§ 3.4 p.m.
§ VISCOUNT SIMON rose to call attention to the Report of the Royal Commission on Capital Punishment and to move to resolve, That in the opinion of this House it is not desirable to cast upon a jury which has convicted the accused of murder, the further duty of answering questions which may determine his punishment. The noble and learned Viscount said: My Lords, I rise to call attention to the Report of the Royal Commission on Capital Punishment, and to move a 138 Resolution of dissent in respect of one of its more important recommendations. We shall all admire the devotion and energy of the members of this Commission. They were appointed in May, 1949, and their Report was made in September, 1953: that is to say, more than four years after—fifty-two months I think. It is apparent, from looking at the Blue Book which contains their Report—it does not contain the evidence; that has been made separately available—that an immense amount of trouble has been taken by the members of this Commission before arriving at their recommendations. The Report is some 500 pages in length and contains, I think, sixteen Appendices. It is clear, from reading it, that inquiries have been made on the Continent of Europe and in America, as well as the taking of a great deal of evidence, which was needed by the Commission, in this country. I yield to no one in my admiration and respect for the diligence with which the members of the Commission have pursued their task, but I think it a little unfortunate that the membership did not include anybody who had ever had the responsibility of trying a case involving a capital charge. It did include a gentleman who is a Recorder, but Recorders cannot try people for murder.
§ I think it is useful, for a moment, to remind ourselves of the origin of this Commission. Your Lordships may recall that in the year 1948 the Government of the day introduced the Criminal Justice Bill, based largely on the admirable work which had been done ten years before by my noble friend, Lord Templewood, when he was Home Secretary. The Bill passed Second Reading, went through Committee and came to Report in another place. On Report, a new clause was proposed which would have provided that for five years there should be no such thing as a capital sentence, and that we should make the experiment of seeing how this abolition would turn out. The Government were opposed to this new clause. The Home Secretary of the day, Mr. Chuter Ede, said so, and after he had made his speech up rose a private Member and proceeded to inform the, House of Commons that the opinion of a very much respected and distinguished man, the late Sir Alexander Paterson, had changed, and that he, who had hitherto seen objections to attempting to abolish capital punishment, had now joined the 139 Society for the Abolition of Capital Punishment and was a subscriber to that Society.
§ This information obviously greatly influenced the House of Commons, for no one is held in greater respect by everyone who has considered the problems of penology than the late Sir Alexander Paterson. He was the adviser of the Home Office. I knew him as a man who was firmly convinced that prolonged sentences of imprisonment did nothing but harm, and I found it very difficult to believe that this information as to his change of view was correct. And others who knew him better than I did also greatly doubted it. However that may be, the House divided on the new clause, and the new clause was added to the Bill by a majority. The Criminal Justice Bill then came to this House, and some of us took objection to the new clause, and presented arguments against it, and in Committee of this House the new clause was struck out, and the Criminal Justice Bill was returned to the House of Commons without any such provision in it. I claim that in so acting your Lordships' House unquestionably reflected sober public opinion, and that it is so may be regarded as established by the fact that when the Bill went back to the House of Commons, the Government of the day made no attempt to put the clause back. They accepted the decision, and that has been the situation from that day.
§ In those circumstances, it was not unnatural that the late Government should want to do something on the subject, and, consequently, this Commission was appointed. The terms of appointment were such that it had no authority to inquire or to advise as to whether capital punishment should be abolished, but it had terms of reference which required it to consider and report whether liability under the criminal law in Great Britain to suffer capital punishment for murder should be limited or modified, and, if so, to what extent and by what means, and what changes in the existing law would be required.
§ The Commission undertook their heavy task and listened to a large body of evidence, and this Blue Book is the Report. I am far from saying that some of the recommendations of the Commission are not very wise. I certainly do not seek 140 to challenge them or discuss them to-day. Yet there are some recommendations which are of doubtful value. I mention one. By a majority the Commission have recommended that the age which a man who commits murder must have attained if he is to be liable to the capital sentence should be raised from 18 to 21 years. That is not the point I am raising now, but I observe in passing that I very much question that recommendation. I do not see why we should inform a youth who has murderous instincts in his heart that he can do what he likes, that lie can commit any crime that he likes, but one thing we guarantee him: if he is not 21, he cannot be hanged. However, that is not the point I want to raise to-day.
§ I think the way in which the Commission have dealt with what are called the M'Naghten Rules will raise a grave question hereafter. The M'Naghten Rules are rules laid down by the law on what establishes criminal responsibility. It is not a medical question: it is a legal question. The Commission make some recommendations under that heading which I think will need examination when the time conies. But the particular recommendation to which I wish to draw your Lordships' attention is another one. If your Lordships have copies of this book before you and will turn to page 190, you will see there that the Commission discusses, in Chapter 8, "General Proposals for Amendment of the Law of Murder." In one respect I take the view that the Commission reached a very wise conclusion. They had to consider the suggestion that the crime of murder should be divided into two classes and the question should be posed whether a person committed murder of the first degree or murder of the second degree. They have rejected any suggestion of that sort, and in my judgment quite rightly; for murder is not a crime of two degrees; it is a crime of infinite variety, and I think it is fundamentally wrong to attempt to adopt a method, which I believe some foreign countries have adopted, of asking a jury whether the man who is convicted of murder is guilty of murder of the first degree, with a certain consequence, or of the second degree, with a lesser consequence. So far I go with the Commission and I am grateful for the full way in which they argued the case.141
§ But they then raise what they regard as their principal problem. They call it their "problem." I have been at pains to read this bulky document to find out what that problem is, and it is manifest, in reading the Report, that they were principally concerned with the fact that, as the law stands, a man who has been convicted of murder by a jury is automatically by force of law sentenced to death. Yet there are a large number of cases in which the Home Secretary, exercising the duties of his office, will advise that the prerogative of mercy he used. According to the Commission, this automatic sentence of death represents the rigidity of the law, and apparently the Commission have set themselves to work to try to reduce the rigidity and introduce some flexibility in the matter. I submit my opinion with all respect to the Commission, but I doubt very much whether we ought to tamper with the view that anyone who has been proved to have taken the life of another human being feloniously shall be liable to the capital sentence and will receive it. it seems to me that the fact that so awful a crime, whatever be the motive, is followed by this dreadful punishment, may well be a necessary mark which the community puts upon murder and one of the ways in which we seek to discourage people from committing it. I may be wrong about that.
§ Cases sometimes may arise—I have known them when I was Home Secretary—in which the passing of the death sentence on some misguided creature who has perpetrated what is called a "mercykilling"—which is murder—is none the less followed inevitably by the Home Secretary's advice of a reprieve, and I appreciate that that is a situation which deeply concerns some good and sensible people. It is an aspect of the matter which greatly affected the most reverend Primate the Archbishop of Canterbury who gave evidence before the Commission and who pointed to this as a distressing situation. But I still think, and so do many other people, that there is a great deal to be said for maintaining the view that the hand that commits this dreadful crime earns this dread sentence.
I notice that in paragraph 48 on page 16 of this Report there is a reference to this conflict between the inevitable sentence of death and the suggestion of reprieve. It is as follows:
The other ground of criticism is the undesirability of pronouncing the death sentence in so many cases in which it is not carried out. This was emphatically voiced by the Archbishop of Canterbury.
I should like to say I have a letter from the most reverend Primate which explains that he is very heavily engaged and cannot attend your Lordships' House to-day, but he is here quoted as saying:
It is a very grave thing that the solemn formula of the death sentence should almost as often as not be followed by a reprieve which cancels it. …It is intolerable that this solemn and deeply significant procedure should be enacted again and again when in almost half the cases the consequence will not follow. …If this solemn act is to remain, it must normally mean what it says and carry the consequences which it imposes. Otherwise it is reduced to a mere formula: and in such a matter a mere empty formula is a degradation of the majesty of the law, and dangerous to society.'
That was the view presented by the most reverend Primate.
Amongst witnesses who held a different opinion were Sir John Anderson (now the noble Viscount, Lord Waverley), Lord Samuel, and Mr. Justice Byrne. Sir John Anderson presented the view which I have endeavoured to summarise to your Lordships. As regards my noble friend Lord Samuel, the Report says:
Lord Samuel also did not think much force could be given to the Archbishop's argument.
And they quote him as saying:
'To maintain a degree of uncertainty as to what would happen in marginal cases may be very useful in retaining a deterrent effect on potential criminals.'
That is the view which I myself prefer. But, at any rate, the Commission on page 190 faced what they called their problem. Really and truly, the Commission regarded their problem as this: "What suggestions can we make which will reduce the number of instances in which the capital penalty is imposed?" On page 190 they discuss the proposal to give the judge a discretion and to leave him to say what the conviction should be after the verdict of "Guilty of murder" has been pronounced. They discuss that, and come to the conclusion that they cannot recommend it, largely on the ground, apparently, that the judges very much objected. I can well understand the view of a High Court judge that, while he is prepared to administer if law, if the law
says a sentence of death follows conviction, he feels it is throwing a fearful burden upon him to say: "Well, now the thing is before you; you must decide what is to be done with this man." At any rate, that was the objection.
Then the Commission, having come to the conclusion that they could not put this task upon the judge, observed with great logical force that there was only one other body on whom they could put it, and that was the jury—and that is set out on page 194. The Report of the Commission says (paragraph 551):
If discretion is to be vested in the court, but is not to be exercised by the judge, the only alternative is that the jury should be given discretion to determine the sentence and to decide whether a person whom they convict of murder should be sentenced to death or to a lesser punishment.
I wish more than ever that on this Commission there had been a member who had actually had the task of discharging, as a judicial person, the duties that fall on a judge trying a murder. The notion that a jury could be asked to decide what the punishment should be is, I think, a little extraordinary. A jury, my Lords, is an excellent judge of fact, and will often find you an answer to a question which you cannot answer yourself. Twelve citizens, chosen by chance, put on that occasion in the jury box, sworn to listen to the evidence and to return a true verdict, form an excellent tribunal for coming to a conclusion of fact. But I myself—I speak subject to correction—do not know of any case in which an English jury is entrusted with the business of deciding how a man should be punished. That appears to me to be a most doubtful proposal. However, the Commission come to the conclusion that they must put it on the jury.
They go on to point out the pros and cons, and they adopt a rather curious course. The Commission begin by outlining a possible scheme, and they say that, novel and unfamiliar as the proposal is, it will be helpful if at the outset, before examining it on merits, they attempt to show the shape it might assume in practice. They suggest that such a system is quite workable in a scheme which is set out on page 195. I invite your Lordships to consider this workable scheme. The first provision says:
The jury would not, as in some countries, be asked to say whether the sentence should
be death or imprisonment, but if they convict the accused of murder they would be required to find specifically whether there are any extenuating circumstances.
