§ 3.22 p.m.
§ House again in Committee (according to Order).
§ [The EARL OF DROGHEDA in the Chair.]
§ Debate resumed on the Amendment moved yesterday by Lord Llewellin to delete Clause 1 [Suspension of death penalty for murder].
§ VISCOUNT SIMON
At the beginning of the debate in this House on the Second Reading of this Bill, I intervened to make some observations, and one part of those observations dealt with this clause. I then tried to point out what I thought were some of the main questions which would have to be considered more fully when we came to deal with the clause in Committee. To a very large extent, the debate yesterday dealt with those questions from one side or the other, and I have no wish to go over the ground I have already covered. I have no desire or intention to repeat myself and I hope, especially in view of the large number of your Lordships who wish to take part in the debate, that what I have to say can be put into reasonably short compass. But there is one thing which I earnestly desire the leave of your Lordships to attempt. I should like to refer to some of the arguments which were used yesterday by speakers who are definite supporters of the clause now in the Bill under which the next five years are chosen as the appropriate time in which to legislate that there shall be no execution of a convicted murderer. It is very necessary to state one or two matters to your Lordships for your consideration before we let go without criticism that part of the argument as it was presented yesterday.
First, there is the question of the importance of public opinion in this matter. Your Lordships will have noted that in the course of the whole debate yesterday nobody, whatever his view on the clause, dared to suggest that the mass of public opinion was in its favour. Nobody did so. Indeed, in another place, when the Home Secretary came to deal with this particular clause, at the end of the debate, he used words to which I venture to call the attention of the House. He said:I am bound to say that in my conversations with people during the time since I spoke on the Second Reading of this Bill on November 27, I have found among ordinary 103 working-class people—in which I include salaried earners as well as wage earners—an increasing feeling that the time has not come for this reform to be made. I have been surprised, as my honourable Friend the Member for Wednesbury was, at the unanimity with which this feeling is expressed.I make bold to say that there is no prominent Minister in the present Government who has taken a leading part in this matter—not the Home Secretary nor my noble and learned friend, the Lord Chancellor, nor anybody else, who could tell us that his post-bag is not one, like mine, which is heavily weighed down on the side of rejecting this clause.
I do not recall a case in my political life in which the indications of the views of the mass of the people about a particular proposal have been expressed in so remarkably positive a manner. Of course, included in my own letters, most of which are from people I do not know, and which amount now to between 200 and 300, I do get some letters which argue this case patiently, and I am sure most conscientiously, from the other point of view, and I pay great respect to what anybody says from that point of view. But your Lordships may take it as an absolutely ascertained fact, whatever be the importance of that fact, that the great mass of our fellow citizens are against the enactment of this clause at this time. And it is very strange that some of the Socialists in this House should pay so little attention to public opinion, especially when the same view was most solemnly expressed on behalf of the Government by the Home Secretary and impliedly supported by all the leading members of the Government who supported him in the Lobby.
How is that point about public opinion sought to be met? It could hardly be disregarded. Something must be done about it. My noble friend Lord Templewood—and I speak of him not only as an old friend but with the most complete conviction of his conscientious straightforwardness—argued yesterday that in matters like the reform of our existing punishment, public opinion lags behind the enlightened view of Whitehall. I am afraid that, notwithstanding my noble friend's reference to his study of the history of this matter, I do not agree with him at all. In the old days, the very bad old days, it was the law of this land that anybody found convicted of 104 stealing property of the value of £5 in a dwelling house should be awarded capital punishment.
§ A NOBLE LORD: Five shillings.
§ VISCOUNT SIMON
Five shillings. I beg your pardon. I was not thinking of the present value. What was the result? The result was that again and again juries of the City of London, sober citizens who were there to take their part in administering the law, absolutely refused to convict such people. Again and again, expressing the view which they held and which the community at large held, they made it plain that if a punishment of that sort was to be inflicted for an offence of that kind, then you could not get the common people of this country to accept what was laid down. My noble friend Lord Stansgate, in his speech yesterday made that point (though not, I think, with this intention) when he said that it was through the common sense of these honest people that the excessive punishments which then prevailed were made ineffective. It was, of course, also due to the teaching of great men like Jeremy Bentham, and the advocacy of great Statesmen like Romilly. It is not true that public opinion in this matter lags behind the view which is taken by my noble friend Lord Templewood and others who support this clause. The plain conclusion to be drawn is that if punishments are more severe than a sober British public considers fair, then the accused will be acquitted.
How does that fact apply to the issue which we are now considering? It seems to me that this is the conclusion. The fact is that juries to-day, under the direction of an impartial Judge, do convict in the case of a clearly proved murder. In so far as they are a specimen of our population—and often they are a very fair specimen—they do not regard the punishment as excessive, though I am quite sure that many of them deeply regret that they have to play their part in a murder trial where a man is convicted. Everybody who has any practical experience of our criminal courts in these days—and, if I may say so, I have had a considerable experience of them—knows that a jury are very willing to give every legitimate weight to any doubt, and knows also that every Judge directs a jury that they must not convict unless they are satisfied beyond all reasonable doubt. Yet the fact 105 remains that the juries of this country, under the direction of a wise and impartial Judge, do convict, notwithstanding that the punishment that may follow is so dreadful. I think public opinion has a good deal to do with the trend in this matter. How many times have I heard the members of a jury called upon solemnly one by one to declare that they willwell and truly try, and true deliverance make, between our Sovereign Lord the King and the prisoner at the Bar";and how often have I noticed the firmness and the sense of duty which in fact inspires our sober population when it is called upon to deal with a murder trial. I think it is a remarkable testament to the sense of duty of the ordinary citizen; though, of course, it is a horrible thing with which to be concerned. It seems to me that you will find that, while allowing for every benefit of the doubt, where the case is clearly proved the jury will convict.
The next reflection is this. There is, in my opinion, a very great danger in running ahead of public opinion on this matter. The most reverend Primate the Archbishop of Canterbury mentioned the point yesterday He spoke of the risks we, might be incurring of men or mobs taking the law into their own hands, which is a thing practically unknown in this country. Just suppose that this clause becomes the law of the land, and the law of the land at the present time. Suppose that a series of shocking murders are committed—attacks on small girls in terrible circumstances, leading to their violent death. Suppose that after half a dozen such cases have occurred the man is found. My Lords, are you so sure that the undoubted devotion of this country to law and order will guarantee that we shall not have in this country a revulsion of feeling which, as the most reverend Primate said, will cause some people to take the law into their own hands? If anybody challenges that, let him reflect on the history of lynching. That detestable crime, so far as it can be not justified but explained, is due to the fact that there are populations in certain parts of the world who think that the wheels of the law roll round so slowly, and that the conclusion is so uncertain, that they must take the remedy into their own hands. In my view, society has made a contract with the private citizen who is deeply aggrieved because one whom he loved has 106 been murdered. Society says to that man: "You must restrain your action; you must give up all idea of private vengeance; you must leave it to the just administration of the law, and we will see that the convicted murderer is duly and effectively dealt with." I must say I am deeply impressed with the feeling that in this matter, and particularly at this time, we are running a great risk in that regard.
I heard my noble friend Lord Merthyr yesterday—in a very well argued speech, if he will allow me to say so—repeat what had been said, to my great regret, by the noble and learned Viscount the Lord Chancellor when he presented the Bill to this House. He said that, after all, this was an experiment, and why should we not try the experiment?—that nobody would ever know whether the experiment would succeed unless we tried it. We are not talking about vivisectionists asking for another dozen guinea pigs to ascertain whether or not a particular drug will work. With whom are you going to conduct this experiment? Who are the people you are going to expose to this experiment? Not, I dare say, those of us who live in security, but the mass of the people of this country—women who at this hour fear, as they never feared before, the knock at the door after dark, and who have some reason to fear it. For my part, I decline altogether—as, indeed, was said by the noble Lord, Lord Lucas, yesterday—to treat this as a matter for experiment. We must have stronger grounds than that before we undertake to expose other people than ourselves to a risk which undoubtedly might arise.
So much for public opinion, except that my noble friend (he will probably call himself a very old friend) Lord Stansgate yesterday endeavoured to get rid of the public opinion argument by laughing at the Gallup Poll. I do not know exactly what a Gallup Poll is, but I do know a little of the scientific use of group measurement, and I doubt very much whether my noble friend has studied the scientific side of this matter quite so much as he should. Of course, if you casually take 10,000 people and simply ask them one after another what is their opinion about this or that, the results you obtain are of practically no value. But the modern method of carrying out group testing is very different from that. I presided at one time over the Commission on the Population. 107 It is still continuing, but I am no longer directly concerned with it. Constantly this method—which is a recognised scientific method—is employed. It all depends, of course, upon choosing the group accurately. You must choose them so as to get the proper balance in ages, the two sexes, the level of life, and the different parts of the country; and in so far as you do that it is remarkable how the conclusion reached from a well-chosen sample may be treated as an indication of the whole. It is a perfectly well known modern method, employed by every modern statistician in a hundred different ways.
§ LORD AMWELL
May I ask whether the noble and learned Viscount would substitute that method for Parliamentary democracy?
§ VISCOUNT SIMON
I certainly would not—and for this reason. I think that for Parliamentary democracy every adult citizen is entitled to an equal vote, but I do not know that there is any particular reason for saying that is necessary for the purpose of ascertaining what is public opinion on a particular subject.
§ VISCOUNT SIMON
I know of no reason why it should not be employed. The Daily Telegraph experiment—which the newspaper did not conduct; it was conducted by skilled statisticians—aimed first at building up a true sample. Those responsible for it did not ask the man in the street. They built up a true sample and, having secured as they thought a sufficient number of people for the purpose, they put to them a perfectly colourless question without any sort of leading bias in it. It is remarkable, when you examine the figures, using every known way of combining them, how you get a conclusion that 69 per cent, of the people in the sample were definitely against this clause, and some 15 per cent, definitely in its favour.
I have said all I want to say on the subject of public opinion, and now I come to the new White Paper, for the production of which thanks must largely go to the suggestion made by my noble friend Lord Templewood on Second Reading. I must 108 say, however, that the deductions which he drew from the White Paper filled me with surprise. They evoked criticism immediately from the noble Lord, Lord Oaksey. My noble friend Lord Temple-wood said: "Look at Part I of this White Paper. It shows you, in outline, at any rate, the future record as regards crime of 112 persons who have been convicted of murder and were then reprieved." He claimed that the statistics showed that on the whole these persons had made good. One of them, it is true, had committed another murder, which was unfortunate; and five others had committed other serious crimes. But I think he was justified in saying that on the whole these 112 persons might claim, as a group, to have made good. But what has that to do with the questions your Lordships have to decide? The people whose future career is thus reported upon were all people who had been reprieved. They were all people who the Home Secretary of the day had thought ought not to suffer the extreme penalty, but who ought to be given this minor punishment—serious as it is—of imprisonment. It went on to show that, on the whole, the Home Secretary had acted wisely. But it has no bearing whatever upon the question as to the extent to which the really monstrous murderer, the utterly bad and depraved murderer, may be expected to be either reformed or converted if we substitute a term of imprisonment for the actual execution.
While on the Report—and I have no wish to be annoying to my noble friend, who is an old colleague—I think the House ought to be informed of another matter. This Bill, apart from Clause 1 which we are now discussing, is in substance, although not in exactly the same form, the Bill which my noble friend Lord Templewood, as Sir Samuel Hoare, introduced in a Government of which we were both members in the year 1938. It did not contain anything like Clause 1. My noble friend, as Home Secretary, was in charge of the Bill. The Bill went into Committee upstairs, in another place, and certain Members of the House moved a new clause. The new clause and the new clause which we are now discussing, were as like as two pins. That which was moved in 1939 provided that, for the next five years, there should not be any executions for murder. It was quite within the scope of the Bill, just as 109 this clause is within the scope of this Bill, but I hope I do not wrong anybody if I call attention to the words which my noble friend then used about this proposal, with his responsibility as Home Secretary.
What my noble friend said, on April 28, 1939, was this:If capital punishment is to be abolished or suspended, it should be abolished or suspended after full consideration, in a Bill devoted to that very serious subject, and to nothing else. It is exceedingly difficult to deal with a question of such immense importance as one of 80 or 90 different Clauses in a Bill which is not really intended to deal with the question at all.The present Bill consists of 79 clauses. He, of course, was speaking of his own Bill, which is in other respects very much on the lines of the Bill now before us. My noble friend went on:Apart from that consideration, I want to say as seriously as I can that I am not prepared to advise any experiment of this kind.This is before the war—I draw a clear distinction between wilful murder and all other crimes. I can conceive that in the case of other crimes there may be a strong argument for an experiment such as is suggested in the new Clause,"—this is the Lord Chancellor's experiment—but I am not prepared to take the risk of experimenting in a matter so serious as wilful murder.My noble friend went on:…if at any time in the future it comes to the moment when we either modify or abolish the present Statute law, that change ought to be undertaken with full consideration in a Bill specially devoted to this serious subject.I am the first to recognise that whatever views my noble friend holds now—and he expressed them very clearly yesterday—his change of mind is due to nothing except conscience. I am entitled to say, and I say now, that there is no living person who has ever held the office of Home Secretary who when he was Home Secretary did not think it a dangerous clause which ought to be rejected.
§ VISCOUNT TEMPLEWOOD
I hesitate to interrupt the noble and learned Viscount, and the last thing I wish to do is to say anything that would annoy him. But I must say two things. First, I expressed very clearly during the Second Reading debate what I thought was the proper way of dealing with this question; 110 that is, in a special Bill. Secondly, I must point out that the words of mine which the noble Viscount has quoted were spoken nine years ago, before we had had the advantage of witnessing the experiments made in other countries. I claim that the experiments that have taken place in foreign countries fully justify the change of view that I have expressed during these debates.
§ VISCOUNT SIMON
I am sure the noble Viscount had reasons, and I am glad he has expressed them. It will be for other people to decide whether they have suffered the same "sea change." But if this was a proposal that, from the point of view of the Home Secretary, ought to be rejected before the war, before we had started training people to kill, before it had become an art for men to learn how to blacken their faces and leap on somebody and kill him when he was not expecting it, before we had a large number of deserters still at large in the country or had so large an illegitimate distribution of arms, it would certainly be difficult to maintain that circumstances now are such that it becomes a necessary and reasonable reform. Your Lordships will judge; I merely put the point before you for consideration.
As for the experiments in other countries, I must point out that the date of the Report of the Committee on Capital Punishment was 1932. That was seven years before my noble friend made his observations. Whatever be the importance of the experience drawn from foreign countries, it was an experience which was known before ever my noble friend introduced his Bill. I myself do not attach as much importance to these experiments in foreign countries as do some other people; I think it is difficult to be sure that conditions are sufficiently the same. So far as the House of Commons debates are concerned, I have studied them more than once, with the greatest attention, and with regard to the discussion on foreign countries, I do not feel that many people realise what kind of punishment has been substituted for capital punishment in those countries. In Italy, I believe, in the case of a murderer, he was put in solitary confinement for ten years, as a start; after that, under the conditions which prevailed in Italy, he continued to be a convict, indefinitely—perhaps for life. I do not believe that 111 either public opinion or Parliament in this country will ever be prepared to tolerate as civilised an alternative punishment which puts a man in solitary confinement for ten years. That is the Dreyfus method; it is the Devil's Island; it is contrary to everything which we have been led by experience to believe to be the proper use of imprisonment.
We cannot deal with cases of "monsters," as one noble and learned Lord described them yesterday, in the same way as we deal with reprieved murderers; we cannot give them the hope that after some years of imprisonment they will be able by good conduct to earn their way out. They cannot be encouraged to have photographs of their wives and their children in their cell and to think of the days when they will rejoin them. They are going to be condemned for an indefinite period to what I believe would be a barbarous form of imprisonment. I do not believe that our people will think that such a change is for the better.
Now, I come to a question which has greatly troubled me: it concerns what is to be done in the meantime. Of course, the decision of the House of Commons was a surprise to the Government; they hoped that there would be enough Members of the Opposition to see them through. The Government were put in a great difficulty. But the way in which they have dealt with the difficulty is, to me, entirely astonishing. As the noble Viscount, Lord Samuel, asked yesterday, how can a man say on a Tuesday—a man who is an important member of the Government—that he is conscientiously convinced, by experience, by advice and by sustained thought, that it would not be right to pass this clause, and then say on the Thursday that, in view of what has happened, everybody—himself included—must vote for it? It seems to me quite clearly to be a case in which numbers of people are prepared to act contrary to their conscience. But it goes beyond that. Immediately the decision had been reached in the other place the Home Secretary announced that nobody who was then under sentence of death, whatever the circumstances, should suffer execution, but that all should be reprieved. I am not sure if the first to be reprieved after that was not that miserable steward who pushed a woman's body 112 through a port hole. I am not quite clear, and I wish to ask the noble Lord who is to reply, exactly what this announcement means. Does it apply to people who commit murders after the House of Commons have passed this clause? Is an assurance to be given to any prospective murderer: "If unhappily you are led to murder, of this be assured; the Home Secretary will never let you hang." This matter may be before Parliament for a considerable time; but unfortunately murders are not uncommon these days. Some noble Lords may have read in their newspapers this morning of a case which is now being investigated, of men who broke into the house occupied by a woman who was believed to be rich and was known to be solitary. They stuffed her body into a trunk, left it there in the hall and then proceeded to rifle the contents of the house. Are these people to receive an assurance from the Home Secretary to some such effect as: "Oh well, you will not be hanged, anyhow"?
I want to ask the noble Lord opposite a very simple question. Does he agree with me that when a discretion is granted to a person to decide a particular case, by reference to particular facts, such a person has no constitutional right to announce—and to announce in advance—that whatever may be the circumstances, in principle people are all to be treated in the same way? I never heard of such a thing. Many of your Lordships are practising justices. Whoever heard of justices in licensing sessions, who have a discretion to consider the circumstances as to whether they will grant a new licence or not, announce from the Bench through their chairman: "It may be a convenience to everybody to know that we are never going to grant a new licence, whatever the circumstances." Anybody who did that would be dealt with by the Lord Chief Justice in the Divisional Court within a week, and he would soon know the result. Where one is given a responsibility which one has to exercise in view of the circumstances of the particular occasion, one has no right whatever publicly to announce that one does not intend ever to exercise that discretion except in one way. Suppose that the Home Secretary, instead of taking this course, had said: "I shall announce that henceforth nobody will ever be reprieved." What would happen then? The whole thing seems to me to raise a very serious Constitutional question.
113 I do not desire to detain your Lordships longer except to say that, looking at it as well as I can—though I must admit with a view strongly in favour of getting rid of this clause—and after listening to, reviewing and weighing the arguments as well as I can, it seems to me that the strength of the arguments against this clause since it was first put into the Bill has greatly increased. As I have said, the debate in another place, so far as I can see, showed no realisation at all that if we get rid of capital punishment we must then devise an entirely new system of imprisonment, much harsher, much longer. It is quite contrary to everything which has been the teaching of prison reformers for the last forty years. The very language of the clause seems to say: "Oh, it is quite simple; substitute for capital punishment imprisonment for life." I am convinced that a great many people in this country, when that was first proposed, believed that imprisonment for life really was imprisonment for life. As I said on Second Reading, there is no such thing in our present administration as imprisonment for life. There is no imprisonment for life, however grave the crime may be. Imprisonment for life has long since passed from our practical administration and it is largely due to the teaching of a man whose name I think has been used most unhappily in this discussion—Sir Alexander Paterson.
§ VISCOUNT SIMON
Do not let us make accusations. Let us see where we stand. The noble Lord twice interrupted the noble Lord, Lord Llewellin, when he made this observation. I will give him something upon which to reply to me on this subject before I have finished. Sir Alexander Paterson was a man who taught at the Home Office that, after so many years, penal servitude or imprisonment did not do a man good but did him harm, and that the great thing was, wherever possible, to reduce that sentence of imprisonment to a minimum. The figures which the noble and learned Viscount the Lord Chancellor gave me, if they are analysed, as indeed they were analysed in a well-argued speech by the noble Lord, Lord Blackford, yesterday, show that, as things stand, reprieved murderers get out of prison in something between eight to ten years. I suppose nobody suggests that the worst kind of murderer who is now executed is going 114 to be dealt with in that comparatively lenient way. Yet I feel quite sure that there were a great many people who at first thought that imprisonment for life meant literally what it said and that that was, therefore, a proper substitute.
I should like to say one word about Sir Alexander Paterson. I do not claim to have known him very well, although I did know him and often had occasion to see him on the Prison Commission. I know this: that those who claim to have known him very well do not accept at all the statements suggested about him. My noble and learned friend Lord Roche, who knew him extremely well, said that in terms. The inquiries that have been made at the Home Office and by the Prison Commissioners do not in the least confirm those suggestions. Of course, the original statements about him, which I have not the slightest doubt swung people just before the Division, were untrue. But the substituted explanation afterwards was, it anything, worse, for it was a suggestion that this man, who had spent his life in trying to reform our prison system, because he thought that our prison system was improved on his lines and because also of what is called the Wakefield experiment, had changed his views as to the necessity for hanging the worst murderers. I happen to know something about the Wakefield experiment. It was entered upon before Sir Alexander Paterson gave his evidence before the Commission. That he said that he had changed his view as to the disastrous effect of unduly long imprisonment, and declared that that would be a better thing, and that he was wrong in his evidence before the Commission, is more than I can swallow. Of course, everybody is entitled to form his own opinion upon the second-hand statements that were made. Sir Alexander Paterson was not a recluse. He was not a gentleman who sat reflecting over these things and never telling anybody his thoughts. He was a practical reformer, and if he never told anybody in the Home Office or anybody on the Prison Commission anything of the kind, I am afraid I think the testimony of the gentleman who suddenly excused his inaccuracy is not testimony which I can prefer.
As I see it, and if I may say so most respectfully to the Episcopal Bench, it does not seem to me that this is a matter 115 upon which it is easy to decide not to vote at all. The question is a simple one. It is: Are we going to put this clause into the Bill or not? That is a matter upon which we shall decide by a Division. I do not propose to detain your Lordships longer than to say that in spite of every desire to be satisfied or influenced by arguments to the contrary, with the detestation that I have of the work which I had to perform twice as Home Secretary, and which I carried out as well as I could, and with the greatest desire to find reasons why these wretched people should be reprieved, I have heard nothing here which alters the conclusion to which I now come when I assert that this clause ought to be rejected by our vote.
§ 4.08 p.m.
§ LORD GODDARD
If I may intervene for a few minutes in the debate, I do not propose to travel again over the ground that I covered on Second Reading. However, there are some matters which have arisen since then that I should like to bring before your Lordships to-day. In the first place, not having had the advantage of knowing the poor opinion which the noble Viscount, Lord Stansgate, held of the Judges, I ventured to take their opinion. I had an opportunity to find out what their views on this question were. There are twenty Judges of the King's Bench Division, and I am bound to say that I thought and think that they do represent a fair cross-section of the community. Quite apart from their learning and experience, they are men of varying shades of political and social thought, and they do not all belong to the same denomination of religious thought. After all, the Judges do come face to face with the murderers and therefore have an opportunity of forming an opinion on the sort of subjects with which your Lordships' House are now concerned.
The noble Viscount told us that the Judges did not know the houses from which the murderers came or their environment, or even if they were born during an air raid. I imagine that he was thinking of World War I, because I have not yet met a murderer aged eight years. But I take leave, with all respect, to tell him that these men come from 116 every walk of life, and from every class of home. We know that because we have to deal with them. I had some difficulty in following his argument on this point. If he means that we were not to punish any man because of his unfortunate or unhappy environment I can follow him, but I cannot agree with him. I should rather put to your Lordships that murder is a crime sui generis—it stands by itself; and the man who commits the supreme crime should pay the supreme penalty.
Whilst mentioning the Judges, may I briefly deal with a question which has already been touched upon by the noble Viscount who has just addressed your Lordships? At the present moment, the law of the land is that a person convicted of murder should suffer death as a felon. I have always understood that the honourable tradition in England is, that if one does not like a law one does one's best to get rid of it; but one obeys it until it is altered. At the moment, when a man is convicted of murder, a Judge has no option but to pass sentence of death. Trials for murder are going on now. There have been several such trials since the Second Reading debate, and the Judges are out on the circuits now. Every Judge has to pass sentence of death, because that is the only sentence which the law of to-day, which will remain the law until it is altered, requires.
