§ Offences under law of Scotland.
§ 1. Robbery.
§ 2. Theft by housebreaking or housebreaking with intent to steal, or theft by opening lock-fast places or opening lock-fast places with intent to steal.1005
§ 3. An assault with intent to do grievous bodily harm by three of more persons acting together, or an assault involving the throwing at or applying to another of a corrosive acid or other dangerous substance calculated to burn or injure him.
§ 5. Rape, sodomy or indecent assault.")
§ THE LORD CHANCELLOR: (VISCOUNT JOWITT)
My Lords, I think it would be convenient if we left out consideration of the question of the Title of the Bill until the end of our proceedings with reference to this Bill to-day. I will therefore formally put the Question that consideration of the Title of the Bill be deferred.
§ Moved, That consideration of the Title of the Bill be deferred.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ THE LORD CHANCELLOR
My Lords, now we come to page 1, line 9, and the Amendment. I rise to move that this House do agree with the Amendment which the Commons have proposed. This Amendment raises the whole matter, and I have no doubt it will be convenient to your Lordships that on this Amendment there should be a general discussion as to the suitability of the clause which the Commons have put in. There is a formidable list of speakers, and, as we have recently devoted several days to discussing this topic, I think I shall probably best meet your Lordships' desires if I try to keep my observations within a comparatively small compass. Suffice it to say, then, that your Lordships will remember that whereas the other place, by a majority and on a free vote, decided to do away with the death penalty altogether for an experimental period of five years, this House took a different view. In this House, we had a debate which lasted a considerable time and which was distinguished by many impressive speeches, and particularly, if I may say so, by the speech of the most reverend Primate, the Archbishop of Canterbury. He pointed out that whatever the result of our deliberations might be, things could never be quite the same again. We could not simply go back to where we had been; we had to see whether it was not possible to work out some compromise.
1006 It has been, as it always is, an exceedingly difficult matter to think out the lines on which a compromise might be reached, because the issue of the marriage of pro and con is often apt to be a rather misshapen infant. Let me say at once that I would have been no party to sacrificing the efficient administration of the criminal law in perhaps its most important aspect to any consideration of political convenience, still less to Party exigency. On the other hand, I feel, as the most reverent Primate said, that it is very desirable to see whether there is some method of compromise available at the present time which will still the controversy which has revealed great differences of opinion. Everyone in this House, I suppose, would adhere to the doctrine of the sanctity of human life. That, after all, is why we regard suicide as a wrong. That is why we oppose what are called "mercy killings," and why we should be opposed to euthanasia or to the killing of idiots. We believe that life is given from God, and that he who seeks to take away life must show a very clear case to justify his so doing. I do not suppose that anyone would doubt that. For my part, I find capital punishment, the death penalty, to be justified on one ground and one ground only—that is, if you believe that capital punishment, the death penalty, has a deterrent effect. To my mind, on that hypothesis alone, can it be justified: that, by exacting the supreme penalty, other murders are prevented.
If I may say so, with great respect to some noble Lords who spoke during our previous discussion, I reject any other ground. I do not think it is right that we should hesitate to keep people alive merely because they have shown themselves to be inhuman monsters. The idea of destroying them is too much like the Hitlerian technique. Hitler established places at which he intended painlessly to destroy idiot children, and from that he came to destroying political undesirables. Hitler's idea of who were politically undesirable, I may remark, differed from my own. From that basis, I suggest this conclusion. If we can select those particular categories of murder in which the death penalty definitely has a deterrent effect, then let us retain the death penalty for that class of murder and not for others. In this clause the distinction is not based on any question of moral gravity. Per- 1007 haps it is impossible to judge the moral gravity of any crime. There has been published recently a very interesting book, The Sentence of the Court, by one who was a few years ago Secretary of Commissions of the Peace in my office. He quotes this sentence of a very experienced Judge, Sir John Bridge:I have nothing to do with the punishing of crime; that rests with a higher Power. My business is to protect the communityNo attempt has been made to base this clause on any assessment of the extent or degree of moral guilt, or on premeditation. There are some murders in which obviously the death penalty would never be exacted—for instance, in the case of murders known as "mercy killings." In a case in which a man had made up his mind to destroy a relative suffering from some incurable disease, obviously the death penalty would not be imposed.
I confess quite frankly that, like all compromises, this compromise has not the justification of logic behind it. Wherever a line is drawn, cases which are very difficult to reconcile will be found falling on one side of the line or the other. In his recent interesting letter to the Press, the noble Viscount, Lord Simon, referred to the case of a husband who took his wife out in a boat and then took steps to sink the boat so that his wife was drowned. The noble Viscount pointed out that such a case would not be caught by this clause. That is quite right. From the point of view of moral guilt, that would be about as bad a case as one could have, and it would be clearly a case of premeditation. But can one believe that, without a death penalty for that class of case, there will be a succession of husbands putting to sea in boats with their wives in order to murder them?
§ VISCOUNT SIMON
The noble and learned Viscount has referred to what I wrote. I was illustrating the question of whether or not in all and any circumstances the case of a husband who deliberately and without cause kills his wife, by the use of a chopper or anything else, is a case in which there should be no sentence of death. The noble and learned Viscount was arguing about a succession of boats.
§ THE LORD CHANCELLOR
I am sorry I misquoted the noble Viscount. I 1008 thought he had taken the case of a man drowning his wife. If one judges the matter from the point of view of moral guilt, it is ridiculous to exempt a case like that. If one judges it from the point of view of premeditation, again it is ridiculous. But if one judges it from this point of view: Is there a risk that, if the death penalty is removed, that particular class of case is likely to be increased?, there might be a different answer. I quite agree it might be a boat, or a chopper, or a hatchet, or a poker, or what you will. There may be exceptional cases, but, as a rule, the cases of a husband destroying his wife, horrible though they are, are committed in the heat of the moment, in temper, and generally are not premeditated. We are not trying here to deal with individual cases, but with classes of cases. If I am right in saying that the justification for the death penalty is its deterrent effect, and if I am right in saying that in that class, by and large, it is not probable that there will be an increase by reason of the removal of the death penalty, I suggest that we have the basis on which this compromise can be made good. I concede that wherever the line is drawn, and whatever the compromise, there will inevitably be cases on one side or the other.
Consequently, it is said that the present system, which does not seek to draw a statutory line, is better—a man who is convicted of murder is sentenced to death automatically, and it is then for the Home Secretary to decide by the exercise of his discretion, having regard to all the facts, whether he shall or shall not recommend that the prerogative of mercy be used. About half the people who are sentenced to death under the present system are in fact reprieved. During the ten years from January 1, 1938, to December 31, 1947, 240 persons were sentenced to death, of whom 121 were hanged—almost exactly half. There are another set of figures which I gave to the noble Viscount, Lord Simon, in answer to a question he put down. He asked me how long prisoners who had been sentenced to death had served before being released from prison. During the same period of time, 28 out of 104 were released after serving periods varying from two months to five years. There people had been sentenced to death when it was quite obvious, I should imagine, that there 1009 could never be any question of the sentence being carried out. I consider, and I expect many of your Lordships will agree with me, that that is very undesirable. Mercy murders and suicide pacts are all murders, I agree, but I think it is rather terrible that that formal and solemn sentence should be pronounced when everybody knows that there is no question whatever of the persons concerned ever suffering death by hanging.
I should like, if I could, to devise some method which would remove that class of case from those to which the capital sentence has to be pronounced, and I think there would be general agreement on that, but the difficulty is where the line should be drawn. The clause now before your Lordships prescribes those classes of cases where there is ground to suppose the death penalty does operate as a deterrent. The most obvious one is the case of the burglar. I believe the reason why the burglar does not go armed is because he thinks, "If I take a gun I may be tempted to use it, and, if I do, that is a very serious matter, which puts me in a different category altogether, and I shall be hanged." The Amendment therefore proposes that the death penalty should be retained in that class of case.
The class of case next in importance is that in which a criminal tries to shoot his way out, or is trying to get away, having committed a crime, by the use of firearms or by other means. That man may think: "I will make good my escape. I will shoot my way out" We had an illustration a short while ago of a man who had committed a crime, and was fleeing in the streets; he had a gun and shot a passer-by who attempted to arrest him. Your Lordships will all remember that case. Those are the two extreme classes of case in which I think the death penalty should be retained. Then there is the other class of case—namely, the terrible sexual cases, in which a man commits rape and, having satisfied his lust, thinks to himself: "If I kill her I shall remove somebody who can give evidence against me." In cases of that sort it is proposed to retain the death penalty.
I need not expound the clause which all your Lordships will have read and considered. I would, however, like to explain the basis on which it has been prepared. I agree that it is illogical. For 1010 example, the clause includes murder committed by means of the systematic administration of poison. I do not pretend to be an expert on criminal law, but I believe that the poisoner who is dealt with in the courts is generally the man who administers poison in small doses, hoping that he will not be discovered and that the illness will be thought to be a natural one. He usually inflicts intense pain on the unfortunate victim before killing him. A man like that has time to think, and if the death penalty is in his mind, it may well have some effect on him; whereas it would not if he carried out his poisoning once and for all, which I understand is much less common. In moral guilt there is no difference between the one and the other. In the view of premeditation there is no difference between one and the other; but, in the view of the efficacy of the death penalty is a deterrent, there is possibly some difference.
Then the clause includes a definition of "express malice" Every murder involves what is called "malice afore-thought" "Malice aforethought" is by no means an easy thing to define. For greater clarity for those of your Lordships who are not learned in the law, I would like to read a passage from a judgment delivered by Mr. Justice Stephen, who was one of the masters of our criminal law. This is what he said in an address to a jury:The definition of murder is unlawful homicide with malice aforethought, and the words 'malice aforethought' are technical. You must not therefore construe them, or suppose that they can be construed, by ordinary rules of language. The words have to be construed according to a long series of decided cases, which have given them meanings different from those which might be supposed. One of the meanings is, the killing of another person by an act done with an intent to commit a felony. Another meaning is, an act done with the knowledge that the act will probably cause the death of some person. Now it is such an act as the last which is alleged to have been done in this case.That was a case where a man had defrauded an insurance company, and had set fire to a house; there was a boy in the house who lost his life in consequence.If you think that both or either of these men killed this boy, either by an act done with intent to commit a felony, that is to say, the setting of the house on fire in order to cheat the insurance company, or by con- 1011 duct which to their knowledge was likely to cause death, and was therefore eminently dangerous in itself, in either of these cases the prisoners are guilty of wilful murder in the plain meaning of the words.That is what "malice aforethought" means, and that is what juries have to be taught.
There must therefore be express malice, which is denned in subsection (4), in addition to one of the specified offences. If your Lordships will look at the Schedule (I will then leave the clause to the consideration of your Lordships) it is this:An offence under section twenty-three of the Larceny Act, 1916.That, of course, is robbery. The second is burglary and housebreaking. If the burglar, the robber or housebreaker, with express malice—that is the definition—kills somebody, that is a case in which the death penalty should be retained. The Schedule continues:An offence under section twenty of the Offences against the Person Act, 1861 (which relates to wounding or inflicting grievous bodily harm), committed by three or more persons acting in concert.Three persons is part of the definition of a riot. An unlawful wounding by three persons therefore is included. The next class mentioned in the Schedule is:An offence under section twenty-eight, twenty-nine or thirty of the Offences against the Person Act, 1861, or section two of the Explosive Substances Act, 1883 (which relate to crimes committed by means of explosives and other destructive substances).We do not intend that class to apply to the case of a shot fired from a gun. I do not think these words are so construed. The Act of 1861 has one group of sections which relates to firearms, and another group which relates to explosives—dynamite, bombs, and so forth—where obviously there is a much greater degree of preparation, and much less action on the spur of the moment than if an ordinary gun is used. I am not sure whether that needs to be clarified, but it should be understood that the intention is not to treat as an explosive a shot from a gun, although, of course, the bullet comes from the gun as the result of the gunpowder exploding.
§ VISCOUNT SAMUEL
For the purposes of clarification, may I ask the noble and learned Viscount one question? Would a political assassin, who killed 1012 some statesman or other person by a shot from a revolver, be liable to capital punishment or not, supposing that he had no accomplice?
§ THE LORD CHANCELLOR
No, he would not be liable to capital punishment; at any rate, that is the intention. A shot fired from a gun is not regarded as use of explosives within the meaning of the Act of 1883.
§ VISCOUNT SIMON
So that we may be quite clear, may I ask this? We can perhaps leave out the case of a distinguished person who is assassinated. Do I understand the Lord Chancellor rightly in thinking that under this clause no person who, however deliberately and without any excuse, shoots anybody else, can ever be hanged?
§ THE LORD CHANCELLOR
That is a little too wide, because he might shoot somebody else while doing one of these other crimes.
§ THE LORD CHANCELLOR
Then that is right. The mere shooting of anybody is not one of the specified crimes.
The next provision in the Schedule relates to rape and indecent assaults on women. There, of course, one may have a case—it is a class of case to which I have already referred—where the act is done to remove the victim who would be a witness. The last provision is a similar sort of offence in regard to men.
Regarded from the moral point of view, I agree that it is a tall order to say that anybody who shoots shall not be liable to the supreme penalty. On the other hand, taking the case of shooting, I would submit to your Lordships that that is not a class which, as a rule, is affected by the death penalty, because generally those crimes are done suddenly, on the spur of the moment, for revenge, or something of that sort, and they are not ones in which the murderer stops to think; "Now, wait one moment. If I shoot this man, shall I be hanged, or shall I merely be sent to prison? If I shall be hanged, then I will not do it." I do not believe that operates in the mind of the murderer, except in rare cases.
There is little more to be said about the clause. Your Lordships will see that 1013 the clause provides that no person shall be sentenced by a Court to death for murder unless it is charged in the indictment and found by the jury that the murder was committed, (a) in connection with those named offences, (b) for the purpose of resisting or avoiding or preventing arrest, (c) by means of the systematic administration of poison, (d) against a prison officer—your Lordships are familiar with that case on which we had some discussion before—or (e) by a man who has been convicted of a murder committed on a previous occasion. That is the substance of the clause. I ask your Lordships to consider this proposal on the basis that a person should not be executed unless execution will act as a deterrent, and that there are certain classes of cases in which it is more likely to act as a deterrent than in others. Capital punishment will be retained for those classes of cases in which it is more likely to act as a deterrent—reserving, of course, imprisonment for life, and subject to the Home Secretary's discretion for the other cases. I would point out to your Lordships that all these cases will, of course, remain subject to the Home Secretary's discretion. He will advise the Sovereign as to whether or not, even in these cases, there should be an exercise of the discretion.
