§ Debate on Second Reading resumed.
§ 3.59 p.m.
My Lords, only a few months ago, as your Lordships will remember, more people in your Lords-ships' House voted in favour of a Bill for the total abolition of the death sentence than on any previous occasion. Now, only some six or seven months afterwards, we find it rather difficult in that we are confronted with a Bill which keeps the death penalty in certain circumstances but leaves it out in others. This Bill is full of legal problems and difficulties, and I feel diffident about getting up to speak on this subject directly after two of the most famous lawyers in the country; but the ordinary man and woman in the street are very much affected by this Bill, if only in-directly, and I think that some words should be spoken from the lay point of view.
It is difficult to know whether to welcome (Ito Bill as a step in the right direction—and by that I mean a step towards total abolition—or to condemn it because it does not go far enough, and because some of the ways in which it does go appear to be rather incongruous. We have heard already that it is accepted as a compromise, but I feel that the compromise is not a particularly happy one. Last Session we had a Private Member's Bill, and it was left to the consciences of Members in both Houses to vote as they thought fit. This time, it is a Bill sponsored by Her Majesty's Government, and therefore Party comes into a question which, surely, above all others, should be left to the individual conscience. Last time, there was a clear-cut decision on the rights and wrongs of hanging. This time, the Bill confirms the necessity to keep capital punishment and withholds it in certain cases—or perhaps it is more fair to say that it keeps capital punishment in certain cases and abolishes it in all others. Whichever way we look at it, the 1187 Bill differentiates between types of murder, and, as your Lordships have already heard, that is not in agreement with the recommendations of the Royal Commission of 1949.
I feel that, on the whole, it is better to accept the Bill as at least a step in the right direction, not a particularly firm step, not a particularly happy one, but nevertheless a step forward; and because fewer people are likely to be hanged in future, it should be welcomed. Whether or not it will have the required result, I am not so certain. Looking at it again from the lay point of view, what is the required result? Is it simply to reduce the number of murders?—because surely that is what we want to do. If so, what is going to happen if the number of murders disproves the Bill? That is to say, suppose there are more murders for which the murderers will go to prison and fewer for which the death sentence will be imposed. Will the Government then say the Bill is a failure and that hanging must be abolished completely? Or is the Bill really an admission that hanging is wrong in principle and should be kept only for the most severe cases? If what I have suggested turns out to be true within five or six years, will Her Majesty's Government come forward with a further Bill to abolish capital punishment completely? Or, looking at it in another way, is this Bill just an admission that there are too many hangings in this country and that we must reduce them by having hanging only for extreme cases. And again, if the figures disprove this, will a new Bill be brought in for the complete abolition of capital punishment?
The question of deterrence is extremely difficult. I have not yet been convinced that hanging is the great deterrent that some would suggest, particularly if the alternative is imprisonment for life. At the moment, of course, imprisonment for life is at the discretion of Her Majesty's advisers and, apart from mental cases, rarely, if ever, means more than fourteen years. I am not suggesting that that is always the equivalent deterrent to hanging. A young man in his early twenties, knowing that he would be in prison for only fourteen years, might well consider, for various reasons which are unknown to us, that it would be worth while to commit a murder since he would be free 1188 at the age of forty. If we are going to have imprisonment, rather than hanging, as I strongly recommend, let the deterrent be for a period that will stop people from committing murder in these possible cases.
The question of deterrence cannot be proved until hanging is actually abolished. So this Bill, though I feel that it is rather half-hearted, may be the means of proving this. I feel that, whatever else happens, we should say that imprisonment for life must be for a considerably longer period than it is at present. I am not forgetting that, although many noble Lords agree that capital punishment should go, murder is still a crime by itself, something that we abhor far more than anything else and something that must be punished in a way that will stop as many people as possible from committing it. In passing, I have just one word to say about the danger of escape from prison, because this aspect seems to be somewhat neglected. It is, however, a very real danger, as your Lordships have known in recent months. I feel that in cases of imprisonment the public must be protected more vigorously against that very small section of the public that cannot be allowed to be at large.
Those of us who disagree with capital punishment obviously cannot be completely satisfied with this Bill in principle, and even those who feel that capital punishment should be kept in some cases are not in every way satisfied with the cases that have been chosen in Part II of the Bill. In three out of five cases in which capital punishment is kept, the police or prison warders are mentioned. I agree that the police have every right to be protected as much as anyone else, but what about the old women and the children who cannot protect themselves, and the poisoners, whose case, we have heard, raised considerable difficulty in the minds of Her Majesty's advisers before it was excluded from the list? I hope that we can seriously consider these questions if the Bill passes its Second Reading and goes into Committee stage.
I feel particularly that we should once more consider the question of poisoners. I realise the enormous differences there are in cases of poisoning. On the one side, we have what is generally known as euthanasia and, on the other, we have the most hideous poisonings that are 1189 maginable. When it comes to the point, I feel that we may well be allowed to discuss that matter again. I think there is no doubt in our minds that in general, as the Bill now stands, certain people will get off where others will be hanged which the public would put round the other way; in fact, they will be more horrified with the cases that will be sent to prison than with the ones that will now be hanged. How important public opinion is in a matter like this I do not know. Do we really know what public opinion is? It is usually our best defence; we say public opinion is behind us when we choose a particular line. But I think that the public will not be satisfied with the Bill as it now stands so far as an outrage to their feelings is concerned.
I do not in any way want at this stage to go into details of the Bill. Parts of the Bill, particularly Part I. I welcome; others I find extremely difficult to understand and very incongruous. It seems to me as H it might be a very difficult Bill to amend; that is, if we are going to be allowed to amend it at all. I also feel that it is going to be an extremely difficult Bill to apply. I was brought up in the legal world, some considerable time ago now, but I must admit that I am thankful that I shall not have to administer justice under the Bill as it stands at the moment. However, looking at it as a whole, it is a step towards the abolition of capital punishment. Many good things have been done by stages. I am looking at this as the first stage in the final decision not to hang people any more. It has already been hinted, both in another place and in the Press, that there will not be any more hangings in this country. I can see nothing, either in the Bill or in the debate in another place, to lead me to that conclusion. But in the hope that that is really the case, and in the hope that fewer and fewer people will in actual fact be hanged, I personally support the Bill.
§ 4.13 p.m.
THE LORD ARCHBISHOP OF CANTER-BURY
My Lords, in the debate in July of last year, last Session, both the most reverend Primate the Lord Archbishop of York and I made as clear as we could what the doctrine of the Church is in the matter of capital punishment. We said that the State has a right, in 1190 the name of God and of society, to impose the death penalty, whether as an act of justice or for the protection of its own citizens from violence. I repeat that, not least because the noble Lord, Lord Silkin, said that in his view the imposition of the death penalty was immoral; and I feel hound to repeat what the most reverend Primate and I said last time, that there is no immorality in it at all. It may be wise or unwise, expedient or inexpedient; but it is not against the laws of God or the doctrine of the Christian Church.
My fellow Archbishop believes, as I do, that the choice for or against abolition of the death penalty does not rest on any absolute principle, but is a matter of weighing the total moral effects upon the county if one line or the other is taken. My co-Primate, so weighing the matter, found himself in favour of total abolition. My own conclusion was different. I could not, as things are at present, support total abolition; but neither could I support the present system unchanged, believing that in several respects, and especially in the fact that 50 per cent. of those condemned to death were in fact reprieved, the present system was very clumsy in its working, uncertain in its effect, and so clumsy as to rob the death penalty of the kind of solemnity and power in the public life of the community that it ought to have. So I sought for myself something which would limit the field in which the death penalty operated but would make it in that limited field almost certain to be imposed, thus creating, if there is such a thing as a deterrent in this world, a real deterrent. That seemed to be, in the present position of society and of public opinion, the right line to take. I find myself, therefore, entirely able to sup-tort the present Bill. So far as I can judge, I think it satisfies public opinion better than any other course would.
I should like, if it is not irrelevant, to draw attention, in a most friendly way, to some words spoken by the noble Marquess the Leader of the House in November last, during the debate on the Address. He said this [OFFICIAL REPORT, Vol. 200, co]. 87]:What I believe has emerged from all the discussions on this question, inside and even more outside Parliament, is that there is a very deep and conscientious cleavage of 1191 opinion throughout the country … That obviously must put any Government—at least any democratic Government—constitutionally in a position of immense difficulty. As I see it, their duty must be not to try to satisfy this or that section of opinion on either side of the controversy, but to try, so far as they can, to meet the wishes of the greatest possible number of their fellow-citizens.That is a statement which I regard as of most fundamental importance for the whole government of a democratic country, and as applicable to anything in which there is deep conscientious cleavage amongst the people. But it is not the whole truth. A Government must retain the right to bear their own special and ineluctable burden of final decision and responsibility. In this matter the Government have consistently made clear that in their view the retention, in some form, of the death penalty is a social necessity. That being so, it is their duty to safeguard and secure what they think essential for our welfare. If I had a criticism to make at all of the Government, it is that they ever left a matter of such crucial importance to a free vote in the House of Commons. But they have, since then, sought to fortify their own judgment by regarding the general state of public opinion. And since (of this I am quite certain) there was no clear and decisive majority opinion throughout the country for abolition, they are justified in trying to retain the death penalty for the time being in some form more acceptable than the present one.
As to the Bill now proposed, there are, no doubt, details, many of them of a legal character, which deserve the most careful consideration. I do not propose to enter into any discussion of that, nor am I particularly qualified to do so. I will only say, in passing, referring to what the noble and learned Viscount said, that I am not yet completely convinced that the adoption of the basis of premeditation was an impossible course of action: that murder by premeditation should be a capital charge. The noble and learned Viscount asked: what about "mercy killings"? I have always been firmly of opinion that a "mercy killing" should be regarded as murder, and nothing else. It should not be differentiated because it is a "mercy killing," as if that did not matter so much. It matters every bit as much; and many people require forti- 1192 fying against the idea that "mercy killing" is rather a good kind of murder. There comes in here another consideration, that of provocation. One can conceive that, if premeditation were the law, then a "mercy killing" could provide a provocation of circumstances which might lead to a lesser penalty than the death penalty. However, I do not want to pursue that line. I want to leave the details alone and to make two further general comments.
The first comment is this. When this matter came up in 1948 I argued in favour of leaving it to the judge and the jury to decide whether a particular killing was to be adjudged murder deserving of death, or murder without that penalty. I was told then, and I have been told since, that it is impossible to leave such a decision, on which death depends, to the jury. I am therefore interested now to read Clause 3 of the Bill on provocation, which does exactly that thing. The jury are left to decide whether provocation, by word or deed, or both, was enough to make a reasonable man do as the accused did. If they so decide, the verdict will be one of manslaughter and not murder; if they decide in the other sense, it will be one of murder and not manslaughter. If it is possible to leave a decision of that magnitude to the jury, I still go back to ask whether it was not possible, also, to leave the jury to decide in general whether, as they try murders, it is a murder for which there is no excuse and for which the death penalty was appropriate, or murder with an excuse, which would justify a lesser penalty. However, the Bill does not proceed on that line: it does not attempt to distinguish degrees of murder, nor to measure (and this I do not criticise) their moral evil. That certainly cannot be done in any Bill. There I entirely agree with what the noble and learned Viscount on the Woolsack said: it is impossible, in a Bill, to measure degrees of moral guilt.
The Bill does create certain clearly defined categories of killing which shall carry the death penalty. There has already been discussion on those categories. In the main, they seem to me, roughly speaking, right. They are clearly defined and easily understood. Anyone can know that a killing in one of these categories will carry the death penalty, and their deterrent effect is, therefore, at 1193 the maximum. I do not follow why the public should find it so difficult to understand this system. The argument used was that they would be horrified by some murder which did not carry the death penalty, and wonder why a less horrifying murder should. The answer to that is quite simple: that the law is not trying to legislate by degrees of horror. And I think it is important for the public to learn that they ought not to judge what the law shall do by emotional reaction to degrees of horror.
