Lords Sitting of 7 March 1957

Preamble
The House met at two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers

TRADE WITH CHINA
2.5 p.m.
VISCOUNT ELIBANK: My Lords, I beg to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will state for which types of electric machinery, apparatus and appliances they have, during the period of the China embargo, (1) issued and (2) declined to issue export licences under the exceptions procedure.]
THE PARLIAMENTARY SECRETARY, MINISTRY OF DEFENCE (LORD MANCROFT): My Lords, I will, with the permission of the noble Viscount and the House, circulate in the OFFICIAL REPORT a list of those embargoed types of electrical machinery, apparatus and appliances within which export licences for China have been issued for particular consignments since 14th May, 1956. The only such goods for which export licences have been refused for China since that date have been certain electrical generators. Your Lordships will recall that 14th May, 1956, was the date on which Her Majesty's Government announced their intention to make more use of the exceptions procedure to permit exports of embargoed goods to go to China in suitable cases. I regret that licensing information for the period before that date cannot be made available without a disproportionate expenditure of time and labour.
VISCOUNT ELIBANK: My Lords, I thank the noble Lord for his reply.
Following is the list referred to by Lord Mancroft:

Small generating sets and generators,

Electric motors,

Circuit breakers,

Transformers,

Voltage regulators,

Switchgear,

Battery charging sets,

Meters,

Fuses,

Welding equipment,

Small electric furnaces,

Portable power tools.

VISCOUNT ELIBANK: My Lords, I beg to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will state the limitations to which they have regard when considering applications for export licences for China under the exceptions procedure.]
LORD MANCROFT: My Lords, there are, broadly, two limitations which govern the use of the exceptions procedure to permit embargoed goods to be exported to China. In the first place, the procedure is not normally applicable to goods which figure on the Soviet bloc lists or to goods which were on those lists before their revision in 1954. Secondly, as I informed the noble Viscount on August 1 last, we must satisfy ourselves, so far as we can, that the goods to be exported are to be used for civilian and not military purposes. The same limitations are, of course, observed by all the other members of the Paris Consultative Group.
VISCOUNT ELIBANK: My Lords, I beg to thank the noble Lord for his reply, and should like to ask him this further question. Seeing that there is nothing in the original United Nations resolution of May, 1951, which says that Britain may not unilaterally, without referring to the views of Washington or any other Government, lift goods from the China embargo, will Her Majesty's Government pay special regard to that fact when operating the exceptions procedure?
LORD MANCROFT: My Lords, we will look at that point, but I am sure the noble Viscount appreciates that this is a matter on which we must proceed by consultation and agreement with our friends and Allies. There are forty-four other nations who operate the same terms as we do ourselves. They know our views, and I suspect that by now they also know the views of the noble Viscount; but I am afraid they do not all share them.
VISCOUNT ELIBANK: My Lords, I should like to ask the noble Lord whether he will put this point to our Allies.
LORD MANCROFT: My Lords, if the noble Viscount wishes me to do so, I will, but I think I could tell him now what the answer will be.

CORPORATION DUTY
VISCOUNT GOSCHEN: My Lords, on behalf of my noble friend Lord Rockley, I beg to ask the Question which stands in his name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government:—

(a) What was the cost of collecting corporation duty for the financial years 1953–54, 1954–55, 1955–56;

(b) Whether in view of the small yield of this tax it should now be abolished;

(c) Whether Tax Reserve Certificates can be purchased to pay this tax and if not why not.]

THE MINISTER WITHOUT PORTFOLIO (THE EARL OF MUNSTER): My Lords, in the absence of my noble friend Lord Hailsham, I have been asked to reply to this Question. The estimated cost of collecting corporation duty for the years 1953–54, 1954–55 and 1955–56 was £4,700, £5,300 and £5,600, respectively. As regards paragraph (b) in my noble friend's Question, I feel sure he will not expect me to anticipate the Budget statement to be made by my right honourable friend in another place. With regard to paragraph (c), the answer is "No"; but my right honourable friend would give sympathetic consideration to the extension of Tax Reserve Certificates to cover corporation duty if he received evidence of any appreciable demand for such a change.
VISCOUNT GOSCHEN: My Lords, I thank the noble Earl for that answer, and I should like to ask two supplementary questions. First, who has to pay the tax? Secondly, is it not a fact that there is a department at Worthing which has to collect the tax? If that is so, has this department any other function?
THE EARL OF MUNSTER: My Lords, the corporation duty which is payable to-day is imposed by Section 11 of the Customs and Inland Revenue Act, 1885, at the rate of 5 per cent. upon the net annual value of income or profits accrued in respect of real or personal property of certain bodies corporate and un-incorporate. There were exemptions which were later amended by the Act of 1936, but I think that, roughly speaking,
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the revenue can be said to have been derived from such organisations as the City Livery Companies, professional bodies and clubs of all kinds, including political and social clubs. I regret that I have no answer to the second supplementary question which the noble Viscount has addressed to me.
LORD SALTOUN: My Lords, may I ask if the noble Earl has information as to the yield of tax last year? The answer to that would not be revealing any Budget secrets.
THE EARL OF MUNSTER: My Lords, I can give the noble Lord the yields for the years in question. In the year 1953–54 the sum was £108,000; in 1954–55, £126,000; and for the year 1955–56, £121,000.
LORD SALTOUN: My Lords, I am obliged to the noble Earl.
VISCOUNT GOSCHEN: My Lords, I should like to thank the noble Earl for his answers. Perhaps he will let my noble friend Lord Rockley know the answer to the second supplementary question that I asked.
THE EARL OF MUNSTER: Certainly.

HOMICIDE BULL
2.12 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD TERRINGTON in the Chair.]
Clause 1 agreed to.
Clause 2:
Persons suffering from diminished responsibility
2.—(1) Where a person kills or is a party to the killing of another, he shall not he convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes on induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.
LORD CHORLEY LORD CHORLEY had given notice of two Amendments in subsection (1), the first being after "inherent" to insert "environmental", and the second, after "disease," to insert "or disorder of the mind". The noble Lord said: In rising to move this Amendment, I should like to refer with appreciation to the assurance given to us on Second Reading by the noble Marquess who leads the House, that Amendments to this Bill would be considered on their merits, and that the Government were in no sense, so to speak, pledged to the procedure which was followed in another place, when I think no Amendments at all were accepted. This assurance has put in good heart, up to a point at any rate, those of us who feel that there are some very important weaknesses in the Bill, and that in certain respects it is quite essential, from the point of view of the safety of the public, and from the point of view of the very principles on which the Government claim they have framed this Bill, they should be put right.
From that point of view, the first of these Amendments, which I move now, is perhaps the most important of them all. Your Lordships are aware that if, under the present law, a murderer has his sentence respited, he is then detained during Her Majesty's pleasure; and if he is, on the whole, mentally normal, and after not a very long period satisfies the expert doctors who look after these prisoners that he is no longer in any way a danger to the public, he may be released. There have been many cases in which such men have become good citizens and have expiated their earlier crimes. But if the sentence is reduced to manslaughter as a result of this doctrine of diminished responsibility, it may be that a man who, in a sense, escapes as a result of the application of this doctrine will be released long before he is medically psychologically fit to be released.
THE LORD CHANCELLOR (VISCOUNT KILMUIR): It seems to me, from the exordium to his argument, that the noble Lord is dealing with Amendment No. 2. Amendment No. 1 in the Marshalled List is the addition of the words," or environmental."
LORD CHORLEY: I am sorry. I am using a Marshalled List which I obtained yesterday from the Printed Paper Office, and on which I made my notes.
THE DEPUTY-CHAIRMAN OF COMMITTEES: I am afraid that I also have the wrong copy. Amendment No. 1 is "page 1, line 22, after 'inherent' insert 'or environmental.'"
LORD CHORLEY: I seem to be in good company. I am sure that, in those circumstances, your Lordships will forgive me. This Amendment is another medical Amendment, in the sense that, as the clause is at present drafted, the only matter which I think the jury are entitled to take into account is arrested or retarded development of the mind or any inherent cause. Those are all matters of the same kind—matters affecting the man as he is born, so to speak.
THE LORD CHANCELLOR: May I interrupt the noble Lord again? I am sorry to be a nuisance, but perhaps it would be convenient if he dealt with the first two Amendments together, as they raise similar facets of the same clause—that is, the addition of the words "disorder of the mind". I think that would be for the convenience of the Committee.
LORD CHORLEY: I am grateful to the noble and learned Viscount. That would certainly suit my case. The psychological doctors who are interested in this matter are equally interested in both of them, and I have no doubt that others of your Lordships have had these matters in mind or had them brought to your attention.
The first of these problems arises from the fact that the draftsman of the Bill seems to have looked at the matter entirely from the point of view of the man's heredity, and that is very important. The noble and learned Viscount, who has had so much more experience of the working of the criminal courts than I have—as I know, having heard him in the old days on circuit—has frequently, both in defending and prosecuting, had to go into the question of heredity, which undoubtedly is very important; and nobody would question the correctness of inserting it in this clause. But the same type of diminished responsibility may be produced by

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external causes and environmental causes—the way the man has been brought up, particularly his family surroundings as a child. From the point of view of modern psychological medicine, I do not think there can be any doubt that it is found that this type of irresponsible offender is often produced just as frequently, or at any rate in a substantial number of cases, by environment as by the genes, the hereditary outfit with which he starts his life. Therefore, this clause has from the start given considerable cause for thought to the medical world, and particularly to the psychological medical world. I think I am right in saying that opinion is pretty well unanimous that there should be an Amendment here in order to widen the type of case in which the jury will be entitled to find diminished responsibility.
The other Amendment which suggests that the words "or disorder of the mind" should be inserted after "disease," is based on exactly the same sort of argument. This type of mental weakness may be induced, and no doubt in most cases is induced, by actual disease of the mind—the same sort of disease of the mind that has been gone into so often by the courts in connection with the application of the M'Naghten Rules; but it is undoubtedly the view of a large number of psychological, medical practitioners that there may be other cases where the weakness or irresponsibility is brought about by disability not amounting to a disease. It seems, therefore, very important also that the clause should be widened to this extent. I hope that I have made these matters sufficiently clear and that the noble and learned Viscount will be able to accept the Amendments, because I am sure that they are very important. I beg to move.
Amendment moved—
Page 1, line 22, after ("inherent") insert ("or environmental").—(Lord Chorley.)
2.22 p.m.
THE LORD CHANCELLOR: I have considerable sympathy, as the noble Lord will see, with the purpose of his Amendment, but there is a practical difficulty. Therefore, perhaps your Lordships will bear with me if I deal with the matter rather more fully because I regard it as a most important point. I should like the noble Lord, Lord Chorley, to believe
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that, when I made up my mind that the Scottish doctrine of diminished responsibility could be introduced into English law, I did give the matter grave consideration, both from a point of view of discovering the full force of the Scottish doctrine and also with regard to its implications in our legal system.
May I ask your Lordships to consider how the clause would read if the Amendment were made? The effect would be that the defence of diminished responsibility would apply only where the defendant
"was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent"—
and then the noble Lord would add his words "or environmental"—
"causes or induced by disease"—
and then the actual words that the noble Lord has in his Amendment are "or disorder of the mind"—
"or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing."
The purpose of the wards in brackets in Clause 2,
"whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury"
is to limit the generality of the words "abnormality of mind" which precede the bracket, and to bring the clause as nearly as may be into line with the Scottish doctrine, having regard to the difference in law and practice in the two countries and the fact (I would ask the noble Lord to remember this, because it is important in introducing the doctrine) that in this context the limiting words which are used in Scotland—" bordering on insanity "—would be difficult to introduce into the clause, as I think the noble Lord would be the first to agree.
In particular, it is desired to ensure—I am sure your Lordships will realise the importance of this—that the man who is merely bad tempered or jealous and has no other indication of mental abnormality cannot successfully plead that his bad temper or jealousy constitute abnormality of mind or environment. The objection to inserting the words "or environmental" after "inherent" is that they may leave an opening for the line of defence to which I have just referred—for example, in the case of the man who, as a result of domestic circumstances, has

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become unduly irritable or jealous. It may be argued that a person who has developed a mental abnormality as a result of, say, a war experience, ought to be able to take advantage of the new defence. The answer to this appears to be that in such circumstances it would be open to the court to hold that his mental abnormality was induced by disease, even if they did not think it was inherent.
But I want to go further than that because I wish the noble Lord to realise that I have given a great deal of consideration to the point, even if he does not agree with my conclusions. These are my conclusions. I do not think that in practice the courts would feel inhibited from saying that a cause was inherent because it did not date from birth. In other words, I think it is perfectly clear that you can acquire some things in the early stages of life (which are the ones with which the noble Lord must be very familiar because they are the ones which are dealt with in every textbook on psychology) but even in later stages of life they become an inherent power. If the noble Lord will look at the definition of "inherent" in the Oxford English Dictionary, he will find it says:
" Existing in something as a permanent attribute or quality; an element, especially characteristic or essential element, of something; belonging to the intrinsic nature of that which is spoken of; indwelling, intrinsic, essential."
Therefore, I myself have no doubt that it is possible for a person to have an acquired inherent condition.
I do not know if the noble Lord had in mind—I know that he has considered these matters very carefully—that there might be some difficulty with a gross psycopathic personality, or a severe psychological maladjustment caused largely by bad upbringing or by the circumstances of early life. We did consider these cases, and such cases appear to us to be within the clause as it stands, either because there is an arrested or retarded development of mind (which would include an emotional development) or because, in view of what I have just said, there would be an inherent cause within that meaning.
If I may pass to the other Amendment, the suggested addition of "disorder of the mind", which I also found most interesting, again the objection to the insertion of these words is, in substance, the
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same as I have said with regard to "environmental". It is that the addition weakens the limiting effect of the words in the bracket. If I may take an example, it may be said that a man in the grip of panic, rage or jealousy, was ipso facto in a state of disorder of the mind, and that the state of disorder was almost, by definition, an abnormality of mind. That is what we do not want to provide as a defence in the Bill. In my view, it would be most dangerous to have it as a defence. As I understand it, from the various judgments of the Scottish Courts that I have read, the Scottish doctrine does not give a defence to the man who can show no evidence of mental abnormality other than his conduct at the time of the killing. Of course, there must be exceptional cases, where at the time of the killing he proclaims or demonstrates this mental abnormality; but to show merely that he acted from panic or jealousy or rage would not be sufficient.
As I have said, the clause was carefully drafted, for the reasons that I have given, and the addition of these further words would, I believe, produce results which go far beyond what the noble Lord, Lord Chorley, has said. I am quite sure that the courts will, as they have dealt with cognate questions, take the definition generally, and that it will produce the result which I have indicated: that of giving the substance of the Scottish doctrine of not providing a defence in panic, rage or jealousy, but that they will meet the points which the noble Lord has mentioned. I should like to tell the noble Lord that when we drafted the Bill we had the advantage of considering the proposals he has put forward to-day, and these are the reasons why we did not incorporate them. May I say just one more word? With what the noble Lord has said, of course I entirely agree. Whether I have convinced him or not, I hope he will appreciate that I am trying to deal with the Amendments on their merits, and after very careful consideration of the points, and I hope that he will not press them.
LORD CHORLEY: I am sorry that I have not been converted by the noble and learned Viscount's arguments. I should have liked to be because it would be so helpful. But I appreciate that the Government have had this problem in mind since the time this Bill was drafted,

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and I am sure that the careful reply which the noble and learned Viscount has given to my points will be studied by those who are even more interested in this matter than I am myself. We are grateful to him. I should like to say one or two words to explain why I still do not think that he is necessarily right. It may well be that when these cases come before the Court of Criminal Appeal they will take his view of the law—because, after all, he is a much greater expert on it than I am. But there are reasons why they may not take that view. I do not think that here he has given sufficient weight to the word "abnormality." A person who kills just in a rage of jealousy, or something of that kind, would not, I submit, have an abnormal mind. An abnormal mind surely means something rather more permanent than a mere passing fit of jealousy or rage.
Secondly, when the noble and learned Viscount argues that "inherent" has not necessarily anything to do with the constitutional outfit of the man when he is born, that might be so on the basis of the definition in the Oxford dictionary; but as the noble and learned Viscount knows so well, when you find the words "or any" following a number of express words like "arrested or retarded development of mind" I should have thought that that would be taken ejusdem generis with the earlier words, which seem to me to indicate the man's hereditary outfit, so to speak, and not something that he might have acquired as a result of bad upbringing or something of that kind. Therefore, I should have thought it was difficult for the Courts to attach to the word "inherent" the meaning which the noble and learned Lord Chancellor has suggested.
Again, in regard to this matter of disorder of the mind, we appreciate of course that this clause is a great advance over the M'Naghten Rules, and we are grateful to Scotland for having given us this considerable improvement in our own law in relation to this matter. Even the Scottish doctrine, however, is one which developed before the great advances of modern psychological medicine were made, and I should have thought that it would be to the advantage not only of this country but, perhaps, also of Scotland to have a rather mere generous interpretation of this doctrine of the
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diminished responsibility—an interpretation more in accordance with modern psychological medicine. Possibly the noble and learned Viscount will look at this matter again in the light of what I have just been saying. I certainly do not wish to press this matter further. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
2.36 p.m.
LORD CHORLEY LORD CHORLEY moved to add to subsection (3):
"and detained during Her Majesty's pleasure"
The noble Lord said: This I regard as a still more important matter—of such importance that I thought it right to devote a substantial part of my speech on Second Reading to it. I do not want to inflict all that again on the Committee, but I must go over some of the ground because this is a matter of such importance. Of course, the point is that when, in this type of case, a verdict of manslaughter, instead of the old verdict of murder, is given by the jury, it means that a sentence of imprisonment for some particular period of time will be passed by the judge on the prisoner. When the man has served that sentence of some period of imprisonment he is entitled to be released. It may well be, however, that he is still dangerous. Frequently, especially with the psychotic type of case to which the noble and learned Viscount referred a few moments ago, the condition may be of long duration; and it may well be that when the man is released, after serving a sentence of eight or ten years, he is still a danger to society; and he may again commit homicide. Undoubtedly, that would be taken up by the Press, quite properly, and would result in a considerable amount of public feeling arid nervousness—again quite properly.
Under the M'Naghten Rules, by which a case of this kind might be dealt with under the existing law, a man is detained during Her Majesty's pleasure. Similarly, if he is sentenced to death but the Home Secretary advises the Crown to respite the sentence, then the man is detained during Her Majesty's pleasure. In either case, after the medical experts were satisfied that the man was now safe, and in every way had proved that he had expiated his offence and could safely be released, the authorities might decide to release him. Of course, that frequently happens.