You might think that if that is to be the test there ought to be some definition of "extenuating circumstances." But the next observation in this paragraph is:
'Extenuating circumstances' will not be defined by Statute, for the same reasons for which we have found it impossible to define degrees of murder. The decision of the jury would be within their unfettered discretion and in no sense governed by principles of law.
That seems to me to throw a difficult task on the jurymen. Then it is suggested that:
Full information about the prisoner's character, antecedents, mental condition, etc., should so far as possible be put before the jury before they consider the issue of extenuating circumstances.
I invite your Lordships to note the words "so far as possible." Anyone who has been Home Secretary, like the noble Viscount, Lord Samuel, and myself, knows perfectly well that in considering whether to recommend a reprieve the officials of the Home Office take enormous trouble to collect all the information about the family of the man, as to how he has behaved when in custody, and so on, in order that a conclusion may be reached. It is difficult to see how all that information can be put before a jury. But it is only to be, "so far as possible."
There is then a provision that in England you must have from the jury a unanimous verdict that there were extenuating circumstances; in Scotland, apparently, a majority verdict would do. Then there is this provision:
When the jury exercised their discretion in favour of the prisoner, they would not be required to state the reasons for their finding.
Next there is this passage:
A finding of extenuating circumstances would not be merely a recommendation, but would be binding on the judge, who would thereby be precluded from pronouncing the sentence of death and obliged to impose a lesser sentence.
The lesser sentence, they go on to say, must be imprisonment for life—a form of punishment at which I shudder. It has long been the tradition in the Home Office that long imprisonment does nothing but destroy the man, body and soul; and although nominally people may be ordered imprisonment for life—
§ LORD CHORLEY
Surely, the noble and learned Viscount will agree that the Commission make it clear that when they say "life sentence," they mean life sentence in the ordinary way, by which remission would be earned by goad conduct.
§ VISCOUNT SIMON
I should think it does not mean a life sentence, but that they should be let out in accordance with the ordinary practice. Whether it is right in the case of any and every murderer after so many years to let him out as a free man is a matter which may have to be considered. They go on to say that this plan would not interfere with the prerogative of mercy about which the Home Secretary has the duty of advising. They then say:Briefly, therefore, the proposal we shall consider is that if the jury convict the accused of murder they should then be required, after being given all available relevant information that might justify sentence of death not being passed, to consider whether there are extenuating circumstances, and that, if they find that there are, the judge should be precluded from passing the sentence of death and required to pass a sentence of imprisonment for life.Having put forward this sketch, the Commission, in the Report, discuss how it will work. They endeavour to face up to some very obvious difficulties. They say at the top of page 196 that it will be necessary to divide a trial for murder into two parts. In the first part, the jury would have to reach the conclusion: Is the man in the dock proved to have committed this crime, and is it murder? I suppose on that half of the trial the defence of an alibi would be available. He could show, or endeavour to show: "I was not there and, therefore, I could not have done it." I suppose on that part of the trial it would be open to the accused to prove that what he did he did in self defence, and he or his counsel could also argue that it really was not murder but was the lesser crime of manslaughter.
They go on and say that when the first part of the trial is thus concluded, and the jury find a verdict of murder, the second part of the trial, which would be directed to the issue of extenuating circumstances, would begin. Extenuating circumstances, your Lordships will remember, are not to be defined, but the jury are to be invited to find: "Do you 146 find extenuating circumstances or do yon not?" They discussed the difficulty which would arise supposing that the accused pleaded guilty. They rightly point out that really a trial judge dissuades the accused from pleading guilty; he very often directs a plea of "Not guilty to be entered in order that the matter may be considered. So pass by that. Then they face the difficulties, and it appears to me that the difficulties are overwhelming. The first thing they say the judge should do after the verdict of "Guilty" is that he should address the jury. He should tell them that the sentence prescribed, by the law for murder is death "unless you jurymen find extenuating circumstances." They next discuss what are the parts to be played by the various counsel in the case. The defence, according to this suggestion, are then to address the jury and say what occurs to them to say. Whether the prosecution can address the jury or not is not quite clear to me. Finally, the judge is to sum up.
Having had some experience of this class of case—not, of course, to be compared with the experience of the Lord Chief Justice and others—I have tried to visualise what this second part of the trial would be like. You have a jury which has just been through the agonising duty of forming a conclusion as to whether a man is proved to have committed a murder. It must in many cases wear them out. Then the judge is to say to them: "Now, gentlemen, do not imagine that your duty is over. Come back to-morrow, and you will then undertake the second part of your task." The counsel for the defence, I should suppose, would use his opportunity to make an appeal to the jury to find extenuating circumstances. By that time, if he is a good counsel, he has probably sized up the jury and knows that that man and that woman are very much affected by this, and he would press his argument specially upon them. The counsel for the prosecution would sit by. The Commission rightly recognised that it would be intolerable for the prosecution in a murder case to "demand the death penalty." That is not the way in which counsel conduct these prosecutions. They are concerned only to see that the evidence is fairly given, and they present the case without heat, without passion and 147 without the smallest desire to secure any result except the result that is fair and just. The judge is then to sum up to the jury whether there are or are not extenuating circumstances. There is to be no definition of "extenuating circumstances," and I do not envy the position of a criminal judge who has, in those circumstances, to discharge this task.
I recognise that the Commission saw the objections to the plans which they put forward. In my submission, the objections are really overwhelming. They seem to think that the proposal they make has the great advantage that it would "solve their problem." If your Lordships would be good enough to look at page 199, paragraph 568, you will find that the Commission says:The signal advantage of jury discretion is that it would solve our main problem. It would make the law of murder flexible.I am not at all convinced that we want to make the law of murder flexible, for the reasons which I have indicated and which Lord Samuel formulated when he gave evidence before the Commission. They concede that there would probably be a number of cases in which the jury would be swayed by emotion and would agree to find extenuating circumstances and thereby prevent the dreadful penalty being pronounced. But, visualising it as well and as impartially as I can, I do not see how this proposal could possibly receive the approval of Parliament or of the country.
I am deeply sorry to make this comment on the recommendations of the Commission, some members of which I know and respect, but I cannot help thinking that these four years and more of meditation on this subject has not led them in this respect to a wise conclusion. I wish when they were formulating this idea they had put it to some of those whom they called as witnesses. I never heard anything about it, and they were good enough to ask me to give evidence. I think I could have called their attention to some of the difficulties which arise. It is this effort to solve "our problem" to render the law of murder flexible which, to my mind, is the key to this Report. I make bold to say that as we have it the law in this respect is about right. It is absolutely right that we 148 should have, by virtue of the law, a provision of what is the punishment on proof of murder. The further provision that the sentence should be mitigated and a reprieve advised in cases which justify it is a provision very wisely left in the hands of the Secretary of State.
Reading the debates in the House of Commons on the Criminal Justice Act, I noticed some words, spoken by a great master of English speech, on this discretion which is entrusted to the Home Secretary. I would ask the leave of your Lordships to read these few sentences from that speech (OFFICIAL REPORT, Commons, Vol. 453, col. 1439):One of the great privileges and advantages we have in our present system of procedure is that the Home Secretary is unfettered as to the advice which should be tendered in the use of the Royal Prerogative. At every point in our system of criminal justice the benefit of the doubt is given to the accused. At every point in the subsequent consideration of a capital sentence, when it has been passed, the same bias is shown in favour of the convicted person. But when justice and the law have done their best within their limits, when precedents have been searched and weighed, mercy still roams around the prison seeking for some chink by which she can creep in.Those, my Lords, were the words of the present Prime Minister who himself has been Home Secretary: and they are words of truth. It is a great mistake, I venture to think, to try to interfere with the system which we have.
I mention only one other point. If you are going to entrust the business to the jury of determining whether there are extenuating circumstances, by what standard are they going to measure the case? If you leave it in the hands of the Secretary of State, he has a great Department which studies every instance, which puts before him the accepted practice, the regular rule; and you get a level of decision between one case and another. But a jury is summoned only once: a citizen would indeed be unfortunate if he were called upon to serve twice on a jury to determine whether there were extenuating circumstances. He has not got a standard; and it seems to me, therefore, to be undesirable that we should accept this recommendation. I have ventured to bring this before your Lordships' House because I hope that the opinion which may be formed here may be of help to the Government and to the 149 country. Here we have Members who can speak with real knowledge and authority on the subject. I beg to move.
§ Moved to resolve, That in the opinion of this House it is not desirable to cast upon a jury which has convicted the accused of murder, the further duty of answering questions which may determine his punishment.—(Viscount Simon.)
§ 3.42 p.m.
§ LORD SALTER
Before the noble and learned Viscount sits down, would he be good enough to add a word on one point? He stressed the great importance in the debate in the other place of the statement which was made late at night, and just before the Division, that Sir Alexander Paterson had changed his view and had become a member of the Society for the Abolition of Capital Punishment.
§ LORD SALTER
Does the noble and learned Viscount recall that within twenty-four hours it was made clear that this statement was completely inaccurate? Unless my memory deceives me, Mr. Chuter Ede made it, quite clear.
§ VISCOUNT SIMON
I am much obliged to the noble Lord. I have always maintained the view that that statement was quite inaccurate and also that it had a great deal to do with obtaining the majority which, against the advice of the Government, put that clause into the Bill.
§ 3.45 p.m.
§ EARL JOWITT
My Lords, although there is no sort of Party interest in this matter it might be not unnatural that I, who have had the honour of holding the office of Lord Chancellor for a long time, should, very briefly, express my views. The noble and learned Viscount who has moved this Motion made it plain that it had nothing to do with the question of deciding whether or not capital punishment should continue—and he was quite right. That is a grave question to which right-thinking men should address themselves. I will only say that, having thought about it a great deal—I can honestly say, having worried about it a good deal—I have now come to the conclusion that I am not by any means so certain as I was a few years ago as to what is the right answer. When the Criminal Justice Act was before this 150 House I was one of those who took the view and, I say quite frankly, advised behind the scenes, that we should insist upon the retention of capital punishment. All I say now is that the more I think about the matter the more worried I become and the more uncertain I feel. But I would emphasise again that that has nothing to do with our discussion here to-day. But whatever conclusion we ultimately reach on that problem, I feel that we must face up to that problem frankly and boldly, and must not try to arrive at: the abolition of capital punishment by a mere side issue or subterfuge.