It is true that, under this Bill, some killings of a specially horrid kind, done in the heat of passion, escape the death penalty altogether. I do not regard that fact as an objection. The noble and learned Viscount did me the honour of quoting at length something I said in July of last year, and I was happy to find that I still agreed with every word of it. Indeed, I would maintain that some of these abhorrent murders are far the most difficult to judge by the ordinary categories of responsible action. It is by categories of responsible action that this Bill proceeds, but in these murders of passion and hate responsible action is not in the question. There is some element of temporary insanity, and these cases fall into that clear borderline, which besets us all, between the normal and abnormal, the reasonable and unreasonable, the sane and the insane. For that very reason, they ought not to be in the Bill; they ought to be left not as capital murders, but as others.
The whole matter, I suggest, is not one of deep principle but one of expediency, as one takes into view the general state of the country and public opinion. The State has in this matter a power and a duty: how is it to exercise this penalty? I would say that this Bill seems to provide, for a time, at least, a workable solution. I should myself reject the description of a compromise, although I think the noble and learned Viscount on the Woolsack accepted it. I do not see that it is a compromise at all. You cannot compromise between hanging a man and not hanging him; it does not admit of compromise; you do one or the other. This Bill retains the death penalty, but in the process makes the working of the penalty more limited—which is an advantage in itself—more effective and more clear. That seems to me not a com- 1194 promise but, as has been said, a definite improvement on our present system.
I would add this. I could hope that if this Bill is passed into law this long and distressing controversy may be allowed to pass for a good time into oblivion. I feel that it is a damage to the dignity of the country—and, I would, say, very unfair to anybody meditating murder. It is really damaging and unfair that there should be going on this controversy, to hang or not to hang, depending sometimes not on the merits of the controversy but by accident of Panty politics and relations between the two Houses of Parliament. If we pass an Act, I would implore those who are abolitionists to see that, for a time at least, their wise course is to say little but to observe, to that for a time this Act (if the Bill becomes an Act) may enable the nation to respect itself. After controversy, there should be decision. That decision is clear, fixed and workable; it maintains the dignity and sacredness of human life and secures the deep principles for which society exists. Let it be accepted as such, and left to work for a time without any further criticism or tinkering about with it.
§ 4.28 p.m.
§ VISCOUNT TEMPLEWOOD
My Lords, I have spoken so often upon this question that I must be careful not to repeat myself. I can, however, tell noble Lords that I shall be brief and I shall attempt put a rather different point of view than has been put in the previous speeches. First, I should like to congratulate those who think with me on this question upon the considerable progress that they have made in the last two or three years. First of all, they have educated public opinion, a most necessary thing on any penal question. The trouble with penal questions in the past has been that so few people have interested themselves in them. The first result, then, of this campaign, whatever may be the views of the noble Lords upon the particular issue, has been to concentrate public attention upon a most important question of penal treatment. The second result appears to be almost more concrete. The noble and learned Viscount the Lord-Chancellor has told us to-day that it is contemplated that executions will be reduced from an average of about thirteen to four—these, I know, are approximate estimates rather than factual numbers.
1195 They mean that executions will be reduced by something like 70 or 80 per cent. That I claim to be one of the definite results of the campaign that the abolitionists have been fighting during the last three years.
The Lord Chancellor alluded to the back history of the controversy. He seemed to me to suggest—I hope I am not misrepresenting him—that it had gone along on considered and reasonable lines and that eventually, after a lot of careful consideration, the Government had produced this Bill. I see the back history rather differently. I see, first of all, the Government advising another place against abolition. I then see the Government allowing a free vote, and next the Government giving pledges for facilitating the Silverman Bill. I may have misunderstood the pledges, but I certainly gathered—although in certain respects they were not specific that it was intended that, if the Bill went through the House of Commons, it would be given the constitutional facilities under the Parliament Act.
Next, I remember that noble Lords who are now members of the Government, in 1948 declared overwhelmingly against any attempt to put murder into categories. I now see in this Bill the division into categories as the very essence of the Bill—categories, I agree, different from the categories of the 1948 Bill. They differ in this respect. In 1948, so far as I understood them, they were based on moral heinousness. Now they seem to me to be based upon the particular kind of weapon that is used and the particular circumstances in which a murder takes place. I cannot believe that a Bill that contains complications and anomalies of this kind can possibly be permanent.
In the meanwhile, however—and I draw the attention of noble Lords particularly to this point—the Bill abandons the claim that the death penalty is an indispensable deterrent against murder. It has always been the basis of the case of people like myself that the death penalty was not an indispensable deterrent. Now it seems, after this Bill, that no one can possibly claim that it is indispensable. Look at the provisions in the Bill. If it is believed to be indispensable, why abandon it for ruthless poisoners and stranglers of women and children? Why, 1196 if it is indispensable, keep it for the protection of the police and the prison officers—and here I venture to repeat the question which the noble and learned Lord, the Lord Chief Justice, asked in our former debates—and deny it to the defenceless citizen? These anomalies are so great that they destroy any claim that the Bill is a considered and serious attempt to deal with the punishment of murder. They are so great that the Bill cannot possibly, in my view, remain permanent.
In the meanwhile—and this is the unfortunate aspect of the Bill—executions, it is presumed, will continue. If the Lord Chancellor's figures are right, they will be reduced from twelve or thirteen a year to perhaps four a year. So far as I am concerned, I am not interested in the actual number of executions. I disapprove intensely of executions, whether they be few or whether they be many. The effect of keeping the death penalty in being will be that all the mediæval machinery of executions will continue. Perhaps before the end of the debate the Lord Chancellor will tell me what is to happen in this respect. I understand that executions now take place in about ten different prisons. In each of them there is a condemned cell and a death chamber. Is all that machinery going on under this Bill? Or is it that, when the executions are reduced in number, they will all take place in one prison? If that be the case, I can imagine the morbid atmosphere that will be created in the prison that is exclusively reserved for executions. So long as there is any execution at all, we shall continue to have the morbid interest of the general public in the crimes and in the deaths of the criminals who suffer execution, and it may well be that the fewer the executions, the greater will be the morbid interest taken in them.
Finally, I agree with the most reverend Primate who has just spoken that this Bill is not a compromise. From my point of view, it is no compromise at all. It is nothing more than an expedient to extricate the Government out of a very difficult position. Sooner or later total abolition will come. In the meantime, I am not prepared to support a measure that, whilst abandoning the claim that the death penalty is an indispensable deterrent against murder, retains it in a way that will complicate the law, irritate 1197 the public, and satisfy neither the retentionists nor the abolitionists.
§ 4.40 p.m.
§ VISCOUNT SAMUEL
My Lords, this Bill is really an outcome of the debate in your Lordships' House last year. At that time I found myself in the unhappy position of being unable to vote either for that Bill or against it. I could not vote for the Bill because it was uncompromisingly abolitionist, and I agree with the most reverend Primate, and not with the noble Viscount who has just spoken, in not accepting the view that there is an absolute principle of morals which condemns all capital punishment. At the same time, I did not agree with the course that the most reverend Primate proposed on that occasion, which was to vote for the Bill and pass it for Second Reading in order that it might be amended in Committee, because I was very doubtful whether—at all events, I felt no confidence that—in Committee your Lordships' House would be able to find any third course. All the authorities had declared that it was not possible to distinguish between degrees of murder. The late Home Secretary, Mr. Lloyd George, said a year ago in another place [OFFICIAL. REPORT, Commons, Vol. 548, col. 2550):The Government agree that neither the definition of murder an attempt to distinguish between different deuces of murder, offers a useful line of approachand the Chairman of the Royal Commission, Sir Ernest Gowers, said exactly the same in even more emphatic terms.
But this Bill, although disclaiming any attempt to distinguish between degrees of murder, really does precisely that. There are murders of different kinds. Some of them are to receive capital punishment and some are not. Whether you use the word "degrees" or not, there is a differentiation between murders, and I do not at all agree that ultimately the real differentiation is not between the degree of moral heinousness of the crimes. That, I think, from the standpoint of common sense and the ordinary view of the man in the street, is precisely the differentiation that he makes. When a jury find a murderer guilty, as they are bound to do on the facts of the case in accordance with their oath, but add a rider, a recommendation to mercy on the grounds of extenuating circumstances, is that not a very natural and proper thing to do?
1198 What are extenuating circumstances? They are such as reduce the degree of moral guilt. If we pass an Act of Parliament to abolish the death penalty in infanticide, it is homicide but of a less degree of moral obloquy and is not to be punished by hanging. If, in this Bill, there are provisions in effect commuting the liability to the death sentence in two or three particular cases, that is another example, and there are others.
The alternative now adopted by the Government is to base differentiation on the degree to which the public peace, law and order are affected, but that is a very unreal discrimination. Clause 5 draws various distinctions. If a person shoots with a revolver and kills his enemy he is liable to be hanged; but if the same person, for the same reasons, kills his enemy by hitting him on the head with a club, he cannot be hanged. If a criminal rapes a little girl and then, in order not to run the risk of being identified, strangles her, that is not a degree to be regarded as a grave injury to the public peace ant order. But if a person commits a murder in the course of a robbery, or even in Vie course of actions committed with intend to steal, as provided in the Bill he may be sentenced to be hanged. This discrimination in degrees of murder to the extent to which particular crimes affect peace and order seems to me very unconvincing. When this Bill comes into actual operation and cases come forward, month by month or year by year, in which public opinion is offended—when some criminal, who has committed a crime which, in everybody's mind, is of the utmost gravity and hideousness, escapes the death penalty, while another who has been convicted of sonic offence against property in the course of which he commits a murder is hanged—it will be regarded as inconsistent and illogical.
However, I agree that this Bill is a great step forward and that it will result in fewer executions. As an ex-Home Secretary and an ex-High Commissioner who for live years had to decide on death sentences in another territory, I rejoice that executions will be reduced to the lowest lumber possible. After all, I must admit that the alternative that would be open, ant which was the one to which I thought we must have resort if we could not distinguish between degrees of murder—namely, continued, and perhaps even extended, discrimination by the Home 1199 Secretary, the freeing of his administration from certain restrictions that are now imposed upon it by the requirement that he has to find some definite reason for interference with the course of the law—is also open to grave objection.
The jurists feel strongly that the law is a matter of trial by judge and jury, with public evidence, resulting in a sentence. With recourse to the Home Secretary in private, without any legal procedure, without any witnesses, with no one knowing what fresh evidence may be brought in and then the sentence of the court perhaps not being carried into effect, the Home Secretary has a jurisdiction which is not juridical, if one can draw the distinction. I agree that the judges as a whole have always been averse from making this one of the principles, one of the main steps or processes in the administration of the capital law. In those circumstances, it seems to me, we have to choose now, at this moment, between two courses that are both open to objection. One is this Bill, or something very closely approximating to it, which is in itself illogical and in many respects inconsistent; the other is a continuation and extension of the right and power of reprieve. Both are open to objection. For my own part. I certainly do not think that logic or consistency need necessarily have the last word. Therefore, if this Bill goes to a Division—and I am glad to hear from my noble friend Lord Silkin that the Opposition do not propose to divide upon it; and I see no reason why it should go to a Division—1, for my part, will certainly vote in its favour.
§ 4.49 p.m.
§ LORD GODDARD
My Lords, I do not propose to discuss before your Lordships the merits or demerits of capital punishment, because last Session this House registered an emphatic vote in favour of retaining capital punishment as a penalty in English law. There is no reason to suppose that the House as a whole has altered its opinion, but there is one reason why I, and I think the Judges, would welcome this Bill: I hope that it will put an end to the perfectly intolerable situation which exists at present, which was referred to by my noble friend Lord Silkin and which is causing the judges considerable embarrassment.
1200 Just to develop the point, may I for a moment go back to what happened in 1947? When the House of Commons inserted into the Criminal Justice Bill a provision abolishing capital punishment, the Home Secretary of the day announced at once that he proposed to recommend a reprieve in all cases, and did so, until this House had refused to accept it; and after a time it was agreed that that provision should not remain in the Bill. One or two shocking murderers escaped the death penalty. When the Bill came before this House, I ventured to say that the action of the Home Secretary amounted to a use of the suspending power which the Stuart sovereigns claimed by saying, "We will not enforce the law". That suspending power was declared in the Bill of Rights to be illegal.