Side by side with that law the Crown, by the Common Law of the Realm, has always possessed the prerogative of mercy, which is now exercised on the advice of a responsible Minister. I say without fear of contradiction that, certainly for the last 150 years, and probably for longer, that prerogative has never been exercised except with regard to the particular facts of the particular case. It was therefore with some surprise that I not only saw announced in the newspapers but received official notice from the Home Secretary—and by this I can answer the question which Lord Simon put a moment ago—that he proposed in future to reprieve all murderers, and suggested to me what I had already been informed of through the announcement in the newspapers before I received his letter—namely, that I should suggest to the Judges an alteration in the form of the death sentence. It was in fact an announcement to the world that not only would those then under sentence of death be reprieved, but that all future[...] murderers would be reprieved.
117 I speak merely as a lawyer, but Judges are, after all, concerned with the constitutional law of this Realm. I venture to submit to your Lordships, I hope without risk of being accused of exaggeration, that that is exercising a dispensing power which has been repudiated by Parliament ever since the days of James II. Such a situation is enshrined, in fact, in the Bill of Rights. Action of this sort is declared to be illegal. And if this is not altering the law by administrative action, I do not know what is. In view of what we were told, I thought it right to suggest to my brother Judges that we should alter the traditional form of the death sentence, and especially that we should omit from it that prayer which has accompanied the death sentence for centuries—namely, that the Lord may have mercy on the prisoner's soul; for apparently the Home Secretary has decided to anticipate the Almighty. We could not pass that sentence when we were told that every murderer, in any circumstances, would be reprieved.
There have come to my personal knowledge four cases where the reprieve has been given in accordance with what is now to be the general policy. First, there is the Staines murder, where a gipsy murdered an old man who had stupidly displayed a bundle of notes in a public-house. The gipsy (as he said) accompanied him home, murdered him on the Common and threw his body into a ditch. Secondly, there was the case that my noble friend referred to a moment ago—that of the steward who murdered the young woman on a liner and threw her body into a shark-infested sea. Thirdly, there is the case of a police constable who was shot by a burglar; and then there was the case of the unfortunate old watchman who was battered to death in a cinema. These men are now all reprieved. What is to happen if this clause does not become law? Are these reprieves to continue? This clause is yet not law; it may never be law—I certainly hope it will never be law. And if it is not, it seems to me that murderers in the future may have a legitimate grievance. They may say, "Why is it that I am now to be hanged? Why is the law to be put into force against me when, before the law was altered and when the law was that murderers should be hanged, these people, who it was never suggested were insane or anything of that 118 sort, should be let off the capital sentence?" It is not too much to say—and I say this with due sense of its importance—that this raises a most important constitutional issue.
I want now to turn to another point. Whether the present outbreak of crime is due merely to the war, or whether it is due to a general slackening in discipline and sense of responsibility, is a matter upon which perhaps there is room for more than one opinion. I think it is due to both causes. What is not open to question is, that never in the last hundred years has there been such an outbreak of crimes of violence, accompanied, usually, by lethal weapons. It may be comforting to say "But that is the result of the war; that is the result of putting all these people into the Army," and so forth. Let me just read what the noble Viscount, Lord Stansgate, said yesterday:You cannot have commandos, people smearing themselves with blood and dancing about with bayonets, without degrading the moral sense and reducing respect for human life.In justice to the commandos, I want to say that, in the two and a half years that I have held my present office—which involves my being President of the Court of Criminal Appeal—I suppose that at a low estimate, I have had at least 500 or 600 cases before me. Naturally, many of those, perhaps the majority, have had some service; in the Army during the last war; but until last Monday week not a single case of a commando had ever come before my court. That is not only my own experience. I was told the same thing by one of His Majesty's Inspectors of Constabulary——
§ VISCOUNT STANSGATE
Will the noble Lord excuse my interruption? He misunderstood me. I was not attacking the Services. I was referring to what, in my opinion, was the general degradation of character which came from that type of training.
§ LORD GODDARD
I was going to give the inference that I drew from that matter. The commandos, no doubt, were hand-picked men, but they were subjected to a strict and rigorous discipline. I believe that they have profited by that discipline, and have brought it into their lives and, therefore, before Lord Stansgate interposed, I was going to say that I thought it was not true to say this outbreak of 119 violence was due to the people becoming accustomed to the use of lethal weapons. It was due primarily to the breakdown in discipline, which, I think it is right to say, pervades all classes of the community at the present time.
I have told your Lordships what I feel about that point, and I wish now to deal with two arguments which were adduced yesterday, at least one of which bears on what I have just been saying. The noble Lord, Lord Merthyr, in a speech to which I listened with the greatest attention, pressed for this experimental period. I am bound to say—and I think it was said by some of your Lordships in the debate on the Second Reading—that if once you abolish the death penalty it will be impossible to re-impose it. Certainly, nothing except some great political assassination, I think, would move Parliament to re-impose the death penalty once it had been removed. The difficulty, I believe, would be too great. Of course, I may be wrong. But I do say that if you are going to make the experiment, this is not the time to make it. Can any member of your Lordships' House pick up his newspaper any morning without seeing a report of some crime of violence—all too often the crime of murder? The noble and learned Viscount, Lord Simon, referred to what he saw in the paper to-day—a report about the battering to death in her house of a woman of eighty-nine. If he had turned to another page he would have seen a statement—it may not turn out to be true, but, apparently, it is true—about the police finding two ladies bound and gagged in a flat at South Kensington. These are the sort of things that are going on at the present time. Is it a safe time or a proper time to carry out an experiment which must mean gambling with the lives of people?
I agree with Lord Merthyr cordially on one point. He said that it would make juries more ready to convict of the crime of murder. I think he is quite right in that respect—I think they would be more ready. Once they know that there is little distinction, if any, between murder and manslaughter, they will not give their anxious and careful attention to cases as they do at the present time. Judges, as I have said, are already out on circuit. Murder trials are proceeding at the present moment, and reports have been sent to 120 me. Before I left to come here to-day my brother Birkett mentioned one matter to me which seemed to indicate that already, because of this announcement by the Home Secretary—for there is no other reason—juries seem to be losing a sense of the great responsibility which they felt, and to which the noble and learned Viscount referred a few moments ago.
In a case at Worcester Assizes the other day a man was charged with the murder of his wife. There was a good deal to be said on his behalf on the ground of provocation. Counsel for the Crown in his speech opening the case indicated to the jury that they could return a verdict of manslaughter. The learned Judge, summing up, left the question of manslaughter as well as the question of murder to the jury. In less than ten minutes after retiring, the jury were back with a verdict of murder. That could never have happened, I believe, if it had not been for this announcement about reprieve. In all my years at the Bar or on the Bench I have never known a jury to come back, certainly in less than half an hour—and generally it has been nearer an hour-and-a-half—in a case where the question of murder or manslaughter had to be considered. Indeed, if this clause is to become law, I seriously believe that we ought to consider whether or not to abolish the distinction between murder and manslaughter, make the offence one of culpable homicide, and leave the sentence to the court. That is a suggestion which I throw out. As things are at present, I am certain that juries will not have the anxious sense of responsibility in saying whether a conviction should be for the supreme crime or for the lesser crime of manslaughter. Some individuals who might possibly be convicted of the lesser crime I believe will be convicted of the more serious one.
The other matter to which I would like to refer was the matter dealt with on the Second Reading by the right reverend Prelate, the Bishop of Truro, and yesterday, to some extent, by the most reverend Primate, the Archbishop of Canterbury. And may I take this opportunity of saying a word of apology to the right reverend Prelate the Bishop of Truro, for I fear that he may have thought that a sentence I used at the opening of my speech on the Second Reading—it was perhaps due to a little 121 nervousness which I felt on addressing your Lordships for the first time—sounded discourteous to him. I am conscious that it was, perhaps, an ill-timed pleasantry and that I should not have said it. I said that I was not going to follow him in all his bloodthirsty suggestions. I did not mean it in any derogatory sense, and I desire to apologise to him for having put it in that way.
The right reverend Prelate pointed out, as did the most reverend Primate yesterday, that there are many cases such as attempted murders which are even worse than the actual murder which carries the capital sentence. I agree with that statement wholeheartedly. I also agree that it does not seem logical that if one man fires a revolver at another and kills him he should be sentenced to death, while if another man does exactly the same thing but, by reason of some miracle of surgical skill, the victim's life is saved, the man who did the shooting should be charged only with the lesser offence, which does not carry the death penalty. The answer, I think, is this. Principles of law are not always ideally just and ideally logical. But a line has to be drawn somewhere. The law does take account—some great jurists think it takes too much account—of consequences. But, as I say, a line must be drawn somewhere. I believe that, as a good practical method, you can draw it only by saying that murder shall carry the charge for one offence, while attempted murder shall carry the charge for a less serious offence. It may be that some people honestly believe that other offences beside murder should carry the capital sentence. Many people think that second and third convictions for rapes of children—which, unhappily, are not unknown—are quite as bad and even worse than the actual taking of human life, it may be in a moment of passion. But it is too late to consider that matter now. I most heartily agree with many of the remarks made from the Episcopal Bench on that point, but I think we have to take the law in that respect as we find it, and that it cannot be altered.
I desire to say only one further word in conclusion, and it is this. I have heard and seen reports from various quarters that there may be an effort at some future stage of the Bill to effect a compromise. I hope that your Lordships will stand firm 122 in accepting this Amendment and rejecting the clause, and, if you do, I am bound to say that I hope you will also stand firm in rejecting a compromise. I say that for this reason. I believe, with all my heart, that our present system, under which the Secretary of State reviews every case which comes before him, has worked well in the past and will work well in the future. The noble Viscount, Lord Samuel, made a suggestion yesterday that it might be desirable for the Secretary of State to call in two or three Privy Councillors to assist him in his arduous and difficult task. As Lord Oaksey pointed out yesterday, he can now call in every one of his permanent officials. And he does call in his permanent officials. I believe that Lord Samuel's suggestion is a very valuable one. But, however experienced those people are, however high-minded, however anxious to do that which is right (as they always are) if you always consult the same officials, there is perhaps a danger—I only say "perhaps"—of the matter becoming in some way standardised. It might be better if the Home Secretary consulted—as he could without statutory permission—other persons, such as the noble Viscount, Lord Samuel, suggested.
I would remind your Lordships that down to the reign of George IV the Privy Council met every month to consider what was then called the Recorder's Report. This Report was sent from the Old Bailey to the King and contained the names of prisoners who had been sentenced to death, recommendations for respite and recommendations for those left for execution. It was considered by the King in conjunction with his Privy Council before the death warrants were signed. Exactly when that system came to an end I do not know, but it certainly was before the reign of Queen Victoria. Perhaps when the Queen came to the throne it was not thought right for a young woman to undertake that duty, which has ever since devolved on the Secretary of State and has been discharged, if it is not impertinent to say so, most admirably. That ought to continue. It is better than any form of compromise. And what are the forms of compromise? Are we to say that murderers of a police officer or of a prison warder shall be punished by death, but not others? While I would 123 do everything I could to protect prison and police officers, the lives of others of His Majesty s liege subjects are at least as valuable as theirs. Or are murders to be divided into first degree and second degree, as has been done in some of the States? I do not envy the task of a Judge who has to sum up on such a matter as that, or of a jury who have to come to a conclusion. I know that in at least one State in America, in which people are not slow, I am told, in "doing a quick draw," there has not been a conviction for murder in the first degree since the law was altered to include first and second degree murders. I think it is much better to leave the law as it is. I am no believer in the maxim vox populi vox dei. I agree with a good deal which is said about that. But I also think that if the criminal law of this country is to be respected, it must be in accordance with public opinion.
§ 4.33 p.m.
THE LORD BISHOP OF CHICHESTER
It is a formidable task to follow two speakers who have spoken with such power in favour of capital punishment. It is obvious that their speeches, like the speeches of the noble Lord, Lord Oaksey, and others yesterday, from a judicial and legal point of view, have made a profound impression. I do not underestimate their authority. But I am sure that I can rely upon the sympathy of this House if I venture to put another point of view. The problem is not a simple one. The ordinary man outside Parliament dislikes facing it. Not unnaturally, without studying the evidence in favour of abolition, and in a very right abhorrence of murder, he prefers to leave things as they are. The noble and learned Viscount, Lord Simon, paid some attention to the Gallup Poll. I am glad that the noble and learned Lord the Lord Chief Justice deprecated too much attention to public opinion, as opposed to the public conscience. Public opinion is important, but in estimating its value in a particular situation, we should be sure that it is well informed and has the proper evidence before it.
This capital punishment survey, conducted by Mass Observation, asked two questions. I would remind your Lordships of what they were:Have you heard that the death penalty for murder is going to be given up for five years?124 That is not a true question, because it is only a proposal at present. Next:How do you feel about it being given up?Here there is no reference to the mind, the conscience or the judgment. And there is no third question, which is the most important of all in such a case—namely: Have you heard the evidence in favour of the proposal? After long consideration, and at times there has been much perplexity, I have been driven to the conclusion that it is right to abolish capital punishment. And I think it is my duty to give your Lordships the reasons why. I do not hold that it is never in any circumstances legitimate for a State to take human life, but I wish to urge that the retention of capital punishment now, in peace time, in Great Britain is an unnecessary violation of the principle of the sanctity of human life; that it is open to grave objection on moral grounds, both in itself and in the circumstances of its execution; and, thirdly, that the experience of the abolition of capital punishment in those foreign countries which have tried it is unfavourable to its retention as a deterrent.
John Bright said that a deep reverence for human life is worth more than a thousand executions in the prevention of murder and is, in fact, the great security of human life. For the State to take a murderer's life because he has violated that principle is but doing so much to weaken the reverence for the principle of the sanctity of human life. It also savours of retaliation—the principle, that is, of: Life for life, eye for eye, and tooth for tooth. Reference has been made to that text on one or two occasions. Your Lordships have to remember that when that sentiment is quoted in the New Testament by Our Lord, it is qualified by the words: "It was said by them of old time, but I say unto you…" The Christian Church was a pioneer of the mitigation of the severity of barbarian and feudal law. In so doing it was true to the teaching of its Founder. Whatever may be our views of other aspects of the case for and against capital punishment, we must admit that it was a deep sense of the inviolability of human life and hope for the redemption of the murderer that inspired such great, eminent and representative Christian teachers—some of them Christian statesmen—as Saint Augustine, Saint Ambrose, 125 Saint Bernard, John Wyclif, and, coming to our own time, William Temple, in their unceasing opposition to capital punishment.
The use of capital punishment is open to still further moral objections. First, take the criminal himself. To resort to capital punishment when there are other means by which society can signalise its repudiation of a horrible crime is a confession of failure. Sir John Anderson said in another place that there is:no longer, in our regard of the criminal law, any recognition of such primitive conceptions as atonement or retribution.Well, there is certainly no concern with reformation of the criminal in sentencing him to death. So far as he is concerned, society is completely defeated. Again, capital punishment takes upon itself the nature of an irrevocable act. The evidence for murder is often circumstantial, and there is the risk of grave injustice. The late Lord Chancellor, Lord Buckmaster, in the evidence which he gave before the Select Committee, referred to the cases of Oscar Slater and Habron, both well known cases of men reprieved. He spoke of others who had not been reprieved, though he did not give their names. Another Judge, Lord Shaw of Dunfermline, has given a detailed account of what he termed "doom by mistake," in the case of Doherty of Rutherglen, in which he served as junior counsel. He concludes by saying:From that hour to this I have ceased to believe in the punishment of death. Cases, in the intervening years, have occurred which have deepened my conviction. Every human judgment is mingled with human error, and in the issues of life and death no Judge should be charged with an irreparable doom.There is another consideration, from the moral point of view. The Lord Chief Justice reminded us that he and other Judges are face to face with the murderer, and he has described the effect on the Judge, the jury and the people in court of the sight of the murderer—a human monster he may be—and of the grim unfolding of the details of a horrible crime. That is caused by the murder itself. But consider the effect of the whole circumstances of the verdict and the execution on the prison officers, the prison population, the relatives, and others whose duty brings them near the sentenced criminal. There was a famous preacher, Frederick Robertson of Brighton, who was once chaplain to the High 126 Sheriff of Sussex. He had to witness a murder trial in 1852. He expresses his horror of the murder and the circumstances in which it was committed. But then he turns to the verdict and the sentence, and he says:Baron Parke put on the black cap. The poor woman, with burning cheeks and eyes as brilliant as fire with excitement, was held up between two turnkeys to receive her sentence. 'My Lord,' said the clerk of arraigns, 'you have omitted two essential words; you did not say what death she is to die.' So the fainting thing was held up again, and the last sentence of the award repeated with, the words, 'hanged by the neck.' I felt as if I were a guilty man in sitting by to see a woman murdered.He adds:The impressions of last week will, I think, reverse for ever all my intellectual convictions of the need and obligation of capital punishment.I think we should have some regard to the agony of the relatives, and to the ghastly torture of expectancy amongst the prison population for the twenty-four hours, or longer, in which they are awaiting the execution. We should also remember that those who are charged with this painful duly regard themselves very often as soiled men. Lazell, the chief warder at Wandsworth, on retirement in 1924, at the end of a long experience, committed suicide. Ellis, the executioner of Mrs. Thompson and other murderers, attempted suicide in 1923. Dr. James Devon, a former medical officer of His Majesty's Prison at Glasgow and a member of the Scottish Prison Commission, said:I have never seen anyone who had anything to do with the death penalty who was not the worse for it…As for the doctor who must be in attendance, it is an outrage on all his professional as well as his personal feelings… There has never (for many years) been any pretence that the executioner's occupation is not a degrading one.A governor of a prison, after an execution said:If only the advocates of capital punishment had to carry it out, they would soon change their minds.As we reflect on these circumstances, I find it difficult to discover what my brother and friend, the Bishop of Winchester, said was "a quasi-religious sense of awe" hanging about the death penalty.
But we are told that, whatever may be thought of these objections, the security of the State, which is, after all, a vital necessity, can be maintained only by retaining the death penalty. There can be 127 no doubt that the death penalty is a deterrent. But Blackstone reminds us that:It can never follow that it is lawful to deter at any rate and by any means.The most reverend Primate the Archbishop of Canterbury yesterday disagreed a little with Archbishop Temple's argument that to use the criminal as a means to an end other than his own well-being is non-moral. But he himself expressed grave doubts about the rightness of executing a murderer as a scapegoat for society. The real question which confronts us is this: Is the death penalty the right deterrent? Macdonnel, in his analysis of crime in 1905, to which the noble Viscount, Lord Templewood, referred, attributed most murders as due to passion. Then the murderer cannot adequately reflect on the consequences of his action. Sir John Anderson, in another place, agreed that in cases of passionate crime the death penalty was no deterrent. He also said that it was no deterrent in cases of "constructive murder." Only a small number of murders are deliberately premeditated and planned, and of these the murder by poison is typical. Sir Alexander Paterson—much quoted in this debate, and also a friend of mine—said in evidence that the poisoner was the most conceited of all criminals, having a highly inflated opinion of his cleverness and of his luck. Last year—an average year—out of 175 murders known to the police, only eleven hangings took place. Having that opinion of his cleverness and his luck, we can understand the poisoner thinking it a risk he can afford to run.
The noble Viscount, Lord Templewood, and others, have already given the argument from experience in the countries which have abolished the death penalty. Everywhere, the murder rate has gone down, with the single exception of New Zealand, where it remains exactly the same. In Switzerland, the murder rate has gone down from.273 per 100,000 of the population to.163; in Sweden from.075 to.058; in Norway from.160 to.036, and in Denmark from.040 to.023. In the light of these figures, we might even argue that a long imprisonment is a more effective deterrent. I would prefer to say, however, that the attitude of the State to the sanctity of human life and improved social conditions are the cause 128 of the decline. What one certainly cannot say is that the abolition of the capital penalty has removed an essential deterrent.
I know that in the United States the conditions are very different, and that there the murder rate is far higher than in Britain. But even there we can obtain a little evidence. There are six States which have abolished the capital punishment. One of them is Michigan, in which is the town of Detroit, the largest after Chicago of an industrial kind. And in ten years, from 1931 to 1940, in these six States, the murder rate was 2.3 per 100,000, while in the United States as a whole, for those years the murder rate was 8.1—more than four times as high as the rate in the abolition States.
The people of Scandinavia and the northern countries are much like our-selves, and what has happened there is an encouraging precedent for British action. We have additional assistance from evidence in Britain of the result of the abolition of capital punishment for offences other than murder. At the beginning of the last century, there was no country in the world where there were so many offences punishable by death—sheep stealing, housebreaking, coining and forgery were only a few. The abolition was at times opposed by the whole Bench of Judges and by nearly the whole Bench of Bishops. The worst consequences were prophesied by Lord Ellenborough, a predecessor of the present Lord Chief Justice, who had also consulted all the Judges on the Bench about the wisdom or otherwise of abolishing the penalty of death for the crime of stealing five shillings in a dwellinghouse. I should like to quote his words, because I think they help us a little in this debate. He referred to this proposal of Sir Samuel Romilly as:A law your Lordships must know upon the severity of which, and the application of which, stands the security of every poor cottager who goes out to his daily labours. Repeal this law and see the contrast. No man can trust himself for an hour out of doors without the most alarming apprehensions that ere he returns every vestige of his property will be swept away by the hardened robber.That is the kind of thing which is intended to make our flesh creep to-day. But in fact, as we have been reminded, this severity encouraged the commission 129 of these offences, and jurors refused to convict.
After the repeal of these various laws the Royal Commission on Criminal Law said, in 1836:It has not, in effect, been found that the repeal of capital punishment with regard to any particular class of offences has been attended with an increase of the offenders. On the contrary, the evidence and statements to be found in our appendix go far to demonstrate that, as the proportion of those actually executed to those actually convicted of any particular class of crime has become less, the absolute number of the offenders has diminished.Thus the result of the abolition of the death penalty for those offences was that crime diminished; property became more secure; life was infinitely safer; the sense of the criminality of crime was deepened and respect for the majesty of the law enhanced.
There is one argument that is specially pressed, and has been pressed this afternoon—namely, that this is a most dangerous moment for such a course. It is said that in a time of increasing crime, and of attacks by armed criminals on civilians and police, it cannot be right to abolish capital punishment. It is true that the times are abnormal, as they were after the First World War. It is true that there is a breakdown in discipline in many branches of the national life, but we must be careful of our statements even about violent crimes and increase of this class of offence. We must remember that the public interest in the subject of our debate has caused more headlines in the Press and more notoriety for crimes of appalling violence. The noble Lord who moved the deletion of this clause was mistaken in what he said about a policeman being murdered after the House of Commons vote. Police Constable Edgar, with whose terrible assassination we are all profoundly moved, died on February 13. The House of Commons debate took place two months later on April 14. I should like to give your Lordships the latest facts with regard to murders. During the seven weeks since the debate in another place, fifteen murders have been reported. These fifteen murders include four in which the murderer committed suicide; one is the pond murder, which the police consider was committed several months ago; one was committed by a man who had just left an asylum 130 and was drunk; one was the murder of a child in Lancashire, which the police regard as the act of a maniac, and one was the murder of Rex Farran, which was obviously political. There has been no murder of a policeman during this period, although there was a serious attack on one a week ago. In the seven weeks before the debate in the other place we had a report of sixteen murders—one murder more. These sixteen murders included one in which the murderer committed suicide, and one committed by a mental patient. It is said that there is a danger of the British people taking the law into their own hands. Let us look at the evidence on that point from the countries in which the death penalty has been abolished. This was a matter into which the Select Committee went with some thoroughness. Its members were assured by representatives of Norway, Holland and Belgium, that there was no increase in the practice of criminals carrying firearms after the abolition. The Report says:In experience, these forebodings about the use of arms have no foundation.The noble Lord, Lord Oaksey, spoke yesterday of the alternatives of arming the police or of gangster rule. I would say that the answer to the noble Lord is the tightening up of the control of firearms by awarding heavier penalties. Perhaps a better answer is that it is in the United States of America, where the murder rate is highest and where there is capital punishment, that armed gangsters abound.