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At the present time, a substantial number of people who have committed murder are living useful and honourable lives in the community. But they are living useful and honourable lives because, having been carefully watched by professional men of high standing, whose life's work it has been to understand cases of this kind, it has been decided that it is safe to release them. In a case of the kind which I have just suggested might occur, however, under the clause as it at present stands that would not be so. The man might be released, having earned his remission for good conduct and having served his sentence. It would not be possible for him to be kept in custody unless he could he certified as a lunatic; and in most or, at any rate, a substantial proportion, of these cases it would not be possible to certify him. As a result, the Prison Commissioners would be in the terrible state of having to release from prison a man who they were advised by their medical advisers might very well, shortly after being released, again commit homicide—what would have been the old crime of murder.
It seems to many of us that this is a very real weakness in the Bill as it stands, and that the position ought to be safeguarded by requiring that in a case of this kind the sentence of the court should be that the man be detained "during Her Majesty's pleasure." I hope that the noble and learned Lord will agree with me that this is a really important matter, and that he will not just tell me that the judge can pass a life sentence in a manslaughter case and that that is the answer. Whilst technically it may be the answer, I am sure that on the substance of the matter it is not really the answer. I beg to move.
Amendment moved—
Page 2, line 6, at end insert ("and detamed during Her Majesty's pleasure.")—(Lord Chorley.)
LORD COHEN: I feel considerable sympathy with the observations which have fallen from the noble Lord, Lord Chorley. There is one particular case that I recall and I should like to know how it would be dealt with under this Amendment. The case to which I refer occurred in recent years. If the noble and learned Lord Chancellor can tell me that there would be no risk of a man being released and possibly committing further murders, I shall be happy. I
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forget whether at the first trial the man was found guilty but insane, or was found fit to plead, convicted and later sent to Broadmoor. However, he escaped from Broadmoor, and murdered another child, again, I think, by strangulation. On that occasion he was tried and found guilty of murder. The then Home Secretary, as everybody expected, did not allow the sentence to be carried out—whether the man is again back at Broad-moor or not, I do not know. But it would be disastrous if there were any risk of such a man, who under this Bill would not be convicted of murder as a capital offence, being let loose again to perform another such crime. It may be that the answer is that in this particular case he would be certified and found insane, and could be locked up in the ordinary way. There might be borderline cases which it seems to me could be dealt with under the Amendment moved by my noble friend Lord Chorley, but which perhaps could not be dealt with satisfactorily under the Bill as it stands.
THE LORD CHANCELLOR: My Lords, I am grateful to the noble Lord, Lord Chorley, for raising this point, and also to my noble and learned friend Lord Cohen for his contribution. If I might just say one word with regard to what Lord Cohen has said, as I think he realised I was the Home Secretary who had to deal with the case which he mentioned. I am always diffident about relying on my memory of any case, as Lord Cohen knows the tricks that time plays. He did say that the man in question was in Broadmoor after the first trial, and that it was from Broadmoor that he escaped. He must, therefore, have been a criminal lunatic, found so in one way or another, as Lord Cohen, I think, assumed. Of course, the difficulty is that in this clause we are not dealing with insanity and with criminal lunatics: we are dealing with the incorporation into English law of the Scottish doctrine of diminished responsibility. Again I speak with diffidence, because I see my noble and learned friend Lord Keith of Avon-holm in your Lordships' House, and he has had infinite experience of the working of that doctrine. But I am informed, and the Royal Commission came to the same state of belief, that in Scotland during the first half of this century there were only two cases in which, after a

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verdict of culpable homicide, the person subsequently committed a serious crime. That is, I think, a fairly strong piece of evidence over a period of nearly fifty-seven years.
One has to consider the whole field of cases that will come under this doctrine. I am sure Lord Chorley will agree, because have known his essential humanity over a long period of years, that one must consider this as a human matter, as well as a matter of interest to those who are forming their views as to penal treatment as a whole. I would ask Lord Chorley to turn back his mind to the days when we were both on the northern circuit, and to envisage the human material which has to be dealt with. He has read the clause very carefully, as he showed from his speeches on these three Amendments. I think he will agree with me that it must cover a very great variety of cases, cases which fall just short of insanity under the M'Naghten Rules but which clearly come within this doctrine, down to a case which is little more than that which I described in discussing the last Amendment, where the cause is simply a panic, or rage or jealousy. I want to carry Lord Chorley with me here, because I want his help on my own difficulties. There will be cases of the last type where the state of mind that we have tried to describe in the clause did exist—there is no question of a sentimental verdict but a proper verdict on the basis of the clause—although there was a virtual recovery from that state.
The noble Lord will realise—he has considered this matter—that these states are brought on by circumstances of many kinds; indeed, that was what he and his friends were envisaging in moving the Amendment we have just dealt with. And if there is a virtual recovery, is it right that the judge, who, after all, has all the facts of the case before him, should not have the right to make up his mind and impose what he thinks is a proper sentence? The noble Lord did me justice; I am not riding away from this on the basis that a judge could impose a sentence of penal servitude for life. He could. In a proper case, the first field of cases that I mentioned as being just short of inanity under the M'Naghten Rules, he might well think it right to do so, and then to leave the matter to the Home Office. But there are other cases where
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he gets clear prognosis, of other cases where there is a clear explanation into which the medical evidence comes. I think it would be unduly severe on the defendant, and falling into the error of treating the defendant rather as a corpus vile for our theories than as a human being, if we were to take that right away from the judge.
If I may put it shortly, I do not like the idea of introducing an indeterminate sentence when a fixed sentence could be justified. That has been the difficulty which I have seen in the matter, and I think that it is a case in which one can trust the judges to make the sentences suitable to the conditions. We have some help on this point in that, as the noble Lord is aware, it is a doctrine which has been dealt with in this way in Scotland over a considerable period, and I am not aware that there have been complaints on this matter. My main point to the noble Lord (I hope he will acquit me of stalling on the Amendment) and what I am so anxious about is that he shot Id appreciate the strength of what moves me in this matter. That is, that there is no reason why all persons whose responsibility is diminished should be given an indeterminate sentence merely because such a sentence may be necessary for some. That is really the burden of the case.
May I say that my right honourable friend the Home Secretary, as noble Lords are aware, is in Ghana at the moment. After he comes back on Sunday, I will show him what Lord Chorley has said, because, as Lord Chorley may be aware, he is very much interested in this aspect of the Bill—indeed, he dealt with it in his speech on Third Reading in another place, as the noble Lord may have seen. I should like him to read what has been said here on this point, because this was not, so far as I know, discussed fully in another place. Therefore, I think it would be very interesting for Mr. Butler to learn what Lord Chorley has had to say to-day.
I have explained the view which we formed. May I now just deal with one or two points concerning difficulties in the Amendment. The noble Lord will, I am sure, acquit me of any intention of taking these as points upon the principle—I have already tried to deal with that—but the Amendment itself would be defective, because where the accused

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brings forward evidence both of provocation and of diminished responsibility and the jury return a verdict of manslaughter it will not be clear which provision applied. To make the Amendment effective it would be necessary to provide for a special verdict. I think that Lord Chorley will see—it is fair, I feel, to raise the point—that the Amendment does not state where a person so sentenced should be detained, and it does not make provision for release on licence, which is an essential part of Lord Chorley's scheme. I merely raise this in order to point out the position. I assure the noble Lord that it is not for these technical reasons that I am against him on this matter. It is for the reason I have given.
There is just one further point. Lord Pakenham raised the question of treatment on this basis. Though we have not the advantage of his presence at the moment, it might be useful if I said a word on that matter, because I am sure that Lord Chorley is also interested in the point. Your Lordships will remember that Lord Pakenham asked how people convicted under Clause 2 were going to be handled and he mentioned the East Hubert Institution. When I was Home Secretary I got authority to build the East Hubert Institution. As your Lordships heard, the start has been delayed, but I hope that we shall have it because it is a form of prison to which I myself attach great importance from the penological point of view. Noble Lords will appreciate that the largest class of cases going to the Institution will be those who need full investigation and treatment by psychiatric methods. There will also be prisoners with difficult personalities who might respond to a régime in which the emphasis is medical and psychiatric. And there will, of course, be prisoners amongst those sentenced under Clause 2 who will be suitable for the East Hubert Institution, and some who will not because their mental condition is not one which would respond to the treatment. Of course, if they are found later to be certifiably insane or mentally defective they can be removed to the proper institution outside the prison system.
I hope that what I have said as to the distinction between diminished responsibility and insanity, also concerning the record of what has happened in Scotland, deals with the very important point raised by my noble and learned
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friend Lord Cohen. On the main point, I hope that while I and the Home Secretary will look carefully at what Lord Chorley has said, he will also consider with his friends the real human difficulty that I find in the matter, and that he will not press the Amendment on this occasion.
2.57 p.m.
LORD CHORLEY: I am grateful to the noble and learned Viscount for his persuasive reply. Sometimes I think he is at his most dangerous when he is most persuasive. I am afraid that he has not altogether convinced me, though I shall ask your Lordships to allow me to withdraw this Amendment because of the technical points which he has made, the force of which I quite appreciate. If the noble and learned Viscount would accept the principle for which I am contending, his draftsmen can put this right—as indeed he indicated. I appreciate, of course, that he has not refused to accept this Amendment on these technical grounds, but because I have unfortunately failed to persuade him. I am disappointed because I feel that this case is really an unanswerable one.
At the same time, I am grateful to the noble and learned Viscount for one or two things, at any rate. One is his having promised to bring this matter once more to the attention of the Home Secretary. I know that I have not persuaded the noble and learned Viscount, and perhaps my chances of persuading the Home Secretary are not very good either, but at any rate I am thankful for that little crumb of mercy. I am to some extent encouraged by the experience in Scotland in regard to this matter, though I am afraid that a longish experience of criminal administration in this country—though nothing like so complete as that of the noble and learned Viscount—has persuaded me that on the whole the English are rather more given to murder than the Scottish people. And I am not altogether satisfied that the experience in Scotland in regard to these released semi-murderers—if one may so describe them—will be paralleled in England.
I understand and fully sympathise with the noble and learned Viscount's dislike of the indeterminate sentence, though it has been used in some of the most go-ahead countries—go-ahead, that is, from the point of view of the administration

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of criminal law—such as the Scandinavian countries (or certainly some of them) with very great success. Still, in the ordinary way, the indeterminate sentence is a thing which certainly does not appeal to the English. If we were dealing with the ordinary case of manslaughter I would entirely agree with the noble and learned Viscount. It seemed to me that when he was saying that many of these cases would not be particularly difficult ones he was thinking about ordinary cases of manslaughter; but under this clause ex hypothesi he is dealing with cases of abnormality of mind, and those are not ordinary cases of manslaughter at all—at any rate, not the particular group to which this Amendment is addressed. I appreciate the technical point made by the noble and learned Viscount, but the group of cases to which my arguments are addressed are all cases where there is abnormality of mind, and I suggest that that is one type of case where a judge cannot reasonably after a trial—as he has to do—pass sentence for a particular period of years. That cannot safely be done because this is the very type of case where it is not safe to do so.
After all, we have had argued against the whole spirit which is behind this reform of the law the fact that the community must be protected against these murderers; and it is rather ironic for those of us who have been in this particular movement for the abolition of capital punishment and have been combating this argument to have it turned upon us in this way and to be told that here the safety of the community is not to be regarded, and that at is not very serious because in Scotland over a substantial period of years there have been only two or three such cases where a man who has been released has again taken violent action. It is disconcerting to have that argument pushed back upon us, for if there is one type of case where surely the safety and interest of the community are to be respected as paramount it is the case where a man is of abnormal mentality.
If I were a judge I should be very loth to do what a judge has to do and do immediately—for he cannot wait for months to see how the man is getting on; he has to pass sentence there and then, or at least with an interval of only a day
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or so at the Court of Assize at which the man has been tried and the verdict of the jury has been given. The judge is therefore bound to be in the position of having to make a "hit or miss" assessment of a situation which, in my contention, ought to be the subject matter of careful investigation lasting over months and possibly years by the skilled prison doctor who is accustomed to dealing with cases of this kind. After all, it is almost as much a medical and psychological matter as a matter for the administration of the criminal law. I am not, therefore, convinced by the argument of the noble and learned Viscount, persuasively as he put it.
Finally, I should like to refer to the case which the noble and learned Lord, Lord Cohen, in my view very pertinently, brought back to the attention of the House—the case of Straffen. If he were brought under this Bill when it becomes law, undoubtedly his legal adviser would advise him not to plead the M'Naghten Rules but to rely on diminished responsibility under Section 2 of this Act. In those circumstances the burden of proof upon him would simply be to satisfy the jury that it was a case of diminished responsibility and he would be entitled to a verdict of manslaughter; and at the end of sonic particular period of time for which he was sentenced by the judge he would be entitled to his release. In those circumstances it would not be a question of his having to climb over the wall at Broadmoor; he would be turned out, to the danger of the public, despite the doctors at Broadmoor knowing, when he was released from the prison gates, that there was a very good chance of his committing another murder. If we look at the Straffen case in the context of this Bill I suggest that it proves the need to have the Amendment which I am asking your Lordships to put, through this Bill, on the Statute Book as part of the criminal law of England.
I am very sorry that the noble and learned Viscount cannot accept this Amendment. I do not propose to ask your Lordships to divide on it this afternoon but I retain the right to put it down at a later stage, and perhaps in the light of further consideration by the noble and learned Viscount and the Home Secretary