I say that for this reason. In their Report—I am quoting from paragraph 571—the Royal Commission say this:In the past. British juries, by perverse verdicts…did…much…to bring the law into conformity with the developing moral conceptions…in the field of capital punishment.What the Commission had in mind, apparently, in saying this was that it was a notorious fact that in those days the death penalty was liable to be awarded for stealing goods over the value of 5s. from a dwelling-house, and it was notorious that juries used to find that the goods which were stolen were not of that value—completely perverse verdicts. Where Lord Ellenborough and his brethren went wrong was in thinking that if you altered that law you would bring about a. diminution in the standard of honesty. They did not realise that by creating a lesser punishment juries would bring in a verdict of "Guilty" where they had. previously brought in a verdict of "Not guilty." Nothing annoys me more than for people to brush on one side the opinions of judges on any question of this sort by saying, "Look what Lord Ellenborough said. The judges have always been against any reform of the law." That, of course, is completely and farcically untrue. The Royal Commission liken this to the cases whereby British juries, by perverse verdicts, have tried to bring the law into line with modern opinion, and they go on:It may well be argued that the men and women of the juries may be regarded as a microcosm of the community, who will reflect the changing attitudes of society as a whole to the infliction of capital punishment…If they mean by this that this is an indirect way of getting rid of capital punishment, I think that thi1 is a completely 151 wrong line to take. You should deal with the question of capital punishment only in a bold and frank way. I do not know whether that is their view, because in paragraph 577 they say that they do not believe that the system would in practice:…work in such a way as to be used as a device to suspend or abolish capital punishment.I can state my views on this matter, and I believe the views of those with whom I am habitually closely associated, in a very few words. I think the scheme here propounded is completely unworkable. As the noble and learned Viscount has suggested, the Royal Commission seems to have approached the question by first formulating the problem and then trying to find a way out. The problem was enunciated by the most reverend Primate the Archbishop of Canterbury, and any statement he makes certainly demands my prima facie support. I know he would not mind, if he were here, my saying that on this particular matter I completely disagree with him; and on this particular topic, having devoted a life to the law, I am less hesitant in expressing disagreement than I otherwise would have been. He said:It is intolerable that this solemn and deeply significant procedure "—that is, the death sentence—should be enacted again and again when in almost half the cases the consequence will not follow.I would say it would be intolerable if the result were the other way round. I think that what makes the death sentence tolerable, in so far as it is tolerable, is that the Home Secretary is there and can mitigate the consequences of the sentence in any proper case. Therefore, I totally and fundamentally disagree with the premise on which the most reverend Primate founded his case and which constituted the problem before this Commission.
Having thus accepted the problem, the Commission go on to point out what the result of their recommendations will be. They are men for whom we all have a very high regard, and they candidly admit that there are grave objections to the procedure they indicate. That, indeed, is plain enough for anybody to see, plain enough if only for this reason: that successive Home Secretaries and their 152 staff have laid down not exactly working rules but at any rate certain principles which give them guidance. Thereby, great disparity and divergence between case and case is avoided. Obviously, as different juries are appointed to deal with different cases, there would inevitably be immense disparities and divergences between particular cases, and that would tend to bring the law into disrepute. That is the disadvantage of this scheme.
What are the advantages? The first is that it would make the law of murder flexible. But I do not want to make the law of murder flexible. I think it would be a most unfortunate thing to make the law flexible. The history of law has always been that in primitive society law tends to be and must be flexible. The magistrate sits as a Cadi under a palm tree and administers what he thinks is right and just; but, as system develops, the law tends to become less and less flexible. The Lord Chancellor will remember that equity, in the days when it was introduced, was a system under which the Lord Chancellor was able to mitigate the severities and strictness of the law in any case in which he thought it proper to do so. But the opinion of one Lord Chancellor as to what was proper would differ from the opinion of another Lord Chancellor, and so we find inSelden's Table Talk these words:Equity is a roguish thing, as variable as the Lord Chancellor's foot "—meaning that one man's idea of what was reasonable differed from that of another man. So, in the process of years, equity became subject to fixed rules and principles and ceased to be flexible, as it had been in the old days. That is an inevitable tendency in civilised society. Therefore I think it would be a disastrous thing if the law of murder were to be made flexible. After the law has pronounced in a case, then by all means let us see that the quality of mercy is not constrained in any way and that the right of the Home Secretary to intervene should be based on no principles fixed and laid down by the Legislature. The second advantage, they say, is:It would also limit the need for the exercise of the prerogative of mercy.I do not want to limit the need for the exercise of the prerogative of mercy in any case whatever. I think it would be 153 a mistake 40 do so. Therefore, I find myself in this position. I find that they are taking these extreme steps to meet a problem which I do not regard as a real problem at all. They admit that the solution they propound has great disadvantages and they assert it has at least two corresponding advantages. Each of the two advantages which they set out has, I think, a disadvantage.
I pass briefly to the other question, the actual scheme they adopt of having, first of all, a trial at which the jury are asked to say whether a man is guilty or not guilty, and then a sort of second trial when the jury, having found the man guilty, have to decide whether or not they should assert that there are extenuating circumstances. The noble and leaned Viscount has pointed out that the Commission expressly said that they cannot define what the extenuating circumstances are. I should not like to be the judge summing up to the jury at that second trial. He would say to them, "Now, members of the jury, you are to consider whether there are extenuating circumstances, and what the extenuating circumstances are I have not the least idea. I cannot tell you at all. Now consider your verdict." That is about all he could say.
I think the Commission have not realised that it frequently happens that the defence which an accused advances at one stage is quite different from the case which he puts up to the Home Secretary after he is convicted. The simplest case is this. A murderer says, "I did not do it," and, of course, he rests on that: and if he is convicted, he goes to the Court of Criminal Appeal and tries to convince the Court of Criminal Appeal that there was not sufficient evidence that he did it, or that there was a misdirection or something of that sort. When that is all over, and the Court of Criminal Appeal dismiss the appeal and he stands convicted, the man may then go to the Home Secretary. His relatives may go to the Home Secretary and say, "Now, this is a very sad case. This man had an uncontrollable impulse. He had actually consulted a psychiatrist and asked the psychiatrist what he could do to get rid of this urge to kill young men or girls." It may be that the Home Secretary would then have to consider whether there was arty substance in that; and, if so, he could deal with this man as if he were in some way 154 affected in his mind. Consider that case—it is not a fanciful one. That happens often enough. What is the man to do? First of all, he has his first trial and is convicted. Then he has his second trial, when the jury have to consider whether there are extenuating circumstances. What is he to do? Is he to bring out then this story of mental weakness, of a tendency to commit crimes of this sort, and all that sort of thing?—because he may think, "That will rather harm my chances when I go to the Court of Criminal Appeal and say I never did it '"
I cannot think that this scheme has been the subject of thought, or at any rate has been the subject of advice by those who are really well qualified to speak on these matters. I regard the scheme of this second trial as one which is completely impracticable. Therefore, I sa—I am sorry to have detained your Lordships as long as I have—that in my view, whatever we may do on this most difficult problem, on which I continue to feel the greatest anxiety, the solution which has been propounded on this matter is not one that we can adopt.
§ 4.0 p.m.
§ VISCOUNT TEMPLEWOOD
My Lords, it is very bold, perhaps it is very arrogant, for a mere layman like myself to put a somewhat different point of view from the point of view that has just been put by the noble and learned Viscount who moved this Resolution and by the noble and learned Earl who has followed, him. They have overwhelmed the proposal to give discretion to the jury with a mass of arguments that I am certain a great many noble Lords here to-day will regard as entirely unanswerable. I admit the objections to the proposal: I admit the fact that the change that is proposed might be described as a revolutionary change in our judicial procedure. I admit the fact that it raises practical difficulties in English law in dealing with the need for a unanimous verdict. I admit, further, that it might lead to disparity in the matter of verdicts, though I shall hope to show a little later on that the experience of other countries show; that there is no great amount of disparity of that kind. But, my Lords, admitting all these objections, admitting the strength of them, I when they have been made, the problem 155 still remains unsolved—is the law of murder too rigid? And, if so, how can it be altered?
I throw my mind back to-day to the bitter controversies that we had on the question of capital punishment in 1948. The noble and learned Viscount, Lord Simon, has already alluded to those debates. My memory takes a somewhat different colour from his. I remember well the bitterness upon both sides, both in this House and in another place. On the one hand were the abolitionists, of whom I was one of the few in this House, and on the other were the anti-abolitionists. But I had the feeling throughout all those discussions that the body of opinion that really mattered was the centre opinion that took neither one extreme view nor the other.
§ EARL WINTERTON
May I interrupt the noble Viscount to say that I took part in the discussions in another place and there was very little bitterness there.
§ VISCOUNT TEMPLEWOOD
I will restrict the word "bitterness" to this House. Perhaps I was a little sensitive because on my side of the House I was almost an Athanasius contra mundum. I should not like to embark upon a controversy with the noble Earl. I was saying that the body of opinion which most impressed me was the centre opinion which was very well represented by the most reverend Primate the Lord Archbishop of Canterbury. My view is that of all the speeches made in the debate it was that of the Archbishop of Canterbury which most affected general public opinion. The most reverend Primate was by no means satisfied with the existing position of the law. He stated categorically that:it would be a moral setback simply to revert to the status quo.I go on to quote (OFFICIAL REPORT, Vol. 156, col. 48):Christian belief is that human life is to be treated as a sacred thing…It must be asserted against many modern denials. …It should be assisted by a modification of our present law. It would be weakened if now we merely went back to the status quo.Holding that view, he proposed that a differentiation should be made between murders, and that only murders which he described as "murders most foul" 156 should involve the death penalty. Largely due to the Archbishop's speech, the Royal Commission were subsequently appointed to consider the two questions—I quote their terms of reference:… whether a liability under the criminal law of Great Britain to suffer capital punishment for murder should be limited or modified, and if so, to what extent and by what means.As the noble and learned Viscount has already told the House, the Commission sat for four and a half years. They took volumes of evidence from experts in this country; they visited Belgium and the United States of America, and also made inquiries in South Africa. The Commission contained amongst its members three men whose opinions I should have said would carry the greatest possible weight upon penal questions of this kind. First of all, there was the Chairman, Sir Ernest Gowers, one of the ablest civil servants produced by Whitehall in our generation; secondly, there was Professor Radzinowicz, of Cambridge. the founder of the School of Criminal Studies in Cambridge and the author of a book upon British penal methods that I remember George Trevelyan described as the best book that was written in that particular year. Thirdly, there was my old Under-Secretary of State at the Home Office. Sir Alexander Maxwell. a man with unrivalled experience in every branch of criminal methods. He has been a Prison Commissioner; he is now being used by the Government for every kind of inquiry into penal methods all over the world; and perhaps most important of all, he is a man upon whose serene judgment successive Secretaries of State have depended without the least hesitation. This Commission, with these great experts among their membership, after all these years of inquiry, have made this recommendation. I suggest to your Lordships that even though at first sight you may have been impressed—you may perhaps have been overwhelmed—by all the arguments made against it, you cannot lightly set aside the view of these men, given after these many years of detailed inquiry.