Then there is the last question, of the alternative to the death penalty for murder. The noble and learned Viscount, Lord Simon, made our flesh creep with a picture of the prisoner suffering solitary confinement for ten years—with the suggestion, perhaps, that that was the kind of penalty which was in the minds of those who would abolish the death penalty.
§ VISCOUNT SIMON
I expressly said that I did not believe for a moment that either Parliament or the public would ever tolerate anything of the kind.
THE LORD BISHOP OF CHICHESTER
The noble Viscount seemed to suggest that there were people who would be likely to advocate it.
THE LORD BISHOP OF CHICHESTER
It is not what they did in countries where capital punishment was abolished. The right penalty is surely the same penalty as is now given to the reprieved murderer, in accordance with the actual condition of the particular criminal. Severe punishment there must be—and often very severe punishment. Such severe punishment would mark the State's repudiation of the crime. It would also give an opportunity for the reclamation of the criminal. There would be, for the great majority—perhaps for all—the hope of relief, as in every other punishment. The Select Committee's evidence made it quite clear that if Parliament should decide in favour of abolition, the difficulties of working the system would not be insuperable, and that there would not be more danger to warders, or to the public after release.
I know that there are still the human monsters, and their existence is the greatest problem, though I refuse to believe that anyone need be absolutely irreclaimable. I would….hope till hope creates From its own wreck the thing it contemplates.But there are human monsters of a similar kind in abolitionist countries. Such countries have a method which satisfies the problem of dealing with them, and I am sure that a method for dealing with the human monster is possible here. A very long sentence may be necessary, but if the worst came to the worst, and it was necessary to imprison the human monster till death, then, remembering that there are other human monsters who are not murderers and who are not in prison, the question boils down to this; are you going to keep capital punishment on the Statute Book simply for the sake of those few human monsters whom you believe to be irreclaimable? The question between the advocates and opponents of capital punishment is not whether murder is or is not a most heinous crime, but whether the murderers are to be destroyed (that is the word used by the noble Lord, the Lord Chief Justice).
There are those who say that the world would be a more wholesome place without these monsters and that their destruction would best deter others. And there are 132 those who say that to destroy the murderer not only deprives him of the chance of reclamation but that, being the action of the State, it does far more to weaken regard for the sanctity of human life than to promote it. They also point to evidence from countries where the death penalty has been abolished as countries in which the murder rate has gone down. I received on Monday a letter from the most famous living bishop of the Protestant Faith, Bishop Berggrav, Primate of the Norwegian Church, a great Christian and a great patriot. During the war he suffered solitary confinement for a long period. Norway is a country of spirited men, and a country in which the death penalty has ceased to exist for seventy-four years. As a temporary measure, after the war, Bishop Berggrav tells me, the Government reintroduced the death penalty for Quisling crimes. Now, he tells me, there is very strong public opinion against it, and it seems that it will be repealed very soon. But, he says:There is no voice at all in favour of reintroducing it in normal civil law. All our law experts and prison directors are against capital punishment as such.Thus, on grounds of principle and trusting to the evidence of experience, I shall cast my vote, and I ask your Lordships to cast your votes, in favour of abolition.
§ 5.9 p.m.
§ LORD SCHUSTER
We have had a long and interesting debate on a very high level, and it might be thought that everything that could be said has been said; and that I have very little excuse for intervening at this time between your Lordships and a Division. But there are one or two things that remain outstanding, on which I thought I might venture to address you. In the first place, I have a mission to fulfil. My noble and learned friend and relative, Lord Goddard, when he told your Lordships that he had spoken on this subject to all the Judges of the King's Bench Division, neglected to finish his sentence. He now wishes me to say that he meant to say, and does now say through my mouth: "The Judges of the King's Bench are unanimous in the opinion which they hold and which they ask me to communicate to this House."
I pass from that to two or three things I have to say. First, I should like, if I may, to pick up some observations which were made yesterday afternoon by the 133 noble Viscount, Lord Stansgate. It may well be thought that the noble Viscount, Lord Stansgate, has already had too much attention from this side of the House, but he said some things that cannot be left unnoticed. Up to now, apart from a little good-humoured chaff, as I thought, from this side as to the actions of the Government, nobody has addressed a Party speech from these Benches to this House. It was left to the noble Viscount to introduce a Party note. This is not a Party question. There is no Party Whip on this side and no one from this side, or metaphorically from this side, has used a Party argument. I apprehend that there is no Party view on the other side, for I notice that the Socialist Party, when they do not like the views of anyone within their curtilage, expel him. Up to now they have not expelled the Prime Minister, Mr. Chuter Ede, Mr. Herbert Morrison or even the noble Lord, Lord Lucas. So I assume that there is no Party issue between us. In those circumstances, I do not understand what all the declamation about "what we Socialists think" has got to do with the matter. If I may venture for a moment to speak humbly on behalf of the Conservative Party, I would say that we are just as much interested in the things for which the noble Viscount, Lord Stansgate, declared his affection as he can be. We have been as greatly interested and we have as greatly promoted social reform as any Socialist or Socialistic Party. Therefore, the intrusion of that subject into this debate was most unhappy.
However, I do not want at this stage of the afternoon, or indeed in any event, to go through the tedious operation of breaking—not a butterfly, because that phrase I believe has a special meaning among the jargons on one side of the House—but a wasp upon a wheel. What I really wanted to say with regard to the noble Viscount was this. He told us that what the Judges said was nihil ad rem, and he employed an argument, which I thought was dead long ago, about what Lord Ellenborough said in 1810. The form of his argument seems to be this. Lord Ellenborough in 1810 said something which the noble Viscount, Lord Stansgate, regards as very foolish and which even then (I think he would say) was an anachronistic anomaly. Lord Ellenborough was a Judge. The Judges 134 in 1948 pronounce opinions which the noble Viscount, Lord Stansgate, dislikes. They must therefore be anachronistic anomalies. That is the whole weight and force of any argument which is drawn from what Lord Ellenborough said.
For consider what has happened. It is quite true, as my noble friend has said, that public opinion has always been with and for and perhaps a little in advance of those who desire judicial and penal reforms. But judicial and penal reform have come forward, have been enacted and have been successful in so far as they were promoted, assisted, and pushed through by legal and judicial personages. It is no good saying: "Of course, the Judges and lawyers, generally speaking, have a regard for the traditions in which they are brought up." They are slow to wish change, and very rightly so, until it has been tested. In the long run, taken from first to last, not only the liberties of this country but many years of law reform since the beginning of the Nineteenth Century have been due in the main to the promotion and also to the invention of the legal profession, not least among them the Judges.
There is one story which I should like to tell your Lordships which may appear to be irrelevant or perhaps even flippant, but it does illustrate how these things come about. There was a crime which remained punishable by death for a long, time after the great mass of crimes had had that punishment removed from them It came about that juries would not convict nor would Judges try that particular form of crime. There was a gentleman who afterwards became a Judge. He was as well known to my noble friend as to myself years ago, under the name of "Long John Lawrence." He went for his first brief on the Midland circuit to represent the Crown in s prosecution for this crime. He was very young and it was his first circuit. He built all his hopes of his future forensic triumphs upon the great display which he was going to make on that occasion, and all the more so when he received a message asking him to call immediately at the Judge's lodgings. He went there and was received by Chief Baron Pollock, who was the senior Judge on the circuit. He said: "Mr. Lawrence, I see that you are appearing for the Crown in this case of the King against So-and-so." "Yes," 135 said Lawrence. "Well," said the Chief Baron, "in that case you will, of course, offer no evidence." "Oh," said Lawrence, seeing his hopes of forensic triumphs vanish; "I do not know whether your Lordship has read the depositions, but the case seems to me to be rather strong." "Yes," said the Chief Baron, "I have read them." "Has your Lordship noticed," said Lawrence, "that I have two witnesses who actually saw the occurrence?" "Yes, yes," said the Chief Baron, "I have seen the depositions. I do not think much of your witnesses. Why did they look?"
I pass from that to a more serious side of the question. The evidence and the Report of the Committee which sat in 1930 is contained in the volume which I have in my hand. It is extremely difficult to read and not very easy to digest. It was a Parliamentary Committee and was selected purely on Party lines. Those who were selected from the majority Party were no doubt carefully selected because it was learned that they would reach a particular opinion upon the issues submitted to them. The Chairman was—
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
As I was in some sense responsible for the setting up of that Committee, may I ask whether the noble Lord has any ground whatsoever for making that accusation?
§ LORD SCHUSTER
Yes, I have. I have the names of the people to give support to that suggestion. It was presided over by a minister of religion who was extremely polite to all the witnesses but was extremely garrulous. The Report is written in a kind of pawky piety which makes it very difficult to read without annoyance. The essential point of the whole volume of the evidence tendered, coming from officials who had never had anything to do with the care of criminals, is all one way to an extent which is quite astonishing. I had written down all kinds of extracts from the Report to read to your Lordships, but I am not going to do it this afternoon. However, they all say practically one thing—that if the death penalty is abolished the professional criminal (I do not mean the forger or the poisoner or that sort of person, 136 but the professional burglar and housebreaker) will carry arms and use them.
One witness at least—a warder at one prison who had regularly been employed to take convicts from Wormwood Scrubs to Dartmoor—stated that on two occasions, I think, and certainly on one occasion, a body of these people talked over the matter in his presence and said frankly: "If the punishment is to be the same whether there is murder or not, I shall abandon my old habit; in future I shall take a pistol with me, and I shall shoot my way out." That seems to me to go a long way to show that the punishment is a deterrent in that particular sense. With regard to deterrents, nobody claims to be able to point to any one man who has been deterred by the death penalty from committing some murder; everybody can point to people who have not been deterred. But, so far as the deterrents are concerned, the matter must be decided by common sense. If you reflect that, since the passing of the Criminal Appeal Act, in practically every case where the sentence of death has been pronounced in England the criminal has appealed to the Court of Criminal Appeal, you get some indication of whether he prefers death or a sentence of imprisonment. If you add to it the fact that at least one prisoner since the passing of the clause in another place and the Secretary of State's announcement, has withdrawn his appeal, I think you have some notion of how the matter is likely to work.
It would be rude to pass by the observations made by the right reverend Prelate without some word of notice. I can only say that the first part of his speech was on a level upon which I am afraid I cannot pretend to move. It is not at all difficult I to paint in hideous colours a trial for murder and the delivery of the sentence of death. Naturally, everybody who has had, as I have, to listen to that going on does not like it; some people are more affected, and some are less affected. It is not to be supposed that anybody who has to be present feels a sense of enjoyment—nor should he. It is a dreadful moment. It is a scene that has to be enacted with great solemnity, and with all the solemnity possible. And, as the net result is to be deterrent, I see no reason why we should abstain from saying that it must be something that is intended to instil terror. The relevant question is not what is its effect 137 on the person who is under sentence of death—who may or may not go to execution—but what is its effect upon society as a whole, and upon the multitudes of people whose lives may be rendered more insecure if it is not carried out.
§ 5.24 p.m.
§ THE LORD CHANCELLOR
I had not intended to intervene in this Committee discussion but I want to occupy your Lordships' time for only two or three minutes in view of certain questions that have been asked. May I express my regret that circumstances over which I had no control made it inevitable that I should be out when those questions were asked? I do not want to follow the last speaker, either in the tone or the tempo of his speech, except just to say this: that I very much regret that he made his assertion with regard to the selection of the Select Committee—for Select Committee it was—of 1930. I am perfectly confident that any member of your Lordships' House who has had experience of the method of appointing a Select Committee in another place will agree with me that it is a monstrous suggestion to say that such a Select Committee is packed. It is not packed, it is appointed in the ordinary way, so as to get the various Parties in the House selected according to their due strength. I have never before heard a suggestion made that a Select Committee appointed by the House of Commons was packed. I myself, as an old House of Commons man, deeply regret that such an accusation should have been made by a member of your Lordships' House, and I am perfectly certain that old Members of the House of Commons, in whatever part of the House they may sit, will agree with what I have said. That Select Committee was no more packed than any other Select Committee, and to make such an assertion is to cast an aspersion on the House of Commons itself, and on its method of selecting Select Committees. For the rest, I say nothing about the personnel of that Committee except that I think the really useful service the Committee did was to collect together and collate for us all the material which we have used and on which we can come to our own conclusions.
The point on which I rise is that it has been suggested that the Home Secretary, in the course he was taking, was really acting once more as a kind of dispensing power. I think it is important to see 138 exactly what the Home Secretary said to the House, and why he said it. Some of your Lordships may have the reference to the Third Reading in another place of this particular Bill. I do not think I would be in order to quote textually what he said, but the point was this: that in view of the passing of the Bill by the House of Commons, he had to consider what was to be done with regard to persons under sentence of death, or those who might be sentenced in the next few weeks. He said that tie law remained unchanged but, as there was a prospect of the law being altered in the present Session of Parliament, he felt he ought to act in a certain way. He pointed out, quite plainly, that if it had been a mere Resolution of the House of Commons he would not have thought so, but he said, if I may quote this sentence:It is the prospect of a charge in the law taking place in the near future which justifies and calls for a special course of action during the interim period.I think I was asked the question whether it was not possible that, if your Lordships, took a certain course, the prospect of a change in the law taking place in the near future would disappear. Obviously if it does, that is a wholly new set of circumstances which must receive afresh the consideration of the Home Secretary in regard to the announcement of policy which he made, and as to the advice which he thought it his duty to tender to the Sovereign, which was applicable on the view and on the footing that there was to be a more or less immediate change in the law. I am sure your Lordships would agree that in this very onerous duty which the Home Secretary has to perform—which, let me say, in case there should be misunderstanding, is his duty and not the duty of anybody else, whether his colleagues, the Government or the Cabinet—it is obvious that he must have regard to all the circumstances.
May I take an extreme case? Suppose this Bill had been passed in its present form by both Houses of Parliament and was going to receive the Royal Assent, let me say, on Thursday; and suppose there was a particularly brutal murderer whose execution would have taken place on the Wednesday—that is the day before the giving of the Royal Assent. We should all agree, I am sure, that in those circumstances it would be a proper thing to say: "I am not going 139 to have a race between the execution and the Royal Assent. I shall humbly advise that the prerogative of mercy should be exercised." So it would be, I think. If you really see a prospect of the law being changed in the future, that is the point of view which you might quite properly take. Indeed, if the Home Secretary had not made any announcement but had considered that aspect in each particular case, there could have been no criticism. But I think he was wiser to do as he did and it was better that he should make the pronouncement which he did make. It is interesting to note that when he made that announcement in the other place not only was there no criticism but one prominent member of the Opposition said he thought that the Home Secretary had taken the only possible course which he could have taken at the present time.
I think that this answers the question which the noble and learned Viscount, Lord Simon, asked me, and to which the Lord Chief Justice has also referred to-day. If this House takes a line which it is perfectly entitled to take by passing this Amendment, then I say that a new situation will have arisen, and it must not be taken that the existing pronouncement any longer holds good.
§ VISCOUNT SIMON
May I, with the permission of the House, thank the Lord Chancellor, as I was the one who first raised this matter? I fully appreciate the difficulty in which the Home Secretary finds himself. But the matter on which I was anxious to have the view of the noble and learned Viscount the Lord Chancellor was whether he did not agree that the Home Secretary, in discharging this very difficult duty, has to consider the circumstances of each individual case—which of course might be very various—and consequently he is not really discharging his constitutional duty if he says, in regard to people who have not committed murder, that if they do they will not be hanged.
§ THE LORD CHANCELLOR
I think that one of the circumstances which he is entitled to take into consideration is public opinion. I think that is a general consideration that applies to all these cases. The particular thing which I wanted to say is that circumstances—new circumstances such as these—alter cases.
§ VISCOUNT CECIL OF CHELWOOD
My Lords, I venture to think that this is a very important matter. The Lord Chancellor, I believe, will agree with me in saying that it comes very near to complete dictatorship by the Cabinet, which is a real danger that threatens the British Constitution.
§ THE LORD CHANCELLOR
Not of the Cabinet. The Cabinet have nothing whatever to do with this. It is a matter for the Home Secretary entirely.
§ VISCOUNT CECIL OF CHELWOOD
That makes it worse. Not even the rather tenuous restraint that the Cabinet might have imposed on him will be exercised. At any rate, the Cabinet approved, because they have not asked him to resign. It is a very serious matter that because one House of Parliament has passed a Bill by a small majority, therefore it is to be said, "We are going to proceed with the administration of criminal justice as if that Bill had already become law." That is really what it comes to, and I think it is a matter that ought to be carefully considered. I feel that some State Paper should be carefully drawn up explaining what was done and what are the limitations claimed in this matter.
§ 5.34 p.m.
§ LORD DOUGLAS OF KIRTLESIDE
I think you will agree that I have a right, if not a duty, to speak to you in this debate. Until recently I was Commander-in-Chief and Military Governor in Germany, and, as such, I have had more experience of one aspect of this very difficult subject than any member of this House—or, probably, any other British subject. During my time in Germany I had to deal with several hundred death sentences, not only death sentences on war criminals, but also death sentences on Allied nationals, condemned by Allied Control Commission courts, and on Germans convicted by German courts of murder and condemned to death. Therefore, as I say, I think I can claim a good deal of experience on one aspect of this matter. That, obviously, must to some extent colour my views. I commuted as many of the sentences as I conscientiously could, but, of course, as an integral part of the legal machine, I had to confirm the death sentences in cases in which there was no good reason for commutation. I must say that, eventually, I 141 became sickened with the magnitude of the legal slaughter involved. In fact, I may say that that was one of the reasons which caused me to resign my position in Germany.
You may say that this is pure sentiment, but I am not so nervous of being accused of being a sentimentalist as some of your Lordships appear to be. After all, sentiment and practical common sense are not necessarily antipathetic, and, in fact, they do exist side by side in the make-up of every decent human being. It is only Nazism and totalitarian doctrines which rule out all sentiment as a reason for human action. So I came to the debate in this House on the Second Reading with an understandable aversion to the continuance of the death sentence for murder. But, at the same time, I determined to keep an open mind and not to allow sentiment to swamp practical common sense. I have sat right through the debates on the Second Reading, and in this Committee stage; I have listened carefully to everything that has been said, and have weighed it up. In fact, I deliberately asked to be allowed to speak late in this debate, so that I might hear all points of view to help me to make up my mind. Now, I have had to make up my mind and I would like to tell your Lordships my conclusions.
In the first place, I cannot help being impressed by the views which have been expressed by various noble. Lords—the right reverend prelate the Lord Bishop of Chichester and others—who say that the death penalty for murder is a mediæval survival and an anachronistic remnant of barbarism. It seems to me to savour of retaliation, of revenge, and to be based on the old doctrine—which has already been referred to in the debate ofan eye for an eye and a tooth for a tooth.Incidentally, may I say that I was much relieved, though not altogether satisfied in my mind, at the position which the most reverend Primate took up upon this point yesterday. Previously, I think, some other noble Lords had been somewhat disturbed by the apparently un-Christian attitude of certain of the Bishops on this aspect of the case. I am quite certain in my own mind that in the not-too-distant future the death penalty for murder will no longer be countenanced by public opinion in this country, any more than the death penalty 142 for stealing would be countenanced to-day. As the noble Lord, Lord Pethick-Lawrence, pointed out, precisely the same arguments were used a hundred years ago with a view to maintaining the death penalty for stealing as have been used here for the retention of the death penalty for murder.
For my part, therefore, I feel there is only one question to answer: "At what stage or when should the abolition of the death penalty be brought into force. Is this an opportune time—is the time ripe—for this to be done, in view, first of all, of this wave of criminal violence which is sweeping the country and, secondly, in view of the present trend of public opinion?" First, with regard to the wave of violence. Surely one's view as to the effect that that could have on a decision as to when the death penalty should be abolished depends on whether one believes that the death penalty is in fact a real deterrent to murder. For me, this is the pith of the whole debate. Is the death penalty a real deterrent? If I felt that it was a deterrent, I would vote for its retention for the time being in spite of my (if you like) somewhat sentimental aversion to it. I was impressed by the remarks on this point of the noble Lord, Lord Merthyr, and of the right reverend Prelate the Lord Bishop of Chichester. As Lord Merthyr pointed out, statistics show that the number of murders has not increased—in fact it has gone down—in countries where the death penalty has been abolished; and the only deduction I can make is that the death penalty is not a very good deterrent, at any rate, in those countries. And, if not there, why should it be a good deterrent here?
§ THE EARL OF GLASGOW
Has the noble Lord taken into consideration the fact that those countries are very small countries, with populations not comparable with that here?
§ LORD DOUGLAS OF KIRTLESIDE
I cannot see how the size of population bears on this particular question. I have listened carefully to the protagonists for the continuance of the death penalty, in order that I might hear how they would deal with this point about the penalty being a deterrent. It seems to me that they have all skated rather lightly over it—including the Law Lords, from whom I was looking specially for guidance on 143 this point. The noble Lord, Lord Roche, for instance, who followed the noble Lord, Lord Pethick-Lawrence yesterday, refused to entertain the evidence about the statistics for foreign countries. He said that he preferred his own ideas of what was evidence. This, in fact, turned out to be that nearly all the Home Secretaries, with one distinguished exception, and all the Judges, favour the continuance of the death penalty. To my lay mind that is not evidence. It is opinion—valuable opinion; but it is not evidence.
Then again, the noble and learned Lord, Lord Oaksey, who clearly regards the death penalty as a deterrent, produced no evidence in support of that view. And I was puzzled by what he said at the end of his speech yesterday about—I quote his own words:living in the land of the revolver and the 'cosh.'He went on to say that in France and on the Continent they take a very different view from us on this question. I wonder whether that is so. In France, I understand, the death sentence is virtually suspended, and in a large proportion of Continental countries it has been abolished. Yet one would hardly stigmatise Norway, Sweden, Denmark, or even France, as lands of the revolver and the "cosh." Nor am I aware that there is any widespread demand by public opinion in those countries for the re-institution of the death penalty. In short, no one has yet proved to my satisfaction that the death penalty is a real deterrent, and such evidence as has been produced by noble Lords seems to me to point the other way.
The other point is the present state of public opinion in this country. Great play has been made with this, and it has been stated that if a plebiscite were taken to-day the majority of people would vote for the retention of the death penalty. From my own observations, I believe that is true. But, as your Lordships know, I am a newcomer to this House and am seeking enlightenment. I thought that in this House it was the duty of each one of us to vote according to his conscience, and surely it would be a negation of duty if we voted merely according to what we considered to be the opinion of the majority of the people. If that is really 144 so, what is the point of having an Opposition, who, presumably, represent a minority of the electorate? According to this view they would normally vote for the Government, which is absurd. While taking account of public opinion, it is not our duty to vote in accordance with it if we think it wrong. After listening to the debate for three days with as open a mind as I am capable of, and sincerely searching for enlightenment, I do not find the arguments of the supporters of this Amendment to be convincing; and, accordingly, I shall vote against it.
§ 5.46 p.m.
§ LORD WRIGHT
I hesitate to intervene in this discussion, after already two or three days have been spent in debate, but as I have been a Judge of the King's Bench Division for seven years, and have often sat as a Judge in the Criminal Courts of this country, and have passed sentences of death, I thought it my duty to state precisely, though briefly, how I regard the matter and whether I am in favour or not of the retention of the death penalty. Passing the main point aside for the moment, I confess that I am rather troubled and concerned about the suggestion that the Home Secretary, on his own responsibility, should announce in advance an intention to reprieve all death sentences. I will not discuss it but I say at once that it seems to me unconstitutional and contrary to the whole idea of the exercise of the prerogative of mercy by the Home Secretary, who is only the representative of the Crown or the King for that purpose. I cannot imagine how far things would go if that were admitted as a general principle of conduct.
Let us see what it means. It means that the law that there shall be a sentence of death—which means an effective sentence of death—is put aside, because in advance the sentence is rendered nugatory. Any discretion, especially a discretion of life and death like this, must be exercised by the Crown or its representative on the facts of the particular case. What I have heard to-day has made me wonder what would happen, or could have happened, in a case which came before me. I shall mention it now because it throws a light on what I think is the most vital aspect of this problem—that is, the difference between the good murderer and the bad murderer. I hope I 145 am not using a contradiction in terms. I say the "good murderer." We know from Aristotle and many others that a good man may do a bad thing, and there are some murders which one feels are so near to acts of merit that one hesitates to stigmatise them as bad. The law, however, would apply.
