§ 2.45 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, there can be nobody in your Lordships' House who has forgotten the debate last Session on a Private Member's Bill to abolish capital punishment which came to us from another place. Your Lordships rejected that Bill, but only after many noble Lords had made it clear that, while not abolitionists, they were dissatisfied with the present state of the law of murder. Sonic of the noble Lords who voted in favour of the Bill would have preferred, I apprehend, a less radical change. Some who voted against the Bill would wish to see the scope of capital punishment restricted. I do not propose to-day to repeat the arguments for and against capital punishment. The Government's opinion is already known: that its retention is necessary in some cases to safeguard law and order. That principle is preserved by this Bill, but we have thought it right to go a long way to meet the views of those who are opposed to the application of capital punishment under the present law. We have introduced this Bill because it is 1166 a matter of such grave importance and because, in such a matter, it is the duty of the Government to give a lead and to try to find a solution acceptable to a majority, both in Parliament and in the country. This Bill, I believe, contains such a solution.
May I say a word about the nature of the problem? Your Lordships will understand that there are two aspects of the law of homicide with which the Government have to deal: first, what forms of homicide constitute the crime of murder; secondly, what should be the punishment for murder in varying circumstances. Part I of this Bill deals with the first part of the problem. It will amend the law as to the ingredients of murder so as to make that law more in accordance with what many of us believe to be just. Part I of the Bill makes four changes in the substantive law, and I should perhaps emphasise here and now that it applies only to England; he defects we wish to eliminate make no appearance in Scottish law. The first reform is the abolition, by Clause 1, of the doctrine of constructive malice. On these legal points may I put the position broadly at this stage a the Bill? As many of your Lordships realise, in the normal way to be guilty of murder one must intend to kill or to cause serious injury, but this is not true if one kills whilst committing a felony or resisting arrest. A person who uses violent measures in the course of a felony involving violence or the threat of violence is guilty of murder if these measures result, even inadvertently, in the death of someone else. Clause 1 changes this rule. In future, homicide will be murder only if there is intention to kill or to do serious injury. What is more, a man who embarks on a criminal enterprise will not, as he is now, be a murderer just because an accomplice uses a greater degree of force than he had realised to be likely and so causes death.
My Lords, may I say a word about diminished responsibility? I apprehend that more uneasiness has been caused to your Lordships by the refusal of the present law to make allowance for mental infirmity short of complete insanity than by any other substantive legal doctrine. Clause 2 is an attempt to remove the cause of that uneasiness. It introduces 1167 into English law the Scottish doctrine of diminished responsibility. This doctrine permits a man accused of murder to raise the defence that he was at the time suffering from an abnormality of mind which substantially reduced his responsibility for his act. I should make it clear that a real abnormality, not just an exceptional fit of temper or jealousy, must be proved before the clause will apply. If this defence is established to the satisfaction of the jury, the prisoner may be convicted of mansluaghter, not murder. It might be asked why this doctrine should be peculiar to murder. The answer is that in murder alone the sentence is fixed, and will remain fixed under the Bill: in other cases, once guilt is proved, the court, in assessing sentence, will always make allowances for human weakness. In murder it can make no such allowance. I have little doubt that this provision in Clause 2 will practically eliminate those distressing cases which I have mentioned, and will do so under a well-tried practice of Scottish law.
Clause 3 amends the law as to provocation. It has always been open to a prisoner accused of murder to raise the defence that he acted under provocation which would have driven a reasonable man to use extreme violence. But this rule of law has become restricted by a doctrine that words alone cannot—and I quote:except in circumstances of the most extreme and exceptional characteramount to provocation. I think that justice requires that there should be no artificial restrictions preventing a jury from finding provocation if they are satisfied that there really was provocation in the particular case that they are trying. Clause 3 removes any such technical restrictions.