My Lords, I own that this recommendation surprised me when I first found it in the Report. I had imagined that the Royal Commission would have followed either the example of procedure in Scotland, where, so far as I can judge, the law 157 of murder is more humanely administered than it is here, or the Indian code, where for years past there has definitely been a legal differentiation of murder, and where, upon the whole, the differentiation has worked satisfactorily. If noble Lords wish to investigate the Indian experience, they will find in the evidence given to the Commission by Sir John Beaumont, one of the outstanding Indian judges, a description of how the India code has worked and how satisfactory, on the whole, have been its results.
If the Royal Commission had adopted that line they would have recommended what many of us had expected—a differentiation by legal definition between one kind of murder and another. I am certain that they did not lightly turn down that line of advance, but, after the most careful consideration, they came to the view that it was not practicable to find a legal definition that would satisfactorily distinguish between one murder and another. The result was that they have been driven back—I can imagine, though I do not know what was in their minds, that they were driven back reluctantly—upon the line of giving discretion either to the judges or to the jury. They turned clown the possibility of giving discretion to the judges for the reason—I accept that it was a good one—that none of the judges wished to undertake it.
They then considered the question of giving discretion to the jury. For that purpose they made the fullest possible inquiry into the experience of those countries where the jury already have a discretion of this kind. I own that I have been surprised to find how wide is the use that is being made in various parts of the world of the method of allowing a discretion to the jury. It is working very well in Belgium; it is working very well in South Africa. It is in use in practically every State of the United States, and upon the whole it is working well. In one or two of the well-governed States it is working excellently. Moreover, the experience has been that juries have not been in the habit of giving emotional verdicts, nor has one verdict differed substantially from another. On the whole, there has been much less disparity in the verdicts than we might have imagined from the two speeches to which we have listened this afternoon.
158 There is the proposal. It is not an ideal proposal. It has been made only after eliminating a number of alternatives. I myself, after a great deal of consideration, and although I admit objections to it, have come to the view that if we are to make the law relating to murder more flexible, this proposal should be tried. Here I disagree with the noble and learned Earl, Lord Jowitt, who wishes to keep it rigid—I wish to make it more flexible; and, wishing to make it more flexible, I am inclined to give a proposal of this kind at least an experimental trial. I should like to see it tried over a period of, say, five years. If it were tried, I do not believe that many of the objections that have been made to-day against it would be found to have any solid foundation. I believe, further, that it we do not try it—and it is after all the principal recommendation of this Commission—we shall go back to that status quo against which the most reverend Primate the Lord Archbishop of Canterbury protested in our debates upon the Criminal Justice Act. That would, I believe, be profoundly unsatisfactory. I take the view that murder cases differ one from another more than any other criminal cases, and that any attempt to deal with them by a rigid method is bound to raise every kind of difficulty—and, indeed, even to create injustice.
I am fully aware, as a former Home Secretary, of the fact that it is the duty of the Secretary of State to make use of the prerogative of mercy for obviating anomalies and preventing injustices. I wish to say nothing against the way in which successive Home Secretaries have carried out this very responsible duty. They have carried it out as best they could. They have carried it out with the fullest possible departmental evidence at their disposal, and I should be the first to say that hitherto it has been a practical method that has worked moderately well. None the less, whilst it may have worked well in the past, I believe that in the new world, with its greater knowledge of human motives and mental abnormalities, and with the different methods of dealing with them, the Secretary of State's judgment should be supplemented by a power given either to the judges or to the j cries to take into account extenuating circumstances and to 159 impose sentences of imprisonment instead of death. In this way, my Lords, the prerogative of mercy will be preserved from future criticism and more strongly established than ever as a final safeguard where the irrevocable penalty of death is involved and so long as the penalty of death is continued.
§ 4.20 p.m.
§ VISCOUNT WAVERLEY
My Lords, like the noble Viscount who has just sat down, I rise to give your Lordships a layman's view. I shall not claim the attention of the House for long. I propose to deal only with one recommendation of the Royal Commission. Incidentally, if I may respectfuly say so, I found myself in complete agreement with what the noble and learned Viscount Lord Simon, had to say about the recommendations of the Commission in regard to the question of raising the age below which a capital sentence must not be pronounced and the possible change in the M'Naghten Rules. If this were the appropriate moment, I could say a good deal on that topic by reference, particularly, to the question of ungovernable impulse, which I have always thought means, and can only mean, in practice, an impulse which has not been governed. But as I have indicated, I wish to confine myself to that matter to which the noble and learned Viscount, Lord Simon, devoted the greater part of his speech.
It is with the greatest reluctance that I withhold assent from the unanimous recommendation of a body which included two old and valued colleagues of mine, one of whom occupied the responsible position of Permanent Under-Secretary of State for a considerable number of years, as I did; but after mature reflection I do most emphatically dissent from the recommendation of the Commission on this particular issue. It is not difficult to make the matter we are discussing appear very complex. The bent of my mind is to regard it as, in essentials, quite simple. It seems to me incontrovertible that, in this country at any rate, the proper function of a jury is to determine issues of fact according to the evidence before them. Under the proposal of the Royal Commission a jury would have to deal with an issue essentially involving the exercise of judgment, and whilst an attempt might no 160 doubt be made to give the task of the jury under the proposed plan a semblance of fact-finding, by laying down a variety of questions to which the jury must address themselves, essentially the matter woul remain one of judgment and discretion. If the law with regard to murder were to be altered in substance in the manner proposed, I should take the view that the discretion would have to be exercised not by a jury but by a judge or judges. My noble friend Lord Templewood was quite right, if I may say so, in calling the attention of your Lordships' House to the fact that under the Indian penal code judges have had such a function, and in the light of my own experience I would respectfully agree that that system worked tolerably well. Conditions in India, however, were, and I believe still are, very different from those obtaining here.
There is another consideration to which I attach the greatest importance. I have learned from the Report of the Royal Commission that two witnesses before the Commission, men of the highest eminence, Sir Travers Humphreys and Lord Justice Denning, expressed the view that the exercise of the prerogative of mercy involves some interference with the due course of the law and, indeed, some measure of challenge to judicial authority. I absolutely dissent from that view. But if, in a capital case, the function of the court, whether judge or jury, were altered in the manner suggested, that criticism would begin to have real validity, because unquestionably the Home Secretary and his advisers would seem to be going over the same ground, which they do not at present, as that covered by the judicial authority. To my mind that in itself is a conclusive argument against what is proposed. I am sorry to find myself so sharply at issue with my noble friend Lord Templewood. He and I have worked together. If I may say so, we have had in some degree the same sort of experience, but the lesson that I draw from my experience is sharply at variance with that drawn by him.
§ 4.26 p.m.
§ LORD CHORLEY
My Lords, I should like to begin by echoing the words of commendation which the noble and learned Viscount, Lord Simon, used about the work of the Royal Commission. Nobody who has studied their Report can fail to appreciate the really 161 searching inquiry which they made, not only into the problem that confronts penologists and criminal lawyers in this country but also into the whole problem of the administration of the law of murder throughout the civilised world. I am sure that for many a long year students of this difficult problem will stand considerably in their debt. As noble Lords have pointed out, this is not a debate on whether the death sentence is a proper sentence, a good sentence, which ought to be retained on the Statute Book; it is a debate which has been limited by the noble and learned Viscount to a much narrower field. I should not like to stray from the path which the noble Viscount has marked out, but at the same time he took the opportunity of looking over the hedge at the side of the road and I cannot forbear from looking over the hedge also, although perhaps not the same one.
Perhaps the most valuable of all the work that has been done by the Royal Commission is the searching inquiry which they have made into the effect of capital punishment as a deterrent. I have studied their Appendix on this matter, which is an astonishingly convincing document, and remain more than ever satisfied that the sooner we remove the death sentence from our penal system the better. I cannot help feeling that the men and women who collected that material together and set it out, whatever their views when they began upon their investigation, must have come to feel, as they studied the material which they collected, that the argument against the death penalty was overwhelming. This is indeed the first effective analysis of the use of capital punishment all over the world from the point, of view of its effectiveness as a deterrent. It may be a matter of curiosity, but I should like to know the final opinion of those able men and women, and I believe that all those interested in this matter would also like to know that. No group of outstanding citizens have ever been brought so closely in touch with this important and difficult problem over so long a period, and it seems to me a great pity that at the end of their labours we are not able to know the final view to which they came. I do not know, but I should be prepared to hazard a long bet that the great majority, if not all of them, must finally have come clearly to the conclusion that capital 162 punishment ought to be abolished. I should like to ask the Government to request the Commission to disclose what their final view was on that difficult point.
To turn now to the Motion of the noble and learned Viscount, Lord Simon, my first reaction to this proposal was rather against it. It was only when I came to consider it more carefully that I reached the same conclusion as that to which the noble Viscount, Lord Templewood, has come—namely, that it is a proposal along the lines of the terms of reference given to the Commission: to see whether they could find some method of modifying or limiting the death sentence as we now have it, which, it would be well worth giving a trial. It seems to me that they have, in fact, discovered a method, which is not, as the noble and learned Earl who leads me suggested, an attempt to abolish capital punishment by a side wind, but a really genuine attempt to introduce some modification or limitation of the death sentence as we know it to-day.
