§ 4.15 p.m.
§ House again in Committee.
§ LORD ILFORD
I have never myself experienced any great difficulty or hesitation in arriving at a conclusion on the principal question which is raised by this Bill. It has never seemed to me to be right that a court of law should be required to pass a sentence upon an individual, the full range, character and nature of which is not known to us and can never be known to us.
I am not myself convinced that the death penalty is a deterrent, as is the view of so many of your Lordships. That is not really the question which is raised by these Amendments. The view of the death penalty which I have expressed is not shared by the representatives of the police. The noble Lord, Lord Stonham, conceded that the contrary view was strongly held by the representatives of the Police Forces. I have no doubt that the same view is held by many of the senior officers of the Police Forces who hesitated to express an opinion in what is a highly controversial question. Your Lordships have to accept the position that the view that the death penalty still constitutes a substantial deterrent is widely, if not universally, held by the representatives of the Police Forces and of the Prison Service. That is the real point which is raised by these Amendments.
The question which we have to ask ourselves this afternoon is this: ought we to require these men to arrest violent, frequently homicidal, criminals and at the same time withhold from them what, rightly or wrongly, they believe to be a substantial protection? It seems to me to be quite wrong for us to allow the moral considerations which must guide us in our approach to the general question raised by the Bill to influence us unduly when we have to deal with a practical, administrative matter in which the safety of men's lives is in jeopardy. I submit to your Lordships that we have no right, because we are moved by these moral considerations, to withhold from these men something which they, at any rate, believe to be a deterrent.
It seems to me that there is no reason for those of your Lordships who voted 1192 for the Second Reading of the Bill not to vote for these Amendments this afternoon. I myself voted for the Second Reading, and no doubt when the time comes I shall vote for the Third Reading. But I shall not hesitate to vote for these Amendments, because it seems to me that we are not justified in withholding from these police officers and prison officers something which they regard as a major deterrent which will protect them from the violence which might otherwise be directed against them.
It is possible to state the case for these Amendments very shortly. I shall not dwell too long upon them; but I should like, if I may, to deal with one or two of the observations that were made by the noble Lord, Lord Stonham. The noble Lord seemed to think that there was something inconsistent in our having united the protection which these Amendments seek to give to the police and to prison officers with similar protection for private persons who are engaged in attempting an arrest or in resisting an escape. It is the case, of course, that these Amendments are intended primarily to secure the safety of police officers and prison officers. But one cannot separate these two classes of persons. It would, indeed, be totally illogical to provide this safeguard—if it be a safeguard—for the police and for the prison officers, and not to extend a similar safeguard to private individuals performing the same duty from, no doubt, some sense of public obligation. The reason goes a little further than that. If one excepted private persons who were assisting in an arrest, or assisting in preventing an escape, the result might well be that the criminal would direct his violence against the private individual, for whom he could not be hanged, and would refrain from directing it against the police officer or the prison warder for whose death he could be hanged. So my noble friend and I were inevitably bound to include, with the police officers and with the prison warders, this class of public-spirited persons who come forward to assist the police.
The noble Lord, Lord Stonham, seemed to think that these Amendments brought us back to the inconsistencies of the 1957 Act. I should not have thought that myself. The 1957 Act failed because it attempted to differentiate between 1193 different classes of murder, which cannot readily be defined. These Amendments do not seek to differentiate between different classes of murder; they seek to differentiate between different classes of persons who may be at risk of murder, and who can be defined without difficulty. That is a very different thing because you can with certainty define a class of persons such as police officers and prison warders and those who go to their assistance; it is quite simple and not illogical to retain the penalty for them; whereas it proved impracticable to differentiate between different classes of offence. For all those reasons, I do not see why those of your Lordships who voted for the Second Reading of this Bill should not vote for these Amendments.
There is one observation which the noble Lord, Lord Stonham, made about which I should like to say something. I think that your Lordships have always been rather confused by the statistics that have been collected in such vast quantities and distributed from many different sources among your Lordships. They seem to lead to no very definite or obvious conclusion. But I understood that the noble Lord pointed out that the number of murders of police officers was very small. That may be due to the fact that the death penalty is still enforced for the murder of a police officer. For what these figures are worth, they seem to indicate that the fears entertained by the police officers and prison warder service are not groundless. That being so, I hope that your Lordships will have no hesitation in adopting these two Amendments.
§ LORD DENNING
May I say just one word in support of these Amendments? Many of the principal objections previously made arose from the anomalies produced by the 1957 Act. Those were anomalies such as the difference between the poisoner, the stabber and the shooter. In this case, in spite of what the noble Lord said, it is not really an anomaly, or preserving an anomaly, if we say that those who are exposed to the risk of being killed in the active defence of law and order should be protected. Whether it is civilians who stand in the way of the robber and seek to arrest him, or the police, they really are on active service. 1194 For them it is not an anomaly, but a legitimate protection of our whole system that there should be not only the deterrent to others but the vindication of law and order itself.
I would only take this further illustration. If a robber severely injured a policeman or, indeed, a civilian, I should imagine that the Judge would well be justified in sentencing him to, say, fifteen or twenty years' imprisonment, and that would be expected by the people at large. If the policeman is killed, does it adequately vindicate society if the sentence is what is said to be for life, but is really just imprisonment at the discretion of the Executive? The vindication of society is the reason why I would support this Amendment, an Amendment which is not an anomaly but which is seeking to protect those who are defending us.
§ LORD SIMEY
I speak in opposition to these Amendments for one purpose and one purpose only, and that is to give expression to some extent to the views of my colleagues who have studied these matters scientifically, in so far as it is possible to do so. They start their work with the assumption that the onus of proof lies on those who wish to go against the general belief in this country that the taking of human life is wrong, especially when human life is taken on behalf of the community as a whole. I have listened for some time to discover whether or not the onus of proof has been discharged, and all I have really heard is the attempt of able advocates to transfer this onus from those who wish to maintain hanging to those who wish to see its abolition. We have been asked, in fact: "What alternative do you have to this punishment of death? What can you put in its place?" We have heard that over and over again.
I address myself, on behalf of my colleagues, to the issue of whether hanging is really the deterrent that my opponents in this debate think that it is. We abolitionists have made the point earlier on that it is quite possible that so long as we have hanging there will be a wanton disregard of life on the part of criminals because the State has itself shown that wanton disregard. That point has not been met, and I believe myself that the onus of proof has not been discharged. 1195 We have looked at the problem collectively, from the point of view of the ordinary person—the person who is so much respected by lawyers, the ordinary rational person who fears hanging.
Each of us in this Chamber has doubtless said to himself in the course of these debates, "I should not like to be hanged, should I?" I hardly think that that fear has restrained many of us in this Chamber, and other people like us outside, from committing murders—at least, I hope not. We have to ask ourselves, realistically: what sorts of people are those who commit serious crimes and commit murders? The answer is that such people are miserable; they are people who have acted, often, on impulse; they have been educated or miseducated by the circumstances in which they have been brought up, and so on. It is unlikely that many of these people will go out into the world with some sort of fear of being hanged, and will therefore be restrained in that way from violent acts. I ask myself: what is the real condition of mind of such people? I do not think it is a valid point to assert that people like ourselves are so intimidated; in fact, I suggest to your Lordships that we are not. We are deterred from these despicable crimes by quite other restraints altogether.
So far as deterrents are concerned, what has been said on the part of the supporters of capital punishment (and it has been said this afternoon) is that the life sentence is so horrible, and deterioration comes virtually so swiftly in a long sentence, that the nation would turn against the life sentence, and a life sentence would be terminated by discharge, perhaps on the part of the Home Secretary, because of that. But you cannot have it both ways. You cannot say that the life sentence is of no deterrence worth mentioning when it confronts a murderer, and also the opposite. It is a terrible sentence.
Realistically, what happens when somebody commits a crime hitherto punishable by death? He may or may not be deterred by the life sentence. He may ask himself what is going to become of his own life if he goes prepared into a situation, with a firearm in his hands, with intent to resist arrest. The noble and learned Viscount, Lord Dilhorne, read to us a remarkable letter from a prisoner. As he read the letter. I 1196 endeavoured to apply such technique as I have to make up my mind what was the motive of the man who wrote it; and I got some surprising answers. The letter is a very valuable subject for analysis—and that will doubtless be done in the future by my colleagues; but, if he goes into this situation determined to shoot his way out, what will happen to him? Will the police throw themselves down before him, targets of attack by firearms? If they know that he has a firearm, or if he shoots for the first time, they themselves will be armed. The English police force is usually unarmed on the streets only when it goes about its ordinary business; but when it confronts a desperate offender it is armed. Our chief constables, our senior police officers, are not by any means fools, to put it mildly.
Recently, we had a case in Lancashire in which a man, a desperate criminal, shot a police officer, despite the fear of the rope, and was himself shortly afterwards shot by a police officer; and I for one would certainly take no exception to that. He had exposed himself, by wanton action of that kind, to being dealt with in this way. Therefore, it seems to me that the only thing we can do in this society now is to go ahead with the measure now before us; to examine with the greatest possible care the consequences of passing it, and particularly to do much more to discover what the motives of offenders really are—we are only at the beginning of an endeavour of that kind—and not in any sense to pin far too much faith in hanging as a deterrent for almost anything, as the noble Viscount did.
Not only have I little expectation that the abolition of hanging will affect to any high degree the recruitment of police officers, but I have also a feeling of complete certainty that it will not affect the growth in the statistics of crime which has been occurring for some little time past. And it seems to me, as I said quite recently in this House, that the figures will continue to grow in the years that lie ahead of us. I can only offer to your Lordships the suggestion, the plea, that we should continue to give the most dispassionate thought to these problems, and arm those who are able to consider them scientifically with the opportunity and the finances that will make that consideration possible.
§ 4.36 p.m.
§ LORD REAY
The Amendments of the noble Lords, Lord Conesford and Lord Ilford, attempt a substantial infringement of the Bill as passed on Second Reading. They seek to leave as capital murder two out of the five such categories under the 1957 Homicide Act. This is a substantial infringement, because it challenges both the view that the death penalty is a useless institution and the opinion that the satisfactory categorisation of murders into capital and non-capital categories is, in the words of the Royal Commission, "a chimerical quest", and one certainly not achieved by the 1957 Homicide Act—both of which views, on any reading, must be taken to have been the conclusions of this House on Second Reading. There is nothing less, nothing whatever less, therefore, to be said against this Amendment than against the Homicide Act generally. There is no reason at all for this Amendment to escape any part of the indictment of capital punishment or of the Homicide Act. But is there some very particular necessity why these exceptions should be adopted, no less odious or arbitrary in themselves though they are than any existing or imaginable category?
It was frequently maintained on Second Reading that statistics could be dismissed on the ground that they could not prove the case for abolition. I think that these concepts must he separated. It certainly cannot be claimed by abolitionists that any experience could prove that, should the death penalty be abolished here, to-day, there will be no case of a murder committed hereafter that would have been deterred but for abolition. It cannot even be claimed that statistics of the murder rate, compiled subsequently to abolition, whatever the story they tell, can prove that there have been no such murders. But it is one thing to say that statistics of this subject cannot prove, and quite another to say—as, for example, the noble Lord, Lord Derwent, said—that they should therefore be dismissed. They are evidence; and the statistics available from other countries and from this country amount to very powerful evidence indeed that the abolitionists' case is right—the more so as this evidence not only is uncontradicted, but does not even need to be weighed against evidence produced 1198 by the retentionists, because they have produced none.
Anyone familiar with the process of our courts of law knows that guilt should be found on a balance of the available evidence: anyone familiar with business decisions knows that they are taken according to the likeliest of readings as to what will happen in the future, based on available evidence, not excluding statistics. There is no need to talk of proof in these cases. It is not proof that is required, for proof is not obtainable. The noble Lord, Lord Derwent, said that he hoped we should hear no more about statistics. I hope that we shall hear no more that statistics should be dismissed.
The other contention frequently made was that the experience of other countries cannot be relevant to our own, very different, country. But it is surely not sufficient to say that this country is different, and to leave it at that. It should be indicated how this country is so different from all others as to render inapplicable to it their experiences on this subject. Moreover, it is not as though all these other abolitionist countries were like each other and different from us. There is an enormous difference between Wisconsin and Queensland, between Sweden and Finland and Italy, in their murder rates, in their history, in their culture, and in their climate. And it is precisely because of their great variety that the uniformity of their experience is so striking; for the history of each of them in each case provides evidence that the murder rate is affected by factors other than the death penalty—and these murder rates, of course, include murders of policemen.
I do not wish to repeat anything that I said during the Second Reading debate, but I should like to refer once again to two studies made in the United States into the murders of policemen, in abolitionist states and in capital punishment states. These studies arose out of some claims made in America, and particularly those made by the President of the Chief Constables' Association of Canada who was testifying before the Canadian Joint Committee on Capital Punishment in 1944. He said that the main objection of his Association was that abolition would adversely affect the personal safety of policemen in the daily discharge of their duties. He went on, rather dangerously, to submit that it would be found that 1199 the number of policemen murdered in the execution of duty in those parts of the world where capital punishment had been abolished would be "much higher" than in those countries where the death penalty was still in effect. He said also that, in his experience, this was the general opinion among police officers on the North American Continent.
In the first study into municipal police, it was found—and there was another reference to this to-day, I think—that from a total of 264 United States cities (82 in six abolitionist states and 182 in eleven death penalty states) the total of recorded murders of policemen since 1919, expressed as a rate per population, had been lower in the abolitionist than in the death penalty states. It was also found from the second study into state police—and possibly the noble Lord, Lord Ilford, may be interested in this—that only four states were able in their entire history to report no murders of a policeman, and all those four states were states in which the death penalty had been abolished.
But finally I should like again to refer to the drastic difference in police opinion on the subject of the protection given to the police by the death penalty, to the difference in opinion between police in abolitionist jurisdictions and those in death penalty ones, and to the fact that, whereas there was found to be an overwhelming belief in the efficacy of the death penalty as a protection to the police in death penalty jurisdictions, in abolitionist states there was a large majority of disbelief in any such function of capital punishment. Some 75 per cent. of the abolitionist municipal police recorded a vote that they did not believe that there was any connection between the possible threat of the death penalty and the likelihood of a criminal using a lethal weapon in encounters with the police.
But this, of course, was the discovery of the Royal Commission. In paragraph 61 of their Report, they reveal that from the representatives of the police and prison service they received (and I quote)virtually unanimous evidence in both England and Scotland, to the effect that they were convinced of the uniquely deterrent value of capital punishment in its effect on professional criminals.Yet the Royal Commission, who visited not only the United States but also 1200 Norway, Sweden, Belgium and Holland, to collect evidence from foreign countries, also said with reference to this point—and again I quote:We received no evidence that the abolition of capital punishment in other countries had in fact led to the consequences apprehended by our witnesses in this country.But these curious contradictions—on the one hand, the confidence of the police under death penalty jurisdiction that the removal of the penalty would make their jobs more hazardous; and, on the other hand, the overwhelming verdict of the police who have had experience of abolition that this has not proved to be the case—were recognised over twenty years earlier. The Select Committee on Capital Punishment, which reported in 1930, concluded:We had no evidence put before us that after the abolition of capital punishment in other countries there has been any increase in the number of burglars arming themselves or in the carrying of lethal weapons.I will make one more point. There is no country in Europe, no State of America or of Australia, whether it is retentionist or abolitionist, that includes on its Statutes the specified capital crime of killing a policeman in the course of his duty. So far as I can discover, there is no country in the world which, in principle abolitionist, makes an exception of this category. May I conclude by suggesting that we should do the police a far better service if we were to try to alleviate their real complaints about their numbers, their pay, their equipment, their conditions and their scope of work, instead of making a concession to a fear that we may reasonably hope within a few years will be recognised by the police themselves to have been unfounded?