Lastly, my Lords, there is the case of suicide pacts. A survivor of a genuine pact is to-day guilty of murder if the other party dies. Nobody, I suppose, thinks it appropriate that he should be convicted of the most serious of all crimes. Accordingly, if, and only if—and I stress this point—the pact is genuine, the survivor will, under Clause 4, be guilty of manslaughter only and the sentence will be in the court's discretion. I have outlined very briefly, avoiding technical 1168 terms, so far as possible, the substantial changes in the law of murder. When I come to deal with the cases in which capital punishment is retained, I would ask those of your Lordships who doubt whether this Bill goes far enough towards abolition to remember that many of the cases which would otherwise be capital will not now, because of Part I, be murder at all.
I pass now to what I have no doubt will be the most controversial Part of the Bill. It appeared to Her Majesty's Government that an acceptable solution to our problem could be found only by restricting the death penalty to particular categories of murder. We were, and still are, fully aware of the difficulties involved. We thought it right, however, to try again, and I believe that we have found the answer; and it is contained in Part II of the Bill. Your Lordships will see that by Clause 7 the Bill abolishes capital punishment for all murders except those specified in Clauses 5 and 6. Your Lordships will want to know on what principle those exceptions have been made, and it is right that I should at this stage explain how it is that the Government have arrived at their decision. We did not feel that it is possible to classify murders according to their degree of moral heinousness. Moral guilt depends not on the objective circumstances of a class of murder, but rather on the circumstances of a particular murder; and even more of a particular murderer.
It has been proposed that the test should be premeditation. Naturally I have given great thought to that suggestion, but I doubt whether it would be possible to defines premeditation. Even if it were, I believe that such a test would not bear examination. Take the example of a mercy killing. It is nearly always premeditated, over a long period. On the other hand, a burglar who shoots a policeman usually fires on the spur of the moment, although he has previously made the choice of carrying a gun. I ask your Lordships to consider that distinction—I do not want to go into it at great length—just to show the sort of difficulties with which we have been faced in considering making premeditation the criterion.
The principle on which this Bill is based is different. It is this. The death penalty is to be retained for those cases where 1169 murder is most dangerous to the preservation of law and order, and where the death penalty is likely to be a particularly effective deterrent. Let me say at once that Her Majesty's Government realised that by abandoning the test of moral heinousness in favour of this principle they would leave outside the scope of the death penalty many crimes which ordinary people particularly abhor. This is inevitable. May I remind your Lordships (I apologise for not having given him notice, but these words are not quoted in any hostile or argumentative sense) of the words of the most reverend Primate the Lord Archbishop of Canterbury in the debate last Session—I quote from Hansard of July 10, 1956 [Vol. 198, col. 751]:It is true that some murders, some of the most abominable murders, would fall outside the categories and would escape the death penalty. They would be murders chiefly of a specially beastly and passionate kind. I think that if any are to be excepted from the death penalty, it had better be these…it is just in them that the temptation to indulge in this dangerous passion of making him pay '…is at its strongest and its indulgence most likely to be harmful to our own moral sense.As I have said, the Bill selects those categories of murder which strike at law and order, and where the death penalty is likely to deter. Of course, all murders strike, to some extent, at law and order, but not to the same extent. Some of the most terrible crimes—and let nobody think that I or any of my colleagues regard them as anything but terrible—do not directly threaten the public safety or the peace which Her Majesty's subjects have a right to enjoy while they go about their daily tasks.
We have chosen to retain as capital murders those which seem most fraught with public danger: because they are committed by criminals carrying out other crimes, or because they are murders of the guardians of public order, or because they are carried out by means which are both dangerous and apt to be indiscriminate in their effects, and which appear to us to be those forms of murder against which the death penalty is most effective as a deterrent.
My Lords, I am sorry to interrupt the noble and learned Viscount, but surely there are at least two principles at work here—although I do not want to quibble over words. There 1170 is the test of danger, and there is the test of whether the death penalty will be a deterrent. I do not know whether the Lord Chancellor is equating the operation of those two principles, but, on the face of it, there appear to be two principles at work.
