HL Deb 27 July 1965 vol 268 cc1170-83

3.13 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.—(Baroness Wootton of Abinger.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

Clause 1:

Abolition of death penalty for murder

1.—(1) No person shall suffer death for murder, and a person convicted of murder, shall, subject to subsection (4) below be sentenced to imprisonment for life.

LORD CONESFORD had given Notice of three Amendments to Clause 1, the first being, in subsection (1), after "murder", where that word first occurs, to insert: other than any murder specified in the next subsection". The noble Lord said: It is clearly convenient to the Committee, I think, that we should discuss together Amendments Nos. 1, 2 and 4. No. 4 shows clearly and simply the purpose of these Amendments and Nos. 1 and 2 are preparatory. Under the Amendments, liability to the death penalty would remain for two categories of murder mentioned in Section 5 of the Homicide Act 1957. Let me explain to the Committee why I think it right and necessary to retain that liability. I outlined my reasons in my speech on Second Reading, when I explained why I supported the Second Reading but regarded some amendment as essential.

Before I come to the more specific arguments showing why I think these Amendments essential, let me explain to the Committee what I think these categories of murder have in common and what differentiates them from other murders. The murders specified in my Amendment No. 4 are acts of war against civilised government itself, against the whole machinery of justice and against the very existence of the rule of law. Their motive is to prevent men, whatever they have done, from being brought to trial at all, or, if they have been tried and are in custody, from suffering the penalty prescribed. It will be seen, therefore, that these murders have much in common with treason, for which the death penalty remains. I am not saying, of course, that they amount to treason, but they have much in common. I think that the noble and learned Lord the Lord Chancellor will probably agree with me that levying war against the Crown, which is one kind of treason, has been shown by decided cases and legal commentators to include such things as a rising to break all prisons open. That would be treason. But a rising to release a particular prisoner, unless he happened to be imprisoned for treason, would not be. I merely mention that as showing how closely associated with the elements of treason are the murders which I have specified. I think, therefore, that it is quite logical to make the distinction.

I now come to the main reasons why I think it is necessary to make this distinction. The first reason I explained, I hope clearly, in my speech on Second Reading. If my Amendments are not carried, our law will retain no deterrent at all against certain murders. I do not wish to say much about any theory of punishment. As I have said in earlier speeches, I agree with the late Archbishop Temple in holding that deterrence in itself could not justify punishment, if punishment were not otherwise justified. If the theory were true that retribution, meaning that a man deserves punishment, was entirely wrong, then mere deterrence could not justify a punishment.

But if punishment is justified for murder, then I think that we are probably all agreed that it is desirable that the punishment should deter. Members in all quarters of the Committee, whatever their views on the merits of the Bill, desire that there should be a deterrent against murder. What has been debated is whether capital punishment is a unique deterrent. Clearly the House of Commons and this House, by a large majority, think that imprisonment can be an adequate deterrent, and I, too, am quite content to accept that view in nearly every case. That is why I think many of us supported this Bill on Second Reading.

I know that there are some who think that all capital punishment is wrong, and I know that I cannot hope for their support to my Amendment. But those for whose support I would ask are those who think that capital punishment is not invariably wrong but who require to be satisfied that there is a case for it in the particular categories which I have mentioned. The cases where imprisonment is no deterrent are those cases where long imprisonment would be certain, even if murder were not committed. I have repeatedly called attention to this in earlier speeches, and I do not wish to repeat myself. I should, however, like to quote one paragraph from what was said by the noble and learned Lord, Lord Shawcross, in his speech in the debate on Second Reading, which I think made a considerable impression on the House. He was, in general, in favour of the abolition of capital punishment for the reasons which he gave. Towards the end of his speech, he said this: My Lords, there is one special case about which I must confess that I feel some anxiety and in regard to which I have an open mind. That is the case of the man who has already been convicted for some crime for which he has received a very long sentence, or who has committed a crime for which he is liable to receive a very long sentence. I ask myself whether capital punishment is a deterrent to his shooting or killing his way out, in order to escape arrest or to escape from prison. Is it necessary to retain capital punishment as a protection to warders and police officers against this risk? On this point all I will say is that I shall listen with great interest to what may be said on both sides in regard to this matter during the Committee stage of this Bill. Meanwhile, I shall support its Second Reading."—[OFFICIAL REPORT, Vol. 268 (No. 105), col. 513, July 19, 1965.] I have quoted that passage because I wanted a statement by somebody other than myself of the clear distinction between those for whom imprisonment may be, and can be, a deterrent, and those for whom, using our best reasoning, we agree that it is not likely to be a deterrent at all.