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we can look at it again. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3:
Provocation
3. Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.
3.6 p.m.
LORD CHORLEY LORD CHORLEY moved to leave out "a reasonable man" where those words first occur, and to insert "that person". The noble Lord said: This Amendment again is directed to a point which I made in the debate on Second Reading. The object here is to make the test of provocation in this type of case a matter for the decision of the jury. As your Lordships will appreciate, this clause is, very properly and liberally, designed to extend the defence of provocation in murder cases, a defence which in the past has been rather mechanical and limited. But in doing so the Bill introduces what I submit is a new test—the test of "a reasonable man".
The doctrine of provocation was developed by the great Common Law judges during the early eighteenth and nineteenth centuries. At one time it was a question of law, and not one for the jury at all; and, curiously enough, down to the end of the nineteenth century the judge himself decided, as a matter of law, whether the provocation was such as to reduce the case to one of manslaughter. But from the early years of the nineteenth century it has been left to the jury to decide, in the circumstances of a particular case, whether the prisoner was so provoked to take the action he did by the conduct of the man he killed that it was only reasonable and just that a verdict of manslaughter and not one of murder should be entered against him In my submission, in all those cases the jury looked at the matter from the viewpoint of the actual circumstances of the case they were trying, and the effect of the provocation on the particular prisoner before them in the dock.
In this Bill a quite new standard is introduced, one which has been infiltrating into the administration of criminal law over the last fifty years or so and has been brought into the criminal law from the ordinary Common Law on torts, where it has been developed—and very properly and very liberally developed—in connection with the doctrine of negligence. But in my submission it has no real place in criminal law, because in that law the question is whether that particular prisoner is guilty of the offence, and not whether he reached the standard of a reasonable man. That may be a proper way of judging whether he should pay compensation to someone in a civil action, but is not a criterion which should be applied in criminal cases. The question is whether that man was so provoked, perhaps by seeing his wife in the act of committing adultery or something of that kind, that he could not restrain himself with the consequence that the verdict should be one of manslaughter and not of murder; not whether he reached the standard an ordinary reasonable man ought to have reached in the circumstances. I think that the point is perfectly clear and needs no further elaboration on my part. I hope that the noble and learned Viscount will agree that this is a proper matter to be dealt with here and now. Perhaps I should have said that this and the next Amendment go together, and no doubt he will deal with them both. I beg to move.
Amendment moved—
Page 2, line 15, leave out ("a reasonable man") and insert ("that person").—(Lord Chorley.)
THE LORD CHANCELLOR: I think that the noble Lord, Lord Chorley, will agree that this is well-trodden ground. As he pointed out, the Amendments would have the effect of substituting the standard of control of the accused for that of the reasonable man in deciding whether the degree of provocation was adequate to justify a verdict of manslaughter. This matter has been fully debated before. I do not know that many of us would go so far as the noble Lord, Lord Silkin, who was afraid that nobody would satisfy the test because he could not imagine that any reasonable man could commit a murder as the result of provocation. I do not think that many

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of us would agree with this optimistic view of human nature, even in its reasonable characteristics. If I may bring this to the human level, the sort of point that was discussed in another place when this matter was debated was that of a man with one leg who receives excruciating pain, the sort of pain not known to a normal man, from a kick on the stump of his leg. I do not think that that presents a really difficult problem, but when one shades into many different cases, and applies the subjective test suggested by the noble Lord, Lord Chorley, I think one then gets into a quicksand of different and always more difficult problems in which, in practice, the subjective test is very difficult to apply.
May I give your Lordships some examples? The defendant may be impotent and may have killed when provoked by taunts of his impotence. Or the effect of the provocation may depend on past history, as in the case that was quoted where the men concerned were on different sides in the war, and the taunts were based on that fact. In the first case that I quoted, because it has been quoted so often, I think that it would be fairly easy for a jury to assess the effect of being kicked on the stump of a leg; but in the other cases I think that it would be extremely difficult for a jury to put themselves into the circumstances of the defendant arid apply the subjective test. I think we should find an uncertainty, which is one of the worst difficulties which can be present in the criminal law.
To go back to the point the noble Lord has been discussing with such interest to me, where we have a certain abnormality of mind, whether it satisfies the clause or not, I think that it is wrong to ask the jury to apply this test. I come to another case which I did not quote earlier, because it smacks of the debating point and I do not like to answer serious questions in that vein—I refer to the case of the man who is exceptionally ill-tempered and lacking in control. Naturally, this ease was considered when drafting the Bill, and I have tried to reconsider the matter in the light of the points that have been brought up, and f cannot believe that it is right that every man should be a law for himself. I think it right, as the clause says, that we should adhere to the principle
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that the law should be based on a generally accepted standard of conduct, applicable to all alike.
The noble Lord, Lord Chorley, with the frankness one would expect from him, said that the test of a reasonable man is one of the great contributions that English jurisprudence has made to the world in a number of fields. He and I are familiar with the alternative definitions. A reasonable man sounds legalistic in form. In the 19th century it was translated as "the man on the Clapham omnibus." In the 20th century, the American jury has put it in the form of "the man who borrows your lawnmower"—though they do not say whether he returns it or not. But it is intended to represent the ordinary, prudent, decent citizen. And I believe that the more often we can accept that as the test—and it is one that has already been applied on innumerable occasions—in new and varying circumstances, the more useful it will become. The noble Lord will remember that although the Royal Commission expressed sympathy with those who wanted the test of a reasonable man abolished, they rejected the proposal on the ground that any departure from the fundamental rule that the criminal law should be based on a generally accepted standard of conduct, applicable to all citizens alike, might introduce a dangerous latitude into the law; and that a minor abnormality of mind which will make a man more easily provoked, or violent in his response to provocation, ought not to alter his liability to conviction for murder, though it might justify mitigation of the sentence. They also considered that that was a matter which might be considered by the Home Secretary in advising on the Prerogative of mercy. For all these reasons, in which I am supported by the views of the Royal Commission, I must ask your Lordships to reject this Amendment.
LORD CHORLEY: I had less hope in regard to this Amendment than to the previous one. I am afraid that the noble and learned Viscount has not convinced me. What, in effect, he has in mind is that a man born with a particularly excitable disposition, unless he can conform to the ordinary standards of his fellow-citizens who were not born with such a disposition—which ex hypothesi he obviously cannot—is to be convicted

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of murder, though he was so provoked that he struck down his taunting opponent. That seems to me to be a thoroughly unfair situation. No doubt, in most cases, it would be met in practice, as the noble and learned Viscount said, by the exercise by the Home Secretary of the Prerogative of mercy. It has always seemed to me that it is not good enough for the law to be in such a state that it can be said, "This will be all right in practice, because the Home Secretary will look after it." It has not always been so: there have been Home Secretaries who have taken a rather stiff view about this type of case although I think that, on the whole, Home Secretaries, both those well into the past and recent ones, have dealt with this type of case in a humane way. Therefore, I do not feel quite so upset by the reply of the noble and learned Viscount as I did on the earlier Amendment. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4:
Suicide pacts
4.—(1) It shall be manslaughter, and shall not he murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or he a party to the other killing himself or being killed by a third person.
3.21 p.m.
LORD CHORLEY LORD CHORLEY moved, in subsection (1), to leave out the second "other" and to insert "other's". The noble Lord said: On behalf of the noble Lord, Lord Raglan. I beg to move the next Amendment. Lord Raglan is sorry he cannot be here to move a series of Amendments which your Lordships will have seen stand in his name on the Marshalled List. They are all of a purely grammatical kind, and I think the noble and learned Viscount the Lord Chancellor, is prepared to deal with them together. I do not think they require a great deal of introduction to your Lordships. They fall into three groups: first, those raising the question of whether the gerundive should be used, instead of the accusative, as in this particular case; second, those concerning the order of the words in question; and third, those relating to the use of the singular or plural.
On the whole (I should like the Lord Chancellor to confirm whether this is so), where the word "court" is used in the Statutes it is used in the singular. The draftsman here has used it in the plural. It seems to the noble Lord, Lord Raglan, and I entirely agree, that it is more in accordance with precedent and the general grammatical usages of the community to use "court" as a singular. After all, when a court gives a decision, even if it is a Court of Appeal consisting of three judges, it is the decision, as it were, of the single entity; and it seems to Lord Raglan, and, I think, to others of your Lordships, that the singular is better than the plural. However, these are points which do not require a great deal of elaboration, and I hope that the noble and learned Viscount will be able to accept at any rate some of the Amendments. I beg to move.
Amendment moved—
Page 2, line 22, leave out the second ("other") and insert ("other's").—(Lord Chorley.)
LORD GORELL: I should like to make the suggestion to the noble and learned Viscount that it would make the English much clearer if in all cases where "the other" is used (as at page 2, line 22) the words "that other" were substituted. I offer that for the consideration of the noble and learned Viscount, and, if he approves, I can move it formally, or perhaps he can adopt it.
THE LORD CHANCELLOR: I am grateful, first of all, to my noble friend Lord Raglan for putting down these Amendments; secondly, to the noble Lord, Lord Chorley, for moving them; and thirdly, to my noble friend Lord Gorell for his suggestion. I hope my noble friend Lord Gorell will give me a little time to consider his suggestion, because, although I have done a great deal of grammatical research. I have not quite covered that point. I had only one general reflection when I saw these fifteen Amendments, and it was that I wondered what the first Duke of Wellington would have said if Lord Raglan's famous ancestor, Lord FitzRoy Somerset, had made a similar set of proposals in regard to the correction of the Duke's despatches. I think it would have been a matter of great interest to your Lordships.
There are a number of points and, if your Lordships will bear with me for a

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little time, I hope to show that we have a considerable amount of authority for what we have done both in literature and in Statute. The first point that is raised by the Amendments is the use of what is called the "fused participle." For example, if we take the first Amendment (Clause 4, page 2, line 22) it would alter the wording so that it would refer to a person being
"a party to the other's killing himself or being killed by a third person",
instead of
"a party to the other killing himself…."
In other words, my noble friend Lord Raglan prefers construction with a noun in the genative followed by a gerund to the construction referred to by the nickname" the fused participle. "Perhaps your Lordships will allow me to quote from a far greater authority than I shall ever be—namely, Sir Ernest Gowers. In The Complete Plain Words, Sir Ernest deals with the state of the battle on this contention. He says, at page 158, on this construction:
"This is not in itself a matter of any great interest or importance. But it is notable as having been the cause of a battle of the giants, Fowler and Jesperson. Fowler condemned the 'fused participle' as a construction 'criminally indefensible' that is 'rapidly corrupting modern English style.' Jesperson defended it against both these charges. Those best competent to judge seem to have awarded Jesperson a win on points."
If that is the view of Sir Ernest Gowers, then I do not think your Lordships should blame the draftsman of the Bill for following the points win at this stage.
On this point, even my noble friend Lord Raglan gets into difficulties, because in his Amendment to Clause 6 he wishes to get rid of the "fused participle," but the clause at this point says:
"…no rule of practice shall prevent the minders being charged in the same indictment or…prevent them being tried together."
I think the noble Lord, Lord Chorley, would agree on consideration that after the word "prevent" that is the correct grammatical construction. Again, if referred to higher authoirty, the noble Lord will find that the Oxford English Dictionary gives examples from 1689 onwards after the word "prevent," including a letter of King George III. So that again we have precedent for this.
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The second point raised by the Amendments is the use of "under the circumstances," in place of which my noble friend Lord Raglan would prefer "in the circumstances." On the ground of pedantry, my noble friend again appears to be on the wrong side. The Oxford English Dictionary, under the word "circumstances," says:
"Mere situation is expressed by 'in the circumstances,' action effected is performed 'under the circumstances'."
And although that was written some sixty years ago, it is quoted with approval by Fowler. And Fowler also says:
"The objection to 'under the circumstances,' and insistence that 'in the circumstances' is the only right form because what is round us is not over us, is puerile…. 'Under the circumstances' is neither illogical nor a recent invention, and is far more often heard than, 'in the circumstances'."
I quote that only to show the ancestry. If I can come down to a more practical point which the noble Lord, Lord Chorley, mentioned, the Bill uses the same language as certain existing sections which it is important to attract—namely, Section 98 of the Army Act, 1955, and Section 98 of the Air Force Act, 1955, which give power to convict of an offence committed under circumstances involving a less degree of punishment than the actual charge, and also the Courts Martial (Appeals) Act, 1951, Section 6 (3).
The third point dealt with by the Amendments—the one in the First Schedule, page 8, line 10 and others—raise the question whether a plural verb should be used where the subject is a collective noun. In all these cases the Bill uses a plural verb where the subject is the court and where the court would consist of more than one judge. I again suggest that that is a perfectly ordinary practice "in these circumstances"—I hope I show my great breadth of mind that I am prepared to agree with the noble Lords who take that view; but that, of course, was a matter of location and not of effect. But, again, this is the wording of the Criminal Appeal Act, and of the Criminal Appeal (Scotland) Act, so the noble Lord, Lord Chorley, will see that it is important that we should follow it.
There was also the question whether it is, "the jury whom" or, "the jury which". There is a profound passage concerning this in that analytical work

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by the late Mr. Dodgson known as Alice's Aventures in Wonderland. Your Lordships will remember the passage towards the end of the book in which Alice is very proud to remember that she refers to them as "jurors". There, again, both styles are correct. One can look at the jury as the persons composing it, or as a composite body of the persons.
The only other matters that are dealt with are whether one puts "or not" after "whether", which I think is permissible, and the question of "as to". I could deal with that matter at great length, but I think it is enough for me to say that this use certainly started with Wyclif, and the noble Lord, Lord Chorley, who I am sure knows his sermons so well, will remember the passage from Wyclif:
"He shal be lyoun as to violence: as a lyoun in his couche as to trecherie"
From that time you get a number of other examples, coming down to the Statutes of the present day. The affection in which the noble Lord, Lord Raglan, is held by your Lordships in all parts of the House makes it desirable that he should in part be satisfied for the immense labour which he has undertaken in thinking out and putting down these Amendments. I ask your Lordships to accept my apology for detaining you for so long, and I ask the noble Lord, Lord Chorley, in a spirit of less troubled mind than he has had in the other cases, not to press these Amendments to-day.
LORD REA: Might I ask the noble and learned Viscount whether he would consider introducing amending legislation for the Army Act, the Air Force Act, the Courts Martial Appeals Act, the Criminal Appeal Act and the Criminal Appeal (Scotland) Act, to make them grammatical?
THE LORD CHANCELLOR: I am very tempted to make the answer that my noble friend Lord Hewart made in answer to a question, when he said, "The answer is in the plural." The plural in this case is negative.
LORD CHORLEY: I am sure your Lordships are all indebted to the noble Lord, Lord Raglan, for having evoked from the noble and learned Viscount such a delightful and charming reply on all these points. He did not deal with Amendments Nos. 23 and 24 to which I referred, and where the noble Lord,
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Lord Raglan, thinks that the words "for any purpose" are not quite in the right part of the sentence. But I imagine that the noble and learned Viscount, having won a victory on almost all parts of the line, is not anxious to retreat there either. Therefore, I shall take it that he regards the draftsman as having put the words, "for any purpose" in the right part of the sentence. In the circumstances, I ask leave to withdraw this particular Amendment and not to move the other Amendments standing in the name of the noble Lord, Lord Raglan, when we come to them.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5:
Death penalty for certain murders
5.—(1) Subject to subsection (2) of this section, the following murders shall be capital murders, that is to say,—

(a) any murder done in the course of furtherance of theft;

(b) any murder by shooting or by causing an explosion;