That is the framework of the scheme. I believe it is desirable to try to reach a compromise if we can. This unhappy controversy has now gone throughout the whole country. It is reasonable to suppose that in the future any average, simple jury will contain representatives of both views. That alone makes me think that it is desirable to effect a compromise. Whether we have here achieved the best compromise in what I quite readily admit is a very difficult problem, is a question to which I invite your Lordships' consideration. In the meantime, I beg to move that this House do agree with the Commons in the said Amendments.
§ Moved, That this House do agree with the Commons in their Amendments made in lieu of the Lords Amendment to leave out Clause 1.—(The Lord Chancellor.)
§ 3.34 p.m.
§ LORD LLEWELLIN
My Lords, as we have discussed this on two previous occasions I hope that to-day I may be able to keep my remarks into a comparatively 1014 small compass. As I think the Lord Chancellor reminded us, when the cause abolishing the death penalty for murder for an experimental period of five years first came before us, it had been passed by only a small majority—twenty-three I believe—in another place. Nevertheless, it seems to me, that, although we may not have agreed with what was done, it came here then with some principle behind it. I believe I am not in any way misrepresenting that principle when I say it was this—that human life was so sacred that even if the murderer had shown no great regard for it himself, at any rate the State ought to do so, and ought not to be a party to taking human life. I think that does not in any way misrepresent the principle behind those who wanted to abolish the death penalty. At the same time, there was a second reason for their view. That was that a large number of those people were extremely doubtful—the Lord Chancellor himself was not; nor was the Home Secretary nor I myself—as to whether or not the capital penalty was a deterrent. This clause, therefore, came before us with an experimental period of five years in which there would be no death penalty, to see whether it was a deterrent. To a number of us it was extremely doubtful whether we were justified in making this experiment on the long-suffering British public, because they, of course would be the object of it, were it to fail. Be that as it may, there was—and we must admit it—some consistency in the attitude taken up by those, both in this House and another place, who voted for the complete abolition for an experimental period of five years.
Since then, our Amendment deleting from the Bill—the main provisions of which I am glad to say are completely non-controversial—any alteration in regard to the death sentence has now been replaced in another place by the Amendment which we have before us. Three hundred and seven members voted this time for that Amendment, and 209 voted against it—not that they were against retaining the death penalty, but they preferred to see it retained in its present form. As this Amendment reinstates the death penalty in the circumstances set out, we are now faced with the position that no fewer than 516 members of the House of Commons have now recognised that the 1015 death penalty is a deterrent against people committing murder.
§ LORD LLEWELLIN
Certainly the 307 who voted for this Amendment wish by its terms to retain capital punishment in certain circumstances.
§ LORD LLEWELLIN
I was going to deal with that. I know that this is a matter upon which many hold conscientious views. I would not say of any of those who voted for this new clause that they had altered their conscientious views out of Party political compromise. I have not said that, and I would not say it against any of them. In the Amendment which they have carried, they must have recognised that the death penalty was a deterrent and would, for instance, prevent a man who goes to commit a burglary taking a revolver with him. That must be the basis of keeping the death penalty for such an offence as that. I believe that a recognition that capital punishment is a deterrent is the only justification for any of these honourable Members in another place voting for this clause. The difference between the present occasion and the last time when we discussed this matter is that we now have almost complete agreement that the capital penalty is a deterrent. In view of that fact, it seems to me odd that we are still, by this clause, attempting to carry on this experiment upon a more limited, but still large, section of the population. The class of people at whose expense this experiment is to be tried may be smaller; the experiment is not going to be tried—and I am glad that it is not—at the risk of the policeman or the warder; but there is still a very large section of the people of this country who may be the object of this experiment.
Let me take the case that the noble and learned Viscount the Lord Chancellor has already dealt with in part—the case of the wife whose husband has got sick and tired of her. So long as he does not systematically poison her (whatever "systematically poison" means, and I will deal with that in a moment or two), and so long as he does not get two or more friends to come along and help him in the task, 1016 he is able to get rid of his wife without risking his own neck.
§ LORD LLEWELLIN
And he may do it by any means, as my noble and learned friend reminds me. It may be that he is a good swimmer and his wife is not a swimmer; he may achieve his object by pulling the plug out of the bottom of a boat in which he has taken her. He may use a hatchet, or even a firearm. Whether or not capital punishment is retained for the killing of a wife by her husband, I do not think that most husbands will kill their wife. Of course they will not. The question is, whether those who would be inclined to kill their wife, having got thoroughly sick of her company, are likely to be deterred by knowing that they may have to face death themselves. Would they feel the same as if they faced only a similar punishment to that given as a maximum for burglary or for destroying a will or for something of that kind?
Or take the question of the political or other assassination; and, as we know, those are unfortunately not done with in the world. People will still use the assassins' weapons. We all hope that they will not start again in this country, but most of us in your Lordships' House will remember the abominable assassination of that great soldier Sir Henry Wilson. It was two men and not three who committed that crime; and when two (not "two or three," as in the words of one of the more beautiful of our prayers) are gathered together they cannot be hanged for murder. But if you get three, then there may be capital punishment for all three. I suppose there were few people in the country who did not consider that the two men who murdered Sir Henry Wilson should have suffered the death penalty. Under this new clause that certainly could not have happened to them.
Or again, take the case of a man who knows he is the beneficiary under a will made by an uncle or aunt, and who has reason to think that the uncle or aunt is about to alter that will to his disadvantage. If he walks into the relative's house and shoots him or her dead, he escapes a charge of capital murder and under this clause could not be hanged. If, on the other hand, he breaks into a house, and murders the occupier in the course of the burglary, of course he would hang. What 1017 it really amounts to is this, that this clause which the Government have now, at the eleventh hour, produced, is akin to the Highway Code. If anyone who uses the roads observes the Highway Code, in every particular, he will not be prosecuted. This clause is the Murderer's Code; if the murderer reads, marks and observes, all these provisions he can so conduct his affairs that he can murder the person he wants to murder and have no chance of forfeiting his own life. I ask myself, "Is that a good system?" And for myself—and I have no doubt this applies to many of your Lordships—the answer is that I think it is a very bad one.
Surely our present system is far better. Under it, as we all know, in proper cases the Home Secretary can always advise that the prerogative of mercy be exercised. Nevertheless, we have the death penalty as a deterrent against the taking of any human life. And we take the view that he taking of human life is a crime set apart, and on a different level from any other crime in the calendar. That, I believe, is as it should be. If I may paraphrase the words used by the learned Attorney-General in another place on this subject (although in a slightly different context) he said that on the whole our system works, and works pretty well. He was referring to the whole system of criminal justice. In my view, with the Home Secretary having the power to advise the prerogative of mercy our system does "work, and works pretty well" If, however, there be some who think that there should be a code, let that code at any rate be one that has not been hastily presented to Parliament at the last moment. I am quite certain that the clause would not be in the form it is in now, had it been originally in this Bill, had it had to go through the process of a Committee stage and a Report stage in another place, and a Committee stage and a Report stage in this House. When we are legislating upon a matter of life and death, surely we should take the greatest possible care how we express what Parliament means.
I am not going to pick out more than one or two examples, but let me now refer to a few of the phrases in the Amendment before us. To be a hanging murder, if I may call it that, reading from the words in subsection (1) (a), it has to be a murder 1018committed in the course of, or immediately before or after and in connection with, the commission of an offence described in the Schedule.…To some people, those may seem simple and easy words to construe. That was what was thought, some years back, by those who passed the Workmen's Compensation Act with somewhat similar words in it. The words there werearising out of and in the course of his employment.Yet, as the noble Viscount opposite and many other people in this House know, case after case has been brought up to the Court of Appeal, to Divisional Courts, and even to this House sitting as a Court, to define exactly what those words mean. In fact, there are two or three extra volumes of our Law Reports which have been caused entirely by reason of the construction of those words. I think that we should not, in a last-minute rush, use somewhat similar words again, particularly in this very grave part of our criminal law, without considering exactly how far they go and what they mean.
I should like to deal now with a point with which my noble and learned friend Lord Simon dealt very effectively, if I may say so, in the letter to which the noble and learned Viscount the Lord Chancellor has already referred. Let us look at subsection (1) (c). There we see the words:that the murder was committed by means of, and in the course of the systematic ac ministration of, poison or any other noxious substance.I do not know quite what the word "systematic" means. It may mean that if you do it all in one dose, it is not systematic poisoning; but that if you poison a person by one, two, three or four successive doses, then you are liable to be hanged. If you do it with only one dose, you are merely liable to go to prison. But I am not quite sure that it does mean just that. In the case of a man who deliberately goes out and buys poison, who deliberately puts it into the food of somebody whom he wants to get rid of, I am not at all sure that that is not working to a system, and a very carefully thought out system. I must admit that I do not know. Then let us take subsection (1) (e):that the accused has been convicted of murder committed on a previous occasion.Is that limited to murder in the United 1019 Kingdom? Is it limited to a previous murder in the British Commonwealth, or does it extend to a conviction for murder anywhere in the world? That is the kind of point to which, again, I say frankly that I do not know the answer.
I will take only one more example, because there are other noble Lords wishing to speak, who will no doubt make other points—and on this matter I must say that I did not think the explanation given by the noble and learned Viscount the Lord Chancellor was at all effective. I should like to know why, if a man maims or does grievous bodily harm to another, he is all right; he gets away with murder if he goes alone or only with one other ruffian. But, if he takes two or more ruffians with him, he and they are liable to be hanged. It does not seem to me to be good enough to say that, because the ancient law of riot applied only where three or more people were gathered together, the same rule should apply to murder. If a man has maliciously and unlawfully inflicted grievous bodily harm on a person who is caught unawares, or who is weaker than himself, it ought not to matter whether he is accompanied by two or more persons, or whether he does that dastardly act alone or with only one ruffian helping him.
It is because of all these queries in my mind, upon these and other points, and because at this stage in our proceedings it is obviously impossible to go word by word into each of these clauses and shuffle them backwards and forwards by passing Messages between the two Houses, that I think even those who want some form of code should reject this clause to-day. If that is done, the Bill will still have in it the main provisions which were there originally. After all, many of the provisions that are now in this Bill might have been in operation for the last nine years at least, had there not been a disagreement—not between the two Houses, but in another place—in regard to one Part of the original Bill. It seems to me that it would be a pity if that were to happen a second time. I thought the speech of the noble and learned Viscount on the Woolsack recommending this clause, rather "damned it with faint praise," if I may use this expression in your Lordships' House, but I hope that this House will to-day stick to the decision which they made before. I hope 1020 that the Government will not be so obstinate as to attempt to "stick their toes in" on a clause which they have produced at the eleventh hour. If they want to do something in regard to altering the law of capital punishment—and I for one would not mind seeing the death sentence abolished in the case of the real suicide pact, or one or two similar offences of that kind for which a man or woman does a short period in prison—let them take this back. If they want to do anything about it, let them produce a new Bill dealing with this subject in the next Session—a Bill that may come through the Committee stage of the other place, through the Report stage of the other place, through the Committee and Report stages here; and when finally, as we might well do, we agree upon the Bill, then at any rate it will be one which can be understood in the courts of our country, and will be understood and accepted by the great mass of the people of this island.
§ 4.0 p.m.
§ VISCOUNT SAMUEL
My Lords, we are all agreed on one point, namely, that capital punishment should be reduced to a minimum, and we look back with horror at the records of previous centuries when malefactors were put to death by hundreds or even thousands for comparatively minor offences. Capital punishment is a grim and terrible business. To put to death, in cold blood, a fellow human being is an ordeal upon everyone who has to do with it, and it throws a heavy responsibility upon the whole nation, all of whom have authorised these things to be done in their name. There is no doubt but that a wholly civilised country would not include capital punishment in its penal code, but the mistake is to assume that we are already a wholly civilised country. So long as we produce criminals of the type that are produced, it cannot be said that this country has reached a really high standard of civilisation. But there is a great depth of feeling in the country in favour of the abolition of capital punishment, which was evidenced in the House of Commons by the passing of the clause in this Bill; and there is also a great depth of feeling in the country that it should not be abolished, which was immediately evidenced throughout the land when it was known that the subject was seriously engaging the attention of Parliament.
1021 For that reason, on earlier stages of this Bill, I ventured to suggest that we could not ignore that sentiment by leaving things exactly as they are, and, on the other hand, that it was not safe to abolish at once capital punishment for the most heinous crimes, or to suspend it for five years. I said that the right course was to discriminate between the graver offences, what may be called the more heinous offences, and to retain capital punishment but limit its application to that body of crimes. That was no new idea that I expressed. I made that suggestion in evidence before the Select Committee on Capital Punishment in 1930, and that Committee reported that if capital punishment was not abolished or suspended, then the right course was to allow it to fall into desuetude, perhaps, in the end, by an increase in the practice of granting reprieve. That has been the course that has been taken in other countries that have been mentioned as showing us a good example in this respect, in that they have allowed capital punishment to fall into desuetude.
But, my Lords, I did not for a moment suggest that we should endeavour to put these principles into the terms of a clause in a Bill. I expressed the gravest doubt whether it would be possible for any draftsman to frame a clause containing such categories as would bring in those offences that we would wish to bring in and exclude those that should be excluded. But the Government have taken that course. They have made that attempt, and it is now before your Lordships. I confess that to me it seems to be a perfectly impossible clause which ought not to find a place in our Statute Book. The principle upon which it rests has now been explained to us by the Lord Chancellor, who says that the Government have endeavoured to draw up a class of cases which are more likely to be deterred by the fear of capital punishment than are other cases. We are to have a Schedule of what one might call "deferrable crimes" But is it possible really to apply any such principle, and to say that it corresponds with those who ought to be hanged and those who ought not?—to say, if a person poisons his wife by slow poisoning, "that is the sort of crime which would be deferrable by capital punishment," but of another, who does it with equal deliberation and per-deterrable 1022 haps with long planning, "that is a crime which is not to be put into the class."