I remember a man who was brought before me in an Assize Court and asked to plead. He was charged with murder, and the ordinary expectation is that a man charged with murder will plead not guilty. But this man, when asked, "How say you: do you plead guilty or not guilty?", replied in firm tones, to my complete surprise, "Guilty." I was much disturbed about that. Strictly speaking, I was supposed to accept his plea and impose sentence, but I adjourned the proceedings and various eminent advisers were called in to talk to the man and to see what he wanted. He insisted on his right to plead guilty and to be hanged. He said he had done wrong and insisted on his legal right to be hanged. He was one of those curious cases of partly religious and partly sexual twists of the mind. He was quite determined, and he was hanged. But what would have happened otherwise, in view of this announcement of the Home Secretary? That is a problem which I leave to wiser heads than my own. But there is an instance of what I might call a good murderer.
When I was trying criminal cases, especially of murders, I used to watch the prisoner on the other side of the well of the court and try to form an opinion as to what was really his moral character. In many cases I considered that he was inherently a good man and that he was the unfortunate victim of passion or impulse, of the various impulses like jealousy which distract a man and cause him to commit these dreadful deeds. But that is only one type of murderer, and it would be foolish and misleading if we did not bear in mind that the real problem is the problem of really bad murderers. Perhaps I may give one instance out of many in my own experience. I remember a case where three men were charged with murder. They were members of a race gang and their victim was also a member. He had committed what they regarded as an act of disloyalty to the gang, and they proceeded to punish it one night in the street. One of the three got behind him and seized his arms, while 146 the other two drew tremendous gashes on both sides of his face with razors. As a result, he died. There, I could see no redeeming feature. It was an act of brutality, of savageness, of revenge, of the most deliberate meditation, and I am happy to think that the three of them were condemed by the jury. One became insane, but the others were duly executed. That is a bad type of murderer and these are the people who are reached by capital punishment.
So far as I can see, thinking it over as well as I can, no satisfactory or adequate punishment is proposed by way of alternative. However gross and violent the murder, however much without warranty, the murderer would be respited or sentenced to imprisonment and, according to our practice, would come out of prison at the end of eight or ten or fifteen years. He would go out as a comparatively young man, after years in the care and comforts, such as they are, of a prison. Is that sufficient protection for the lives of our fellow-countrymen against the risk of savage murder? The great difficulty about murder is that, although it does not appear a great many times in one year, we cannot tell where it will strike. Any I one of us may be killed by a violent murderer and there is no safety against that, no mitigation against that risk, except the threat of capital punishment. I am satisfied that capital punishment does deter. I have seen that in a great many cases. There is something impressive about the death sentence which is about no other sentence. The sudden ending of human life by the process of the law is the most deterring and terrifying thing that can be devised.
With that in my mind I venture, with respect, to disagree with the speakers yesterday and to-day who have expressed the view that capital punishment does not deter. If I am asked, "But what is the evidence?" I shall answer, "What evidence do you expect?" We cannot bring evidence of murderers who were not I deterred, and we cannot bring evidence of those who were deterred, because that would not be helpful, even if we could get it. There is no method of deciding that question, except by the general impression that one gain from experience, from looking around the world, from seeing how things are done and how people feel. If that is done, I think the conclusion must be arrived at that capital 147 punishment is a deterrent. The old burglar never carried a gun, because he was afraid that he might be induced to shoot. Why was he so sensitive about that? The answer surely is that the thought of capital punishment was a deterrent. I am not going to attempt to repeat all the things that have been said in the last two or three days. I shall be content to express my concurrence with some of the speakers who have preceded me. It is my present intention to vote in favour of the Amendment.
§ 5.59 p.m.
§ LORD DARWEN
SO much has been said in this discussion, and on the Second Reading, that I am sure your Lordships will be grateful to me when I say I am going to speak for only a few minutes. From the evidence that has been given by this debate, I am quite convinced that there are few speakers who have been influenced by evidence. I am reminded of a happening which occurred some few years ago when Mr. Gandhi was coming up to Lancashire. There was a meeting in the Mayor's parlour in one of the Lancashire towns to discuss arrangements for his safety. There was a Quaker present at this conference, because he was to be Gandhi's host. He was apparently not taking sufficient interest in the proceedings. The chief constable said to him: "It is all very well for you, Mr. So and so; you are a Quaker, and think there is something good in everybody. I am a policeman, and I know there is something bad in everybody." I hope noble Lords will not be at all hurt if I say that during this debate we have seen the division between the Quakers and the policemen. The trouble is that you really look at one side or the other, although you may firmly believe that both are true. You either look at the evil which is in men, or you look at the good which is in men; and the decision to which you come, and the policy which you follow, depend upon which quality you put first. I may say that in the history of our society we have found that it pays hands down to believe that there is something good in everybody, and to base our policy on that belief. That is all I will say.
§ 6.2 p.m.
§ LORD HAILEY
Like the noble Lord, Lord Darwen, I shall be very brief, be- 148 cause I recognise that your Lordships are anxious to proceed to some decision on this Amendment. Certainly I do not feel qualified to take part in the difference which seems to have arisen this afternoon between the advice which has been given from the Episcopal and the Judicial Benches. I am, however, reminded of a saying of Dr. Jowitt, who, when comparing the functions of the Judge and the Bishop, remarked that there was a certain similarity between them. The Bishop said, "You be damned," and the Judge said, "You be hanged." But he noticed that there was this difference between them: that when the Judge said, "You be hanged," you generally were! If I intervene now, it is because I wish to speak on what is, after all, a restricted field and to give my support to the plea which was put before your Lordships on a previous occasion by the noble Lord, Lord Milverton, and which was put yesterday by the noble Lord, Lord Llewellin—namely, that you should consider the effect which the passing of this clause in the Bill might have in the Colonial territories.
I am not able to speak with the same wealth of personal experience as Lord Milverton, but I have done my best for some years to study the problems—and particularly the problems of law and order—as they have arisen in Africa. During the last seven months I have had the opportunity of discussing some of these problems with practically every provincial commissioner, and with a large number of the district officers in the ten British territories in Africa. I also have behind me certain recollections, extending over a long period, of violence and crime in the Punjab, whose capacity for violent crime has lately been so unhappily illustrated. With that experience behind me, I am not going to indulge in any of the firm speculations that I have heard to-day and yesterday; and certainly I cannot quote those somewhat intricate decimal points which are held to afford a convincing argument as to the value of capital punishment as a deterrent. But I am convinced that if this clause were to stand on the Statute Book it would undoubtedly lead, not to a decrease, but to a great increase in the amount of violent crime and murder in some of these territories.
I say that for this reason. In those areas, there are none of the distinctions 149 to which we are accustomed between crime against society and the State and crime against the individual. Crime there is considered as an offence against the individual, the family or the tribe. In most of those territories there is a Common feeling that the mere infliction of imprisonment is no great punishment in itself; it is certainly no adequate punishment for the taking of life. It certainly seems to me that unless the State does exact that particular penalty, then the individuals offended, the family or the tribe, will undoubtedly exact it on their own behalf, and perhaps in a most indiscriminate manner. I am well aware that an answer has been given in the other place, and repeated here, that the passing of this clause would not in itself have an automatic effect in the British Colonies; that each of them has its own Legislature and can frame its own criminal law, and, in particular, can deal with this special aspect of punishment.
I am very much afraid, however, that there are many elements in these territories who, because they claim to be progressive and advanced, may desire to influence their Legislatures to introduce a measure, similar to that which would find a place in our law, suspending the death penalty. They might be influenced by the argument that I heard advanced here, that the retention of the death penalty is itself a sign that the people themselves are not merely backward, but worse. That might be so. They might be able to quote cases of, perhaps, more advanced countries which have done away with the death penalty—though I notice, if that charge is brought against us here, that we have at least a number of the States in the United States as our partners, and also, I believe, that advanced liberal country, Russia; but perhaps I am less proud of that than of the other associations. I myself have seen how often Legislatures of this kind can be swayed by a sentiment that it is necessary to be advanced, and necessary to be progressive. Well do I remember how, in the Legislative Assembly of India, on one occasion, a large Party thought it was necessary to prove that they were advanced and fully up to the standards of the rest of the world in regard to the raising of the age of consent. Equally, I remember that, no sooner had they passed that Act than a large number of them harried off to marry their very immature 150 daughters as quickly as possible, before the Act could take effect.
We have to be realistic about those things. We have to realise that Legislatures of that temperament may easily be swayed by the example which has been set by the British Parliament. If this were done there seems to me, so long as this provision stands on our Statute Book, no possibility of the British Government being able to exercise their veto. Of course, it is said that the measure now contemplated is only experimental, and equally that it might be only experimental in the Colonies. But let me say this. I believe that any conclusions that you could draw at the end of a five-year period in the Colonies would not be capable of estimation in the same way as conclusions that you might draw here. In Great Britain there may be—I will not say there is—a certain observable rhythm in crime of this kind; but in those territories any figures taken over a five-year period are always liable to be influenced by exceptional circumstances. You may have a large outbreak of violent crime, including murder, on account of tribal differences, or disputes about tribal boundaries and regarding the tribal grazing grounds of one tribe or another. Again, you may have an exceptional outbreak of crime in one five-year period owing to the occurrence of ritual murders—murders which, of course, are generally connected with the death of one chief and the advent of another. Again, you might have an unusual outbreak of crime due to the action of secret societies.
I do not wish to detain your Lordships on this topic, because it has already been referred to by the noble Lord, Lord Milverton. But I would tell your Lordships that I was, only recently, in a district of Sierre Leone, where it was calculated that there would soon be another large outbreak of murders by some secret society—and for this reason. The object of the secret society was to provide a medicine which was sold at a very high price, but which was necessarily made from the bodies of men who had died a violent death. However, in the course of time it lost its value, and it was necessary that it should be revived periodically by the commission of fresh murders—of what were known to be fresh murders—in order that the medicine might regain its potency and its market value. The causes of some of 151 these secret society murders have no connection whatever with religion, but are due to the most sordid motives.
I could multiply the exceptional circumstances which are liable to make it impossible to attach any value whatever to figures that would be collected over a five-year period, in order to test the application of an experiment of this kind. I beg your Lordships that you will not give countenance, directly or indirectly, to any venture in a field of experiment that must be always dangerous and may, in this particular case, be disastrous. I would remind your Lordships that in those territories it is not society which is the custodian of the morals and the principles of its people, but it is we in the British Parliament who are responsible for the maintenance of a principle which is perhaps our greatest contribution to them, the principle of the sanctity of human life.
§ 6.15 p.m.
§ VISCOUNT BRUCE OF MELBOURNE
My Lords, I belong to no Party, I have no political affiliations, and I have never cast a vote in your Lordships' House. To-day I propose to do so, because I view with such apprehension the grave consequences which I believe will accrue from the abolition of capital punishment. I trust that in taking that line I will not be regarded as a successor to those who, in the past, have resisted the abolition of the death penalty for minor offences. Murder is not a minor offence. It is the ultimate offence, and involves the taking of a human life. The public is entitled to be protected against that danger. Society to-day is protected by the existence of capital punishment, but there is also, with that punishment, justice and humanity. If the crime is premeditated and brutal, then the murderer is hanged. But if it is committed in the height of passion, under great provocation or with other extenuating circumstances, then the prerogative of mercy can be invoked.
I am convinced that the death penalty is a deterrent. What is the evidence? I agree with the noble Lord, Lord Wright, that you cannot produce the positive evidence, but you can produce this evidence. The fundamental human instinct is to cling to life in all circumstances. There are hundreds of thousands of men in this country to-day who can bear witness to 152 that fact. Their lives have been in deadly peril in war and they can testify how tenaciously one clings to life. Therefore, I say that the death penalty is a deterrent. I believe that every potential criminal, either consciously or subconsciously, realises that if, in the course of the commission of his crime, he kills a man or a woman, then his own life will be forfeited. Abolish the death penalty and I believe that the restraint which in the past has ensured that the great majority of criminals have never carried firearms will be removed.
I would also suggest we have to view the abolition of the death penalty in the light of our existing legal system, and in the light of our system of police protection. The criminal courts of this country are regarded throughout the world as a model of justice, fairness and impartiality. We have in our legal code the provision that the prosecution must prove its case, and that every man is deemed innocent until he is proved guilty. When we think of that, we should contrast it with the systems of justice in some other countries to which reference has been made. But we have also to think of our police, who in this country go unarmed. Moreover, the third degree finds no place in our police methods. To-day, and every day, in Britain thousands of pounds go through the streets—for example, the cash with which to pay salaries and wages—and gold is moved with possibly no other protection than a single policeman sitting on the van. In the United States of America to-day there are great corporations which have been formed to afford protection in the transference of the pay roll from the bank to the establishment, and those corporations provide an armed guard. That applies to practically every business in the country, and I myself have seen in the stores of New York men with revolvers in their hands, guarding the accountant who is bringing in the pay roll. That is the position in America. Gold is moved with an escort of police motor cycles with machine guns, and police with revolvers in their hand travel in the van.
Despite these precautions, gunmen in America are constantly achieving successful coups. Why do they not come here and take advantage of the incomparably easier opportunities which are offered? An American gave me an explanation and I believe it is the right one. He said that the only penalty the gunman fears is 153 death. He knows that if he is caught in Britain he will be tried, condemned and hanged within a month or six weeks. We should think, and think pretty hard, whether there is not something in that fact. In America, if the gangster has any influence—and my American friend pointed out that practically all American gunmen have the protection of a powerful gang—he need not fear execution. The final words of this American to me were: "Abolish the death penalty, and you will have an influx of American gunmen that will force you to alter your whole police system."
The last point I wish to make is this. We are asked to accept this proposal as an experiment for a trial period, and we are told that if it fails we can restore the death penalty. That means that we are asked to make an experiment that, if it fails, will involve the lives of many innocent people. For my part, I will have nothing to do with any such experiment.
§ 6.23 p.m.
§ LORD ROCHESTER
I stated my position in regard to the death penalty so fully on the Second Reading that I have no desire to trespass unduly on your Lordships' time this afternoon. I cannot, however, refrain from referring to at least two speeches we heard yesterday. One of them was that of the noble Viscount, Lord Templewood, with whom I could not agree more. But as to the other, I confess to not a little surprise at what the most reverend Primate said as he developed his argument in favour of the capital penalty, albeit in some modified form. Little wonder that The Times this morning comments:The Archbishop of Canterbury's definition of the Church's attitude contained a striking explanation of the text 'an eye for an eye.'Striking, indeed, it was, and it is in reply to that speech primarily that I desire to direct my remarks.
I was at a loss to understand why the most reverend Primate should pray in aid of his argument Exodus, Leviticus, and Deuteronomy in the Old Testament—"An eye for an eye and a tooth for a tooth"—and should omit all reference to the words of Jesus Christ himself. In the concluding verse of the Fifth Chapter of Saint Matthew we read:Ye have heard that it hath been said by them of old time, 'an eye for an eye and a tooth for a tooth,' but I say unto you 154 that ye resist not evil, that ye love your enemies and bless them that curse you.After all, we are now living under the New Dispensation, so why quote the Old Testament in preference to the New? Was it that it would not suit the argument of the most reverend Primate? Surely not! But why was it? I am sorry to have so often to take exception to utterances from the Episcopal Bench, but this matter is so all-important and fraught with such grave consequences that I cannot refrain from clothing my thoughts with words. In doing so, I can scarcely better the remarks made recently in another connection by Dr. J. H. Oldham and Professor Donald MacKinnon and appearing in the Christian News-Letter. I have no personal knowledge where they stand on the question of the capital penalty. I have tried to contact them since last night, but have failed to do so. I should like in any case to recall an episode in the other place, I think in 1906, when I was a Member there, when an honourable Member was challenged on some quotation he had made, and he replied: "Well, if he did not say it, I say it here end now." That is rather my position on this occasion.
The question of suspending capital punishment for an experimental period of five years has disclosed, not only in your Lordships' House but also in the country, an acute and wide difference of opinion as to the whole philosophical basis of our entire social order. Accepting, as I do, the infinite value of every human personality, I am impelled to vote for the abolition of the capital penalty. The Slate cannot create life, and in my submission, should not destroy it. Once admit that a murderer is fit only to be destroyed and you are soon on the slippery slope to the destruction of the mentally deficient and the incurably diseased. I regard the death penalty as a flat denial of the very principles upon which this Bill is founded; and not to find a substitute for it is a confession of failure so complete as to be entirely out of harmony with the whole tenor of the Bill. Retaining the death penalty tarries with it the retention of the atmosphere which it breeds and the compulsion of police and warders to work in that atmosphere. It is a punishment unworthy of a civilised community and inflicts upon those who have to carry it out a burden no one should be called upon to bear.
155 While the death sentance remains, it colours the whole of our penal system, whereas to abolish it would be a civilising step and a gleam of light on a dark horizon when so many steps backward are being taken all over the world. Our job at the present time is to try to lift the moral level of the country, and I congratulate the Government on their efforts to combat poverty, ignorance, disease and crime by the far better approach they are making to such problems, in inaugurating the vast and comprehensive improvement in our social services on July 5 next. Fortunately this is not a Party political question, as is evidenced by the fact that only ten years ago, in a Conservative House of Commons, a Motion introduced by a Conservative Private Member to suspend the death penalty for five years in time of peace was carried with a slightly larger majority than the present Labour House of Commons passed the clause in the present Bill.
This is an issue that far transcends all Parties. My appeal is to Christian principles, of which the first and most important is the sacredness of human personality and the value of every individual life in the sight of God. My plea is that no criminal should be abandoned as beyond hope and destroyed by the State. Jesus gave his friendship to those who needed it most. Our earthly laws should be in some sense a reflection of the immutable and eternal law of God. Christianity is something that has to be lived. I am sure your Lordships will agree with that. That being so, it follows that it is in the decisions and activities of our secular society that it has to be lived, and not least in the political sphere. That is where some of the severest tests are encountered and, unless the Christian life of love is lived in that sphere, then if unchecked the power and impulses of human nature are such as to operate with increasing violence. That is the road that has lead in other countries inexorably to the totalitarian State.
In the speech yesterday of the noble Viscount, Lord Templewood, which was the other speech to which I said I wanted to refer, the noble Viscount said:I take the view that it is very dangerous, even in the case of these human monsters, to assume that their lives are hopeless and that they must be eliminated. That argument seems to me to go far too close to the totalitarian argument that eliminates people and, indeed, races for this or that reason.156 I share that view with the fullest conviction. It has been well said that in the choice between a surrender to power and a commitment to love, the whole being of man is involved. That issue, I think it will be conceded, has to be decided in the political sphere, for a living faith must find political expression. That being so, the greatness of what is at stake in the issue we are now considering may be fraught with immeasurable meaning, in the sphere of justice and tolerance.
On the Cross of Jesus Christ, love triumphed even over rejection. We need to try to break down, so far as we are able, the gulf fixed between the private conscience of the individual and the institutions of organised society. Somehow or other, the latter has to be converted into the effective expression of the former. Modern society has moved so far away from an understanding of the Christian Gospel that it is by a direct and specific concern with just such a problem as that which we are now grappling with, that we may help to bridge that gulf and lend our aid in the struggle between power and love, which has continually to be waged. We cannot sever our political consciousness and responsibility from our moral obligations. Just as war has ceased to be a rational method of settling disputes between the nations, so has the capital penalty between evil doers and the State. In the case of war, however, it might well be that situations would arise when, to persist in its avoidance, every moral value might be forfeit; but that cannot appertain in the avoidance of the capital penalty. I agree with Archbishop Temple when he said:The death penalty must be opposed on the ground that it renders impossible the effective maintenance of the standard which the law demands of the Christian.I would only add that Jesus Christ is greater than we know, and He offers more than we dare hope for.
§ 6.35 p.m.
§ LORD CALVERLEY
I differ from the last speaker, and I feel that my conscience is pretty clear on the matter. Even if I be only a humble disciple of some of the things which the noble Lord has been talking about, I do not believe that I am altogether a sinful creature if I vote for the Amendment and for the reconsideration of Clause 1. As we all know, the majority of the British citizens are 157 not against this Clause 1 on the ground of cruelty or because they are sadists. They believe in capital punishment for a foul murder because that crime offends their elementary sense of justice. That is why we should pay some regard to the common citizen. A few weeks ago, I listened-in to what is called "Public Inquiry" on the B.B.C. Capital punishment was being discussed and they had the advantage of the powerful advocacy of the honourable member for Nelson and Colne, the mover of this clause in another place, Mr. Sydney Silverman. But, not-withstanding his advocacy for the abolition of the death penalty, the argument was overwhelmingly against him. However, I disregard the outcome of such a meeting because feeling was running high, just as I disregard the feeling of excitement which sometimes arises when there is a free vote in another place, whether on the Prayer Book or on the death penalty.
On Monday I was in a Huddersfield mill, talking to some of the weavers, the winders, the samplers and the pieceners. They got to know that I was a member of this House. When they looked at me the first time, they did not know it! At any rate, because I have rather a friendly face, they said: "What are you going to do on Tuesday?" I said: "Now then, what would you do?" What every-one of the women who had been employed in this firm for twenty or thirty years said reluctantly was summed up in particular by a gentleman workman of forty years standing in the mill, when he said: "When a man commits murder with malice aforethought such a person should be condemned to death." I admire the honourable Member for Darwen, Mr. Prescott. He was in favour of the abolition of the death penalty, but he went down to his constituency and took a poll. I admire his courage. The poll was against him. Nevertheless, I shall always, as I always have done, regard Mr. Prescott as one of my honourable friends. We cannot get away from the fact that the great majority of our fellow citizens are not mere sentimentalists. We cannot get away from the fact, although it is distasteful, that they say that there are certain foul murders for for which the sentence should be judicial homicide, or whatever title you care to give it officially. That reinforces me when 158 I say that a foul, noxious murderer should be destroyed.
We have to accept as a matter of course that some of the flower of our youth are destroyed in war. I would rather be against war than take the line that it is sinful that a murderer of the worst kind, after a fair trial, should be executed. That is why I think that capital punishment is the proper retribution for a foul murder. The danger to-day is that we are talking too much about "pity the poor murderer," and we are forgetting the bereaved families. In the other place it was stated that in a hanging prison there was a sort of hysteria upon the day of execution. I have been a visiting justice for fourteen years in one of our largest hanging prisons and I have been chairman for some time. Certainly there is a solemn restraint amongst all the decent-minded fellows, of whom there are many in a prison like that, when they know what is taking place. Without there being hysteria there is a solemn feeling and I am certain that there are prayers for the passing of a person who has justifiably been executed.
It was stated in another place that there was agony amongst the prison officers. I have talked with men who have been condemned, and before they have been condemned, and they come to regard the prison officers as their friends. It is against the rule, I believe, for those officers to go with them to the actual execution, because they are friends; but many a man in his last hours has expressed a desire that these prison officers should go with him in order to sustain him. It is wrong to say that there is hysteria. The only hysteria is when the extreme abolitionists organise demonstrations before the prison on the day of execution. That is where you get hysteria; that is where you have the sentimentalists. Another statement made in the other place was that the condemned man is there to be gazed at, after he has been condemned, if he cares to go to the chapel service. That, again, is wrong. In every hanging prison in this country he can see the altar, he can see the sacred offices, he can take his part in those sacred offices, but, whilst he sees, he is unseen by the rest of the prisoners. I wish to make that plain, in fairness to our prison system as it is administered humanely to-day.
159 I do not wish to be too personal but, when I started years ago on the job of paying as many as twenty or thirty visits a year to our prisons, my mentor was a man named Alex Paterson, and he taught me that a person must be punished if he or she did wrong. But he also, of course, said, and emphasised by his prison methods, that there should be the reformative side as well. He warned me against being sloppy-minded by forgetting that when a man does wrong there should be retribution as well as repentance. He sent me to one of the biggest prisons in the world—namely, San Quentin in California. I went round that prison. I want to tell you the difference between a Californian prison and our own. To my horror, I found myself in the gallows chamber there. I have always said there was no reason for me to pay a visit to such a place in a British prison, but in that prison I found myself there. The chief officer said, "we do our work well and efficiently here." There were two gallows and two nooses, so that they could have two hangings at the same time. This will interest the noble Lord, Lord Rochester: there were pews all round. I said, "What are your pews for?" He said, "We can seat three hundred to watch the execution." That, again, is something that we do not do in this country. He said also, "We have thirty-six first degree men awaiting execution. We must get on with the job and, therefore, the lethal chamber is so arranged that we can get it done more quickly." In regard to the difference between our methods of decent restraint and those of the Americans, I think we come out on top once again, as we usually do.