§ LORD GRIMSTON OF WESTBURY
I wish briefly to take up two points made by the noble Lord, Lord Simey. I should like to comment first on his saying that he hoped that for criminals and others the real deterrent was not the fear of the rope; and that if he applied the argument of the retentionists to himself he would hope that the real deterrent was not the fear of the rope. He then went on to argue from that that the idea that the criminal classes are deterred by the death penalty was not a tenable proposition. But I would put this to the Committee. It came out in evidence before 1201 the Royal Commission that many of the professional criminal classes deliberately do not carry firearms because they do not want to be liable to the temptation of using them for fear of the rope. Surely, that is evidence one cannot ignore. Whatever other considerations, technological or technical, one may bring to this problem, that seems to me to be a thoroughly common-sense one. One cannot ignore it.
The noble Lord then went on to say that in a case in Lancashire the other day the police and a criminal shot it out. He said he did not mind that happening. I ask the Committee: who has the greatest wanton disregard of life, those who want to take away something in the law which we know prevents criminals from carrying arms and shooting it out with the police, or those who, taking that away, say "Let them shoot it out."? It is an argument I cannot understand.
The other point the noble Lord made was that those who say that the life sentence is not a deterrent cannot have it both ways. But it is not the retentionists who have it both ways. We would say that if a life sentence really is to be a life sentence, it probably is a deterrent; but every criminal knows that it is not a life sentence. It is those who have great sympathy with the criminal who come along and say, "We must not leave him in prison for life; he will rot." But, I would say, let us remember the policeman, say, who has been murdered. At the end of nine, ten or fifteen years the criminal who committed the murder will come out; the policeman will still be dead. I hold that it is a false argument to say that one cannot have it both ways when it is not the retentionists who speak of the cruelty of the life sentence; it is the abolitionists who do so. For these reasons, I hope the Committee will support this Amendment.
§ LORD SIMEY
The noble Lord is not suggesting that I am in favour of arming criminals, is he? He is not suggesting that I am in favour of encouraging them to shoot it out?
§ LORD GRIMSTON OF WESTBURY
The noble Lord did say that they shot it out, and that in the circumstances he had no objection.
§ 4.50 p.m.
§ LORD FERRIER
My Lords, on the subject of statistics, the point made by 1202 the noble Lord, Lord Conesford, weighs greatly with me. It was mentioned several times during the Second Reading debate. It is that we have no statistics in respect of the number of occasions on which a murder might have been committed but for the threat of the rope. The noble Lord who has just spoken, emphasised this point when he said that sometimes professional criminals do not carry a weapon because of the threat of the rope. Such statistics are absent from all our considerations, and I think that they are very important. I spoke and voted against the Second Reading of the Bill, and I still believe that a comprehensive measure would have been better than this one. Be that as it may. As I argued during the Second Reading, and as one who feels that capital punishment should be retained only in circumstances such as are covered by the Amendment of the noble Lord, Lord Conesford, I propose to support the Amendment and to vote for it.
I have only one further point to make—it is one that has not yet been made during this debate, although it was touched upon by the noble Lord, Lord Ilford. It is with special reference to the second part of paragraph (b) in Amendment No. 4. I take this opportunity to refer to what was said by the noble Lord, Lord Byers, during the Second Reading debate. He suggested that I supported retention because it gave the public a general feeling of cosiness. That is not what I said at all. I said that I believed, and I think it is agreed that most members of the general public believe, that the threat of capital punishment is a deterrent to the desperado who finds himself in a corner. I contend that a member of the public might go to the help of a policeman with greater alacrity if the deterrent were retained in that special respect. For that reason I propose to support the Amendment.
§ 4.53 p.m.
§ VISCOUNT NORWICH
My Lords, I wish to make some brief observations on the Amendment we are considering. The Title of this Bill is the Murder (Abolition of Death Penalty) Bill. If we accept this Amendment we shall be left with a version so watered-down that it will be nothing of the kind. Like all such watered-down versions (we learned this lesson from the 1957 Act), it leads us 1203 into a large number of anomalies which we can never properly resolve. For example, the position in which we should find ourselves, were we to accept these Amendments, would be that such a man as was referred to in the debate last week, who deliberately sets out to poison his wife over a period of years, would not suffer the death penalty, but a man who, in a moment of blind fear or desire for self-preservation, killed someone while resisting arrest, would. I am not saying that there is anything excusable about the conduct of the second man who was trying to resist arrest: clearly, he should not have got himself into that position in the first place. But once he is in it, it seems to me that his action is at least as understandable as, and certainly no worse than, that of the man who sets out to poison his wife. It seems to me anomalous that he should be "strung up" and that the man who poisons his wife should not.
In the debate last week, when speaking about the disadvantages of fixed penalties for given crimes, I said that it seemed very unwise that the punishment should be made to fit the crime rather than the criminal. If we accept this Amendment, it seems to me we shall be adopting yet a third criterion—we shall have a punishment designed to fit the victim. Once again, murder will be the only crime to fall into such a category—a category which is surely as curious as it is inadvisable.
I should like briefly to pick up two points made by the noble and learned Viscount, Lord Dilhorne. The first relates to the very remarkable letter which he read to us. Like the noble Lord, Lord Simey, I am extremely interested in this letter and absolutely baffled by the motivation of it. I cannot understand why this gentleman should have written. We gather from the letter—
§ VISCOUNT DILHORNE
I did not invite the gentleman to write it: I can assure the noble Viscount of that.
§ VISCOUNT NORWICH
I am not suggesting the noble and learned Viscount, Lord Dilhorne, invited it, but that does not make it any clearer to me why the man should have written the letter. What, as I understand it, he is saying is that this will make all the differ 1204 ence to his future criminal life and that everything will henceforth be much easier for him; but at the same time he warns the noble and learned Viscount—and through him the House—not to accept this Bill. It seems to me that there is something very curious about this man and, incidentally, about the letter. With respect, I should like to ask the noble and learned Viscount whether he has satisfied himself completely that the letter is genuine, and that it does, in fact, come from a convict in prison. I should, incidentally, very much like to know what crime the convict committed.
§ VISCOUNT DILHORNE
I have no doubt that the letter is genuine. It was written on the usual notepaper used by convicts, and contained the typed part on the top, and the usual number. There can be no doubt about the genuineness of the letter. I received it only yesterday by first post, and I have not made inquiries about it. The noble Viscount may make such comments on it as he likes. I should have thought it indicated at least the point of view of one convicted criminal.
§ LORD STONHAM
It would be fair to add that the contents of the letter, having as usual been censored, will have been fully noted by the prison authorities, and therefore the gentleman's hopes may not be realised.
§ VISCOUNT NORWICH
The other point I wish to make relates to the Police Federation; and I say this with some diffidence because I do not want to be misinterpreted. We have heard a great deal about the views of that Federation. Of course the views of the police, with their inside knowledge and experience of criminals, must be taken into careful account. At the same time the Police Federation, it seems to me, can hardly be considered a totally unprejudiced body. Nor should it be; its job is to represent the views of its members. It is rather like the taxpayers' union saying that we should not have to pay income tax. Naturally the Police Federation sees no reason why it should risk the lives of its members any more than is absolutely necessary. It is our job to try to weigh up the relative risks of accepting this Amendment with the alternative risks of leaving the Bill as it is drafted. Naturally we should take the views of the Police 1205 Federation into careful account, but we should also remember that it has considerable internal pressures to contend with. Having said this, I think it is all the more remarkable and creditable that even inside the police organisation, both in this country and America, there is a difference of opinion on this subject.
My Lords, last week, by an overwhelming majority, we gave a Second Reading to this Bill. Already we have one loophole, which is that the Bill should continue in existence for only five years without being reconsidered. That being so, let us have the courage to make this Bill what it says it is—the Murder (Abolition of Death Penalty) Bill. Let us in fact abolish the death penalty for murder. Only in that way shall we be able to see how it works out in practice. Surely the point of discussing this legislation and the reason for the introduction of the Bill is that we believe the death penalty to be a bad punishment. If it is a bad punishment, in Heaven's name let us do away with it.
§ 5.0 p.m.
§ BARONESS WOOTTON OF ABINGER
My Lords, this is a Bill to abolish the death penalty for murder and the Committee are concerned here with one thing only; that is, a proposed exception to that abolition. At the Second Reading of this Bill, your Lordships expressed overwhelming support for the principle of the abolition of the death penalty for murder. There is, I know, a great temptation to those who regret the vote on Second Reading to reopen discussion over the whole field of the merits and demerits of capital punishment as a deterrent, but I submit that that is an irrelevance. It is not the matter with which the Committee are concerned at the moment.
In moving his Amendment, the noble Lord, Lord Conesford, produced an argument which I must confess I found singularly specious. His argument was intended to identify in some degree the offence of killing a policeman with the offence of treason. I think he was aiming thereby to bring the category of murderous attacks upon policemen outside the scope of this Bill, which is not concerned with the death penalty for treason or for any crime except that of murder. As a layman, I have always been accustomed to believe that the law drew fine distinctions, sometimes distinctions that were 1206 so fine that they were not always easily intelligible to the man and woman in the street, but the noble Lord, Lord Conesford, seems to have abandoned that practice and substituted instead an attempt to throw an enormous blanket over what I should have thought was an important distinction, the distinction between the crime of treason, which is intended to destroy the State of which the offender is a national, and the crime of attacking a policeman, who is a representative of the State, concerned with the maintenance of internal law and order.
The noble and learned Viscount, Lord Dilhorne, took a different view and based his argument, in the main, upon somewhat slender support. He gave great prominence to a letter which he has received from a prisoner, but I cannot think that the noble and learned Viscount really has no better weapon with which to attack the supporters of the Bill and the opponents of this Amendment than a letter from a self-confessed criminal, whose crime must have been fairly serious, since he was sentenced to four years' imprisonment. I suppose that most of us have had letters of one sort or another from prisoners, just as we have had many letters from persons of unsound mind, and it is for us to assess their value. I cannot think that this is the kind of evidence that your Lordships will wish to rate very high, or that your Lordships will wish to accept this Amendment because it commends itself to a gentleman of such dubious character as that described by the noble and learned Viscount.
The great evil of the Homicide Act was that it did draw fine distinctions, and as a result of those distinctions it happened more than once that lives were at stake and lives were decided almost entirely, one might say, by forensic skill. I have had the task of reading the transcripts of a large number of trials under the Homicide Act, not in connection with this clause which the Amendment seeks to reinstate, but with another clause, and I have been deeply distressed to see, when we make different categories of murder, how the issue of life and death can turn upon points which are so fine and upon forensic skill which is so subtle that no ordinary person can feel that fundamental justice is thus done.
1207 The noble Lord, Lord Ilford, argued that the Amendment would not mean a differentiation but it means one kind of differentiation—that is, differentiation by victim instead of differentiation by method or differentiation by objective, as in the case of murder in the course of theft. We have been lucky, perhaps, rather than skilful that, so long as the Homicide Act was in force, there have not been cases of murderdone in the course or for the purpose of resisting or avoiding or preventing a lawful arrest".This is the first of the two paragraphs the Amendment seeks to add. But one can easily see that there may be such cases, and if there were, and the death penalty were involved, forensic skill would once again be the deciding factor in determining exactly in what consists resisting, avoiding or preventing arrest or assisting an escape. These are vague phrases, which are capable of a great many interpretations, and it is not upon vague phrases that life ought to hang.
The Committee, as were your Lordships on Second Reading, have been presented repeatedly with the experience in other countries. It seems that your Lordships are reluctant to look at other countries, and I do not understand why. I do not understand why, when a noble Lord says that he believes this or believes that, this should be regarded as better evidence than the recorded, consistent experience of communities like our own and of communities which are different from our own. It has been repeatedly said that the statistics are inconclusive, but in this particular instance, just because they are inconclusive, the statistics create a strong possibility on the one side. Certainly, it is true that we cannot have the figures of the number of people who have been prevented from committing a murder because they have been afraid of being hanged, but it is a remarkable thing that in every country where the death penalty has been abolished there has been no evidence of a substantial, consistent, subsequent increase in the murder rate. That is inconclusive, but it is a very strong pointer.
I cannot think why the experience of other countries is so little acceptable. Is it because our criminals are more savage 1208 than those we find throughout the Continent of Europe? Or is it because our police are less effective or less courageous? I do not think the Committee will accept either of those two arguments. It is a very significant fact, quoted by the noble Lord, Lord Reay, that in all the countries which have abolished the death penalty it has not been found necessary to make these exceptions. Since the date of these figures, there has been only one exception, in one American state.
I must remind your Lordships again, as I said on Second Reading, that many of the most dangerous murderers are those of unsound mind and that, if they should commit a murder while they are detained in an institution, there is nothing further that can or will be done to them. There is therefore no further deterrent in that case any more than there is for someone serving a life sentence, though for both there is the deterrent that all hope of release is gone if he subsequently commits a murder. I think it has been the experience, with people of unsound mind who have committed murder, that this terrible risk of a subsequent murder of those who have charge of them has not materialised. The Committee will, I think, need to think most carefully before they commit themselves to accepting these exceptions to the abolition of the death penalty. These exceptions, after all, create a kind of privileged class of lives. It is true, and it is very understandable, that many police officers and the spokesmen of the police have expressed themselves as anxious to retain the death penalty. But I do not believe that the police have expressed themselves as anxious to be put in a specially privileged position, which is what is being asked for by these Amendments. That is quite a different matter.
The police, as we all know, are men of tremendous courage and, what is no less important, quite remarkable skill in dealing with difficult and dangerous situations. I do not believe that they would ask your Lordships to accept a principle which would give countenance to the view that their lives have a special and peculiar value. A life is a life. The murder of a police officer is a terrible tragedy; the murder of a prison officer, should it occur, is a terrible tragedy; and the murder of an ordinary citizen is a 1209 terrible tragedy. But I do not think your Lordships will wish to accept the view that in the last resort we should differentiate between one of these tragedies and another, and express that differentiation by re-enacting the death penalty in the one case when it is abolished in the other.
§ 5.15 p.m.
§ LORD CONESFORD
I think the Committee are now ready to come to a decision on this matter, and I wish only to reply, in the briefest possible way, to a few points which the noble Lady has just made. On her last point, I agree with her. I should not wish to put the police in a totally different class from anybody else. If the noble Lady will examine the two exceptions which I propose in my Amendments, she will see that neither of the two is confined to the police.
I should also like to correct the noble Lady's misunderstanding of what I said on the subject of treason. I feel certain that it was due to the inadequacy of my own exposition, and was not her fault. Let me say that I made it perfectly clear that I did not suggest that these offences were treason. I said that they were rather similar to treason in certain respects. I described the murders dealt with in my Amendments as murders which were acts of war against civilised government itself, against the whole machinery of justice and against the very existence of the rule of law. That seems to me to constitute a perfectly clear distinction between these murders and such subtleties as whether a murder was in the course or furtherance of theft or not, and I do not think it would give rise to the sort of difficulties that such refinements in the 1957 Act gave rise to. That is why I said it was quite logical to except these two classes of murder mentioned in my Amendments. The reason I wished to
§ except them was a reason which has received no reply at all in the course of this debate: that without these Amendments there are some murders against which our law would provide no deterrent of any kind whatsoever, because the imprisonment to which the murderer would be liable would be certain even in the absence of murder.