The Bill of Rights was passed a great many years ago, in 1688, but it is still one of the great constitutional safeguards and is still on the Statute Book. These are the words of the Bill of Rights in this respect:That the pretended power of suspending of Laws or the execution of laws by Royal authority without consent of Parliament is illegal.If the Secretary of State said, as he did on that occasion, "I am going to advise a reprieve in every case", what he was doing was to abolish capital punishment by administrative action, and not with the consent of Parliament.
When the Silverman Bill (I use that expression as it was used by Lord Silkin) went through the House, the then Home Secretary, I suppose to escape its being said that he was exercising a suspending power, announced that he would consider every case with regard to its circumstances, including the circumstance that the House of Commons had voted in favour of the Silverman Bill. In other words, he was going to exercise a dispensing power. No one has ever denied that the Crown has a dispensing power; but, of course, if the dispensing power is exercised in every case it becomes a suspending power, as the framers of the Bill of Rights realised. Not only did King James II by the Declaration of Indulgence say that the penal laws should not be enforced at all, but in the cases which began with the famous case of Sir Edward Hayles, who accepted military office without taking the test, he was pardoning 1201 all the accused. Therefore Parliament, again, i a the Bill of Rights, saidThat the pretended power of dispensing with laws or the execution of laws by Royal authority as it has been assumed and exercised of late is illegal.Since the Silverman Bill passed the House of Commons there has been not one execution; every single murderer has been respited, although the law of the land is that for murder the penalty is death. That fact got known, because last September at the Old Bailey, when a young criminal pleaded guilty to the murder of an old shopkeeper who was battered to death for the purpose of robbery, he inquired of the police officer who arrested him, "They are not hanging for murder now, are they?" So these things do get known amongst young criminals—"They are not hanging for murder now, are they?". And they were not, because, as I say, the Home Secretary was advising a pardon (it is a conditional pardon) in every case.
Is this going to continue? I ask that question for this reason. Since this Bill has been in another place there have been cases where, if this Bill were law, the murders would be of a capital nature, and the accused have been reprieved. Only the other day during the winter circuit there was a case in Huntingdonshire of which your Lordships may have heard, called the Fenland murder, in which an old farmer was brutally murdered and his body thrown into a ditch. He was murdered for money. He had a considerable number of banknotes in his house, amounting to £200 or £300, and they were found in the possession of the prisoner. So brutal a murder was it that, knowing that this Bill was before the House, Mr. Justice Donovan, when he sentenced the man to death said:I advise you not to consider that there is any prospect of a reprieve for a murder which has been carried out for theft, as yours has been.But the man was reprieved.
Very soon after the Home Secretary made the statement that I have mentioned, a case came before the Court of Criminal Appeal, and, in accordance with his usual practice, the Home Secretary sent me the report prepared by the doctors whom he had sent down to examine the prisoner to see if by any chance there were grounds for reprieving him because of insanity. The report of 1202 the medical men which was sent to me is as follows:Neither on legal nor on medical grounds is there any case for saying that this man is insane.The letter said that the Home Secretary had advised a reprieve.
My Lords, is this to go on? The judges are feeling a sense of the greatest embarrassment. They have to administer the law as it is. They will have to administer the law as it is altered. They have, at present, and have had ever since it was decided not to change the law, to pass sentence of death in every case of murder whore there has been a conviction. Now they will have to pass sentence of death in what is called capital murder. Although the so-called capital murderers now are being reprieved in exactly the same way as what will be known as non-capital murderers, I hope the Judges may now feel that they will not be put into the position of having to pass sentence of death, only to find that a reprieve is recommended. It seems to me that there is one virtue in this Bill. I cannot believe that if this Bill is passed and there are murders which are declared by the Bill to be capital murders, he law not be allowed to take its course. If the law is not to take its course than, in Heaven's name! let us abolish the whole thing altogether.
I cannot pretend that I look on the Bill with great enthusiasm, although I think there are some useful changes in the law of homicide, apart from questions of punishment, in the first Part of the Bill. There are, I think, some drafting difficulties to which I will call attention when the Bill reaches the Committee stage. They are one or two difficulties which I think the Judges will find considerable in administering the law, but I do not propose to go into those now; it is better to wait until the Bill comes into Committee. But, for the reasons which I have given, I hope that this unsatisfactory and, as I think, at any rate, unconstitutional method of reprieving everybody when the law remains what it is, will be put an end to. I hope that this Bill may go forward for that reason, if only for that reason.
§ 4.59 p.m.
§ LORD MORTON OF HENRYTON
My Lords, some of your Lordships will know that I used to be a Chancery Judge, and Chancery Judges have little 1203 or nothing to do with crime or criminals. You may feel surprised that I follow the Lord Chief Justice. I do so, not as a judge, but as a citizen who thinks that he has a valuable piece of evidence to lay before the House, evidence that burglars are deterred from carrying lethal weapons by the fear of capital punishment. Whenever this subject arises, either in this House or in another place, or in discussions elsewhere, it is always said, as it has been said to-day, that there is no evidence that capital punishment is a deterrent. Of course the only man who could give first-hand evidence as to whether it does deter burglars would be a burglar, and I have not yet taken up that profession. But it is not likely, after all, that a man would have gone before the Royal Commission on Capital Punishment and said: "I am a burglar and I am deterred by capital punishment from carrying weapons." Comment has been made on the fact that there was no evidence of deterrence before that body. My evidence comes direct from a man who, so far as I know, had no other source of livelihood except burglary.
In order that your Lordships may estimate the weight of it, it is only right that I should tell you, very briefly, how it came to me. During the First World War, when my company and I were dug-in in very close proximity for the night, I heard two men boasting of the wages they had earned per week in munitions before they joined the Army. I then heard the very familiar voice of one of the corporals in that company saying contemptuously, "I have often pinched more than that in a night." I drew the obvious conclusion, and the next time we were on the move I took an opportunity to speak to him on another matter. And before we parted I said casually, "By the way, corporal, were you a burglar before you joined the Army?" He said, "Well, sir, that is not what is in my papers." I said, "I am sure it is not, but I should like to know, because I should very much like to learn something about burgling from what I may call the inside ', and I will not tell anyone anything you communicate to me." That is all a long time ago, and I am not giving any names. Later on, I asked the man: "Did you carry a gun when you went out to burgle a house?" He said, "Oh no, sir; me and 1204 my pals think that a man who carries a gun is an'—adjective—' fool." I asked "Why do you think that?" He told me, "It's no use carrying a gun unless you are going to use it if you are interrupted; and if you do use it and kill somebody you are for the 'drop'"—and he made a very dramatic gesture.
There was a piece of evidence from a man who was completely free, who was not at all ashamed of his profession and who, I believe, intended to go back to it if he survived the war. Is that not a very strong piece of evidence that there is a deterrent—and that at an early stage, before the man is put into the temptation of using the weapon? I suggest that that may afford some reason for the selection of crimes in Clause 5 of this Bill which one or two noble Lords have found rather arbitrary and capricious. There is a deterrent at that early stage in the case of a man who is contemplating burglary or robbery. And who can doubt that, if he does take a weapon, the easiest way to escape is to kill, and the person whom he kills may be the only witness who could possibly identify him?
I believe most sincerely that in this respect the provisions of Clause 5 are a very real protection to people who greatly need protection: the police who go to arrest a burglar, and the householder who, hearing a suspicious noise in the middle of the night, comes down to see what is the matter. I do not think that that protection should be taken away from them; I believe that Clause 5 of the Bill is right in retaining it. I have not come here to make any general observations on the Bill. I have tried to supply one piece of evidence which, from the way in which the subject has been treated before, seemed rather to be wanted. I have supplied it, I hope clearly.
§ 5.5 p.m.
§ LORD CHORLEY
My Lords. it would be very tempting to pursue the argument so ably put before your Lordships by the noble and learned Lord, the Lord Chief Justice, both on a previous occasion and to-day, on the constitutional point as to the use of the so-called "suspending power"; but I do not want to do that: it would take up too much time. I will only suggest that the situation now, in 1957, is an altogether different one from that which existed when King 1205 James II was behaving in an unconstitutional way against the almost unanimous opinion of both Houses of Parliament and I would suggest that when a Bill was on its way to the Statute Book, as the Silverman Bill appeared to be rather over a year ago, when the Home Secretary adopted this course, which has been so severely criticised by the noble and learned Lord, however logical it would have been to pursue the policy advocated by the Lord Chief Justice it would certainly not have been politically right. Indeed, I believe that it would not have been humanly right, either, to continue to execute people for murder when, at that time, there seemed every possibility that within a very few weeks that crime would cease to be punishable by the death sentence.
This Bill is a very great disappointment to all men and women who are forward-looking in matters of crime and punishment. It shows once more how difficult it is in this country to get Parliamentary sanction for really important reforms in the criminal law, reforms which obviously have been necessary for generations. I am referring now to Part I of the Bill. Like every noble Lord who has referred to it this afternoon. I welcome it. I am not, of course, referring at the moment to the problem of capital punishment. Almost all the reforms which are contained in Part I have been advocated by responsible opinion for the last fifty years, but we have had to wait until 1956 to get them into a Bill before Parliament. They are none the less important for that, but it shows how slow are the workings of the Parliamentary system in matters of this kind.
It is, of course, the provisions on capital punishment in this Bill which are so disappointing, especially to those of us who for many years have been working to remove this relic of barbarism from the law of Britain. We should like to put ourselves right with civilised opinion all over the world, and a year ago we felt that at least we were on the point of doing so. Now we find the cup dashed from our lips. I do not propose, however, to revive the discussion of principle which we had last year on the Silverman Bill. I think the "hangers" then had the worst of the argument but the best of the voting.
I will only say that this provision in the Bill before us, as my noble friend, 1206 Lord Silkin, has indicated, really blows to bits the theory of the unique value of capital punishment as a deterrent, despite the eloquent speech which we have just heard from the noble and learned Lord, Lord Morton of Henryton. Her Majesty's Government themselves evidently do not accept his view because in regard to the majority of murders they are row removing this unique deterrent from the Statute Book; and it is difficult to see why, when last year they advised Parliament not to take away this unique and allegedly effective deterrent, they are Low proposing to do so in what is obviously a substantial majority of cases.
There is another point about deterrence which ought, I think, to arouse misgivings in the mind of everyone who voted for the retention of the death penalty last year because he was persuaded of the validity of this deterrence argument. I should like to say in parenthesis, in answer to Lord Morton of Henryton, that no one who argues that capital punishment is not an effective deterrent in murder cases has ever suggested that there is no single case in which a person has been deterred by the idea that he might be hanged if he committed murder. Of course, it would be a ridiculous suggestion. What we contend is that, by and large, and on the whole, the existence of capital punishment is not an effective deterrent to murder.
As was pointed out by the noble and learned Lord, the Lord Chief Justice, the Home Secretary has, for something like eighteen months, been giving what is, in effect, an automatic reprieve in all these cases. Th. interesting thing is that during that period the actual number of murders known to the police has been less than in any other year since the end of the war—and not only has it been less: it has been substantially less. The number of murder cases known to the police since the end of the war has been running at an average of about 170 a year, and during the year in question it was some, thing under 150. That, again, is not logical proof that capital punishment is not a deterrent, but it seems to me to be the sort of reasonable proof on which people act in everyday affairs of life. It certainly, in my view, ought to have great attention paid to it.
I should like also to say this, in answer to the most reverend Primate, who rather 1207 deplored the campaign against capital punishment which undoubtedly has been conducted with great enthusiasm and with great expenditure of effort on the part of many distinguished people in this country over the last years. I agree entirely with the noble Viscount, Lord Templewood, that it has had a most valuable educational effect. I do not believe that it has been a bad thing at all that up and down the country people have been discussing this very important matter. It is in this way that people learn to take decisions in matters of great political and constitutional importance. It is the only way in which people can get effectively educated in a democracy. And so great has the educational effect been that whereas, when this matter was before your Lordships' House in 1948, we were able to muster only twenty-nine of your Lordships to go into the Division Lobby with us, in 1956, only eight years later, we mustered as many as ninety-five. So the educational effect has been felt even in your Lordships' House.