(2) If, in the case of any murder falling within the foregoing subsection, two or more persons are guilty of the murder, it shall be capital murder in the case of any of them who by his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered, or who himself used force on that person in the course of furtherance of an attack on him; but the murder shall not be capital murder in the case of any other of the persons guilty of it.
(e) "theft" includes any offence which involves stealing or is done with intent to steal.
3.36 p.m.
LORD CONESFORD LORD CONESFORD moved, in subsection (1), to leave out "Subject to subsection (2) of this section,". The noble Lord said: I think it would be for the convenience of the Committee if we took Amendments Nos. 6 and 9 together. The object of these Amendments is to get rid of subsection (2) of the clause. It is a matter of considerable importance. I think I am right in saying that the subsection which I seek to delete has not hitherto been explained. What it enacts is contrary to the express recommendations of the Royal Commission, and I think I can satisfy your Lordships that its effect will demonstrably be contrary to the public interest.
May I make it clear at the outset that subsection (2) has nothing whatever to do with the abolition of the doctrine of constructive malice. That doctrine has been got rid of, quite rightly, I think, in the view of all quarters of the Committee, by Clause 1 of the Bill. If I might remind the Committee of what the doctrine was that it was sought to get rid of, perhaps I could do so by quoting a short passage from paragraph 94 of the Royal Commission's Report, which was expressly cited with approval by my right honourable and learned friend the Attorney-General in another place. Paragraph 94 says:
"A person may therefore properly be convicted of murder if he has caused death either by an act intended to kill or do grievous bodily harm or by an act likely to cause death or grievous bodily harm and committed with reckless disregard of the consequences. But it is quite inconsistent with the general principle of criminal liability to say that, if a person kills another inadvertently while committing a felony or resisting arrest, malice is implied and he is guilty of murder, although he neither intended to cause death or grievous bodily harm nor foresaw that he was likely to do so."
That short passage expresses with brevity the view of the Royal Commission that the doctrine of constructive malice should be abolished, and that purpose has been achieved by Clause 1 of the Bill.
I may say that the Royal Commission made it clear that one of the matters which influenced them in coming to their recommendation to abolish this doctrine was the fact that my noble and learned friend the Lord Chief Justice and another very eminent Judge had given evidence before them advocating its abolition. The result of Clause 1 of the Bill which abolishes this doctrine is that, unless there is the full guilty intention necessary to constitute, the ordinary crime of murder, there is no murder at all. At most, the crime will amount to manslaughter.
What we are dealing with in subsection (2) of Clause 5, which I am seeking to delete, is something entirely different. Under this subsection the man who will be held not guilty of capital murder by reason of the subsection is a man who low, the full criminal intent necessary to constitute the crime of murder. Although he may have that full criminal intent that the murder which is committed should be committed, he will still not be liable for capital murder unless he himself has done the act causing death or otherwise
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comes within the restricted words of the subsection:
"inflicted or attempted to inflict grievous bodily harm on the person murdered, at himself used force on that person in the course or furtherance of an attack…"
In other words, the effect of this subsection is that the accomplice in a fully intended capital murder will not be guilty of capital murder unless he falls within the precise word of the subsection which I have summarised.
This is the more astonishing because it is directly contrary to the considered and reasoned opinion of the Royal Commission themselves. I think I ought to read paragraph 118 of their Report:
"It is sometimes suggested that the existing law bears too severely on the offender who has not been directly responsible for the killing, and that a principal in the second degree, such as a burglar who keeps watch for his accomplice and has no part in striking the fatal blow, should not he liable to be convicted of murder arid sentenced to death. This suggestion received no support from any of the witnesses who appeared before us, and some witnesses with great experience it the enforcement of the law, such as the Director of Public Prosecutions and the Commissioner of Police of the Metropolis, were strongly opposed to it. Sir Theobald Mathew observed' I have little doubt that a great many gangs do not carry arms or lethal weapons nowadays because they are aware of the shadow of the rope. In cases where gangs are armed, it is seldom the ringleader who carries the gun; that is left to a stooge. 'Moreover, when two persons are concerned in a robbery with violence, it may be impossible to prove which of the two struck the blow or fired the shot. Sometimes each of the two swears that the other inflicted the fatal injury. When two or more persons are concerned in a crime which involves the use of unlawful violence, there may be substantial differences in the degree of moral guilt, but it is obviously unjustifiable to assume that the man who does the killing must always be more guilty than any of the others; he may be the agent of a stronger personality who has planned and instigated the crime. It is therefore impracticable to make by any definition or rule of law a distinction between the more guilty accomplices and the less guilty. Such a distinction can be made only by the exercise of a discretionary judgment on the facts of each case."
Then let me give one or two sentences from paragraph 120 of their Report, in which they state their own views. They say:
"In our view considerations both of equity and of public protection demand the maintenance of the principle of the existing law that when two or more persons are parties to a common design for the use of unlawful violence and the victim is killed, all the parties to the common design should be held responsible and all should be liable to the same punishment. In holding that the existing principle

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as to the liability of accomplices should be maintained, we are fortified by noting that this is consonant with the law of Scotland, where, although other forms of constructive malice are unknown, accessories are liable to be convicted of murder if there was concert to use some violence."
I have quoted those passages from the Report of the Royal Commission because they are, as I say, an express recommendation against the type of distinction that is drawn by the subsection which I am now seeking to delete.
What will be the consequences if my Amendment is not accepted? To one of them I ventured to draw attention in my speech on the Second Reading because I thought that it might be convenient for my noble and learned friend the Lord Chancellor to consider it. I said that I thought one of the risks of this subsection would be that in future gangs would be so organised that the lethal weapon would be carried and used by a youth under eighteen years of age and therefore not liable to the capital sentence. If a gang were organised in that way—and to combat crimes by gangs should be an object of public policy—nobody would risk being guilty of a capital murder.
But I want to give another example for the consideration of your Lordships. Let us take the case of a gang that has decided, as a matter of policy, to join together to murder a particular man. Three or four determined men, perhaps, have decided to murder a prominent politician. They go armed for the purpose and waylay him and the murder is in fact carried out by a single shot from one weapon. If the facts which I have recounted can be proved, then under the existing law every one of them would be guilty of murder—and, I say, rightly so—and equally guilty. But what happens under this subsection if it becomes law? Only one man will have been guilty of the capital crime and it will be quite impossible for the prosecution to say which. Nobody will know which of the four men actually fired the fatal shot. As regards moral guilt, there is no difference between them.
What, then, is the effect of acting in a gang? Under the existing law the criminal runs some additional risk by being a member of a gang. If this subsection is carried into law, far the safest way of proceeding will be to be a member of a gang,
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because if you are a member of a gang and a lot of people join together to commit a murder in circumstances where it will be quite impossible for the prosecution to prove who actually struck the fatal blow, then nobody will have been guilty of the capital crime. I cannot believe that, if the Government's principle in this clause is the maintenance of law and order, we ought lightly to allow the passage into law of something that gives so much advantage to gangs.
To sum up my argument, let me say this of the subsection which I am seeking to omit. First, it has not yet been explained at all; secondly, it is entirely unnecessary for any purpose of the Government which has hitherto been stated; thirdly, it is contrary to the express advice of the Director of Public Prosecutions, the express advice of the Commissioner of Police of the Metropolis and the specific conclusions of the Royal Commission on Capital Punishment; and fourthly, it will directly encourage criminals to work in gangs if they wish to avoid the risk of a capital charge.
I beg to move.
Amendment moved—
Page 2, line 38, leave out ("Subject to subsection (2) of this section,").—(Lord Conesford.)
3.52 p.m.
THE LORD CHANCELLOR: My noble friend Lord Conesford, asked, in the course of his most interesting speech, for an explanation of this clause—I think that is what he meant by saying that it had not hitherto been explained. I gladly deal with that point, and I would ask the Committee to look at the clause. Subsection (2) says
"If, in the case of any murder falling within the foregoing subsection, two or more persons are guilty of the murder, it shall be capital murder in the case of any of them who by his own act"—
then, in the first category—
"caused the death of…"—
second category—
"inflicted…grievous bodily harm on"—
third category—
"attempted to inflict grievous bodily harm on"—
and the fourth category—
"himself used force on that person".
Undoubtedly, that deals with the position where one of the persons indicted did not do the actual killing, so long as he

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inflicted or attempted to inflict grievous bodily harm or used force. It would cover, for example, as I am sure my noble friend appreciates, the case of someone who held someone down while another person struck the fatal blow or fired the fatal shot. It is important that that should be made clear; the subsection deals with the case that a person does not get off murder if he has the worse aim of the two, if one of the bullets causes the death and the other misses, so long as he has made the attempt.
The point that my noble friend has made is that we ought to have retained the law as to accessories in its pristine form. I do not think that on consideration he would agree with the pristine form because of the difficulty in which one is placed. I do not know what is my noble friend's view of the law of accessories, but I should have thought that the correct law could not go beyond the position in the Sissinghurst House case, where the prosecution were able to show agreement and conspiracy and confederation to use all force, even up to causing death, in order to carry out the nefarious scheme. I do not know whether my noble friend agrees with that or not. When one tries to translate that into practical legislation, as my noble friend has seen in many attempts, suggestions have been made to deal with it in order to avoid the difficulty of the intentions and the agreements in an arbitrary way, by saying that the law should apply to those who carried guns, to those who carried arms, to those who carried offensive weapons and so on. Everyone has recognised that the case of the accomplice, where he is keeping watch for the arrival of the police, and may or may not know what the other party to the criminal action is going to do, is a matter of great difficulty; and the question of proving what was the intent, whether there was any intent on his part, to cause murder or grievous bodily harm, presents immense difficulties which have been commented on again and again. That is the background: that we have a difficult problem in that way.
As my noble friend has said, we have dealt with part of that problem with, I think, universal agreement, by getting rid of the doctrine of constructive malice. But we have had to consider how the second part of the problem will be dealt
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with. Here we had to face the fact that the point of view is widely held by many people of undoubted experience and integrity of mind that a person who does not himself take an active part in the killing should not be liable to the death penalty. That that view is widely held is, as I have said, undoubted and has been shown. There is a widespread dislike of constructive malice, and we have had to try and find a method of meeting it and at the same time preserving the ability to the prosecution to carry out its work and not make it too difficult for the prosecution so to do.
I said on the Second Reading of this Bill that this was a Bill which took into account the different points of view that had been expressed in your Lordships' House, in another place and in all parts of the country, over a long and embittered controversy. My Lords, that is so. We have had this controversy going on for a period of eighteen months. I said quite frankly in putting this Bill before your Lordships that it had to be a matter of compromise between different views, because, as my noble friend the Leader of the House had said, and as I had said too, when you have had controversy, when you have had different views sincerely held, then it is important that we should try to come together and take a middle course which is reasonable and will not have an adverse effect on our primary task.
No one can deny that this is one of the aspects of the law of murder on which opinion is most strongly divided, and we have tried in these circumstances to deal with anyone who has had a share, whether successful or not, or who has inflicted or has attempted to inflict, bodily harm, or who has used force. We have on the other hand accepted the viewpoint that there are a great number of people who believe that a person who has not taken a forceful share should not be hanged. Of course he will be convicted of murder and sentenced to penal servitude for life—he will be dealt with in that way.
I ask your Lordships, and I ask my noble friend, this question. I have known my noble friend for a long number of years; I know how strongly he feels on matters which he deems matters of principle, and I should be the last to disturb that attitude of mind. But when one

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has seen not only a country, but Parties, families, and associations of all sorts, torn asunder by differences on this point, differences honestly held, with the greatest force and integrity, either way, then I ask your Lordships frankly to accept a compromise not as weakness but as something which does redound for the general strength, stability and friendliness of the State. It is in that view that I appeal to my noble friend, although he thinks we have gone too far in our exceptions, not to press his point, but to give us a chance of getting the solution into operation and seeing whether we cannot, on this basic principle of the Government's duty for the preservation of law and order, as the Government see it, at any rate for some years take this controversy from among our midst.
4.3 p.m.
VISCOUNT SAMUEL: I thought the noble Lord, Lord Conesford, made out a very strong case, and I should like to ask the noble and learned Lord Chancellor if he would tell me how this clause, as it stands, would apply in one or two particular instances. I remember that not long ago there was a very shocking murder case of a man who had held a high position, I think, in Australia and who had contracted an enmity against another which obsessed him so much that he compassed a murder of that other. I did not think this matter would come up, or I should have refreshed my memory about the details, but so far as I recollect the story was as follows.
This individual had hired, or persuaded, a person to aid and abet him; and they had kidnapped this enemy, had taken him out of London to a deserted place and there put him to death. I am not sure whether the instigator of the crime was actually present or not; but, assuming even that he was not present at the actual murder, would he now be exempted from a capital charge? Would anybody who paid an assassin to murder for political reasons any individual be regarded as less guilty than the man who actually fired the shot? Take the Guy Fawkes plot. If those concerned had been successful, and the King and Parliament had been blown up, would the conspirators who had hatched the plot be exempted from a capital charge and only the individual, Guy Fawkes or other,
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who had fired the gunpowder be convicted? In any such case the more guilty party would have the lighter sentence, and it seems to me, in view of all that the noble Lord, Lord Conesford, has said about the views of the Royal Commission, the Commissioner of Police and the Public Prosecutor, that on merits the noble Lord's Amendment is desirable.
The Lord Chancellor had another answer to it; an answer which he regarded as the more cogent and conclusive. He did not say so in words, but what he implied was: irrespective of merits, and whatever the House may think about the propriety of this clause and this Amendment, do not pursue the matter, because this Bill, which has been the result of so much controversy, is avowedly a compromise, and the strongest opponents have agreed with the advocates of the Bill to allow it to go through without further discussion. But does the noble and learned Viscount really ask your Lordships to refrain from making any Amendment which they may think to be justified, by reason and argument and authority, merely because this is a Bill which has passed through that process of generation? Surely that is showing very little respect to your Lordships' House. I do not think for a moment that that can be accepted. Let us argue these matters on their merits, and let us discuss them; but if we come to a clear and conscientious opinion that an Amendment is necessary, we really cannot agree with the Government when they say that we should drop all such discussion and refrain from making any Amendment at all. If that is so, I think it would be quite proper for any one of us to move that this debate be now adjourned and that the House refrain from being put to the futile labour of considering and debating any Amendment upon this Bill.
THE LORD CHANCELLOR: The noble Viscount, I am sure quite unconsciously, has entirely misrepresented my argument. My argument was not that no Amendment should be made. My argument was this: that on certain points, and this is one of them, there are bound to be differences of opinion strongly held by people to whom I at once concede complete integrity of mind, because I am never one who is able to impute a lack of sincerity to other

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people simply because I disagree with their views. I accept entire sincerity on all sides, but I do say that here is a point on which honest and sincere people may take different views.
Let me take the noble Viscount's example of the Guy Fawkes plot. Where is he going to draw the line as to the people he would have desired to be hanged, drawn and quartered at that time? Take the noble Lords in whose house the plot was hatched—I am sure the noble Viscount would say that they should have been hanged, drawn and quartered. But what about the Yorkshire squires? They were on the fringe of the conspiracy. What about the tenants and the lackeys who carried the messages from Yorkshire to Northamptonshire, and then to London? They knew what they were doing, though the influence on them was, of course, a very different matter. All these things would have come into the question of treason at that time. The law as it existed would have made no difference between them until the matter of clemency had come into operation.
What I am saying to-day is that this is a difficult point. I do not think the noble Viscount, Lord Samuel, followed me in the difference of the cases I was taking. If one takes the case of the min who keeps watch, knowing that his fellow is going to rob, he may or may not know what is going to happen or is likely to happen. He may not have the slightest idea that his fellow will be disturbed. On the other hand, there might be a quite clear agreement that if anyone interrupted, that person was to be knocked on the head or killed. This is the kind of problem that has to be solved. I am sure that it could be done. If my noble friend Lord Conesford and I were shut up for a month, with the right to have a clause of 100 lines, I believe that we could find a clause which would get nearer to justice; but it would be an extremely difficult clause to work.
In framing this Bill we have therefore had to take a clear and comprehensive middle line. As the noble Viscount has himself said, one of the most desirable qualities of the criminal law is that it should be clearly understood; and, drawing the line at the person who has used or attempted to use any force at all, we
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have said: "Do not take into account the person who has not used force." But that does not mean that he gets off. It means merely that he escapes being hanged. As I have said, the question of the moral culpability, going down the scale, of persons taking different parts in an agreement or conspiracy is one of the most difficult things for anyone to assess—and I have had to consider it. I am saying here that we have taken a middle view, and I am asking those of your Lordships who think that we have drawn the line too far to consider this not only as a problem that stands by itself but as a problem which has to be settled as a whole.
That is not treating your Lordships' House with disrespect. It is asking the House to carry on with the work which it began. It is one of these oddities which give to political life that fragrance of uncertainty which is so high a quality that it was at the instance of the noble Viscount and of the most reverend Primate that my noble friend the Leader of the House and I set our hands to the task of trying to find a middle course. Now, such is politics, when I come and ask your Lordships, even if you are not entirely with me, to accept that as a middle course, it is from the noble Viscount who inspired this course of action that one receives the most pungent and astringent criticism. All my life, in the course of a long friendship with the noble Viscount, which now goes back some forty years, I have had the greatest admiration for him, but I do ask him on this occasion to draw the distinction which I have made; and I ask him also to carry al with the work which this House has done, at his inspiration, in this field.
VISCOUNT SAMUEL: Tae noble and learned Viscount has made a pathetic and personal appeal, and has discussed wide questions of policy; but, carried away by his own argument, he has omitted to answer my question. My question simply related to the meaning of this clause and what would be its effect. It was this. The clause says:
"it shall be capital murder in the case of any of them who by his own act"—
I ask you to note those words—
"cause the death of"
and so on. The question my mind is what is meant by the words:
"by his own act caused the death of…"