I was rather disappointed with the speech of the noble, and learned Viscount. Lord Simon, if he will forgive my saying so, because it seemed to me that he did not put the case which is put by the Royal Commission, even for the purpose of trying to knock it down. I was sorry to see him appearing in the rô le in which he appeared on an earlier occasion, as the advocate of death, in a sense. Again he repeated the point about Sir Alexander Paterson. I do not think it is true for a moment that the inaccurate remark that was made in another place led to the vote which was given in that Assembly. It is rather a reflection on that House to suggest that a Legislative Assembly of this country could change their opinion just because they were informed that a man, however eminent, had decided to change his views, and that they all followed like a lot of sheep. Actually, there is a good deal of strong evidence to suggest that Sir Alexander Paterson had changed his mind about this matter. It is true that the Member concerned in another place made a mistake in saying that Sir Alexander had joined the Society for the Abolition of Capital Punishment. He had not done that. But the evidence of the present Secretary, Mr. Frank Dawtry, of the Discharged Prisoners Aid Society, a man of the highest integrity—and this is on record—is that in a conversation 163 with Sir Alexander Paterson not long before he died, having discussed the new methods of imprisonment, not only as carried out in this country but also in Belgium and in other foreign countries, Sir Alexander did say, "That is the answer," and indicated that, with these new methods, and the fact that the sentence need not be a complete life sentence, his former objections had considerably modified.
§ VISCOUNT SIMON
If I may interrupt the noble Lord, has he not ascertained whether it was true that the late Sir Alexander Paterson had joined the Society for the Abolition of Capital Punishment, and was a subscriber? It is quite easy to ask the Society, or the Secretary.
§ LORD CHORLEY
The noble and learned Viscount did not hear what I said. I said that that part of the statement was not true. I was myself President of that Society, and I know that Sir Alexander Paterson was not a member of it.
§ VISCOUNT WAVERLEY
May I ask whether the noble Lord is not aware of the express repudiation by Lady Paterson, the widow of Sir Alexander Paterson, of the change of view which has been attributed to him?
§ LORD CHORLEY
I have seen a statement made by Mr. Frank Dawtry of the conversation he had with Sir Alexander Paterson shortly before he died, and I myself have talked to him about it. There can be no question of this, because Mr. Frank Dawtry, as the noble and learned Viscount must know, is a man of complete integrity and could not possibly have invented a story of that kind. However, this matter must be decided on its merits, and I cannot believe for a moment that the House of Commons did not come to their decision on this particular matter on a review of the arguments and the facts, and without attaching this undue weight to the opinion of Sir Alexander Paterson, important as that no doubt was.
I should like to join issue with the noble and learned Viscount, Lord Simon, on another matter. He said the action of the late Government, when the Criminal Justice Bill was returned to another Place, in not restoring the clause abolishing the death penalty after it had been 164 deleted in your Lordships' House, showed that they accepted the view that responsible opinion in this country was against it. That does not follow at all. The clause was not the Government's clause; it was a Back-Bencher's clause. The fact that the Government did not put back into the Bill a clause which was not their own is not evidence that they accepted the view that responsible opinion in the country was against it. The noble and learned Viscount was not in his best form this afternoon, I am afraid. At one stage in his speech he said that death should be the punishment for felonious killing. That must be a case of Homer nodding slightly, because a most important type of felonious killing which is before the courts every day is the felony of manslaughter, for which death has not been the penalty since the Middle Ages. Again, the noble and learned Viscount made the point that there was no case in our law where a jury decides how a man is to be punished. Surely, this case we are discussing this afternoon is a case where the jury do decide how a man is to be punished: by convicting the man accused of murder of the crime, they automatically sentence him to death. The proposal put by the Royal Commission is simply to enlarge that system and to allow them to decide whether he should be sentenced to death or to life imprisonment.
If I may say so, I thought the remarks of the noble and learned Viscount about the horrible character of the life sentence were all of a part with his speech, which, in my view, was a speech of advocacy for the status quo, because he mast be well aware that these life sentences, which are automatically passed in cases where the Home Secretary respites the convicted murderer, are never, in practice, served as life sentences. The noble and learned Viscount must have seen in the Report of the Royal Commission that the full period which these respited murderers serve is not more, on an average, than about ten years: that they are, in fact, amongst the best prisoners in the prisons; that the open prisons hold the majority of them; and that when finally they are discharged, their records afterwards are extraordinarily good. I believe that there is only one case in which one of them has committed a second murder; very few of them commit crimes involving violence; and few of them commit further 165 crimes at all. Most of them become respectable and decent citizens. That is not peculiar to this country, but is the experience of criminologists all over the world.
Then the noble and learned Viscount objected to the fact that the Commission proposed that the sort of circumstances which are to be regarded as extenuating circumstances should not be set out in detail in the Act which would have to be passed in order to introduce the reform in the law which they recommend. Is that not a reasonable proposition? By setting out extenuating circumstances, we limit the circumstances to those which are set out in the Statute, and it is impossible for the draftsman to foresee every sort of extenuating circumstance which may possibly arise. The judges themselves, in advising juries in cases of this kind, would undoubtedly in a short time build up a jurisprudence which would be flexible and would have all value of judge-made law, as opposed to rigid definitions in Statutes. In lie Report of the Royal Commission, the obvious sorts of extenuating circumstances are set out, and I am quite sure that they could be taken by the judges and moulded into a flexible jurisprudence.
As the noble and learned Viscount said, the great argument of the Commission is that our law of murder, as it stands at present, is altogether too rigid. He thought it was right that it should be rigid and wished that it should not be changed. I was surprised to find that the noble and learned Earl agreed with him in that, because quite a large section of the law of murder—and I think every lawyer, including the Lord Chief Justice, who gave evidence before the Royal Commission, agreed that it ought to be changed—is the law of constructive murder. There it is agreed between lawyers and criminologists that the law of murder is in fact in need of change. The real argument of the Royal Commission is not in relation to the law of murder as it stands, the Common Law definition, out in relation to the sentence which automatically follows on the conviction of the person accused of murder; the automatic rigid sentence of death, which I should have thought was quite another point.
I should like your Lordships to look for a moment at what the Royal Com- 166 mission say about this. At the end of paragraph 536 they say: "Nevertheless they "— that is, their proposals—appear to offer the only hope of escaping the difficulties which have proved fatal to the proposals we have, already examined; for, if they were practicable, they would enable the courts to limit the scope of capital punishment not by applying a rigid and necessarily inadequate definition, but by an unfettered appreciation of the particular circumstances of each individual case.If I may say so, that is entirely in accord with the whole recent development of criminology, in this country and in every other civilised country. The whole tendency for the last hundred years has been to treat the criminal as an individual; to look at the circumstances of each particular case, and to adapt the sentence in relation to that criminal to make die punishment fit the criminal, and not the punishment fit the crime. If I may say so, the attitude of the Royal Commission is entirely in accordance with that important trend, and the advice which the noble and learned Viscount gave to your Lordships this afternoon is asking us to return to the situation as it existed one hundred years ago. Again at paragraph 568 the Royal Commission make the point quite shortly:The signal advantage of jury discretion is that it would solve our main problem. It would make the law of murder flexible. It would remove the outstanding defect of the existing law, that there is only one sentence for crimes which involve widely differing degrees of guilt, and would enable the courts to examine each case individually on its merits and to make the punishment more nearly fit the crime.There again, I suggest that the advice of the Commission is entirely in accordance with the whole trend of modern criminological science.
Again they emphasise the point which was made by the most reverend Primate. They emphasise the fact—I am sure that he is right, in spite of the weighty opinion which has been put up on the other side—that it is wrong for the judge conducting a criminal trial to put on the black cap and condemn to death some wretched person whose sentence every informed lawyer in the court, and every informed person outside the court, knows perfectly well will be respited by the Home Secretary at the end of a short time. Yet the wretched man who is convicted in that way cannot be sure about that, and must 167 suffer torments during the whole of that intervening period. That has been described by some people as a solemn farce. I do not think the word "farce" ought to be used in such a connection. It seems to me to be a tragedy that that sort of thing can still happen in our courts of law in this Year of Grace.
Another important point which the noble and learned Viscount did not bring to your Lordships' attention, but to which the Royal Commission obviously attach a great deal of importance, is the fact that this entrusting of the position as to death or life imprisonment to the jury would bring back into our judicial system the problem of sentencing. At the present time, in effect, it is entrusted to an officer of the Executive Department of the State, because by the development of the use of the prerogative of mercy over the last 200 years or so we have really developed a system of having two trials in cases of murder. The first trial takes place in the ordinary courts of the land, and the second trial takes place afterwards, secretly, in the Home Office, where a decision is taken as to whether or not the person who has been convicted and sentenced to death shall, in fact, be executed. That is really a second trial. It is a trial which offends against many of the basic concepts of our English law. I am not saying that it is not carried out with the greatest care I am sure that it is, and that the Home Secretaries concerned, and their officials, give the greatest and most painstaking thought to what they are doing. But that does not mean that it is not a trial which is against the whole spirit of the Common Law of England. It is a trial carried out by an executive officer, and not by an officer who is part of the judicial system of the land.
This is made very clear by the Royal Commission, in paragraph 592. It is carried out behind shut doors in secret, whereas it is the whole essence of our law that justice should be administered coram publico—that it should not only be done but should be seen to be done, a phrase which has been used much of recent years and which does express a most essential and vital verity. The Secretary of State does not himself see the prisoner. He has to take everything on trust. I suggest that it would be better 168 if this business could be done in open court, as part of the administration of justice, according to the ordinary administration of justice in the courts of law. Finally, it is carried through by an executive officer of State who is, in a sense, interested; he is not a completely unbiased officer of State, because he is the very officer who is responsible above all other Ministers for the preservation of order in the community, and who is entrusted with the supervision of the police force which, after all, is the prosecuting element in the case. In a sense, therefore, the Home Secretary is being a judge in his own case. I have no doubt that in the great mass of these cases the Home Secretary succeeds in reaching a completely unbiased decision in these matters, but every now and then there is a case in which the police themselves are particularly closely involved—as in a recent case which will be within your Lordships' knowledge. I suggest that in that case it is very difficult, if not impossible, in practice for the Home Secretary to come to the same sort of completely unbiased decision as he would reach if he were not interested in the result. Because obviously every Home Secretary must wish to defend his own police officers.
§ LORD CHORLEY
I was talking about the youth Bentley, a lad of 18 or 19 years old who killed a policeman—or rather who, although he did not actually commit the murder himself, shouted to his confederate, "Let him have it." But Bentley was found guilty of the murder and Craig, who was under age and therefore could not be sentenced to death, was imprisoned.
I am happy that I know the name, because in all my twenty-seven years in this House I have had no reason to think that a noble Lord would get on his feet and say what he thought, at the same time hiding the name.