§ THE LORD CHANCELLOR
I think I said twice that our process of thought included both these matters, and I was going on to develop them both. If the noble Lord will restrain his impatience for a moment, I will show how they are developed. I have not sought to hide that there are the two points—law and order, and effective deterrence.
Since I have been challenged in regard to my powers of apprehension, may I say that the noble and learned Viscount referred more than once to one principle, and I could not help wondering if there were two. I dare say I should not have done so.
§ THE LORD CHANCELLOR
It is a long time since I attended lectures in logic under a distinguished don at University College, Oxford, but I do not know that he animadverted too much over a principle having two limbs. If he did, I am wrong, and I apologise. Perhaps I may alight from that line of logical excursion—and I bear no to the noble Lord—
§ THE LORD CHANCELLOR
—to the path I was traversing and deal with the murders for which the death penalty is retained. This Bill will retain the death penalty for five categories of murder. First, murder in the course or furtherance of theft; secondly, murder by shooting or causing an explosion—I apologise to the noble Lord, Lord Pakenham, because I did say "five categories" and my second category has got the two limbs, of shooting and explosion, but I hope I have made that clear; thirdly, murder in resisting arrest; fourthly, murder of a police officer; and fifthly, murder of a prison officer by a prisoner. In addition, Clause 6 retains the death penalty for those who make a habit of murdering. I should like to say a few words on each of these categories.
First of all, your Lordships will remember that again and again in the debate last Session Her Majesty's Government 1171 stressed the need to preserve the death penalty for murders committed by those whom I may call professional criminals. There are real grounds for believing that it is because of the death penalty that these criminals do not carry arms. It would be wrong to relinquish a safeguard which protects the householder, the shopkeeper and the clerk collecting his firm's wages from the bank. The object of these professional criminals is always some form of theft, and that is why the categories include murder in the course of theft. And let it be bluntly said that if the choice is between the lives of innocent citizens and those of such criminals, there can be no doubt what our decision should be.
Murder by shooting or causing an explosion is included for three reasons. First, shooting or explosives are common accompaniments of the activities of gangs, and often involve danger to innocent passers-by who have nothing to do with the crime. Secondly, these means are those most often used by political fanatics and other enemies of law and order. Thirdly, Her Majesty's Government consider it most important to discourage the carrying of arms. I realise that many murders which are not directly aimed at law and order are done by shooting, and these will come within the category. I would remind your Lordships, however, that the Royal Prerogative can, and no doubt will, still be invoked. The last three categories—namely, murder in resisting arrest, or of a police officer, or of a prison officer—really all go together. The work and duty of these officers necessarily puts on these servants of the public a special risk from criminals. For this reason, they need special protection, which the clause gives them, as it also gives protection to citizens who assist them in the execution of their duty. The Government are under a special duty to these officers, and if capital punishment is to be retained at all, there can be no doubt that it should be retained for this class of murder.
Clause 6 retains the death penalty for "multiple murderers": it applies to those who commit murder more than once, if the murders are on separate occasions. I emphasise that point of separate murders, because it is not aimed at, and would not apply to, those tragic cases where a distracted parent kills his or her 1172 whole family at one time. It is aimed primarily at the man who makes a habit of murder, of which probably still the most famous example is the "Brides in the Bath" case, which the older amongst your Lordships will remember.
Those are the categories of murder which we propose should be capital. They exclude, and rightly, most of the cases where the killing is the outcome of a sudden rage and passion, and where no deterrent is likely to be effective. They include, we believe, those murders which are most dangerous to society. Many noble Lords will wonder, as others have wondered, why we have not included that most repulsive crime, murder in the course of rape. These are the reasons. If we did include such murder, it would often turn on difficult technicalities whether the murder was capital or not. This is plainly undesirable. Secondly, this type of killing is nearly always likely to be committed in a moment of passion or panic, when no deterrent will be effective.