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I took the specific case of what was called, I believe, the chalk quarry murder. In that case, a man hatched a plot against his enemy and (whether he himself was present or not, but assuming for the moment that he was not) employed an assassin to take his enemy to an out-of-the-way place and put him to death. Did that man, by his own act, cause the death of his victim? Or was it only the actual assassin? I should say that undoubtedly any court reading the whole of this subsection would say that, taking the matters in causa materiae, or taking all the various categories which the noble and learned Viscount has described, that man was not causing death by his own act. Yet he was the real assassin. Is that not so? It is therefore no answer to say, "Oh well, once you go away from the person who causes death by the use of some weapon, or by strangling with a cord, though that person is to be hanged nobody else concerned is to be hanged", and that a line cannot be drawn. If that is so, then this Bill is even more imperfect than I thought it was.
I would beg the noble and learned Viscount to consider those words again and to tell us what they really mean. Does a person cause the death of another if he promotes that person's death and employs someone else to kill him, whether or not he is present at the time, or does he not? We ought to have an answer to that question, and the argument that this is a compromise Bill, and that people of various views on the whole subject have come together, and that all kinds of difficulties must arise, and that we really ought not to be too particular but should accept the Bill as it stands, cannot be accepted by the House.
4.19 p.m.
THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF SALISBURY): I did not intend to intervene in this debate—indeed, I cannot put the case for Her Majesty's Government nearly so well as it has already been put by my noble and learned friend the Lord Chancellor. I look at the matter in this way. There must be some point where the line is drawn, and I believe that a perfectly fair point is: who is the person who actually deals the blow? The noble Viscount, Lord Samuel, may not accept that, but to most of us who believe in
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the retention of some form of capital punishment the object of the whole of this Bill is to create a deterrent. The noble Viscount may take the case of a rich unscrupulous person who bribes a poor unscrupulous person to commit a murder for him. That is the sort of case which he put forward. It may be said that both of them are guilty—the man who bribes and the man who is bribed. But if the man who is bribed were not there to be bribed the murder would not be committed. Someone has to be found who will be bribed and who will commit murder. It is against that man that the deterrent under the Government's Bill is applied. It seems to me to be a perfectly fair basis.
The noble Viscount quoted the case of the Gunpowder Plot. In a case of that kind clearly there were degrees of guilt among all those who knew of the Guy Fawkes plot. Some had greater guilt than others. But if the gunpowder had exploded one man would have exploded the gunpowder. It is against that man that the Government Bill is directed. It is, I agree, in the nature of a compromise between those who would like to hang a great many more people than are hanged now and those who would like to hang nobody at all—and all those are represented in this House to-day. At any rate, that is the definite point: you put your deterrent against the man who definitely uses the weapon, or whatever it may be, to procure the death of someone else. It seems to me a perfectly logical place at which to draw the line and that is where the Government draw it.
LORD CHORLEY: I wish to say a word or two about this matter. I should like to have the noble and learned Viscount's answer to this question. I did not feel that his reply was altogether satisfactory. I think that perhaps he was a little emotionally aroused by Lord Samuel and that his answer was not quite so clear as it would have been if given when he was not so emotionally aroused. I am not, myself, interested in trying to bring more people within the net of capital murder, but I am very much concerned with the law in relation to this matter, and it is, after all, of great importance that it should not be brought into disrepute with the general public. As this matter stands Lord Conesford has made a very powerful case, and the noble

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and learned Viscount, the Lord Chancellor, in answering, seemed to me probably to be confusing constructive malice with the law on aiding and abetting, which, as he knows—and I am sure he will agree when he thinks it over quietly—are two quite different things. The law about aiding and abetting is not easy, but juries have had to apply it, and on the whole have applied it with reasonable success, for a very long time.
I should not have thought that it was beyond the wit of draftsmen to keep these two matters apart from each other. I think the illustration based on the Gunpowder Plot is a little fanciful in the 20th century. Perhaps I can put a modern case, and if the noble and learned Viscount can answer it to my satisfaction it will go a long way towards convincing me that this matter is all right. This is the sort of thing that can, I believe, arise in practice. Let us suppose that two men take part in burgling a house. One, the older of the two, is a real felon, the other a youngish and not very experienced criminal. They get into the house and they hear a noise. The older man—the ringleader so to speak—presses his revolver into the hand of his companion and says: "Wait here, and if that fellow comes round the corner, you shoot him while I am getting the stuff out of the safe at the other end of the room". In the circumstances, if the householder should come round the corner, the young man would quite probably shoot him dead.
To any ordinary mind, the really responsible person is the older criminal who has brought that murder about. If this sort of case is to go to the general public as a case where the older and really wicked man escapes the capital charge and the other man is sentenced to death, the law in this matter cannot but be brought into contempt. It may be that the noble and learned Viscount will say that the other man is, in fact, guilty of shooting because he has put the revolver into the hand of his companion, and because he was there at the time the shooting occurred. In aiding and abetting, undoubtedly that would be so. He would be the principal under the present law, and clearly would be guilty of murder—and not constructive murder, because constructive murder is something quite different from that case.
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That is the sort of case with which Lord Conesford, I think, is concerned, and certainly with which I am concerned in relation to the feeling of the general public on this matter.
THE EARL OF SWINTON: May I put in a word to reinforce what Lord Chorley has said in reply to what the noble Marquess the Leader of the House has said? The noble Marquess has told us what in these compromises it is sought to do. As we accept the necessity for the deterrent, we therefore wish to make the offence capital murder. By doing so we apply a deterrent. And in answering the noble Viscount, Lord Samuel, he referred to the case of the chalk quarry murder. That was the case of the rich man who bribed another man to kill. But the deterrent, it is true, may not have applied to the millionaire. The deterrent did apply to the gentleman whom he employed, because he was going to hang if he got caught.
Then take the case of the two men of whom Lord Chorley has spoken—the hardened middle-aged criminal and the younger man. Let us consider the case—for alas! such cases happen, as we know—not merely of a young man who does the shooting but of a boy who is too young to be hanged. Both the hardened criminal and the boy know that if it is the boy who shoots, no one is going to be hanged. What happens in that case? It is Lord Chorley's case, but with the junior partner too young to hang. In that case there certainly is no deterrent upon the boy, because he knows he is not going to hang as he is too young. And there is certainly no deterrent upon the hardened criminal who uses the boy as his agent to fire the shot, because he knows that he will rot be hanged and the boy certainly will not be hanged.
I cannot, for the life of me, see how the argument of the Leader of the House applies in that case. I think it is terribly difficult there to appreciate the attempt the Government have made. On the other hand, I must say that I share the view of the noble Viscount, Lord Samuel, and the noble Lord, Lord Conesford, as to the idea that because the Government have tried to arrive at a compromise which they believe on the whole will meet the views of a great many people that exonerates us in this House from taking

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our own view and exonerates us in our own individual consciences; because if ever there was a Bill in which the matter of personal conscience arises, it is a Bill like this. There may be an appeal to compromise, but we must, if possible, be convinced that what we are doing is right.
EARL ATTLEE: I was not really quite convinced by the argument of the noble Marquess the Leader of the House with regard to the case of the man who is bribed to do a murder. The noble Marquess says that the line has to be drawn somewhere and that if there is no man ready to do the murder, the murder would not take place. It is equally clear in the case of a man who is hired to do a murder that if there was not a man ready and willing to pay money to have the murder committed, the murder would not take place. I think that in the mind of the general public the man who hires another to commit a murder is probably even more guilty than the man who strikes the blow. Therefore I do not quite see the logic of that line of argument.
THE LORD CHANCELLOR: I am sorry if I did not give a clear explanation when I spoke earlier. I can assure the noble Lord, Lord Chorley, that I am not emotionally disturbed in the sense in which we were discussing emotional disturbance under an earlier clause of the Bill.
LORD CHORLEY: In so far as I am a jury, I acquit the noble and learned Viscount.
THE LORD CHANCELLOR: Would your Lordships do me the honour of looking again at the subsection? It reads:
"If, in the case of any murder falling within the foregoing subsection, two or more persons are guilty of the murder, it shall be capital murder in the case of any of them…"
Again, if I may I would give my four categories, first,
"who by his own act caused the death—"
secondly,
"inflicted grievous bodily harm on the person murdered."
thirdly,
"attempted to inflict grievous bodily harm on the person murdered"
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and fourthly,
"who himself used force on that person in the course or furtherance of an attack on him;"
These are the limits. They go farther than the person who has actually caused death by shooting a man dead or by putting a knife into a vital part. It is enough if anyone else has done any bodily harm or has tried to do any bodily harm or used force (and I call attention to these words)
"in the course of furtherance of an attack".
I apologise to the noble Viscount, Lord Samuel, for not having dealt with the specific case he mentioned—I am afraid that his second case, the Gunpowder Plot, was so attractive that it misled me from the first. The Australian in question, who had inspired the murder, would be liable to be hanged only if he had used force at some stage of it. If he had used force in attempting to kidnap in order that the man should be shot, I should have thought that that would be enough. I should not like to lay down specifically where the point would be, but he would have had to use force or have attempted to hurt him. That is the limit under the Bill. I hope that it is clear to the noble Lord, Lord Chorley. If he has any different view, I shall only be too happy to help him.
LORD CHORLEY: The case I was putting was not quite the same. In my case the man was actually on the spot.
THE LORD CHANCELLOR: That would be a question of whether it was joint action, which would depend on the circumstances of the case; but unless it was a joint action the person involved would have had to use force. That is the line we have taken.
In answer to the point of the noble Earl, Lord Attlee, on the need of dealing with both parties in a conspiracy to murder, if my recollection is right, for ninety years the penalty for conspiracy to murder, where there was no implication in the actual murder, has been penal servitude for life. To that extent it has a respectable parentage. The point that I am seeking to make is that we have to draw a line somewhere, and if we draw a line at a point different from the use of force we get to the difficult question—I hope your Lordships will agree with this—of how much moral culpability

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attaches to someone who was not present and not assisting in the use of force at the time. Your Lordships have all said that it must vary infinitely with different circumstances.
I am sorry if the noble Viscount, Lord Samuel did not understand me. I am sure the fault was mine. The point I was putting was that we are not passing a moral judgment on special circumstances; we are constructing a Bill which has to lave a general application. In doing that, as the noble Viscount knows very well—because he was a Minister continuously for eight years, apart from his second term of office, and has had a vast experience of this matter—we have to meet the general position. We must draw a line which is an arbitrary one and will have hard cases up against it. We say here that this is the fair place to draw the line because, if we depart from presence and actual use of force, we get into such a difficult field of moral culpability that it would be impossible to draft a Bill. I hope that I have put the matter clearly. I hope that your Lordships will acquit me of any feeling in the matter except. I frankly admit, an intense desire to see this controversy honourably healed.
4.37 p.m.
VISCOUNT WAVERLEY: It is with great trepidation that I intervene in this matter, but after listening carefully to the discussion it seems to me that we are in some danger of getting at cross-purposes. If I understand the line taken by the Government, it is that in this compromise Bill a distinction might fairly be drawn between those who by their own physical acts have brought about a killing, or who have contributed to a killing, and those who may have plotted a killing. The question that was put by the noble Viscount, Lord Samuel, was whether, in the case, for example, of the chalk quarry murder, which I remember very well, the distinguished person from one of the Dominions who had a dominating purpose to get rid of a certain man, who sought his death, who suborned somebody to take that man to a chalk pit at Caterham, or wherever it was, and brought about his death, could be held, under the clause as it stands, to have caused the death by his own act. It is perfectly possible to argue as the clause stands that that person caused the death
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by his own act. I do not think that the Government had it mind that the clause could be so interpreted, and I am wondering whether the, Government, by the words
"by his own act caused the death"
do not really mean, "by his own physical act caused the death" and not by some plot or plan in advance brought it about, I think that if we could have a clear answer on that point, we should know much better where we stand.
THE LORD CHANCELLOR: I am most grateful to my noble friend. That is what we do mean, and I had hoped that I made that clear.
VISCOUNT SAMUEL: The whole purpose of my intervention was to inquire whether that was so. When I read the Bill, I assumed that "causing the death" referred to the person who planned the act, the instigator of the act; but in view of the remainder of the subsection, which sets out a variety of categories, I could well suppose that a judge directing a jury might say that this subsection is very obscure, but that, taking into account the fact that there are four or five categories, they must be all more or less of the same character, and must all be governed by the consideration that the person who is to be charged with a capital murder is the one who has caused the death by his own hand—and "by his own hand" means the action of his muscles. But the noble and learned Viscount, the Lord Chancellor, now says that that is not so, but that the instigator may be convicted. Can he be convicted of conspiracy to murder; or can he be convicted of an actual murder? Perhaps we have carried the matter as far as we can to-day, but I would beg the Lord Chancellor to reconsider it, and perhaps to take some consultation with the Lord Chief Justice, ho I regret is not here to-day, to see what kind of interpretation the courts would be likely to put upon this matter. If, indeed, the interpretation is precisely what the Lord Chancellor now says, then he has quite contradicted his noble friend the Leader of the House, w ho said that there was a clear, logical distinction between using a weapon and not using a weapon.
THE LORD CHANCELLOR: I have tried hard to make this matter clear, and I am willing to go on as long as it is

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necessary. I answered my noble friend Lord Waverley, I think, perfectly clearly: that causing the death meant physically causing the death. Of course, it does not exclude the other three categories which, as I have twice said to the House, "let a man in"—for instance, if he has caused grievous bodily harm. To take an example, if two people shoot and one's bullet goes through the heart and the other's bullet goes through the stomach, both will be liable to be hanged. But the other is attempting to cause grievous bodily harm, as I said earlier. If one man shoots and misses, he is equally liable to be hanged, if the other is using force—I gave the example (my noble friend Lord Conesford will bear me out) of the person who holds the murderee down while the other person kills him. I think I made the position perfectly clear, and I have tried to explain exactly where we have drawn the line.
THE EARL OF SWINTON: I do not rise to ask the noble and learned Viscount the Lord Chancellor to elucidate the position further, because I think he has made it clear beyond a peradventure. It is quite clear that nobody is going to be hanged unless he has himself used some degree of physical force at the time the murder is committed. Whether the words are correct words to describe that I do not know; that is a matter for the lawyers. But what troubles me is that that is the intention of the Government. That is what I would beg the Government to consider again. I realise that there has to be compromise in this matter, but, quite frankly, I believe that the Government in this particular instance have reached a compromise that satisfies nobody. We have had to-day in this House noble Lords who are opponents of hanging altogether (the noble Lord, Lord Chorley, is one), and who take the view that, if we are to keep hanging at all, then in the most serious capital cases the man who ought to hang is the guilty man, and the man who should be deterred is the guilty man.
Accepting completely what the Lord Chancellor said as to what is the purpose of this clause, and assuming that the language used gives effect to it, then I must say that it is a clause I cannot vote for, because I think if we are to keep hanging at all—and I think it is
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right to keep it—it is right to have a compromise in the matter, but I cannot separate the moral issues from the other issues in what is, after all, the greatest of all moral crimes in the calendar. It seems to me that we should be stultifying ourselves, whether we agreed with capital punishment or not, and going contrary to what I should have thought was all conscience and common sense, if we deliberately put in the Bill, as a compromise, that in the case where two people have conspired together to "do somebody in", and are working together to that end, the far less guilty party, the one who does the actual physical act, shall hang, but that the person who is really responsible shall not. He is just as responsible as if he had fired the shot himself; indeed, he is more responsible, because he is, after all, the hand behind the gun. If we are to make that a capital crime at all, the real man behind the gun is the man who ought to hang.
LORD CONESFORD: I am sorry that I cannot do what in other circumstances have often been able to do, and that is to withdraw the Amendment at the request of my noble and learned friend the Lord Chancellor. Let me agree with him and with my noble friend Lord Swinton at once, that I do not think there is any question at all of faulty draughtsmanship of the subsection I am attacking. I think it expresses its intention perfectly clearly; but I believe that intention to be wrong. Perhaps I might repeat the two examples I gave, because I think my noble friend Lord Swinton was not present at the time I gave them. One of the two examples I gave of the consequences of this clause, if it becomes law, was the very one I gave in my speech on Second Reading, and which my noble friend mentioned in his intervention—namely, the case of a gang so organised that the lethal weapon is carried and used by a youth under the age of eighteen. In such a case this Bill, when it becomes law, will deter nobody.
The second example that I gave deserves, I think, the consideration of the Committee no less. I gave the example of four men deliberately setting out to murder, we will say, the Prime Minister—or perhaps we had better take an example of a Minister a little less closely protected by the police. All four men are