Before I turn to the terms of the Bill, I should like to add my protest to that made by my noble friend Lord Silkin against the really unscrupulous evasion of the Parliament Act which is involved in this Bill. In my view, the course the Government have taken with regard to this matter has not been playing cricket. They told Parliament in 1956 that there would be a free vote on this matter; they were going to advise their supporters to vote in a particular way. No doubt they thought that their own followers would pretty unanimously accept their advice. When they found that they did not do so, and that the Silverman Bill had, in fact, been passed in another place, they proceeded in this way to try to smash it. Now they have succeeded in smashing it. It seems to me that this really is verging on dishonesty, and I add my protest against it to that which has been made by Lord Silkin.
May I turn to the Bill? It is of course Part II which is the pith and substance of it. However much one may welcome reforms made in other parts of the Bill as a Homicide Bill, this is the Part which is the pith and substance of it. Whatever one may say about the actual words used, it is obvious that it does, in fact, establish degrees of murder. It seems to me that it is mere word-chopping to suggest any- 1208 thing to the contrary. It is not that this is a new proposal at all. Indeed it has been operated in more than one of the States of the United States of America for well over a hundred years, as has been pointed out to-day. An attempt was made to introduce it in 1948, by way of some sort of compromise, when your Lordships had thrown out the relevant clause in the 1948 Bill. As has been pointed out this afternoon, it was ridiculed, particularly by the late noble and learned Viscount, Lord Simon, and by the noble Marquess who now leads the House. I think they very properly ridiculed it, because the Royal Commission which gave a very great deal of thought to this particular proposal took a lot of evidence about it in the United States, in some of those States where they have this method of degrees of murder, and advised very strongly against it. Experience in those States of the United States of America were it exists is that it is altogether unsatisfactory; and so the Royal Commission were informed when they were in America particularly to study this very matter.
No one would suggest that it is not legally possible to administer two degrees of murder. But it gives rise to very great difficulties and to anomalies which are only too obvious and which are immediately apparent on a perusal of the relevant clauses in the Bill. Several of your Lordships have commented on them very forcibly. The noble and learned Viscount who sits on the Woolsack himself referred to them, with the object of trying to show that they were not really so anomalous, after all. I think most of your Lordships will agree that, skilful and subtle as was his argument, he hardly succeeded in doing so. I have no doubt at all—and the noble and learned Lord the Lord Chief Justice indicated in effect that that was his view—that if they come on to the Statute Book in the form in which they now appear in this Bill, the Court of Criminal Appeal will for many years, be puzzling over them and will by trying to find some sort of solution to them.
I do not want to go over all of them, but shall take the case of breaking and entering to steal. If you do that and you unfortunately meet with the householder, knock him over the head and kill him, you will be guilty of capital murder. In the case of breaking and entering for the 1209 purpose of committing rape, which is just as serious and just as determined, you would not—even if you happen to kill the woman, or even if you happened to kill her husband—be guilty of capital murder. Moreover, if you were breaking and entering the house of your enemy in pursuance of a predetermined decision to get rid of him, and, in fact, you carried that out effectively—provided you were careful not to use a revolver, as I imagine you would be, having the provisions of this Bill in mind, and took with you instead a dagger-knife or one of the other sorts of weapons which have been exhibited in recent cases tried in the Assize Courts—you would again find that you had not committed capital murder.
These are examples of the sort of anomalies which arise under the Bill as it stands and, as the noble Viscount, Lord Samuel, pointed out, they are altogether inconsistent with the alleged policy on which the Government spokesmen contend that they have drafted this measure—namely, that they have retained the death penalty in cases where peace and order are at stake and let it go where they are not. I cannot think of anything where peace and order is more at stake than when a man deliberately breaks into a house for the purpose of killing his enemy or ravishing a woman. Those noble Lords who have said that public opinion will be puzzled and upset, and indeed outraged, at these anomalies are perfectly right. The ordinary man in the street can understand the clear, straight abolition of capital punishment, and in due course those who do not now accept it will come to do so, but he just cannot understand, because it is really unintelligible to reason, the attempts at distinction which are made in this part of the Bill.
I do not want to anticipate the Committee stage. as one is so apt to do when discussing the individual clauses of a Bill, but some of the clauses raise matters of principle which call for a little comment at this stage, I do not propose to take many of them, but I should like to refer to two or three, because it may assist the noble Lord to put the matter right at a later stage. The first clause deals with constructive malice. Everybody is pleased that that at last is being removed from the law of this country. There have no been many cases where the rules on constructive malice have been applied 1210 in recent years, but there was the well-known case of Bentley, which gave rise to a great deal of feeling. I am sure that it must have been an extraordinarily difficult decision for the noble and learned Viscount, who was at that time Home Secretary. There is one point in regard to this subject which is not clear to me—that is, the position of a person aiding and abetting in this type of murder. The Royal Commission, as I understand their Report, felt that this was a case where constructive malice ought to be retained. It would appear that the draftsman has gone further in this respect than the proposal of the Royal Commission but the wording of the Bill does not seem to me altogether clear on this point. It does not expressly deal with the cider and abetter, and I should like to have an authoritative view on that point.
In Clause 2 we have diminished responsibility, the Scottish doctrine, which certainly is a great improvement on our M'Naghten Rules. Some people take the view that this clause is intended by implication to replace the M'Naghten Rules, but others take the view that the M'Naghten Rules will continue to be effective and will be applied, so to speak, in parallel cases. I do not know what the noble Marquess who is to reply thinks about that. It is one of the matters which I hope it may be possible to persuade the Government to put right.
Again, where there is diminished responsibility, the crime is to be reduced to manslaughter. The ordinary case of manslaughter is punished by a term of imprisonment, often not a very long one. Many of these cases where there may be diminished responsibility are serious mental cases, such as that of the psychopath. Here, again, it is not so clear as it might he that a psychopath is within the ambit of this clause, and I should be grateful to know what the Government's view is on that point. Let us assume that a psychopathic killer is within the clause and escapes with a verdict of manslaughter and a term of imprisonment, it is obvious to anybody who knows anything about psychological medicine that there is the danger that when he comes out he will kill again. This, emphatically, is a type of case which should be dealt with by an indeterminate sentence of imprisonment, so that the medical experts looking after these men and women in the mental wards of 1211 prisons may determine whether a man is sufficiently recovered for it to be safe to let him out amongst his fellow citizens again. If there are some of these cases where manslaughter is the verdict and a murderer is imprisoned and a few months after he comes out he is found committing homicide again, there will be a great revulsion of public feeling.
Clause 3, which deals with provocation, introduces, I think for the first time in statutory law relating to criminal offences, the doctrine of the "reasonable man". It is not whether the prisoner before the jury was provoked by what happened, but whether a reasonable man would have been provoked. I suggest that this is giving a very dangerous sanction to a doctrine which has been developing in the criminal courts over the last half century or so. The old English law was that a prisoner had to have a guilty mind before he could be found guilty of the offence with which he was charged, but over recent years there has been the tendency to say that if a reasonable man would not have done what was done, then the accused is guilty, notwithstanding that he was acting under the impulse of some overwhelming emotion or something of that kind. It is disappointing to me to find the doctrine of the reasonable man, which in civil law is a very sensible and proper doctrine and is the basis of the whole law of negligence which has been built up successfully in the courts over the last hundred years, being introduced into criminal law, where the criteria are completely different, and now apparently being given statutory sanction.
In conclusion, I am sorry that I cannot agree with the noble and learned Viscount that this Bill is going to put an end to an age-old controversy. The most reverend Primate hoped that it would do so, too. In his view, there is nothing morally wrong in carrying through executions. Of course, the principles of morals are principles which change as generations go by. Many principles of morals which in the Middle Ages or more recently have been generally accepted by religious people and by ordinary citizens have now been discarded. I cannot agree with the most reverend Primate that this is not a moral issue. I assure him and the noble and learned Viscount that we, who have been taking part in this con- 1212 troversy, will not let it rest until we have succeeded in removing the penalty of death from the Statute Book altogether.
§ 5.30 p.m.
My Lords, I must confess that I feel, for the first time in my life, a certain affiliation with the Liberal Benches, if only for the reason that, like the noble Lord, Lord Moynihan. I have no legal qualifications whatever. Indeed, any observations that I may make upon this Bill are entirely my own feelings. They are, however, the feelings of an ordinary citizen and, like the noble Lord, I believe that that is not unimportant. In a matter such as this, I think both professional and lay opinions are, or should be, of some account, though far be it from me to suggest that my humble opinion will be of any importance whatever.
I think the Government have had an extremely difficult task with this Bill. They have recognised that there is, fundamentally, a body of opinion which wishes to retain capital punishment in some shape or form but at the same time there is the feeling, maybe large, maybe small, that capital punishment should be abolished. I think that the Government have made an honest and sincere effort to meet, so far as possible, both those points of view. But, like Solomon and the baby, I can only believe that neither party will be satisfied.
My main and greatest criticism of this Bill concerns Clause 5, in which capital murders are defined. Like many other noble Lords, I find it extremely difficult to understand why some murders should be capital murders and others non-capital murders. I find it difficult to understand why the murders listed in this Bill should be of a worse nature than some other murders. Indeed, let me quote what was said by the noble and learned Viscount the Lord Chancellor, during the debate on the Death Penalty (Abolition) Bill last July. He said [OFFICIAL REPORT, Vol. 198, col. 574]:Secondly, the attempts made during the passage of that Bill"—he was referring to what is now the Criminal Justice Act, 1948—to divide murder into capital and non-capital crimes proved totally unsuccessful.A little later, he said:For the purpose of this debate it is sufficient for me to say that they, too,"—1213 he was referring to the Members of the Royal Commission—after exhaustive research, including, as my noble friend has said, inquiries into the experience of foreign countries, were unable to recommend any method of introducing what are sometimes called 'degrees' of murder.My Lords, I am not a lawyer, but so far as I can see, that is precisely what the Government have done. They have brought in degrees of murder. It is amazing to me that under Clause 5 you can shoot a person and kill him, and you can be hanged; but if you stab him in the back, or strangle him, you will not be hanged. Why is it that murdering by shooting should be any worse than stabbing or strangling? Why is a bullet worse than a knife? I thought it was only a short while ago that one was given the option of epée or pistolet. I suppose, fundamentally, it must be that the Government consider that shooting or explosion is a breach of the Queen's peace. In other words, they consider that if things are blown up, or shots are fired, it is dangerous.
I would ask your Lordships to look at it this way. Who are we trying to protect if, by retention of capital punishment, the Government in this case are endeavouring to protect somebody? I ask them: who is it you are trying to protect? Is it the person at whom the shot is fired, or is it the person who might get hit if that target is missed? It seems to me that if you are trying to protect the person at whom the shot is fired, then it is illogical to say you cannot have capital punishment for stabbing or strangling. But if, on the other hand, you are saying you are trying to protect the person who might he shot, surely it is completely illogical, because you are protecting a secondary person and not the person who is fundamentally the target of the shooting.
My Lords, the type of murder which must be the most repellent, and the one which, during the debate in your Lordships' House some months ago, caused the most concern, was the type of murder that was committed by poison. Yet in this Bill it is not mentioned. In committing a murder of this sort, the person who does it takes a cool and calculated risk: he weighs up what he is trying to get: he weighs up his chances of success, and then he proceeds with his violent act. It seems to me strange that 1214 in a society where, for better or worse, the death penalty is retained, it should not be retained for this form of murder.