Let me turn to another difficulty which I am sure has been in the minds of many of your Lordships. Poisoning is another crime which excites our revulsion more than almost any other. It was only after long consideration that the Government decided not to make murder by poisoning a capital crime. Morally, poisoning for gain deserves, no doubt, the highest of all penalties. In fact, few cases occur. In the last six years, there have been forty-two cases where murder by poisoning has been made the subject of a criminal charge. Nearly all these cases were domestic tragedies, and in only one was the convicted person executed.
Again I must make the appeal experto crede, although not taking to myself any of the credit of the rest of that line, or comparison with the person by whom it was said. I myself have tried very hard to deal with the drafting problem that this involves, and I have, of course, had the help of all my colleagues. I think it would be impossible to distinguish, by the drafting of the Bill, between the commonest form of poisoning, which is the mercy killing of an incurably sick person or the killing by the distraught mother of infant children, from the deliberate calculated murder for gain. I have tried it both ways—excluding one and including 1173 the other, and I have found it an impossibility. We wish to reduce to a minimum the cases in which the death sentence is passed although everyone knows it will not be carried out. In spite, therefore, of the loathing which we feel for the deliberate poisoner, the Government have come firmly to the conclusion that it would be wrong to include in the capital categories this crime.
Your Lordships will be relieved to hear that there is little I need say about the remaining provisions of Part II. There are only three points to which I should like to draw your Lordships' attention. The first is that even where the murder is capital, only those who take part in the actual killing will be liable to the death penalty under subsection (2) of Clause 5. Undoubtedly, the accomplice is guilty of a terrible crime—many may think he is as guilty as the principal murderer. But he may be comparatively, and only comparatively, much less blameworthy. He may merely take the part of a "look-out", on watch for the police; and the Government consider that it is better to err if they do err, on the side of leniency.
It is clearly right that a member of the Armed Forces tried for murder by a court-martial abroad—he cannot be tried for murder by a court-martial in the United Kingdom—should be liable to the death penalty only if the murder is capital within this Bill; and under Clause 8 this will be so. Thirdly, the sentence on those convicted of murder which is not capital will, under Clause 9, be imprisonment for life. On that, I need only say that clearly the sentence must be severe; that a life sentence gives the Home Secretary special opportunity to review it at frequent intervals and, finally, that no alternative sentence would, I apprehend, find any general degree of agreement.
Again, I am happy to say that I need not detain your Lordships long over Part III of the Bill. Its object is simply this: if capital punishment is retained, we all agree that as many as possible of its macabre accompaniments should go. The Royal Commission made three specific recommendations to this end, and these are carried out by Clauses 10, 11 and 12 of the Bill. The effect of these clauses will be this. Clause 10 will substitute for the present grim words in the 1174 death sentence words which, in the words of the Royal Commission, will be:as brief, simple and colourless as is consistent with tie solemnity of the occasion.The sentence will be that
the prisoner shall suffer death in the manner authorised by law.Clause 11 abolishes the statutory duty to put up notices of execution on the prison gates. These notices contribute to some extent to the emotional and hysterical scenes which sometimes take place outside a prison. I am sure that every noble Lord would agree that this duty is as unnecessary as it is distasteful. Clause 12 makes it possible to avoid double executions in one prison by empowering the Home Secretary to order the removal of one condemned man to another prison.
I will now say one or two words on Part IV of the Bill, the application to Scotland. This Part of the Bill makes two changes in the law for Scotland, and I hope that I shall not be considered guilty of disrespect to my native land if I do not expatiate on them. They are technical and, if your Lordships give this Bill a Second Reading, much more suitable for discussion at a later stage. The point I do wish to make about Scotland is this. First, as I have already said, the substantive reforms in Part I of the Bill are applicable only to England: Scotland does not need them. Secondly, Part II will apply to Scotland. The effect will be that the death penalty will be applied only to the same capital murder, whether the case is tried in Scotland or in England.