§ LORD CHORLEY
I was not trying to conceal the name in the Bentley case. It was merely for the reason that I thought I should seem to be teaching noble Lords what was already in their minds. The point of my argument is that a man should have the right to have his 169 sentence determined by the machinery of the judicial system, and should not receive this respite which everybody knows he is going to get, merely as a matter of grace. That point is well expressed by the Royal Commission in paragraph 568 of their Report, where they deal with the matter being one of right, rather than one of grace.
The last point that I should like to emphasise—and it was one which was completely ignored by the noble and learned Viscount—is one of very great importance. It has been mentioned particularly by the noble Viscount, Lord Templewood. I refer to foreign experience in respect of this matter. One would have thought, when listening to the noble and learned Viscount, Lord Simon, that there was no foreign experience to go on; whereas in practically all the States of the United States of America they have for many years had this system of leaving the death sentence or the life sentence at the discretion of the jury. And these States are almost all States which are just as much proud inheritors of the Common Law system of law as we are. As recently as 1951, Massachusetts, which had not previously adopted this system, did introduce it—for the very reason that it was found that juries were too easily acquitting men who were accused of murder because they knew well that a result of a verdict of "Guilty" would mean the death of the accused man. It was therefore suggested that they should leave it to the jury themselves to say whether a particular murder was of such a heinous character as to deserve the death sentence.
I suggest that one of the results of the proposal of the Royal Commission would be that juries here also would give a more honest verdict. I should say that in these cases of murder English juries do, on the whole, give proper verdicts; but I do not think anybody would deny that there are cases here and there where a jury give the prisoner such a very wide benefit of the doubt as to make the verdict approximate, at any rate, to the sort of perverse verdict to which the noble and learned Earl, Lord Jowitt, referred in his speech. Now, if the incentive to give a verdict of that kind were removed, surely we should get more honest verdicts. A substantial proportion of cases in which it is pretty clear that the 170 prisoner is, in fact, guilty but where the jury find him "Not guilty" would have verdicts of "Guilty" returned; and so we should get a more honest and more wholesome administration of the criminal law.
To return to the question of foreign experience, it is most interesting and significant to see the evidence put before the Royal Commission on this point. Particularly valuable was the evidence which was forthcoming from South Africa, and it was given by a very distinguished ex-judge of South Africa, Dr. C. W. H. Langstone, Q. C, who was not only for a number of years a judge in that country but is the author of a leading textbook. His evidence (I am referring now to paragraph 483 of the Report) makes it clear that the doctrine of extenuating circumstances "has proved very successful" in South Africa. Figures are given which show that juries find extenuating circumstances in some 76 per cent. of the cases in which they find a verdict of "Guilty." And the interesting thing is that, even after that, the South African opposite number of the Home Secretary may then. consider the case, and in fact does consider the case, and respites a further quite substantial number of these men—something like 23 per cent. of those convicted. In other words, the further sorts of evidence about the man's heredity, his early circumstances and family life, and matters of that kind, which cannot, from the nature of these trials, be brought in at the actual trial of the case, are then given further careful consideration. Then, if the opposite number of the Home Secretary in South Africa finds it a proper case for clemency to be granted there is still this further opportunity—in the words which the noble and learned Viscount quoted—for mercy to "creep in by some chink." I suggest that we in this country should not draw back but should also be courageous and follow this fine example set so recently by our fellow-citizens of the Commonwealth in South Africa, and by those people in America who share with us the great traditions of the Common Law and who have used this system with success for many years.
§ 4.58 p.m.
§ LORD OAKSEY
My Lords, I entirely agree with the speeches made by the noble and learned Viscount who moved this Motion, the noble and learned Earl 171 the Leader of the Opposition, and the noble Viscount, Lord Waverley; and I think I can compress what I have to say into very few moments. What is the problem? What is the object of this scheme? What is the difficulty? As I understand it, it is simply this: that in a certain class of cases, the rarest possible class of cases, it is suggested that it is improper or shocking that a sentence of death should be passed; and I can understand that argument being put forward with reference to what are called "mercy killings." But how many mercy killings, so called, are there? I have never come across one in the course of my experience and the Royal Commission do not refer in any way, so far as I can see, to any number of "mercy killings." I entirely agree with what was said by the noble and learned Viscount, Lord Simon, that it is highly desirable that the taking of another person's life should be treated with the utmost solemnity and that, therefore, a sentence of death should be passed. It is inevitable that a person who has committed such an offence should have to go through a trial; he or she must be tried, in any event. The suggestion of this scheme is that they should have a second trial, which would be a further ordeal in which they would have to wait to learn whether the jury would find any extenuating circumstances. Therefore, in my opinion, the object of the scheme is of an absolutely negligible quality.
My next objection to the scheme—and this is to the scheme itself—is that, while I will not say that it is not designed to arrive at the truth, it seems to me that it will not, in fact, arrive at the truth. The Royal Commission have realised that it would be improper and inappropriate to place upon the prosecution the duty of demanding the death penalty, so they propose that the defence should put forward what are alleged to be extenuating circumstances, and that that evidence should not in any way be tested by cross-examination. That is absolutely opposed to the whole system of British elucidation of the truth in the course of the administration of justice. Everyone who is practised in the law will, I think, agree with me that to take the evidence which is put forward by the witnesses for one side and not to test it by cross-examination will not lead you to the truth.
172 Therefore, while, as I say, it may not be fair to say that this scheme is not designed to arrive at the truth, its actual provisions will not, in fact, do so. Verdicts of juries will be perverted by the way in which the evidence has been presented to them, and in nearly every case, in all probability, they will find that there are extenuating circumstances.
Other speakers have already insisted upon the fact that particular juries will have no standard by which to decide whether there are such extenuating circumstances as ought to prevent the death sentence from being pronounced. I entirely agree with the noble Viscount, Lord Waverley, that if such a scheme had to be put into effect, if there had to be such a trial, it should be left to the judges. The judges would have such a standard and I feel absolutely certain that, if it were put upon them, they would carry out their duty properly. But there is one other agument which seems to me to be worth mentioning, and it is this. The burden which, at the present time, a jury has, of deciding whether or not a man is guilty, is enough for any one body of men or women to have to sustain in the course of one trial. Anybody who has presided over a murder trial not only feels the strain himself but knows and can sense the strain which juries have to undergo in deciding that issue. The further duty of deciding whether or not the prisoner should be put to death seems to me to be altogether too much of a burden to place upon them. It is one which will almost inevitably end in their giving judgments on these extenuating circumstances which are not in accordance with the truth.
§ 5.7 p.m.
§ LORD ASQUITH OF BISHOPSTONE
My Lords, I rise to support this Motion and can give my reasons very shortly indeed. I have read most of the Report and, of course, all the section of it which is material to this Motion. I know not at the end of that experience whether more to admire its form or to deplore a great deal of its substance. In particular, this proposal seems to be very ill judged. The wisdom of centuries has committed to juries the task, and only the task, of ascertaining innocence or guilt. The determination of the punishment has always been lodged in other hands. Notoriously in criminal cases, the burden 173 which rests upon a jury under this head, the finding of a verdict of "Guilty" or "Not guilty," is about as painful a burden as can rest on anyone's shoulders. To foist upon a jury, who have already discharged that task and found a verdict of "Guilty," the further task, not less painful and not less onerous, and which they have no qualifications to discharge, of deciding the issue of reprieve or no reprieve, seems to me as little fair to the jury as it is to the public.
Have your Lordships considered how little assistance a jury enjoys in this difficult task, or will enjoy if this proposal goes through? They have to judge whether there exist extenuating circumstances. There is no definition in the Report of "extenuating circumstances" and the authors of the Report quite frankly, and, I think, rightly, say that no definition is possible. If a jury seek guidance on this point, all that a judge can tell them is that extenuating circumstances are anything which they consider such. Meanwhile, for the first time, I think, in our history, it is proposed that an issue should be left to the jury, rot of fact but of pure opinion, of pure opinion in a field in which they are given no criterion, no yardstick, no standard to help them. Is it not inevitable that in those circumstances two consequences are likely to follow, both evil? First of all, there will be a jumble of inconsistent decisions given by different juries on facts which are materially indistinguishable. After all, justice should be even-handed: it should not consist in a capricious patchwork. The second, almost inevitable, consequence will be a great increase in what one may call sentimental clemency. Consider the position of a jury who have wrestled for days with the issue of "Guilty" or "Not guilty," and have felt bound to convict. They see before them a harassed, hunted man. In human nature the instinct to rescue is very strong: we tend to side with the hunted and to forget the victim. Meanwhile, they know, or will know, that they have only to lift a finger in order to save this person from the gallows. We can expect only one result from that.
Much has been said in criticism of the present system. I am by no means uncritical of it, but it does seem to me, with all its shortcomings, vastly prefer- 174 able to the suggested alternative. The present system involves these features: that in a case of murder neither the jury nor the judge have airy discretion as to punishment. The jury has nothing to do with punishment, and the judge has no option but to pronounce sentence of death. But everybody knows that the matter does not end there. The real discretion is lodged with the Home Secretary when advising the Sovereign as to the exercise of the prerogative of mercy, and in so advising; he has a staff of trained experts behind him—men who have not been harrowed or haunted by the sight of the convicted man a moment after his conviction, men who are not tempted to be oblivious of the fact that there was a victim involved. The Home Secretary can draw upon the vast accumulated experience of his Department. I do not for a moment claim that it is a perfect system; on the contrary, I think on occasions bad mistakes have been made. But as I say, with all its shortcomings, it appears to be a vast improvement on what it is suggested should replace it.
One cannot resist the suspicion that the real aim of these proposals is to undermine the death penalty altogether. The Commission are disabled from recommending its abolition as such, and, reading between the lines, one appears to discern an attempt to reduce it to a shadow, to whittle it down to nothing by indirect means. There is a good legal maxim, that you ought not to be allowed to do indirectly what you cannot do directly. I cannot believe that this recommendation, in particular, would have assumed the form it has if there had been among the ranks of the Commission a single person who had ever tried a capital, case. For these reasons, and for the reasons which other speakers have given, I commend this Resolution to the House.
§ 5.14 p.m.
§ LORD GODDARD
My Lords, the principles underlying this proposal of the Commission have, I think, already been criticised enough. I need hardly say that I agree with those criticisms. May I put forward a few practical objections to the scheme? In the first place, I think one point has been overlooked. The Commission have stated that they think that the law of murder ought to be more flexible. There may be a good many 175 reasons for that. For myself, I believe it is desirable that all law should be certain. But juries are by no means inflexible, and in every murder case that comes before the courts a jury can always return a verdict of manslaughter if they wish to do so—and they not infrequently do, merely because they find that there are some mitigating circumstances. However much a judge may direct a jury—he may lead them but he cannot drive them—that there is no evidence which would justify a verdict of manslaughter, on occasions they do find a verdict of manslaughter, even against the direction of the judge, and that is because they feel great sympathy with the accused person.