The noble and learned Viscount the Lord Chancellor mentioned "mercy killings." I understood that he mentioned it in a way to lead one to believe that one should not have capital punishment for poisoning because sometimes "mercy killings" were done by poisoning. That, to my mind, is a most staggering theory. I should like to associate myself wholeheartedly with the right reverend Primate in abhorring the thought of regarding "mercy killings" as suitable for leniency of penalty. If I might he allowed to quote once more the noble and learned Viscount the Lord Chancellor, again in his speech of seven months ago he said this [OFFICIAL REPORT, Vol. 198, col. 575]:I do not say for a moment that it is impossible to distinguish those kinds of murder which are most dangerous to society, for example, those involving the use of poison or firearms.My Lords, if murder by firearms is dangerous to society, why is not murder by poisoning? If we are going to have capital Punishment for the one, why should we not have it for the other? I wonder, is it that poisoners are supposed always to try their hand a second time? Is it that, if they do so, they will be caught under Clause 6, which allows the death penalty for repeated murders? Maybe it is. But if it is so, surely that alone is reason enough to include poisoning in the Bill, because if a man is going to get caught the second time he does it, he ought to be caught the first time, in order to prevent the second killing.
Clause 6 seems to me to be an argument against itself. If it is to take effect, and anyone is to be hanged after committing two murders, surely that person ought to nave been hanged after one and so prevented from committing the second. It is all very well for noble. Lords to say that the State should not be allowed to take life, and that the individuals should be given a second chance. It is not those noble Lords who give the murderers the second chance; it is the would-be victim. If that murderer takes his second chance, the would-be victim will remain alive. If the murderer refuses his second chance, the would-be victim would become indeed a victim. There is one other point, in the first subsection of Clause 6, that. I find a little 1215 hard to understand, and I should be very grateful if the noble Marquess who is to reply would give some guidance on this. A murderer will be hanged if he has committed two murders, provided that both those murders occur in Great Britain. I wonder why that proviso is brought into the Bill. If a man has been fairly and justly tried, to me it would appear to be irrelevant where the murder occurred. I should be grateful if I could be told why the murder must take place in Great Britain.
There is, to my mind, one other great omission from this Bill, and that is the omission of people who commit their murders either during, or as a result of, rape. Generally, in cases of rape or sexual murders there are only two people present; that is to say, the criminal and the victim. It is clear that if the criminal were to dispose of his victim, he would dispose of the only witness. The chances are that he will not be found out and punished for his crime. If he has murdered his victim, and is found out, I would remind your Lordships that the sentence for rape can be life imprisonment; and by this Bill the sentence for murder following rape can also be life imprisonment. Therefore, he has little to lose.
It is said by the noble and learned Viscount on the Woolsack that most murders committed at the time of rape are committed under a feeling of passion, and that therefore it is wrong to include them in the Bill. That may be true. If it is, then the murderer will be saved by Clause 2, because he will be temporarily of unsound mind. It would appear, therefore, that there would be no objection to including a clause dealing with murderers who perform their acts after or during rape. If they are of a sound mind, surely, it is the duty of the law, such as it is, to protect women and girls from criminals who behave in this way.
Such criticisms as I have made of this Bill have been made with only one idea in mind, and it is, I am sure, the idea that pervades the minds of most people: that if this Bill is passed, we should be as sure as we can that no one person extra will be murdered than would be murdered under our present system. That seems to me to be absolutely vital. I feel that the prime object of any law 1216 must be to preserve the peace of the country and to protect its citizens. I humbly venture to suggest to your Lordships that this Bill does not give the public adequate protection.
§ 5.44 p.m.
THE EARL OF HADDINGTON
My Lords, it is difficult at this stage of the debate to bring out many fresh points without reiterating what previous speakers have said. I am, and always have been, a confirmed abolitionist, and, in spite of the big guns that have been fired off this afternoon, I remain entirely unconvinced. As one who favoured total abolition, I was, of course, disappointed that the Silverman Bill was thrown out by your Lordships' House last summer. I hope that this Bill will be given a Second Reading, but for one reason only: not because I think it is a good Bill, but because it will mean that fewer people, on the average, will be hanged per annum.
We all appreciate the difficulties in which the Government have been over this matter and their honesty of purpose in their belief that only by retaining capital punishment for certain crimes of violence can they discharge their responsibility to the public of maintaining law and order. If they hold that view, then I suppose Clause 5 of this Bill is the logical consequence of their belief. But this strange compromise between total abolition and the status quo is the very reverse of the recommendations of the Royal Commission, who not only decided to reject the proposal to divide murder into degrees, but, in their final conclusions on the main issue (this is the summary of conclusions in their important Report; the last words of the Report written, in thick type, to emphasise their importance) they said:To our mind, it would be inescapable that in this country a stage has been reached where little more can be done effectively to limit the liability to suffer the death penalty, and that the real issue is now whether capital punishment should be retained or abolished.Royal Commissions are appointed, and people best qualified to judge these matters are chosen to sit on them. They give weeks, months and sometimes years of their time, voluntarily and earnestly, in the public service; and when all is finished their unanimous recommendations are frequently brushed aside and 1217 disregarded. It is evident that a boy of eighteen years of age can still go to the gallows, in spite of the recommendations of this Royal Commission. The Royal Commission definitely recommended that the age limit should be raised to twenty-one. If the noble Marquess the Leader of the House in his reply can give any indication of what sort of Amendments we can put down, and what likelihood there is of their being considered, I should like to put down an Amendment to get that altered.
Public opinion is always much quoted in these debates, and I should like to say a word or two of what I think about public opinion. It is always said that public opinion will not tolerate abolition. Who can know what public opinion will tolerate and what it will not? Of course, public opinion can never be wholly in favour of abolition, and can never be wholly in favour of retention. What that section of public opinion that favours retention will think of this alteration in the law, where those crimes which are most greatly feared—the evil crimes that have been mentioned to-day—meet with the most lenient punishment, I do not know. As an abolitionist, I am not concerned with what they will think, but it seems to me to be a queer principle that if you rob and kill you die, but if you rape and kill you live.
It is almost indecent of me to criticise anything that the most reverend Primate, the Lord Archbishop of Canterbury, says, but he did say that this Bill should not be looked on as a matter of principle, but as a matter of expediency. I cannot understand how any Homicide Bill cannot be founded on principle; it must be founded on principle.
Let me turn to a bright: feature of the Bill, because there is one very bright feature—I think it is one of the best things in it and I know it will commend itself to all quarters of your Lordships' House. That is, that the Scottish Common Law of diminished responsibility is to be introduced into the law of England and Wales. I think all noble Lords from Scotland will congratulate themselves on that. This means that where proof of abnormal mental deficiency can be established, a verdict of manslaughter can be allowed instead of murder. Perhaps your Lordships will pardon my Scottish pride if I say that that is not: the worst of many good things which have come out of 1218 Scotland into the law of England and Wales. The Bill does a good deed to Scotland—and this is something which has not been mentioned this afternoon—because it removes an anachronism in the existing law. It amends the old Criminal Law of Scotland Act, 1829, and it substitutes for death the maximum of life imprisonment on conviction of a charge of attempted murder. That is an anomaly which the Bill is, I am glad to say, putting right.
Yet, when all is said and done, does this Bill lessen by one iota the chance that an innocent man can go to the gallows? The answer to that must be I fear, "No". The day of total abolition will come just as surely as morning follows night. I feel that many of your Lordships will not wish to oppose this measure, which is, at any rate, as has been said by so many of your Lordships, a substantial step forward towards the consummation of that ideal.
§ 5.52 p.m.
§ LORD CONESFORD
My Lords, this Bill does two quite distinct things: it amends the law of murder and it restricts the penalty for murder. It restricts the penalty by dividing murder into two classes—capital murders, on the one hand, and all other murders, on the other. To these distinct branches of the Bill quite different considerations apply. On the amendments of the law of murder there is a large measure of agreement in every quarter of the House. In general, I believe those amendments will be welcomed and approved, though I would express my strong agreement with the words of my noble and learned friend the Lord Chief Justice that there are certain points which will need careful examination in Committee.
If I may give one example to my noble and learned friend the Lord Chancellor of something that I feel merits careful consideration, though I do not wish to make any dogmatic statement about it, I think there may be some risk that the effect of Clause 1 and Clause 5 (2) will be to increase one public danger—namely, the risk of murder by armed gangs, the gangs being so organised that the lethal weapon is carried and used by a youth too young to suffer the death penalty. He will then escape on the ground of youth, and it seems to me that, under the clauses have cited, all his assistants may escape 1219 by reason of the wording of those clauses. Let me say at once that my reading of the clauses may be wrong, and I do not for one moment suggest that my noble friend the Leader of the House, when he replies, should deal with this point. I thought it might be useful to give advance notice to my noble and learned friend the Lord Chancellor that this point was troubling some of us.
Let me pass now to what is, I think, the main subject of criticism, and certainly of acute controversy—that is the proposal to divide murders into two classes. On that, of course, there is no such agreement as on that first matter of amending the law of murder. Indeed, in my inquiries and experience I have found no one at all, irrespective of his views on capital punishment, who is happy about the Government's proposals as they stand. There are many who believe, as I do, that these proposals are unwise, and, indeed, morally shocking. I fear very much that, as these provisions become better known and understood, they may bring the law itself into disrepute. All this trouble, I believe, arises because Her Majesty's Government are attempting a compromise in a sphere where no compromise is possible. Every Parliamentarian knows that there are certain quantitative questions where compromise is possible and often wise. If it is a matter of a monetary claim, or taxation, or many other things, a compromise may be both good and wise. But compromise is impossible where fundamentally different views are held, and sincerely held, about right and wrong.
Many in this House and in another place, and outside Parliament, sincerely believe that the death penalty is wrong. They clearly cannot accept this Bill as ending the controversy. I do not share their view. I shall not repeat my own views on the matter, which I stated in the debate on July 9 of last year, when I explained why, in my view, the death penalty should be retained. I hope I gave my arguments in a way which was not offensive to those who take the opposite view. But I do not believe that a compromise between those rival views, both sincerely held, is possible, however much we may agree on amending the law of murder. What is wanted is not attempted compromise, but Parliamentary decision.
1220 What does this Bill do in this respect? It prescribes two different punishments for murder. Both in the terms of the Bill itself, and the arguments used in its support, the Government have made it clear that one of those penalties is more severe than the other. In deciding, however, which of the two penalties is to be applied for the same offence, no moral consideration is to be taken into account. I hope that I differ with respect and modesty from the views expressed by the most reverend Primate, but I cannot agree with him that that does not raise a moral question. If there are two quite different penalties which may be imposed for the same offence, one much more severe than the other, I think it is essential that, in choosing which to impose, some moral considerations should be taken into account.
Let me take the case—and it is a case that will be taken outside this House by members of the public—of the killing of a wife. If a man wishes to kill his wife but is a man to whom the fear of death is a real deterrent (and it is the Government's case that such men exist), what does this Bill, when it becomes law, say to him? It will tell him that he must not shoot her or blow her up with explosives. That would constitute a capital crime. A less severe view will, however, be taken if he strangles or stabs her, or uses poison, or sets her on fire. Quite honestly, I do not believe that members of the public will think that a very reasonable provision of the law. As these effects of the Bill become clear, I believe that the public will be astonished that Parliament should have thought fit to enact such preposterous distinctions. That is my main objection to the Bill: that moral considerations should have nothing to do with the choice between two differing penalties for the same crime.
There is, however, a practical objection, too. It was well expressed, I thought, by the noble Viscount, Lord Samuel, in his contribution to the debate last summer. Answering the most reverend Primate the Lord Archbishop of Canterbury, he said this [OFFICIAL REPORT, Vol. 198, col. 806]:The most reverend Primate seemed to think it a wrong thing that there should be any doubt or uncertainty as to whether the murderer should be executed or not, Certainty is an excellent thing, and everyone is always praising it in the application of the criminal law—certainty of detection, certainty of arrest, 1221 certainty of punishment. But I do not know that you need necessarily know in advance precisely what is going to happen to a particular murderer in order to enable him to make up his mind whether he shall commit his murder or not. It may be a wholesome thing to keep the doubt existing in the criminal classes.With great respect, I think that that is common sense.