§ BARONESS WOOTTON OF ABINGER
The noble Lord, Lord Conesford, will surely recall that I did point out that there is still a deterrent: that any person who commits a murder of this kind knows that if it is murder of a police officer he is committing a murder of exceptional gravity; and if it is a prison officer, he knows that his chance of release has gone for ever.
§ LORD CONESFORD
Murder of great gravity. But I ask the noble Lady and others to picture the position of a man who is threatened with arrest, to whom a sentence of long imprisonment is quite certain, even in the absence of murder, but who has a very good chance of escaping altogether if he commits a murder. The matter is entirely for noble Lords in every section of the Committee to consider for themselves—namely, whether, in those circumstances, imprisonment is a deterrent. The reason why I mentioned that the view of the police is entitled to respect is that I think they know a good deal more than most of us of the people with whom they have to deal. My reasons for these Amendments I endeavoured to make clear in my original speech, and I do not wish now to delay the Committee in coming to a decision.
§ 5.20 p.m.
§ On Question, Whether the said Amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 81; Not-Contents, 114.1211
|Ailwyn, L.||Clitheroe, L.||Ebbisham, L.|
|Albemarle, E.||Colwyn, L.||Effingham, E.|
|Aldington, L.||Conesford, L. [Teller.]||Ellenborough, L.|
|Allerton, L.||Coutanche, L.||Erroll of Hale, L.|
|Ampthill, L.||De La Warr, E.||Falkland, V.|
|Ashton of Hyde, L.||Denham, L.||Ferrers, E.|
|Balfour of Burleigh, L.||Denning, L.||Ferrier, L.|
|Birdwood, L.||Derwent, L.||Fraser of Lonsdale, L.|
|Blackford, L.||Digby, L.||Gage, V.|
|Bossom, L.||Dilhorne, V.||Goschen, V.|
|Bridgeman, V.||Drumalbyn, L.||Grenfell, L.|
|Grimston of Westbury, L.||Mabane, L.||Somers, L.|
|Hailes, L.||Margadale, L.||Stamp, L.|
|Hawke, L.||Massereene and Ferrard, V.||Strange of Knokin, Bs.|
|Hobson, L.||Merrivale, L.||Strathcarron, L.|
|Hodson, L.||Milverton, L.||Stuart of Findhorn, V.|
|Horsbrugh, Bs.||Molson, L.||Swaythling, L.|
|Hurd, L.||Moyne, L.||Swinton, E.|
|Ilford, L. [Teller.]||Pearce, L.||Tenby, V.|
|Inglewood, L.||Reid, L.||Terrington, L.|
|Kenilworth, L.||Rockley, L.||Thurlow, L.|
|Kilmuir, E.||St. Aldwyn, E.||Tucker, L.|
|Latymer, L.||St. Helens, L.||Tweedsmuir, L.|
|Lilford, L.||St. Oswald, L.||Ullswater, V.|
|Long, V.||Selkirk, E.||Wakefield of Kendal, L.|
|Lothian, M.||Simonds, V.||Waleran, L.|
|Lucas of Chilworth, L.||Sinclair of Cleeve, L.||Wolverton, L.|
|Addison, V.||Foley, L.||Phillips, Bs.|
|Airedale, L.||Francis-Williams, L.||Plummer, Bs.|
|Archibald, L.||Gaitskell, Bs.||Raglan, L.|
|Arran, E.||Gardiner, L. (L. Chancellor)||Rea, L.|
|Arwyn, L.||Gifford, L.||Reay, L. [Teller.]|
|Attlee, E.||Gowrie, E.||Rhodes, L.|
|Auckland, L.||Grantchester, L.||Robertson of Oakridge, L.|
|Baldwin of Bewdley, E.||Greenhill, L.||Rothermere, V.|
|Beswick, L.||Greenway, L.||Royle, L.|
|Blyton, L.||Haddington, E.||St. Davids, V.|
|Bowles, L.||Haig, E.||St. Edmundsbury and Ipswich, L. Bp.|
|Boyd-Orr, L.||Haire of Whiteabbey, L.|
|Brockway, L.||Harmsworth, L.||Samuel, V.|
|Brooke of Ystradfellte, Bs.||Henderson, L.||Savile, L.|
|Brown, L.||Henley, L. [Teller.]||Segal, L.|
|Burden, L.||Howard of Glossop, L.||Shackleton, L.|
|Burton of Coventry, Bs.||Jessel, L.||Shepherd, L.|
|Byers, L.||Kennet, L.||Sherfield, L.|
|Canterbury, L. Abp.||Kirkwood, L.||Silkin, L.|
|Carrington, L.||Layton, L.||Simey, L.|
|Cawley, L.||Leatherland, L.||Snow, L.|
|Champion, L.||Lindgren, L.||Sorensen, L.|
|Chichester, L. Bp.||Listowel, E.||Stonham, L.|
|Chorley, L.||Llewelyn-Davies, L.||Swanborough, Bs.|
|Citrine, L.||Lloyd of Hampstead, L.||Tangley, L.|
|Clwyd, L.||London, L. Bp.||Taylor, L.|
|Cohen, L.||Longford, E. (L. Privy Seal.)||Twining, L.|
|Cohen of Brighton, L.||Mancroft, L.||Wade, L.|
|Coleraine, L.||Merthyr, L.||Waldegrave, E.|
|Colgrain, L.||Meston, L.||Walston, L.|
|Cowley, E.||Milford Haven, M.||Ward of Witley, V.|
|Cranbrook, E.||Mitchison, L.||Wells-Pestell, L.|
|Croft, L.||Morris of Borth-y-Gest, L.||Wilberforce, L.|
|Cullen of Ashbourne, L.||Morrison, L.||Williams, L.|
|Dudley, L.||Mottistone, L.||Windlesham, L.|
|Eccles, V.||Newton, L.||Winterbottom, L.|
|Elliot of Harwood, Bs.||Norwich, V.||Wise, L.|
|Emmet of Amberley, Bs.||Ogmore, L.||Wootton of Abinger, Bs.|
|Faringdon, L.||Parker of Waddington, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ 5.30 p.m.
LORD PARKER OF WADDINGTON moved, in subsection (1), to leave out "sentenced" and insert "liable at the discretion of the court". The noble and learned Lord said: The object of this Amendment, which is very simple, is to abolish once and for all a fixed penalty for murder; in other words, to prevent
life imprisonment from being the only sentence which can be passed. The Amendment is in simple terms. If it is passed, subsection (1) will read:
… a person convicted of murder shall … be liable at the discretion of the court to imprisonment for life.
It has been questioned in another place whether those words achieve their object, but I sincerely believe—and the lawyers will correct me if I am wrong—that those
words enable a judge to give anything, from probation, up through terms of years, to life imprisonment. At any rate, that is the object of the Amendment.
§ I move this Amendment on a number of grounds. The first is one of principle. In common with a great many other people, I dislike a fixed sentence, and now that it is proposed to abolish the fixed sentence of the death penalty I do not wish to see another fixed sentence in its place. In a fixed sentence there is no room for any matters of mitigation. The sentence is passed; and the prisoner is removed from the dock, when almost the only things that have been said publicly are things which are against him. No one hears of his home circumstances or his background. I do not think that any Home Secretary would claim to have a monopoly of the quality of mercy. Certainly I think that judges have this quality, and wish to exercise it. It is a horrifying experience to have to sentence the perpetrator of a mercy killing, in circumstances which are most distressing—to have to sentence him to life imprisonment, to cast on him the slur of life imprisonment, when nobody has the slightest desire that anything should happen other than that a home should be found for him and somebody to look after him.
§ Secondly, is it really right now that there should be any distinction between murder and other serious crimes? Murder is no longer a unique crime. It may be the most serious offence, but it is nothing more than that. What really is the difference to-day between murder and attempted murder? The only difference is the accident that in one case the man dies. Yet in a case of attempted murder the judge, according to the circumstances, and after hearing all the mitigating factors of the case, can do anything from putting the man on probation to giving him life imprisonment. But under this Bill, as it stands, if the victim unfortunately dies, there is the one and only sentence to be passed, irrespective of all the circumstances of the case.
§ The matter gets worse when one thinks that two classes of what are really murders are, anyhow, reduced to manslaughter, on the grounds either of diminished responsibility or of provocation. They are both murders, albeit reduced to manslaughter. If they are reduced to manslaughter, the judge has 1214 absolute power to give anything from probation up to life imprisonment. But if they are not reduced to manslaughter then once more it is the fixed sentence. Matters of provocation are matters of great difficulty, and the line is sometimes very fine. A judge may well have a case of murder due to provocation. It may be that one jury will be able to say that it is true provocation in law, whereas a second jury may well take the opposite view. If the judge is lucky enough to have the first jury he can give a sentence of five years' imprisonment, whereas if he has the second jury he has to give life imprisonment.
§ Is not the true position to-day that there is only one offence, the offence of homicide, which varies infinitely in degree from the lowest manslaughter up to murder in the course of organised crime in a war against society? There is every grade, and I hope the judges may be left to give the proper sentence in all the circumstances of the case. The third object is, as I think I mentioned on Second Reading, that it will enable the judge to pass a sentence which marks the seriousness of the crime and signifies the public feeling of revulsion. Let me make one thing perfectly clear. If a trial judge gives a fixed sentence, he is not saying, "That is the sentence which shall exist years and years to come". He cannot make a prognosis.
§ I think it was the most reverend Primate who, on Second Reading, said that the judge ought not to give long sentences because he is not in a position to give them. That, if I may say so with respect to the most reverend Primate, is not the object of the exercise. The object of the exercise is to give at the time a sentence marking the seriousness of the offence, the revulsion of the public feeling and the hope that it will act as a deterrent. There is no judge on the Bench who does not hope—and I sincerely hope—that the time is coming, and coming very shortly, when there will be machinery for reviewing long sentences. Nobody wants to miss the opportunity of releasing a man when it is thought that he can be a good citizen, and I certainly hope that the Royal Commission on Penal Reform will look into that matter; and it may be that we shall have a parole board system.1215
§ I am one of those who feel that a long sentence given at the time does act as some deterrent. I know it is always said that the only deterrent is the certainty of detection; that if you once set out to commit a crime you do not think of the consequences—you think you are too clever to be caught. That undoubtedly is true, up to a point. But there are innumerable people—and particularly the young—who do not get to the point of having decided to commit a criminal action, or even consider it; and it is to those people that one wishes to bring home that, if that sort of thing is done, the perpetrator will be severely sentenced.
I think it is clear (this is one of the things which have emerged in this debate) that, if nothing else is done, nine years, or thereabouts, will be a life sentence. I am not talking about the mentally deranged, the man who, because of some mental aberration, cannot be freed because it is not safe to do so: I am talking of the murderer about whom there is no mental element of that sort. I think it became clear from the statement of my right honourable friend the Home Secretary in another place, which was read on Second Reading by the noble Viscount, Lord Colville of Culross. I venture, at the expense of wearying your Lordships, to read once again what was quoted from the Home Secretary's speech. It appears at col. 564. He said this:
it may well be—I do not say that it will always be—that in cases hereafter, if there were no commutation because of mitigating circumstances, the death penalty having gone, whether it would seem proper, having regard to the nature of the crime and the character of the individual, that his sentence should be longer than nine years. I would be very reluctant to make it much longer …".
Then he goes on:
… because, generally speaking, experience shows that nine years, ten years, or thereabouts is the maximum period of confinement that normal human beings can undergo without their personality decaying, their will going and their becoming progressively less able to reenter society and to look after themselves and become useful citizens."—[OFFICIAL REPORT, Commons, Vol. 704 (No. 38), December 21, 1964.]
Finally he says:
As I have said on previous occasions, the nine years, experience shows, is round about the time when one may begin to get symptoms to show that the person in prison is beginning
to break down. Therefore in practice a number of persons have been released after nine years in prison."—[OFFICIAL REPORT, Commons, Vol. 716 (No. 152), c. 388, July 13, 1965.]
There it is. We know where we are. What I feel is that this surely must be the answer: first, that in proper cases—and this is a matter which would concern inspiring confidence in the police—the judge should he able to give a fixed term of years which is considered by the public longer than a life sentence; secondly—and this has shown a great indictment, I think, of prison conditions—something must be done urgently to see that people do not rot in prison when they are kept in for nine years. It really is ridiculous.
§ I did not intervene on the last Amendment because I confess I was against it and voted against the Amendment. But one of the reasons, I think, why in countries where there has been abolition there has been no sign of an increase of murders of the police, and why the police are quite satisfied, is that in most of those countries (and I shall be corrected if I am wrong) life imprisonment is very much more than 9 years. I believe that in Switzerland it is a minimum of 20, and the noble Baroness on Second Reading was talking of a citizen of the United States who came out, after 33 years, and became a highly respected and useful citizen. Something is wrong with the conditions in this country.
§ Finally, there should be some machinery by way of a parole board which can review life sentences from time to time. Is it right that sentencing policy, what the judges have a right to give by way of sentence, should be determined by the conditions of imprisonment? To take an example as an absurdity, is it that nobody should be sentenced to imprisonment because there are no places or few places in prison? Surely this is a case where sentencing policy must be carried out but the institutions and the conditions therein must be altered accordingly.
§ May I in advance endeavour to meet what I think is the only possible argument that could be raised against my suggestion? It will, I am sure, be said that there is a real danger in a judge fixing a term of years because it is said, quite rightly, that at the end of that term, less remission, the prisoner has to be released even if it is not thought safe 1217 to release him. I think that is the only possible argument, but it is an argument which applies already in numbers and numbers of offences; take manslaughter, rape, wounding with intent, attempted murder, robbery and the like, where the permissible sentence is not merely life but a number of years. In all those cases, it could be said, the judge should not give a fixed term of years because if at the end it was not thought safe to release him he would have to be released. The answer surely is that in those cases, and I suggest in murder also, the judges should be trusted to give life where there is some mental element involved, some mental aberration where it may well be quite unsafe to let him out if a number of years were given. It is a matter, I think, to which all the judges are very much alive. And, really, if my Amendment were carried the number of cases where sentence of imprisonment of any substantial length would be passed would be in those very cases where highly organised professional criminals were out to fight society and were possibly breaking out of prison or resisting arrest.
§ May I say this, finally? I think the difference between those who would support this Amendment and those who would be against it rests fundamentally on two matters. The first is the answer to the question: Do the public have confidence in the judges? Well, despite what happens from time to time in another place, I am of the firm opinion that the public still do trust the judges. I am quite certain also that the Legislature trusts the judges. Otherwise, why have all their sentencing powers not been taken away from them long ago? I am satisfied that the Executive have confidence in the judges, because whenever they get into a difficulty they haul out a judge as the first person to man some inquiry. And so I say that the judges are trusted by the people and that it is absurd to say that this suggestion would break down because the judges would do some fantastically stupid thing.
§ The other vital consideration, I think, is whether the public are or are not content with the life sentence as we now understand it. There are undoubtedly two views, sincerely held, on this. There are some—I have heard it said—who say that the public are entirely content and that maybe it is Tory propaganda that suggests the contrary. Anything like 1218 that distresses me. This is not a Party matter. I am not a Tory. I do not owe affiliation to any Party whatsoever. But I do sincerely believe that, up and down the country—I could go into percentages or even majorities; I would say a majority, although I am not concerned with that—a substantial body of opinion sincerely believes that something more is needed than life sentence as we understand it.
§ Then there are the police. I agree with the noble Baroness that certain sections of the police do not desire to be in a privileged position. That is why I voted against the last Amendment. But what they do need is a confident feeling that the organised criminal, out to fight society, out to kill, if necessary, in the course of arrest and escape, will be dealt with in such a way as will deter others. I sincerely believe that if the judges in that sort of case—I think this is just the sort of case in which they would exercise their power—could give a long sentence of imprisonment, it would satisfy the police.