A case was reported in the newspapers, either this morning or yesterday morning, of a son who killed his father because the father was attacking the mother. It could not be pretended that the attack which the father was making upon the mother was really endangering the mother's life, and certainly the father was not using a knife. But the son took a knife and plunged it into his father's back and killed him. I think the judge would have charged the jury that that was murder, but the jury found manslaughter. As Lord Mansfield said many years ago, a jury can exist for the purposes of mitigating the rigours of the Common Law. But, my Lords, it is extraordinary, and very dangerous, to leave this question of extenuating circumstances in terms to a jury. At the present moment there is a man who I think must be still serving a life sentence passed upon him some years ago by Mr. Justice Atkinson at the West Riding Assizes. That man, years before, had killed a woman on Newcastle Moor. It was the clearest case of murder, but apparently because she was a prostitute (this was the only reason the judge could find) the jury brought in a verdict of manslaughter. The accused person was given a substantial sentence; he served his sentence and, having earned his remission, he came out again. After a very short time, at or near Leeds, he did exactly the same thing. As Mr. Justice Atkinson told me afterwards, the only possible reason for the jury again finding manslaughter was that the woman was a prostitute. Is that any extenuating circumstance? That is the sort of thing that 176 a jury will do—and the temptation to do so would, of course, be enormously extended if this proposal were to be adopted.
I do not believe that there would be a great extension of it, because a jury have first of all to be unanimous as to whether the verdict is one of murder or manslaughter. If they are unanimous that it is manslaughter, well, there is an end of it; they have used their powers and the court must accept their verdict. Then comes the case in which they are unanimous that the proper verdict is murder. But I doubt whether one in twelve juries would ever agree on the question of what the sentence should be. I am bound to say that at the moment there is a regrettable increase in the number of disagreements among juries at criminal trials—I do not mean in the murder trials, although about two months ago, at the Old Bailey, there was a disagreement in a case which was called the Clapham Common case. I have been at the Old Bailey to-day. The learned Recorder told me that last Session there were no fewer than seven disagreements on the question of guilt or innocence. How many more do you think there would be in regard to the question of death or imprisonment for life?
The curious proposal that is made in this Report is that if the jury disagree, then the sentence of death is passed automatically. I simply cannot understand that. If a jury disagree, they give no verdict. If the question of death or imprisonment is to depend upon the verdict of a jury, how illogical and wrong it would be to say that if the jury cannot come to a decision the more serious penalty is to follow. With regard to the other proposals suggested in the Commission's Report, so far as I understand it, directly there has been a verdict of "Guilty" the police officer, who now always gives evidence in the ordinary case in regard to the prisoner's record (not, of course, in a murder case, where there is only one sentence that can be pronounced) has to come and give his evidence; the prison doctor has to come and give evidence, and then the judge has to direct the jury. I am not quite sure what is the purpose of his addressing the jury at this stage, but that is what the Commission say he has to do. Then the prisoner's counsel can call whom he 177 likes, and the prosecuting counsel is not entitled to cross-examine. The prosecuting counsel is not to be entitled to make any speech, but the prisoner's counsel is to be allowed to make a speech. Then the judge, apparently, has to make another speech in the form of a summing up. I am bound to say—and I say it in all sincerity—that rather than take part in such a performance as that I would resign the office I hold, for I think it would be destructive of everything in the British law. For these reasons, I commend the Motion to this House.
§ 5.20 p.m.
THE LORD BISHOP OF COVENTRY
My Lords, after the speech of the last noble and learned Lord I hardly dare to rise to my feet in this Assembly but let me say right away that I have only one point to make. The mover of the Motion, in his opening speech, drew attention to one aspect of this Report—that of the place of the jury in a murder trial. Now there is one issue upon which I support the most reverend Primate the Lard Archbishop of Canterbury, and that is on the question of maintaining the status quo. But I do not think the status quo can rightly be maintained in the sphere of insanity in murder trials. I think it cannot be denied that in these matters the cases which most trouble the mind of the community at the present time are the borderline cases, cases which involve questions of insanity, and psychopathic questions relating to the accused person. There is nothing relating to the criminal law which more troubles the public mind than such cases as these. I think, therefore, that although one of the most important issues is that relating to the status quo, and this may not he the right place for developing the issue upon which I have just touched, it is right for me to raise this point in discussing the question of whether a jury should adjudicate on the matter of the penalty to be inflicted.
The key issue which troubles cur consciences is these borderline cases of insanity. Which of twelve ordinary people has any experience of that kind of thing in his ordinary life? How many people know anything of the basic facts relating to psychopathy and insanity, and all that belongs to this sphere of 178 human motives? To most people it is entirely a closed door. If, therefore, they are now to be asked in these cases to make decisions in an area of judgment in which they have no experience of any kind, a still greater burden will be cast upon them than any they have hitherto had to bear. It is not a question of law, nor is it a question of fact or of evidence. There is no such thing as fact in these cases. The question for the jury is one of interpreting the facts before them, and that interpretation requires an understanding and. knowledge which the average jury cannot claim to have. To sum up, there is, I know, much public distress concerning these murder trials in which the question of insanity is raised, and I suggest that the jury are the last body competent to form a decision on such a matter. Therefore any decisions which would throw on a jury mare responsibility, which they are most incompetent to discharge, would be a disaster.
One other matter relevant to this debate with which I should like to deal is this. In cases of possible insanity, as we know, the Home Secretary may have to discharge a very heavy responsibility. Everyone must have an intense feeling of sympathy for the Home Secretary when a question of that kind is referred to him—and there are many such cases. In arriving at his decision, so far as I can make out, he consults particular individuals and gets from them the benefit of their judgment. I regard it as unfair to throw such a responsibility on the Home Secretary. I think he ought to have a corporate body legally established to which these questions can be referred—a body whom the Home Secretary would consult officially and not informally. That is all I wish to say. This is a matter which touches the conscience of so many of us in relation to these murder trials.
§ LORD CHORLEY
Surely the Home Secretary has to consult two doctors under an Act, I think, of 1884. The noble and learned Lord the Lord Chief Justice knows that better than I do.
THE LORD BISHOP OF COVENTRY
I wonder in what form the decision is taken. Does the Home Secretary act after personal consultation or is it merely a matter of constitutional legal form?
§ 5.27 p.m.
§ LORD TUCKER
My Lords, I so thoroughly agree with everything that has been said in support of this Motion that there is little I desire to add. I am entirely at a loss to understand what is wrong with the present system that calls for any alteration in the law. It seems to me it is only right and proper for every man who commits murder, that according to the law as it stands at present, he should be in peril of having sentence of death passed upon him. And I am completely unable to understand that there is any substance in the claim that a man who has committed a murder should be given a right to have some lesser sentence passed upon him. It is no doubt right and proper, in many cases, that the prerogative of mercy should be brought into play by the Home Secretary. I think there is ample scope there for the flexibility which so many people desire; and, speaking for myself, I think our present system has worked admirably over the course of years.
It is a grievous task that is put upon the Home Secretary. He has never yet shrunk from facing, that task, and in the exercise of that duty he can keep abreast of public feeling. The public views about these matters change as years go on, but he is the best instrument for giving effect to the flexibility which is so necessary with regard to the carrying out of the sentence of death. The idea of a judge or a jury having to go through the terrible ordeal of a second trial, once they have dealt with the first trial for murder, is one which shocks me. It seems to me that if it be the fact—which I do not believe—that the judges have refused to accept the responsibility of deciding this matter if it should be thought right that the duty should be placed upon them, it would be quite wrong that a task of that kind should be put on twelve jurymen summoned to do their duty as citizens. I do not believe that the judges would shrink from shouldering this responsibility, if it were considered necessary to put it upon them, and I believe that, if any change is needed, they would be the proper people to deal with this matter.
Reference has been made to the experience of other countries. One of the countries to which the Royal Commission have directed their attention primarily has been Belgium, where, as 180 they point out in the Report, the death sentence, though nominally still existing, has not been given effect to for many years, so that the experience in that country would not appear to give much assistance. One of the other countries is South Africa. There the system of law is based on Roman-Dutch law. It is true that the third country is America. But, with all respect to the different systems of other countries, and after the experience I have had of various branches of the law, I would say without hesitation that, so far as the criminal law and its administration are concerned, we need not look beyond these shores in that matter.
§ 5.30 p.m.
§ VISCOUNT SAMUEL
My Lords. I asked that my name should be included in the list of speakers just before that of the noble and learned Lord the Lord Chancellor, who is to reply, in the expectation, and indeed the hope, that all the points which I should have otherwise brought forward would have been dealt with by previous speakers. That has, in fact, proved to be the case, so that I am exempt from the obligation of making a lengthier speech than I should have to make if the circumstances were otherwise. Indeed, I find myself not only anticipated by what has been said by many noble Lords, but in full agreement with the great weight of judgment that has been expressed in your Lordships' House to-day. From the speech of the noble and learned Viscount, Lord Simon, who moved the Motion, through the whole list of speeches, from ex-Home Secretaries and Law Lords (with the exception of that of the noble Viscount, Lord Temple-wood), there is a great weight of opinion in opposition to this proposal made by the Royal Commission.
The debate has properly been restricted in its scope. The noble and learned Viscount put down a limited Resolution. The Report of the Commission does not deal with the broad question of the abolition of capital punishment, for it was rightly determined, when drawing up the Commission's terms of the reference, that that was not a matter which could be submitted to the judgment of any body of that character. It is far too grave and general a question of policy to be submitted to an inquiry of that kind. Their function is to provide the materials 181 on which a judgment can be based, but the judgment itself is not for them, in the form of a recommendation: it is one for Parliament, for the electorate and for the public opinion of the whole nation.
I confess that I shared the surprise that has been felt by others when I read this proposal with regard to delegating to the jury the decision on this question of 1.fe and death. The surprise is the greater when I observe in the Commissioners' Report this statement:We"—that is, the Commission—must recognise, however, that such a system would also be open to a number of grave objections, and the witnesses whom we asked for their views on the suggestion that some such discretion should be conferred on the jury almost all considered that it would be most undesirable.So that the Commission have arrived at their decision in face of the great body of evidence placed before them, while in addition, as the noble and learned Viscount, Lord Simon, mentioned, he, for one, and I for another, when we appeared before the Commission, were not asked to express any opinion of that kind. Therefore, this recommendation comes to us as all the greater surprise.