The two categories which I mention in my Amendment No. 4 overlap. Neither of the two categories is confined to the police, though the police may be the persons chiefly concerned under each. The views of the police, or at least of their representative bodies, are, I think, well known. The danger that they and others run in effecting arrests are known to us all from recent examples; and impressive examples were cited by the noble and learned Lord, Lord Denning, in his speech on Second Reading. In the murders which I have described in my Amendment, therefore, we are not dealing with imaginary dangers. I share the view of the police that the death penalty is a deterrent to such men. In many cases, in the absence of that deterrent, there would be no other deterrent at all; and I believe that this view is shared by many practitioners of my old profession who have experience of criminal cases. But even if I did not myself share the view of the police, if I felt some doubt about it, I think I should still treat the considered view of the police with much greater respect than has been shown by some. These men run great risks as our servants, and know better than most of us the criminals with whom they have to deal. Their views are, therefore, entitled to respect.

What have we to set against their views? Professor Sellin's book has been quoted in both Houses, and I am grateful to those noble Lords who quoted it, because some of his statistics are most interesting, and they may be important in various connections. They do not, of course, show that no one has been deterred by the death penalty from committing murder: for reasons that have been given in many quarters, that is something which we can never know. While I do not for one moment doubt the sincerity of those who think that these statistics indicate that in some countries, at any rate, the abolition of the death penalty has not increased the danger to the police, I do not think that they can be said to go further than that. And, of course, we have not been told, what I think would be rather valuable in assessing these statistics, what is the alternative deterrent; that is to say, what imprisonment in those countries actually involves. I am, in particular, not over-impressed with examples taken from the United States, having regard to the appalling failure of their campaign against murder. Their homicide rate, as we know, is enormously greater than anything we endure in this country.

There is one final point that I should like to put to the Committee. No one, I think, whatever his views on capital punishment, desires frequent changes in our law on this subject. If we make the change advocated in this Bill, surely we must all, on both sides of the Committee, wish that the experiment should have prospects of lasting success. For that purpose I sincerely believe that the trust, the confidence and the support of the police is indispensable. I honestly wonder whether the supporters of this Bill, if they resist my Amendment, have thought about the probable effect that future murders of police officers may have on public opinion. For myself, all I can say, quite simply, is this. For me, these Amendments are crucial. If they are accepted, I can and will support the Bill, as I have hitherto supported it. Without them, I cannot. I beg to move.

Amendment moved— Page 1, line 5, after ("murder") insert ("other than any murder specified in the next subsection").—(Lord Conesford.)

3.28 p.m.

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM)

I am grateful to the noble Lord, Lord Conesford, for inviting the Committee to consider the three Amendments in the name of his noble friend and himself, because they all go together. The noble Lord reminded us of what he said in his Second Reading speech, explaining why he supported the principle of abolition and why, when we came to the Committee stage, he would move Amendments indicating the reservations he had. I think it will be agreed, even among those noble Lords who are not wholly convinced abolitionists, that there has been a general, and at times severe condemnation of the limitation of the 1957 Homicide Act: indeed, I think that the noble Lord was himself a critic in 1957, when he forecast the difficulties that would arise. But, basically, what the noble Lord is now proposing is that, instead of there being five exceptions, five opportunities for anomalies, there should be three.

LORD CONESFORD

Two.

LORD STONHAM

I will come to that point. In my reading of the noble Lord's Amendment, there are three classes of person who would be excepted if his Amendments were incorporated in the Bill. They would be private persons who exercise the right of a private person to attempt to arrest a felon, or, indeed, to prevent the escape of a felon, whether or not they come to the assistance of the police, police officers themselves, and prison officers. So we are considering three classes of persons in these Amendments, and not two.