§ The other matter is whether anything is a deterrent sentence. There are some people who take the view that nothing is a deterrent other than the certainty of detection and punishment. The certainty of detection and punishment is something which cannot be achieved in the near future, if ever—I would venture to think, never—but, at the same time, I am quite convinced, and experience has shown, that a long sentence given occasionally on a carefully selected occasion, for some serious offence, does have that effect. I would instance only the spate of Post Office Savings Bank frauds after the war. By the imposition of severe sentences then, their number became negligible in a matter of a year or two years. I do not think anybody rationally or reasonably could say that the sentences in regard to the Notting Hill Gate racial riots did not have a miraculous effect. I myself—and I think experience has shown this—feel that a deterrent sentence occasionally, given in a well selected case (if I may put it that way) works wonders, and I should like to see the judges able to do that in the few cases in which it will be necessary.
§ Finally—and I am really at an end—as the noble Baroness said, this is a Bill to abolish the death sentence. That was 1219 why many of us voted for this Bill on Second Reading, and indeed against the last Amendment. I have worked for this result for several years, and I think it has always been currently understood that I have been at the same time quite emphatic that a life sentence as now understood is inadequate. As I have said, there are many who think the same, of whatever Party; and it is surely but a small price—may I put it that way?—for the sponsors of this Bill to agree to this Amendment, to meet the feelings of a substantial number of the public (I put it no higher); to carry with them the well-wishers for the object of this Bill, and, finally, to ensure that the object of this Bill is on Third Reading achieved. I beg to move.
Page 1, line 7, leave out ("sentenced") and insert ("liable at the discretion of the court").—(Lord Parker of Waddington.)
§ LORD STONHAM
On one point I must immediately disagree with the noble Lord, Lord Parker of Waddington. I understood him to say that the question of whether the Legislature, the Executive and the public had confidence in Her Majesty's judges was an issue in this discussion. I am quite sure that it will not be an issue at all, and that no shadow of it will be found in my remarks. I also agree with him that this decision is most certainly not a Party matter, and further, that the words of his Amendment will achieve his objective as he has described it to us.
There is one other important point that I should like to make now, and that is that now, since after our last vote Parliament has virtually abolished capital punishment for murder, no major difference exists between us except the method of achieving our common objective, namely, to ensure the protection of the public. We agree that for that the sentence must be of a severity commensurate with the crime, and we agree that no murderer should be released from prison if there is any danger that he would harm anyone. Subject to those overriding considerations, we both wish to do what we can to make the criminal fit for eventual return to society.
Unfortunately, we strongly disagree with the Lord Chief Justice about the 1220 means of achieving this objective. Taking the two Amendments together, he as I see it, suggests a sort of three-legged sentencing policy for murderers. The first is anything from probation to a term of years; the second is a life sentence as provided in the Bill; and the third is a life sentence with, tacked on to it, a recommendation for a minimum term of years. If in any way I misrepresent what he suggests, I hope that the noble Lord will interrupt me at once. But as I see it, the point is, which method will best ensure the safety of the public. Lord Parker of Waddington's proposals, or the Bill as it stands, with a mandatory life sentence and the Home Secretary deciding if, or when, and how, a murderer should be released?
Before I come on to the details of that comparison, I must express complete disagreement with the view expressed by the noble Lord equating murder with manslaughter. He frankly agreed that we should put murder in line with burglary, arson, rape and all the rest of the 31 other offences which still invite the maximum penalty of life imprisonment. But the Government—and in this, at least, we have the great majority of people with us—regard murder as a crime apart, the ultimate crime, and as such we think that murder requires a mandatory life sentence, because this demonstrates to everybody that a murderer, by taking the life of another, subjects himself to detention until he himself dies, or, if he is released, to supervision, subject to recall.
A life sentence for murder is no empty formula. No other sentence carries such lifelong disabilities. And, if you believe that penalties deter murderers, no other sentence can possibly have such a deterrent effect. I am bound to say this. I think it denotes a complete lack of imagination and indeed sensitivity to suggest that this lifelong penalty, including perhaps ten or more years in prison, is a light sentence. Whatever improvements we make, a prison will still be a cage; and no man lightly risks being caged for the rest of his life.
Consider the alternative suggested by the noble and learned Lord, Lord Parker of Waddington. If the Amendments were approved the courts might sentence a murderer to anything from probation to 50 or more years' imprisonment. I think 1221 it likely that, if we accepted this Amendment, sentences for crimes of apparently equal gravity would, at any rate at first, vary widely from judge to judge; but gradually, if painfully, we should settle down until we had a sort of tariff for murder.
It might work out perhaps at a year or two for a mercy killing—a sort of legal euthanasia for a small penalty; five years for shooting your wife's lover; and thirty years for murdering a policeman. We are all distressed by those heartrending cases where a life sentence appears at first sight cruelly unnecessary and wrong. But consider the effect of sentencing a man to, say, two years for a mercy killing. First, in our view, it diminishes the gravity of murder in the eyes of the public. Secondly, the judge is in effect, saying "Release this man sixteen months hence because he will not harm anyone again". The degree of risk cannot be assessed at the time of trial. There are cases where seemingly innocuous murderers subsequently reveal latent tendencies not previously apparent.
Under the existing system the State can, and does, take a merciful view, and some murderers are released after serving short terms. There have been four such short-term releases of offenders sentenced under the 1957 Act. To take one case, a man killed his invalid brother, who was suffering from a mental disorder which made him aggressive and caused him violently to attack his mother. This man killed in a state of considerable emotional tension. He was released after six years—that is, the equivalent of a nine years' sentence. There are others who have been released after three or four years, pitiful cases which would have earned the sympathy of anybody, in court or otherwise. How could any judge possibly decide, in advance, a term of years appropriate to those cases, a term which would be consistent with the safety of the public and the true interests of the offender?
Then, at the other end of the scale, the position would be even more dangerous. Suppose a judge sentenced a dangerous criminal to 30 years for the murder of a policeman. The Home Secretary of the day would be compelled to release that man after twenty years, whatever the danger to the public. Surely your Lordships would not wish to force 1222 such a situation either on the Home Office or on the public.
If you then take refuge in Lord Parker of Waddington's third leg, you would say, "In such a case the judge would impose a life sentence with a recommendation for a minimum of thirty years." But that reduces the Amendment to a public relations exercise. Moreover, if there is a recommendation for a long sentence, the minimum would be regarded as a maximum.
§ LORD PARKER OF WADDINGTON
I am sorry to interrupt the noble Lord, but I was not intending to deal with my second Amendment at this stage. That is completely alternative to this suggestion.
§ LORD STONHAM
It was a misunderstanding. I thought that the noble Lord was dealing with the two together, so far as discussion was concerned, and that we would, if necessary, deal with them separately so far as voting was concerned. It is the case that a long sentence such as that would subject the Home Secretary to great pressure to release the man when the time came—pressure which indeed he could not resist.
I want to put another point to your Lordships. No court, however wise, can tell what a man will be like in 20 or 30 years' time. He will not be the same man. The Home Secretary, however, can judge from hindsight how closely the middle-aged man under consideration for release resembles the young "tearaway" sentenced by the court. The young thug may have become a middle-aged thug. Or he may have been reborn in prison. One should stay in prison. The other should be released. But the decision can be taken only when the time comes. No court can take it 20 years in advance.
All these arguments against fixed sentences for murder—I used the term "fixed sentence" as a term of years, not in the sense that the Lord Chief Justice was using it, as applied to a life sentence—
§ LORD STONHAM
Yes. All these arguments against fixed sentences for murder become still stronger when one considers the power to recall a released life prisoner. In the case of a murderer released after being sentenced to a fixed 1223 term, the Home Secretary would be quite powerless however alarming the man's conduct might turn out to be. I must confess that I find this result of the Lord Chief Justice's Amendment difficult to reconcile with our objective of securing the safety of the public. Whichever way you look at it, these Amendments would create a dangerous situation.
I believe that much of Lord Parker of Waddington's speech sprang from the mistaken belief that, by and large, life imprisonment means nine years in prison. I want, if I can, to kill that nine-year myth. I know that the Lord Chief Justice, quite fairly, quoted a speech of my right honourable friend in another place, but he did not then quote the very strong qualifications which my right honourable friend made, and which I should now like to indicate.
I think that this nine-year idea has arisen, in part, from publication of the terms of imprisonment which have been served by men who have actually been released. One gets a very different picture when one considers the terms which have been served by murderers still in prison. As your Lordships will know, the only murderers now in prison are those sentenced under the Homicide Act or men who were condemned to death and had their sentences commuted because of mitigating circumstances. But, even so, there are a number who, in terms of fixed sentences, allowing for normal remission, have served sentences ranging from 16 to 30 years. They are still in prison and it has not yet been decided when, or even if, they will be released.
§ LORD PARKER OF WADDINGTON
I am sorry to interrupt the noble Lord. Could he indicate—because it is always difficult to get any information from the Home Office—how many of those imprisoned for 16 to 30 years have a mental abnormality or aberration?
§ LORD STONHAM
The Lord Chief Justice asked me how many who had been in prison for 20 years had a mental abnormality. My answer, according to my information, is, none. I have been very careful in what I have said about these men and the noble and learned Lord himself is probably aware of the reasons why I do not want to particu 1224 larise. He will know that what I have said in this regard is accurate. But I will come a little later on to the point of mental abnormality.
I was saying that it has not been decided when, or even if, these men would be released, but I would make it clear that, if this Amendment were to be accepted, we should be obliged to set such men free after the specified number of years, whether or not it was safe to do so. Compare this with the present system, where every case is reviewed at least at four-year intervals, and more frequently after eight years. The review takes account of the trial judge's impression of the prisoner, his mental and physical health, his conduct and attitude in prison, his training, his relations with his family and an assessment of his prospects for outside life. The prison reports are based on continuous observation over the whole period of a prisoner's detention. Reporting officers have full information about the prisoner's history—the events which led up to the crime itself—and detailed medical reports are also available. Eventually a provisional decision is made and the trial judge is consulted through the Lord Chief Justice.
If the prognosis is still favourable, the Home Secretary agrees a provisional release date. This is communicated to the prisoner a year in advance and is subject to continuing good conduct. A considerable proportion of murderers serve part of their sentences in open prisons. They could walk out, but they do not, because it would stop them from earning their way back to normal life. The bad types are held in maximum security prisons and the Home Secretary has said many times that, in the interests of public safety, he would be prepared, however reluctantly, to keep a man in prison for the rest of his life. The new prison at Albany in the Isle of Wight is specially designed for this because within a secure curtilage it will provide freedom not possible in the older prisons and help to avoid deterioration arising from long confinement. We wholeheartedly support the views expressed by the Lord Chief Justice on the responsibility which rests on the Government, if we have to keep men in prison for a great many years, to provide conditions under which they will not deteriorate.
1225 Each decision on the matter of release is the Home Secretary's personal responsibility and no decision is taken more painfully, more responsibly or, through the years, more successfully. This century, out of the many hundreds of cases of men released on licence only two have committed a second murder. The details are familiar to your Lordships. But what is even more remarkable is that only two murderers who have been convicted and released on licence in the last twenty years have been convicted of a further offence of violence. One of the two was sentenced to two months' imprisonment. That will give your Lordships an idea of what has happened.
This overstates the position, because, like the Amendments, it does not deal with the very large number of violent criminals and murderers who, under a similar procedure, and on the Home Secretary's responsibility, are released from detention during Her Majesty's pleasure. During the last twenty years there have been 552 discharges from Broadmoor alone; 289 of these were murderers and none of the 289 has committed a second murder. From the public safety point of view, this is a 100 per cent. security record. It is impossible in my submission, to believe that this would be maintained if fixed sentences with irrevocable discharge dates were substituted for mandatory life sentences with release on licence subject to the procedure I have described.
During his speech on Second Reading, the noble and learned Lord, Lord Parker of Waddington, said that his support for this Bill arose largely through the absurdities and anomalies of the Homicide Act and that he was completely disgusted at the results of that Act. But his Amendments would, in my mind, produce the remarkable new anomaly that, whilst the Home Secretary would have no control over the release of murderers awarded fixed sentences of imprisonment, he would (presumably in the interests of public safety) retain complete control over the release of murderers ordered to be detained during Her Majesty's pleasure, and over the release or continued detention of persons sentenced to life imprisonment for crimes other than murder. There are 70 such persons in prison now, and every one of them could have been sentenced to fixed terms of imprisonment, but the judges chose to inflict life 1226 sentences instead. Yet in the special case of murder, for which we propose to impose mandatory life sentences—the most flexible of all sentences—we are asked to provide for fixed sentences.
At the outset—I am sure with your Lordships' agreement—I said that one of the prime objects of a sentence for murder was to ensure that the public is not exposed to the risk of the murderer committing murder or some act of violence again. The Government believe, and decades of successful experience confirm, that a life sentence, giving maximum flexibility about the period of detention, is the only sure way of safeguarding the public against the release of a dangerous murderer.
The Amendment of the noble and learned Lord, Lord Parker of Waddington, would in many cases remove that public safeguard because a judge would very probably impose a fixed sentence and in many cases, without its being realised at the time, this would be against the public interest. The surest way to get bad decisions is to blur the responsibility for making them. I therefore urge your Lordships to leave the clear responsibility for these decisions to the one man who is armed with all the relevant facts and who is responsible to Parliament and the people for the decision he takes—the Home Secretary of the day. Please do not leave us, and please do not leave the people, as the Amendment would, with a bewildering range of possible sentences, sentencers, and releasers. I hope the noble and learned Lord will agree to withdraw these Amendments, but, if he feels unable to take that course, then I would ask your Lordships to reject them.
§ LORD DENNING
May I say a word in support of the Amendment and especially to underline what the Lord Chief Justice said—namely, about the frequent narrowness of the line between murder and manslaughter. I have tried cases where the jury were greatly perplexed, and indeed, might well have found murder, but had taken the merciful view and found manslaughter instead. I remember one case where I gave only two years to a man on that account, and another case where I gave fourteen years. In cases of manslaughter it is open to the judge to inflict such sentence as is appropriate to the offence, ranging from probation to life. Therefore, it seems to me 1227 that the argument which the noble Lord has put could equally apply to all manslaughter cases. You could say, "Well, do not leave it to the judge. Leave it to the discretion of the Minister and the Prison Commissioners, who indeed have all the information as the years go by". But is that right when you consider further—and I think this is the important point—the impact on the public in regard to adequate sentences being passed to vindicate the law?
When the Royal Commission on Capital Punishment considered this question of sentence to life imprisonment, they asked: Why should it not be brought into accord with reality? They said:… we can find no good reason why the terms of that sentence should not be brought into conformity with its reality, and we recommend that it should be expressed as 'imprisonment during Her Majesty's pleasure '.I ask your Lordships: What is to be the impact on the community when a sentence is passed which is known to be a sentence of imprisonment during Her Majesty's pleasure? A sentence of life imprisonment does sound, and is, awe-inspiring if it is really carried out. But when the public know, and when the Royal Commission say, that it is imprisonment during Her Majesty's pleasure, does that express the denunciation which the community should express?
The Lord Chief Justice has instanced cases where the emphatic sentence of the court has had its impact throughout the whole of society. Your Lordships will remember that he mentioned the cases of the youths of 17 in the race riots at Notting Hill Gate. I should have thought that in the ordinary way a judge would have given six to nine months' imprisonment in those cases, if there had not been behind them the colour prejudice, and the impact on the public. As your Lordships know, the judge sentenced boys of 17 to 19 to five or seven years' imprisonment, and the impact on the whole of the community and its effect on race relations was enormous. If, say, a train robber, or a man who is already in prison for a long time, escapes and then shoots a police officer or a civilian, such as Mr. Antiquis, whom I mentioned last time, and if the judge is to say to that prisoner, who may already 1228 be serving twenty years or longer, "You are to be sentenced to imprisonment during Her Majesty's pleasure", does that express the public indignation and the emphatic denunciation that there should be?