There is only one thing I would add—and it is on a different point—in reply to a point made by the noble Lord, Lord Silkin, and again, I think, from the Benches behind him by the noble Lord, Lord Chorley. They both said that statistics, as far as they went, showed that in the period during which it would appear the capital sentence was not, in fact, being imposed, there had been a diminution, if there had been any change, in the number of murders. I am certain that, in saying that, the two noble Lords had overlooked what was said on Third Reading by the Under-Secretary of State for the Home Department in another place. He said this [OFFICIAL REPORT. Commons, Vol. 564 (No. 46), col. 565]:The figures for the ton months from February last year, when the honourable Gentleman's Motion was carried or, rather, when the Government's Motion was defeated, and for the twelve months of the year, showed an increase in the number of murders known to the police over any year since 1952.I agree with all noble Lords who have spoken that over such a short period we must not base much on statistics, one way or the other, but, in view of what the noble Lord said, I thought it right to call attention to that statement.
§ LORD SILKIN
In view of what the noble Lord is saying, I think it right to point out that I was talking of the period of sixteen months either way.
§ LORD SILKIN
But I was not placing great reliance on those figures. For what they were worth, taking sixteen months either way from August, 1955, there has, in fact, been a diminution.
§ LORD CONESFORD
I am very grateful to the noble Lord. I agree with him that too much should not be made of these figures, but, that one set of figures having been given, I thought it was appropriate to give the other.
The Noble Viscount, Lord Hailsham, said of another Bill with which we were 1222 dealing recently that the question really was, how one should vote on the curate's egg. That is very much the position, as I see it, about this Bill. In my opinion, it is very much a curate's egg. On this occasion, I gather, there is to be no vote. When the Bill goes to Committee, I think there will be a number of points to be carefully considered but, on the main distinction which it draws between capital murder and others, I believe the Bill to be unsound and irremediable. After giving the provisions of Part II of the Bill the most careful consideration, I cannot believe that they can be intellectually or, morally justified.
§ 6.6 p.m.
My Lords, the noble Lord who has just spoken, with his usual feeling, possesses a strong sense of logic—if I may refer to that thorny subject in the presence of the Lord Chancellor without running the risk of further rebuke. It is just one of these cases, however, where a strong logical sense which may be widely shared in the House leads to a number of different conclusions. As I heard the Lord Chancellor expound this Bill in his usual firm but friendly fashion, I felt that he was well satisfied with it: that he was labouring under the conviction that, after many years of trying to discover some way of distinguishing degrees of murder, going back, I think, to 1794, at last Her Majesty's present advisers had solved the puzzle. I think he experienced some small sense of pride that he had been able to play a not inconspicuous part in cutting the knot which had defeated so many for so long.
I am bound to say that my feelings were slightly different. If I may return to the philosophical field—I am not as much at home there as the Lord Chancellor is—I recall something supposed to have been written by Professor Sedgewick about an essay:It is cleat, nonsense; but is it the right kind of nonsense?It is really that test that I think most of us are trying to apply to this Bill to-day. I realize that some abolitionists, among whom I am an unrepentant member, will be discouraged. They will think that this is the enemy of something better and, to quote an old saying—a Bulgarian saying, I believe—they will feel thatthe lesser saints are the ruin of God.1223 I do not exactly draw that conclusion. I recall the first time I met the late Lord Birkenhead, the very distinguished predecessor of the Lord Chancellor. I recall his being introduced to a leading Oxford economist, who was then tutoring his son. He said to this economist. "And what might be your faculty?" The economist replied, "I teach political economy"; at which Lord Birkenhead proceeded to say, "Political economy? That is nothing but a bastard science. It is neither politics nor is it economy." He added, very indulgently, "I will forgive you your bastard science if you will get my boy through his exams." Again, I approached the Bill in that spirit. It is, of course, if I may use the expression in front of the leading ecclesiasts, a bastard Bill. Turning for a moment to the jargon with which we are becoming familiar, the semi-psychiatric jargon which overtakes us on these occasions, I would say that it was born out of arrested development by a split personality, and one is not necessarily predisposed in its favour. But, at the end of the day, we come back to the test applied by the noble Earl, Lord Haddington—or at any rate the abolitionists among us apply it: does it reduce the number of people executed in our country? There are strong reasons for thinking that it does.
I do not wish to detain the House long, but, before coming to any specific argument that I should like to present, may I make two other points briefly to your Lordships? The noble Lord, Lord Silkin, has made it plain to the House that many of us on this side, and I think in other places, feel that the Government have meted out scurvy treatment to Mr. Silverman's Bill. While we all have a high regard for Mr. Silverman, it is not on personal grounds that we feel so much concerned. I am not, of course, accusing noble Lords opposite of a breach of faith; we know they keep their word as we try to keep ours. But obligations of a general character entered into by the Government can be interpreted generously or ungenerously. To put it mildly, I think the undertakings given in regard to that Bill have so far been very ungenerously interpreted. I hope that the noble Marquess will perhaps say something more in defence of the Government's conduct, because I think 1224 that quite a number of people are surprised at the way that that Bill has recently been treated in another place. There is one aspect, if I am not out of order in mentioning it—namely, that it was talked down with some considerable connivance from the Government. There have been other somewhat unpleasing features of the manner of its treatment, so I hope that the noble Marquess will at any rate feel called upon to defend—he will certainly do it most eloquently—the attitude of the Government to this whole question.
Coming to the Bill itself, I would say that, with other colleagues, broadly speaking. I welcome Parts I and III. But arising out of Part I there is one point of which I have given notice to the noble Marquess. Although it is something of a Committee point, it is quite fundamental, and I think he may be able to tell us something about it this afternoon. Ali of us who have psychiatric friends—that does not necessarily mean that we have spent any considerable period on what is, I think, called "the couch," but there are a number of us who are in touch with modern psychiatry—are well aware that Clause 2 is causing considerable anxiety in that profession and among others who are not technical people. I am speaking now, not as a representative but at any rate as a basic supporter of the abolitionists, and in that capacity I think most of us welcome the introduction of the "diminished responsibility" arrangements. But under this Bill we shall find a number of people, I suppose, convicted of manslaughter on the ground of diminished responsibility, who would otherwise have been convicted of murder. Apparently, those people will be sent to prison.
It has been said in another place that they will be given psychiatric treatment; but anybody at all in touch with our prisons knows that that is easier said or talked about than done, and I think most of us will want to know what is going to be done with these unfortunate people. How are they going to be handled? For some time we have heard about the East Hubert Institution, which is to be something between a prison and a hospital. But what has happened to it? The last word we heard about it was that its construction was being suspended. I beg the noble Marquess—I know I am speaking for a good many more significant people 1225 than myself—if he can, to give us any information about this institution, whether in fact it is being proceeded with or is being left in abeyance.
I turn to the main issue before the House. Undoubtedly the Government were faced with an awkward problem. There were a number of courses open to them. There was the course which would have commended itself to many of us—that of total abolition. I will not stop to argue that, although I may say a few sentences on it at the end. There was the course which was open to them—I am glad they did not follow it—of leaving things exactly where they were. Apparently, they are going to move into some central position. There were, I suppose four courses, or, at any rate, perhaps three courses, one of which had two limbs, if I may use phraseology for which I am indebted to the Lord Chancellor. At any rate, there were several courses open Lo them. One course in some cases, perhaps in all cases, of murder would have been to leave to the jury the discretion whether the capital penalty should be imposed. Another course would have been to leave it to the Judge. Another course would have been to give the Home Secretary a wider discretion. I think that that was the course commended by Lord Samuel last summer, but I gather that to-day he has begun to feel that there are quite strong objections to that course.
Failing all those courses, they had to fall back (I am not surprised that they should, because it is really the only remaining course) on the idea of distinguishing degrees of murder. On that question, I do not want to try to lay down any general propositions that have not been laid down already. We know that the noble Marquess, Lord Salisbury, spoke very sharply about the Bill which the Labour Government introduced in 1948. I will not read the passage most often quoted, because it has been quoted by Lord Silkin already, except to remind the House that the noble Marquess said:I consider that nothing can conceivably be based either upon justice, reason or common sense in the present proposals.That is what he said in 1948. The noble Marquess is so expert a debater that it is almost a pleasure to see his ball in the bunker. I know that he will use his club and somehow chip it out: but I think he may need more than what is 1226 called a number 8—he will need a blaster to get out of this one. But, having got out of it, I only hope that he will not claim that he has placed his ball on the green, because I do not feel that that would be possible, even for him.
I would emphasise that while there are differences between the Bill which we introduced in 1948 and the present one, I do not think that they affect the noble Marquess's argument fundamentally. I should be greatly intrigued to see if he can distinguish in principle between that Bill and this one. There are differences—I am not trying to pretend that there are not one or two differences. But when we look the Report of the Royal Commission on Capital Punishment, it is worth noticing that in paragraph 493 they inform us that in their viewThe basis on which the clause— that relates to the amended Bill that was brought forward by the Labour Government—was drafted was that the penalty for murder should ordinarily he penal servitude for life. but the penalty of death should be retained for certain types of murder which were the main causes of nubile anxiety and in which the deterrent effect of punishment was likely to be more powerful than in other cases.So the basic principle which was attributed to the Labour Bill in 1948 seems to me almost identical with the basic principle or principles which are attributed to the present Bill. There was, it is true, a reference in our Bill to express malice. I do not know whether the noble Marquess wishes to rest his argument on that. But the basic principle of the 1948 Bill as expounded by the Royal Commission is the basic principle of the Bill before the House to-day. So I wonder how the noble Marquess has managed mitigate the contempt that he felt for cur Bill in favour of the Bill which no doubt he is going to advocate so fervently in a moment.
There is a slightly wider point than that. It is not that this Bill is a lame or uningenious method of tackling the problem, I am inclined to think that, by and large, it is as good an effort as can be made. I am not saying that it is not. It is not very different from our effort, and I am ready to agree that perhaps it is about as good as most people could arrive, at. But do any of us believe that it is possible to arrive at any satisfactory distinction between degrees of 1227 murder? The noble Marquess did not appear to believe that it was possible to draw a distinction when he spoke in 1948. On July 20, 1948, he said:The Government have tried to do this by attempting to define what in fact cannot be defined, and as a result they have created a great many more anomalies than they have cured.I hope the noble Marquess will agree that, at any rate in 1948, he thought that it was impossible to draw distinctions of this character, and that to attempt to do so was to attempt to define the indefinable. If I am misrepresenting the noble Marquess, or if he has since changed his view. I have no doubt that he will be the first to tell us so.
In the light of that, I am sure it will be no surprise to noble Lords if I refer once more to the finding of the Royal Commission (I need not quote it, for it has been before the House several times to-day), that it is impossible to draw a satisfactory distinction between degrees of murder. That is the general position which is bound to confront us when we are discussing a Bill which does try to distinguish between degrees of murder. As regards this particular Bill, I will not labour the points which have been made earlier, though I hope that we shall have a chance of returning to some of them at the Committee stage. The anomalies are of two kinds. On the one hand, there will be some injustice, if you like, between murderers. Someone who commits a murder with a gun will be executed, while someone who in the moral sense does exactly the same with a knife will not be executed, so that there will be an element of injustice there. That is one aspect which may well shock the public.
It seems to me that it is also very doubtful whether it can be claimed that, in so far as hanging is a deterrent at all, it operates with special force in special cases. There is certainly no accepted evidence on that matter. Some people, some of them of great experience, have a kind of "hunch" that some murderers of a certain type are more likely to be deterred than others; but there is no real evidence about that, and in practice I believe that anyone who accepts the retentionists' case will feel that Her Majesty's Government have abandoned the protection of society in an illegitimate fashion. I am not at all surprised that 1228 someone like the last speaker has reached that conclusion. If one really believes that the death penalty is a unique deterrent, then it is surprising that Her Majesty's Government should draw the conclusion that it is a deterrent only in certain cases; and it follows from that that noble Lords opposite who believe in capital punishment as a unique deterrent will feel that certain people are being abandoned to the murderer. However, that is a point with which I am not personally concerned to-night because I do not believe that capital punishment is a unique deterrent.