My Lords, this is not merely a Bill to limit the operation of the death penalty: it is a comprehensive attempt to deal with anomalies, to make the law more humane and to remove some of the grim trappings which surround the death sentence and its execution. The House will want me to give some estimate of the effect of the Bill. It is difficult to be exact, since in the future the murder rate may vary because of circumstances of which at present we have no knowledge, but I can give some estimate of the effect that the Bill would have had had it become law some time ago. This estimate can not be exact, for precisely how the reforms in Part I would have affected the outcome of any given case is practically impossible to say. I will, therefore, leave 1175 Part I entirely out of account and assume only that Clauses 5, 6 and 7 had been in operation. Between 1900 and 1955 the annual average of persons sentenced to death for murder was 25, and the average number of executions was 13. If Clauses 5, 6 and 7 had been in force, there would probably on the average have been 6 death sentences and 4 executions a year. Your Lordships will realise that this estimate can only be rough, but over such a long period it gives some idea of what the effect of the Bill would have been.
May I say this word in conclusion? This controversy has been continued for a very long time and this Bill is an attempt by the Government to find a middle way which has three qualities. First, it is consistent with our duty to preserve the public peace and order. As I say, that is not merely a function but a duty of government which we cannot lay down. Secondly, it takes into account public opinion in so far as we can judge it. Thirdly, it utilises gratefully the views expressed with great force and eloquence both here and in another place. It is a compromise, but I make no apology for that; compromise is often the only way of solving difficulties. But it is not only to reconcile differing opinions that this Bill is brought forward. It is, we believe, a just solution which will commend itself to those who cannot go all the way with the abolitionists, or rest content with the law as it stands. This Bill will make the law more humane; it will preserve the death penalty where it is necessary and discard it where it is safe to do so.
Again, I ask your Lordships to look at the Bill as a whole. Some of your Lordships may not be satisfied with one bit, some may not be satisfied with another, and certainly not satisfied with every bit of it; but I ask your Lordships to remember that every shade of opinion must make some concession, and to recognise that this is a necessary attempt—I am sure it is a necessary attempt—to find a solution to a most intractable problem. The Government firmly believe that this Bill deserves your Lordships' support. In this spirit, I ask your Lordships to give it a Second Reading. I beg to move.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)1176
§ 3.25 p.m.
§ LORD SILKIN
My Lords, the noble and learned Viscount has introduced this Bill with the fairness, care and persuasiveness which we have come to expect from him and which we have received, but there can be no reasonable doubt that this Bill comes before your Lordships at this time and at this haste, not merely or solely out of a passionate desire to reform the criminal law but, in my view and in the view of a good many of us, in a desire to anticipate the operation of the Parliament Act, which would have operated if a Bill similar to the Silverman Bill had been allowed to go through another place and had passed. We have to remember that the Private Member's Bill of last Session—what is known as the Silverman Bill—passed through all its stages in another place on a free vote and was only defeated by your Lordships when it came to this House. If the same Bill had been presented a second time in the same form and passed again, it would automatically have become law, in spite of the objection of your Lordships.
A good many people, in my view not surprisingly, take the view that the introduction of this Bill within two days after the commencement of the Session, the haste with which it is being passed and the fact that not one single Amendment has been accepted in another place—inspite of the fact that the Bill was considered in Committee for eight whole days by a Committee of the whole House, and that a large number of Amendments were put forward by honourable Members from both sides of the House—indicate that there is something more than this urgent desire to amend the law which is operating at the present time. There has, in fact, been presented to another place a Bill similar to the Silverman Bill but it has not even been considered, and this Bill has been submitted, in my view, to anticipate it.
I think that the proper course for the Government was to have allowed a similar Bill to the Silverman Bill to be put forward again and once more to have given the other place a free vote. It may well be that on a second occasion a number of honourable Members in the other place might have taken a different view as a result of the discussions which have since taken place, and the result 1177 might have been that the Bill would not have passed the other place on the second occasion. But, in my view, it was the duty of the Government to permit a free vote for a second time in the other place this Session. I should like to ask the noble Marquess who is going to reply to the debate why it is that they did not do so. Is it because they feared the result of a free vote again? Is it because the Government are willing to grant a free vote only so long as they think the result is likely to be in their favour, but when they have some reason to doubt the result, they put on the Whips? At any rate, that is a legitimate inference from the way in which this matter has been handled.