As my noble and learned friend the Lord Chief Justice has indicated it will be in only a few cases that long sentences, or indeed life sentences, will be necessary. But it seems to me that to keep this power of the judge (representing, as he does, the community) to say what should be done to the man is the right public way of dealing with the matter, and it should not be left to the discretion of the Executive, however well exercised, bearing in mind that it can still be exercised within the margins permitted by a wise and humane administration of the prison service. I suggest that this Amendment keeps the law in conformity with all other sentences, and I ask your Lordships to accept it.
§ 6.22 p.m.
§ LORD REID
I should like to add a few words in support of the Amendment. I support my noble and learned friend Lord Parker of Waddington in this Amendment, but I do not think I would support either of the two alternatives. However, they will come later, no doubt, if this Amendment is not accepted. The reason why I support this Amendment is that otherwise the position will be left in a wholly illogical state. If the noble Lord, Lord Stonham, has proved anything, he has proved far too much, because at the moment all other serious crimes are dealt with by fixed terms. There are a few cases, I agree, in which life sentences are indeed given, but they are very few.
Nobody can say that the problem of the other dangerous criminal is any different from the problem of the man who has committed murder. It just so happens that one will have committed murder; another will have committed manslaughter, because of technical differences in the law; and another will have been lucky in that he has committed armed robbery, although he was quite prepared to commit murder if it had been necessary. There is no difference at all among these criminals. Therefore, if the noble Lord, Lord Stonham, is right, there ought 1229 to be this indeterminate sentence of "during Her Majesty's pleasure" for every one of these dangerous criminals.
Now, there is a good case for that. I am not sure that I would be convinced by it, but there is a very good case for inquiry into that matter, and I see no reason why there should not be an inquiry. If it turns out, after the inquiry, that the proper thing to do is to have an indeterminate sentence for everybody, then Parliament can consider that when the time arrives—and I think the points put by my noble and learned friend Lord Denning would probably weigh rather heavily when it came to considering whether indeterminate sentences were, as a general rule, a good thing. But why have this illogical distinction? Having abolished the death sentence, the moral guilt of the man who has committed murder is very often no greater than the moral guilt of the man who happens to have committed manslaughter (because there are still technical differences in the law, and the line between them is still very narrow) and no greater than the moral guilt of the man who has committed armed robbery with violence. Therefore, why treat these people differently? I suggest that the right thing to do is to treat them all in the same way until we decide to treat them all differently.
At this moment, the only logical thing to do is to accept this Amendment and to say, "Very well, the judge has the option; he either sentences to a term of years or he sentences for life", in which case the sentence is really "during Her Majesty's pleasure", and the matter is at the disposal of the Home Office. But I am really most puzzled by the defence put up by the noble Lord, Lord Stonham. He seems to have put forward two quite inconsistent views, and I hope that, if the noble Lord is going to reply, he will make the position a little clearer. We are told, on the one hand, that you cannot keep a man in prison for more than nine years, however guilty he may be, because he is then apt to rot and become a wreck. If that is true, then you do not let him out because it is safe to let him out; you let him out because it would be barbarous to keep him any longer: he is in danger of becoming a mental and physical wreck. On the other hand, the noble Lord took credit for the fact that he keeps some people in for 1230 sixteen to thirty years. Are they wrecks? If they are not wrecks, why should the other people be wrecks at the end of nine years? I do not understand it at all.
§ LORD STONHAM
I am most grateful to the noble and learned Lord, Lord Reid, for giving way, but as I shall not, I think, be replying myself, I want to answer his point now. I do not accept at all—and I did not say—that all men necessarily became wrecks when they had been in prison for nine years. I do not think, in any case, it is necessary if they are housed under proper conditions. And I did not take credit for the fact that some men had been in prison for an inordinate length of time. I very much regret it. I simply brought the figures forward to show that nine years is not an average, that it must not be taken as an average, and that it is quite wrong to go on saying that it should be so. But I should like to ask the noble and learned Lord how he would get over the difficulty, where a fixed sentence is passed, if a man is not fit for release, and the Home Secretary has no power to keep him in prison.
§ LORD REID
That is why I think there is a very good case for reconsidering this matter. It really is rather ridiculous in the case of a really dangerous criminal. He is sentenced to four years, or what ever it is; he gets out; he commits another crime within a very few months; he is put in for another four or five years, and he becomes an habitual criminal before you know where you are. I will deal with that matter at once. The right way to deal with a man who is in that state is not to punish him at all: the right way to deal with that man is to put him under tolerable conditions, but to make quite certain that he is never let loose again so that he can interfere with the public.
If you are going to give long sentences, it is ridiculous to treat the men who receive them in the same way as you would men who receive short, sharp sentences. A man given a long sentence ought to be given interesting work; he ought to be allowed to use his leisure in a sensible way; he ought to be encouraged to become a good citizen, and he ought not to be kept in the gloomy portals of an ordinary prison, but he should not be let out. If that is what the 1231 noble Lord has in mind as a prison reform, I am wholly on his side; but I have not seen any sign of it yet.
I said that the noble Lord was taking credit for keeping these people in because I thought he was trying to prove that safety was uppermost in the mind of his right honourable friend, and that nobody would be let out unless it was safe to let him out. But what about the man who is becoming a wreck at the end of nine years? The Home Secretary said that there were a lot of such people, if I understood him aright. What about such a man? Is he kept in and allowed to become a wreck because it is not safe to let him out, or is he let out because he is a wreck and then it is not safe for the public? Which is it?
§ LORD REID
Now we know where we are. If that is right, if you let a man out only when it is thought to be safe to let him out, then I do not know why they are all let out at about the same time, because apparently nine years is the sort of period that you adopt if there is no reason to change it. I should have thought that, if it was a question of safety, you would say that some people are safe to be let out after a matter of months. In the case of others, it depends—you wait and see. I should have thought that there would be a graph showing the periods of detention stretching from a few months to 30 years, and that this 9 years is a pure delusion. But that is not the impression that one gets by reading what the Home Secretary says. I beg the noble Lord, in the interests of clarity, to try to get his right honourable friend to make this situation intelligible to the general public, because, 1232 to me, it is not. But I will say no more on that subject.
No one could possibly say, if you were starting afresh, that when a life has been taken it is proper to have regard to the technicalities of the law of murder and of manslaughter. Everybody knows that, even after the changes made by the 1957 Act, there are still technical and narrow differences between the two. If it is right that the indeterminate sentence should be the proper way to deal with one who is technically a murderer, it must be equally right that it is the proper way to deal with a serious case of manslaughter. If the noble Lord is going to introduce penal reform so that all these people are treated in this way, then we can argue it out. Until that is ready, I suggest that there should be no distinction between the serious case of manslaughter and the technical murder; and that we should, as this Amendment suggests, put it all at the discretion of the judge and then the judge will decide. If that is wrong, let us make a change of the system but do not let us have a dichotomy—that was the word used from those Benches earlier this afternoon—between the two classes of offenders.
§ 6.33 p.m.
§ BARONESS WOOTTON OF ABINGER
It surely is important that we should keep murder in a class apart. I must say that I felt a great shock of surprise when I heard it argued at a lofty level that the distinction between murder and manslaughter is now described as "technical". The first reason for keeping a life sentence is surely that it marks the distinctive category of murder. It is almost the only case in which the court has no discretion—and has no discretion for the very reason that the crime stands in a category apart. The other reason is one of which I think not enough has been made in this discussion. It is that the life sentence involves a lifelong power of recall; a determinate sentence does not. And it is very important that somebody who has committed murder shall be under the control of the penal authorities throughout his whole life, so that he may be, as he sometimes is, recalled if necessary.
It is not the point, as was perhaps implied by the noble and learned Lord, the Lord Chief Justice, that the public 1233 do not trust the judges. But no one will argue that even the most notable of our judges has the gift of phophecy for as much as ten, fifteen or twenty years ahead; and I am sure that the noble and learned Lord, Lord Parker of Waddington, will not claim that for himself. It is a fact that the Home Secretary does seek the advice of the Judiciary before he releases a convicted murderer—at any rate, that is the present practice.
I was puzzled by the argument used by the noble and learned Lord the Lord Chief Justice, and also by the noble and learned Lord, Lord Denning; because it seemed to me that both were arguing that the ground for a fixed sentence was that it would not, in fact, be fixed. The Lord Chief Justice went to great pains to show that even a fixed sentence could subsequently be commuted; but it is true that it is not so easy to alter the sentence fixed by the court—to reduce the court's sentence—as it is to alter the sentence by arranging release where the sentence is in itself completely flexible. I thought that the dénouement of both the Lord Chief Justice and the noble and learned Lord, Lord Denning, was that this was a gesture; that the reason for fixing long sentences, long in terms of years, was to show the public the gravity of the crime of murder. But I know of no gesture more effective than to declare a sentence of life imprisonment.
Much has been said about the nine years. I think it is time that we stopped talking about nine years, if only for the reason given by my noble friend, Lord Stonham; that the nine years is, first of all, an average, so that some sentences are shorter and others very much longer—and twenty years is not unknown. Secondly, it is an average which has obtained during the time in which certain murderers were, in fact, executed. When the time comes when, we are glad to think, nobody will ever be executed in this country, it will be necessary to reconsider the whole matter.
The Lord Chief Justice referred to the practices in other countries where there is no death penalty. These vary very much. In some cases, as in Belgium, the minimum period of imprisonment fixed is very low, something like three years. In the case of other countries—for example, Austria, Denmark and, I think, Sweden (or, at any rate, one of the Scan 1234 dinavian countries)—release is usually possible, curiously enough, after nine years. So perhaps this nine-year myth is more widespread than we think. Elsewhere, periods of as long as 20 years are found. There are enormous ranges of imprisonment from three years to over 20 years.
Much has been made of the argument that this is for the satisfaction of the public. This puzzles me. What evidence have we that the public are concerned about the present interpretation of life sentences? The public certainly have views about the death sentence. The debates on this subject in your Lordships' House have been very widely publicised. Even my own part in them has been fairly widely publicised; and, not surprisingly, I have had a certain number of letters—not many—from people who wish to retain the death penalty. In every case the argument in those letters was based on a particular murder which, in fact, did not attract the death penalty under the present law. But I will let that pass. I have not had a single communication from any source which says that murderers are let out too soon. I do not know whether this is also the experience of my noble friends; but perhaps they will tell us.
It seems to me that the public are quite unaware of the duration of the sentence. They are mainly concerned with the murderer who is let out and then commits a further murder. But our experience is that this is a very rare occurrence. There was one case not long ago; but I think the blame for the second murder should be shared between the Executive and the Judiciary; for the Executive let him out and the court, when he was charged with a not very grave offence, but an offence which had potentialities of gravity, because it had to do with a dangerous weapon, decided that he should be put on probation. Subseqently, he committed the second murder. But we have had to scrape to find these cases. The public are aware of that; and that is why they show no interest and are, I think, unaware of what the periods are.
§ VISCOUNT DILHORNE
I listened with interest to the noble Lady in her reply to the noble and learned Lord, the Lord Chief Justice, and the noble and learned Lord, Lord Denning. I must 1235 say that I am surprised that murder, she asserts, still remains a distinctive offence. All offences are distinctive, in the sense that different ingredients go into them. In the case of murder and manslaughter there is loss of life. Let us take the case of the distinction between the attempted murder and murder. There is a distinction, of course, the distinction being that in one case the victim has died; and in the other, due to the advances in medical science. the victim has lived.
The noble Lady, who in talking to the earlier Amendment referred to its creating anomaly, is, by resisting this particular Amendment, doing no more than creating a very big anomaly. I believe this raises the very serious issue of whether the Executive should, under the present system, encroach on the functions of the Judiciary. I believe it raises that issue by insisting—
§ BARONESS WOOTTON OF ABINGER
The noble and learned Viscount must be aware that the intention of this Amendment is for the Judiciary to take over certain functions now exercised by the Executive.
§ VISCOUNT DILHORNE
The intention of this Amendment is that the judge will have a discretion about what sentence to pass. He can pass a fixed determinate term if he wishes. Resisting the Amendment, as I understand it, means that the judges will be left with no power to mark the gravity of an offence by saying what sentence ought to be imposed. In a case of attempted murder they can mark the gravity of the offence by imposing a sentence of a particular length. If a victim happens to die, according to the Government's attitude, the judges will cease to have that power. I cannot think that is either right or justifiable.
I think there is great force in the view put forward by the noble and learned Lord, Lord Denning, that the effect of passing a long determinate sentence may be a great deterrent, much greater than passing a sentence of life imprisonment which everyone knows may be imprisonment for a pretty short term. It is all very well for the noble Baroness to say that we have talked enough about nine years being the average, but that means that some people have been let out long before a period of nine years. Some may 1236 have been let out after a longer time. It is all very well for her to chide those of us who have mentioned nine years. I am the last person to wish to misrepresent the Home Secretary, but when I read what he said on July 13, 1965, I think it is absolutely clear that in the normal case, unless a man is likely to be a danger to society on his release, he will be let out after he has served something in the region of nine years. I do not think that what the Home Secretary said is capable of any other interpretation. The noble Lady should not chide us if we read it in that way, because I think that is the natural meaning of the words.
I said on Second Reading that I think there is a great advantage in this determinate sentence. I would link it with one thing that I regard also as important: that is, the power to release at any earlier time on licence when there is a determinate sentence. The noble Lady went on to say that with a life sentence there is a lifelong power to recall, and that is true. I think the point was dealt with by the noble and learned Lord, Lord Reid. By keeping this as an automatic sentence on a conviction of murder we are creating one of the anomalies about which the noble Lady made such play during the debate on the last Amendment. The noble Lady referred to the gift of prophecy. I do not think that any judge claims any such gift. I am all in favour of the licensing system being enlarged where there is a determinate sentence. I do not wish to take up the time of your Lordships on this matter except to say in conclusion that I believe resistance to this Amendment to be wholly unreasonable. I believe that the noble and learned Lord, Lord Parker of Waddington, who attaches great importance to this Amendment, is clearly right, and that if this Amendment fails it will mark some encroachment by the Executive on the functions of the Judiciary.
§ 6.45 p.m.
§ LORD SILKIN
My Lords, I do not think that this Amendment should be left entirely in the hands of the Law Lords. I have supported this Bill right through. I should like to support the Amendment. I think that a sentence of life imprisonment is unrealistic and liable to mislead the general public. If there is a deterrent in a long term of imprisonment, it is to a large extent removed by 1237 the knowledge that life imprisonment does not mean life imprisonment at all; it means some lesser period. I will not argue whether it means nine years or something else, but on the vast majority of occasions it means something far less. To that extent the deterrent effect is removed.
No one has suggested that if it is left to the discretion of the judges sentences of life imprisonment would not be imposed. There might well be; but in that case life imprisonment will in practice mean life imprisonment, subject always—here I agree with the noble and learned Viscount, Lord Dilhorne—that there should be the right of the Home Secretary to review. I hope that can be incorporated if we accept this Amendment.