I ask your Lordships to reject this clause. I also ask your Lordships to leave the matter as it has been for generations in this country—namely, to a jury of twelve men or women to find a verdict upon the evidence on two issues only: guilty or not guilty, and with the continued emphasis, which has been expressed by every Judge that I have listened to, that if there is a shadow of a doubt the jury must acquit the prisoner. Therefore I say, leave it to the jury, who are not committing sin in doing a most distasteful job. If the Judge has to condemn, let the usual procedure which has 160 grown so much this last generation be continued. I have known every Home Secretary more or less familiarly since Herbert Gladstone was Home Secretary of this country, and I know that those Home Secretaries receive a communication after every such sentence that is passed. That sentence is reviewed with the advice of the Judge, and mercy is strained to its uttermost point in order to try to find a reason why a person should be reprieved. That is where the good murderer, if there is such a person, comes in. That is the reason why, of recent years, there have been more reprieves than ever before, and I honestly believe that if the present law remains we shall, in due course, get rid of capital punishment. Without keeping your Lordships any longer, I would beg you not to be afraid of evoking a constitutional issue, but to support Lord Llewellin in such numbers that we give the other place a chance for second thoughts, for reflection and probably for amendment.
§ 6.49 p.m.
THE EARL OF DARNLEY
I do not wish to detain your Lordships for more than a few minutes, except just to amplify what I said on the Second Reading of this Bill. I hope you will forgive me and absolve me from any desire of trying to be superior. I am trying to do only what all of your Lordships have tried to do—namely, to get at the truth. The only difference might be that I have perhaps a somewhat different idea of reality. I think you might even approve of the route by which I am going to make this approach. Even if you think it appears to go somewhat through the clouds, at any rate it is different from the route that has been taken during most of the debate, through the very dangerous minefields of statistics.
I see in this whole question three indisputable facts. The first is that the taking of human life is absolutely forbidden, without any exception whatever, by ethical orders. I noticed that the most reverend Primate said that the Church took its lead from the "eye for an eye and tooth for a tooth" doctrine, of which we have heard a good deal in this debate. But I venture to believe that this is a relic of the Old Testament and that it was completely annulled in the New. I think, if I may suggest it to the most reverend Primate, that we should have 161 all been glad to hear him say that. I will absolve myself from my temerity in making this criticism by recalling his further words, that in a question of this kind everyone had to decide for himself, and therefore, I presume, to speak for himself. The second thing which stands out, to my mind, absolutely and plainly, on this occasion, is that humanity has always reserved the right to vary these orders whenever it has considered itself in danger, either within a nation or internationally. The third fact is that by thousands of years of breaking these orders—that is to say, by killing—followed recently by six years of concentrated slaughter, human beings have brought themselves into a very cesspool of misery and poverty and have created a vast increase in individual crime.
I venture to say that this all tends to prove that humanity should now begin to realise that it is not as clever as it thinks it is, that its evidences, its reasonings and its statistics in the past have been misleading and faulty; it must now seek a more stable basis for its decisions, and, therefore, must start to trust the ethical orders which it professes to believe in and to venerate. It could now well start—if it must keep the principle of execution—by applying execution to causes and not to results. The removal of causes alone can successfully deter criminals and reduce crime—causes which must obviously have been made by man and not created by Providence, and which are therefore capable of removal by man. Conversely, as in international differences, threats of war must harden aggressive complexes, so must threats of execution produce bitterness and a hardening of the would-be criminal's mentality. All the same, it is obvious, from the evidence given on the Second Reading and this debate, that this is a bad period in crime to-day. Crime is increasing. It is getting more horrible; the evidence of the noble and learned Judges has proved that beyond all doubt. It is obvious, also, that there must be a deterrent in order that society may be protected. But it is equally clear that society has yet to find an efficient or a good deterrent.
Although one can understand that a layman would not be willing to base such a novel deterrent on the proved value of the observance of ethical orders, I must 162 say—if the right reverend Prelate will excuse my doing so—that I was a little surprised to hear the Lord Bishop of Winchester suggesting that capital punishment was supported in his Teacher's comparative statement as to the demerits of offending one of these little ones, and having a millstone hung round one's neck and being cast into the sea. This is surely no incitement to killing. I see no justification at all for killing. If the right reverend Prelate has rightly interpreted this dictum then the world's gibbets should indeed be full, because in the last eight years countless thousands of these little ones have been mutilated and destroyed, in every country and by every country. There has indeed been created a grim moment for making a change like this. The world's citizens have been taught to kill and to destroy, and so individual and international crime is rampant. And though the remission of the death sentence in other countries has not, apparently, increased crime, yet possibly by human judgment, statistics and evidence, it could be said that to produce a new measure of this sort at a time like this might be asking for trouble. But when is the greatest wisdom and intelligence wanted? When is the greatest wisdom of the doctors called for? Is it not at the height of an epidemic? On that basis I ask: Is there ever going to be a better moment for starting a change like this? But these facts still remain: first, that human judgment is limited and cannot possibly envisage the results that ethical far-seeing wisdom guarantees to those who obey its orders; second, that after thousands of years of reasoning, evidence and statistics, human wisdom has so far failed to find good cures and deterrents; and, third, that the human mind professes to believe in its ethical orders.
On these three bases could not this country wisely now, at this moment, disregard its evidence, its statistics and its fears, all of which I, like the rest of your Lordships, share in effect? Could it not make an act of faith which may, from this very small beginning, eventually spread hope, courage and example to the millions of embittered human beings in the world, causing them eventually to give up their belief in the efficacy of slaughter to settle human problems and, on the other hand, making them steadfastly fix their eyes on the unanswerable dictum that it is only through the betterment of human 163 relationships, through neighbourly efforts, that a diminution of international and individual crime can be brought about? Therefore, I believe that Clause 1 should be supported. Of course, the elimination of the criminal instinct in individual man may take some time. In the interim, he will have to be kept under restraint, where he cannot commit further crime. And the best efforts of the country in money and brains will have to be directed towards his reformation. As Lord Temple-wood has indicated, this is a most necessary concomitant of incarceration. If this should prove impossible, if the man is mad or hopelessly intractable, this restraint will have to be of life duration. But if, as is believed, the ethical methods of treating a human being are infallible, when properly carried out, and if a better world prospect can be presented to this man, then he will emerge not, as is often feared, to commit more crimes later on but to take his place as a reputable member of society.
In conclusion I wish to say this. And may I remark that I have not been speaking for long? The average length of speeches in this debate has been, I believe, about half an hour. If only there could appear in the world some sign that a belief was gaining ground that killing could be given up as a deterrent to any variety of criminal, or any variety of international crisis, as being useless and destructive, then indeed would the face of the world wear a brighter aspect. And if ethical orders are trustworthy, then there cannot be a single problem large or small, international or individual, that cannot be settled by recourse to them.
§ 7.0 p.m.
§ THE MARQUESS OF SALISBURY
I hope to trouble your Lordships for only a very few minutes, for I know the House is already prepared to come to a decision. Like everyone else who has taken part in this debate, I suppose, I speak with a sense of deep responsibility. It is not that I have the duty to-day of giving any advice to those of your Lordships who sit on the Benches behind me; that, on the present occasion, would be inappropriate. It is not a matter, I am thankful to say, for Party decision. The decision here is being left by all Parties alike to a free vote of the House. I can 164 only say the way that I personally propose to vote, and explain the reasons which bring me to that conclusion. But that does not in any way lessen one's sense of responsibility, for, after all, the question of whether or not capital punishment is to be abolished raises issues of the most fundamental kind for all of us. On the one side it involves the lives of men and women who, perhaps, are not the most respectable members of society, though they are still our fellow creatures; and, on the other side, it involves the whole maintenance of law and the security of the law for the citizens of this country, including old and helpless people, little children and others. It is those conflicting considerations which each of us has to weigh.
I myself have never been an enthusiastic supporter of capital punishment, though I have not been among those who sincerely regard it as morally wrong. Nor would I accept the speech of the noble Lord, Lord Rochester, as the only interpretation of Christian principle. Like the vast majority of people in this country, I believe that if life must be sacrificed for the protection of society against violent crime that is a prospect which has to be faced. We do it in war, and it may be equally necessary in peace. But, clearly, it is something to be.avoided if there is any effective alternative. I therefore approach this question with an open mind, and if anything with a slight bias in favour of abolition.
I have been profoundly influenced by what has been said in these debates in your Lordships' House. In these debates we have had the benefit of the advice of, I think, practically all those who can speak with most authority in this country. We have had the views of the present Lord Chancellor; the views of the present Home Secretary have been reported to us; we have had the views in this House of three former Home Secretaries; we have had the views of the Lord Chief Justice and a number of other most distinguished and highly respected Judges of long experience of the criminal courts. With the exception of the noble Viscount, Lord Templewood, who is much moved by conscientious scruples, they have all taken the same view—that it would be extremely dangerous to abolish capital punishment at the present time. They have given us reasons for their advice and, in my view, 165 these are such as it would be wrong for any of us to ignore.
I cannot but feel that what we are expected to do is to try an experiment—in plain words, to gamble with the lives of our fellow citizens—and this at a time when we know that the circumstances are most unfavourable to the success of that gamble. I suppose that there has never been a period—I will not go back into ancient history—within the last 150 years during which there has been a more catastrophic decline in the standard of public morals. Almost every day, as noble Lords have pointed out in this debate, we read in the public Press of new examples of violent crime, often of the most atrocious character. Is this the moment to reduce the penalty of violent crime? I would have thought that the inevitable result of so doing, both on the criminal parties themselves and on the community as a whole, must be to create the impression that in the mind of Parliament, at any rate, murder is not so terrible a crime as was previously thought. Indeed, the Lord Chief Justice himself has drawn attention to the effect which the proposed change is already having on the minds of juries.
Finally, we must take into account (other noble Lords have mentioned this in the debate) the effect which the abolition of the death penalty is likely to have at the present juncture on the police and others responsible for law and order. We have in this country the finest police force, I think, in the world, a force with the highest sense of public duty. We owe them an eternal debt of gratitude for their ceaseless efforts on our behalf. We should be very wrong if we ignored the great and increasing difficulties with which they are faced to-day. Already our police forces are, as we know, understaffed and overworked. We have been told by the noble Viscount, Lord Trenchard, in a recent debate, that there is a tendency for the numbers of the police force further to decrease rather than to increase. Is this a time to make their task still more difficult? Would not the result be that we should reduce the strength and morale of that force? That would be wrong and foolish, for after all, ultimately, as the noble Lord, Lord Merthyr has said, the main deterrent of crime must be certainty of punishment. If criminals were really certain that whenever they broke the law they were bound 166 to be laid by the heels it would act as an immense deterrent of crime. But if we are to achieve certainty of punishment—not only for murder but for other crimes—this can be done only by building up a police force adequate to deal with the law-breaker and giving them every support and encouragement. Then, when law and order have been restored and the certainty of punishment of the offender re-established, it would be the time to try the experiment, if we so desired it, of abolishing the death penalty. To do it now, and to reduce the penalty for violent crime at a time when respect for law was never so low as it is at present, is surely to start at the wrong end and means running a risk which it would be impossible to justify.
That would be my answer to the noble Lord, Lord Merthyr, who said that it is not a question of whether the death penalty should be abolished but of when it should be abolished. I would not dissent from that, but the question of the right moment is clearly important. Rightly or wrongly, while I keep an open mind about the abolition of the death penalty in the future—and I should like to see it abolished at the proper time—I have come to the firm conclusion that it would be wrong and even mad to do it now, and I shall support that view in the Lobby. I am the more inclined to do this because it seems only fair to another place to give them an opportunity of reconsidering their decision. New and very important considerations have emerged since they first considered this question. There have been the debates in your Lordships' House. Powerful arguments have been addressed by some of the most eminent of our Judges, and by many others. Many of the points which have been made were never placed before the Members in another place, and to many of us these have been conclusive points.
Then there is the overwhelming reaction of public opinion. It was suggested by the noble Lord, Lord Merthyr, and others that the public are not well informed on this question. That may or may not be true. But if public opinion is, in fact, not well informed in a democratic country, surely the right course for those who wish to make the change is to inform and persuade and educate the public. It is not 167 the right democratic course to go flat against public opinion. If the House of Commons or your Lordships' House or Parliament generally were to continue to take that course, then in my view it would mean the destruction of Parliamentary democracy. I am satisfied that all these considerations will be taken into account in another place, if we give them an opportunity to do so. In my view it is our plain duty to do so. For all these reasons, after very careful consideration, I propose to go into the Lobby in support of Lord Llewellin's Amendment. I believe this to be in the interests of the country generally; but I do it, as I believe many other noble Lords will do it, without prejudice to the future. If the situation improves, if the forces of law and order regain full measure of control in this country, if the certainty of punishment is re-established throughout the land and the present reign of violent crime is stamped out, I shall be very ready to discuss the matter again with an open mind.
§ 7.12 p.m.
§ LORD CHORLEY
I think I ought to begin my speech by explaining that, although I speak from the Front Government Bench, I am being left completely free to express my own personal views about this matter. The hour is very late. We have had a remarkable debate, in which some thirty members of your Lordships' House have made speeches full of acute observations. I have here a substantial sheaf of notes, and if I were but to devote one minute to each speech which has been delivered over the last two days, it would take me at least half an hour to do so. Therefore, while I hope to deal with a number of the major points which have been made, your Lordships will excuse me if I do not make any sort of attempt to deal with the points seriatim. For personal reasons I have been very anxious to take part in this debate, but I must confess frankly that during the last half hour I have been wishing it might be some other speaker. I have the honour to hold a position which has been held by other members of your Lordships' House in the past and by that most distinguished lawyer, the late Lord Buckmaster—the presidency of the National Council for the Abolition of the Death Penalty. That is the particular 168 reason why I wish to address your Lordships on this matter.
I do not say that by way of observing the custom of your Lordships' House that members should declare an interest, but because I wish to draw the attention of your Lordships to the fact that there have been many Judges of very great eminence who have taken this point of view. Another name mentioned this afternoon was that of Lord Craigmyle, better known as Lord Shaw of Dunfermline, who took a strong view. All four Law Officers in the present Government take this view. Nevertheless, it is an important factor in our discussion that a number of noble Lords with great experience in the administration of the law have advised your Lordships against this clause. Great weight has been attached to their views by the noble Marquess, the Leader of the Opposition. Your Lordships attach great weight always to the views of men who have had practical experience in the conduct of affairs, and this is obviously a matter which one needs to meet. Because it is a quite extraordinary thing that during the whole history of penal reform in respect of punishment, the Judges who administer the criminal law have been solidly on the side of "No change."
I do not wish to go over the whole history of how Lord Ellenborough and the Judges for whom he spoke acted in 1810, but it is true that when the Garrotting Acts were passed the Judges supported them. It is true that in connection with corporal punishment the Judges put it to the Select Committee that they would be in favour of maintaining corporal punishment. It is true again that on this present occasion they have advanced their view of "No change." I regret to say that the Judges who administer our criminal law are regarded by most penal reformers as their worst enemies. I think that is a most unfortunate thing. I have heard it said that much administration of the criminal law and dealing with criminals leads to their adopting a callous attitude. I do not believe that for a moment, and I am sure that after hearing them in this House your Lordships will agree with me.
But I think there is something—in fact, a good deal—in what the noble Viscount, Lord Stansgate, said yesterday, that the Judge (that is, our Judges of the King's Bench Division) makes his contact with 169 the criminal, the murderer, in a tensely dramatic atmosphere, in which all the sordid side of a man's life is brought before him. His reaction is naturally against this foul crime and against the perpetrator, and in that sort of atmosphere it becomes extraordinarily difficult for the Judge to see the wood for the trees. It becomes almost impossible for him to withdraw himself sufficiently to form a detached and scientific objective opinion on this very difficult problem, the sort of objective opinion that the scientific student of penology forms, the sort of opinion that a great Judge like Lord Buckmaster, whose experience had lain in a different court, was able to take on a dispassionate view of the whole of the evidence. It is an unfortunate thing that, on the whole, those of our Judges who administer the criminal law are not deeply versed in the science of penology, which over recent years has made very great progress. It has been a significant fact that those with judicial experience who have taken part in this discussion in your Lordship's House have not drawn our attention to the evidence which is contained in the Report of the Select Committee. Therefore, I suggest that, while weight should be given to the opinions of those noble Lords, it would be quite wrong to attach conclusive weight to their opinions.
I should like to turn for a moment to the speech of the noble Viscount, Lord Samuel. There were two main points in his speech. First of all, with rather less than his usual generosity, if he will allow me to say so, he accused the Government and the Members of another place of flouting public opinion in this matter. He accused the Government, in effect, of playing fast and loose. I suggest to him that the Government adopted what was essentially a liberal attitude. They said: "This is a matter on which opinion is much divided. It does not follow political lines. We will advise the House in a particular way, but we will leave it free to the House to come to such decision as they think is right, exercising their best judgment." Surely, having taken that opinion, the Government were perfectly right in accepting it and deciding to act upon it.
I am rather surprised that in a debate of such a high standard as this nobody has referred to the advice to Members of 170 Parliament given by Edmund Burke in his letter to the electors of Bristol, which everybody remembers. In it he makes it clear that, in his opinion, the duty of a Member of Parliament is to give his own mature judgment, his conscientious opinion, in the decisions to which he comes in his vote in Parliament.
§ VISCOUNT SAMUEL
May I interrupt the noble Lord? Burke would not have suggested that the individual Member of Parliament ought to give two contradictory opinions according to the vote of the House.
§ LORD CHORLEY
I am quite sure Burke would have agreed that the Government, having left the matter to the free vote of the House, were constitutionally right in accepting that vote after it had been given. The noble Viscount then went on to say that he was sympathetic with the view that the death penalty should not be used over a much wider range of murders than has been the custom in the past, but that there were a number of cases, particularly the cases of murder of policemen and prison warders—and I think he mentioned political offences—where it ought to be retained, and that he would leave it to the Home Secretary to make the decision in those cases. I think there has been an exaggeration in this matter. So far as I have been able to study the Report of the Select Committee, no murderer has ever murdered a prison warder in this country. I think a case in Australia is mentioned. The number of cases of the murder of policemen in the execution of their duties is extraordinarily small. The right reverend Prelate, the Lord Bishop of Chichester, pointed out that the noble Lord, Lord Llewellin, was wrong in saying that there had been a case of murder since the debate in the other place. There was the case of the murder of a policeman in February, which I think I am right in saying is the only case since the end of the war.
§ LORD CHORLEY
I agree that there is another man who has been seriously injured. So far as I am concerned, I should be quite prepared to make an exception for the protection of policemen.
§ SEVERAL NOBLE LORDS: Why?171
§ LORD CHORLEY
It is perhaps one of the cases where premeditation does come in. A man does not take his revolver or his lethal weapon with him without thinking what he is doing. Our case is that in the ordinary circumstances of murder it is not a case of premeditation and, therefore, you do not get this deterrence. If I may refer again to the speech of the noble Lord, Lord Llewellin (I am not sure whether he was in the House when the right reverend Prelate made his speech), in talking about the time since the decision in another place—which is just seven weeks ago to-night—he said:There has seldom been a period—I do not say this is conclusive—where one has seen reports of so many murders in so short a time.The right reverend Prelate pointed out that during that period of seven weeks there had been fifteen murders, including one political one and one which obviously took place before the seven weeks' period, four in which the murderers had committed suicide, and one by a man who was obviously a maniac; whereas in the seven weeks before there were sixteen murders. I ask your Lordships to consider that fact, because it shows the sort of impression that can be made on anybody's mind, perfectly honestly, by reading the newspapers, instead of making a careful objective study of what has happened. It reminds me of a story about a Select Committee in another place, which was presided over by a Member of the name of Morton—Alpheus Cleophas Morton—who had a very distinguished civil servant appearing before him and his Committee. The civil servant, Sir Francis Mowat, said: "If I may summarise the facts, Mr. Morton…";and Mr. Morton said: "Now, Sir Francis, what we want is the truth, not a lot of facts." The impression of the truth one gets without a careful, close analysis of the facts is almost bound to be wrong. On this side of the House, the contention of those who are taking the point of view which I am putting before your Lordships is that this matter has to be decided on a careful objective consideration of the facts.
The first point is that what we are proposing is an experiment. That point was carefully made in a most able speech by the noble Lord, Lord Merthyr. Some of your Lordships have given attention to it, and said that you are not prepared to 172 experiment with the lives of the citizens of this country. If one could think that this experiment had in fact been successful, is there a member of your Lordships' House who would not be glad? The noble and learned Viscount the Lord Chancellor said that he would be only too willing to confess that he was wrong if the experiment proved to be right. Surely, that would be the opinion of all your Lordships, because we should have got rid of the grim squalor of these criminal trials, of the horrible mass hysteria in the newspapers and in the crowds which surge around the Assize Courts. We should have saved the lives of a number of men, many of whom, as the noble Viscount, Lord Templewood, pointed out, are of human material which is reclaimable. Surely, that is an experiment which it is worth taking some little risk to pull off.
§ LORD CHORLEY
Are we asking that this country should be the first to conduct this experiment? We are not asking your Lordships to voyage in perilous uncharted seas, because practically every civilised country in Europe has already made the experiment, and made it with success. Some of our own great Dominions have made it, and made it with success. When the noble Earl, Lord Glasgow, says: "Can you compare our conditions with those in other countries?" I would point out that the people of New Zealand and the people of Queensland are men of our own stock. What can succeed there can surely succeed here. If the noble Earl says that those are rural agricultural countries, and that we are an urban community, I ask him to consider the case of Belgium—an almost entirely industrialised country—which abolished capital punishment before practically any other country. A number of the great industrialised States in America have abolished capital punishment, and there the abolition has been quite successful. If one looks at the list of those countries which have abolished the death penalty (I will not read it to your Lordships) one feels a certain degree of shame that this great country, which was for so long in the vanguard of social reform, should have fallen so far behind. We are told that this is not the time to abolish the death penalty. Noble Lords 173 say: "I agree with you in principle, but you have chosen the wrong time. You have chosen the time just at the end of a war."
§ LORD LLEWELLIN
May I interrupt the noble Lord? Is he saying that this is the time? Has he not read the Home Secretary's speech in the other place?
§ LORD CHORLEY
I have read the Home Secretary's speech in the other place. I am now making my own speech, as I explained at the beginning. This outbreak of crime occurs at the end of every war because, as has been pointed out on both sides of the House—and by the noble Viscount, Lord Simon, in most impressive terms—when you have been teaching men over a number of years that it is their duty to kill, you are bound to have for a certain period, until things settle down, a good deal of violence. That occurred after the First Great War and it occurred after this last war. I would draw your Lordships' attention to the fact that in Belgium, where this phenomenon occurred in exactly the same way in 1919 and 1920, the Public Prosecutor was so much frightened by the situation which had developed that he came to the Belgian Parliament and asked that an Act should be introduced to reestablish the death penalty in that country. While they were talking about it, time went on and the troublous period came to an end; the number of murders dropped, and became less than before the war had started. In other words, the Belgian Parliament was asked to pass what in effect was panic legislation. I suggest that you should take note of what happened in Belgium, and determine to have faith in the possibilities of this reform and decide to put it into action.
May I take up the Committee's time for a few minutes more on this question of deterrence? I entirely agree with everything that has been said, that the great deterrent to crime is the certainty of conviction. We have reached a stage in this country when, as the right reverend Prelate pointed out, out of 170 murders committed last year, only thirty men were convicted and only ten were executed. We have reached a stage when the deterrence, from the point of view of the certainty of conviction, has gone out of it. The noble Lord, Lord Oaksey, pointed out how juries do not convict; 174 they prefer to find a man insane, when obviously he is not insane, rather than convict, except in a comparatively small number of the worst types of case. This is exactly the situation which led Parliament in the early Nineteenth Century to abolish capital punishment in connection with theft, robbery and other crimes of that kind. Parliament was forced to do that because juries were refusing to convict; and in the end we shall be forced to do the same thing in connection with murder, because in a substantial number of these cases juries are in fact refusing to convict.