I said that this Bill has not been amended in any way in the other place—not one single word has been altered. In view of the kind of Bill it is—a compromise Bill, as the noble and learned Viscount explained—it cannot really be so good that not one single word is capable of improvement. I wonder what is going to be the position in this House—whether your Lordships will have the opportunity of improving the Bill, or whether in the view of the Government it is still as perfect as it was when it left the other place. I have no doubt that your Lordships will, in a number of respects, desire to amend the Bill, as it ought to be amended, but it will surprise me, if the Government accept any Amendments here which they were not prepared to accept in another place. So we start off with a Bill which was inspired primarily, as I say, not by a desire to amend the law of homicide but by a desire to prevent the passage of a Bill which, if given a free vote in another place, would have come under the operation of the Parliament Act. So we are forced into this compromise Bill.
The noble and learned Viscount has described it as a compromise Bill, and suppose it is. But what is it a compromise about? There are two views, both passionately held: one, that capital punishment is wrong, the other, that capital punishment is a unique deterrent. It seems to me a compromise which results in the Bill being half right and half wrong. If it is a unique deterrent, it abolishes this unique deterrent in the case of a great many murders, and so the unique deterrent ceases to operate; on 1178 the other hand, it still retains the principle of capital punishment.
As many of your Lordships will remember, we had exacly the same set of circumstances in 1948. There, again, there had been a free vote in another place which had resulted in a declaration in favour of the abolition of capital punishment. The Government of the day had then introduced a Bill in which they sought to compromise in very much the same way as this Bill does, by abolishing the capital penalty in the case of a certain number of categories of murder. The categories are not exactly the same. I think that in 1948 there was included among the categories of murder in which capital punishment would hale applied the case of poisoning; but I believe, speaking from memory, that that is the only difference between the two circumstances. On that occasion a very eminent Member of your Lordships' House made this statement in the course of the debate. I quote [OFFICIAL REPORT, Vol. 157, col. 10641]:It is not, in fact, really a serious proposal at all. It is a mere pis aller, introduced not because of its intrinsic merits but because it has been hoped, perhaps overoptimistically, that it would satisfy someone and get the Government out of the jam in which they find themselves. I do not think that is an unfair way of putting it— and I certainly do not—Everyone knows that to be the position. We must all sympathise with the Government in their difficulties, even if some of them are, perhaps, of their own making. But I would assure them that it is not by such devices as this that they will restore their credit, either with the electorate or with their own supporters.I accept every word of that, and I apply it as legitimate criticism to this Bill. The House will not be surprised to hear that those words were spoken by the noble Marquess who to-day leads this House. I should be interested to know whether he still accepts this description as being applicable to the present Bill, which, as I have said, is being brought before your Lordships in exactly the same circumstances as the Bill of 1948.
I said that this Bill is a compromise, and I recognise that undoubtedly it makes a number of vital improvements in the law of homicide; it would be unfair not to accept that. The noble and learned Viscount referred to them in his speech, and they are contained in Part I of the Bill. I need not refer to them at any 1179 length, except where I feel that they are the subject of legitimate criticism, and where I feel they ought to be dealt with by way of amendment at a later stage. The abolition of constructive malice will, I am sure, be acceptable to every one of your Lordships. It is a doctrine which greatly shocked public opinion some few years ago, at the time of the Bentley case, when a young man of nineteen was executed for being present at a murder where he was participating in an attempted theft and where he was alleged to have uttered encouraging words to the person who actually committed the murder. I think that everybody felt that this execution was unjustified.