A great deal has been made of the point that judges cannot foreshadow what anyone will be like in ten, fifteen or twenty years' time. Of course they cannot, and they do not pretend to. But judges are passing these sentences continually. A number of train robbers were sentenced to periods of 30 years' imprisonment. That did not mean that the judges were endeavouring to foreshadow what the robbers would be like in 30 years' time. The long sentences were passed primarily as a deterrent, just as long sentences were passed in the case of the Notting Hill riots. It was primarily for the deterrent effect. I think the sentences were fully justified, and I imagine that prospective train robbers will think again, knowing that they are liable, on conviction, to be sentenced to 30 years' imprisonment.
We trust the judges to pass sentences. They sentence for manslaughter, attempted murder and lesser offences. Occasionally the sentences are subject to review by a higher court of appeal, but on the whole there is general satisfaction. My noble friend tried to show, or attempted to make the case, that murder is a unique crime; but really there is no difference in principle between murder and attempted murder. An attempted murder becomes a murder if the victim dies after a year and a day—
§ LORD SILKIN
Within a year; I beg your Lordships' pardon. One day may 1238 make all the difference between attempted murder and murder. I feel that on this occasion my noble friend Lord Stonham has not made out a case against the Amendment. I feel that, on the whole, justice would be better served by leaving it to the judges to impose long sentences in outstandingly bad cases if they so decide, with the right of the Home Secretary to review, and treat murder from the penal point of view in exactly the same way as all other crimes with which judges have to deal.
§ 6.49 p.m.
THE LORD BISHOP OF CHICHESTER
I wish to make a brief comment, since I must express, as other noble Lords have expressed, great perplexity over this issue, and great sympathy for the Amendment. Yet I have some unresolved questions in my mind. I should like to support what was said by the noble Lady. I should have thought that on the whole we should wish to establish that murder is in a category different from other crimes. I realise the complication at law between murder and attempted murder, but I imagine that in a sense that is always the case in law. An attempted crime is not necessarily treated in the same way as a crime, whatever the crime may be; but I believe that in the view of the general public murder is recognised as murder. We recognise that there are extenuating and difficult circumstances which would be dealt with in terms of length of sentence, or merciful release, but the condemnation of this act by the public is, I believe, more safeguarded by having a fixed sentence than by having certain categories fixed in the courts. I can only express that as my opinion; but from the point of view of the public our condemnation of it is more effective than a fixed sentence.
Secondly, it is clear that the same arguments may be used on both sides when we come to the length of sentence. The public would certainly wish to be assured that in any length of sentence to which a murderer was committed he would not be released if there was any reasonable danger of his being a menace to the public. But, as has been remarked, this is an issue that cannot be settled there and then in the court, but later. On the reformatory aspect of the penalty, on what we can do for the criminal himself, this, 1239 again, is something impossible to decide except in terms of time, when we can see how he responds or otherwise to any treatment we can give him. Elasticity of time, therefore, becomes a matter for whoever has to make the decision. Therefore, I think that the case for retaining it in the hands of the Home Secretary is stronger.
I should like to take up what the noble and learned Lord, the Lord Chief Justice, said about fixing a sentence and then calling upon society to see that the treatment of the criminal in prison suited that. I am entirely in favour of this. We ought well to pursue this point. If a life sentence sometimes works out at no more than nine years because a prisoner is deteriorating so fast, then there is something radically wrong with the prison system. We should take this to heart. It may be that in other countries this is better, and therefore the length of time a criminal has to endure is longer. Surely this is something which we should take on our consciences. The abolition of the death sentence imposes on the public the absolute duty of looking into this question and seeing what can be done for the reclamation of the criminal from within, even if it takes longer than the length at present on record. I hope that we shall all support that principle.
THE LORD CHANCELLOR
If I may express a personal point of view, I would say that this is a fairly debatable matter. For hundreds of years the punishment for murder has been either capital or, if imprisonment, a life sentence. This Bill proposes that that should continue. Therefore it cannot be said that in this Bill the Executive are trying to alter something in their favour or to take away the rights of the Judiciary, because in this instance they have never had them. It is this Amendment which is seeking, it may be rightly, to take for the Judiciary a power which in murder cases they have never had before.
Murder, I suggest, is a crime apart, not only in the sense which the right reverend Prelate has mentioned but because there is no other crime which is so largely a product of the disordered mind. We have to bear in mind that about one-third of all murders are committed usually in circumstances suggestive of disordered mind. Even before the 1240 Homicide Act, in order to establish insanity it had to be proved that this came under the M'Naghten Rules—that is to say, that the accused did not know what he was doing—so that when he was cutting his wife's throat he thought he was carving the Sunday joint; or if he did know, he did not know that what he was doing was against the law. A great many could not comply with that strict standard, but even in the days of the M'Naghten Rules, half of all those who came to trial at assizes were found to be insane. They did not include the aggressive psychopath or men like Christie, who was found not to come within the M'Naghten Rules and therefore hanged, though some would have thought he was very odd, and did not include a lot of people who had been in and out of mental hospitals. It is only when one realises that, that one realises that while all murderers are not of disordered mind, an enormous proportion are.
People like that may get better, on and off. A judge knows very little about the man in front of him. He sees him for a couple of days. He may not go into the witness box at all. No doubt, if the man has a record, the judge knows the bare bones of fact of his record. But this is quite different from the Home Secretary. I have become persuaded that the right time to decide when somebody ought to be let out is when a man's whole record is being considered; and that cannot be done by any man, however able, ten or twenty years in advance. The Home Secretary has all the reports from the prison officers, who see the man every day and get to know him well, reports of prison doctors and prison governors. The modern Home Secretary, and I dare say former ones, goes round the prisons and meets a number of life prisoners. My right honourable friend the present Home Secretary, I know, has done that, and when papers come before him on the table he may say, "This is Joe—I know Joe; I have met him several times." It is with all that information that he is in a position to decide. The difficulty about saying that this ought to be left to the judges in relation to this particular crime, is that if they say five years and at the end of five years it is not safe to let a man out, there is nothing the Home Secretary can do to keep him 1241 in, and he may be wrong the other way round as well.
I subscribe to the view, which has been expressed by the right reverend Prelate and others, that murder is a crime apart and that its incidence is such that, on the whole, it is better that it should continue to be, as it has always been when not capital, a life sentence, and it should be left to the Home Secretary, whose responsibility it is and who, after all, will be blamed if anything goes wrong, to determine the matter.
§ 6.57 p.m.
§ LORD PARKER OF WADDINGTON
I do not want to weary the House at this hours by going over all the ground, but I should like to pick on one or two points. The noble Lord, Lord Stonham, held up his hands in horror at the fact that I was tending and intending to merge manslaughter and murder. Let me make it clear. Of course, as a matter of law murder is a separate offence, and it is also perhaps the most serious offence. But, equally, like the noble Baroness, I dislike fine lines and technical distinctions, and, as she put it in dealing with an earlier Amendment, I would rather blanket this. I think that there is one offence of homicide, varying infinitely from the lowest degree of manslaughter up to the most intentional, deliberate and calculated true murder. Therefore, I think my argument, as was that of the noble Lord, Lord Reid, is based on the anomaly which has been produced by the abolition of the death penalty.
The other matter I should like to take up is this. Both those who support and those who are against this Amendment have one object in view—which, indeed, may be the chief object of punishment—that is, the protection of the public. The whole of the argument of the noble Lord, Lord Stonham, and of the noble and learned Lord the Lord Chancellor, was really based on the fact that this Amendment gives less protection to the public, and graphic illustrations were given of how a judge would give a sentence of two or three years and the Home Secretary would have to let the man out when that
§ period, less remission, had elapsed, and when it was completely unsafe to do so. That sort of thing seldom, if ever, occurs in practice. It could be happening every day to-day with other offences. The noble Lord, Lord Stonham, suggested that in a mercy killing the Judge might give two years. I was thinking of a mercy killing, and I have a vivid recollection of an old gentleman at Newcastle-upon-Tyne who was tried for murder. After ten years with an invalid wife who was virtually bedridden, and two years older than himself, he had finally administered some sleeping pills. Should I he very wrong in remanding him, maybe until some home could be found for him? Would there be any real risk that, if allowed out, he would go and commit another murder?
§ There are many murders—I suppose 80 or 90 per cent.—which do involve some aberration of mind, some abnormality which may not amount to diminished responsibility, such as the curious sexual murders and others. I can assure your Lordships that it is inconceivable that, for that sort of thing, judges will do anything other than give life imprisonment. Life imprisonment is the one thing they always fall back on: because they are not seeking to give a deterrent sentence; they do not know how the man will react in ten or fifteen years' time, and the right thing is to leave it to the Home Secretary. But the idea in this Amendment is that in the odd case—and such cases may be only 5 per cent. of the total—the judge at the time can give a sentence which will act as some deterrent. As I said earlier, such a sentence would be given only in the case of highly professional organised crime, and as something which we hope will prevent crime in this country from developing on the lines on which it has developed in the States. I cannot withdraw this Amendment.
§ 7.2 p.m.
§ On Question, Whether the said Amendment (No. 3A) shall be agreed to?
§ Their Lordships divided: Contents, 80; Not-Contents, 78.1243
|Ailwyn, L.||Boothby, L.||Coleraine, L.|
|Albemarle, E.||Brocket, L.||Colyton, L.|
|Allerton, L.||Clitheroe, L.||Conesford, L.|
|Ampthill, L.||Clwyd, L.||Coutanche, L|
|Cowley, E.||Hawke, L.||Newton, L.|
|Cullen of Ashbourne, L.||Hobson, L.||Norwich, V.|
|Denning, L. [Teller.]||Hodson, L.||Oakshott, L.|
|Derwent, L.||Horsbrugh, Bs.||Parker of Waddington, L|
|Digby, L.||Howard of Glossop, L.||Pearson, L.|
|Dilhorne, V.||Hurd, L.||Reid, L. [Teller.]|
|Drumalbyn, L.||Inglewood, L.||Rockley, L.|
|Dundee, E.||Killearn, L.||St. Aldwyn, E.|
|Effingham, E.||Kirkwood, L.||Savile, L.|
|Ellenborough, L.||Latymer, L.||Sherfield, L.|
|Elliot of Harwood, Bs.||London, L. Bp.||Silkin, L.|
|Falkland, V.||Lothian, M.||Sinclair of Cleeve, L.|
|Ferrier, L.||Lucas of Chilworth, L.||Somers, L.|
|Gage, V.||Margadale, L.||Stamp, L.|
|Goschen, V.||Massereene and Ferrard, V.||Stuart of Findhorn, V.|
|Grantchester, L.||Merrivale, L.||Swansea, L.|
|Greenway, L.||Milverton, L.||Swinton, E.|
|Grenfell, L.||Molson, L.||Thurlow, L.|
|Grimston of Westbury, L.||Monk Bretton, L.||Tweedsmuir, L.|
|Guest, L.||Monson, L.||Wilberforce, L.|
|Haig, E.||Morris of Borth-y-Gest, L.||Williamson, L.|
|Hailes, L.||Morrison, L.||Wolverton, L.|
|Hastings, L.||Mowbray and Stourton, L.|
|Addison, V.||Gifford, L.||Rothermere, V.|
|Adrian, L.||Gladwyn, L.||Royle, L.|
|Airedale, L.||Haddington, E.||St. Davids, V.|
|Archibald, L.||Haire of Whiteabbey, L.||Samuel, V.|
|Arwyn, L.||Harmsworth, L.||Sandford, L.|
|Auckland, L.||Henderson, L.||Segal, L.|
|Beswick, L.||Henley, L. [Teller.]||Shackleton, L.|
|Blyton, L.||Hertford, M.||Shepherd, L.|
|Bowles, L.||Kennet, L.||Simey, L.|
|Brockway, L.||Kinnoull, E.||Snow, L.|
|Brooke of Ystradfellte, Bs.||Latham, L.||Sorensen, L.|
|Brown, L.||Layton, L.||Stonham, L.|
|Burden, L.||Leatherland, L.||Strang, L.|
|Burton of Coventry, Bs.||Lindgren, L.||Strange of Knokin, Bs.|
|Byers, L.||Listowel, E.||Summerskill, Bs.|
|Champion, L.||Llewelyn-Davies, L.||Swanborough, Bs.|
|Chichester, L. Bp.||Lloyd of Hampstead, L.||Tangley, L.|
|Cohen, L.||Longford, E. (L. Privy Seal.)||Tenby, V.|
|Colwyn, L.||Mitchison, L.||Terrington, L.|
|Cranbrook, E.||Mottistone, L.||Ullswater, V.|
|Croft, L.||Perth, E.||Waldegrave, E.|
|Crook, L.||Phillips, Bs.||Walston, L.|
|Denham, L.||Plummer, Bs.||Wells-Pestell, L.|
|Francis-Williams, L.||Raglan, L.||Windlesham, L.|
|Gaitskell, Bs.||Reay, L. [Teller.]||Winterbottom, L.|
|Gardiner, L. (L. Chancellor.)||Rhodes, L.||Wootton of Abinger, Bs.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ Clause 1 agreed to.
§ 7.17 p.m.
§ LORD PARKER OF WADDINGTON had given Notice of his intention to move, after Clause 1, to insert the flowing new clause:
§ Release on licence of those sentenced for murder.
§ "No person convicted of murder shall be released by the Secretary of State on licence under section 27 of the Prison Act 1952 or section 21 of the Prisons (Scotland) Act 1952 unless the Secretary of State has immediately prior to such release consulted the Lord Chief 1244 Justice of England or the Lord Justice General as the case may be together with the trial judge if available."
§ The noble and learned Lord said: This Amendment is to bring the case of a release from life imprisonment into line with what is the constitutional practice if there is a variation of a sentence of a fixed term of years. If a judge gives ten years, let us say, and the Home Secretary in the exercise of the Prerogative, wants to reduce the sentence, it has always been the constitutional practice for him invariably to consult the Lord Chief Justice or the trial Judge, or both. It always seemed to me anomalous that 1245 that did not occur in the case of a life sentence prisoner being let out on licence. The reason was that that was not an interference with the sentence—the sentence of life imprisonment remained; it was merely an executive act of letting him out on licence.
§ My right honourable friend the Home Secretary said in another place at a much earlier stage that he thought it would be right, in these circumstances, to consult the Lord Chief Justice and/or, as it were, the trial Judge, if he were available. This Amendment is merely putting what I think is the Home Secretary's intention into the Statute.
§ LORD STONHAM
Before the noble and learned Lord sits down, may I ask him whether it was not his intention, in moving this Amendment, to move it without the word "immediately"? I think that was his intention, and it is rather important.
§ LORD PARKER OF WADDINGTON
I am most grateful to the noble Lord. In the excitement of the last Division I had forgotten. I would ask leave to move this Amendment with the deletion of the word "immediately" in the fourth line. It is a technical matter. The consultation would have to be at a time well in advance of the release, because the prisoner is informed in advance that he will be released. I am afraid I had not got that point in mind when drafting the Amendment. As this has been pointed out to me, I should like to have the word "immediately" deleted.
After Clause 1, insert the following new clause:
§ Release on licence of those sentenced for Murder
§ (". No person convicted of murder shall be released by the Secretary of State on licence under section 27 of the Prison Act 1952 or section 21 of the Prisons (Scotland) Act 1952 unless the Secretary of State has prior to such release consulted the Lord Chief Justice of England or the Lord Justice General as the case may be together with the trial judge if available.")—(Lord Parker of Waddington.)
§ LORD STONHAM
I am most grateful to the noble and learned Lord, Lord Parker of Waddington, for moving this Amendment, and particularly for having at the last moment moved it in an amended form, because, as he has 1246 explained, this conforms entirely with the practice that is pursued—namely, the trial judge gives my right honourable friend the Home Secretary a memorandum of the case, and approximately a year before it is possible that the murderer is going to be released we should then consult the Lord Chief Justice and have his advice. If the prognosis was good, the prisoner would be informed about a year before he was likely to be released. As I said, this is the practice. We see no reason why it should not be put into the Statute, and I hope my noble friend Lady Wootton of Abinger will agree that it should be included in the Bill.
