hanged and none of whom was a criminal in the ordinary sense of the term. I will not harrow your Lordships with particulars except to say that it is a great pity that in each of those three cases the court had not power to prevent the terrible recitation of the death sentence. I do not agree with the noble Viscount, Lord Samuel, who, if I understood him aright, suggests that the Home Secretary should reprieve unless he shows cause to the contrary. Turn this the other way round, and it would mean that the Home Secretary alone would have the power to hang—and I cannot imagine any Home Secretary wishing that power to be conferred on him. I think it is worth considering whether a formula could not be thought out to establish degrees of murder. There is a vast difference between, for instance, a mother I have before me at the present time, who murdered her child, and the thug and the gangster or the poisoner who deliberately inflicts not only death but misery and suffering on the person concerned.
In view of the peculiar way in which Clause 1 was drafted I have wondered whether, had that clause been debated and passed in the early stages of the Bill in another place, whipping would have been abolished. I am not at all sure that it would I feel that there are occasions when whipping is the only effective way of making the malefactor understand that he cannot do that sort of thing here. I have had experience of these men and I know that it is no good attempting to read the Bible to them. They are out as enemies of law and order, and they intend to be; it is their considered policy; and nothing but the fear of physical punishment will, in my judgment, change those men. That, however, is a matter that does not arouse quite the same controversy as capital punishment. I do not agree with the noble and learned Viscount, Lord Simon, who seemed to suggest that a person wishing another person dead would refrain from carrying out his wish if there were capital punishment, but would go on and carry it out if he had to face not capital punishment but a life sentence of imprisonment.
§ VISCOUNT SIMON
I only asked the question whether or not in some cases that might not be part of the incentive. Most results in life depend on the operation of 454 several causes. I wondered whether that might not be in some cases a practical contribution to the preventive reaction.
§ LORD KERSHAW
I think the noble and learned Viscount on reflection will see that the argument is not very sound.
§ LORD KERSHAW
I suggest that it is not. I have taken up all the time I wish to take at this stage. In general, I want to welcome the Bill as a great contribution to the advancement of better, wiser and saner treatment of the people who break our laws. As to the controversial part of this measure, we shall see what happens later on.
§ 6.41 p.m.
My Lords, in addressing your Lordships this evening, I am in a slightly more fortunate position than was the noble and learned Viscount the Lord Chancellor when he spoke earlier this afternoon. Although I am expressing the views that have been put to me by a surprising number of men who are vitally interested in this Bill—namely, our police—I am entirely in agreement with the views that they put to me, so that I have not a split mind on the subject. The noble and learned Viscount the Lord Chancellor referred to the difficulty of driving two horses, "Reform "and" Deterrent," as a pair. It seems to me, and it seems to the police, that there is a grave danger hat instead of being a pair they will become a tandem with "Reform" in the lead on very long traces. It was even put to me by one man in this way: "Unless we look out, prison will become a home from home, and the next thing will be that they will be giving the beggars week-end leave." There is a lot in that. We have to remember that quite a large proportion of the criminal population come from, and are the result of, bad housing and bad homes. The effect would be to make prison more comfortable than home, and even now such people know that when they go to prison—and the magistrates' courts produce evidence of this—at least they will be warm throughout the winter. We have to watch that prison should be not only a deterrent but also a punishment.
I now come to another point which is much exercising the minds of our police; and that is what I might call the fatal Clause 1. I must say that I was alarmed 455 at the words which fell from the lips of the noble and learned Viscount the Lord Chancellor. I noted the words at the time. He said: "We have got to try this experiment." I ask, why? The electorate have given no mandate on the subject. This House, just as much as another place, is the guardian of the interests of the electorate. As was pointed out by the noble and learned Viscount, Lord Simon, there was no overwhelming case for this reform, so I submit that there is no compulsion on us to permit its passage. We have a duty to the country. I know from my own experience in the country that at the present moment there is great alarm at the idea of doing away with the death penalty. The general view of the police is dead against this suggestion. I think it was well summed up by the Commissioner when he said that it is safer to commit murder than to cross the road. At the present moment, that is perfectly true. If you commit murder, you know that you will be out of danger of everything for the next ten or fifteen years except a natural death. Not one of us in this House can say that. So long as we are able to roam about the streets freely, as some people do, we are liable to come to a sudden and abrupt end at any moment.
There is just one final point that I have been particularly asked to make by several men on the beat; and that is with reference to the suggestion that, if the death penalty is done away with, the police should be armed. There are two questions that I have been asked to put. I did not know the answers, but the policeman did. The first question is: When an armed criminal is being sought by the police and the police are specially armed to deal with him, in how many cases is that man actually arrested by one of the armed policemen? I am told that the number is very small. The other question which I have been asked to put is this: In similar instances, in how many cases have the police used their firearms? I believe that there is only one case recently when a policeman did a "Wild West" act and shot the gun out of the criminal's hand. What the police fear is that they may be armed but, if they are, they will never dare to use those arms because, if they do shoot a man, someone 456 will at once say: "What is your justification for shooting?" However great the justification may be, someone will say that the policeman was wrong and, in the general eyes of the public, the policeman will be blamed for being "trigger happy." The question of the death penalty is vital to this country. I have no doubt in my own mind as to what is the right and the wrong of it, but even if we do abolish capital punishment, I hope that in this country we shall never arm our police.
§ 6.49 p.m.
§ Moved, "That the debate be now adjourned."—(Viscount Templewood.)
§ On Question, Motion agreed to, and debate adjourned accordingly.