I would say the same about the position of persons suffering from diminished responsibility, and those concerned in suicide pacts, although I feel that there some amendment may be necessary because, so far as I can see, the Bill does not permit of any alternative but terms of imprisonment. In the case of people where it can be established that there is diminished responsibility, one would imagine that ex hypothesi there is, in most instances, a case for some kind of medical treatment, and that medical treatment and observation, and opportunity of reform, would be more appropriate than a long term of imprisonment. I should like to see something in the Bill which would enable that to be done where it was thought by those in charge of the case that such an alternative would be preferable and desirable.
Then there is the Part of the Bill which deals with the law of provocation. On that point there has been considerable discussion in another place. The Bill provides in Clause 3, which deals with provocation, that the test to be laid down is whether the provocation, either by things done or by things said, or both together, was enough to make a reasonable man do as he did—that is, commit murder. The jury are asked to take into account everything both done and said and the effect which, in their mind, it would have on a reasonable man. I myself cannot imagine that any reasonable man would commit a murder as the result of provocation, and I imagine that most juries would be likely to take the same view. There must be sonic abnormality or some special circumstance, 1180 something in the life of the individual who commits the murder, which makes him so susceptible to words or things done as to induce him to take the extreme course of murder. So it seems to me that if this clause is left as it stands, it will be impossible for anyone to escape capital punishment by the test that is contained in the Bill: that of how a reasonable person would act.
I know that this matter has been debated in the other place. I have read the discussion, and I must confess that I remain convinced that the Bill would be rendered quite nugatory in this respect if the words were left as they are. I hope, therefore, that there may be further discussions in this House on an Amendment, and that Her Majesty's Government may see their way to make some alteration in the Bill so as to have regard to the circumstances of the particular person who is charged with murder. I will not give examples just now, as they are more appropriate for the Committee stage, but some striking examples were quoted in the course of the debate in another place. I believe that it might be right for the test to be whether the provocation was such that any person placed in the circumstances or conditions in which the person who committed the murder was placed would have acted as he did.
There are certainly great improvements in the Bill. The noble and learned Viscount did not say what effect these improvements in Part I would have in reducing the number of persons executed, but I imagine that they may well be proportionately fairly considerable. But the public will be most bewildered about Part II of the Bill, which deals with liability to the death penalty. The noble and learned Viscount did not, of course, shirk the issue. He dealt with it fully and also with many of the difficulties with which the public will be confronted; but with the best explanation in the world—and the noble and learned Viscount certainly gave the best possible explanation—the public will never understand the principle on which some murderers are to be treated as capital murderers while others are to be treated as what I might describe as "simple" murderers.
Her Majesty's Government have tried to lay down principles, and the Home Secretary on January 24 last, on the Third Reading of the Bill, put the case of Her 1181 Majesty's Government extremely well. He said [OFFICIAL. REPORT, Commons, Vol. 563, (No. 37), col. 417]:The death penalty is retained in the Bill for murder which strikes at the maintenance of law and order, and murder of the agents of law and order is clearly an offence of that kind. We therefore believe that there is a logical case for including this paragraph.He went on to say that Her Majesty's Government had a special responsibility for those who are concerned with the preservation of law and order, such as policemen, warders and so on. But surely other murders, Bach as beating a wife to death, murder in the course of rape (to which the noble and learned Viscount referred) and poisoning, all strike at the maintenance of law and order; and if the death penalty is regarded as a protection for policemen and others, surely it is an equal protection for others who are less able than policemen to look after themselves. Why should certain classes of persons who are much better prepared for attack have the so-called "protection" of this unique deterrent while others have not? Obviously, this so-called "principle" leads to extraordinary results which the public will never be able to understand.