§ BARONESS WOOTTON OF ABINGER
I think perhaps the Bill would be better without this Amendment, because it introduces an element of rigidity into the Bill, and once a thing is written into the actual text of the law it may be difficult to alter it. But this is current practice and it is, as we see things now, desirable current practice, and I for my part should not wish to oppose it if it is the wish of the Committee that this should be made a statutory obligation.
§ 7.20 p.m.
§ LORD SHEPHERD
My Lords, we have made quite good progress and we are approaching the hour at which it was agreed we should adjourn for dinner. Therefore, I should like to move that the Committee stage be now adjourned until 8.30 p.m.
§ Moved, That the Committee stage be now adjourned until 8.30 p.m.—(Lord Shepherd.)
§ VISCOUNT DILHORNE
May I ask the sponsors of the Bill whether it is their intention to try to conclude the Committee stage tonight? I gather we shall possibly have a long debate on the Amendments down in the name of the Lord Chancellor, which seek to reverse the decision of another place.
§ BARONESS WOOTTON OF ABINGER
I think that is the intention. It does not seem very likely that we shall have contentious debates on any of the other Amendments, and it would seem desirable that we should soldier on and complete the Committee stage.
§ VISCOUNT STUART OF FINDHORN
If I undertake to speak for not more than two minutes, would it be possible to deal with Amendment No. 10?
§ LORD SHEPHERD
I am quite happy, if the Committee is, to meet the noble Viscount. We can watch the two minutes.
§ LORD BOOTHBY
If I may say so, I should like to support very strongly the contention of the noble Viscount. If he is going to be very brief it would be better that we should continue, and I do not see why we should adjourn for dinner at all. We can always go to the cafeteria for a snack.
§ LORD SHEPHERD
I will withdraw the Motion, but I would add that in adjourning for dinner we are not considering only ourselves; we are considering the servants of the House, and particularly the shorthand writers, who have been on duty for a considerable time and I think it is desirable that we should adjourn. However, I now beg leave to withdraw the Motion.
§ VISCOUNT DILHORNE
I hope the noble Lord will move that Motion again when my noble friend has moved his Amendment.
§ Motion, by leave, withdrawn.
§ VISCOUNT STUART OF FINDHORN moved, after Clause 1, to insert the following new clause:
§ Right to choose execution
§ ".Any person sentenced to imprisonment for life shall have the right to choose to be executed rather than suffer the decay of soul and body resulting from a long term of imprisonment."
§ The noble Viscount said: The intention of this Amendment is serious. I do not suppose it will be taken advantage of in the years to come, but I have always had three very strong dislikes: one is to see people imprisoned, especially for a long time, and to see them in the prison; the second is to see prisoner-of-war camps and cages. One cannot see a more depressing sight of unhappy and untidy people. My third strong dislike is to see caged animals, and if I had my way I would abolish zoos.
§ During the Second Reading debate in another place, the Home Secretary spoke 1248 about the deterioration of prisoners after nine years. He strongly supported my case, and I will not quote him again because his words have been quoted here this afternoon by the noble and learned Lord, Lord Denning, as they were on a previous occasion by the noble Viscount, Lord Colville of Culross. That explains my sole intention in moving this Amendment. I beg to move.
After Clause 1, insert the said new clause.—(Viscount Stuart of Findhorn.)
§ EARL HAIG moved, as an Amendment to the Amendment, after "executed" to insert "painlessly". The noble Earl said: In supporting this Bill I have at the same time an anxiety about the rightness of putting people into gaol for long sentences, to suffer a period of misery even more cruel than the death sentence. This Amendment provides a painless alternative to a lifetime's imprisonment. It is true that the prisons in this country are out of date, and that much of the present suffering could be alleviated; also that there are many types of people for whom the prison environment could be re-shaped so as not to be incompatible. But there are other types of people for whom no prison and no way of life in prison could be so devised as to prevent real mental and physical damage. These are the people for whom freedom is necessary, for whom prison routine and restrictions are abhorrent and to whom the ebb and flow of natural life are essential.
§ I speak with a little knowledge of confinement. My noble friend mentioned the dreariness of prisoner-of-war camps, which I had the honour of frequenting for a few years during the last war. My knowledge of Her Majesty's prisons is perhaps not so great as that of some noble Lords, but I have a little knowledge, having been asked by the late Lord Templewood to visit a number of prisons all over the country to help and advise in regard to the practice of the visual arts in those prisons—a practice which to-day has alleviated for many prisoners some of the frustrating effects of prison life. I believed then, and I still believe, that however hard we try to disguise it, prison will always be prison, and for many temperaments and mentalities the prison way of life can never 1249 he anything other than harmful—a bitter freezing of the mind and the senses, and of the soul.
§ Such people as these I consider should be thought about in this Amendment, and for that reason I ask your Lordships to accept it. By complete abolition of the death sentence and the substitution of long prison sentences in certain cases we should be substituting on humane grounds a much worse kind of suffering. To those people I suggest that a way be opened to choose as a last resort the penalty of death, not by the old method of hanging but through the administration to the body of some lethal preparation after preparatory anaesthetic. This form of execution could enable a person sentenced to a life sentence to cross painlessly over to the other side without any of the indignities and callousness of hanging. I beg to move.
Amendment to Amendment moved:
Line 2, after ("executed") insert ("painlessly").—(Earl Haig.)
§ VISCOUNT STUART OF FINDHORN
So far as I am concerned I should be very glad to agree to my noble friend's Amendment to my Amendment.
§ LORD STONHAM
That is a most helpful intervention because I shall not have to consider Amendment 10A in particular. The noble Viscount, Lord Stuart of Findhorn, is such an unfailingly kind person, and at the same time has an inexhaustible and unquenchable sense of humour, that I know he will not mind if I say that the only good thing I can see about his Amendment, No. 10, with or without its subsequent Amendment, is that its intention is clear and it is self-explanatory.
The noble Earl, Lord Haig, has introduced the word "painlessly". I do not want to pursue the point—because I think it would bring us into fields that we ought not to pursue—as to which kind of death was a painless one. But I would say to the noble Viscount that if his Amendment were accepted it would have the obvious objection that it would make a statutory provision for what would, in effect, be suicide with the sanction of, and indeed with the assistance of, the State. So far as I am aware, nothing approaching that has ever been in the law of any civilised country in the world.
1250 I am not quite sure whether the noble Viscount intended that this right that would be granted should be exercised when the sentence was passed, or at some future date when the sentence was being served; but long-sentence men do at times suffer fits of depression and it would mean that a man might suddenly ask to exercise his right to be executed. That would mean that, in a Bill which we had thought earlier this afternoon finally abolished the death penalty, that provision would still be there. Then, if we accepted this Amendment, it would mean that we should not be able to abolish the gallows; we should still have to retain them and keep executioners in training against the possibility that some prisoner, in a fit of depression, would wish to be executed.
§ LORD STONHAM
I said that I did not want to discuss which kind of death was more painful than another, although understand from those who ought to know that, much as we object to it in the main, hanging is the quickest death, because the man becomes unconscious almost immediately. But I would rather not argue it because I think it is a very distasteful subject.
Finally, I would say to the noble Viscount, Lord Stuart of Findhorn, that his Amendment applies in terms to "any person sentenced to imprisonment for life". There arc, as he is aware, offences other than murder for which a person can be sentenced to life imprisonment but which have never, or at least not for a hundred years, carried the death penalty, and I do not think it could possibly be his intention that a person sentenced to life imprisonment for one of those offences should be able to choose to be executed. If that is the noble Viscount's intention, then I hope he will not pursue it, because I should have to ask your Lordships to reject the Amendment.
§ BARONESS WOOTTON OF ABINGER
Underlining what my noble friend has just said, I would remind the Committee that while attempted suicide is no longer a crime, it is a crime to aid, abet or counsel suicide, and this is getting dangerously near it.
§ LORD BOOTHBY
I should like to add one final word, which is that you cannot have a tooth out painlessly and therefore I do not see how you can be killed painlessly. I think this is a bad idea.
§ VISCOUNT STUART OF FINDHORN
I still think it might be kinder not to have life imprisonment, even if it is not for murder.
§ On Question, Amendment to the Amendment negatived.
§ On Question, Amendment negatived.
§ [The Sitting was suspended at 7.32 p.m. and resumed at half-past eight.]
§ Clause 2 agreed to.
§ Clause 3:
§ 3. This Act shall continue in force until the thirty-first day of July nineteen hundred and seventy, and shall then expire unless Parliament by affirmative resolutions of both Houses otherwise determines: and upon the expiration of this Act the law existing immediately prior to the passing of this Act shall, so far as it is repealed or amended by this Act, again operate as though this Act had not been passed, and the said repeals and amendments had not been enacted.
§ THE LORD CHANCELLOR had given Notice of several Amendments to subsection (3), the first being to leave out "continue in force until" and insert "expire on". The noble and learned Viscount said: I beg to move the first Amendment standing in my name on the Marshalled List. This is not a matter of grave importance one way or another. As the Bill left another place it provides, in effect, that capital punishment should be abolished for an experimental period of five years. I am not against having a proper experimental period, because I am absolutely certain that the murder rate is wholly unaffected by the existence or non-existence of capital punishment, or, if you have capital punishment, whether executions are frequent or infrequent. But in this part of Northern Europe we have so relatively few murders that the numbers naturally go up and down as between one year and another. Experience, however, shows that over a ten-year period this evens itself out, and over any ten-year period in this century there has been hardly any difference in the murder rate.1252
§ I am not myself satisfied that a five-year period is really long enough to judge, and I should personally have preferred a ten-year period. However, I have not put down any Amendment on this point and, as the Bill has left another place, it provides in effect for a five-year experimental period. But the effect of the Bill as now worded is that if, at the end of five years, nobody does anything at all, we have the Homicide Act back. I quite appreciate that the Homicide Act was well-intentioned. The House of Commons had passed through all its stages a Bill to abolish capital punishment and, while your Lordships' House had rejected that Bill on Second Reading, there was a general feeling that the position could not be left as it was, and there was a quite natural and perfectly proper desire to see whether some compromise could not be reached.
§ It has, I think, been accepted in your Lordships' House that the noble and learned Earl, Lord Kilmuir, and the noble and learned Viscount, Lord Dilhorne, were really the authors of the Homicide Act. When I said on Second Reading that I thought that this was the worst Act that had ever been put on the Statute Book, I was not meaning to show any lack of appreciation of the fact that they were genuinely and sincerely trying to arrive at a compromise, which indeed is our ordinary English way of doing things, and doing their best to arrive at a sensible one. After all, the Royal Commission, had spent four-and-a-half years on seeing whether they could find some way of keeping executions for the worst murders but abolishing capital punishment for the rest. This was their job. They were not allowed to say whether they were in favour of or against capital punishment; they were appointed to do what the Labour Government had wholly failed in doing; namely, to try to suggest some scheme of grading for murder.
§ After four-and-a-half years of examining any scheme of grades of murder which had ever been suggested or tried, they unanimously reported that to do so was impossible, and that if any scheme were to be tried it would be found to be so full of anomalies that it could not be supported. It was in face of that advice that the authors of the Homicide Act said, "We have found a new basis. 1253 We are not going to try to divide murders into the least culpable and the most culpable, but will adopt a new basis of keeping capital punishment for those kinds of murders which will deter the professional criminal."
§ The trouble was that this was really a matter of two lawyers playing ducks and drakes with men's lives. It was two lawyers—who were very well-intentioned, but who did not sufficiently take into account what murder really does consist of in the ordinary way—working out as an intellectual exercise the men they thought ought to live and the men they thought ought to die. But in real life the situation has proved different: first, because the British public do not like laws which have no moral basis at all—and the noble Lord, Lord Conesford, realised this at the time, and said so.
§ The very first man who was hanged under the Homicide Act, which was intended only to protect us against professional criminals, was Vickers. Vickers was a young man whose only previous conviction was that of stealing a bicycle lamp. Being unemployed, he had broken into the local shop to see if he could find some money in the till. He had no gun, he had no weapon of any kind. Being surprised by the woman who kept the shop coming down from above, he hit her, with his hand, blows which the pathologist described as moderate to light, but in falling she hit her head on concrete and she died.
§ Ever since then we have experienced under the Homicide Act cases, first of all, appalling murders which are not capital offences—cases like that of the the man who, quietly and with premeditation, and deliberately, poisoned another in order to get money under his will. On the other hand, we have had people who are not professional criminals—like the man who finds his wife with another man, or suspects it, and kills her with the nearest weapon to hand. If the weapon nearest to hand is a gun, that is capital murder; if the weapon nearest to hand is a hatchet, then it is not capital. Then there is the man who rapes a girl, strangles her and then steals her handbag. If he does not steal her handbag, then it is not capital murder. This is what two lawyers, than whom no two we have are more distinguished 1254 and intelligent, have arrived at by trying an intellectual exercise without—
§ VISCOUNT DILHORNE
Will the noble and learned Lord forgive me for one moment? If he is going to pursue this line, which is wholly unrelated to the content of the Amendment, wholly unjustified, and wholly inaccurate, I will reply to him in kind. I will tell him straight away that I do not claim authorship of that Act; I had something to do with it. My noble and learned friend Lord Kilmuir was not Home Secretary at that time—Lord Tenby was. The whole reasoning for that Act was made perfectly patent during the course of the Second Reading. It is quite monstrous for the noble Lord to say that we were men who thought at the time who should live and who ought to die. I really do resent that kind of observation, which is wholly unjustified.
THE LORD CHANCELLOR
The noble Earl, Lord Kilmuir, on Second Reading intimated, as I understood it, that he and the noble and learned Viscount were primarily responsible for the Homicide Act, which did in fact, however well-intentioned, decide who since then has lived and who has died.
The point of the present Bill, as it has come up from another place, is that if nobody does anything, we get the Homicide Act back. The object of the Amendments which I have ventured to put down—and we are now discussing No. 12, but, with your Lordships' permission, I will take Nos. 12, 13 and 14 together, because they are all on the same point—is to provide that if nothing happens then the law which we are now passing will continue, because the effect of the first three Amendments is to alter the first part of Clause 3 to read:This Act shall expire on the thirty-first day of July nineteen hundred and seventy, if Parliament by affirmative resolutions of both Houses so determines".As it stands at present, Clause 3 would have the effect that, unless Affirmative Resolutions were passed by both Houses before July 31, 1970, the Act would on that date automatically expire, and the provisions of the Homicide Act relating to capital punishment would automatically come back into operation. If for no other reason, therefore, these Amendments are necessary to ensure that there 1255 will be no risk of the Act expiring by default, simply because no resolutions to continue it are moved.
Since decisions have now been taken by substantial majorities in both Houses of Parliament to abolish capital punishment for murder, the onus should surely be on those who wish to restore the death penalty after five years or any other period, to demonstrate that something has happened in the intervening period to make it necessary. As I understand it, while this precise point was not considered in another place, somewhat similar Amendments were put down there by Mr. Channon and Mr. Royle—I think Mr. Channon is a Conservative, but I am not sure about Mr. Royle—but in the event they were not moved. So, as far as I am aware, this precise point has not been considered in another place, and it seemed to me right, whilst, as I say, the matter is not one of enormous importance, that your Lordships should at least consider whether it was right to provide that the Homicide Act should not automatically come back unless there were Affirmative Resolutions to the contrary, and that now that both Houses have passed the abolition of capital punishment by a substantial majority it should continue unless there was some Affirmative Resolution to the contrary. I think that Amendment No. 15 raises rather a different point, which I probably ought not to consider at this stage. I beg to move accordingly.