I therefore conclude, with other noble Lords, that this Bill is full of anomalies and inconsistencies, as any such Bill is bound to be. I do not say that that necessarily proves it is wrong. I think it is often the case that as soon as one begins any discussion of punishment (and here I share the view of the most reverend Primate) one is brought up against anomalies, because in trying to punish somebody one is trying to do a number of things and one arrives at a very illogical result in consequence. I believe that the anomalies are glaring and will do something to bring the law into disrepute. Those are factors that must be set on one side. Those of us who believe in abolition are grateful, with the noble Earl, Lord Haddington, for the Bill, because it has relieved our consciences by reducing the number of killings. And on that note, with just two or three more sentences, I should like to end.
The most reverend Primate, who I am afraid is not with us at the moment, and whom I am therefore nervous of misrepresenting, certainly said something to the effect that moral principle was not involved. I hesitate to say exactly what he said until I have read Hansard, but he gave me the impression, and I believe other noble Lords misunderstood him to say, that this was not a case of moral principle one way or the other. I think I understand what he had in mind. My view is that unnecessary killing must be morally wrong, and the question then becomes whether we regard killing as unnecessary and whether we regard State executions as unnecessary killings. We abolitionists are convinced that one does not save any human life, on balance (though that is not the same as saying that no one has ever been deterred by 1229 executions), and that a continuance of hanging is a continuance of unnecessary killings and, therefore, fundamentally evil.
We abolitionists were asked to restrain our exertions, at any rate for a little while, which reminded me of the famous letter written to the noble Earl, Lord Attlee, who is not at the moment with us, which was quoted in the life of an eminent professor and which concluded:A period of silence on your part will be welcome:I believe that was the hint conveyed by the most reverend Primate the Lord Archbishop of Canterbury. We are always most anxious to be deferential to his lightest wish, but I am afraid that we cannot concur; for as long as this great evil of unnecessary killing, capital punishment, remains on the Statute Book, so long must we strive by constitutional means to remove it. In the meantime, we consider that this Bill represents a small step forward, and. therefore I, at least, and I believe all who think like me, have no intention whatever of blocking a Second Reading of the Bill.
§ 6.27 p.m.
THE LORD BISHOP OF CHICHESTER
My Lords, before the noble Marquess replies, may I add a word of comment on what has been said by the noble Lord who has just sat down about the most reverend Primate the Lord Archbishop of Canterbury, as his co-Primate was not present when he spoke? The most reverend Primate, whom I heard throughout, was, I think, most anxious to express the view that it was a question of wisdom or expediency which was before us; and he maintained that his co-Primate was in agreement with him that a moral principle was not in the particular matter raised. The most reverend Primate's co-Primate is in a difficult position, because he did not hear the exact words of the Archbishop of Canterbury; and I do not find myself in complete agreement with my Metropolitan because I do think that moral principles are involved, one being the sacredness of human life. Though of different mood and mind to the noble Lord, Lord Conesford, I agree with him that the present Bill, in its essentials, is morally shocking.
THE LORD ARCHBISHOP OF YORK
My Lords, may I just say that I agree 1230 also with the conclusion of the noble Lord, Lord Conesford, on that point?
§ 6.28 p.m.
§ THE MARQUESS OF SALISBURY
My Lords, I must confess that it is with a feeling of great diffidence that I rise to reply to this debate. For, as we all know, the subject is not only one of extreme importance but also a very technical one: and I am not a lawyer, as are so many noble Lords who have spoken, and can give only a layman's view. We have, however, already heard from my noble and learned friend the Lord Chancellor a full account of the Bill. He dealt with it clause by clause, and explained both the effect of the various provisions and why Her Majesty's Government have included them in this measure. On all these matters he speaks with far more authority than I can. I have risen mainly to remind your Lordships of the main purpose which has actuated Her Majesty's Government in bringing forward legislation on this subject.
Some noble Lords have this afternoon entered again, at any rate by implication, into time great broad questions of whether or not capital punishment is desirable. I should be the last to come plain of Mat, but I hope they will understand if do not follow them on such fundamental grounds. The matter was fully debated on the last occasion on which we discussed this question, and do not think we shall get any further, or convince each other, by re-traversing the same ground to-day. Nor it is necessary to recall at any length what happened last year As has been said by more than one speaker, we all remember how a Bill to abolish the death penalty was introduced by a private Member in another place, how it passed through that House and how, when it reached your Lordships' House, after one of the most impressive debates that any of us here can remember, in which leading members of the Church, the laity and the legal profession took part, it was ultimately rejected on the Second Reading.
There was, I think, a tendency at that time in some quarters to represent that vote as merely a dispute between the two Houses of Parliament, such as we have experienced before, and that view, I suspect, may still he in the minds of certain noble Lords who have spoken to-day. Indeed, I think it was really voiced, 1231 if I may say so, by the noble Lord, Lord Silkin, in the speech with which he opened the debate on behalf of the Opposition. But I believe that that view, if I may say so, with all deference, is a very superficial one. As I see it, two things emerged from the discussions, inside and outside Parliament, which resulted from the Silverman Bill. The first, as I believe I said in the other debate (and I think my words were quoted by the most reverend Primate to-day), is that there existed throughout the country, and I think in all sections of society, a deep cleavage of view between those who believed conscientiously that capital punishment should be abolished, and those who believed conscientiously that capital punishment should be retained.
That situation, of course, placed the Government constitutionally in a position of very great difficulty. To attempt to retain capital punishment in exactly the present form, would have been to ignore completely the views of the very large body of conscientious abolitionists. On the other hand, merely to do nothing, and to allow the Bill to become the law and capital punishment to be entirely abolished, by the operation of the Parliament Act, would have been equally to ignore the views of the very large proportion of people who favoured retention. How was a responsible Government to bridge that wide gulf? As I see it, a way emerged—and I think your Lordships can take some credit for this—as the result of the debate to which we listened on the Second Reading of the Silverman Bill last year.
The vote at the end of the debate, as we all know, showed a considerable majority in favour of the retention of the death penalty. But equally, I should be the first to agree that there were a number of extremely impressive speeches—I would only mention those of the most reverend Primate, the noble Viscount, Lord Samuel, and Lord Keith of Avonholm—which showed clearly that there was a very important and extensive element of middle-of-the-road opinion which, while favouring retention, believed that the law relating to murder needed alteration and modification to bring it in harmony with modern opinion. That view was apparently, to judge from his speech, almost unintelligible to the noble Lord, Lord Silkin, But, believe me, it 1232 was very intelligible to those noble Lords to whom I have referred and, I think, to the House as a whole, as well as, I think, to a very wide body of public opinion 'outside. That, I believe to have been confirmed by a Gallup Poll in the News Chronicle, the result of which was published on November 15 last year. This poll showed that while 25 per cent. of those voting were in favour of keeping the law as it is, and only 13 per cent. of the total voters were in favour of complete abolition, 57 per cent. thought hanging should be kept for certain cases.
The view which was expressed in your Lordships' House by the most reverend Primate and a good many other noble Lords, and which I submit has since been confirmed from other sources, is, I believe, justification for the present Bill, which, while retaining capital punishment, seeks to take account of the proposals put forward in our own debate and outside for modifying the law relating to murder. That is why, if I may say so, the Government decided not to give further facilities for the Silverman Bill. The noble Lord, Lord Silkin, and the noble Lord, Lord Pakenham, and others, have suggested—and no doubt they feel—that the Government were guilty of grave constitutional impropriety in the course they adopted. But I have made inquiries on this question, and there does not appear to be any basis at all, either in law or in constitutional practices for this contention.
It has not, so far as I have been able to discover, been seriously suggested in any quarter that it would be right for the House of Commons to insist on any and every occasion that its will must prevail over that of your Lordships' House. Mr. Herbert Morrison said during the debate on the Second Reading of the Parliament Bill of 1949, apropos of the fact that the Labour Government did not seek to pass the compromise provision of the Criminal Justice Bill (as it was then) under the Parliament Act:Governments are not going to rush into the Parliament Act every time there is disagreement between the two Houses. It depends on the nature and the importance of the issue.The object, in fact, of the Parliament Act, as I see it (I hope that your Lordships will forgive my dealing with this rather fully but I think it is rather important), is to ensure that when the Government introduce measures for 1233 which they believe themselves to have a mandate, and for which support of the House of Commons is forthcoming, they can secure that these measures are passed into law, subject only to the delaying power of the House of Lords. It would be inappropriate, I submit, that this instrument for ensuring that the will of the elected Chamber prevails over that of the Second Chamber should be invoked whenever a private Member succeeds in passing a Bill through the House of Commons, irrespective of the views of the country or of the Government: and it would be particularly inappropriate in a case such as the present one, where a Bill has been passed against the advice of the Government and is believed to be—at any rate, we believe it to be—contrary to the wishes of the electorate.
The noble Viscount, Lord Samuel, speaking as a member of the Cabinet which passed the Parliament Act in 1911—it was a very long time ago—made the following, I think, very relevant comment during the Second Reading debate on the Death Penalty (Abolition) Bill [OFFICIAL REPORT, Vol. 198, Col. 804]:The Bill we are now discussing has gone through another place without being in any way authorised—and no one claims that it is authorised—by the mandate of the people. At the last General Election it was never heard of. Moreover, it was passed by a vote in another place, not on the responsibility of the Government of the day but by the votes of Members as individuals; and as has already been mentioned in this debate, several of them have not only asserted but taken pride in the fact that they have voted for the Bill, although they knew that a majority of their own constituents were against it. That being so, surely it is the duty of the Second Chamber to give a further opportunity to the people to consider what their views should be.That is what the noble Viscount, Lord Samuel, with all his great experience and authority, said.
There is, I believe, an interesting parallel with the present situation in the history of the Representation of the People Bill, 1920, which was a Private Member's Bill designed to give women the vote on the same terms as men. A similar Bill had previously been passed through the House of Commons and rejected by the House of Lords. The 1920 Bill was given a Second Reading, but in Standing Committee a Motion was carried to adjourn the Committee, on the ground that the Bill had no chance of passing into law. The Leader of the 1234 House was asked whether the Government were prepared to take whatever action was necessary to maintain the rights of private Members whose Bills had received a Second Reading. Mr. Bonar Law said:As it seems to me the rights of Private Members ate limited to the time that is given to Private Members. The Government is not under an obligation to find any facilities.And he later declined to give any pledge that the Government would find time to deal with the subject matter of the Bill in the current Session. There is no reference, on this particular issue which I have been describing, either in the original Question or in the supplementaries, to the Parliament Act; but if there had at that time been any belief that the Government had a duty to enable a Private Member's Bill to pass through the House of Commons in order to take advantage of the Act, the point would, feel certain, have been made at the time. I do not believe that there was, or is, any such obligation. Indeed, I would go further and say that, in my view, and I believe in the Government's view, too, in a case of this kind the obligation of the Government to the country as a whole overrides other obligations. That is the obligation which the Government have tried to carry out.
And now I should like to return to the Bill itself. As your Lordships know, it makes extensive and massive changes in the law related to murder. First, it excludes murder committed under the stress of acute emotional excitement, when a man may be regarded as not wholly responsible for his actions. That would be my answer with regard to the very painful cases mentioned by the noble Viscount, Lord Samuel, in his speech this afternoon. Secondly, it abolishes the doctrine of constructive malice, which means, among other things, that no one would be regarded as guilty of murder unless he intended to kill or cause serious injury. Thirdly, it introduces the defence of diminished responsibility which, as the noble and learned Lord, Lord Keith of Avonholm, mentioned in the debate last year, has long applied in Scotland. Fourthly, it enables provocation by words only to be given their full weight by the jury in deciding whether art accused person is guilty of murder or manslaughter. And lastly, it excludes murder done as part of suicide pacts.