In the course of the same debate as that to which I have referred, and in which the noble Marquess took part, the Lord Chief Justice also spoke. He referred to the same question of giving special protection to the police, and I should like to quote his remarks. They have often been quoted and have become almost classic. I am sure most noble Lords who have studied this question will know this part of the speech of the Lord Chief Justice almost by heart, but it is nevertheless very true. This is what he said [OFFICIAL REPORT, Vol. 157, col. 1034]:There is also a paragraph put in to protect the lives of the police, and to deter people from shooting the police. I yield to none in my desire to support and protect the police, but I believe, and I am sure that every police officer would think, that the lives of the humblest of His Majesty's subjects are as valuable as the lives of policemen. It seems to me not right that a man who in the height of passion or temper kills a policeman—perhaps not deliberately, in the sense that he aimed a revolver at him—but in the struggle to avoid arrest (a man perhaps with a long record who is trying to escape) should be told that he is guilty of a capital crime, whereas a man who has taken an axe or a hammer, perhaps to a sick or ailing wife and has 1182 battered her brains out, should be told that he has committed non-capital murder. I cannot believe that that is a right provision to leave upon the Statute Book.That is a view which is entitled to the greatest possible respect. Of course, the Lord Chief Justice and I part company at that point, because the inference to be drawn from what he is saying is that other crimes ought also to be capital, whereas the inference I draw from it is that this is not a crime which should be capital as against others and that I am in favour of abolishing both. But, at any rate, we are here in complete agreement as to the anomaly of treating a policeman in one way and treating other citizens in another way—citizens who are less able to look after themselves and cases where the crime may be much more shocking.
While I will admit straight away that the noble and learned Viscount, and no doubt the noble Marquess, with all their eloquence and skill can make a case on the basis of some kind of principle here, Her Majesty's Government have to carry the public with them. The noble and learned Viscount made the point that he is anxious that the public should accept this Bill and he wants a Bill which the public will regard as fair, reasonable and proper in all the circumstances. I believe that the Bill fails in that respect, because the public will never understand why one particular type of crime should be regarded as a capital crime and another type not so regarded. Her Majesty's Government have fallen into the error of trying to classify murders according to a doctrine which might be intelligible to them but which will not be intelligible to anybody else. The Royal Commission, after four years' study and close consideration of this very point—the attempt to classify murders according to different categories—came to the conclusion that it was quite impossible to do so and they expressed their views in paragraph 498 and other paragraphs of their Report.
The interesting point is that at that inquiry evidence was given on behalf of the Home Office. The noble and learned Viscount who sits on the Woolsack has been Home Secretary; and presumably he will knew that the evidence which is given on behalf of the Home Office is very carefully considered by the Home Secretary, and represents, I imagine, the view not only of the Department but of the 1183 Home Secretary himself. And this is what was said in the evidence for the Home Office.There are not, in fact, two classes of murders but an infinite variety of offences which shade off by degrees from the most atrocious to the most excusable.So I say that, in the view of everyone who is qualified to judge, the Bill is anomalous so far as it attempts to lay down degrees of murder.
As I have said, I have no desire to condemn the Bill outright. In so far as it reduces, or will probably reduce, the number of cases of capital punishment, it is a step in the right direction. But I remain convinced that the case for the abolition of capital punishment is as strong as it ever was, both from the point of view of the protection of the public and from the moral point of view. In a way there has been a limited experiment since August, 1955, because since that date no executions have taken place. And yet there has been no increase in the number of murders. In the sixteen months before August, 1955, there were 247 murders in Great Britain, whereas in the sixteen months since that date there have been 240. Apparently the fact that there have been no executions has made little or no difference. Of course, it would be folly to place too much reliance on these figures; I should be the last to suggest that they prove the case for the abolition of capital punishment. But at least they can provide no comfort for those who want to retain capital punishment. And I am quite content to leave it at that.
I base my case against capital punishment almost entirely on the ground that it is morally wrong. I think it is wrong for the State to maintain an organisation for deliberately taking life, an organisation which brutalises and demoralises all those who take part in it. I am convinced that the day is not far distant, if it has not already come—some people believe that it has—when capital punishment will no longer be carried out. My noble friends on this side of the House are not treating this Bill as a Party Bill and they will not divide, if a Division is called for, as a Party on the Second Reading. We do not ourselves propose to call for a Division, but we hope that, in spite of its fate in another place, it 1184 will be possible to improve the Bill along the lines which we consider desirable—that is, still further along the road to complete abilition of capital punishment.