Let me say right away that experience, not as a Minister, but of twenty years in both Houses of Parliament, leads me to place as much reliance on statistics as most other noble Lords do. But at least I can say that there have been no murders which come under subsection (1)(c) of Section 5 of the Homicide Act. At least we have that recent experience in this country. Then, although he did not specifically mention them (but I know he now accepts what I say), the noble Lord, Lord Conesford, is arguing that the category of capital murder should be retained as a protection for ordinary citizens who may be exercising the private person's power to arrest where a felony has been committed, and who may be acting alone in the absence of any police officers; or, alternatively, for a private person who may be murdered while seeking to prevent an escape from legal custody, though he may not at the time be assisting a prison or police officer. Therefore, in effect, the noble Lord argues that it is necessary to retain this exception to the general principle of abolition on the ground—quite rightly—that no citizen should be discouraged from supporting the forces of law and order.

While the Government certainly do not wish to discourage such actions, whether by private persons or by police or prison officers, it would surely be anomalous to retain capital punishment for murder in these circumstances affecting private citizens, but to abolish it, for example, for the murder of an elderly or defenceless shopkeeper in the course of theft. In other words, I would submit to the noble Lord that this particular class of murders cannot justifiably be treated in a different way from capital murders in general. I think that should come within the orbit of what the noble Lord, Lord Conesford, himself accepted on Second Reading—namely, the principle that the death penalty should not he retained for capital murders.

It could be argued that we should retain the death penalty for murders in the course of escapes or rescues from legal custody, or in order to prevent further escapes, such as that of Biggs the other week. But the Government's view is that these escapes are best prevented, not by retaining the death penalty, but by the special security precautions in the special prison units and in other ways which I described to your Lordships on July 14. I, as I am sure we all do, fully appreciate and understand the reasons of the noble Lord, Lord Conesford, for wishing to retain the death penalty for the murder of a police officer because, as he rightly said, of all sections of the community they are most exposed to danger from violent criminals. But there is no sort of evidence to support the belief that this Bill will lead to an increase in violent crime, or to more killings by criminals in order to escape detection. Equally, there is no reason to believe that the police will be in greater danger as a result of this Bill than, unfortunately, they are to-day.

I acknowledge the correctness of Lord Conesford's claim that there is a strongly held, but, I would say, by no means unanimous, view in the police service that the death penalty is a deterrent to the murder of a police officer and is therefore some protection. That certainly is the view of the Police Federation of England and Wales, whose representatives had a full and frank discussion with my right honourable and learned friend the Home Secretary, at which I also was present. This was before the Bill received a Second Reading in the House of Commons. But I would point out something I refrained from pointing out on Second Reading, that in their memorandum which they sent to all Members of Parliament, the Federation made it clear that, as in other sections of the community, there was a division of opinion in their ranks. I would quote from that memorandum: Some policemen will hold that capital punishment is against the very foundations upon which our civilisation is based"— "some policemen", my Lords. On the other hand, others will hold directly contrary views equally firmly. It is not without significance, I submit, that the English Association of Chief Police Officers has, we understand, decided not to make any representations to the Home Secretary, and no representations have been received from the Superintendents' Association in England and Wales.

On this key question of deterrence, there is no objective evidence that the death penalty deters murders of police officers, any more or any less than other types of murder. In England and Wales in the last seventeen years since 1948, seven persons have been convicted of murdering police officers on duty, and there has been one such conviction in Scotland during the same period. The death penalty did not prevent any of these tragedies. They happened, unhappily, in spite of it. Now it is suggested, although not claimed categorically by the noble Lord, that it will be worse if this Bill becomes law in its present form. There is no evidence to support that view. The noble Lord referred to the previous mention of the researches of Professor Sellin in the United States. He may remember this point. Whatever may be said about those researches, they indicated that the fatalities to police officers were at least greater—something like 6 per cent. greater—in the cities of those States which had retained the death penalty for murder than in those where it was abolished.

The noble Lord mentioned, too, what he described as the appalling failure in the United States in their campaign against murder; and only to-day the newspapers said that in the United States there was a murder every hour, a rape every 26 minutes, and a theft of a car every 60 seconds. I would submit that the answer to the noble Lord is that, over a considerable part of the United States, the death penalty is still in operation and policemen there are being killed. Therefore, he really cannot call that in aid.

If we are agreed that the death penalty should be retained for the police, we should be continuing the anomalies of the 1957 Act, because we could scarcely justify drawing the line at police officers and persons assisting them. If the death penalty is a protection for the policeman threatened by a criminal, or the person who comes to the aid of the police, would it not be equally true for, say, a night watchman, a bank clerk, a householder or any other member of the public—who, incidentally, would not be covered by paragraph (a) of the noble Lord's Amendment unless he was trying to make an arrest or prevent an escape? In other words, the Amendment illustrates once more that it is not possible to retain the death penalty for selected categories of murder without creating indefensible anomalies. There is also the fact that the Amendment violates the principle overwhelmingly supported by your Lordships on Second Reading—namely, that capital punishment is a barbarous penalty which is out of place in 20th century Britain, and is no longer used in many civilised countries. Indeed, the brutalising effect on society of retaining the death penalty might, in the long run, be more of a danger to the police than the loss of any deterrent value it may have.