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armed, and they waylay the particular Minister. They get together to cause that man's death; they waylay him, and they do in fact cause it. But only the one shot is fired. It is perfectly true that under this clause the one man who tired that shot will be guilty of capital murder. But nobody will ever know who he was. Absolute security from a capital charge has been secured by the simple method of operating as a gang. Had the man gone alone, he would have committed a capital murder. The Government's object being to preserve law and order, I cannot understand how they can put in their Bill something so calculated to make it advantageous to operate in gangs.
My noble and learned friend the Lord Chancellor spoke persuasively and with great sincerity about possible compromise. Let me assure him that, while I expressed opposition to the Bill on Second Reading, in every Amendment I have put down I have not sought to wreck the Bill, but have sought to improve it according to the Government's own principles as announced: law and order and so forth. He asks what should be the compromise here. I say that the compromise here could be precisely that which was suggested by the Royal Commission: the abolition of the doctrine of constructive malice, which has been accomplished by Clause 1 of this Bill, and the carrying out of the recommendation which they state repeatedly in their Report. I will confine myself to the one sentence which I have already quoted. Paragraph 120 of the Royal Commission Report says:
"In our view considerations both of equity and of public protection demand the maintenance of the principle of the existing law that when two or more persons are parties to a common design for the use of unlawful violence and the victim is killed, all the parties to the common design should be held responsible and all should be liable to the same punishment."
The fact that they should he liable to the same punishment does not mean that they should all invariably suffer the same punishment, but at least let us maintain that valuable provision of the law.
On Question, Amendment negatived.
4.55 p.m.
LORD CONESFORD LORD CONESFORD moved in subsection (1) (a), to leave out "theft" and insert "another crime". The noble Lord said: I rise to move Amendment No. 7 on the Marshalled List, to leave
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out "theft" and insert "another crime." This amends the description in paragraph (a) of the first category of capital murder in this Bill. The case made by my noble and learned friend the Lord Chancellor in the debate on Second Reading was the need to discourage the use of murder in the furtherance of other crimes, and with that I think all quarters of the Committee will agree. But why has theft alone been selected in the description of those other crimes? Let me say at once that I agree with the noble and learned Viscount that theft is far the most common. It will cover a great many cases, but I think he will himself agree that, in his necessarily brief speech in the Second Reading debate, he slightly overstated the fact when he said that [OFFICIAL REPORT, Vol. 201, col. 1171]:
"The object of these professional criminals k always some form of theft."
It is, of course, generally their object, but it is not always their object.
I should like to mention to the Committee one class of crime which professionals may join in a gang to commit, and that is sabotage—sabotage of power stations, destruction of railway termini, and the causing of railway accidents. It is quite true that our immediate experience of those things at the present moment is in a part of the United Kingdom to which the present measure does not apply, but we have had experience of such crimes in this country in the past end we may well have it again. It is worth noticing that, in various foreign countries where they have laid down penalties for certain murders committed in furtherance of other crimes, while the list of crimes differs as between different countries and different States, I do not think there is any country which has singled out the single crime of theft and put that alone.
The noble Viscount, Lord Samuel, has mentioned the Gunpowder Plot. Let me take the case of criminals—for instance, a modern Guy Fawkes—w ho decide to blow up the Houses of Parliament or some public assembly room. If men setting out with such an object were interrupted by some guardian or custodian and killed him, it would very much astonish the public that that would not be capital murder, on the ground that what they were intent on doing was arson or wholesale murder and not theft. I cannot

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see why theft has any magic about it, why it alone should be selected. It may be said that my proposed Amendment to substitute the words "another crime" would include under "another crime" some crimes that may be trivial. I do not think that that is a very valid objection, because, of course, if that were an objection it would also be an objection to including all theft, because some theft in itself is trivial. So I do not think the question of triviality can be the test. I suggest that the real principle which the Government had in mind, presumably, in this first category was murder used as a means of furthering other crimes. There is no logical reason for confining the other crimes to the single case of theft. I beg to move.
Amendment moved—
Page 2, line 40, leave out ("theft") and insert ("another crime").—(Lord Conesford.)
5.2 p.m.
THE LORD CHANCELLOR: May I deal with the last point which my noble and learned friend made as to the purpose of the Government in using the word "theft"? The purpose was to deal with professional criminals. I would ask my noble and learned friend to let his mind go back, as mine does, to the early days at assize towns. I think he would agree with me that always over 75 per cent., and usually 80 per cent. or 90 per cent., of the cases dealt with charges which involved theft. Under the definition—my noble and learned friend has looked at it but, if he would not mind looking at it again—he will see at the top of page 4 these words:
"'theft' includes any offence which involves stealing or is done with intent to steal."
That, of course, covers a wide range of offences and it also gets rid of all the difficulties about whether the front door had been forced open or opened with a key, and so on. I am taking 75 per cent. as the proportion of the offences that I used to see. The people concerned were professional criminals, and they are the people who, it is extremely important, should not carry arms or should not use force.
Will your Lordships allow me one personal recollection? The first time that I spoke on this subject in Parliament—I think it was in 1938—I was able to say (and I think everyone will agree with
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me) that the British burglar is the most timid of God's creatures. He was in 1938 and I see no reason why he should not be again. At that time the professional criminal would leave a house on hearing a sound rather than get into the position where he might have to use force. It is because of the extreme importance of the discouragement of force in professional criminals, the prevention of their carrying arms and the fact that the majority of professional criminals are engaged on offences which involve stealing, that we make this first provision. As my noble and learned friend will appreciate, we deal with the usual use of gangs in another Amendment, to which I drew attention.
In view of the line that my noble and learned friend Lord Conesford has taken, I am not going into the question of rape, with which I dealt on the Second Reading, but that is just one aspect which shows the difficulty with regard to the Amendment. My noble and learned friend, with great good temper and kindness, has rather dealt with the Bill, and he will not take it amiss. I am sure, if I deal with his Amendment for the moment, on the reductio ad absurdum basis. It is rather odd that, if this Amendment were carried, murder by deliberate running down in a car would be capital if done on the footpath on the side of the road, but not if done on private property. It would be capital to electrocute your wife in the bath if in so doing you abstracted electricity from the mains without telling the electricity authority, because that would be contrary to the Larceny Act, 1916, Section 10, but it would not be capital if you had your own generating plant. If without a licence you kept a lunatic and starved him to death, that would be capital, but it would not be if you had a licence, because that would be in accordance with the Lunacy Act, 1890, Section 315.
My noble and learned friend knows me too well to mistake what I have said, but I think there is an object lesson in it: that it is not always easy to get the right words even for anyone as learned and industrious as he. I put the general point, and I would ask him to appreciate that we have considered this matter. We considered it most carefully in regard to sexual offences, a matter with which, as I have said, I have dealt already. I think that, by taking theft in the sense in which

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it is used in the Bill—that is, offences involving stealing—we are carrying out the most important object that we could have, namely, so strike at the professional criminal. In these circumstances, I would ask my noble and learned friend, having given an airing to his viewpoint in so interesting a manner, not to press an Amendment which would have some surprising results, as I have endeavoured to show.
LORD CONESFORD: I am sure that my noble and learned friend is right in his technical objections to my wording, although I think most of them could be met by striking out the words "course or" and making it simply "furtherance of another crime". That is a slight further Amendment which, if my Amendment in principle were adopted, we could consider on Report stage. The particular class of crime which I confess I had in mind and which I ventured to cite in my speech, was the rather important class of sabotage of power stations, railway stations and so on. It will be shocking to the public when they find that a murder committed in order to enable people to commit sabotage is not a capital crime. However, my object was persuasion and, although I believe in the principle in my Amendment, I do not propose to carry it to a Division.
THE LORD CHANCELLOR: I am most grateful to the noble and learned Lord. I have had some experience in prosecuting saboteurs and there is consolation in the fact that they practically always use either guns or explosives, so that they would be caught on another clause.
Amendment, by leave, withdrawn.
5.10 p.m.
LORD CONESFORD LORD CONESFORD moved, in subsection (1), to add to paragraph (b):
"or fire or by the use of an offensive weapon;"
The noble Lord said: This is the last of the Amendments with which I propose to trouble the Committee, but it is, I think, an Amendment of some importance. It does two distinct things. First of all it adds the words "or fire" after the word "explosion" in line 41. I think that after the phrase "any murder by shooting or by causing an explosion" we should add the words "or fire." It
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would be a rather paradoxical result for a person to be guilty of a capital crime if he put explosives in the basement of a public building to blow up those working there, but that it would not be a crime if he merely put inflammable materials which he just lit. Although, therefore, this looks a comparatively small Amendment, I think it is one which is logically desirable.
The substantial addition to the clause is the second part of my Amendment, which reads "or by the use of an offensive weapon." The general nature of this category of capital crime is to prevent armed criminals from using weapons to commit murder. It is perfectly true that in some ways guns and explosives are the most important; but they do not stand alone, and they are not perhaps those to which public attention has been most drawn in some recent sensational crimes in London itself. The use of the razor or dagger by gangs of professional criminals, and even by youths, has led to some grievous wounding and, in some cases, death. The words "offensive weapon" will be words that my noble and learned friend will recognise, because they are taken from his own brief but admirable Act of Parliament which lie carried through at the time when he was Home Secretary—namely, the Prevention of Crime Act, 1953.
May I remind the Committee of the words in Section 1 of that Act:
"Any person who without lawful authority Or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence."
Those are the operative words. I think that is a useful Act. It is achieving its object, and I cannot see why my proposed addition, which covers all offensive weapons, to the two categories which he has at present in the clause would do any harm to arty cause which he has at heart, whereas it would greatly increase public safety. If you simply make it a capital charge to use certain defined weapons, of course the tendency will be use others, and I think you need to meet that case. What you want to do is to hit at the armed criminal. He may arm himself with a bicycle chain, with a razor or with many other objects. If I might remind the House of the definition of" offensive

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weapon "taken from the Statute which I have cited, it is this:
" 'Offensive weapon' means any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him."
If my noble and learned friend favours my Amendment, he may think it desirable that I should put down a further Amendment, which, needless to say, I shall be glad to do, on the Report Stage, indicating that "offensive weapon" has the same meaning as in the Prevention of Crime Act. 1953. I do not think there is anything technically difficult about the Amendment which I am proposing, and I beg to move.
Amendment moved—
Page 2, line 41, after ("explosion") insert the said words.—(Lord Conesford.)
THE LORD CHANCELLOR: Again my noble friend has done a service by directing our attention to an important point, and I should like first of all to place quite frankly before him and the Committee the difficulties which I find in considering the cases which he had in mind. The first is the question of murder by fire. Murder by fire is rare and is not a form of murder which so obviously and dangerously strikes at the basis of public order that, despite its rarity, the capital sentence must be retained for it. I am advised that in the nature of things it would be difficult to prove that a particular killing was murder by fire. Where the body has been largely destroyed it will be extremely difficult to be sure whether death occurred before the fire or was caused by it.
If I might show my noble friend that I am not dealing with the matter merely in an a priori way, I would remind him of the case of Rouse. My noble friend will remember that in 1931 Rouse was convicted for the murder of an unknown man whose charred remains were found in a burnt-out motor car, and he was thought to have stunned his victim before setting fire to the car. There was medical evidence that the cause of death was shock due to burns. But it might be difficult in such a case to prove that the victim was still alive when the fire was started and had not been killed by a blow beforehand. Perhaps I might cite to my noble friend a case in which I myself was engaged at about the same time, about a quarter of a century ago. In that case, two elderly
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people in the North of England were killed in a bungalow. It is one of the many cases that were known as "the bungalow murder" in that part of the country. In fact, all that was left of the woman in that case was about the size of a tobacco pouch, but in that there were twenty-five shots. That, of course, is not of great relevance, although it comes into the point. I quote it to show that it is often difficult in cases where the murder is covered by fire to know what is the actual case of death. Of course, in cases of strangulation and the like it is more so. These are the reasons why we thought that we should not include fire.
On the question of an offensive weapon, I agree that my noble friend has a good line of attack on myself, because I asked the House of Commons to make it a criminal offence to carry an offensive weapon, and, as my noble friend has said, the House agreed. But I think that when one is considering whether one should incorporate that matter in this Bill one has to follow what happens. I think my noble friend will agree that it would be for the judge to say whether the weapon could be an offensive weapon, according to the definition that he has read out, and then it would be for the jury to say whether it was within the definition. If I may express a little parental pride, that is, I think, a very effective definition for dealing with that particular offence, because it means that if a man has something like a substantial walking stick, which may be a walking stick or a bludgeon, then it is for the court to say whether he intended to use it. The same applies to the bicycle chain carried under the coat collar. It is for the jury to say whether the accused intended it as an offensive weapon or whether he had had a misfortune with his bicycle. In the sort of case which I am sure many of your Lordships are accustomed to, and have had to deal with in other capacities—the case where someone simply smashes a glass or a bottle and uses the remains for offensive purposes—I think it is perfectly right to leave it to a court to say whether that weapon was adapted or intended to be used for the purpose. But I should not have the same confidence in using the same procedure as a criterion between capital and non-capital murder.
I think that there is a difference, and when one is drawing up categories one

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has to be very firm on the two reasons which I gave; first, the question of the preservation of law and order, and, second, the deterrent. Because I do not think that these border-line cases, which, as I say, I think were perfectly proper in dealing with the question of carrying arms per se, have the same compelling power when it is a question of deciding whether this is a matter on which we are to say that, by the test of law and order and deterrent, the matter would be a capital murder. Those are the reasons. What I should like to do is this. I should like to re-read my noble friend's speech and I will write to him about it. I do not want to give any further undertaking at the moment—he knows the position very well; he has been a Minister himself. I will write to him about it, and if, after seeing the Home Secretary, I feel that any change is necessary I will let him know. Perhaps my noble friend would leave it at that for the moment.
LORD CONESFORD: My noble and learned friend is so reasonable that of course I will adopt his suggestion. May I put two points to him once more? I agree with a good deal of his remarks about fire in an ordinary murder, but I ventured to give an example more in the nature of sabotage, where there would be no technical difficulty in proving murder. If a person set fire to a building where a meeting is taking place in order to destroy the people at the meeting, there would be murder by fire. With regard to offensive weapons, I welcome what my noble and learned friend said about further consideration. I will tell him what is in my mind. It is the increasing and very horrible use of razors and daggers by razor gangs and by youths. I think that may become as much of a public evil and danger as even carrying firearms, because there is a liability to draw daggers and razors all too easily and quickly. But my noble and learned friend has given an undertaking, and I know he will honour it. In those circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave withdrawn.
Clause 5 agreed to.
Clauses 6 to 8 agreed to.
Clause 9:
Punishment for murders not punishable with death, and other consequential provisions
9.—(1) Where a court (including a court-martial) is precluded by this Part of this Act from passing sentence of death, the sentence shall be one of imprisonment for life.
(3) In section fifty-three of the Children and Young Persons Act, 1933, and in section fifty-seven of the Children and Young Persons (Scotland) Act, 1937, there shall be substituted for subsection (1)—
"(1) Sentence of death shall not be pronounced on or recorded against a person convicted of an offence who appears to the court to have been under the age of eighteen years at the time the offence was committed, nor shall any such person be sentenced to imprisonment for life under section nine of the Homicide Act, 1957; but in lieu thereof the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty's pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct."
5.26 p.m.
THE EARL OF HADDINGTON THE EARL OF HADDINGTON moved, in subsection (3), in the proposed new subsection (1), to leave out "eighteen" and insert "twenty-one" [years]. The noble Earl said: I think it is quite clear what my three Amendments seek to do—namely, to raise the age limit below which no person may be sentenced to death, from 18, as it stands in the Bill, to 21; that is to say, at the time the offence was committed. I submit that in no way do these Amendments alter the principle of the Bill, and I feel that they come entirely within the scope of the Leader of the House's closing remarks during the Second Reading when he asked noble Lords not to put down any drastic Amendments. The noble and learned Viscount will see that I have put down three Amendments, rather on the principle of King Bruce and the spider, that "if at first you don't succeed, try again". But I am hopeful that he may accept my first Amendment, in which case, of course, the other two will fall to the ground.
From the legal point of view there is surely precedent enough for these Amendment Eighteen, nineteen or even twenty, is not an age that is recognised as one of full responsibility. I am not going to weary your Lordships with