Again, as has been pointed out, there was a provision which was put into the law originally, that a disturbance by three people constituted a riot, and here if three people were engaged in committing any particular class of murder they would be liable to be hanged; but if there are only two, or one, they would not. There was a case not long ago of a man who, out of jealousy of another man in regard to his relations with his wife, lured him into a house and with assistance, tied him up and took him away to a quarry where he was put to death. Such a case as that would come into the non-deterrable class if two people were engaged, but if there were three, then they could all be hanged. In the trial of any such case as that, the verdict to be brought in would not depend upon the amount of premeditation, or upon the amount of cruelty, or upon the heinousness of the circumstances; it might turn, in the last resort, on: Can you prove that this man had two accomplices, or can you prove only that he had one? Then witnesses would be brought up, and evidence of and would be brought in to prove the existence of the second accomplice; and upon whether that second accomplice was proved to have taken part in the crime or not the man's life would depend. Can there be a more absurd principle? Can there be a more absurd test of whether or not a class of crime is the subject of deterrence by capital punishment?
Take, again, the class of cases which I mentioned on the previous stage of this Bill, to which I feel sure this House ought to give the most careful consideration—namely, political assassinations. In a more disturbed state of the world we might have a series of political assassinations in a number of countries. They are not unknown now. The case of Sir Henry Wilson has been mentioned; we had what might be termed a political assassination in India, the assassination of Mahatma Gandhi. We have also had the recent attack on Signor Toghatti. There may be many other such cases. Are we to say that those are not heinous crimes? Now comes the question of deterrence. If these crimes are committed by fanatics, probably capital punishment is no deterrent. If they are committed 1023 by hired assassins, it might be. But you might have one case in which there was a hired assassin and another in which there was a fanatic. Are you to endeavour by law to distinguish between the two, and to say, that because there are some fanatics who cannot be deterred, you can abolish capital punishment, or because there are assassins who might perhaps be deterred, you ought to retain it? Can you have two corresponding classes of case; on the one hand those that ought to be punished by capital punishment, and on the other those that are likely to be deterred in individual cases? To think that those two classes correspond is a complete delusion, and for that reason, therefore, this clause should be condemned.
Suppose that the principle were to be put into the Act of Parliament itself. Instead of having a Schedule as we have here this afternoon, of Offences Involving the Death Penalty for Murder, we should require a Schedule of Offences Likely to be Deterred by the Death Penalty for Murder. That is what the Lord Chancellor is really asking for. I see that he assents to that doctrine. He says "Certainly" Can he say that this list which we have before us really represents offences likely to be deterred by the death penalty for murder and that other offences are not. It seems to me a perfectly impossible proposition.
Furthermore, let your Lordships consider what would be the effect of this on the working of the jury system. Who is to decide whether or not a case comes within these detailed and peculiar provisions? It must be left, apparently, to the jury after direction by the Judge. With the law as it stands it is hard enough to impose the duty of deciding life or death for an individual on twelve men and women, chosen haphazard, who have the duty to find a verdict on matters of fact. But were they to have to go into details such as this, to examine each particular case and say whether each came within these categories or not, it would make their task almost impossible. It is hard enough for the Home Secretary, with his advisers around him, in view of previous cases and, perhaps after consultation with the Judge and other authorities, to decide which side of the boundary line a particular case falls. But to require twelve men and women in a 1024 jury box to argue among themselves whether or not it is a case in which a man is legally liable to be hanged would be a great strain upon the jury system. And it might result in many cases of disagreement of juries, which is the most painful of all results of a trial. Twelve people might not agree on one of these points at issue, then the jury would be discharged and the whole trial would take place again. The same thing might occur a second time and, if we are to have this law, the accused person would have to be discharged, although he was in all probability a guilty person.
For these reasons it seems to me that we ought not to attempt in this way to insert a definition into an Act of Parliament, but that the task of discrimination should be left, as now, to the Home Secretary. On that the Government have taken a negative view. They say that they will not accept that proposal and the Attorney-General in another place gave the reasons. I am within the rules of Order in quoting his words since a Government statement may be quoted textually in this House if made in another place. The Attorney-General on July 15 said this: it is reported in Hansard at Col. 1434:It would be quite wrong for us in this House to lay down any general proposition or to reject the present clause on the ground that in the future the Home Secretary ought to exercise his discretion in the category of cases set out in this clause. We must not attempt to turn the Home Secretary into a kind of legislator in regard to these matters. Exactly the same proposal was made in 1909, when it was suggested that child-killing should be taken out of the category of capital murdersAfterwards the Attorney-General went on to say:The Lord Chief Justice, at the time, said so and the Lord Chancellor, at the time, pointed out how wrong it would be to introduce any practice—and this applies generally to this proposition—of pronouncing sentence of death which it is not intended to carry out. That whole solemn process would become a cruel and horrible mockery, bringing the whole administration of the law into disrepute, and the Government are not prepared to adhere to the view that it would be right to pursue any practice of that kind in this matter.To that, answers can be given. I suggest that the answers are these.
In the first place, it would not be the case that sentence of death would be passed when everyone knew that it would not be carried out. It was so in the case 1025 of infanticide, but it would not be so in this case, because the Home Secretary would have to exercise his discretion in every instance. There would be no definite formulated category of crimes which would apply as between those who would be subject to capital punishment and those who would not. There would be uncertainty, and that would be a very wholesome thing for the criminal classes—a very wholesome thing indeed. Already, as a matter of fact, as the Lord Chancellor has said, we reprieve half of all those who are sentenced to death. Those are all cases in which the solemn ceremony of pronouncing the death sentence is gone through, but in fact in one case out of every two, the convicted man is not hanged. If it were to be in future that the convicted man was not hanged in two cases in every three—which is about what it would probably come to—that would not throw the whole judicial procedure into contempt any more than the existing practice of the law.
Secondly, the form of the sentence has now been altered by the Judges, on their own authority, in consequence of the vote of the House of Commons and the action taken by the present Home Secretary. When the death sentence is passed now there are added to it some such words as: "unless His Majesty should otherwise direct." I am not certain of the actual words, but that is the effect of them. Therefore, that objection would not apply in the same degree.
§ THE LORD CHANCELLOR
Is the noble Viscount quite right? The Lord Chief Justice no doubt can tell us. But I thought that, after the decision of the House of Lords, the Judges had gone back to the old form of sentence.
§ VISCOUNT SAMUEL
Perhaps the Lord Chief Justice can tell us what are the facts in that connection. In any case, the arrangement can be made that this form of sentence which has been adopted recently (whether or not it is still in use I do not know) should be the normal form of sentence, and therefore that objection would not apply. Then there is the question of whether it would be turning the Home Secretary into a kind of legislator. That was a point which was raised forcibly by the Lord Chief Justice in this House, when he referred to the statement made by the present Home 1026 Secretary that after the vote in the House of Commons he proposed to reprieve all death sentences. It was objected that this would be in the nature of reviving the suspending and dispensing power practised under the Tudors and Stuarts and ended by the Bill of Rights. But that was a matter in which the Crown, through its Minister, was acting against the Legislature and, frequently, in defiance of their expressed desires. Here it would be a case where the Minister of the Crown would be acting in accordance with the desires of the Legislature. It has been suggested that possibly Resolutions of both Houses might be passed, or that there might be an Address to the Crown by both Houses of Parliament, in order to introduce a somewhat different practice of recommending pardon from that adopted hitherto.
That seems to me to be open to some objection, partly because it might be regarded as an interference with the Prerogative and more especially because it would be extremely difficult to draft the terms of any Motion—the same kind of difficulty that has been experienced in drafting terms of an Act of Parliament. Therefore, I think it should be left to the Home Secretary to examine every case individually. He would not be exercising suspending or dispensing power or usurping the rights of the Legislature because, if a more generous system of reprieve were adopted, he would be carrying out what is obviously—as we find from the discussions in both Houses—the desire of Parliament. Indeed, it seems to me that, whether any clause of this kind is in the Bill or not, the Home Secretary henceforth would almost necessarily be obliged to practise this more generous system of recommendation.
I cannot imagine any Home Secretary when he has individual cases before him in the future, not considering: "Is this the sort of case that Parliament would desire to be reprieved?" If he takes into account public opinion, its best and most deliberate expression is in the Legislature. I cannot imagine the Home Secretary in future, in dealing with marginal cases, not taking into account the present state of public opinion. That being so, it may be a proper course—I merely suggest it for consideration, without expressing any strong view—for the Home Secretary, if this clause is rejected and if no change 1027 has been made in the Statute, to make a public statement, with the approval of the Cabinet, to the effect that he proposed to reprieve in such-and-such cases, in addition to those who have been hitherto reprieved. That might have some danger or it might not; there are arguments on both sides. If he is prepared to say that the matter would be considered in the light of discussion throughout the nation then the results we have in view would be achieved; and instead of having to resort to an amendment of the Statute Law, we would have merely to effect a change in the practice of the Common Law, the jury system and the Royal Prerogative—those intangible and ancient agencies in the Constitution which have served this country so long, and which may still serve us well in times to come.
§ 4.22 p.m.
THE LORD ARCHBISHOP OF YORK
My Lords, I will detain the House for only a few minutes. I wish to make one point and one point only. I am a strong supporter of this Bill. I believe it contains a large number of valuable reforms which have been too long delayed. The measure as a whole is completely uncontroversial. I deeply regret that the complete Bill has been so largely overshadowed and obscured by the discussions on one special clause. I am sure it was a great mistake to introduce into this Bill a clause dealing with capital punishment. The result is that the whole Bill is in danger of being lost. I therefore rise to make an appeal to the Government that, even if this Amendment is defeated, they nevertheless should go forward with the Bill. Then, later on, they should try to frame, with, if possible, general agreement, some Bill which deals with the question of capital punishment. After all, there is a good deal of common ground, of agreement. I have been greatly struck by that in these debates. Both sides, those in favour and those opposed to capital punishment, base their cases on the sanctity of the life of the individual. It is unfair to say that those who oppose the abolition of capital punishment are indifferent to the sanctity of human life. One side laid stress on the sanctity of the life of the murderer; the other side laid stress on the sanctity of the life of his victim. Both sides feel the importance of the value of human life.
1028 There is also a certain general agreement that, whether there is a case for the abolition of capital punishment or not, this is the wrong time for its complete abolition. Speaker after speaker who has had some responsible experience has stressed this point. The noble and learned Viscount the Lord Chancellor, the Home Secretary, most ex-Home Secretaries and most Judges have all declared that to abolish the capital penalty at this time might easily lead to a rise in crime. I am certain that the country as a whole feels this most strongly. There is undoubtedly considerable opinion in certain directions in favour of complete abolition, but I am equally sure that the majority of ordinary people feel that we are acting wrongly in completely abolishing capital punishment at this moment. There is another ground of agreement. I have been greatly struck by the way in which both sides expressed the opinion that the present law of capital punishment is unsatisfactory. It does not discriminate between different kinds of murderers. I think it was the noble and reverend Primate the Archbishop of Canterbury who said that there was a difference between murder which is foul and murder which is most foul. Several speakers have pointed out that there ought to be discrimination between the different types of murder—I am not referring to the law on manslaughter, but the law on murder, which does not make this discrimination at present. The result is, as the noble and learned Viscount has told us, that year after year a large number of those who have been solemnly condemned to death are reprieved—and I would say, quite rightly reprieved.
The clause now before us is an attempt of the Government to meet this difficulty. I am no lawyer and I have never served on a jury. If I had to serve on a jury and deal with the simple question of fact, whether murder has been committed or not, much as I would dislike sitting on such a jury, I imagine it would not be over-difficult to reach a decision; but I should dread sitting on a jury which had to decide whether there had been a murder or not under these proposals. These proposals have been riddled with criticism. I thought the noble and learned Viscount himself spoke a little apologetically on them and he advanced them as compromises for discussion. I would suggest to the Government that the 1029 attempt to deal with capital punishment in this Bill should be frankly abandoned. Nothing would be lost. During the interval, the Home Secretary could continue to exercise his power of recommending reprieves. A month or two would be given in which those interested in the subject—and most of us want to see some change in the present law—could meet together. The Government might confer with others. Time would be found for discussing the matter fully. This complicated Amendment has undoubtedly been hurried through. It has been quickly drafted under pressure of tremendous work and anxieties of all kinds. A few weeks' further time for consideration and deliberation might result in the production of some Bill which would satisfy both parties and would enable an important reform to be carried through. Let the Government, then, abandon this particular clause, but let them go forward with the Bill as a whole, and by the end of next week they will find on the Statute Book a reform which will be welcomed by all Parties and by the country as a whole.
§ 4.28 p.m.
§ LORD GODDARD
My Lords, before making any observations on this particular clause, may I answer the question put to me just now? Since, the Home Secretary's first announcement, although he made another announcement afterwards, Judges have continued to pass sentence in the form, "The sentence upon you is, as required by law, death by hanging." When we know the fate of this clause and the fate of the Bill itself, no doubt the Judges will reconsider the matter at their meeting next October. For myself, I think that the form now used is appropriate and more in accordance with modern ideas and principles than the old form. Such influence as I have with the Judges will be used to suggest that they keep to the form they now use.
If I might deal with the suggested clause, the first thing I would venture to say is this. This matter, as we are all agreed, transcends all Party considerations. A few weeks ago your Lordships rejected by an emphatic vote the clause which had been sent up from another place abolishing capital punishment. It is agreed on all hands—it has been 1030 conceded in another place and certainly in the public Press—that the action of your Lordships was in accord with the opinion of the vast majority of people in the country. If that is so, I ask: What is there to compromise about? With whom are we compromising? Why should there be a compromise? If your Lordships' vote on the last occasion has received the unqualified approval of the people of the country—when I say "unqualified" I do not mean of every person in the country, but the great majority of the people have endorsed your Lordships' vote—I venture to submit to your Lordships that for us to depart from it and compromise in some way on a matter of this substance, by bringing in some milk-and-water Amendment, would not be doing the duty which the Constitution places upon us.
I believe that in the criminal law there are three very desirable principles that we should all strive to attain. The first is simplicity; the second is certainty; and the third is that, in its application so far as is possible, it should be neither fortuitous nor capricious. With your Lordships' permission, I propose in a few words to show that this clause offends against all three of those desiderata. First of all, simplicity and certainty fall very much under one head. But hitherto, so far as the law is concerned, the definition and direction which is given to a jury in the case of murder has been reasonably simple. I leave out for the moment (I will deal with it separately when I come to deal with this curious expression "express malice") what has been called constructive murder. The usual direction, which is quite sufficient, so far as actual murder is concerned, is this: that if a person inflicts upon another a wound or an injury with the intention of causing death, or which a reasonable person would know must cause grievous bodily harm, and the victim dies through it, then that is murder. But in proper cases the Judge will give a direction as to what may reduce the crime of murder to manslaughter. He can direct a jury as to provocation; and by recent decisions, not only of the Court of Criminal Appeal but of your Lordships' House, the doctrine of provocation has been greatly simplified.