Finally, I must make it clear that one of the considerations that the Home Secretary takes into account—and this will be made even more clear as we come to discuss later Amendments—in deciding when a prisoner sentenced to life imprisonment should he released, is the circumstances of the offence. Your Lordships. the police, prison officers and the country can be assured that, if this Bill is passed without this Amendment, and a person is sentenced to life imprisonment for the murder of a police officer or of a prison officer or of a person assisting him, the particular heinousness of the offence would be reflected in the period of detention served, which, in the absence of special or mitigating circumstances, is bound to be very much in excess of the much-quoted and misleading nine-year period.

With regard to prison officers, it is quite properly argued that, unless the death penalty is retained in the way proposed, a prisoner serving a long sentence may feel he has little to lose by murdering a prison officer, particularly if this will facilitate his escape. I cannot say categorically, of course, that this could never happen, but I do question whether there is any real danger of its happening if the death penalty is abolished. Nor is there such a certainty, or near-certainty, that retention of the penalty would prevent its happening so as to justify such a major departure from the overwhelming decision of the House, a decision, indeed, in which the noble Lord, Lord Conesford, and the noble Lord, Lord Ilford, concurred.

I could quote statistics—or perhaps it would be more accurate to say the almost complete absence of statistics—covering nearly 100 years with regard to prison officers murdered by prisoners in European countries which have abolished capital punishment, but I will not do so because I do not think that it would help to convince your Lordships. I believe that last week your Lordships decided that we were going to abolish capital punishment for the crime of murder, and I firmly believe that at the end of the day that will be your decision and that we shall not make these exceptions. Therefore, I hope your Lordships will reject this Amendment.

3.43 p.m.

VISCOUNT DILHORNE

I am sure your Lordships will not be surprised, and indeed the noble Lord, Lord Stonham, will be the least surprised of all, if I say that I found his reply entirely unconvincing. He never dealt with the case put forward by my noble friend; he never suggested what would be the deterrent to the professional criminal from using violence to avoid arrest or to escape arrest if the death penalty is abolished. He started by saying that he did not place much reliance on statistics, and then, as usual, we got information about the statistics in other countries. He said that there was no evidence that it really was a deterrent, and lie quoted one selected passage from a document sent to all Members of Parliament from the Police Federation. That sentence was: Some people will hold that capital punishment is against the very foundations upon which our civilisation is based. I have no doubt that some people in all sections of society take that view in regard to this matter. I cannot seek to argue with them or to convince them that their view is wrong, and I would not endeavour to do so. But what we are concerned with here is the protection given to those who are responsible for the maintenance of law and order. And in considering that question, surely the conclusions of the Police Federation are worthy of serious attention.

In the course of the Second Reading debate, I asked the noble Lord whether the advice of the police to the Home Secretary differed from the advice that was given in 1957. To that I had no answer. Likewise, we have had no information about that to-day. We have been told that certain bodies of superintendents and others have not made representations, but we know that the Police Federation have. Has not the Home Secretary sought to obtain advice from the police on this most important issue? If he has, he would naturally consult them, I assume, if their advice differed from the advice given in 1957. Before we pass from this Amendment, we surely ought to have an answer to that question; and I should like, if I may, to remind your Lordships of what was said by the Police Federation. Paragraph 9 said this: Why are not more policemen murdered than now? We have no proof, but we believe that a professional criminal is strongly deterred by the fear of capital punishment. Remove this, and if he is eventually caught he then faces life imprisonment. He may regard this as a worthwhile risk because, despite the sincerity of the views being expressed by some people at the moment, he may well believe that the public of this country would not tolerate perpetual imprisonment—the thought of a human being rotting in prison until he dies—and in due course he would be released. That was their considered view.