It raises the whole question of the working of the British jury system. As the Commission declare, it makes a radical change in that system, which is one of the great triumphs of the British Constitution and its judicial structure. Viewed dispassionately, the jury is one of the most remarkable institutions in the world. No modern jurist, or political philosopher, asked to draw up the Constitution of a new State, would dream of inventing a method by which twelve people would be drawn together haphazard, by lot, and charged with the important duty of administering the criminal law. But there it is. Indeed, it long anticipated the law. It is one of the most ancient institutions of mankind, and it works very well. The Commission do not hesitate to quote the almost unanimous opinion of judges in paying tribute to the juries for their fairness and wisdom. And this is an example of the wisdom that does reside in common sense. Jury service is readily rendered by the people at large. Most men, and probably most women, feel somewhat gratifed in being chosen, unless the case 182 they have to deal with is too onerous. They feel rather proud of taking part in the working of the national system, and that they, ordinary citizens, are called upon to take an important place in a law court, go through all the solemnities of its procedure and at the end give the deciding voice in settling the whole matter. Not the learned lawyers, not the judge, but John Smith and William Robinson settle a case, one way or another. And this service is readily given.
But mark how limited their functions are in this matter of sentence. See how careful our law is not to place upon any one individual this terrible burden of saying, "This man shall die." It is not the prosecution, as in some countries, who have to say whether they demand the death sentence or not. That is quite foreign to British law. It is not the jury, because they are not asked to express any opinion on that matter. All they have to do is to find what are the facts, whether a man is guilty or nor guilty. That is their function, and having done that, their consciences are discharged. It is not the judge, because in this case, and in this case only, the law decides that the judge shall not be asked to decide what the sentence shall be. Once the verdict has been given, the sentence follows as a matter of course. It is not even the Home Secretary, although in a most solemn moment, after having examined every aspect, of the matter, he does search his conscience to decide whether or not there shall be an interference with the law. The positive action is taken by the law. The Home Secretary does not decide de novo. He does not start from the 'beginning and say whether or not a man is to be put to death. What he has to do is to say whether he is to stop the motive force of the law which has decided that a man shall be executed.
The Commission themselves declared in their Report that there is a great difference between this negative function of not interfering with the course of the law and any positive obligation that rests upon an individual. But if this proposal now made by the Commission is carried into effect, that situation will be changed. There will come a moment when in the jury box these twelve people will have to decide whether or not there are extenuating circumstances. That is simply camouflage, because if they say, "Yes," 183 then the man will not be executed. If they do not say that there are extenuating circumstances, then he will be executed. So when they arrive at their decision in that room, the twelve of them, by their action, are either putting a fellow-creature to death or not. It is said that that is an intolerable burden to put on a judge. Why should we take twelve ordinary people, who know nothing, or very little, of the law, and know nothing about psychiatry, insanity and the motives that move people, who have none of the information, most carefully considered, which the Home Secretary has before him, collected as the outcome of long experience, but who come, all of a sudden, to this problem for the first time, and place on their shoulders this dread obligation? This is not a matter of their own choice; it is compulsion. They are picked out and called upon by law, under a penalty of fine or other punishment, to perform this duty. They are conscripts brought into the jury box.
A man who is a conscript in the Army may say, "I object to warfare; I am a conscientious objector. I will not kill any fellow-man, and nothing that you do will make me alter my opinion. You may impose what penalties you like, but I shall not change my mind." In such a case, the State recognises his feeling, if it is found to be genuine, honest and sincere: he is accepted as a conscientious objector, and is not called upon to do actual combatant duty. Will that be so in the case of these jurymen? If the High Sheriff summons so and so as a juryman, and he says, "I am opposed to the death penalty by conviction, and I will not bring in a verdict that a man shall be put to death, but will insist, in all circumstances, on a verdict of extenuating circumstances," what is to be done? At present, I understand there is no obligation on the Sheriff to admit conscientious objection. But you will have to admit it if you impose this duty in the case of compulsory service, of conscription, of jurymen. I think you will find there may be, almost for the first time, real controversy arising over jury service in itself if you impose this obligation as a matter of course upon any juryman who may be called upon to try a murder case.
As the noble and learned Lord the Lord Chief Justice has said, if there is disagreement on the second trial, what then? 184 It is bad enough when there is disagreement on the first verdict, and in cases of disagreement great objections and difficulties arise as to whether or not there should be a second trial. But what will happen if there is disagreement on the second verdict? The Lord Chief Justice suggests that the effect will be that there will be no verdict of extenuating circumstances, and the man will be hanged. Is that right? What is the Home Secretary to do in that case when the matter comes to him for the final decision? These are difficulties which will almost assuredly arise. Furthermore, it is known, and, indeed, mentioned in the Report of the Commission, that in discussions in the jury room before the verdict is given, where there is disagreement and differences of opinion, sometimes the one obstinate juryman or the two obstinate jurymen may be won over by saying: "We must bring in a verdict of Guilty'—it is clear that he is guilty—but we will put in a recommendation to mercy." And that is done. Of course, the recommendation to mercy imposes no obligation upon anyone.
This matter is of great interest, because the point now arises of the relation between this proposal and the procedure by which the Secretary of State recommends the exercise, or not, of the prerogative of mercy. On page 202 of the Report the Commission give some interesting figures as to what happens to recommendations of mercy, how many there are, and how many reprieves. I will just quote the summary which shows this. It is found that in the present century, during the last fifty years, juries in England have made recommendations to mercy which have not been acted upon by the Home Secretary, and where there has been no reprieve, in 112 cases. On the other hand, there have been 200 cases where the jury has not recommended but the Home Secretary has reprieved. Therefore it is quite clear that there are a large number of cases—112 plus 200, making roughly 300—in which the opinion of the jury does not coincide with the opinion of the Home Secretary. If this particular question is to be left to somebody to decide, there can be no doubt that it will be much better for the decision to be given by the Home Secretary, in the light of long experience and by the procedure that is pursued now, after the most careful deliberation, lasting perhaps for days, possibly with personal 185 consultation with the judge who has tried the case and with the expert advice of the whole criminal department of the Home Office, than for it to be clone by a jury at the end of a long trial, by a second reference; that is to say, by people who have no real knowledge either of the circumstances of the case or of the general considerations that should govern the matter. For that lea-son, I do not think that this course should be taken merely in order—and this is the only argument that is used in favour of it—to avoid the drawback, which is undoubtedly a real drawback, that there are a certain number of cases now in which the sentence of death is solemnly imposed while it is well known that in all probability the Home Secretary will issue a reprieve. I feel it is better that we should put up with that, rather than that we should try this novel and, indeed, unworkable expedient.
§ 5.47 p.m.
THE LORD CHANCELLOR (LORD SIMONDS)
My Lords, I shall detain your Lordships for only a short time. As I told the noble and learned Viscount who moved the Motion, I am not in a position to make any pronouncement on behalf of Her Majesty's Government in regard to the issues raised. I think your Lordships will not be surprised that that is so, when you regard this volume of 500 pages and when you realise that it took four and a half years for its authors to come to the conclusions which they there state, while we have had just over three months, I think, in which to consider it, at a time when there have been other matters demanding our consideration. However, I should like to take this, the first opportunity that I think anybody has had of doing so in public on behalf of Her Majesty's Government, of giving our most cordial thanks to those gentlemen who have given so much of their time and industry to compiling this work. It is, indeed, a fortunate thing that in this country we can rely upon such public service as theirs. It as appears to be the fact, many of your Lordships are unable to agree with one, and it may be with more, of the recommendations contained in the Report, that, I think, does not diminish the gratitude which we should feel for their labours.
I should perhaps add, in regard to the particular aspect of capital punishment 186 which is referred to in the Motion, that it is only one aspect,: for the Commission had to report upon a great number of subjects. Let me remind your Lordships of some of them. They are the abolition of the somewhat esoteric doctrine of constructive malice, which is one of extreme difficulty in administering the law; the extension of the scope of provocation as a defence to a charge of murder; the position of a survivor in a suicide pact; the minimum age below which the sentence of death may not be imposed; the criterion of criminal responsibility, both generally and specially, in regard to mental defectives; the form of the sentence of death; and various questions relating to the conditions in which the condemned man should be held. All these matters will have to be seriously considered by Her Majesty's Government. We have not thought it right to attempt a decision piecemeal upon the recommendations contained in the Report.
Let me add this: I believe that the discussion which has taken place in your Lordships' House, and the weighty pronouncements which have come from so many of your Lordships, must be of the greatest assistance to Her Majesty's Government in coming to their conclusions. Your Lordships may be sure that full weight will be given to them. Although I am nit in a position to make any pronouncement, I think I can go as far as this: that the cogent arguments which so many of your Lordships have addressed to the House are likely to weigh as much with others as they weigh with me; and I hope that the noble Marquess who now leads the House will not think that I have gone too far.
These are matters upon which we should not lightly come to a conclusion—for this reason, if for no other: that we are all interested. I do not suggest that any of us is a potential murderer, but we are all possible victims. So these are matters which, in the public interest, demand our prolonged consideration. I hope, therefore, that your Lordships will forgive me if I say no more than this: that what has been said will be taken into the earnest consideration of Her Majesty's Government. I understand from what the noble and learned Viscount who moved this Motion said to me, that he does not propose to divide the House upon his Motion. If he did, 187 I think I should be bound to say that I could only advise noble Lords, before they voted one way or the other, to wait until we have heard what the decision of Her Majesty's Government is upon the question. But that is for the noble and learned Viscount to consider. I hope that your Lordships will acquit me of any discourtesy if I am not in a position to make any further pronouncement upon these proposals. I would only add once more how grateful Her Majesty's Government are to those distinguished gentlemen who have given their labours in this matter.
§ 5.53 p.m.
§ VISCOUNT SIMON
My Lords, I am greatly obliged to the noble and learned Lord the Lord Chancellor for what he has just said. I do not wish to put the House to the trouble of a Division. I do not, indeed, believe in the importance of decisions in your Lordships' House by Division, either on this or on any other 188 subject. A Division would merely count heads, and what matters in this and other important questions is not the counting of heads but what is inside the heads, and where the weight of argument is really to be found. I am grateful to the Lord Chancellor for saying that what has been urged by those who have taken my view will be given consideration by the Government when they decide. In those circumstances, I have nothing further to say except to ask leave to withdraw my Motion.
§ Motion, by leave, withdrawn.