§ LORD WOOLTON
That is a most alarming statement. I wonder whether the noble Lord would give us the evidence for it?
§ LORD CHORLEY
The noble and learned Lord, Lord Oaksey, who has tried many of these cases, told us that juries found insanity upon the most flimsy evidence.
§ SEVERAL NOBLE LORDS: No.
§ LORD CHORLEY
Surely it is natural that a jury should always give the criminal the benefit of the doubt. If your Lordships find that in a substantial number of cases, where there is good evidence, juries are bringing in verdicts of "Not guilty" surely it indicates that the same sort of situation is developing.
The argument that I want to put forward to your Lordships on this question of deterrence is this. The punishment can deter only a man who has thought out his crime in advance; it is only the premeditated type of crime which is prevented. I do not mind whether the deterrent is death, or whether the deterrent is imprisonment. It is perfectly clear, from any statistical investigation which one likes to make, that the great mass of these crimes are not of the premeditated type. The Governor of Maid-stone Prison in his evidence before the Select Committee, said that only four or five murders per year in his experience were bad ones. I have been through all the cases of 1946 and 1947, and in only two of those cases is it possible to say that they were premeditated cases. More than half the cases were of a sexual character—the passionate type of case where a man loses his temper with his wife or his mistress, or something of that 175 kind. In those circumstances hanging does not deter a man. He does not sit and think: "If I do not recover my temper, if I strike a blow, I shall be hanged." Obviously he does not, and those are the sort of circumstances which the Home Secretary takes into account in deciding whether to advise His Majesty to grant a reprieve. Therefore, it is only in respect of a very small number of these cases that we find that the punishment can possibly act as a deterrent. The other type of offender will not be deterred, although the sort of punishment may be—
§ LORD LLEWELLIN
I hope the noble Lord does not want to mislead the House, but I have here the figures for 1945. The number of murders known to the police was 181. The number brought to trial was 64, so the difficulty is largely with the police—I am not blaming them—that 120 cases could not be brought to trial. Some of those were suicide. Of those not tried, one was because there was no prosecution, 15 because they were insane on being arraigned, and of those who were tried, 21 were convicted as against 9 acquitted. That does not show, I think, that it is the juries who are refusing to convict in appropriate cases. That applies to other years which I could quote.
§ LORD CHORLEY
I was not suggesting that there was a trial in the case of every murder. According to the noble Lord there were 64 cases which were brought to trial and, I think he said, 21 convictions. My argument is perfectly clear. I suggest that, in the great mass
§ of these cases, hanging is no deterrent. It may well be that it is a deterrent to a man as to whether he will go out with a revolver. If you can convince me that it is a deterrent I shall change my view. It is because I am quite sure that it is not that I take this view, and I agree with my noble friend Lord Pethick-Lawrence, who said exactly the same. There may be the political case and the case of treason which the noble Lord, Lord Llewellin asked me about. A man does not commit treason in a sudden passion, but he thinks it out; therefore, in his case it may be a deterrent. I am quite prepared for the death penalty to be retained in the case of treason, or in the case of the murder of a policeman or warder, because I think in those cases it may be a deterrent. As I say, a man does not take his pistol with him when he goes to commit a burglary, without thinking what he is doing.
§ Is not the real reason why so many of your Lordships are not prepared to make this experiment the reason of fear? Is it not the fear of problematical possibilities which may never happen? Is it not fear which causes war, which causes so many of these terrible social evils which we are content to suffer just because we fear to take the possible risk of tackling them? I ask your Lordships to sweep this fear from your minds, and to sweep out at the the same time this terrible penalty which comes down to us from primitive times.
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Their Lordships divided: Contents, 28; Not-Contents, 181.177
|Jowitt, V. (L. Chancellor.)||Amulree, L.||Holden, L.|
|Amwell, L.||Marley, L.|
|Huntingdon, E.||Chorley, L.||Merthyr, L.|
|Clifton, L. (E. Darnley.]||Morrison, L.|
|Addison, V.||Darwen, L.||Pakenham, L.|
|Hall, V.||Douglas of Kirtleside, L.||Pethick-Lawrence, L.|
|St. Davids. V.||Faringdon, L. [Teller.]||Raglan, L.|
|Stansgate, V. [Teller.]||Foley, L.||Rochester, L.|
|Templewood, V.||Hare, L. (E. Listowel.)||Shepherd, L.|
|Henderson, L.||Walkden, L.|
|Chichester, L. Bp.|
|Richmond and Gordon, D.||Abergavenny, M.||Salisbury, M.|
|Rutland, D.||Camden, M.||Willingdon, M.|
|Sutherland, D.||Cholmondeley, M.|
|Exeter, M.||Clarendon, E. (L. Chamberlain.)|
|Abercorn, M. (D. Abercorn.)||Normanby, M.||Airlie, E.|
|Aberdeen and Temair, M.||Reading, M.||Albemarle, E.|
|Amherst, E.||Airedale, L.||Iliffe, L.|
|Bathurst, E.||Aldenham, L.||Jessel, L.|
|Beatty, E.||Altrincham, L.||Kenilworth, L.|
|Birkenhead, E.||Ashton of Hyde, L.||Killearn, L.|
|Buckinghamshire, E.||Barnby, L.||Kinnaird, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Blackford, L.||Layton, L.|
|Borwick, L.||Leathers, L.|
|Dundonald, E.||Boyle, L. (E. Cork and Orrery.)||Llewellin, L. [Teller.|
|Fortescue, E.||Brabazon of Tara, L.||Lloyd, L.|
|Gainsborough, E.||Braye, L.||Lucas of Chilworth, L.|
|Halifax, E.||Broadbridge, L.||Lyle of westbourne, L.|
|Howe, E.||Brocket, L.||Mackintosh, L.|
|Lichfield, E.||Broughshane, L.||Mendip, L. (V. Clifden.)|
|Lindsay, E.||Burnham, L.||Milverton, L.|
|Lucan, E.||Calverley, L. [Teller.]||Middleton L.|
|Macclesfield, E.||Carrington, L.||Monkswell, L.|
|Munster, E.||Clydesmuir, L.||Monson, L.|
|Powis, E.||Charnwood, L.||Montagu of Beaulieu, L.|
|Radnor, E.||Chatfield, L.||Moynihaim, L.|
|Rothes, E.||Cherwell, L.||Oaksey, L.|
|Selborne, E.||Clanwilliam, L. (E. Clanwilliam.)||O'Hagan, L.|
|Selkirk, E.||Oxenfoord, L. (E. Stair.)|
|Shaftesbury, E.||Clwyd, L.||Quibell, L.|
|Spencer, E.||Courtauld-Thomson, L.||Quickswood, L.|
|Yarborough, E.||Cozens-Hardy, L.||Rankeillour, L.|
|Cromwell, L.||Remnant, L.|
|Bledisloe, V.||Cunliffe, L.||Robinson, L.|
|Bridgeman, V.||Daryngton, L.||Roche, L.|
|Bridport, V.||De L'Isle and Dudley, L.||Rockley, L.|
|Bruce of Melbourne, V.||Denham, L.||Romilly, L.|
|Cecil of Chelwood, V.||Deramore, L.||Rotherham, L.|
|Chelmsford, V.||Digby, L.||Rotherwick, L.|
|Cowdray, V.||du Parcq, L.||Rushcliffe, L.|
|Davidson, V.||Ellenborough, L.||Saltoun, L.|
|Devonport, V.||Fairfax of Cameron, L.||Sandford, L.|
|Elibank, V.||Fairlie, L. (E. Glasgow.)||Sandhurst, L.|
|Falmouth, V.||Foxford, L. (E. Limerick.)||Savile, L.|
|FitzAlan of Derwent, V.||Gage, L. (V. Gage.)||Schuster, L.|
|Hailsham, V.||Gifford, L.||Selsdon, L.|
|Harcourt, V.||Glentanar, L.||Sempill, L|
|Lambert, V.||Goddard, L.||Sherwood, L.|
|Leverhulme, V.||Gorell, L.||Sinha, L.|
|Long, V.||Grantley, L.||Soulbury, L.|
|Marchwood, V.||Greville, L.||Stamp, L.|
|Margesson, V.||Hacking, L.||Stanmore, L.|
|Maugham, V.||Hailey, L.||Strathcona and Mount Royal, L.|
|Monsell, V.||Hamilton of Dalzell, L.|
|Rothermere, V.||Hampton, L.||Swaythling, L.|
|Samuel, V.||Hankey, L.||Templemore, L.|
|Simon, V.||Harlech, L.||Teviot, L.|
|Swinton, V.||Hastings, L.||Teynham, L.|
|Trenchard, V.||Hatherton, L.||Trent, L.|
|Hazlerigg, L.||Tweedsmuir, L.|
|Winchester, L. Bp.||Hemphill, L.||Wardington, L.|
|Hindlip, L.||Windlesham, L.|
|Aberconway, L.||Hutchison of Montrose, L.||Wolverton, L.|
|Ailwyn, L.||Hylton, L.||Woolton, L.|
§ Resolved in the Negative, and Amendment agreed to accordingly.
§ [The sitting was suspended at a quarter before eight o'clock and resumed at a quarter past nine]
§ Clause 2:
§ Abolition of penal servitude, hard labour and prison divisions.
§ (3) So far as any enactment, provides that a person sentenced to imprisonment or committed to prison is or may be directed to be treated as an offender of a particular division, or to be placed in a separate division, it shall cease to have effect.178
LORD OAKSEY moved to add to subsection (3):
Provided that Courts of Assize and Quarter Sessions may impose a sentence of rigorous imprisonment for of maximum term six months and the Prison Commissioners shall make rules for such imprisonment.
The noble Lord said: I beg to move the Amendment which stands in my name, and I want to move it for two reasons: first, because it raises a question of principle as to the division of authority between the Judges and the Executive, secondly, because I think there are
a considerable number of cases where it is eminently desirable that a short sentence should be given though for a serious offence. In the first place, dealing with the division of authority between the Judiciary and the Executive, my submission to your Lordships is that the only person who can know the facts of the case is really the Judge. Although I know that many of your Lordships have had judicial experience, I should like to remind your Lordships of what the Judge really does. First, in nearly every case he reads the depositions; he then goes into court; he hears all the evidence; he sees the witnesses; he has the duty of summing up the facts to the jury; he has the jury's verdict, and he then has to consider the question of sentence. He hears every witness who wishes to speak on sentence and the rules of evidence are not observed at such a time. He is, in my submission, the only person who can know what the right sentence should be; whereas the Prison Commissioners, the Home Office or the Governor of a prison, from the very nature of things, cannot know what the real facts of the case are.
§ The prison authorities receive the prisoner labelled simply as a certain class of offender. He comes along as a housebreaker, burglar, or whatever it may be, and it is quite impossible for them in the ordinary class of case to get a true view of the facts of the case. Of course, in some exceptional cases they may have a transcript of the shorthand notes. If the case has gone to the Court of Criminal Appeal the shorthand notes will have been transcribed and they may then be able to see the facts from the shorthand transcript. But that is an entirely different thing from the position of a Judge, who has seen the witnesses. I can assure your Lordships that Judges take the greatest interest and concern in deciding upon the sentences which they give. Speaking from my own experience, I know that the mere reading of the depositions is nothing like sufficient to give a full view of the facts, and that when you have read the depositions in a case you go into court and, in ninety-nine cases out of a hundred, your view of the case is altered by what you hear in court. Even in a case where there is a plea of guilty, what you hear by way of evidence as to a man's character in a great 180 number of cases entirely changes your view as to the appropriate sentence. In my submission, it is one of the fundamental errors in the system which penologists, as they are sometimes called, have imposed upon the country that the Judges should have now no influence at all upon sentences except in regard to time. They have not even a final decision upon that, because the Home Secretary can let men out whenever he likes.
§ But whatever be the length of time the Judge imposes by way of sentence of imprisonment upon a prisoner, Clause 2 proposes to put upon the Statute Book the abolition of penal servitude, the abolition of hard labour and the abolition of the divisions in the prison system. That, I believe, has to a large extent been done in practice for many years, though in my humble opinion it has not been done legally, because the Prison Commissioners' statutory authority has been to make rules and regulations for penal servitude, for hard labour and for divisions, but what, in fact, they have done is to abolish penal servitude, abolish hard labour and abolish divisions. But, however that may be, I submit to your Lordships that that is a fundamental error in the system, and what I propose, in this Amendment, is that Judges and Quarter Sessions should have the power, in appropriate cases, to give a sentence of limited duration of a harsher order, a more rigorous form of imprisonment, than exists under the ordinary system.
§ There are cases—I, myself, have had quite a number of them before me—in which a man has committed a crime of a most serious and terrible nature, and for various reasons, generally family reasons, it is undesirable to keep him away from his wife and children for a long period. At the same time, it is desirable to impose on him a sentence which will make him remember the crime and dread the punishment. I am not suggesting, on this clause, that whipping should be reintroduced for this class of offence—not in the least. But I think the Prison Commissioners ought to be able to make regulations for some form of rigorous imprisonment which would be harsher and more severe than the ordinary form of imprisonment. Then Judges in cases where they imposed short sentences would be able to distinguish in the sentences so imposed.181
§ One of the cases which I had in mind—I mentioned it on the Second Reading—was that of a man who was said by his wife and other people who gave evidence about him to be a good husband and a good father, but, when partly under the influence of drink, he had violated his own child of under five years of age. What sentence was I to impose upon him? Was it to be a sentence of short duration—three months or six months? All I could do in dealing with a case of that sort, it seemed to me, was to impose a sentence of at least twelve months. I do not remember what the sentence was that I actually imposed, but it was absolutely inconsistent with the view I held as to the proper sentence. I believe in shock in punishment, and shock in mercy. Frequently, with a calendar—that is to say a record—of a prisoner before me who has been in prison over and over again, if I have thought there was one spark of good in the man, one possibility of reform, although he has committed some serious offence, I have bound the man over because I believe in shock. I believe that the shock of mercy may possibly pull a man up and make him go straight. In the same way, I believe in the shock of punishment and that it should be severe punishment for a short period in the class of case of which I have spoken. I beg to move.
Page 3, line 3, at end insert the said proviso.—(Lord Oakscy.)
§ LORD LLEWELLIN
Perhaps your Lordships will allow me to say a word or two on this Amendment. Frankly, I look upon it from a different point of view, because it is only four, five or six limes a year that I am called upon to preside over a court of Quarter Sessions. There, of course, exactly the same problems—although the offences are not so grave—come before those who are magistrates and who sit at Quarter Sessions. It is very difficult to know what to do when a man comes before the court in such cases as these. It is certainly no good giving a short sentence of ordinary imprisonment. The present régime—and we all support it for the vast number of offenders—is designed to try to reform the man, but if he is given two or three months' ordinary imprisonment there is no time for such reformation to take place. The position is most difficult in 182 the kind of cases which normally came before Quarter Sessions, in which one has a young man who has been to an approved school, but who has gone wrong again, has been to Borstal and after that has committed several other crimes, usually burglary or housebreaking. Often he comes before the court and asks for perhaps as many as eight or ten additional offences to be taken into consideration.
That sort of case might be dealt with by a short sharp sentence of a month or two in prison, which he would not like, and which might stop him at the outset of his criminal career. But when we have only one method of imprisonment, it is not likely—save in the exceptional cases just referred to, where the shock of binding over after being many times in prison may have a good effect—that any good will be done by binding over two or three times. The man is beyond the age for Borstal. It is true that he might be fined, but a fine might not be appropriate to the first offence Thus, one has in a number of cases a very grave problem to lake into consideration. And the only thing that can be done under the new system, with no hard labour or penal servitude, is to give longer and longer terms of imprisonment. That is the only step that can be taken to mark the gravity of the offence, and also to make a number of people—perhaps eight or ten householders who have had their goods stolen—feel that something effective has been done. That is the only thing that one can do, and it is a serious problem, sometimes, when a man has a wife and children dependent on him, if the; only alternative left to the court is to give him two or three years' imprisonment.
It would be very much better if, in appropriate cases—and the noble Lord restricts his Amendment to Courts of Assize and Quarter Sessions, and I may say that at Quarter Sessions as a rule there are people of some experience presiding—a man could be given a term of hard work and be kept at it, just as was done in military prisons at Aldershot during the war. I do not want to see a fellow beaten up in prison or anything like that. I am as humane as any man in your Lordships' House. But what we want to do is to make such a man feel that prison is not a place to which he wants to return, and that in fact he will not return there. If 183 there is no power of this sort, the only thing will be to have prison sentences made longer, with the result that prisons will be over-full. To me the worst part of imprisonment would be to be made to sleep with two other people in a space the size of the prison cell; and that is happening in our prisons to-day. Under the conditions of the Bill, we would have to sentence a man to a longer term of imprisonment, because under the present system he is likely to lose his fear of prison and there would not be time enough to reform him. I know it is against all the modern trends in the Home Office, but it is worth while our realising that a very real problem exists. It would be much more merciful to the prisoner to have a rigorous term of imprisonment which would quietly give him the shock to which the noble Lord referred, so that he is most unlikely to take any similar action again.
§ LORD DU PARCQ
I have had a little experience also on the Bench, both as Recorder and Judge of the King's Bench Division. I ought to say I feel great doubt whether anything would be gained by adopting the course which the noble and learned Lord has proposed. I have known the sort of case to which he refers, but I doubt very much whether there are enough cases for which the punishment should be one or two months of what is called rigorous imprisonment to justify inserting this clause in the Bill, and putting this new task upon the Prison Commissioners. I do not know what the phrase means, because I know nothing about military prisons. What have the noble Lords, Lord Llewellin and Lord Oaksey, in mind when they talk of rigorous imprisonment? The phrase is known to me as roughly the equivalent in India of a term of hard labour. In India we talk about rigorous imprisonment, while here we talk about hard labour. What is hard labour? It has a history which I just mentioned when I spoke on Second Reading. It used to mean the treadmill, the crank and shot drill, to which the noble and learned Viscount the Lord Chancellor referred, and it used to mean fairly long periods—very long periods to begin with—of solitary confinement.
All that has been tried and found to be a complete and utter failure. Anybody who has looked at the history of 184 the matter knows that it was a complete failure, and it was given up. When I had just started at the Bar, hard labour had come to mean very little. Oddly enough, there were some Chairmen of Quarter Sessions and Judges who went on saying that they were passing a terrible sentence when they passed the sentence of two years with hard labour. There was a time when it had been terrible, but I rather think that when the learned Judges were passing that sentence, it had already ceased to be a dreadful punishment. For years it used to be a fearful punishment, but now it is imprisonment with a reasonable amount of work and no solitary confinement. For practical purposes, we know, there is no difference now between hard labour and ordinary imprisonment. It used to mean a month of solitary confinement and a plank bed. The solitary confinement went, because that was found to be a hopeless thing. The plank bed remained, except in cases where it was dispensed with by a governor on the advice of the medical officer. Never in my time as a Judge did I pass a sentence with hard labour on a woman, because I knew that it would not make the slightest difference if I did; the punishment is exactly the same in the case of a woman. And I seldom did it in the case of a man.
It would be only fair, if we were to introduce this clause, to tell the Prison Commissioners what we mean by "rigorous imprisonment." If it means simply being kept at hard work, then I say that in all cases where a man is fit to work hard in prison he ought to be made to work hard. It will be a ridiculous state of affairs to appeal to working men to put their last ounce of labour into their work at the present time, so that we may increase our exports, if we are to reduce the hard work in prison. I want to see everyone work hard in prison. I really feel, although I understand the difficulty that arises, that, in practice, it is not one which cannot be overcome. I say quite frankly (I know my noble friends are just as humane as I am, and I hope they will not feel I am less humane than they) that when a young man who had been to an approved school, and then to Borstal, came before me with a long list of housebreaking offences, I felt no hesitation in giving him a long sentence of imprisonment, unless there 185 was a particular reason for doing otherwise. And I think it was good for him.
§ LORD WOLVERTON
I speak as a complete layman on this subject, but I would like to support the noble and learned Lord, Lord Oaksey. I feel that a distinction should be drawn. I can speak only from, my own humble military experience. In the Army, often when one has had a man in front of one, and one has given him fourteen or twenty-one days C.B., and he has come up again, the only effect has been that he has gone in front of the CO. And the C.O., having heard the case, has probably given him twenty-eight days' detention at one of the "glasshouses." I have seen some of my own men who have come out of there—luckily they were very few—and they did not want to go back. The discipline was very strict, and there was rigorous imprisonment. I feel that there must be some distinction drawn between first offenders and more hardened offenders, and that is why I would like to support my noble friend Lord Oaksey in this Amendment.
§ VISCOUNT TEMPLEWOOD
Perhaps, as one who has had a good deal of experience on questions of this kind at the Home Office, I may say a word or two. Let me say, to start with, that I agree that there is the problem of the exceptional case to which the noble Lords, Lord Oaksey and Lord Llewellin, have just referred. It is one of those many occasions in dealing with penal methods where, on the one hand, there are these hard and difficult cases and, on the other hand, there are the general principles upon which we are trying to adapt our penal methods to modern conditions. So far as our penal methods go, we found, just as the noble and learned Lord, Lord du Parcq, has said, that these old categories of penal servitude, ticket-of-leave, and so on, are out of date. They are out of date because new methods have been adopted in the prisons into which they do not fit.
Let me take the case of prison labour. I would be entirely with my noble and learned friend Lord du Parcq in saying that it should be as hard as ever it can be. But let it be intelligent. The old treadmill business, I suppose, was the hardest labour to which anybody could be condemned; but it was a failure. It is 186 much easier to deal with even these difficult cases upon one or two general principles. First of all, there should tie a sensible division of labour—the old divisions are quite out of date—under which in one prison there is a particular kind of treatment and in another prison another kind of treatment—the principle, in fact, of classification. Secondly, there should be the principle of trying to get the best out of a criminal as soon as you can. The old idea was that when a man went to prison he should start off in the hardest possible conditions. That was the conception of the treadmill, which was a conception based upon breaking his spirit. The new method that we have often heard quoted in our discussions to-day and yesterday—Sir Alexander Paterson, I think, was one of its pioneers—was to give a man hope for the future when he got into prison, and not to start him upon the lowest rung but to give him certain privileges of which he could be deprived if he behaved badly.
That system has been found to work much better than the old system. The improvement has shown itself in many directions. It has shown itself particularly in the better discipline which now exists in our prisons, as compared with that existing in the prisons of the past. A man is given hope from the start. He is not put into what he would regard as hopeless conditions. In three cases out of four, that method is found to be more effective than the other method. We have heard nothing from the noble Lord, Lord Oaksey, as to what he means by rigorous imprisonment. Does he mean a lower diet than the prisoner gets at present? I very much wonder whether the medical officers in the prison would say that that is safe.
§ LORD OAKSEY
Perhaps I might interrupt my noble friend. I thought that the Prison Commissioners were sufficiently able to devise a form of rigorous imprisonment. It does not seem to be for me to suggest the exact, details the form of imprisonment should take. All I am suggesting is that it should be a more severe form of imprisonment than the ordinary system.
§ LORD LLEWELLIN
I had no intention whatever of supporting this Amendment in order that we should go back to, the treadmill, or anything like that. Do not let us get this matter confused in that kind of way. I know that the majority 187 of people who go to prison now are given nothing to do; they are idle during the whole of their time in prison because in quite a number of cases there are not enough jobs. I was not suggesting a lower diet but that they should be kept at work for eight, ten or twelve hours a day—more than they would have to do to earn their living in civil life—so that they would really have a hard working day. In that way they would be kept hard at work on a job for a short space of time, and not for a period of years.
§ VISCOUNT TEMPLEWOOD
I still do not understand what is intended. I agree entirely with my noble friend that you should make them work as hard as they can. I have the strong impression—and it is founded upon a good deal of experience—that that is not happening in the prisons to-day. Where it is not happening, by all means let it be introduced. But I do not regard that as a different category of imprisonment—I regard it as an improvement upon the present system. I would venture to remind noble Lords that this was one of the questions considered by the Committee on Persistent Offenders, of which the noble Lord, Lord du Parcq, was a very distinguished member. I have that Report here. I will not worry your Lordships with it to-night, but Lord du Parcq's Committee—
§ VISCOUNT TEMPLEWOOD
I am sure the Committee were greatly influenced by the noble Lord's opinion. Anyhow, there is the fact, that this very weighty Committee was dead against any such proposal as we have heard this evening. For these reasons I greatly hope that your Lordships, having listened to what has been said and agreeing that we want prison labour to be better organised than it is at present, to be harder where it is not sufficiently hard, but not to go back to those characteristics of a former age and of a totally different 188 system, will agree that we should take advantage of all the existing experience of the Prison Commissioners, who are the people actually engaged in this work.