On Second Reading, I put the case of the professional criminal with a long record who knew that if he was caught again he would serve a very long sentence, and I asked, without receiving a reply, some of those in favour of abolition to indicate what would be the deterrent against such a person using violence if he was interfered with. I think to some of us it does not require any evidence that the deterrent of a life sentence—whatever that may mean—is less than the deterrent of capital punishment. That view which I have held is confirmed by a letter that I received yesterday from an inmate of one of Her Majesty's Prisons. I should like to read to your Lordships a passage from this letter. His first complaint was one which many of us have made, about the Post Office. He goes on to say this—and I will just read it to your Lordships; it is for you to say what attention should be paid to it: My next complaint deals with your Hanging Bill, or rather Mr. Silverman's. You may not be aware of it but long-term prisoners are laughing now because it seems that in the future ex-cons will be able to shoot their way out of any tight spot and not be hanged for it. I myself was arrested with a gas gun after a police chase. I did not use it on the police because the gas could affect the heart and kill one of them. However, I can assure you, quite frankly, that if I ever get in a cornered position again, I will not hesitate to shoot to kill because you won't be able to hang me. Also, I will never do a long sentence again in a prison because if I can use a gun on a warder, what can you do? Nothing. There are many prisoners even now talking about how they will be out as soon as hanging becomes illegal because it will remove all the deterrent, and police and warders' lives will then be of no value. As a criminal I can tell you now that you are like ostriches. You pretend you are doing good by giving in to criminals and hard cases, but you only fool yourselves because blags (wage snatches) will now increase and before long hundreds of cheap thugs will glorify themselves by carrying shooters. He goes on to say: I am a man of no politics personally, but even I feel that I must protest at the idiots who advocate no hanging. I have no love for the prison staff or police or the fuddyduds in the Home Office. I also have no love for the so-called hard cases who use iron bars and guns on innocent people. Why don't you sort out the country's real problems instead of playing 'mummy' to prisoners? He ends with this sentence: Just go on and get the no-hanging Bill passed and I will be one of the first to go to Soho and buy a gun, like thousands of others, ex cons. You all need a shaking up. In fact, Sirs, you all deserve shooting. Yours faithfully"— and he signs his name and adds "serving four years". I do not know what weight should be attached to that. It seems, in parts of it, to be some evidence that certainly in some circles a sentence of hanging is regarded as a deterrent, and I think we ought to consider very carefully indeed the effect in this country of removing this protection from those responsible for the enforcement of law and order.

Since our last debate we have had published the Report of Her Majesty's Chief Inspector of Constabulary; it is a very well written document, if I may say so, but it makes very gloomy reading. We find on page 9, that, for the first time, crime figures reached the one million mark and soared to a new record of 1,066,000. The rate of detection, not surprisingly, dropped from 43.1 per cent. to 39.6 per cent. One finds again, on page 38, that this was an increase of 9 per cent. over the previous year and there was an increase of 9.1 per cent. in that year. Then comes this sentence, which I should like to quote: Particularly serious increases have been recorded in 1964 in crimes of violence against the person and robbery, the former having risen by 16.9 per cent. and the latter by 23.4 per cent. compared with 1963. There were 731 indictable offences in which firearms were used, and the upsurge in this type of crime particularly towards the end of the year led to the introduction of a Firearms Bill. I wonder whether it is pure coincidence that the upsurge in that type of crime coincided with the introduction of this Bill in another place.

At the same time the Report makes it clear (this appears at page 11) that there is a serious shortage of over 10,000 police officers in England and Wales, excluding the Metropolitan Police. I wonder whether, if this Amendment is not carried, recruitment to the police forces will not be seriously and adversely affected. I think it may be. And if it is, then that will be reflected in the detection figures for all forms of crime. We are concerned here not just with the few cases of murder that come before the courts, but with the effect on crime prevention generally. We are not concerned here with the few cases to which the noble Lord referred, where the deterrent had not operated—they are very tragic cases, as he said. But what we are concerned with it the effect in this country, the effect on recruitment of police and the effect on law and order if this deterrent is removed at this particular time.

I must say that if my noble friend presses his Amendment I shall certainly support him in the Lobby. Of course, we do not know—none of us does—the view of the noble Baroness, Lady Wootton of Abinger, on this particular Amendment, but on the noble Lord's arguments I think it is quite clear that, if this Amendment is not carried, we shall be removing from the police and the prison warders some of the protection that they now have against the use of violence towards them by persons of bad record who, if caught again, face only long terms of imprisonment—and perhaps very long terms at that.

House resumed.