1235 In addition, apart from the five categories of exclusion which I have mentioned, I am afraid extremely briefly, the Bill retains capital punishment in cases where the accused person is guilty of more than one murder on separate occasions. Moreover, no one is to be liable to be hanged under the provisions of Clause 5 unless he has himself taken an active part in the attack which resulted in the killing. And finally, there is provision to remove those grim concomitants of capital punishment which have been widely held to stimulate an unhealthy excitement in certain sections of the population.
I know that there are noble Lords who have said this afternoon that the amendments in this respect have not gone far enough. Of course, that is a matter of opinion. But the fact is undeniable that a great change has been made, a change which I think the whole House will believe to be in the right direction. These are the main provisions of a Bill which greatly reduces the scope of capital punishment and, as your Lordships know, confines it to cases where a murder strikes directly at the maintenance of law and order and where the death penalty is most likely to act as a deterrent—that is, murder in the course of the furtherance of theft, murder by shooting or causing an explosion, murder in resisting arrest, murder of a police officer and murder of a prison warder by a prisoner. I think it is clear from the speech of the noble and learned Lord, Lord Morton of Henryton, who spoke this afternoon with great experience and authority, that these provisions of Clause 5 are likely to be a strong protection to householders and a real deterrent to the particular class of criminal with whom they are intended to deal.
I do not pretena that this Bill is perfect; and I do not suppose for a moment that it will satisfy everyone. On the one side, it will not satisfy those, like the noble Viscount, Lord Templewood, the noble Lord, Lord Pakenham, and others, who want complete abolition. Clearly, it does not give satisfaction to them. And on the other side, no doubt there will be some who feel that it goes almost too far in the abolitionist direction. To take one example, there are those—and I think this has been mentioned this afternoon—who feel that the Bill should have 1236 included among the crimes that invite capital sentence murders that are premeditated and murders done by poison. No doubt there are some crimes that come within these two categories which are the wickedest and most cold-blooded of all. But, equally, there are others which come within the two categories—what are called "mercy killings". I am not going to pretend that they are less than murder, but they are surely not so heinous as the others.
For example, a man may poison his mother because he wants her insurance money or he may poison his mother because she is slowly dying in great agony of cancer. The most reverend Primate said in his speech this afternoon that in his view—and, of course, his view must command our deep respect—both these cases are morally on the same level. For in both cases technically the convicted man has committed premeditated murder and in both cases he is a poisoner. But does that really mean that there is no difference between the two crimes? I cannot believe that they are morally quite on a level; and I suggest that the proof of this is that, even under the law as it stands to-day, a man in my first category may well be hanged, but the man in the second case would almost certainly be reprieved. And if the mercy killer is going to be reprieved, what possible justification can there be in making him go through the horror of being condemned to death? Yet that is what may well happen under the existing law. For, as it stands, it is impossible to make one of these two cases a capital charge and the other not. That is why, after the most careful and anxious thought, the Government decided to exclude premeditation and poisoning from the list of crimes inviting capital punishment, and I believe that a great deal of responsible opinion in the country will support us.
There are a number of other questions that have been raised in the debate about which I ought to say something. I have said something about provocation and I think I ought to say something about a few sentences which dropped from the noble Lord, Lord Silkin, in his speech. He said, if I did not misunderstand him, that he would not favour taking provocation into account; for he could not imagine that any normal man would commit a murder on any provocation, however strong. I simply do not agree with 1237 him: that is all I can say. I can well imagine provocation so strong that even a normal man might be driven beyond all endurance. Under the Bill the question of how far a man was provoked is a matter for the jury to decide, and I believe that that is a humane and just provision.
§ LORD SILKIN
My Lords, so do but I think that the noble Marquess misunderstood me. What I was criticising was not the fact that the Bill contains a provision for provocation but that the test in the Bill was that of a reasonable man. In my view, the test should be of what a person in the circumstances of the accused would be expected to do. It is only provocation in the circumstances of the case that should be put to the jury.
§ THE MARQUESS OF SALISBURY
I think we can deal only with the man who is normal in coming to this decision. Personally I think that "normal" is a better word than "reasonable" for most of us, but that is the yardstick, I should have thought, for the operation of the law.
Another important point, raised by the noble Lord, Lord Pakenham, arises out of the proposals with regard to diminished responsibility. He has suggested, if I understood him aright, that persons who establish the defence of diminished responsibility under Clause 2 of the Bill ought to be given an indeterminate sentence and sent to some kind of mental institution rather than to prison. I understand that the question of the appropriate sentence was very carefully considered while the Bill was being drafted, and it was thought right that a successful defence of diminished responsibility should lead to a verdict of manslaughter, since the intent was to some extent negatived, and that the court should have discretion to impose either an indeterminate sentence (that is, life imprisonment) or a fixed term of imprisonment according to the view the judge took on the medical and other evidence in the case. In Scotland I believe the verdict is culpable homicide, which is equivalent of manslaughter.
Given the verdict is to be manslaughter, there is, I understand, practical difficulty in providing for treatment of persons suffering from diminished responsibility, since where a person advances diminished responsibility and provocation, and the 1238 jury return a verdict of guilty of manslaughter, it will not be possible to say whether the defence of diminished responsibility has been accepted or whether the verdict was not due, at least in part, to the element of provocation. What the Bill provides is that the court shall, on conviction, have power to send the convicted person to prison for life or for a fixed term, or to take any other course, such as probation, binding over, or discharge. A probation order with a condition of residing in a mental hospital or attendance as an out-patient might he appropriate in some cases.
Where the convicted person is sent to prison and is found to be, or later becomes, certifiably insane, he will, I understand, be removed to Broadmoor or a local mental hospital where he can receive the necessary care and treatment. If he is certifiable as a mental defective he can be sent to an appropriate institution. If he is not certifiable he can receive any necessary treatment from the prison medical service. I would add that the cases of persons sentenced to long terms of imprisonment after pleading diminished responsibility will be reviewed at regular intervals like those of other long-term prisoners, and if such a person appeared to have recovered his mental health before the expiration of a fixed sentence, consideration would no doubt be given, in consultation with the judge. to recommending the remission of part of his sentence.
If it was the suggestion of the noble Lord, Lord Pakenham, that cases will occur in which a prisoner who is given a fixed term of imprisonment is still dangerously abnormal at the end of that term. although not certifiable—and I think that is really what he had in mind—and that it is wrong that such persons should be released among the public, I would reply that I agree that some element of risk is inherent in the decision to give the courts discretion as to sentence and not to compel them to pass an indeterminate sentence in all cases, as to which I have already explained the difficulties. I would freely admit to the noble Lord and the House that the problem he has raised is a very difficult and complicated one, and I think I can assure him that the Government will look at it again before the Committee stage, of course, without giving any commitment about it.
I am most grateful to the noble Marquess for what he has said. I should like to study his words carefully before offering any comment. I asked him whether he could tell us anything about the progress of the East-Hubert Institution. Perhaps he has not had sufficient notice. I do not know whether he can say anything about that Institution.
§ THE MARQUESS OF SALISBURY
I think I could say something about it. I was anxious not to keep the House too long. On that particular point I would say selected cases might be sent to the East-Hubert Institution. This Institution is being built for the care, study and treatment of groups of carefully selected prisoners. The largest class of cases will be those needing full investigation and treatment by psychiatric methods, but there will also be prisoners with difficult personalities who might respond to a régime in which the emphasis is medical and psychiatric. I should take care not to give the impression to the noble Lord that all those cases of diminished responsibility will be sent to the East-Hubert Institution, but no doubt there are selected cases which might go there in suitable circumstances. Authority has already been obtained to build the Institution, but it has not yet been possible to start the actual building. That is all the information I can give to the noble Lord to-day. I am sorry I did not give it originally, but I felt perhaps the House would require certain limitations on what I had to say this evening.
One or two points were made by the noble Lord, Lord Chorley. He asked, first, whether abolition of constructive malice applied equally to the person who aided and abetted a killing. The answer is, Yes. Moreover, even where, on the ordinary principles of the criminal law, the airier and abettor is in future guilty of murder, he will not be liable to the death penalty unless he took an active part in the attack which resulted in the killing. Secondly, Lord Chorley asked whether Clause 2, which refers to the defence of diminished responsibility, supersedes the M'Naghten Rules and the defence of insanity which those Rules govern. The answer is No, though it is obvious that the defence of insanity will be raised less often in future. If the defence of diminished responsibility were 1240 raised, and the medical evidence led by the defence established insanity in the full M'Naghten sense, it would be open to the jury, under the direction of the judge to return a verdict of guilty but insane, which would result in indefinite detention in Broadmoor.
There is one other point about which I feel I should certainly say something, though it comes into a slightly different class from the points which I have mentioned up to now. The noble and learned Lord, the Lord Chief Justice, has drawn attention to decisions reached with regard to convicted murderers within recent months, and he has asked what the policy of Her Majesty's Government has been with regard to this during the period in question and what is to be their policy for the future. I have made inquiries and I am able to make the following statement. Only the Home Secretary can say all the matters that he took into consideration when he considered the question of pardon in any particular case. If he took into account the possibility or probability of changes in the law, and the effect on public opinion and public confidence in the administration of justice of an execution of the death penalty, he was entitled to do so. So far as the future is concerned, there is no doubt at all that, once this Bill has become an Act, no difficulty of the sort envisaged by the noble and learned Lord can arise; and that is the determination of the Government.
One or two other points have been raised in the debate, and I would assure noble Lords, even if I have not answered all their points, that, they will all be taken into account. In this connection, I think I ought to make it clear, in answer to the noble Lord, Lord Silkin, that the Government have given no undertaking that the Bill will not be amended in your Lordships' House. Naturally, having put forward what seems to us to be a reasonable and sensible solution of the problem, the Government hope that your Lordships will accept it and will not wish to make drastic Amendments. But any Amendments that may be proposed will be considered on their merits, and the Government's hands are free to accept any Amendment which they consider, in the light of the views expressed during the debate in this House, to be an improvement on the Bill. I want to make that quite clear, in view of a number of 1241 questions put by the noble Earl, Lord Haddington, and others during this debate.
Such, my Lords, is the Bill which the Government submit to your Lordships' consideration. The noble Lord, Lord Pakenham, twitted me with some words I used in 1948, but I do not really feel, if I may say so, guilty of any great illogicality in supporting this Bill. If I remember right—and it is quite a long time ago—the late Labour Government, faced with action on the part of your Lordships in throwing out a provision in the Criminal Justice Bill to abolish capital punishment, sent hack to this House an amended proposal which created, in our view, more anomalies within the existing categories of murder, than it cured. We thought ii (and having looked at it again, I still think so) rather a silly proposal, if I may say so. That is what I was attacking. I thought the compromise was a bad one and an impracticable one. I have it here. To give an example, it sought to distinguish between motives for poisoning. The first part of the clause said that:no person shall be sentenced by a court to death for murder unless it is charged in the indictment or inquisition and found by the jury that the murder was committed with express malice as defined by this section.…And the clause went on, in paragraph (c), to refer to:murder committed by means of, and in the course of the systematic administration of, poison…That is just the thing we did not think possible, and we do not think it is possible now. That is why we have excluded poisoning from the Bill. I am not complaining that the noble Lord, Lord 1242 Pakenham, raised this matter, but if he thinks I have moved at all, he should be grateful and not critical.
In conclusion, my Lords, I would say this. We do not claim that this is a perfect Bill, but we do claim that it is a sincere attempt, while retaining capital punishment, to mitigate the rigours of its application, and to limit it to those cases in which it is most likely to act as a deterrent and make it most in the interests of the community that it should continue. The noble Lord, Lord Moynihan, said that he thought the Bill was a step in the right direction towards abolition. I do not know about that; time alone will show. But it is not, as the noble Viscount, Lord Templewood, suggested, just device to get the Government out of an awkward jam. That, if I may say so, with all deference, I thought rather an unworthy comment on his part. On the contrary, it does, in our view, represent a via media which I believe will be acceptable to the great majority of the British people; and it is in that spirit that I recommend the Bill to your Lordships this afternoon.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.