§ LORD CHORLEY
I am afraid we cannot accept this Amendment. I have the greatest sympathy with what is in the mind of the noble Lord, Lord Llewellin, because I find myself, on about the same day as he, in much the same position. I also have great sympathy with the prolegomena, so to speak, of the noble Lord, Lord Oaksey's speech, because as a humble Chairman of Quarter Sessions I feel some difficulty; but if I might look at the matter as it appears to me at the moment, I would say that the whole conception of dealing with prisoners in prison has been revolutionised over the last years. I think we need to establish a sort of partnership between the Judge and the Prison Commissioners which has not been established yet. I do not think the object which the noble Lord has in view is in any way accomplished by the Amendment he has put down to this clause. In regard to that, the case against him, if I may say so, has been made with such authority and cogency by both the noble Lord, Lord du Parcq, and the noble Viscount, Lord Templewood, that there is hardly anything more for me to say. But I can repeat what has been said, that it is the official view, quite definitely, that the aim of the modern prison system is to make the prisoner work as hard as he j is capable of working—subject, of course, to his medical condition making him fit to work so hard. As the noble Viscount, Lord Templewood, says, that is in fact achieved in the best-run prisons. It is quite true that at the moment there are difficulties, because we are rather short of prisons; we have rather more prisoners than we want. It may be that there are also difficulties arising as a result of what, I hope, is only a temporary wave of crime.
But the noble Lord's object must either be to go back to some sort of hard labour type of imprisonment (and in regard to that, as has been pointed out, the thing has been tried for many years and has failed—the Report of the Committee on Persistent Offenders issued in 1932 says that undue severity, if it makes a man an enemy of society, injures society equally with the offender) or to deprive the prisoner of some of his amenities, to cut him 189 off from the library, from the companionship of his fellows and from things of that kind. That has the reverse effect. Instead of getting him into a frame of mind where there is some possibility of reforming him, it makes him embittered against the whole system; he becomes apathetic and aggressive and you are further off from achieving the objects that you had in view. In the case of the exceptional kind of man, such as the wretched father who in a state of drunkenness violates his little daughter, remorse of conscience will punish him for the rest of his life. Therefore, I hope that the noble Lord will not press his Amendment.
§ LORD GODDARD
I wish to say only that, much as I sympathise with the difficulties which confront Judges, which the noble Lord, Lord Oaksey, has mentioned and which I have often felt myself, I feel bound to support the views of the noble Lord, Lord du Parcq, and of the noble Viscount, if for no other reason than that it is far too difficult. Parliament has given the Prison Commissioners under the Prisons Act a wide variety of powers. Whether they have used those powers more widely than Parliament intended, in the first instance by making a difference between hard labour and simple imprisonment, which were two different forms of punishment prescribed by law, is a matter into which I need not go. The fact is that they have the right and the duty to prescribe the work to be done in prisons. I do not see how, if a sentence of rigorous imprisonment were imposed, the court that imposed it could see that it was carried out. It would have to be carried out in exactly the way that the Prison Commissioners arranged. Possibly one of the comments that can be made—and I make it after having been to see some prisons—is that at present there is great difficulty in usefully employing prisoners on productive work. That, I think, brings up various questions, with which I hestitate to deal. It might cause difficulties with the trade unions if prisoners were put on to productive work. I have heard that. One of the difficulties is that a man is shut up in his cell at five o'clock in the afternoon and he sits there until about seven o'clock the next morning. Those are matters that I feel cannot be remedied by inventing some particular form of imprisonment. I appreciate the motives 190 of the noble Lord, Lord Oaksey, in moving this Amendment and I fully realise the difficulties which judges have to face in assessing proper sentences in these cases. Nevertheless, I feel bound to agree with the views of the noble and learned Lord, Lord du Parcq and the noble Viscount, Lord Templewood.
§ LORD LLEWELLIN
I was not in the least thinking of going back to the treadmill in any of these ideas. It so happens, with our present shortage of prison staff, that many of these men go into prison and do only four or five hours' work a day because there are not enough staff to supervise the rest. I should have liked some power by which the courts could indicate the kind of people whom they would like the Prison Commissioners to send to the more rigorous treatment; then, thinking that that would take place, the court would give such people a shorter sentence. I certainly do not in any way wish to continue this discussion.
§ THE LORD CHANCELLOR
If I understand, as I think I do, the sort of thing that the noble Lord has in mind when he talks about rigorous imprisonment, I think it ought to apply to all prisoners; that is to say, prisoners ought to be kept occupied and they ought to work hard. They ought to work not on a soul-destroying labour, however, but at something which will give them back their self-respect. If that is what the noble; Lord has in mind, it seems to me self-evident that it ought to apply to all prisoners. One of the great problems in our prisons is that to which the noble Lord has just referred. One of the great problems is to find some really useful labour at which these people can be made to work. The noble Lord would disclaim any idea of a dietary punishment. He would disclaim all idea of anything like the treadmill, which is mere hard work with no self-respect in it at all. I presume, also, that he would disclaim any idea of things which will plague and tease a man. For instance, somebody suggested to me once that the man should have a motor horn which blew at every hour of the night and woke everybody up. Obviously, that is ridiculous, and no sensible person would think of it. When you have said all those things, what do you mean by rigorous imprisonment? What do you mean by rigorous 191 imprisonment which should not be applicable to every prisoner? I do not know. The Prison Commissioners tell me that, as things are to-day, it is absolutely impossible for them to devise a form of treatment which is applicable to a particular set of prisoners and, for purely administrative reasons, with the difficulties we are in to-day, such a scheme would break down. For those reasons, while I frankly say that I want to see rigorous imprisonment applied to all prisoners, I hope the noble Lord will not press his Amendment.
§ LORD OAKSEY
I will say only that I had' the impression that it would be quite reasonable to impose much more rigorous imprisonment upon a man for a short period than would be possible in regard to a long period. It seems to me quite impossible that in sentences of, say, three years a man could be made to go on working as hard as he ought, in my opinion, to be made to work if he is sentenced for three months for some offence of a really serious nature, for which the court feels he ought to get a short term of imprisonment. Not for a moment do I suggest that he would be reformed in that short term of imprisonment, and I entirely agree that, with reference to longer terms of imprisonment, the Prison Commissioners should attempt to reform all prisoners. My idea was solely that, in cases of this particular nature, a man should have a form of imprisonment which he would never forget. As the House takes the view that the Amendment is not susceptible of being passed, I will withdraw it.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clause 3:
§ Abolition of power to pass a sentence of whipping.
§ 3. No person shall be sentenced by a court to whipping; and so far as any enactment confers power on a court to pass a sentence of whipping it shall cease to have effect.
§ LORD GODDARD moved, after "whipping" (where that word first occurs) to insert: "with a cat o'nine tails." The noble Lord said: I am well aware that the Amendment which I am about to move will not commend itself to all your Lordships, although I hope it will to some, and I hope you will allow 192 me to state the object I have in view in moving it. Your Lordships will see that in the Bill the power of the court to sentence to whipping is abolished. I am entirely in sympathy with that so far as it applies to the instrument commonly called the "cat o'nine tails." I am not convinced that it is wise to take from the courts all power of administering some form of corporal punishment. I think it is a power which should be held in reserve, and given only in cases in which there is no other appropriate treatment, or where the treatment appears to be more appropriate than others. I am not going to speak with regard to juvenile offenders, because other noble Lords have more experience of them than I. There are many provisions in various Acts—such as in the Malicious Damage Act, the Larceny Act and so forth—which enable courts to give a sentence of whipping in regard to boys under the age of sixteen which they cannot give to adults. That is not the class of case I have in mind. The class of case I am thinking of is that of robbery with violence and assaults with intent to rob, or assaults with intent to choke. Those are the offences for which it is most often given.
§ It may be said, "If you are going to give it to brutes who behave like that why not flog them with the 'cat'?" My own view is that there is an element of brutality about flogging with the "cat," and one does not want to impose a sentence which may inflict permanent injury upon a man. If you can effect your purpose by any other means you should do so; but there are a certain number of cases in which one is in great difficulty to know the right method of dealing with the accused individual. I gave one illustration to your Lordships during the debate on the Second Reading. Let me give it again. A young farm labourer, who was given a good character as a worker by his master, with some small convictions against him but none of any importance, went into a jeweller's shop and asked to be shown some articles of jewellery. He chose certain goods, and while the jeweller was starting to wrap them up this young man whipped out a two-inch spanner and beat the old man on the head with it. Then he hit him again while he was lying semi-conscious on the ground, to make sure that he did not interfere with him.193
§ That was the young man, or lad, I had before me at Cambridge Assizes this time last year. What was I to do with him? I dare say he would never do anything of the sort again. I dare say that he would at any rate never inflict this bodily injury upon an old man. If I had had to deal with that young fellow by sentencing him to imprisonment, it surely was a case in which I should have had to give a long sentence—I do not say an excessive sentence but a long sentence. We are enjoined now that we should always deal with the offender and not with the offence. That may be very right with regard to a great number of cases but it is not, I think, universally right—and short sentences are no use whatever. Time and again—and I believe that all penologists agree upon this—one gets before one victims of short sentences. If I had given that boy a long sentence I should have deprived his master and the country of the services of a farm labourer by putting him for a long time in prison, where he would probably have deteriorated. What I did was this: I gave him quite a short sentence of imprisonment and a certain number of strokes with the birch. He would have been out in time for the harvest, and to do his work as a decent man. I am willing to be corrected about this, knowing that there have been many departmental Committees who have condemned every form of corporal punishment, but I wish they would tell me what I ought to do in some of these cases, if I am not to send these boys or young men—or even older men—to prison for long periods when savage and brutal robberies with violence have taken place. To do that means increasing the prison population, and the rate of that is certainly high enough already.
§ There is one other matter which I venture to put before your Lordships, which brought home to me in a very marked manner, a good many years ago, the value of giving a birching and not giving the "cat" In 1912, when Mr. Asquith's Government were; in power, an Act was passed which enabled courts to pass a sentence of whipping for the despicable offence of procuration, and for the still more despicable offence of living on immoral earnings—in the latter case on the second conviction, and in the former case on any conviction. That was as recently as 1912. When that Act came 194 into force those offences were rife in a large dockyard town. One of the wisest men I ever knew as a criminal judge, the late Judge Radcliffe, became Recorder of that place just about the time when that Act came into force. What did he do? He gave short sentence to these bullies—that is the name commonly applied to these men who live on immoral earnings—short sentences of imprisonment, never more than nine months, and several strokes, not with the "cat" but with the birch. What did he find? He found that these offences were stamped out in less than a year; and for this reason. It was the ridicule that these men met with among their associates—the ridicule because, if I may use the expression, their tails had been cut—that stamped out the offence in Portsmouth. And it has not, I believe, become common again.
§ There is no better weapon than ridicule. If these men are birched by a chief warder who knows his business—there is nothing of the tying up with the triangle, and the cutting of the flesh, there is only a "jolly good hiding"—it means that that man receives no permanent harm and may receive considerable good. Think of the men who have committed these filthy and brutal offences. Think of the men engaged in the white slave traffic, the men who drive out wretched prostitutes into the streets and who live upon their earnings. Are they the sort of men of whom it could be said that they would be brutalised by a birching? They are brutes already, and brutes they will remain; but if, when they come out, having been made to smart, they find themselves greeted among their mates with ridicule wherever they go, it is a most effective weapon against any recurrence of the offence. I will not tell you what happened at Portsmouth; it might not be appropriate in this debate. But the gestures these men met, and continued to meet, made them understand that this form of punishment was one that they had better not risk again, and that it would be well for them to live a better life and turn to some more honourable occupation. I say in ah sincerity that I would keep a form of corporal punishment as a last resort.
§ Let me remind you of a case which happened in the Home Secretary's constituency. It was brought to my attention, and the attention of my noble and 195 learned friend the Lord Chancellor, at about the time I was made Lord Chief Justice. Five young blackguards in a public park in Sunderland got hold of a perfectly respectable girl, a medical student, and held her down while they raped her in turn. Had they taken a penny from her pocket they could have been whipped. As they had not done so, they could not be whipped. As a matter of fact, what happened was that there was a great outcry because the Judge, believing, I think, that he was following out the wishes of the Prison Commission and the Home Office, sent them to Borstal. In my humble opinion they were not a proper case for Borstal. My predecessor, the late Lord Caldecote, had sent a young ruffian to penal servitude for raping a girl on a lonely road somewhere in Kent, and the Prison Commissioners moved the youth to Borstal, which was not encouraging. It has always seemed to me that some of these offences of violence, unaccompanied by robbery, should be dealt with by whipping. I am not asking your Lordships to increase the number of offences in which we should whip, but I think there is a great deal to be said for keeping this punishment in reserve. Do away with the brutality of the "cat," but keep the birch, which may hurt, which will not injure and which will bring ridicule on the person who receives it.
§ 10.10 p.m.
§ LORD ROCHE
I desire to support my noble and learned friend's Amendment. I cannot say how entirely I agree with him in believing that the punishment of whipping should be administered last and not first. I do not believe it should be indiscriminate, but there are, in the case of adults, some crimes which should be punished by whipping. In the case of boys, with whom I will deal later, and a little more at length, I think it is a most wholesome corrective, and I think it would not be in the interests of the lads themselves if the power of whipping were to be abolished. With regard to adults, the reason of it is surely this. As I stated earlier in the debate on the matter of capital punishment, it was a doctrine of Sir Alexander Paterson, who has been so often quoted, that punishment must be retributive. Nobody was more insistent on that than the most 196 reverend Primate, the late William Temple, who held that it was the basis of all penology.
As a mere Judge, I hesitate to speak about penology, because I understand from the noble Lord who replied to our debate before dinner that Judges know very little about it. I accept the rebuke for myself, but entirely repudiate it on behalf of my noble and learned friends. I think they know a good deal about it. They have studied it at college and elsewhere, and generally they have been studying it ever since; and they know as much about it as all the professors in the world. But that is a mere digression. If punishment ought to be retributive then, in my view, society has a right and a duty to mark with a visible sign its disapprobation of and indignation at certain crimes which are brutal and bestial. On Second Reading, to illustrate the views of Sir Alexander Paterson on a certain point, I gave the instance of a lad I tried in a Southern county who had brutally outraged a girl—brutally from the sexual point of view and brutally from the physical point of view: there was a mass of blood in the house, and she was left insensible. That lad, with the full approbation of Sir Alexander Paterson, I ordered to be flogged; and it was his idea that that should be flogging with the cat o' nine tails to mark the offence more distinctly. I do not dissent from the mover of the Amendment in the matter of the instrument. It may be that ridicule is a better thing to try than the cat o' nine tails. But at all events, that was Sir Alexander's view.
There was a rather interesting cross reference to this point. I had an assignment for the same evening to go to a boys' club, which I had visited before, in an adjacent and larger town. I duly went, after the sentence had been given and the court had risen. I found a large number of boys assembled and a hum of conversation going on. I asked the very excellent warden, "You have a very full house, warden, and there seems to be a good deal of excitement going on. What is it all about?" He said: "That case you dealt with is in the evening paper. That is what they are all talking about." I said: "What do they say about it?" he said: "They say he got what he jolly well deserved." I think that showed the 197 reaction of the average citizen, and the average boy, to the meet and proper punishment for bestial action.
I will trouble your Lordships with only one more illustration of the sort of thing which I mean, and the sort of case for which I think whipping should, as a rule, be reserved. I remember that some years ago (too many years ago for me to care to think of), I tried a man in the Midlands who had committed a large number of offences. He had stolen impartially from the collecting boxes of every form of religious body—Roman Catholic, Anglicans, Methodists and everybody else—and he had stolen clothes from poor people's lines. He had attempted a rape upon a middle-aged woman, who defended herself with great vigour and great courage; and the charge was attempted rape. He had gone on to commit a violent rape on a poor, weak young schoolmistress in a lonely country place—I can see her now, a frail delicate creature. When he had accomplished his purpose of ravishment, he stole her handbag and her other belongings, and then went back and ravished her again, in a semi or completely fainting state, in an unnatural position. What is one to do with a man like that? I could see only that that was a case for a long sentence and for flogging. So far as I remember, I gave him fifteen years' penal servitude, and as many strokes with the "cat o' nine tails" as modern opinion approved. I believe that the Court of Criminal Appeal thought that sentence was eminently appropriate. I should not be prepared—of course, your Lordships can do what you like—to say that there should be no whipping for a case like that.
Before I come to the question of the lads, there is opposed to this conclusion the Report of a Committee which is generally referred to as a strong Committee. I do not wish to speak disrespectfully of any Committee, and least of all one which contained several friends and acquaintances of my own, but I do say having read that Report not once, not twice, but many times, that the last thing I find strong in it is logic or consistency. I will tell your Lordships what it says. It recommends that flogging should be preserved—as this Bill preserves it—for assaults in prisons. Why does it do so? I quote from the Report. The 198 Report recommends the retention of flogging in prison, being satisfied:that the fear of corporal punishment has a strong deterrent influence upon prisoners who might otherwise commit serious attacks on prisons officers.They are influenced to that conclusion by some doubt as to what more one can do, except flog such a person. But they are quite wrong. If an assault is committed in prison, the sentence, which would previously have been mitigated or could have been mitigated by good conduct up to a third of its total length, can be restored to its original length. It is a false argument to say that there is no other remedy
§ A NOBLE LORD: And there can be a further sentence.
§ LORD ROCHE
And a further sentence. When the Committee come to consider offences outside a very different tone is adopted. I can never for the life of me see why people outside prison are supposed to act from different motives from those with which they act inside, or why prison warders, who, if necessary, could be armed, should be protected, and poor defenceless young schoolmistresses, or drunken sailors, or anybody else outside, should not be protected. What this strong Committee say about offences outside is this:We do not of course deny that it"—that is corporal punishment—has some deterrent effect.But they conclude:We are not satisfied that it is essential in the interests of society to retain whatever additional element of deterrence may be provided by the power to impose a sentence of corporal punishmentin additionto the alternative of a long sentence of imprisonment of penal servitude.Your Lordships will notice that they assume that a long sentence must always be given. For reasons that the noble Lord has indicated, I demur in coming to that conclusion. It may be appropriate to give a shorter sentence and to whip, or Borstal and to whip. They speak somewhat slightingly of "whatever additional element of deterrence may be provided" I should have thought that any additional element of protection was due to the 199 innocent outsider, just as much as it is due to the strong prison warder.
But the illogical nature of this Report does not end there. It goes on:We are prepared to admit that a man may take good care to avoid doing anything which might earn him a second flogging but there seems a great risk that instead he may be more apt to commit other offences for which flogging is not a penalty.Well, really! This is such a strong deterrent that they are driven out of the crimes of violence for which the penalty of flogging is imposed, and driven into a less violent course of crime. One would think that this recommendation was made in the interest of the criminal and not of the public. Need I say any more about that Report? It is really, if I may say so, almost absurd. But the important point is that there is a great deal of specious reasoning to repel the idea that flogging has stopped crime, in the manner that was indicated by the noble Lord in the case of the dockyard town. I think the authors had not seen many criminals, and still less had they seen their letters. Judges do. They may not know much about penology, but they know something about the facts. There is a strong censorship in prison, and the Judges have the benefit of the letters which the prisoners write.
The argument in the Report is: "Oh, they remember what happened a couple of years before, or three Assizes before." That cannot have been the reason why the crime fell off. The crime began to abate before Mr. Justice Day went to Liverpool. The learned Committee are vastly mistaken if they think that criminals do not know who is going to Liverpool. The lists are published about a year before, when the circuits are chosen, and I am sure criminals know a great deal about the Judges who are coming and what their characters are. This web spinning about dates does not impress me at all. The importance of this Report is simply this. The whole theory that whipping is out of date—and I admit that that theory has grown—is based on this Report. The Home Office, not unnaturally, because it was their Committee—the noble Viscount, Lord Samuel, appointed the Committee and adopted the Report of that strong Committee in a lecture he gave——
§ LORD ROCHE
Then I will distribute the praise in the matter. I will only say that the noble Viscount, Lord Samuel, came into the Home Office soon afterwards and approved the Report of the Committee. I have read what he said to an excellent body called the Clarke Hall Fellowship, to whom he lectured and expressed support of the Report of the Committee. I myself lectured to the same body and ventured to express disapproval.
Thus it has got abroad that whipping is quite out of date, old-fashioned, and useless. This is all based on the Committee's Report, and with great submission, I think the Committee are wrong. But still there is a large body of opinion that does not approve of whipping. Some people have expressed themselves with, to my mind, great arrogance on this matter. I have heard it said that all the successful and responsible chairman of juvenile courts disapprove of whipping. I deny that utterly. I have known several most excellent chairmen of juvenile courts who held an entirely opposite view. When Lord Templewood's Bill was on the stocks, and its contents were known, I was asked by one of the wisest of them to oppose the clause to abolish whipping. I said that I would do so, but other things intervened. I am keeping my promise now.
Next, I want, very briefly, to give your Lordships some figures to see whether the other idea which has been advocated has succeeded or not. My real anxiety is for these boys, for whom I personally care a great deal. We only want to arrive at a conclusion which is in their best interests. I ventured on the Second Reading debate to quarrel, I hope not disrespectfully, with the noble Lord opposite, who told us that juvenile crime was all due to the war. That was a half-truth, and a half-truth is sometimes the greatest untruth. It is true that the late war caused a great increase in the amount of juvenile crime, but only because conditions were so favourable that they gave full play to causes which had become 201 increasingly progressive for many years. Here are the figures. They are a little confused by the fact that the relevant age has been altered from sixteen to seventeen in the middle of the period, but the official criminal statistics group all these matters into numbers per hundred thousand of the relevant class, so the change does not really affect them.
In the years 1921 to 1933, when sixteen was the relevant age, there was an increase from 267 per 100,000 in the first year, 1921, to 370 in 1933. Those figures are comparatively low: they are less than 1 per cent.—the first figure is only one quarter of 1 per cent. But there is an increase in those years of about 40 per cent. From 1934 to 1938 seventeen was the relevant age but the figures are adjusted to the 100,000 as before. In 1934, the 370—which your Lordships will remember was my last figure for 1933—had risen to 440. By 1938 it had risen to 627—nearly three-quarters of 1 per cent. That is a very substantial figure, because the increase in those four years is from 20,000 of such boys to 28,000, and it is represented by the figures of 627, as against 440. Remember also that these are only indictable crimes and not those many cases of damage which are so serious and mischievous but which do not fall within that category. There are quite recent cases within my own knowledge. There was one in the country where a gang of boys caused destruction. The mischief is that these boys as a rule go around in gangs. This gang un-roofed a farm building. They did damage that caused a loss of several hundred pounds. In another case, a pavilion which had cost a working men's and boy's club over £2,000 before the Second World War was totally wrecked. The figures I am giving, however, relate only to indictable offences. What happened when the Second World War was in progress and conditions for these offences were favourable, was terrible. The number rose to 3,000 per 100,000—in other words, 3 per cent. of all the boys of that age were guilty of crimes of dishonesty, because that is what it means. This system of mildness and laxity has not been effective.
What are we going to do about it? That is what we ought to consider. I suggest that the Government should think again about this matter. The noble 202 Lord, Lord Llewellin, and the noble Lord, Lord Schuster, have spoken abort their experiences at Quarter Sessions. During all this period down to the year 1947 I was sitting as a Chairman of Quarter Sessions, and before that as a Judge of Assize. I acted in the two capacities together for a part of the time. It is terrible and pitiable to have boys coming up who have been bound over not once or twice—that is all right—but even three times and four times, and nothing is done. What do they think about it? They go away and they think that they have "got away with it" How can we deal with a situation such as that without teaching the boy and burning into his mind that the way of the transgressor is hard? Nobody who has any knowledge of an animal would consent to be disobeyed as these boys are disobeying the courts. That applies in the case of the male animal, but the female animal presents a different situation and a different method of treatment is necessary. It is seldom right to flog either a mare or a bitch. But in the case of male animals, yes. If you allow yourself to be beaten by that sort of animal you are done. If the courts allow themselves to be beaten, as they are allowing themselves to be beaten, by this sort of boy, they too, are done, and this is the result.