There is one other matter with which one has to deal in murder cases, and that is the defence of insanity, the onus of which has always been placed by 1031 English law upon the defence. There is no difficulty, so far as I know, in a Judge giving a direction on the law of insanity. I venture to say—and I believe I may say it with the assent of those of your Lordships who are lawyers and have been Judges—that, from the Judge's point of view, a murder is seldom a difficult case, so far as the law is concerned. I do not mean to say that the facts may not be obscure: the facts may be complicated, and they may be difficult. But I would far rather give a direction to a jury—except for the gravity of the case—in a murder case than I would in many cases of false pretences and cases involving fraud. It is in those cases that very often one has difficult questions of law.
Just consider for a moment (I am dealing with the question of simplicity) what the present indictment is. The prisoner is brought into court, and he is arraigned in this way: "You are charged in this indictment with murder, and the particulars are that on the first day of July you murdered A.B." Nothing could be simpler. I have been trying to think how the indictment will run if this clause becomes law. So far as I can make out, the arraignment would be: "You are charged in this indictment with murder committed with express malice and committed in the course of or immediately before or after and in connection with the commission of an offence under Section 48 of the Offences against the Person Act, 1861, and the particulars are that on the first day of July of this year you murdered A.B. with express malice, and that the murder was committed in the course of or immediately before or after and in connection with the commission of the offence of rape." I have chosen rape for a particular reason, which I will show in a moment. Your Lordships will see at once that there are many questions which will have to be brought before the jury by the Judge, simply by the reading of the indictment.
As I see it, the Judge will have to charge the jury of these matters. First, did the prisoner murder A.B.? If so, did he murder her in the course of or immediately before, or immediately after, committing the offence, or attempting to commit the offence of rape? Thirdly, did he do so with express malice? Now comes the difficulty of this express malice. I can see a great many difficulties. First, 1032 I think it is a most unfortunate thing to borrow from the law of defamation an expression which is perfectly familiar in that respect, but which has never yet been applied in criminal law. The definition of "express malice" will cause a great deal of difficulty—and for this reason. I have said that the first question on which the Judge will have to charge the jury is: Did the prisoner murder A.B., or whoever it may be? The Judge will then have to explain the doctrine I have just mentioned, that a man commits murder if, with intent to kill, or intent to do grievous bodily harm, he wounds a victim who dies from it.
Then he will have to give a direction on "express malice" In some cases that will not fit in with the direction which he has had to give on the question of murder, because the definition of express malice given in the new clause is:…a murder shall be deemed in relation to every person guilty thereof, to be committed with express malice if the act causing the death is done with intent to kill or maim any person, and in the latter case is an act which might reasonably be expected to endanger life.Observe that it must be done with intent to kill, or intent to maim. I wonder whether the draftsman of this clause had any idea of the meaning that has always been applied in criminal law to the word "maim." Certainly it has never been applied to suffocation. If a man attempts to suffocate a person, then, if he succeeds, according to the present law it is murder. But it is not maiming. Maiming has an entirely different meaning in law. Therefore, if the murderer, in those circumstances, was proved to have committed this crime in the course of an attempt to rape a woman, and in the course of attempting to rape her he had suffocated her, or strangled her, he certainly would not be guilty of capital murder under this clause. I cannot believe, that the framers of this clause can ever have visualised that, or they would never have put in something which, I submit, is absurd.
Can anyone imagine a question upon which a jury are more likely to disagree than on whether a person did a thing with express malice? You may read to the jury a definition of express malice; you may read it to them half a dozen times. But members of juries will say to themselves: "Express malice! I do not think he had express malice." They will, very 1033 likely, pay little attention to statutory definitions. If they have the question put to them in regard to express malice, there will be an opportunity for those who have some objection to capital punishment, and those who have not, to come to loggerheads and disagree. I venture to think that the chance of disagreements—which are always to be deplored, and surely in no case more than in a murder case—will be very greatly raised by putting into the Bill what I venture to think is a most unfortunate expression. From what the Lord Chancellor has said, I understand that the object of inserting this expression about express malice is to do away, if possible, with the doctrine of constructive murder. That is to say, the doctrine that if A kills B while A is engaged in the commission of any felony, A is guilty of murder, although the act of which he is guilty may cause death by misfortune and not by intention, and was not an act which would do grievous bodily harm. Nevertheless, the old doctrine of the Common Law was that if it was committed in the course of committing a felony, or with a view to committing a felony, it made a man guilty of murder. As a matter of fact, I think that in recent years there has been a tendency in summingsup to confine it, so far as possible, to cases in which the felony involved violence or danger to life. On this subject, like the great majority of lawyers, I believe, I think the law is in need of amendment; but I say most emphatically that this is not the way to do it.
One thing which strikes me as very remarkable in this case is this. By using this expression you are not getting rid of the doctrine of constructive murder; you are getting rid of it only in those cases which are now to be regarded as capital murder. This Bill will leave murder exactly as it is at present in all cases which do not fall within this particular clause, the difference being only that instead of death the punishment will be penal servitude for life. But the doctrine of constructive murder will still apply; and this (if I may venture to say so) in some cases rather absurd doctrine of constructive murder, will still apply to those cases which are not capital. Therefore, it is quite wrong to say that the inclusion of these words in this clause will get rid of that doctrine which we all agree is in need of careful attention and amendment.
1034 It struck me as somewhat odd that those responsible for this clause have not had recourse to a document which must still be preserved in the Home Office, and which, I think, they would find of the greatest use in this regard. In 1879 a Commission was set up to draft a criminal code. It was drafted, and you will find many passages from it in Stephen's History of the Criminal Law—Mr. Justice Stephen being, I think, the Chairman of that Commission. If you look at that you will see how the Criminal Code Commissioners proposed to get rid of the doctrine of constructive murder. I do not say that it is necessarily ideal—I think it will still need consideration—but it is far better than this attempt. If this is to be brought into force, I urge that those responsible for putting it forward should see how the Criminal Code Commissioners dealt with the subject in 1879.
I have said that one desirable thing in the administration of the criminal law is that it should be neither capricious nor fortuitous. May I give one simple instance, which I think will somewhat astonish those of your Lordships who are not lawyers, as to how this will work in one respect? At this time of the year most people leave their doors open to let the sun in (if there is any), or at any rate do not lock or bolt their doors. Some leave them open and some merely unlocked, so that you can open them by merely turning the handle. A man intent on theft, seeing a door open, walks into that house. Being disturbed by the householder, either male or female, he kills him or her. That man will not be guilty of capital murder if this is to be the law. But if that door is shut, although not locked or bolted, so that it can be opened by the mere turning of a handle, and he walks in and kills the householder, he will be guilty of capital murder, because in the one case there is a technical breaking, and in the other case there is not. I submit that if that law is put upon the Statute Book it reduces the law of murder in this country to a laughing stock.
There is also a paragraph put in to protect the lives of the police, and to defer people from shooting the police. I yield to none in my desire to support and protect the police, but I believe, and I am sure that every police officer would think, that the lives of the humblest of His 1035 Majesty's subjects are as valuable as the lives of policemen. It seems to me not right that a man who in the height of passion or temper kills a policeman—perhaps not deliberately, in the sense that he aimed a revolver at him—but in the struggle to avoid arrest (a man perhaps with a long record who is trying to escape) should be told that he is guilty of a capital crime, whereas a man who has taken an axe or hammer, perhaps to a sick or ailing wife and has battered her brains out, should be told that he has committed non-capital murder. I cannot believe that that is a right provision to leave upon the Statute Book.
Others of your Lordships who will address the House will no doubt deal with this astonishing paragraph about poisoning. I think the draftsman of the paragraph, in using the words, "systematic poisoning" must have been reading an elementary textbook on criminal law which dealt with cases where "evidence of system," as it is called, is permissible in proving a case against a prisoner. It often happens in poisoning cases, because it is necessary to show that the administration was not by accident, or something of that sort; and therefore the law allows you to show that the prisoner not only administered poison to A but that he had also administered it to B, C or D and that the circumstances are such that you can show that the man must have known that what he was doing was administering poison. That is what is called "evidence of system." But what does the phrase "systematic poisoning," as it is used in this Bill mean? We are told now by those responsible, as I understand it, that what they had in mind was that one dose does not constitute systematic poisoning, but that several doses will. With regard to some poisons, such as morphia, the evidence is that enough morphia is found in the body of the victim to show that death has resulted from the use of that drug or poison. It may be a most extraordinarily difficult thing to show. It may be easy to prove that the husband or the wife, whoever it may be, has administered the poison to the victim, but how are you to prove that it has been done over a long period of time? You may be able to prove that in the case of arsenic, because that has different results. But are we really to be told at this time 1036 that it is to be a capital offence if you administer more than one dose of poison to a person, though if you have taken the precaution to give them a fatal dose in the first instance, then it is not a capital offence? Where is the difference between the two crimes? I confess that I cannot see any.
I do not want to detain your Lordships much longer. There is only one last observation I wish to make. I suggest that public opinion was opposed, and resolutely opposed, to the original clause. I have seen no indication that public opinion has been stirred in favour of this compromise clause—perhaps because few people except lawyers can understand it. However that may be, I have seen and heard no demand in the outside world for a compromise on this question. It is said that the clause will effect a reform in the law. Gibe as much as you will at Judges, who it is always said are opposed to alterations in the law. That is not true. I believe that if you go through the many reforms of the Common Law which have taken place in the last century and in the present century, you will find that nearly all, if not all, have had their inception in judgments which have been given from the Bench indicating where changes in the law are necessary. I have said already that I would welcome some reform of this law of constructive murder; but let us remember that criminal law is part of the Common Law of this country, and the Common Law of this country is a very precious heritage. It is to Common Law and not to the Judges—for they only administer the law—that we look for the protection of our property, of our liberties, and of our lives. Surely we ought to hesitate before we alter the law, and ought not to alter it unless we are convinced that those who live under it demand and will approve of the alteration.
§ 4.52 p.m.
§ LORD PETHICK-LAWRENCE
My Lords, in the brief time during which I propose to trespass on your Lordships' attention, you will not, I am sure, expect me to deal in detail with the weighty arguments that have fallen from your Lordships in different parts of the House, and in particular with the closely reasoned and naturally well-informed speech of the noble Lord, Lord Goddard, to which we have just listened. My object in rising is to put before your Lordships the reasons 1037 why I cannot be satisfied with the Amendment which is before the House, and why, at the same time, I intend to cast my vote in its favour if the matter is pressed to a Division. I propose to go into the question a little more fundamentally than have some of the speeches made in this debate. It seems to me that the difference between some of us is greater than has been imagined. The real difference is this: that the bulk of the people who want the retention of capital punishment want it because they thoroughly believe in punishment and think that punishment in itself is a good thing. What they want to see is punishment directed in every respect as nearly as possible to meet the individual crime. They are getting very near that delightful satire of Gilbert in The Mikado, when he put into the mouth of that potentate the words:My object all sublimeI shall achieve in timeTo make the punishment fit the crime.Carried to a logical conclusion, the kinds of punishment which the Mikado advised would exactly carry out the wishes, as I understand them, of a great many people who want to retain punishment for its own sake.
§ LORD LLEWELLIN
I hope the noble Lord is not suggesting that I am in that category or that any noble Lord who has spoken from these Benches belongs to it.
§ LORD PETHICK-LAWRENCE
I was hoping to leave out the noble Lord for a few moments, but I did think he shared the view I have mentioned, that punishment of crime is an end in itself. That view has been expressed by many noble Lords in all parts of the House in the course of the several debates we have had on this subject. I will deal a little later on with something that the noble Lord, Lord Llewellin, said on the deterrent aspect. He may remember my interjecting "No, no" when he made a point on this subject with which I thoroughly disagreed.
§ LORD PETHICK-LAWRENCE
I have no objection to the noble Lord saying "No," but I take a fundamentally different view on the main question. I do not regard punishment in itself as a desirable thing. I do not think that 1038 punishment should be the main basis of criminal justice and of the penal code. In my view, the main object of criminal justice is two-fold: first, to prefect society; and, secondly, to rid the individual of his criminal outlook. There may be some cases in which punishment is the best or the only method of obtaining that end. If so, punishment there must be. But even in that case punishment in itself is not an end but a means. Scientific analysis of the human mind has shown that in general punishment defeats its own ends. People used to think that nearly all little children ought to be constantly punished. It was quite a common idea in the days of our grandfathers. They thought that in that way they were eradicating evil tendencies. But modern psychology has shown that that view is entirely erroneous, and that a great many people, when they grow up, are vitiated by this evil environment and treatment in the days of their childhood. I think that to-day there are very few parents who share the view that was taken sixty, seventy and a hundred years ago.
Scientific research and experience have shown that the punishment even of criminals, so far from ridding the criminals of their evil tendencies, rivets those tendencies upon them. So far from protecting society, punishment exposes society to the bitter, hostile, hideously ugly determination of the frequently-punished criminal. In the case of murder, the fact that there is capital punishment by society inculcates in the mind of the criminal the idea that if the offence is sufficiently heinous the death of the offender is praiseworthy. That is in effect to repeat the mistake, the villainous, wicked mistake that is made by the murderer himself. He says, in effect "If somebody sufficiently offends me, I kill him." It may be a quick instinct or a slow instinct, but that is what he says. And society says to him: "We claim the same right that you have claimed. You claim that, if you are sufficiently offended, you will kill him. We claim the right to kill you if we are sufficiently offended by what you have done." That being my view, I hold that capital punishment is neither remedial nor a protection for society, but precisely the reverse. Therefore, I supported the original clause, and I remain of the same opinion to-day.
In his speech from the Bench opposite, the noble Lord, Lord Llewellin, this afternoon 1039 suggested that, because 309 (I think it was) Members of another place had voted for this clause, by so doing they were admitting that they now recognise that capital punishment is a deterrent. That is an absolutely false piece of logic. I am sure that the noble Lord will see my point. I take precisely the view that I took before—that capital punishment is not a deterrent. On the contrary, I take the view that, so far from society being protected by the continuance of capital punishment, the danger to society from persons of criminal intent is actually increased by the retention of capital punishment, for the reasons that I have already given. I shall vote for this clause and I shall tell your Lordships why. Does the noble Lord wish to interrupt?