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long quotations from the Royal Commission's Report, but that Report says:
"the conventional presumption that 21 is the earliest age at which full responsibility can be expected is based on generations of human experience,"
I think that that is very significant. We know that no one can marry without parental consent until he reaches the age of 21; no one can make a will; no one can serve on a jury; no one can own legal estate in land. There are many other things which no person can do legally until he reaches the age of 21. I really think that we must dismiss as irrelevant the fact that 18 is the age of calling up for National Service; I am sure your Lordships will not want me to say anything about that. It is obvious that when a young man is called up for National Service, he is not exercising a responsibility; he is obeying an order. It is a great privilege to serve, but he is obeying an order and not exercising responsibility.
Your Lordships will remember that the Royal Commission recommended by a majority that the age limit be raised to 21. This view was supported by four witnesses who were experienced prison medical officers, and others. These men pointed out to the Commission that persons under the age of 21 are immature; their brain has not finished developing until after that age. These men are experts and they know. They are men who visit criminals daily, talk to them and find out just what is their state of mind; and their considered opinion is that below the age of 21 a person is immature. And the Report says:
"So long as the law implies that this normal immaturity is not a reason for exemption from capital punishment, it must be expected that in some cases the immature will be executed."
I feel that that is a terrible indictment: that in some cases immature persons must be executed. We are bringing into this Bill the doctrine of diminished responsibility and yet at the same time we are leaving liable to the death penalty some of those who are not fully responsible for their actions.
I believe that these facts will carry weight with your Lordships, but may I point out how little my proposed Amendment will affect the number of executions in each year? I do not want to weary your Lordships with statistics, but I must bring out a few to show my point.
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In the fifty years between 1900 and 1949, in England and Wales there were 30 executions of persons between the ages of 18 and 21; that is, about one every two years. In Scotland during that same period there was only one execution in this 18 to 21 category. More recently, in the five-year period 1949 to 1953 six youths between the ages of 18 and 21 were hanged. But had the terms of this Bill been in force during that time only one of them would have been found guilty of capital murder. I believe the noble and learned Viscount will tell me that I am quite correct in that statement. I will name the criminal if he wishes me to do so.
On this basis my Amendment would therefore mean only one less hanging in five years, so it seems that the practical difficulty which this Amendment would make is infinitesimal Yet is not the life of that one boy who may hang important? To me it is as important as the life that has been taken. He may be—he is, of course—wicked and a rascal, but should we not pause and think whether we ourselves are not equally wicked in sending an immature young man who is on the threshold of life to eternity? For we know perfectly well that all these are cases of bad upbringing, neglect and poor home life, and that these young men are an easy prey for the glamour of gang warfare. I feel that it is our duty to give them an opportunity to repent and make themselves into worthy citizens. I hope the noble and learned Viscount will accept this Amendment. If he cannot accept it to give exemption up to the age of 21, perhaps he will consider it up to the age of 20 or even 19, which is very little advance on the present age of 18. I beg to move.
Amendment moved—
Page 5, line 7, leave out ("eighteen") and insert ("twenty-one").—(The Earl of Haddington.)
VISCOUNT TEMPLEWOOD: I am very grateful to the noble Earl for having raised this important question. He has spoken not only with great knowledge but with great feeling, and everybody in this House always appreciates sincerity in a speech. I have sat silent throughout the afternoon wondering whether to intervene in some of the previous debates but secretly feeling to myself how much these various discussions have confirmed what

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I ventured to say upon the Second Reading: that this Bill is full of anomalies, and that the more it is discussed the more glaring they show themselves to be. If the Amendment of my noble friend is not accepted, we shall add yet another to the anomalies with which this Bill is already overflowing. One of the objects of the Bill, so I understand, is to reduce the number of executions. The noble and learned Viscount the Lord Chancellor, during the Second Reading debate, told your Lordships that it was intended and hoped that the number of executions would he reduced by something like 70 per cent. or 80 per cent. Here is a way in which these executions can be reduced still further, without, as my noble friend Lord Haddington has said, compromising the object of the Bill and without introducing any difficult complexities of drafting and law.
Upon this question of the age at which there should be exemption from capital punishment there have been discussions for years. I know that opinion on the subject is divided, but I know also that many men and women who do not take the view I take in favour of total abolition have expressed the view that the age should be the age of legal responsibility, 21 and not 18. I am certain that with young men and women below the age of 21 there is a much greater tendency to be moved by sudden emotion, the kind of emotion that may drive them in a fit of passion into some grave crime. But that does not, in the end, mark them down for life as hardened criminals. I go so far as to say that there is no criminal between the ages of 18 and 21 for whom we ought to Rive up hope. With all our various facilities that have been built up during recent years for dealing with the young and the mentally abnormal, I see no justification for assuming that anybody between the ages of 18 and 21, however horrible may he the crime that he or she has committed, is not capable of being reclaimed. It is for those two reasons—first, that these young people are admittedly immature, and the immature are subject to sudden fits of passion and emotion, and, secondly, that in a Welfare State like ours it is defeatist to the last possible degree to imagine that these young men and young women cannot be reclaimed during
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the many years that in the normal course they would have to live—that I strongly support the noble Earl's Amendment.
THE EARL OF LISTOWEL: I should like to say a few words on behalf of noble Lords on this side of the Chamber in support of the Amendment of the noble Earl, Lord Haddington. I think his case has been very strongly reinforced by the speech, to which we have just listened, by the noble Viscount, Lord Templewood, speaking as a former Home Secretary. All I would add to his arguments is to emphasise a little that the effect of his Amendment is to raise, from 18 to 21, the minimum age at which the death penalty can be imposed, and also the minimum age at which the penalty for life imprisonment can be imposed. I think that both the death penalty and life imprisonment are affected, as I read the Amendment in relation to the clause in the Bill. I agree that persons between the ages of 18 and 21 should not be liable to either of these penalties.
The recommendation of the Royal Commission was indeed a cogent argument. And I think that the contention of both the noble Earl, Lord Haddington, and the noble Viscount, Lord Temple-wood, when they said that people are more mature and responsible at the age of 21 (and this is recognised in many branches of the law) than at the age of 18 was also a very forcible and effective argument. I would place the major emphasis on the element of youth. I believe that, in dealing with criminals, reform is more important than deterrence. Both factors clearly enter into the matter, but I feel that reform should come first, and I believe reform to be more practicable, more hopeful and more possible the earlier the age at which a person is convicted of a criminal offence. It seems o me perfectly clear that younger persons, being more pliable in their habits and haying a much longer time in which to rend their lives, have a much better chance of becoming useful citizens than persons who are convicted of capital offences at a later stage. I sincerely hope that the plea of the noble Viscount, Lord Templewood, that young people between the ages of 18 and 21 should not be sentenced to death will be listened to and very seriously considered by the noble and learned Viscount the Lord Chancellor.
LORD CHORLEY: I should like in a few words to add my plea to those of other noble Lords who have spoken in support of this Amendment. The noble and learned Viscount the Lord Chancellor has not, I think, given away anything very much this afternoon—if, indeed, he has given away anything at all—in spite of the concluding words of the noble Marquess who leads the House to-day, to which the noble Earl who moved this Amendment has referred. I think this would be an opportunity for the noble and learned Viscount to give something away without any loss of honour at all—indeed with gain of honour—because "the quality of mercy is not strained" in regard to these young people between the ages of 18 and 21. I am sure that what the noble Viscount, Lord Templewood, and the noble Earl, Lord Listowel, have said about the chance of reforming this particular type—the young fellow between the ages of 18 and 21, who, perhaps, gives way to violence, and who is indeed a young blackguard for a time at that period—is very true. That particular type of man, who at that age gives way to violence, is much more open to reform than one who has taken to evil ways in the form of fraud or something of that kind: he is much more difficult to deal with. If the hour were not so late, I could produce telling testimony in regard to this type of young ruffian who often has been reformed and has become an exceedingly valuable member of the community. I therefore hope that the noble and learned Viscount will, at this late stage, see his way to make this comparatively small concession.
5.47 p.m.
THE LORD CHANCELLOR: I have been very much moved by the way in which this Amendment has been put forward, and, if I may say so with respect to all who have spoken, I think it is an entirely proper Amendment to be put forward in the Bill and to be discussed. But the difficulty of the subject is illustrated by the fact that six members of the Royal Commission were in favour of raising the age limit to 21 and five were against. That was a most remarkable division of view, and I should like again to put quite frankly before the House the difficulties that the Government have seen. And, believe me, although we have seen these difficulties, and we realise the repugnance which has been
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voiced this afternoon to ending a young life, I think, on the other side, it is important that each case in this regard should be considered on its merits rather than that the operation of the death penalty should be excluded by rigid rule attached to a particular age.
I have listened with sympathy to all that has been said about people under the age of 21 and I recognise the force of it. But, of course, there are exceptions. There are great variations not all persons under 21 are less mature than adults. Another side of the matter is the number of crimes of violence that have been committed by persons of between the ages of 17 and 21. And when that has been considered we have maintained our view that to raise the age limit for the death penalty to 21 would be dangerous and inopportune. Noble Lords will remember that in the debate on the Royal Commission's Report on February 10, 1955 (that is, I think, before the immediate controversy had arisen) the Home Secretary announced the Government's provisional conclusion not to raise the age limit largely for that reason—the prevalence of crimes of violence committed by young people.
That is one side, but there is yet another aspect which I think your Lordships should take into account. You have been dealing with the subject largely on the basis of the law as it has stood up to now, though the noble Earl, Lord Haddington, went beyond that and considered the effect of the Bill. But it is important to remember that when the Bill becomes law it will confine capital murder in the cases of persons under or over 21 to murders committed in the course of theft—that is, as I have tried to indicate, largely in the operations of professional criminals—or in attack on agents of law and order, or by firearms. My noble friend Lord Conesford emphasised the importance of deterring young people from carrying weapons, and it was said in an earlier debate that adding to the exemptions from the death penalty would enable professional criminals to arrange that in any joint enterprise one of their number would be a person under the age limit. Clearly, that would be a much greater danger if we raised the age limit from eighteen to twenty-one, and I think that it would be

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dangerous to leave this gap in the safeguards which the Bill retains against armed and professional criminals.
Having said that, I want to emphasise that every consideration will continue to be given, as it has always been given, to the factor of youth in deciding whether to recommend a reprieve. The figures show—the noble Earl will correct me if I am wrong—that in practice persons under 19 years of age are reprieved at present unless there are very special circumstances which justify allowing the law to take its course. Coming back to our basic objective in this Bill—namely, the preservation of law and order and the deterrence of those who are most likely to create danger and discomforts for the public—I am sorry to say, moved though I have been by the speeches of noble Lords, that I cannot accept the Amendment or change the view of the Government.
THE EARL OF HADDINGTON: I thank the noble and learned Viscount for his sympathetic reply to my Amendment. I had hoped that he would favourably consider that the younger the criminal, the more chance there is of his being reformed. But I have no wish to press this Amendment and I desire your Lordships' leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 9 agreed to.
5.55 p.m.
LORD PETHICK-LAWRENCE LORD PETHICK-LAWRENCE moved, after Clause 9 to insert the following new clause:
Review of sentences
" . The duties and powers of the Secretary of State for the Home Department as to the periodic reconsideration and review of sentences upon persons convicted of murder shall be exercised in like manner in relation to all sentences passed upon a person originally charged with murder or with capital murder who has on conviction been sentenced to any term of imprisonment."
The noble Lord said: The object of this Amendment is to ensure that after the passage of this Bill the Home Secretary will have similar powers and intentions to review sentences of persons convicted of murder other than capital murder to those which he has at the present time in dealing with murderers whom he has reprieved. A year or two ago, I had the privilege of listening to accounts given
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by the Ministers of Justice of three countries—Belgium, Sweden and either Norway or Denmark, I am not quite certin which—and their testimony was that it was possible to release murderers after a number of years in prison very far short of life, with no ill consequences in the result. I do not know precisely what the present practice is or what is contemplated by the Government after the passage of the Bill but in order to make it clear that the Home Secretary will have the same powers and the same intentions, I beg to move this Amendment.
Amendment moved—
After Clause 9, insert the said new clause.—(Lord Pethick-Lawrence.)
THE LORD CHANCELLOR: I think it would be convenient if I explained the practice it is intended to pursue in future. The practice in relation to sentences of life imprisonment imposed by the court and to long fixed sentences will ensure that the cases to which the Amendment refers will come under regular review. The position will be as follows. First, where a person is convicted of capital murder, the case will be reviewed to see whether there are any grounds for recommending the exercise of the Royal Prerogative. If there are, the sentence will be commuted to one of life imprisonment and reviewed in accordance with current practice—that is, after the first year and every fourth year. The power to release on licence will apply, and the position of those under eighteen will be unchanged. Where a person is convicted of non-capital murder he must, if over eighteen, be sentenced to life imprisonment. Again, the case will be reviewed under existing arrangements and the power to release on licence will apply, and the position of those under eighteen will be unchanged.
Where a person charged with capital murder or murder is convicted of manslaughter and sentenced to life imprisonment, the sentence will be reviewed under the existing arrangements and the power to release on licence will apply. Where a person charged with capital murder or murder is convicted of manslaughter or some lesser crime and sentenced to a lesser term than life imprisonment, the sentence will be reviewed, as are existing sentences, every four years. There will be no power to release on licence, but a recommendation for the remission of part

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of the sentence by exercise of the Royal Prerogative may be justified where there are exceptional circumstances. I remember doing that in a case of manslaughter.
That is the position, and I think that it answers the noble Lord's point. I do not think that it would be appropriate to seek to embody these administrative arrangements in any statutory provision. I have always found, and I am sure that the noble Viscounts, Lord Templewood and Lord Waverley, would agree, that there are few keener or more forward-looking people in the world than the Prison Commissioners. They are constantly looking for better penological methods, and I believe it is a good thing to leave them free to work on the Home Secretary of the day to get their improvements into operation. From having been at the Home Office. I think that is the best way. I do not know whether the noble Lord, Lord Pakenham, knows the Prison Commissioners very well, but I found they were an inspiring body of people to work with, and it was most interesting to discuss their ideas with them. Therefore, I think it would be a good thing to leave that matter flexible, but I give the assurance that the present practice will go on. I hope that that meets the substance of the Amendment.
THE EARL OF LISTOWEL: I should like to ask the Lord Chancellor for a further clarification of one part of his reply. He said that in the case of persons who are convicted of manslaughter, if there are exceptional circumstances the Royal Prerogative can be exercised; in cases of that kind there cannot be a release on licence. In a case of mental abnormality, where after a period of time a man serving a long sentence is regarded by the medical officers of the Crown as cured of that mental abnormality, would lie consider that to be among the special circumstances that can be considered?
THE LORD CHANCELLOR: I can speak only for myself, but I certainly should. If one had a case where there was a had prognosis, and it turned out that there was a good recovery—I gather that that is what the noble Earl has in mind—speaking from memory and without checking the details, I believe there is always a feeling in the Home Office that in such a case one does one's best
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to treat it as an exceptional circumstance, once one is assured that public safety is secured.
LORD PAKENHAM: Since the noble and learned Viscount, the Lord Chancellor, was kind enough to mention me and almost to invite my opinion of the Prison Commissioners, I feel that I should not sit entirely silent. I agree with him that you could not find a more humane or civilised body of men. But I can only say, further, that, like the rest of us, they are fallible on occasions.
VISCOUNT WAVERLEY: I may say, having had some experience of these matters, that while I am entirely in sympathy with what I conceive to be the purpose of this Amendment, I think, from the point of view of those who are raising the question, it would, in fact, be a great mistake to attempt to codify the procedure followed by Home Secretaries in this matter.
LORD PETHICK-LAWRENCE: In view of the very satisfactory answer the Lord Chancellor has given, I have not the slightest wish to press the Amendment, and I ask leave to withdraw it.
Amendment, by leave, withdrawn.
6.5 p.m.
THE EARL OF LISTOWEL: I beg to move this Amendment.
Amendment moved—
After Clause 9, insert the following new clause:
(New evidence
". A person convicted of murder or of capital murder shall, on proof that new evidence has become available to him which was not reasonably available to him at the time of his trial, tending to establish his innocence of the crime for which he was convicted or that in all the circumstances there is reason to apprehend that a miscarriage of justice may have occurred, be entitled to apply to the Court of Criminal Appeal for an order for a new trial, and if the Court is satisfied that such new evidence might, if placed before the trial jury, have affected their verdict they shall order a new trial of the case.")—(The Earl of Listowel.)
LORD OGMORE: As your Lordships are aware, for some considerable time it has been the view of eminent judges in this country that the Court of Criminal Appeal should have the power to order a new trial; in fact, as early as the first year of the institution of the Court of Criminal Appeal in 1909, the then Lord

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Chief Justice expressed his view that the Court should have this power. Since then, I think practically every Lord Chief Just ice has confirmed that view. On May 8, 1952, we had an interesting debate in your Lordships' House in which the present Lord Chief Justice called attention to the importance of this matter and urged the Government to make the necessary provision for the power of retrial in the Court of Criminal Appeal; and, almost without exception, the various Judges who spoke, and others with great experience in criminal matters, confirmed the opinion of the Lord Chief Justice. The only exception, as I recall, was the late Lord Simon. Even the present Minister of Education "weighed in" in support, and finally the Lord Chancellor. So there was a great body of opinion that day in your Lordships' House in support of the principle that it was most important that the Court of Criminal Appeal should have the power to grant a re-trial in suitable circumstances.
The Lord Chief Justice, in particular, gave us two or three cases in his recent experience which showed how urgent was the necessity for this amendment of the law. It seems to me that the question of a retrial in the case of murder or of capital murder is the most urgent and compelling reason for an amendment of the law in this respect. When a man is hanged, however much fresh evidence may be tendered later on, nothing can be done about it. On several occasions in my younger days, when I was at the bar in the Far East, I defended persons charged with murder, and I must say that that was always a great anxiety to me. In the normal case, if you were defending a man, you knew that if something went wrong—if you did something you should not do, or omitted to call some evidence that you could call, or made some other mistake—at least you could afterwards, during the sentence of the man, go to the Government and hope that they would do something about it. Bit when a man is hanged, there is nothing that can be done; he has gone. It seemed to me to impose a tremendous responsibility on counsel; in fact, the experience I had at that time is the reason why I am against capital punishment.
In this case, it seems to me that, however strong the reasons which impelled the Lord Chief Justice and the other
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Judges to press for the power of the Court of Criminal Appeal to order a new trial, the greatest strength of the case lies in the sphere of murder or of capital murder. I would ask the Government to accept the new clause which has now been moved. It may he said by the Lord Chancellor that he cannot legislate for part of the whole area of crime, as it were, and that it would be unfair to deal in this way with one category of crime when it did not apply to the others. That is quite a reasonable point of view to take, but I would say that it does not in any way overweigh the real case I am making—namely, that murder and capital murder are the most serious crimes, which call for the greatest punishment; and if we can get the introduction of the reform in their case, others will follow at a later stage.
I do not think that in these most important crimes it should be said that, although everyone, including the late Lord Chancellor, the present Lord Chief Justice, Lord Oaksey and others, says that it is an important and urgent matter that we should have this amendment to the law, we cannot have it because we are not in a position at the moment to extend that particular Amendment to cases of lesser crimes, where the death penalty does not arise. I think that if we introduced the power in this Bill, then in a short time we should find that the Government would introduce a similar measure in another Bill to cater for the same power in lesser crimes. Therefore, I support this new clause, and I hope that the Government will see fit to accept it.
LORD PAKENHAM: I should like to apologise for not having been here in the earlier stages of these proceedings, particularly when the Amendment was moved by the noble Lord, Lord Chorley, to which my name also was attached. I was unavoidably detained. I was not aware that this particular Amendment was being put down, and it was put down, therefore, with no idea of the particular case that I want to raise by way of illustration. I hope that, if I do raise a real case, the noble and learned Viscount will not feel that I am asking him for a comment en an actual case, because that would obviously be improper. To my mind, this case happens to illustrate the general point so well that I feel I must explain it briefly this afternoon.