Unlike the question with which we dealt previously on Clause I, which to my mind admits of no compromise, I think that this matter does. If the Government would think about this problem, I would be quite prepared to agree to a provision that boys who are wilfully disobedient or offend persistently should be whipped. I have not much use for the old gentlemen who say: "Whip the boy directly you get him." That is not what is wanted. What is wanted is to whip the boy who is wilfully disobedient and defies the court or commits some really wicked or savage act. I submit that the proper course now is to pass this Amendment and then, if the Government think again and we can get some proper provision for flogging or whipping in these more limited number of cases, I for one shall be most happy.
§ LORD LLEWELLIN
I want to intervene for only one moment, to explain an Amendment on this clause which stands 203 in my name. I do not know what view the House will take on the main Amendment, which is to preserve whipping by the birch but not by the "cat O' nine tails." My Amendment seeks to take out of the category for which whipping even by the birch may be inflicted the kind of offences for which nobody, I think, would want to keep it. The effect of my Amendment, added to that moved by the noble Lord, Lord Goddard, would be that whipping by the birch would be restricted to crimes of robbery with violence, to procuration, and to living on the immoral earnings of a woman. Those are three extremely grave offences. My Amendment would exclude offences which in the last century were included in the category of breaches of diplomatic privilege, and a few other offences of that sort for which I should think nobody would want to preserve any form of whipping as part of the punishment. A grievous assault with intent to rob would still be included and also an assault with intent to choke. That means that if in the course, of let us say, a rape or an offence of that kind, the woman is choked, whipping could form part of the punishment. I am not opposed to it in a case of that sort. All the cases I have enumerated would be those for which whipping could be inflicted, if it were decided to keep whipping at all. I thought I ought to explain at this moment what would be the effect of my Amendment, were that of my noble and learned friend, Lord Goddard, accepted.
§ LORD DU PARCQ
I cannot imagine that anybody will dissent from the Amendment which has been referred to by my noble friend, Lord Llewellin, if the matter arises. Certainly the cases in which corporal punishment can be imposed and which he proposes to remove from the list form a very odd assortment. I believe that under a certain Act the Lord Chancellor is entitled to order that attorneys and solicitors who start proceedings against persons with diplomatic privileges shall be whipped. Those cases are included in those Lord Llewellin proposes to remove from the list. I feel it to be my duty to say something about this clause because I believe myself to be in a minority among the Judges. Indeed, I will confess that when I was 204 Judge, though with some doubts and some hesitation, I was prepared to say that the law about whipping ought not to be altered. I have since read the Report of the Departmental Committee. I can see that it may be open to some of criticisms which your Lordships have heard, but, apart from logic, it deals with facts, about which we may all have our opinions, and I am quite convinced by what I have read in that Report that the community gains nothing by preserving the sentence of whipping.
Lord Roche, whose experience is greater than mine—I say quite unfeignedly that I regard any opinion of his on such a matter as this with the most profound respect—has told of an experience with one offender. Although I had no liking for corporal punishment as a penalty, I thought that in a bad case I had no right, whatever I may have felt about it, not to carry out what was on the Statute Book, showing the intention of the Legislature. In one case, and in one case only, of robbery with violence, I ordered a flogging. I must confess that I think now that I was quite wrong. By what appeared to be a mere coincidence it happened that about a year afterwards, when I was again on circuit, a local paper fell into my hands, and in it I read—I am not saying this is a strong argument; it is one incident, and I do not reason from one incident—that the man whom I had ordered a flogging had again come before the court for some serious crime, and the police officer in charge of the case had said that since he had been flogged in prison he had become a much more desperate character than he had ever been before. I do not pretend that I have happy recollections of that case, and I think it is my duty to mention it.
What are the facts as stated here? Lord Goddard is proposing what at first sight rather attracted me, that you should do away with the "cat" and substitute in all cases the birch. But let us look at this Report of the Departmental Committee. They were an independent body, in the sense that they were not people who came with preconceived ideas to consider this matter. They were selected by the noble and learned Viscount, Lord Simon, and selected, I understand, as persons who were not persons holding strong 205 views. I know one or two of them and I know that they did not start with any strong view at all against corporal punishment. They heard the evidence and they were unanimous. They found it overwhelming. I can tell your Lordships very shortly what impressed me about that Report.
Take the adult offender first. Take the question of the "cat" and the birch. Some of the Committee—I do not know which members because it is not stated, but I should guess, if one is entitled to guess, that one of them was the doctor who was a member of the Committee—saw floggings or a flogging and a birching in prison, and this is what they say in their Report:It is commonly supposed that the birch indicts much less pain than the 'cat-o'-nine-tails,' but we have been assured, by witnesses who have had long experience in supervising the administration of both types of punishment, that as it is administered in prisons a birching is almost, if not quite, as painful as a flogging with the 'cat'.The Committee, of course, are dealing with adult offenders. Birching, they say, is almost, if not quite, as bad as flogging with the "cat." In both cases the triangle is used, though in a different way, because when a man is to be birched he is bound over a pad which is placed between the legs of the triangle, his hands are secured by straps. In both cases it is a solemn and formal business. The triangle is used, and the policeman or warder who beats the man is screened so that his face cannot be seen by the offender. It is a solemn ritual, with a doctor present to watch the man's face the whole time, in order to see if there are symptoms of fainting; and in that event the punishment is not proceeded with.
The Committee showed their good sense, and their lack of sentimentality about this matter by going out of their way to say that the alleged brutality of the "cat" had been grossly exaggerated and that, in fact, all these stories about bleeding shoulders and backs are not true. Both the "cat" and the birch normally produce small abrasions, and sometimes a little blood; but in most cases the man who has been punished can walk back to his cell. But though the Committee say there was much exaggeration of that kind, they also say that between the birch and the "cat" there is little to choose. They say, further, that experience had shown— 206 and it was the evidence of a great many people accustomed to prisons, knowing the men who had been flogged and how it had affected them—that on the whole there was a serious danger that the tough man, the hard man, was made tougher and harder and more desperate, and that sometimes great harm might be done to the more tender kind of person—sometimes physical harm, sometimes—though much more rarely—serious mental harm. One cannot help noticing with horror—though it appears to have happened in only a very small number of instances—that in some cases it was proved to the satisfaction of the Committee that persons had been flogged who were without doubt, mentally defective and who afterwards—not because of the flogging, but because of their earlier condition—were certified to be insane. Those are unhappy things to read about. I do not speak—nor do the Committee—out of sympathy with these people who have committed these horrible crimes. If I were a Judge I should not have the slightest doubt about ordering a flogging if I thought that it was going to be for the good of tie community. But in the face of this evidence I cannot believe that it has been shown that it is.
So far as boys are concerned, the picture is entirely different.The birching that a boy gets,says the Report—and from all I can gather it is true—is less than many a boy gets at school, in the way of caning by his master, and less by far than many a boy has had at home when chastised by his father.The reason is not far to seek. The policeman who is beating a little boy, a complete stranger to him—often a boy of about twelve years of age, for that is a very common age for this to happen—is in a sense in a dilemma. If he is going to hit the boy very hard he will feel that he is brutal, and that is the last thing the average English policeman wants to be. The result is, as the Committee found, that in most cases it is not a severe beating at all. I was talking recently to the experienced chairman of a juvenile court and he told me of a well authenticated case of one of these young boys who after such a beating had gone back home and exhibited the marks on his body at a halfpenny a head! He was, therefore, to some extent consoled.
207 But in the ordinary case the theory is now that a boy is given a chance on probation, and then goes to the approved school or to Borstal. If you take a boy who has been birched what, in practice, you do, after he is beaten, is to turn him out into the streets, and thus he becomes to some extent a hero. I agree that there has been far too much leniency. Magistrates are reluctant to punish a boy. They bind him over, once, twice, three times, sometimes more; and he laughs at them. He thinks there is no punishment at all. If then they send him to Assizes or Quarter Sessions so that he may go to Borstal it means that they are giving Borstal a hard case, and it is not surprising if Borstal does not succeed. I have preached to magistrates on this subject and begged them not to show this misplaced leniency.
There are two other things I want to say. The probation officers are against beating because it provides a bad beginning for their dealings with the boy. The juvenile courts say that the one thing vital is to obtain the co-operation of the parents, and that parents are not placed in a very friendly mood if the boy goes home with, probably, a most exaggerated story of what has been done to him by a police officer in prison, not somebody selected to stand in loco parentis. These cases are not to be confused in the least with the birchings or beatings received in a public school. Sometimes, too, these birchings take place a fortnight—or even as in one particular case, eight weeks—after the offence has been committed.
§ VISCOUNT SAMUEL
I should like to express my full agreement with the view of the noble and learned Lord who has just sat down, and I earnestly hope that the Committee will pass the Bill with the clause in it as proposed by the Government. We must put aside any happy recollections of our own youth. No doubt many noble Lords present have more or less affectionate memories of an occasional flogging at a public school. How often do we hear a man say that it was an occasional beating at his school that has made him "the man I am," probably imagining that that was a convincing justification for the system, while many of his acquaintances would probably draw precisely the opposite conclusion. A judicial sentence of beating or flogging of 208 any kind is an entirely different thing from corporal punishment administered in the home or in the school. It is done after an interval, in cold blood, by a policeman or prison officer, and at the order of a court. The effect is entirely different.
This Committee, whose Report has been referred to so many times, have presented on the facts an absolutely conclusive case for the abolition of judicial sentences of flogging. They say thatOur conclusion is based on the practice of the more experienced juvenile courts which have discontinued the use of the birch, not on a priori grounds, but because they have found it less effective than other methods.Among a great mass of evidence they give two selected centres, a large seaport and a manufacturing town, in which 574 children had been birched by order of a court. Two years later it was found that of the 574 children, 440 had come before the courts having committed a fresh offence—76 per cent., or three out of four of the whole number. The consequence of experience has been that, taking the courts of summary jurisdiction in England and Wales in 1900, there were 3,385 sentences of birching on juveniles, and in 1936, instead of 3,385, the number was 166. The Committee say thatIn the great majority of juvenile courts in England and Wales the use of the birch has been entirely discontinued.My noble friend Lord Templewood tells me that now the number is only 25. The Committee make a very definite recommendation with regard both to juveniles and to adults. It has frequently been said, and it is generally believed, that garrotting was stopped in London, after an epidemic of it in 1863, by the enactment of corporal punishment. That is historically incorrect and every Home Secretary since then—Mr. Asquith, Sir George Grey, Sir Matthew White Ridley, and other Home Secretaries—has declared in Parliament that such was not the case, and has tried to dispel this illusion. The facts are against it. Similarly, with regard to Liverpool and Mr. Justice Day. After he had given those sentences vigorously for a few years, the number of offences of that character were rather larger than they had been previously. But the most remarkable statement that we have heard in this debate has come from a very high authority, from the Lord Chief Justice, Lord 209 Goddard. I was surprised to hear from him that he considered there were two reasons for retaining the penalty of birching: one, that it was a severe penalty and a strong deterrent which ought to be reserved for particular heinous classes of offences, and the other, that if you have before you a farm labourer who is needed for the harvest, and who has a wife and children, you can inflict the penalty of whipping, because that is better than keeping him in prison for a considerable length of time.
I do not seriously think that any student of penology would say that we should discriminate in sentences, not according to the character of the person and the gravity of the offence but according to his economic value or his family circumstances. To say that it should be retained in order to enable the Judges to set agricultural labourers free more quickly because they are needed at the harvest is a doctrine which I am sure cannot possibly commend itself to this House.
Your Lordships will remember historically that this House for some years prevented the abolition of flogging in the Army. It was said that with the character of the men in the Army at that time—in the middle of the Nineteenth Century—it would be impossible to maintain discipline if the savage penalty of flogging with the cat o' nine tails were abolished. Nevertheless, it was abolished, and the consequence, so far from lowering the discipline, was an immediate and rapid improvement, because a much higher class of men were ready to enter military service. One other point should be borne in mind. What countries are there in Europe which still retain for adults judicial sentences of flogging? There is only one—this country. Eire also continues the English code of law, but not a single country on the Continent of Europe has retained this form of punishment. Not only in Europe, but in the world at large—according to the table which is printed as an Appendix to this Report—no country still retains it except one or two of the British Dominions and, in the United States, the States of Delaware and Maryland.
VISCOUNT ST. DAVIDS
Is it not true that until our recent victory there were two other countries in Europe which also 210 imposed flogging—namely, Nazi Germany and Fascist Italy?
§ VISCOUNT SAMUEL
One does not count them; I was speaking of civilised countries. I do not know that they imposed it as a sentence of the courts. At all events, it is well known that when there is an international Conference on penal reform, and this question of judicial flogging comes up, the British delegates are placed in the most invidious position of being the only ones who are obliged officially to defend its retention. I earnestly hope that this House will now join with the other House of Parliament in abolishing this last relic of the Middle Ages in the maintenance of some form of physical torture as a penalty for crime.
§ 10.57 p.m.
§ LORD CHORLEY
I am afraid we cannot accept this Amendment. The Government accept the Report of the Select Committee, which has been criticised by some noble Lords, and particularly by the noble and learned Lord, Lord Roche. I should have liked to defend myself against some of the barbed shafts which he aimed in this direction, but I am sure your Lordships will agree that at this time of night it would not be wise to pursue that controversy further. I adopt the arguments so persuasively and so cogently put forward by the noble and learned Lord, Lord Du Parcq, and the noble Viscount, Lord Samuel. I would just add one further point. It is that the Amendment of the Lord Chief Justice seeks to retain the position as it exists at the present time. He himself has made it quite clear to your Lordships that it is a chaotic and anomalous condition of the law which is really indefensible. The Report makes that very clear indeed, when it points out that a man who is guilty of choking a girl when he is preparing to ravage her is guilty under the Garrotters Act, but if he hits her over the head in order to prevent her from crying out he does not come within the law which enables him to be flogged.
The noble and learned Lord, Lord Goddard, referred to the case of the men who were guilty of the horrible offence against the young woman at Sunderland. Because they did not steal her handbag they did not come within the law which would have enabled them to be flogged. 211 If they had in fact stolen her handbag it would have been possible to order them to be flogged. In this Report your Lordships will find there are no fewer than eleven other types of case which, it was suggested to the Committee, ought to be dealt with by flogging. If these particular cases, which are already within the law, are retained upon the Statute Book, surely that is a chaotic and anomalous state of the law which it would be indefensible to retain. I hope the noble Lord will withdraw this Amendment and, if not, I hope your Lordships will reject it.
§ LORD CROMWELL
Before the Lord Chief Justice replies, may I say a word upon this Amendment? I hope the noble Lord will press this to a Division, because in my view, based merely upon human experience, all bullies—and I use the word in a different sense from that in which the noble Lord used it—are cowards; and the way in which a coward can be impressed is by physical punishment. I make no reference to the flogging of children, and I leave that open, because I do not know whether to support it or not. But I will support this Amendment if it is pressed to a Division, and I hope very much that the Lord Chief Justice will take that course. May I just say one final thing? I supported the reference back for second thoughts of Clause 1, and I have no real feeling about its merits. I am inclined to think, like my leader, that the time will come when capital punishment is abolished, but I do not think that now is the time. I feel, however, that the arguments which have been raised rather too often in this House to illustrate the points made have always been dependent upon the New Testament; they ignore everything about the Old. I feel that the Old Testament is the basis of our laws, and that the New Testament is an interpretation of how they should be carried out.
§ LORD GODDARD
I will not detain your Lordships for more than a few minutes, but I feel so strongly on this matter that I shall ask the House to go to a Division. I want to deal with only two points. I quite agree with the noble Lord, Lord Chorley, that it is illogical—I do not call it chaotic—that this corporal punishment can be given for such a limited class of offence. I think that a good 212 many people may feel, as did many witnesses who gave evidence before the Committee, that it might well be applied to other offences. I am not asking your Lordships to do anything of the sort. But the fact that it might well be applied to others, does not seem to me to be a valid reason for removing it from those to which it is applied.
The other point with which I want to deal is the point the noble Viscount, Lord Samuel, made, in the no doubt well-merited reproof which he administered to me.
§ LORD GODDARD
I know the great value of the noble Viscount's past experience in these matters, but neither he nor my noble friend Lord du Parcq—and he and I were Judges together for a good many years, besides being old friends and comrades on the same circuit—has told me what might be done instead of this. I suppose one could send them for long sentences of imprisonment, but we are told over and over again—and no one could feel stronger about it than I do—that if we can keep people out of prison we should do so. I have not been dealing with the boys of twelve and sixteen. My remarks have been entirely made to deal with the older people. It is just as important to keep fellows of eighteen out of prison, if that is possible, as to keep the younger ones out of prison. But there are offences for which they must be punished.
Let me give your Lordships just one more instance. A few years ago at Leeds there was a boy of about eighteen who came from a good middle-class home, who was charged before me with this offence. He had a great desire for a camera and asked his father for it. His father, very reasonably, told him to save his pocket money. What did the boy do? He went out into the street one evening, making some excuse, and picked up a middle-aged prostitute. He had not the smallest intention of committing sexual misconduct with her, but he went back with her to her room. Directly he got there he seized her by the throat and choked her. She was nearly killed. Then he appropriated her handbag, which had in it the £3 that he wanted. Was I to let that 213 boy go? It was not a question of Borstal. He had never committed a crime before; nor had he associated with criminals. He was a boy who, overcome by desire to possess this camera, stooped to commit a crime which I am certain he would never commit again. But I was not going to let him go without punishment. I was told by the family doctor, and by other people that he was so highly strung that he could not stand corporal punishment. I had him examined by the prison doctor—and the prison doctor at Leeds at that time was a man whom every judge could trust. I gave that boy a fortnight's imprisonment—one has to give something, so that there is a chance to appeal, and so forth—and I think eight or ten strokes with the birch rod.
With regard to the case referred to by the noble Viscount, Lord Samuel, as indicating that my views seemed odd—the case concerning a young man before me now—I am quite unrepentant; and I still think that it was better to save that young man from prison, if I could. I believe it was better for him, and for society and his family that he should not be sent to prison for two or three years' penal servitude if some other adequate sentence could be passed. I have designedly not said anything about the public schools, or the beatings which prefects and others gave us, because I do not think they are on the same footing. But I do believe that as a last resort and in a few cases—not every case—this is a valuable weapon to have in hand. I feel this strongly; and I have not heard from anybody what other course I could adopt, other than pass a long sentence of imprisonment. Therefore I shall press this Motion to a Division.
§ THE MARQUESS OF SALISBURY
I should like to say a word or two on this subject, and I do so with great diffidence because I am a mere layman, and we
§ have heard some very strong views expressed on this question by great authorities on both sides. We can, therefore, exercise our judgment in this matter. The impression which this debate has made upon me is this. I think it is clear that flogging should be used, if at all, only in very rare cases. I think it is also clear that it is, in fact, used only in very rare cases, and that the Judges and the courts may be depended upon to use it only in such circumstances. But I am frankly doubtful whether it is desirable entirely lo rule out the possibility of such a penalty if it is obviously required. I have heard no argument from anyone to indicate that there can be no possible case where it might be the proper penalty. In such circumstances, I feel a little reluctant to see it entirely eliminated from our penal code. Other views, of course, may be held by other noble Lords.
§ I have a slightly uncomfortable feeling that there has grown up in this country a sort of broad general principle that any recourse to corporal punishment is what might be called an affront to human dignity. That is a slightly sentimental view. We all dislike corporal punishment, if it can be avoided; but the fact remains that there are certain people in this country who cannot possibly be appealed to in any other way but by a physical penalty. Under such circumstances, although I do not wish to see corporal punishment used in any large degree, and in my view the less it is used the better, I should be reluctant to see it entirely expunged from the code. For that reason, if the noble Lord presses it to a Division, I shall be obliged to support him.
§ On Question Whether the proposed words shall be there inserted?
§ Their Lordships divided: Contents, 29; Not-Contents, 17.215
|Aberdeen and Temair, M.||Long, V.||Hacking, L.|
|Salisbury, M.||Hatherton, L.|
|Willingdon, M.||Ashton of Hyde, L.||Oaksey, L.|
|Boyle, L. (E. Cork and Orrery.)||O'Hagan, L.|
|Albermarle, E.||Brocket, L.||Robinson, L.|
|Buckinghamshire, E.||Clydesmuir, L.||Roche, L.|
|Fortescue, E.||Cromwell, L.||Saltoun, L.|
|Howe, E.||Fairlie, L. (E. Glasgow.)||Schuster, L. [Teller.]|
|Radnor, E.||Glentanar, L.||Sinha, L.|
|Goddard, L. [Teller.]||Teynham, L.|
|Hailsham, V.||Wolverton, L.|
|Jowitt, V. (L. Chancellor.)||St. Davids, V.||Henderson, L. [Teller.]|
|Samuel, V.||Holden, L.|
|Reading, M.||Templewood, V.||Kershaw, L.|
|Amherst, E.||Ammon, L. [Teller.]||Pakenham, L.|
|Chorley, L.||Pethick-Lawrence, L.|
|Addison, V.||du Parcq, L.||Raglan, L.|
On Question, Amendment agreed to
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 11.20 p.m.
LORD LLEWELLIN moved to delete all words after "whipping" (where that word first occurs), and to insert the following new subsections:
(2) No person over the age of sixteen years shall be sentenced to be whipped for any of the following offences, that is to say; offences for which persons may be whipped under Section four of the Diplomatic Privileges Act, 1708; or under Sections eight and nine of the Knackers Act, 1786; or under Section ten of the Vagrancy Act, 1824; or under Section two of the Treason Act, 1842.
(3) So far as any enactment confers power on a court to pass a sentence of whipping with a cat o' nine tails or in the case of a person over the age of sixteen years for any of the offences mentioned in the last preceding subsection it shall cease to have effect.
§ The noble Lord said: The Committee will remember that I have spoken about this Amendment. I indicated that I was going to move it only if the House took the decision which has in fact been taken on the previous Amendment. The Committee having accepted the previous Amendment, I think it is only right to tidy the matter up and to ensure that we do not keep on the Statute Book provision for whipping for a number of offences, which I set out in my Amendment, and for which I do not think any noble Lord here would wish that the penalty should survive. I beg to move.
Page 3, leave out from the beginning of line 5 to end of line 6 and insert the said sub-sections.—(Lord Llewellin.)
§ THE LORD CHANCELLOR
In principle, I think I should be entirely prepared to agree to this Amendment, but I will ask the noble Lord if he will withdraw it now, and I will look at the matter more carefully than I have had the opportunity of doing heretofore, to see if the list which he gives is complete. 216 Obviously, it will be agreed that we do not want to have whippings under Section 4 of the Diplomatic Privileges Act, 1708. I confess that when I heard about it I was not quite sure whether it was the Lord Chancellor who was whipped. I now gather that it is he who orders the whipping of other people—which is much better! If we are to have whipping at all it is clear that we should not have it for a lot of these "fancy" offences. As I have said, if the noble Lord will withdraw his Amendment I will undertake to look at this and see what I can do.
§ LORD LLEWELLIN
Of course I agree to do that, but I withdraw the Amendment, as I understand, without there being any complete committal on either side. My drafting may not meet the case, and I would much sooner that an Amendment was drawn up which did meet the case. All I would attempt to do, and, I hope, with the complete co-operation of the Lord Chancellor and the Government, is to put this Amendment in such form that when it goes back to another place it cannot be said about any of us that we wish to keep punishable by whipping a whole series of offences for which, clearly, the punishment of whipping has become obsolete. I think it would be better if we discussed the matter between now and the Report stage, with complete liberty, if the noble and learned Viscount does not find more appropriate words, for me either to put down this Amendment again or another of a similar kind. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
Page 3, line 5, at end insert ("such").—(Lord Goddard.)
Page 3, line 6, leave out ("of whipping").—(Lord Goddard.)
§ LORD LLEWELLIN
If I may say so, these, of course, will be without prejudice to my Amendment which would take 218 these things out and cover the matter in a different way.
§ Clause 3, as amended, agreed to.
§ House resumed.
§ House adjourned at twenty-five minutes past eleven o'clock.