§ LORD LLEWELLIN
I was only going to point out that perhaps the noble Lord had better read it before he votes for it, because it says that you can still have capital punishment for murder plus a whole lot of crimes mentioned in the Schedule—for instance, killing a policeman while he is performing his duty. If that is not put in as a deterrent, I do not know what other reason it is there for. If you admit that it is a deterrent in those cases, why is it not so in many more cases?
§ LORD PETHICK-LAWRENCE
That is precisely the argument that the noble Lord used earlier in the day and from which I violently dissent. To my mind, the noble Lord fails entirely to understand the nature of compromise. This clause is not a compromise in the sense of a dirty political deal which the noble Lord thinks is the only alternative open to those of us who object to it being said that we are turning the clause into a deterrent. We think that capital punishment is not merely unwise; it is thoroughly unsound and not based on civilised principles. It is not a deterrent. I think that just as much to-day as I did before, and I am going to vote for this clause as I did a few weeks ago when I voted for the original clause. The reason why I am voting for it to-day, and why a great number of honourable gentlemen in another place voted for it the other day, is not because we are converted to the view of the noble Lord; it is because we think that at any rate this new clause 1040 goes some way towards recognising the undesirability of widespread capital punishment in the case of murder, and because we think that it is an important new fact. In spite of our retaining our view that it is not a deterrent, we are prepared to support this clause. As I see it, it marks a stage forward in the conversion of the mentality of the legislators of this country to the undesirability of capital punishment.
The noble Lord, the Lord Chief Justice, said: "Why should there be any compromise at all?" This House, he suggested, in its wisdom, had thrown out the proposal to abolish capital punishment, and there was evidence that there was a great body of public opinion in support of its action; therefore there was no need to compromise with anybody. What is the answer to that? The answer is definite and clear: it is that scientific penology—scientific treatment of the minds of men and women—has come to the conclusion that the ideas the ordinary man has of the springs of human action are not correct; and we who stand for the abolition of capital punishment, stand in line with the latest scientific opinion. Those who oppose it may have bigger battalions on their side, but the Government of the day recognise (and recognise it because of the majority in another place) that there is a modern enlightened opinion based upon scientific knowledge and evidence which has to be faced and has to be met. That is the reason why this clause has been put forward as a compromise. As a compromise, because it goes some way forward, although it does not accept my view about non-deterrence, I shall vote for it to-day.
§ 5.8 p.m.
§ LORD SIMONDS
My Lords, I would first offer my apologies to the noble and learned Viscount on the Woolsack that I was not present to hear his explanation of the clause. As the noble and learned Viscount well knows, that was because he sent me to do my duty in another place. I took no part in the debate when the clause in its original form was before this House. I took no part—accuse me, if you will, of cowardice or imbecility—because I could not make up my mind upon what appears to be one of the most difficult questions that face us to-day: that is, whether we, in this twentieth century, 1041 should persevere in the infliction of capital punishment. The arguments on the one side and those on the other appear to me to be so weighty, and yet so incapable of being weighed against each other, that I persisted in doubt and so I took no part. But, while that doubt persisted, and persists, I rise to avow myself an uncompromising opponent of this clause, and to urge your Lordships, with what force is in me, to reject it and to say, "It shall hot be part of the law of England."
I do not propose to follow the Lord Chief Justice and others in regard to the unpracticability of this clause in real life, however lovely it may appear on paper, partly because it is a weariness to count the holes in a sieve but also because I would approach it for a moment from a wider angle. For forty years and more at the Bar, on the Bench and as a member of your Lordships' House, the law of England has been my mistress. I think I have learnt one thing. It is this. We boast that we live under the rule of law. That is a majestic conception. I think that we should often have a difficulty in translating it into words, but it means something to us. I think it means a great deal; but it will mean nothing to us unless it is attended by the respect of the people of this country for the law. There will be no respect for the law unless there is a knowledge of the law by the people, and unless the moral judgment of the people marches with the law.
Now heaven knows, the law is not simple but, where grave moral issues are raised, it is I think of the first importance that it should be as simple as it can be made. I would echo every word that the Lord Chief Justice said upon that subject. The law is not simple—the complexities of human life, the devious and sometimes tortuous minds of men, bar that possibility. Even in murder itself some difficult questions may arise. Recently I was a member of your Lordships' House when, on appeal, we considered the question how far the crime of murder may be reduced to manslaughter by provocation. And even those words which have for six hundred years and more been part of the charge of murder, the word "malice aforethought," have from time to time received a varying interpretation to satisfy the changing conditions and the changing conscience of the people. But, with all that, there is 1042 deeply implanted in the minds of the people the knowledge that the penalty for murder is death; and with that wide knowledge there goes a general solemn approval. There you have, as I venture to think, the outward and visible signs of a free and living democracy, where the law is respected and understood of the people.
What will you substitute for that knowledge? You will substitute ignorance. For that simple knowledge you will substitute a clause with five subsections, and the first subsection has five paragraphs. There is also a Schedule, and the Schedule has two Parts and eleven paragraphs. It is nonsense to say that that can be understood and approved of the people. For something that is widely known by every man, woman and child, you will have something that is understood by nobody and approved by a few—and those a few who do not understand it. My Lords, to what end is this clause introduced? I listened to the noble Lord who preceded me. I feel deeply the weight of the argument which he and others have addressed to this House. I feel deeply that it is not fitting that human judgment, except under the awful compulsion of war, should send a human being to death. I feel that is wrong. But do I salve my conscience by saying that a murderer who commits his murderous act to the accompaniment of Section 23 of the Larceny Act is to go to his doom, but that one who does it to the accompaniment of Section 24 is not? Again, if, as I profoundly believe, the fear of death may be a powerful deterrent, why should not the potential murderer be deterred from an act to the tune of Section 24 of the Larceny Act rather than to the tune of Section 23? My Lords, this is not a compromise; this is not logic. This, with great respect to the authors of the clause, is nonsense. So I ask again, to what end is this clause introduced?
In the position which I occupy it has long been a tradition (and I think a valuable one), that we should take no part in controversial Party politics, and I would not be taken its making any attack upon His Majesty's Government. And yet, when I look at this clause, it seems to me impossible to regard it as anything but a face-saving device by which His Majesty's Government control their recalcitrant supporters. For if it is not so, if the Government of the day seriously 1043 intend to amend the law in relation to murder, what is the course which they must inevitably take? Surely it is this: to institute a Committee or Commission of Inquiry in order to learn so much that is to be learned, and to place it before your Lordships and the public at large, so that they may be instructed upon this matter.
I do not think that the noble and learned Viscount on the Woolsack can be ignorant of the amount of learning that is to be obtained, for instance from the United States of America, where there is at present a system under which there is murder in the first and murder in the second degree. From Judges like the late Mr. Justice Cardozo, a name illustrious in American jurisprudence, he would learn much of interest upon this subject. Or again, if he would go to India, where an alternative penalty may be imposed, he would learn much. There are too many Judges from India now who could give a wealth of information upon this subject. So I could go on but I will say no more. It is obvious that this is a clause which ought not to pass your Lordships' House. How dare we play with issues of this kind upon such material as is laid before us? I and those who think with me will give an unqualified "No" to this clause, and I, at least, in recording my vote, if it shall prevail, will rejoice that the face of English law is saved from a grave disfigurement.
§ 5.18 p.m.
§ VISCOUNT TEMPLEWOOD
My Lords, the noble Lord, Lord Simonds, always speaks with such weight, dignity and clarity, that I am sure I am expressing the views of noble Lords upon all sides of the House when I say how much we should like to hear him more often. I do not rise to make a detailed criticism of this clause. Many detailed criticisms have already been made of it. Nor do I rise to say that I believe the clause to be unworkable. Having listened with admiration to the speeches that have been made by learned Lords in this debate, I am inclined to think that the legal ability of the Bench would be quite capable of dealing even with this clause. There is also the fact just noted by Lord Simonds, that there is a body of experience both in India and in certain of the States of America which shows that it is perfectly practicable to graduate 1044 murder and to distinguish between one kind of killing and another. I do not rise, therefore, to say that the clause is unworkable. It is not because it is unworkable that I object to it. I object to it for totally other reasons. I object to it because it does not meet either of my two fundamental conceptions. I believe, myself—I know that there are many noble Lords who do not agree with me on this point—that the death penalty is no more effective as a deterrent against murder than are long terms of imprisonment. I believe, secondly that executions are demoralising and morally bad, both for the people who carry them out and for society as a whole. It is because this proposed clause meets neither of those two objections that I must vote against it. It admits that the death penalty is a deterrent. I make no such admission. My position is based on the fact that I believe the death penalty, judged by the great mass of foreign experience, is no more effective as a deterrent than are long terms of imprisonment.
Secondly, under this clause all the paraphernalia of executions would continue. A lurid light would still be thrown upon the gallows—perhaps all the more lurid from the fact that, presumably, executions would be fewer, and would on that account excite all the more morbid curiosity. I am not deflected from this view by the arguments just now so effectively used by my noble friend, Lord Pethick-Lawrence, with whom in most other respects I find myself in so great agreement. I am not moved by his argument that this clause is going to reduce executions. I noted that, in another place, the Attorney-General claimed that it would reduce executions by something like two-thirds of their number. I think that the actual figures that were given, based upon the experience of the last five years, were that the 51 executions that took place during that period would, under the new clause, have been reduced to 28. I admit that that, superficially, is an argument in favour of compromise. But, as I said, that does not meet my two fundamental objections. I claim further that the same result could be equally and, indeed, better achieved in the reduction of executions by a more liberal use of the Prerogative. I find myself in full agreement with what one of my predecessors in the Home Office, the noble Viscount, Lord Samuel, said 1045 on the subject this afternoon. The Home Secretary when advising the use of the Prerogative takes account not only of the actual details of the crime but also of the general attitude of society towards murder. I need not argue that point. It is obvious, if anyone studies the history of the use of the Prerogative, how much it has varied in the last generation, reflecting in that respect the general change in the attitude of public opinion towards capital offences.
I claim, therefore, that the right way to deal with this problem, until the time comes—I hope in the not far distant future—when we shall see abolition altogether, is to make much freer use of the Prerogative than has hitherto been the case. I am not deflected from my view by the charge that may be made that that would be an exaggerated use of the dispensing and suspending power of the Crown. Each case would be treated upon its merits. That, in itself, I think, would be an advantage. So long as the death penalty forms a part of our penal system it is much wiser not to attempt to put these classes of killing into rigid categories, but rather to leave them to the discretion of the Home Secretary, provided the Home Secretary is prepared to adopt an even more liberal attitude than has been the case up to the present. I could, if I wished, carry the argument further, and I might remind noble Lords of the fact that this power of reprieve in the past has been used upon two occasions upon a very wide scale. I would remind noble Lords that in 1906, I think, Mr. Asquith, who was then Home Secretary, made an official minute in the Home Office—I am sorry, I am mistaken. My noble and learned friend, Lord Simon, corrects me and tells me it was Mr. Herbert Gladstone who made the announcement as Home Secretary. He made the categorical announcement that he was going to recommend the exercise of the Prerogative of mercy in the case of killers under the age of eighteen.
§ VISCOUNT TEMPLEWOOD
Then let me pass from the case of the young murderer to the not dissimilar case of infanticide. Before there was legislation on the subject of infanticide, the Home Secretary habitually exercised his powers in advising the Crown to take cases of that kind out of the orbit of capital cases. I have quoted those two specific instances to substantiate my general position—namely, that until capital punishment is abolished altogether it is much wiser to fall back on the Prerogative, and to expect each successive Home Secretary to make not only a wise use of the Prerogative, as Home Secretaries always have in the past, but also to make a more liberal exercise of the Prerogative in future. I believe that the result of such a course would be that the number of executions quoted the other day in another place could be reduced just as effectively in this way and without all the anomalies and illogicalities about which we have heard so much this afternoon.
In the meanwhile, holding the opinions which I do hold, I prefer not to be tied by any compromise. I intend, in my small way, to go on with my campaign for total abolition. I believe that from that point of view, the hands of those who agree with me will be all the stronger for not being compromised by any such plan as is contained in this clause. Those who think with me are not depressed with what has happened. We have noted the general interest that has been taken in the question. From our point of view, that is all to the good. The more the general public know about this question, the better. Let me say, in that connection, that I thought the suggestion of the noble Lord, Lord Simonds, that an inquiry, a Royal Commission, or some such body, should be appointed to collect the facts, was a very good one. We are not discouraged. We look back at the history of penal reform and we see that in case after case it took many years to convince the public as a whole. We believe we shall convince the public, and I hope that I shall be here in this House when we are not discussing a compromise of this kind, but deciding the total abolition of what I believe to be a survival of a more brutal age.
§ 5.31 p.m.
§ LORD OAKSEY
My Lords, like the noble Lord, Lord Simonds, I was unable to be here at the beginning of this debate, but I have heard this clause so riddled by the arguments of the Lord Chief Justice and others that I do not think it necessary for me to say more than a few words. What I want to say, I want to say as an ordinary member of the public—one of those whom the noble Lord, Lord Pethick-Lawrence, would wish to reform. I think it makes the question more vivid if we consider particular instances rather than merely the words of the proposed I clause. I want to remind your Lordships of one or two particular instances which would still be allowed under this Amendment. I am no student of criminal history, but there are certain cases which have been forced upon the attention of everyone who reads the newspapers. There is the case of Ruxton. Under the Amendment, Ruxton would not have been guilty of capital murder. He was a doctor who murdered his wife and his domestic servant. He cut them up into four or more quarters and hid those quarters in Highland glens. Another case is that of "the brides in the bath." Here, the murderer employed a system which is not dealt with in this clause. Another case is that of the man who picked up some unfortunate tramp and burned him to death in his car. And recently we have the case of the man who pushed the body of the girl he had been with through a porthole.
These cases illustrate to your Lordships the difficulties which might arise in connection with this clause; and even in other cases, the question might be extraordinarily difficult. Under this proposal, all these men would be alive, and the Home Secretary would have to decide what he was going to do with them. I submit to your Lordships that every reasonable man, every ordinary member of the public, would consider it an outrage that these men should not have been put to death, especially when their cases are compared, as the Lord Chief Justice has just compared them, with those of men who, in the heat of conflict, as the saying goes, "fight their way out" with the police and happen to kill a policeman. It is all wrong to say that punishment has nothing to do with retribution. There are certain cases which shock the conscience of every 1048 ordinary man. I put it to your Lordships that the illustrations I have given do shock the conscience of every man. This clause flouts the opinion of the electorate, and flouts the opinion of every reasonable man.
§ 5.36 p.m.