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I am interested in the case of a young man called Michael Davies, who was convicted of the Clapham Common murder in 1953. He was reprieved by the noble and learned Viscount now sitting opposite; and is now serving a life sentence. His case came eventually to the House of Lords. He was convicted of murder after a jury had originally disagreed. I am quite convinced that he is innocent, as are many others who are interested in the case. More than one Home Secretary, I think, has taken an interest in this case, and I have no complaints against any of the authorities concerned. The point is that it is extraordinarily hard to prove that a man is innocent in this country once he has been found to be guilty. That is the real difficulty, because the onus passes to those who are taking up his cause.
In this particular case, a good deal of information has come to light which might or might not stand the test of a law court. But the difficulty is to get the case retried. Any Home Secretary would, I am sure, take up the line that it is not for him to retry the case. Various Home Secretaries we see before us to-day would agree that that is the position. One has to prove to them that some material fact has come to light so strong that it entitles them to set aside the jury's verdict. I am saying that in this case what is required is a retrial; but at the moment that cannot be secured. In the retrial, witnesses could be subpoenaed, and the whole matter could be properly threshed out. The young man and his relatives want nothing better than a retrial—there is no secrecy on their side. But owing to the existing state of the law (I am not blaming the Home Secretary, and even without changing the law I hope I shall be able to convince him that this boy is innocent) it is impossible to get the matter properly threshed out. Taking that one instance, I beg the noble and learned Viscount to give this matter his very careful consideration.
THE LORD CHANCELLOR: I am in a rather curious position on this issue, because my recollection is that this matter came up on the Labour Government's Bill eight or nine years ago, and we discussed it in another place. The view that I took about the question of the Court of Criminal Appeal having the right to order a new trial was that they should
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not have the right. I took that view entirely, I assure your Lordships, out of a desire for fairness towards the criminal. I thought that it was intolerable in the administration of justice that you might have a case heard in the first court, then in the Court of Criminal Appeal, then a retrial, back to the Court of Criminal Appeal, another retrial and all the permutations that you could think of. I took the view that in such a case, where there was any uncertainty at all, the Court of Criminal Appeal would direct an acquittal. Contrary to a number of my legal friends, for whose view I have the greatest admiration, I would rather have a criminal get away on a technicality, if the prosecution failed to prove the case properly, than that the Court should say he should be tried again. I think it is up to the prosecution to prove the case if they can, and not to put a slipshod case forward and get away with it on a retrial. I am only telling your Lordships the motivation that made me take my point of view. As the noble Lord, Lord Ogmore, has said, this question has been considered a great deal since then, and I think the matter ought to be considered again.
There has been a Committee on this point which has dealt with the matter. The noble Lord, Lord Ogmore, discounted this in advance, as one would expect someone of his ability to do; but even though he discounted the point, I think it is one which ought to be dealt with as such—that is, whether we should institute this right of the Court of Criminal Appeal to order a new trial. I should like to give two undertakings: first, that the Government will reconsider the matter and decide whether to give effect to the recommendations of the Departmental Committee on New Trials. That undertaking was given by the Under Secretary in the Home Office. I repeat it here: that the Government will reconsider the point. I also give my personal undertaking that I will not allow the views that I expressed eight years ago to blind me to an entirely fresh reconsideration of the point. I think it is important that one should take into account the problems that will arise under this Bill, and I undertake that I will do that myself and, as I say, that the Government will reconsider the matter. I am afraid that I cannot go further to-day.
LORD PETHICK-LAWRENCE: I should like to be quite clear what the noble and learned Viscount is undertaking. Is he making an undertaking with regard to this Bill, or is he making a general undertaking that in the whole question of retrials the matter will be considered? Just for clarity, I should like to know which of those he is undertaking.
THE LORD CHANCELLOR: I was making the general undertaking that we will consider the whole question of retrials.
THE EARL OF LISTOWEL: May we assume from what the noble and learned Viscount has said that, if the Government reach the view that the recommendations of the Departmental Committee on New Trials are sound, they will at the earliest moment promote legislation to put those recommendations into effect?
THE LORD CHANCELLOR: We will certainly do our best in that regard. I confess that at the end of a long day I cannot give the noble Earl the sort of Bill into which it might be slipped. But there are usually a number of these Bills, either on the stocks or about to be put on the stocks. I hope he will not press me any further than that, but I will certainly do that.
LORD OGMORE: I am grateful to the noble and learned Viscount, who has dealt in his usual helpful way with this matter so far as he can. May I ask whether he will look at the Report of the debate in your Lordships' House in 1952? He was not a Member of the House then, but I think he will find that even the opinion that he expressed in 1948 may well be modified, as a result of the powerful speeches made on that occasion by the Lord Chief Justice, by Lord Oaksey and by others.
THE LORD CHANCELLOR: Certainly. I give that undertaking with great readiness in anticipation of pleasant instruction.
THE EARL OF LISTOWEL: I am grateful to the noble and learned Viscount for that helpful reply, and I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
6.20 p.m.
LORD PETHICK-LAWRENCE LORD PETHICK-LAWRENCE moved, after Clause 9, to insert the following new clause:
Medical examination of person charged with murder
". The mental state of every person charged with murder shall be examined by two doctors of whom one shall be a qualified psychiatrist who is not a member of the prison medical service end copies of their reports shall be supplied to the defence fourteen days before the trial."
The noble Lord said: The object of this Amendment is to make sure that in all cases of murder trials the state of mind of the person under charge is investigated. I believe that it is frequently the practice at the present time, and if the noble and learned Viscount assures me that that practice will be invariably carried out, of course there is no great point in putting it into the Bill. I beg to move.
Amendment moved—
After Clause 9, insert the said new clause.—(Lord Pethick-Lawrence.)
6.21 p.m.
THE LORD CHANCELLOR: The simplest thing will be for me to say again exactly what is happening and then noble Lords can judge as to the future needs. The Royal Commission's recommendation has been accepted in principle, and for the last two years it has been implemented so far as practicable. Your Lordships will remember that the Royal Commission themselves recognised that it might not be possible to introduce at once examination by an outside psychiatrist for every prisoner charged with murder, and suggested that, as a first step, an outside psychiatrist should be brought in in any case where there was reason to think that the accused man was not mentally normal. This has been done since early in 1955 in respect of prisoners committed for trial on a charge of murder. The psychiatrist is selected by the Prison Commissioners from a panel drawn up on the advice of the Chief Medical Officer TO the Home Office, who is also the Chief Medical Officer to the Ministry of Health.
As to the results since the practice was introduced, out of 200 prisoners (in round figures) committed for trial, 130 have been examined by an outside specialist, in addition to the prison medical officer. Another sic would have been so examined had it been possible to find a

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psychiatrist of the necessary standing who was willing and able to accept the work. The trouble is that it is frequently difficult to secure the services of an outside psychiatrist, since busy specialists cannot always find the time to undertake the work, which may involve a series of visits and attendances at court. For this reason, it has not been thought practicable to arrange for all prisoners committed for trial on a charge of murder to be examined by an outside psychiatrist, irrespective of whether they showed any sign of mental abnormality, or for an outside psychiatrist to be called in before committal.
Your Lordships will see that in two-thirds of the cases the psychiatrist has been called in and that an attempt has been made to secure that he will be called in in cases where there is a problem as to the abnormality of the prisoner's mind. There are a number of cases where there is not, but from these figures—I have not checked all the details of them—one observes that there were six cases out of 200 where the psychiatrist would have been called in but was not. The Home Office, however, are trying their utmost to get that practice into operation. Of course, the defence can call in a psychiatrist, and the appropriate steps fire then taken. At the next stage, copies of the prison officer's medical report and the report of the outside psychiatrist, where one has been appointed, are sent to the Director of Public Prosecutions, who sends them on to the defence. Of course, the prison medical officers are instructed to submit their reports as early as possible, and not later than fourteen days before the trial if that can possibly he done. Sometimes I admit that it is not possible but that is the working rule.
LORD PETHICK-LAWRENCE: The noble and learned Viscount says that sometimes it is not possible. I gather he means that the fourteen days is not possible. I take it it is always done, but that it may not be quite within fourteen days?
THE LORD CHANCELLOR: The noble Lord has it exactly. That is what I intended to say. So I am authorised to give an undertaking that arrangements will be made as and when possible to call in an outside psychiatrist to examine every prisoner committed for trial for
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murder. Unless there are the difficulties to which I have referred, it will be done. I think that covers the point, and again I prefer to say—and I should advise your Lordships in exactly the same way as the noble Viscount, Lord Waverley, did—that this is a matter that it is best to leave flexible, because I am sure that the Prison Commissioners will do everything to get the best possible system working.
LORD PETHICK-LAWRENCE: I thank the noble and learned Viscount very much for his reply. In view of the thoroughly reasonable and satisfactory answer that he has given, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 10 [Form of sentence of death for murder]:
6.26 p.m.
LORD AMULREE LORD AMULREE moved to add to the clause:
"Provided that the Secretary of State may at any time by regulation approved by both Houses of Parliament substitute a method of execution other than hanging."
The noble Lord said: I beg to move the Amendment standing in my name on the Marshalled List. When this Bill becomes law, there will, every year, so far as one can see, be a few men, and possibly a few women, who will be executed by hanging in this country. Hanging has been one of the official ways of execution in this country from the days of Henry II, and for a civil offence it has, I think, been the sole method of execution possible since about 1814. Of course, there have been considerable changes in the method. In olden times, it was done purely by strangulation and took a very long time, but in the middle of the 19th century, when the "long drop" (I think it was called) came in, death occurred faster because death was then due to a dislocation of the spine and not to strangulation. But as one has observed from time to time, death was not always entirely instantaneous.
There were one or two reports, which I think are mentioned in the Report of the Royal Commission or which appeared in parts of the public Press, that signs of life have sometimes been observed for as long as a quarter of an hour after the person is supposed to have been dead. It is impossible to say, because one does not know, whether there has been any

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kind of mental process going on during that quarter of an hour. It is extremely improbable that there have, but it would be very rash, in the light of present day knowledge, for one to say categorically that nothing has been going on at all during that quarter of an hour when some signs of life have been there.
There is another point about the preparation of the actual execution by hanging. Those of us who read the Report of the Royal Commission, or that very good little book by Sir Ernest Gowers which is in your Lordships' Library, will have read the long account of what goes on in preparing for this judicial ritual of execution. Under this Bill, we shall now get rid of some of the rather frightening panoplies of the death sentence. It would be very pleasant if at the same time we could get rid of the frightening panoply of the execution. While I have never really felt that the death penalty works as a strong deterrent to people who wish to murder, there are, I think, some curious people who almost get some kind of encouragement, some sort of curious perverted satisfaction, from the thought of the gallows, the rope and all that sort of thing. That is why I put down this Amendment to make it possible for the Home Secretary, supposing some new method of execution could be found—I am not going to say there is one now, but some might be found—to bring it in. This Bill seems to me to be an appropriate place in which to make the provision.
I think there should be a safeguard in that both Houses of Parliament should approve any steps that are taken, thereby preventing some eccentric Home Secretary from making experiments which would be unpleasant and entirely wrong. I myself have no particular views about what method should be used. One which has always seemed to me more, I will not say attractive, but simple, is to do it by some kind of lethal gas, where one can have six taps turned on by six people, but only one tap containing the gas. In that event, nobody would know who was responsible for the execution. I put that forward as a general idea. I do not want to press it at all. The Royal Commission on Capital Punishment said that in their opinion hanging was the most satisfactory of human methods of carrying out capital
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punishment, but it would be rather comforting if there were the possibility for some other better method to be adopted. Therefore I beg to move my Amendment.
Amendment moved—
Page 5, line 26, at end insert the said proviso.—(Lord Amulree.)
THE LORD CHANCELLOR: As the noble Lord, Lord Amulree said, the Royal Commission on Capital Punishment considered methods of execution in a long passage in their Report. In paragraph 726 they said that hanging was superior to other methods, in that the time taken by the preliminaries was less; in paragraph 728 they said that there was no evidence to show that there vas anything to choose between the three methods, hanging, electrocution and lethal gas, in the speed and painlessness with which unconsciousness is reached; and in paragraph 731, that in the quality of "certainty" neither electrocution nor the lethal chamber on balance had any advantage over hanging. They concluded by saying in paragraph 734 that they would not recommend that electrocution or the gas clamber should replace hanging. I think that it is perfectly right.
The Royal Commission also said, if I may quote their words—I think this is important—
"We do, however, recommend unanimously and emphatically that the question should be periodically examined, especially in the light of progress made in the science of anæsthetics, with a view to a change of system being proposed to Parliament as soon as it can he shown that there are no longer any grounds for the doubts which now deter us from recommending it."
I should like to say that the Government fully accept that recommendation, and when any change in the method of execution can confidently be adopted they will propose ad hoc legislation to that end. But, having considered the matter most carefully, they do rot consider that it is a matter that should be dealt with by regulation. Every Party, I think, realises—I think the Liberal Party has often stressed it—the importance of the legislative process in the House of Commons. I think that this is a subject that ought to be dealt with by Bill.
From the point of view of the noble Lord's own profession, I am told that there are considerable differences of opinion, and considerable thought has been given to the question of the administration, for example, of the gas, if that

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were chosen. By whom should the injection be made, if it were done by injection? What qualifications ought that person to have? These are all matters of great interest, both to the medical profession and to the public. I suggest that in view of my undertaking that we will not let the matter sleep, but will continue to examine and consider it, and when we have come to that stage we will introduce legislation, the noble Lord, having aired this very interesting point, might not press it to-night.
LORD AMULREE: In view of the extremely kind and friendly reply from the noble and learned Viscount, I have great pleasure in withdrawing my Amendment.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
Remaining clauses and Schedules agreed to.
On Question, Whether the Bill shall be reported to the House without Amendment?
6.37 p.m.
LORD PETHICK-LAWRENCE: May I say that I think we owe a great deal to the Lord Chancellor, considering that he has been on duty from two o'clock and has been answering questions all the time. We compliment him upon his tour
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de force and the kind way in which he has dealt with this matter.
VISCOUNT SAMUEL: In spite of a slight contretemps on the Committee stage, I should like to say that that was not a malice prepense on my part. I had no intention of raising that point to-day. I should like to support all that has been said by the noble Lord, Lord Pethick-Lawrence, in regard to the kind and considerate manner in which the Lord Chancellor has treated your Lordships' House.
THE LORD CHANCELLOR: I am most grateful to the noble Lord, Lord Pethick-Lawrence, and to the noble Viscount, Lord Samuel, for the kind things that they have said. As far as the slight contretemps is concerned, the noble Viscount and I are old friends and understand each other too well for anything that passes across the Chamber ever to disturb that friendship. The generosity which Lord Pethick-Lawrence has shown is what this House expects of him, but, of course, I am none the less grateful for it.
On Question, Motion agreed to.
House resumed.
House adjourned at twenty-one minutes before seven o'clock.