§ LORD DARWEN
My Lords, my noble friend, Lord Pethick-Lawrence, has put far better than I could most of the things I wanted to say this afternoon. I have come to the same conclusion as he came to. This clause does not meet my views at all. I believe that murder is wrong, and that the hanging of a murderer is equally wrong, and for the same reason. I believe that human life is sacred. The noble Primate said that we all accepted that principle, and in a sense I think that is true. But I cannot follow the noble Lords who believe that the sacredness of human life can be established by a State which takes human life, and thereby puts itself on the same level as the murderers who dispose of their enemies. That seems to me to be a complete misunderstanding of the way in which the mind works. I still believe the old adage, that example speaks louder than words. If the State is going to take the life of the murderer, it is impossible for the State to increase the sense of the sacredness of human life. I believe that the very basis of our social democracy, in the West at any rate, is that we put first among our political objectives individual freedom. And we put that first because of our sense of the sacredness of the individual personality. I see this Criminal Justice Bill as an effort to put our criminal law into accord with that fundamental basis of our social democracy. I see the death penalty as a denial of that same basis.
This new clause is a compromise, and a very bad one, in my opinion. It retains the principle of the death penalty, and therefore does nothing whatever to increase the sense of the sacredness of human life. On the other hand, if there is any validity at all in the argument of deterrence, this clause would weaken that argument very much because the certainty of it being carried out would be so much reduced. Therefore I believe it is an exceedingly bad compromise. Nevertheless I am going to support it. And I am going to support it for this reason. The original clause suspending the death penalty for five years was inserted in the 1049 Bill by a free vote in the other place, after what I think was an able and valuable debate. That clause was then removed by your Lordships' vote. It seems to me most undesirable that in a matter of this sort either House should try to overcome the other by force. It seems to me to be a case where it is absolutely essential, if we are to be true to our democratic traditions, that we should have a compromise. In my view, the tradition of compromise which we have in this country again derives from the belief in the sacredness of human personality. If you really believe that, you will allow the other side to have an equal say with yourself; it means that you have to consider the other person's point of view all the time. It seems to me that now that this compromise has been put in the Bill, although I think it is a bad compromise, I can do no other than support it, and I propose to vote for it in the Division.
§ 5.42 p.m.
§ LORD ROCHE
My Lords, I certainly intend to accede to the Lord Chancellor's invitation to be brief, not only in mercy to your Lordships, but also in mercy to the Lord Chancellor, who is not at the moment available on the Woolsack. I would desire to say in his absence what I should certainly have said in his presence—and I am sure he will take no offence—that to-day, in his usual agreeable manner, he has delivered an argument the sophistry of which I have never heard equalled in this House. I am opposed to this so-called compromise—which is no compromise at all—for three reasons. First, the argument of selective deterrency, so to speak, of classes of people hopelessly breaks down. The noble Viscount, Lord Samuel, has analysed that matter in sufficient detail, and so have other noble Lords. Really the root of the whole fallacy of the matter is this. In considering the deterrency of punishment it is impossible to argue from any specific case, or even for any specific class of persons. You must argue from what would be the effect on the mass of mankind—by which, of course, I mean the mass of mankind who are subject to these temptations and given to these tendencies. The rule which works is that the penalty for the crime of murder is death, subject always to the prerogative of mercy which may, on proper recommendations and advice, be exercised in particular cases. But to think that the 1050 evil-doer will go into these questions of section so-and-so of the Act, and section so-and-so of some other Act, is wholly fatuous. That is the first ground on which I say that this clause is a bad clause.
The second ground is this. I agree with the noble Viscount, Lord Templewood, who has a very proper respect for His Majesty's Judges, that doubtless they could administer this or any other nonsense. At the same time, it would impose upon juries a task which it is impossible that they should bear. I do not think they could undertake it. I think it would go a long way, if we passed this clause, to abolish trial by jury of most important issues in the most important and serious of all crimes. I view with particular alarm and surprise the introduction by some amateur but arrogant mind of the phrase "express malice" from the civil law of libel into the criminal law of murder. Nothing more confusing or mischievous could possibly be devised. That is the second ground.
The third ground, which to my mind is the real and strongest ground, is that I think this clause is morally wrong. The Lord Chancellor did not commit the imprudence—he would be incapable of it—of saying that the law has nothing to do with morals. But he did say that in legislating in this manner we are not legislating on moral grounds, or making moral distinctions. The law ought not to lay down morals; but it cannot be divorced from morals, or it breaks down hopelessly, and is not worthy of the adherence or respect which it receives. An essential matter in the administration of the law is that it should be indifferent between persons—that it should be just and equal. It is not right to punish in a certain way a man who has committed one class of crime, and then to say that another man, just because the crimes are rather fewer, should not be punished in the same way. People do not understand that sort of thing.
May I just give your Lordships two instances, and I will conclude? In the course of my judicial life of seventeen years as a King's Bench Judge I can recall about four or five murders of the kind that the most reverend Primate the Archbishop of Canterbury would call "murders most foul". Two of those murders most foul would not be capital murders within this clause. One was the 1051 case of a middle-aged man, tired of his wife, and desiring, I presume, a younger and more attractive woman, who strangled his wife, slowly but certainly, and then staged a mock suicide for her by hanging her up so as to pretend that the poor woman had taken her own life. That was a murder, deliberate, calculated and foul. I can imagine the difficulty of explaining to a jury, or justifying to one's own conscience, that that man was guilty of murder only in the second degree; or to put it in another way, that the crime he committed was not a capital offence. The other case was even more terrible. In that case, a man coming back from the war of 1914–18, having no real cause so far as one could understand for suspecting his wife of actual infidelity, and certainly not being provoked to any sudden outburst of passion—though moved, possibly, by a jealousy more fierce than Othello's, or, more probably, by undying hatred of the woman herself—took her to a lonely spot, knocked her down, knelt on her and then did her slowly to death by inserting a gas pipe in her throat and grinding it into her very vitals. There was no defence, or pretence, of madness; that was not and could not be suggested. It was hatred. Under this clause that man would have been guilty of murder in the second degree. I say that these distinctions are not right and equal; they are not fair; they cannot be justified. For that reason, above all others, I oppose this clause.
§ 5.49 p.m.
§ LORD DU PARCQ
My Lords, I do not propose to detain your Lordships long, but I should like to say a few sentences about this clause. I will try not to repeat too much of what has been said already. A phrase has been borrowed in the new clause from the law of defamation. I hope that I shall not be accused of wrongly borrowing another if I say that my great objection—speaking as a lawyer and, more important, as a man—as a "citizen" or "subject," is that if it be passed it will bring the law into hatred, ridicule, and contempt. Everybody who has had the proud privilege of administering the law knows that what we demand of it is this and nothing more: that it should be an instrument of justice. And, whatever faults it may have, our English 1052 law is a valuable and a useful instrument of justice. If it ceases to be an instrument of justice, and plainly and openly works injustice, it will deserve and will receive the hatred of our people. What will they say when a Judge has to sentence to death somebody who, by a lack of attention to these rules or by a failure to comprehend them, has committed murder in circumstances which lead to the death sentence, when—perhaps the next day—a man who has committed one of those horrible crimes of the nature that my noble and learned friend Lord Roche has just mentioned, or of which my noble and learned friend Lord Oaksey reminded us so recently, escapes with a sentence of penal servitude? Does anybody believe that the people of this country will not at once feel a sense of horror at what they see to be a gross injustice? I am afraid that their feeling will be not so much that they want both men spared, as that they want the man who has committed the crime of a Crippen or a Ruxton to be sentenced equally with the other.
I am quite sure that the noble Viscount, Lord Templewood, is absolutely right, from his own point of view, in objecting to putting on the Statute Book a proposal which would work injustice of that kind and stir up feelings which the ordinary human being would find it impossible to resist. Not only is this unjust and, therefore, deserving of the hatred of the people, but, as has been pointed out, it is really a Bill which is going to do in the most exaggerated form what other Bills, on subjects where there is more excuse for it, already do for the Judges. The Judges have to interpret the intention of the Legislature. It is sometimes very difficult to know what that intention is, but so far, I think, in our criminal law there has been no great difficulty. What are we to make of some of the expressions in this Bill? "Systematic administration of poison" The case recurs to one's mind—I suppose we have all read of it, although I do not remember it, and I am not sure when it happened—of Neil Cream, who used to get a fiendish delight in giving to women whom he met in the streets what were supposed to be medicinal tablets, and which really contained a preparation of strychnine. It gave him intense satisfaction to know that while he sat quietly at home his miserable victim was 1053 dying in the most awful agony. He killed many of them. But supposing he had been charged in respect of the first woman he killed? Would he have been guilty of the systematic administration of poison to her? I do not know. I have looked at the dictionary; "systematic" is not a term of art, and lawyers do not give any precise meaning to it. The first meaning I found in the dictionary was, "according to method or plan" If you give it that meaning, undoubtedly Neil Cream would have been guilty. If, on the other hand, you give it the meaning which I also found, "as a regular and reprehensible practice," then, so far as the murder of one individual woman was concerned, it was not then part of a practice at all.
I do not want to deal with minutiæ, but that is the sort of question, your Lordships may believe me, which would be argued for hours before the Court of Criminal Appeal. I do not think the Lord Chief Justice, or any Judge, will accuse me of exaggerating when I say that they would not be easy questions to solve, and they might even come to your Lordships' House. I am sorry to say it, but I do not believe, any more than other noble Lords who have spoken believe, that this clause has been fully considered. One reason for hanging a man is that he has been convicted of murder committed upon a previous occasion. Convicted in any part of the world? There are some of these humane countries—we have heard of so many—where they keep a man in prison and do not sentence him to death. Indeed, I think I am right in saying—I read it recently—that Neil Cream had been convicted of murder in one of the States of the United States of America, had served a term of imprisonment and had then come to this country. Would that count as a conviction under this Bill? Would a conviction in Italy, Spain, Russia or any country you like, where their rules of evidence are so different from ours, where possibly in some cases—I mention none—the courts may not be regarded as so strictly impartial as ours, count as a conviction or not? I do not know the answer, and I doubt if anyone can give me the answer.
The first thing which strikes one on reading this, is that the draftsman has said nothing about it. His Majesty's Government must have a view about it, but they do not express it. They leave it to 1054 the Judges, and they leave the explanation or construction of the words "on a previous occasion" to the Judges. Certainly you may kill two people within a few seconds of each other without risking 2 capital sentence. If you kill one the day after the other, I suppose that would be two occasions, and you could then be tried and convicted of the first offence and later convicted of the second and hanged for it. But what space of time must intervene in order to make a separate occasion is another of those interesting conundrums which the framers of this Bill throw to the courts for them to make the best they can of it. When one is dealing with finance, problems of this kind are, I suppose, inevitable and not very serious; but when one is dealing with human lives it seems to me that it is asking too much of the Judges and shirking the responsibility of the Legislature, to pose those problems without giving the slightest inkling of how they are to be answered.
I am not going into the main issue of whether there should be capital punishment or not; I have expressed my view about that once in your Lordships' House. I am content with the law as it stands, and certainly I would rather have that than this. If the noble Lord, Lord Darwen, will allow me to say so, although we all respect his conscientious views about the matter, his speech certainly did succeed, as he confessed—I think with a little pride, which does not astonish one in this country, because logic is not loved—in being thoroughly illogical. If I may say so, all the arguments which he used would have been equally applicable if a short Bill had been introduced to say that in future only every third person convicted of murder should be sentenced to death—with, of course, a right to the Home Secretary to use the Prerogative in order to keep matters fairly balanced. Nobody, I suppose, would defend that, but I venture to say that every argument which the noble Lord used would be equally applicable to it.
I would say only one word more, and here perhaps I am repeating what was said by the most reverend Primate. I speak with a little sense of almost personal grievance here, because many years ago I was a humble member of the Committee which recommended a great many of the reforms—good and valuable reforms., I think—which are to be carried 1055 out in this Bill. I think one is entitled to protest at having fastened on to the Bill, so as almost to swamp the reasonable and careful consideration by the people of the other provisions, first this highly controversial topic and now, finally, this wholly fantastic clause.
§ 6.0 p.m.
§ VISCOUNT SIMON
My Lords, I hope to follow the example of some who have gone before me and speak briefly, because at this stage it appears to me that this clause is simply shot to pieces. It is difficult to believe that anyone who has listened to the whole debate and has reserved his judgment throughout could come to any other conclusion than that this clause is rightly denounced as being a quite impossible and utterly absurd provision. I have from the first regretted that a clause on this subject should be included in this Bill. It was not so originally, and I am as conscious as anybody of the great value of the other provisions, which I think ought to see their way to the Statute Book as soon as possible. It is no fault of your Lordships that this addition has been made, first in one form and now in another, but we have to deal with it.
In my few remarks I propose, respectfully but quite directly, to address what I have to say to the noble and learned Viscount on the Woolsack, because he is the not only the President of this Assembly but he is the head of the Judiciary. We have heard in this debate the views of the Lord Chief Justice, who stands I think, second, as well as the views of the noble Lords, Lord Simonds, Lord du Parcq, Lord Oaksey, and Lord Roche. Through no fault of his own, the noble and learned Viscount has not been present for all these speeches; but those who have cannot fail to have been struck by the firmness of the arguments which these noble Lords advanced. Inasmuch as the Lord Chancellor is the head of the Judiciary and of the Law, I respectfully suggest to him that now that this debate has taken place and the character of this clause which he invites us to adopt has been exposed, he should, in replying, not deal, as he so largely did at the beginning, in generalities, but should take the clause and explain to us how he, as the head of the Judiciary and the head of the Law, defends its actual language. It is very 1056 natural that we should have had in this debate reference to other matters, and I have no complaint about that; but, after all, we are now dealing with a specific clause in specific terms, and it seems to me, with all due respect to the great office which he holds, that the noble and learned Viscount owes it to the House to give us, now, at the end of this debate, his defence of the actual language and contents of this clause. I cannot help feeling that, apart from some effective explanation by way of defence, the evidence offered by those who have spoken to-day utterly condemns this provision. Therefore, I ask him to tell us before we go to vote what is the Government's defence of this particular provision.
The noble and learned Viscount told us when this Bill was first introduced that he was "diametrically opposed" (that, I think, was his phrase) to what I may call the "Silverman clause," and that he was confident that if it was carried it would mean a reduction in the deterrent effect of capital punishment, at any rate in some cases. He none the less commended it to the House because, as he explained to us, he considered that his position was perfectly simple since he had undertaken to accept the decision of a free vote of the House, whatever it might be. I quite understand that, and I am not presuming to criticise it. I would only point out that if that is the situation, this new clause which he now, in the name of the Government, is commending to this House, is a proposal which is at complete variance with that in respect of which the compact was made.
I heard the statement questioned that this clause, by its very language, admits that the prospect of a sentence of death is a greater deterrent than the prospect of a sentence of imprisonment. It is no good protesting about that, because it quite obviously does so. It selects certain instances—possibly rather oddly chosen—of murder, which are regarded, as I think the learned Attorney-General said, as the most heinous types; and it says that it is proposed to retain the death penalty in respect of crimes of that type. Then it proceeds to provide that for other murders, not so manifestly heinous, the punishment should be limited to imprisonment. What is that but admitting that the penalty of death operates as a more effective deterrent than 1057 any other punishment, in certain cases of shocking murder? Unfortunately, the noble and learned Viscount was not here, I think, when the noble and learned Lord, Lord Roche, spoke. He made the point much better than I am likely to make it, but, as the Lord Chancellor is present, I will repeat it now. In his opening speech, the Lord Chancellor laid emphasis on the fact that in drawing up this list, the Government was not seeking to reach any conclusion about grades of moral guilt. I think some people might find that rather a shocking statement. I should have thought that the basis of punishment for a serious crime must be one which has a close connection with the extent of moral guilt. Moral guilt in the case of murder is so variable, because murder extends from cases such as the "mercy killings," which have been mentioned, to the most atrocious and frightful crimes of which Lord Roche and others gave examples—crimes which none the less under this clause would not earn a sentence of death.
We have at present a system which I do not propose to praise simply because it is an old system. I have in my time taken a modest part in the working of it as well as I could. I can well believe that in some respects it might be improved; I think, for instance, it would be proper to have an inquiry as to whether our present method of executing condemned murderers is the best. But, at any rate, it is a flexible and well-tried system, and it depends essentially on two things. The first is that the question put to the jury in a murder trial is simple, so that men or women who are collected there in the jury-box discharging a most serious responsibility should really have a fair chance of understanding all the implications, under the direction of the Judge presiding in court. How on earth anybody connected with the actual administration of justice in its higher ranks can suppose that the complicated questions read out by the Lord Chief Justice, who ought to know, are things with which any jury can easily deal, I do not know. What I do know is that when this same point was mentioned in another place by Mr. Winston Churchill, the answer which he received from the Attorney-General was a single word—"Rubbish!" I only want to know whether the noble and learned Viscount the Lord Chancellor thinks it is rubbish, or whether he thinks 1058 that the observations of the Lord Chief Justice on this subject are of a very grave character indeed; because I know he would wish our law to be so framed as to secure that the judge and jury system worked justly.
The other point about our present system is the method of leaving to the Home Secretary the responsibility of advising as to the exercise of mercy. Listening to these debates, I must confess that I am greatly surprised by this fact: that quite a number of people seem to talk as though the Home Secretary's duties in this respect are limited to sentences of death. They are not at all. The Home Secretary in his office is constantly concerned with the whole subject of whether or not the punishment that has been awarded by the sentence of the court is too severe, and whether it ought or ought not to be reduced, and reduced by the exercise of the Royal Prerogative. When I was a young man at the Bar, I remember a case—I believe it was at Oxford; I only heard of it, I did not see it—where it was said that a burglar was brought before a High Court Judge whose brother happened at the time to be Home Secretary. After this burglar had been convicted by the jury at Oxford Assizes, his previous record, which was a very bad one, was brought forward, and the Judge made some remarks upon it, as is often done Running through the list, he found that only two years earlier the man had been sentenced to ten years' penal servitude. The Judge expressed considerable surprise, and still more surprise when he found that it was he who had sentenced the burglar only two years ago to ten years' penal servitude. But the prisoner was quick with the explanation. He said: "Oh, yes, that is quite right; but your brother said it was a most improper sentence" The truth is that the Home Secretary has this duty to perform in many connections. I do not think that it would be disputed that, on the whole, successive Home Secretaries have performed this duty to the general satisfaction.
I do not want to depart from the immediate purposes of the Bill, but I should like in a sentence to refer to a difficulty which will be found in the suggestion made by the noble Viscount, Lord Samuel. The difficulty comes exactly at the point where he stopped. He said that 1059 he did not see why the Home Secretary might not make a public announcement that he would reprieve in "such and such" cases. I think it will be found that the whole difficulty is to determine how to define "such and such" cases. But that, after all, is a side issue.
I want to conclude merely by saying that I think that when this debate closes the House is entitled to such assistance as the head of the Judiciary can give, because either the views that have been expressed by half a dozen of those who have held office in connection with criminal justice must be accepted, or else there must be some answer to it. If you look at the clause and read it, the results appear to be just as fantastic as has been pointed out again and again. I will not repeat this for, since the full length of the clause could not appear in any public newspaper, I have done my best to let it be known what some of the consequences are. I find myself completely confirmed. If we adopt this clause, no wife murderer can, in the next five years, be condemned to death, unless he "systematically" poisons her (whatever that means), or unless he blows her up with an explosive. Anyone who likes can arm himself with a lethal weapon and, out of hatred, jealousy, rivalry or for any other reason that he likes, may shoot another person dead. While hanging is reserved for some cases, he cannot be hanged. I hope that I am not the only person who thinks that all this is the height of nonsense.
As regards "systematic" murder, I hope that the noble and learned Viscount the Lord Chancellor will read what was said by one or other of the Law Lords about it, in particular by the noble Lord, Lord du Parcq. If the noble and learned Viscount says any more about it, I hope he will not repeat the defence, and the only defence, suggested by the Attorney-General in another place. His suggestion was that to poison people straight off was to perpetrate a murder of the lower order, because mercy killings and suicide pacts are not infrequently carried out that way. Of course, that is a perfectly good reason why the Home Secretary in such cases should exercise his duty and advise reprieve, but it is no reason at all for saying that deliberate poisoning perpetrated by those methods is not to be punished like systematic poisoning.
1060 Therefore, keeping I hope to my promise to be quite brief, I conclude by saying this. This is a Bill in which the Lord Chancellor—and especially a Lord Chancellor who is in the Cabinet—must take a primary, or, at any rate, a chief and personal responsibility. I am sure that he would not for a moment seek to hide himself behind such an excuse as that he is acting under the instructions of a Department, or that he is bound to say what he says because his colleagues ask him to do so. Every one of us in this House realises most heartily and most genuinely how hard the noble and learned Viscount is driven and how fearful is the burden that is put upon him here day by day. Sometimes, he appears to me to be the only Minister in this House who can put up an arguable case for some of the Government s proposals, so it is not surprising that he is overworked. Anybody who has any understanding of the matter sympathises with him very much. We acknowledge with gratitude his courtesy, his industry and his ingenuity. But on the present occasion, my Lords, are we not entitled to ask him to give us fully the service of his mind on the text of this clause, so that we may understand how anybody who holds his general opinions and who has had his great experience and training in law can uphold the language of this preposterous proposal?
§ 6.20 p.m.
§ LORD ROCHESTER
My Lords, I too shall be exceedingly brief. I made my position so abundantly clear on the Second Reading and the Committee stages of this Bill that I have no wish to weary your Lordships with repetition as to where I stand upon the general question for or against the capital penalty, except to say that I am still of the same mind and desire to see the gallows abolished once and for all. Nevertheless, I find myself upon the horns of a dilemma in this debate; for, at the same time, I have no wish to give a silent vote. I am rather reminded of the man who inquired from the doctor, as he emerged from the patient's room, what was the position, and the doctor answered: "Well, I am afraid there is not much hope either way" That is rather my position as I view the Division in which we are to take part in a few minutes. However, there being only two Lobbies, I must perforce choose the 1061 lesser of two evils. As I see the issue before us now, it is between fewer or more hangings. This new compromise clause will at least prevent a man going to the gallows for a murder he never intended to commit. If this compromise clause had been the law of the land during the past fours years, of the 51 persons executed, 28 would not have been sentenced to death. I am, therefore, going to vote to reduce the hangings by more than one half, as I have no opportunity to vote for total abolition, which I should wish to do. If your Lordships throw out this compromise clause one of two things will happen: either we may lose the Bill with its great possibilities, particularly as it affects children and young people, or the Government may drop the hanging clause altogether and the Bill will proceed without it, the capital penalty remaining in all its fullness. Life is sacred. We have not the power to create it, and in my submission it is not for us to take it away.
§ 6.22 p.m.
§ THE MARQUESS OF SALISBURY
My Lords, I propose to speak quite briefly to your Lordships to-night for I know very well that the House are now ready to come to their decision. But it has been suggested to me that it might be convenient if I, who have the privilege of leading those who sit on these Benches, were to say just a few words in conclusion. This is the second time that this great issue of capital punishment has come before your Lordships, although, of course, the actual proposition that we have to consider to-night is a very different one from that which was before us last time we discussed this subject. On that occasion the proposal that was put before your Lordships was that capital punishment should be entirely abolished for an experimental period of five years. For some of us that proposal, in principle, had considerable attraction, largely for the type of reason which has been expressed this afternoon by the noble Lords, Lord Darwen, Lord Rochester and others. I believe there are a considerable number of people in this country (and I think I fall into that category myself) who do not feel so violently as some other noble Lords who have addressed your Lordships to-day, and though I would not assent to everything that they have said to the House, at the 1062 same time I do not like capital punishment in itself and should be glad in principle to see it abolished. If people like us were not able to support the Government's original proposal, or the proposal as it comes to us from another place at the present time, the reason was that in our view the circumstances were never more unfavourable for the success of such an experiment. We were conscious that abolition at the present juncture would be failed by the forces of disorder as a victory for them over the forces of order, and we felt that it would be regarded by the police, who are already labouring against unparalleled difficulties, as a deliberate stab in the back.
But we were conscious also that it would be (if I may use so strong a phrase) a shameless and open flouting of the view of the overwhelming majority of the British people. It was considerations of that sort which moved many of us to refrain from supporting the abolition of the death penalty at the present time. And no doubt the same considerations have influenced the Cabinet—or at any rate those members who are not already convinced that abolition would be a bad thing—to modify the original view of the House to persuade their supporters not to insist upon the original proposition, at any rate for the time being. There, I am quite certain the Government were right. For all the reasons I have stated, I think to have stood by the original proposal would have, been a reckless proceeding, and contrary to all he great traditions of democracy. One would have expected, however, that in such circumstances their natural course would be to put the whole issue into cold storage until changed circumstances made it practicable to raise the mutter again, so that it could be given fresh consideration. After all, so far as I know, there is no violent complaint in any quarter about the actual working of the present system. It is universally recognised to be humane, and it is also recognised that under it only the most atrocious criminals in fact suffer the death penalty. All that is really wrong with the present system, in the eyes of the critic, is that it permits the death penalty in any circumstances at all; and if capital punishment is to be retained, as it is by the Government's new proposal, that objection clearly falls to the ground.
1063 Indeed, under the system which has obtained up to now there are in fact, as has been pointed out this afternoon, already in operation two degrees of murder: one for which men and women are hanged, and another for which they are not. A final decision as between those two degrees of penalty is taken by the Home Secretary, in the light of all the facts and after consultation with the Judge and anybody else he thinks it proper to bring into consultation with him. He is bound by no rigid definitions. He is absolutely free to take into consideration every extenuating factor—in fact I think I am right in saying that the most reverend Primate said that at the present time about 50 per cent. of murderers are already reprieved. I do not say that this system is satisfactory to wholehearted opponents of capital punishment, or indeed to those like myself who do not much like capital punishment, because it preserves what they think ought not to be preserved—namely, the death penalty. But it would be difficult to improve upon the machinery if capital punishment is to be preserved. Yet that is what it seems, to many of us, that the Government and the House of Commons have tried to do. They have tried to improve on what is already working admirably, and they have tried to do this by attempting to define what in fact cannot be defined; and as a result they have created a great many more anomalies than they have cured.
It is not necessary for me to labour that point or to show the inconsistencies to which the Government's Amendment gives rise. The new proposal has already been completely riddled in this House. It has been torn to shreds by the speeches of noble Lords who are Judges and others with long experience of this question. They have shown, I think, beyond all doubt that it could only result in the grossest disequilibrium—if I may use such a term—of penalties as between one form of murder and another, between one method which, by mere accident of the drafting of the Bill, invites the death penalty, and another which, for no apparent reason, does not. Whatever could be said in favour of abolishing the death penalty—and I think that is a thing which can fairly be defended—I consider that nothing can conceivably be said, based upon justice, reason or common sense, for 1064 the present proposal which is before your Lordships' House. It is not, in fact, really a serious proposal at all. It is a mere pis aller, introduced not because of its intrinsic merits but because it has been hoped, perhaps over-optimistically, that it would satisfy someone and get the Government out of the jam in which they find themselves. I do not think that that is an unfair way of putting it; everyone knows that to be the position. We must all sympathise with the Government in their difficulties, even if some of them are, perhaps, of their own making. But I would assure them that it is not by such devices as this that they will restore their credit, either with the electorate or with their own supporters. Neither do I believe that it would be in accordance with the reputation of your Lordships' House that we should lend ourselves to such devices as this on the great issue which we are discussing this afternoon.
The Lord Chancellor, in his initial remarks at the beginning of the debate, quoted some words which were used by the most reverend Primate, the Archbishop of Canterbury, during the earlier debate. In the course of his speech, the most reverend Primate said—I am not giving his exact words, I am paraphrasing them—that once the issue had been raised, we could not go back to where we were. The most reverend Primate has the respect of all of us; we all recognise his good intentions; but I could not possibly accept that proposition which he put forward. Indeed, it seemed to me when I listened to it the first time, one of the strangest and most fantastic arguments which I had ever heard used. After all, the duty which, under the Constitution, lies upon this House, in respect of new legislation, is, first, to see whether any proposed modification in the law will, or will not, make an improvement to the existing law, and secondly, whether it will, or will not, be acceptable to the British people, whose instrument we are. In cases where both these considerations are satisfied, it is clearly right to alter the law; but in cases where these considerations are not satisfied then I should have thought that, equally, it was our duty to maintain the law exactly as it is. The fact that an amendment has been proposed is not, in my view, prima facie evidence that such an amendment is necessary or right. I was sorry that the noble and learned Viscount, the Lord Chan- 1065 cellor, quoted that argument, for I do not believe that it has any validity at all. I was sorry that the most reverend Primate used it.
If we have made up our minds, as I believe most of us have, that it is not possible, even if desirable, to abolish the death penalty at the present time; and if we have also made up our minds, as I believe most of us have, that the death penalty is to be retained, then the fairest, the most supple and the most humane method of administration is, broadly speaking, that which exists at present. If those two propositions are accepted, I, personally, see no alternative but to maintain that method by the only way open to us, and that is by insisting upon the deletion of Clause 1 of this Bill. That is the course which I believe the House ought to take. I know that I may be told by the noble and learned Viscount the Lord Chancellor, when he speaks again, that this may mean the country losing the whole of a great Bill, the rest of which is largely uncontroversial. I feel, as does the most reverend Primate the Archbishop of York, that that would be most deplorable. But, in fact, it does not necessarily mean that at all. The Government have a perfectly easy way of avoiding that dilemma. All they have to do is to revert to the line which was originally supported (as the Government themselves know) by the Prime Minister, the Foreign Secretary, the Home Secretary, the Lord Chancellor, the Lord Chief Justice and the vast majority of the British people, and accept the decision for the deletion of this clause. In fact, all that is necessary is for them to restore the Bill to the form in which they themselves originally introduced it in another place.
If they were to do that, the Bill would pass through both Houses of Parliament with complete harmony and ease, and without, so far as I know, further amendment. Then, if the Government felt under obligation—which they well might—to find some modification of capital punishment which would be acceptable to their supporters in the House of Commons and in the country, they could always, at a later date—possibly in the next Session—introduce a separate Bill to deal with the death penalty alone as an isolated issue. I do not say what attitude your Lordships' House would take on such a Bill, but that is a perfectly simple course which 1066 it is entirely open to the Government to take. But to ask this House to do something which we all think to be radically wrong, and which is entirely opposed to the views of the overwhelming majority of the British people, is surely not something which ought to be seriously suggested to us. My view, therefore, quite briefly, is that our only sensible course is to reject this new proposal as being both illogical and unworkable, and to allow the existing system to continue, at any rate until the forces of law and order have regained the upper hand and until the arguments against abolition of the death penalty have lost their present force. Then, of course, it would be easy for the Government, for Parliament, to reconsider the whole of this great question with fresh minds and in fresh circumstances. I believe that that is what the British people would look to us to do. I believe that that is the wise and the right course, and. for those reasons, that is the course which I recommend to your Lordships to-night.
§ 6.38 p.m.
§ THE LORD CHANCELLOR
My Lords, if I may, I will deal quite briefly with the last point which was raised by the noble Marquess. I am certainly not going to maintain that the loss of this Amendment means the loss of the Bill. It is obvious that it will be possible to pass this Bill without Clause 1, leaving the whole subject matter of Clause 1 for a further Bill or for further discussion. It has been agreed that there is much merit in the rest of the Bill, and I can see the force of the argument in favour of that course being taken. I shall certainly bring to the notice of my colleagues the remarks which the noble Marquess has made in that connection. Therefore, I am not uttering any sort of threat; I am not attempting to tell your Lordships of something that will happen if you do not accept this Bill. I am doing nothing of that sort. I have no authority, in fact, to say what will be done in that regard. It is obvious that it is possible to pass the rest of the Bill leaving this matter open.
I am not going to detain your Lordships at undue length at this time of night, but there are a few things which I would like to say. As the noble and learned Viscount, Lord Simon, has said, I am responsible for every Bill which I 1067 introduce. I seek to shelter behind no one as to any one of them—certainly not with regard to this Bill. I feel that there is something that needs alteration here. May I tell your Lordships of an incident that happened to me when I was a very young man at the Bar? I have never forgotten it. A young girl was tried for the murder of her illegitimate child. It was a long time ago, and I need hardly say that people were apt to be rather stricter about that sort of thing then than they are now. The girl had taken the child, who was about four of five years of age, around with her everywhere, to try and get work. Everywhere they pointed to the child and asked, "How did you come by that child?" She could not get a job. She had lost her character. Thinking that life held out no prospect for herself and her child, after having come through very hard times and having put up a good fight against difficulties, she was minded to throw the child out of the window of a train into a ravine below, where the child would meet with certain death and she herself was clambering out of the window to try and take her own life when she was stopped. I remember the Judge sentencing her to death with the frightful ritual which in those days used to be applied; yet everybody in that court knew that there could be no question but that that girl would not be sent to death.
It seemed to me then, and it seems to me now, almost an indecent thing that in a case like that, where it is quite obvious the death sentence will not be applied, that we should have to go through the ritual of sentencing people to death. It has seemed to me ever since that time that if we could in some way draw a line between those cases in which reasonable people would say we ought to use the death penalty and those cases where it is manifest that nobody possessed with any humanity at all would contemplate the death penalty, we could in the latter cases relieve our Judges of having to pronounce the death sentence. I have heard of a case—I do not vouch for it, and perhaps my noble and learned friends can say whether it is true—in which an experienced Judge gabbled through the death sentence so that the unfortunate person being sentenced might not hear it. If that is so, surely we would all agree 1068 that it is very undesirable. I feel it is desirable to try to get this dividing line.
On my next point, I differ fundamentally, not only in matters of detail, from several noble Lords who spoke, and in particular from the noble Viscount, Lord Simon. Speaking for myself, I could not justify to my own mind the death sentence unless I believed it acted as a deterrent. I could not justify it because certain crimes shocked my conscience, or were horrible or beastly. Unless I could go further with myself and believe that the death penalty prevented that class of murder, I could not justify it. To my mind, that is the sole justification. That is the justification I made for this attempted compromise. I conceded at once that it had no logic in itself; that it was a compromise. It did not pick out from the whole category of murders those which were the most heinous or try to assess the moral obliquity. I profoundly differ from the noble Viscount in thinking that the extent of moral obliquity is what the court is, or should be, concerned with. I do not believe any court can possibly assess that.
§ THE LORD CHANCELLOR
It is for the court to remember that the function of the court is to protect the community and not to attempt to assess moral guilt. If the noble Viscount reads his speech, he will find he said that the punishment which the court awards ought to be based on the view the court forms of the extent of moral obliquity. I differ. I believe the punishment the court awards ought to be based on what the court thinks necessary to protect the community. That is a fundamentally different approach.
For the rest, a large number of detailed matters have been argued. Listening to these arguments, it has made me think that it is much easier to criticise a clause than to draw one up. I have no doubt that if any of your Lordships had drawn up the clause and I had to criticise, I could have acquitted myself tolerably well. Take a matter which has been raised, not once but a dozen times in the course of these debates—second murder. It was perfectly open to any of your Lordships to put down an Amendment to this Amendment. Having listened to this debate, I say frankly that, if anybody had sought to 1069 put in the words "in the United Kingdom," so that the Amendment would read, "having previously been convicted of murder in the United Kingdom," I would readily have accepted it. We have virtually gone through a Committee stage and all sorts of Committee points have been raised. Now I am expected to go through the speeches and reply to all these Committee points. Frankly, if those of your Lordships who raised these Committee points had informed me about them, or put them down as Amendments, I think we should have had a better clause than we have.
The noble and learned Lord, the Lord Chief Justice, is the last person I want to quarrel with, because I have a profound regard for his knowledge of this side of our law, which is infinitely greater than mine. But I am bound to say that he unduly simplified the problems which may arise in the case of murder, particularly the case of what is, rather inaccurately, called constructive murder. It seems to me that the noble Lord tried to prove the existing law to be simple by assuming it to be what this very clause, which is so much criticised, provides—namely, that capital murder involves an Intent to kill or an intent to do an act which might reasonably be expected to kill. If we assume that, then no doubt the thing becomes tolerably simple; but that is what the clause provides. I ask the Lord Chief Justice to look at Stephens' view on murders in the Digest of Criminal Law. Whatever other conclusion we may come to, at least we must come to the conclusion that Stephens does not think this doctrine at all easy or simple.
§ VISCOUNT SIMON
Does the clause, in his view, abolish it? It abolishes it for capital murder, but not for non-capital murder.
§ THE LORD CHANCELLOR
I am talking for the moment of the definition of express murder which has been much criticised here. I was saying that the definition was not the simple conception which I thought the Lord Chief Justice put forward.
§ LORD GODDARD
One of the objections I took was to the words "with intent to kill or maim." I pointed out that maiming in English law has a particularly technical meaning and does not apply to all cases of grievous bodily harm, such as suffocation.
§ THE LORD CHANCELLOR
This is a different point, but the Lord Chief Justice has a perfecty good point here. If I may say so without disrespect, he is right in saying that maiming does not include such an action as suffcation. But that is a Committee point which, had it been raised, could have been dealt with.
§ THE LORD CHANCELLOR
It was open for anybody to move an Amendment to this Amendment. If that had been done, we would have dealt with those two simple points. It is suggested that the phrase "express malice" is culled from the law of libel. But it is a term of art in the law of murder. If the Lord Chief Justice will look at the 31st edition of Archbold, page 864, he will find it there. He will also find it in Stephen. Equally Lord Llewellin suggested that the words "in the course of" are borrowed from the Workmen's Compensation Act and have no lot or part in the criminal law. If he looks at the case King v.Beard in 1920 Appeal Cases, he will find the whole mater there discussed. As to the systematic administration of poison (I quite concede that this Amendment is a compromise) if there were not some words like that you would embrace within the capital murder cases the very class of cases we want to leave out. For instance, gas is a form of noxious substance. Surely the case we want to keep out is that of the unfortunate mother who puts her children into the gas oven and then tries to kill herself. I do not imagine that we want that to be within the category of capital murder.
Therefore I would say this. I believe this is a matter of great public importance. If we can, we should, at any rate for a number of years, end this controversy. I believe that the fact that this controversy is going on and will go on—and from now onwards it will go on with increased intensity—is a public misfortune. Perhaps I have gone a little too far in assenting to this scheme. I dare say it is not very well drafted. But it is a serious and a real effort to put an end to what I believe to be, and what I warn your Lordships may become even more intensely, a great public misfortune, by the continuance, and the indefinite 1071 continuance, of this unhappy controversy. That was the broad point of view which I took in assenting to this compromise and I do not regret that I have done so.
§ Resolved in the negative, and Amendments disagreed to accordingly.
§ THE LORD CHANCELLOR
My Lords, I beg to move that this House do not insist upon their Amendment to leave out Clause 1.
§ Moved, That this House do not insist upon their Amendment to leave out Clause 1.—(The Lord Chancellor.)
§ On Question, Motion disagreed to: the said Amendment insisted on accordingly.
§ THE LORD CHANCELLOR
My Lords, the next two Amendments, and the Amendment to the Title are, I think,
§ On Question, Whether this House do agree with the Commons in their Amendments made in lieu of the Lords Amendment to leave out Clause 1?
§ Their Lordships divided: Contents, 19; Not-Contents, 99.1071
|Jowitt, V. (L. Chancellor.)||Crook, L.||Merthyr, L.|
|Addison, V. (L. Privy Seal.)||Darwen, L.||Morrison, L. [Teller.]|
|Hare, L. (E. Listowel.)||Pakenham, L.|
|Hall, V.||Kershaw, L.||Pethick-Lawrence, L.|
|Latham, L.||Rochester, L.|
|Ammon, L.||Lucas of Chilworth, L.||Shepherd, L.|
|Chorley, L.||Marley, L.||Walkden, L. [Teller.]|
|York, L. Abp.||Long, V.||Fairfax of Cameron, L.|
|Margesson, V.||Fairlie, L. (E Glasgow.)|
|Sutherland, D.||Monsell, V.||Goddard, L.|
|Portal of Hungerford, V.||Gorell, L.|
|Abercorn, M. (D. Abercorn.)||Samuel, V.||Greville, L.|
|Aberdeen and Temair, M.||Simon, V.||Hacking, L.|
|Cholmondeley, M.||Swinton, V.||Hailey, L.|
|Exeter, M.||Templewood, V.||Hampton, L.|
|Reading, M.||Trenchard, V.||Hatherton, L.|
|Townshend, M.||Hawke, L.|
|Ancaster, E.||Truro, L. Bp.||Hylton, L.|
|Bathurst, E.||Winchester, L. Bp.||Layton, L.|
|Beatty, E.||Llewellin, L. [Teller.]|
|Buckinghamshire, E.||Amulree, L.||Lloyd, L.|
|Fortescue, E.||Balfour of Inchrye, L.||MacDermott, L.|
|Howe, E.||Beveridge, L.||Mancroft, L.|
|Iddesleigh, E.||Blackford, L.||Monson, L.|
|Lindsay, E.||Brand, L.||Oaksey, L.|
|Lucan, E.||Braye, L.||O'Hagan, L.|
|Midlothian, E. (E. Rosebery.)||Broadbridge, L.||Remnant, L.|
|Radnor, E.||Brocket, L.||Rennell, L.|
|Rothes, E.||Broughshane, L.||Rochdale, L.|
|Scarbrough, E.||Cawley, L.||Roche, L.|
|Selborne, E.||Cherwell, L.||Rockley, L.|
|Selkirk, E.||Clanwilliam, L.(E. Clanwilliam.)||Rushcliffe, L.|
|Bruce of Melbourne, V.||Clydesmuir, L.||Savile, L.|
|Caldecote, V.||Courtauld-Thomson, L.||Schuster, L.|
|Camrose, V.||De L'Isle and Dudley, L. [Teller]||Shute, L. (V. Barrington.)|
|Cecil of Chelwood, V.||Simonds, L.|
|FitzAlan of Derwent, V.||Denham, L.||Stanmore, L.|
|Hailsham, V.||Denman, L.||Swaythling, L.|
|Harcourt, V.||Deramore, L.||Teynham, L.|
|Knollys, V.||Dowding, L.||Waleran, L.|
|Lambert, V.||du Parcq, L.||Wardington, L.|
§ consequential upon the Amendment upon which the House has just voted. I beg to move.
§ Moved, That this House do not insist on the Amendment to leave out Clause 58.—(The Lord Chancellor.)
§ On Question, Motion disagreed to: the said Amendment insisted on accordingly.
§ Moved, That this House do not insist on the Amendment at page 66, to leave out line 15.—(The Lord Chancellor.)1073
§ On Question, Motion disagreed to: the said Amendment insisted on accordingly.
§ Moved, That this House do not insist on the Amendment in the Title, line 1, to leave out from ("Act") to the second (" to ").—(The Lord Chancellor.)
§ On Question, Motion disagreed to: the said Amendment insisted on accordingly.
§ [The Sitting was suspended at ten minutes past seven o'clock, and resumed at a quarter to nine.]