Page 2, line 24, leave out ("continue in force until") and insert ("expire on").—(The Lord Chancellor.)
§ VISCOUNT DILHORNE
I do not know why the noble and learned Lord the Lord Chancellor thought it necessary to make such an offensive speech about an Amendment which he thought was of little importance. When he refers to my noble and learned friend Lord Kilmuir and myself in the terms of two lawyers who have found a new basis, and two lawyers playing ducks and drakes with men's lives, I cannot but regard that as wholly offensive. If the noble and learned Lord wants to continue the debate on those lines, I will be perfectly happy to do so with him, but it really is a monstrous thing to say. That Act may be criticized—and has been criticised, I know—but 1256 the reasoning behind that Act was made clear at the time it was passed, and I really think that the noble and learned Lord was quite unnecessarily rude in making that kind of observation, which is unworthy of him and his office.
The reference to the Homicide Act is quite irrelevant to this Amendment. The noble and learned Lord said that he thinks it is not a matter of very grave importance one way or another. He omitted to tell your Lordships how this particular provision came to be in the Bill. It came to be in the Bill as a result of an Amendment moved by my right honourable friend Mr. Henry Brooke, who himself had voted for the Second Reading and was in favour of this Bill's being passed. He moved this provision into the Bill. It was carried into the Bill in Committee on May 22, 1965, after a Division in which my honourable friends in another place—abolitionists and retentionists—had voted together. The noble and learned Lord omitted to draw the Committee's attention to the fact that the terms of this provision moved by Mr. Henry Brooke were in the precise terms of an Amendment moved by Mr. Silverman to the 1948 Act.
What was the simple object of this provision? It was to ensure that there was, in fact, a trial period. As the noble Viscount, Lord Norwich, said in the course of an earlier debate, we are going to have this only for a trial period of five years. That is what Mr. Brooke's Amendment sought to provide, and the noble and learned Lord the Lord Chancellor is really being more disingenuous than even he could find ordinarily possible by suggesting that, at the expiry of five years, nobody will do anything about it if the clause stands as it is. Of course, if the clause does stand as it is, someone who is keen on abolition and who thinks it should continue will move the necessary Affirmative Resolution. What this provision ensures, as it stands, is that this matter must be reconsidered by Parliament in five years' time, and that certainly was the wish of the abolitionists in my Party in another place, and is certainly the wish of, I think, many noble Lords here. That is all that the provision in the Bill does. Now the noble and learned Lord the Lord Chancellor wants to take it out of the Bill and say that it will not be 1257 automatically considered in five years' time.
As to this business about, "If it is not automatically considered we revert to this pernicious Homicide Act," that is the worst piece of special pleading I have heard for years. I think the argument advanced by the noble Lord in respect of this Amendment was not only the most offensive, provocative and rude, but also misleading. We on this side of the House, whatever view we take on abolition or retention, are agreed, I think I am right in saying, that this provision moved by Mr. Brooke is right and justified—and it is the provision which will ensure that Parliament has a look at this matter again in five years' time.
It is all very well for the noble Lord to say, with confidence, that he does not think the murder rate will increase, that he does not think it will have any effect, but that of course there may be a temporary increase which will have evened out in ten years' time. He may be right, he may be wrong. I hope he is right. I hope he is wrong in thinking that there will be a temporary increase—I hope he is very wrong about that. I shall be very pleased indeed if there is no increase at all. But surely it is right to ensure that Parliament has a look at this matter in five years' time. The noble and learned Lord the Lord Chancellor started by saying that this was not a matter of very grave importance. We disagree with him, and if we do not succeed in retaining the Bill in its present form tonight I give the noble Lord warning that we will endeavour to put this Bill back into its present form on Third Reading.
I had not intended to intervene, but I feel I owe it to the Committee to explain why, having supported this Bill throughout, and having voted throughout, I will not say with the Government but with the noble Baroness, I feel bound on this occasion to vote against the Amendment which the noble and learned Lord the Lord Chancellor has moved. I do it not because I agree, I am afraid, that the first part of his speech was wholly irrelevant and rather offensive—that does not affect my judgment—but because my conclusion has been influenced by the fact that I am not satisfied on the evidence (indeed I am satisfied the other way, on the balance 1258 of the evidence so far) that the retention of the death penalty is not a necessary deterrent. But the evidence so far as this country is concerned is not conclusive, and, like my noble friend, Lord Norwich, I should like to be sure that the matter will be reconsidered in five or ten years' time. I should have had much more sympathy with the Lord Chancellor if he had substituted ten years for five; but, as he has not, and as he has adopted this attitude, I feel bound to vote against him and to support the Bill in the "No" Lobby. I will not detain the Committee any longer.
§ LORD STONHAM
I am very sorry to hear the noble Lord, Lord Cohen, say he will vote against the Amendment moved by my noble friend the Lord Chancellor. Certainly the Government are in favour of these Amendments, and while I do not wish to enter into the exchanges between the noble and learned Viscount and my noble and learned friend, I am bound to say that I think the noble and learned Viscount was himself somewhat disingenuous when he seemed to think that there was this tremendous difference between the position that would operate if these Amendments are accepted and that in the Bill at present. There is nothing in these Amendments which would prevent the Bill from being reconsidered, if Parliament so decided, at the end of five years.
§ VISCOUNT DILHORNE
There is nothing to prevent Parliament from reconsidering the matter without any provision of this kind at all. What this does is to make sure that those who want the Act to continue will see to it that Parliament has the opportunity of discussing it.
§ LORD STONHAM
Even I am not so disingenuous as the noble and learned Viscount imagines. There is a clear issue here. As the Bill stands at present, the Act will expire unless positive and affirmative action is taken by Parliament. We all know that in the conditions which may operate in five years' time—conditions having nothing to do with whether this Bill has been a success or not, having nothing to do with whether or not murders have increased or decreased, but simply of Parliamentary time, perhaps, and congestion of business—it may then be difficult for Parliament, as it were, to re-enact this Bill, and, as the noble and 1259 learned Viscount made so clear, fight it through both Houses of Parliament again.
This Bill has been before Parliament for some eight months, I believe. The retentionists—as they have every right to do; I do not complain about it—have used every device of democracy to oppose it. They have been resoundingly defeated on Second and Third Readings in another place; they have been resoundingly defeated on Second Reading in your Lordships' House. In effect, all that these Amendments do is to say that five years hence when we reconsider this Bill, it shall continue unless Parliament by Motion decides otherwise. Surely that is reasonable and fair enough. It is better, I should have thought, after this lapse of time, than that it should lapse altogether.
§ VISCOUNT DILHORNE
When the noble Lord says that this is entirely due to the retentionists' opposition to this Bill through all its stages, does he dispute the fact that this provision was inserted in the Bill after a Division in another place on an Amendment moved by a supporter of the Bill and supported in the Division Lobby by members of my Party, whether retentionist or abolitionist? Does he still deny that?
§ LORD STONHAM
I am not in a position to deny or to accept what the noble and learned Viscount has said; but I am in a position to assert beyond any peradventure and any contradiction from him that in the last eight months this measure has been opposed by every democratic Parliamentary device. That is a fact which nobody can deny. I am not complaining about that. What I am saying is that what we want to avoid is another battle of the same kind—an unnecessary battle, as I hope it will prove to be. But if in the next five years those of us who think that the abolition of the death penalty will not make any material difference to the number of murders, will not add to the number of policemen or prison officers who are murdered in the execution of their duty, are proved wrong about it, then it would most certainly be for the noble and learned Viscount and others who think like him to bring this matter before both Houses of Parliament; and it would be extremely difficult for the abolitionists, 1260 for those of us who believe in the abolition of the death penalty, to stand against them. This is all that it is.
While I would, of course, congratulate the noble and learned Viscount on the attitude that he has taken, I think that it confuses the issue, which is: do we accept these Amendments and five years later let the Bill go on if it has proved a success; or do we reject the Amendment and five years hence, if it has been a success and justified our hopes, subject Parliament, unnecessarily, because of the views of a minority which has been defeated, to going through all this again? I hope that your Lordships will accept the Amendments.
§ LORD DERWENT
Surely this is simply a question of whether we are prepared to reverse an Amendment which was put into the Bill in another place—that and nothing else.
§ LORD STONHAM
I think the effect it what I have stated. We are concerned with these Amendments. It has nothing to do with another place and I hope that we shall be concerned to deal with that.
§ 8.56 p.m.
§ BARONESS ELLIOT OF HARWOOD
As one who has supported the Bill on Second Reading and during the Division on the Amendment moved by the noble Lords, Lord Conesford and Lord Ilford, I wish to say that I supported the Bill on the understanding that it was the measure which came from another place. There is in the Bill a clause that the law shall be enacted for five years and then come up for review. That played a considerable part in enabling me to arrive at a decision to support the Bill. I am aware of all the arguments on both sides. I am very much on the side of the abolitionists, hut, nevertheless, as we have heard, a case may be made out by those whose feelings and views are different from mine.
The noble Lord, Lord Stonham, said that they were defeated during the Second Reading debate, and I was one who voted for abolition on the understanding that there was the five-year period during which the Bill would be tried. I should not be in favour of saying now, at the eleventh hour, that the five-year period is not important and is something which 1261 could be done away with, as would happen if the Amendments of the noble and learned Lord, the Lord Chancellor were accepted.
I think it would be much better to leave the Bill in its present state. A period of five years is simple and straightforward. The noble Lord, Lord Stonham, referred to the possibility of there being no Parliamentary time. This is a major point of the greatest possible importance and I do not think any Government would be so foolish as not to allow time for another discussion. If, as I believe it will, the Bill proves successful, it will be passed again. If it is not a success, those who have voted for it will be proved wrong, in which case it would be up to those on the other side to alter the measure. This is the first time that I have seen the Amendments in the name of the noble and learned Lord, the Lord Chancellor, but if what is in the Bill is to be reversed at the eleventh hour, I think it would be entirely wrong and I will vote against the Amendments.
§ LORD BYERS
I hope that the House will not be completely swayed by the noble Lady in this matter. I do not think it is a question of the eleventh hour. We hope to improve the Bill. What weighs with me is what was said by the noble and learned Lord, the Lord Chancellor, that if nothing is done to amend it, this Bill, as an Act, will expire automatically at the end of five years. I can understand that the noble and learned Viscount, Lord Dilhorne, as one of the co-authors of the Homicide Act, is not prepared to see that Act challenged. We know what it has been like. There has been a whole array of evidence of the way in which it has worked.
§ VISCOUNT DILHORNE
I do not mind the Act's being challenged. I do not mind its being criticised. I recognised on Second Reading that it was open to criticism in several respects. But what I do object to is the kind of observations made to-night, that my noble friend Lord Kilmuir and myself have been "playing ducks and drakes with men's lives". That is what the noble and learned Lord the Lord Chancellor said. He said that we decided which men we thought ought to live and who ought to die. I object especially to such comments, and I think that they are completely unforgivable.
§ LORD BYERS
The noble and learned Viscount must not accuse me of having made those observations, but I think they could arise out of the fact that the noble Earl, Lord Kilmuir, whose speech I listened to and interrupted with some relish, when talking about poisoning, spoke of the difficulty that the noble and learned Viscount and he had in trying to come to a definition of poisoning that would come within the ambit of capital murder, and he went on to say:However, we came before both Houses of Parliament with a Bill which deliberately set out to preserve what we thought was the minimum necessary for preserving law and order and public safety."—[OFFICIAL REPORT, Vol. 269 (No. 106), col. 640, July 20, 1965.]That is a very proper sentence, but I do not think that the noble and learned Viscount can now avoid the fact that he was regarded by the noble Earl, Lord Kilmuir as one of the co-authors of the Bill.
I do not want to say any more about the Homicide Act, except that we have had a tremendous amount of important evidence which all points to the fact that we dare not go back to that Act. That is the point. I know that there are occasions when Governments have extreme difficulty in giving time. But if this Act is working as we hope it will work, there will be no reason to review it at all. If it is not working, then any Government will be forced to give Parliamentary time. The most sensible thing to do is to accept this Amendment and, with any luck, we shall avoid the sort of difficulties we have had to go through since 1948. The sensible thing, I suggest, is to accept these Amendments, and if the Act does not work, in five years we shall all want to review it.
§ LORD TANGLEY
I wonder whether the noble and learned Lord, the Lord Chancellor, realises what an embarrassment this Amendment is to non-Party people like myself, who have been steadily supporting this Bill in all the Divisions that have taken place. I voted for the Second Reading and supported the Bill on the footing that there was to be an experimental period of five years. That meant that the law would be changed in five years' time unless Parlaiment in its wisdom felt that it should continue. The effect of this Amendment would be to make this Bill permanently 1263 part of the law of the land unless someone does something about it. That is quite different. It is not an experimental period. Bearing in mind that there was no suggestion on Second Reading, or at any earlier stage of the Bill, until we saw the Marshalled List of Amendments, that this Amendment was to be moved, I feel that I am being asked now to vote for a different Bill from the one that I voted for on Second Reading, and I do not think that that is fair at this stage.
There is an additional reason, I suggest. I think that at this moment of time this Bill is much more experimental than it was when we had our Second Reading debate. As a result of Amendments which have been carried this afternoon, we have gone in one step from a compulsory, automatic death sentence in respect of numerous classes of murder to a state of affairs where the sentence can be anything from probation to life. That is the result of the Amendments of the noble and learned Lord, Lord Parker of Waddington, against which I voted. I think that this is quite wrong and I think the public will be quite astonished when they learn what steps have been taken this afternoon. I believe that this makes it all the more necessary that this should be a real experiment, and I beg the noble and learned Lord the Lord Chancellor to relieve us from our embarrassment by not pressing this Amendment.
§ VISCOUNT MASSEREENE AND FERRARD
May I support the noble Lord who has just sat down? I voted for abolition on Second Reading and I should feel that I had been tricked, if these Amendments were carried. We were told—and I voted strictly on this understanding—that this Bill was to last for a trial period of five years; that after five years the position would be reviewed, and that if the experiment had not been successful, we should then have a new Bill. I feel very sore about this, and, as I say, I should feel tricked if the Amendments were carried.
VISCOUNT ST. DAVIDS
I am, as everyone knows, an abolitionist, and I have supported this Bill throughout its progress. But I try to remember the words of Oliver Cromwell, that "I may be wrong", and therefore I should be very 1264 happy to see a review of this matter in five years' time. But here I am in a difficulty, because, as the Bill now stands, if this Motion appears on the Table, and I have been wrong, and there has been an increase in murders, I then have to vote on whether I prefer this Act (as it will then be) to continue, or feel that we should go back to the Homicide Act. I should feel most unhappy at throwing out this Act, even if it had been unsuccessful, if I were faced with having to go back to the Homicide Act. In those circumstances, I personally should call for a third measure—neither the one now before us, nor the one which we are now rejecting. For that reason, I support the Amendment.
§ BARONESS WOOTTON OF ABINGER
I am surprised, and I might say rather moved, by the astonishing regard that has just been shown by a number of noble Lords opposite for the opinions of another place. It will be remembered in other contexts that it is not the function of their Lordships, apparently, to make any decision which is in conflict with what has already been there decided.
§ THE PARLIAMENTARY SECRETARY, MINISTRY OF TRANSPORT (LORD LINDGREN)
Take your medicine. Sit down.
§ VISCOUNT DILHORNE
I remember Mr. Silverman saying that it would be improper to interfere at all with the Bill. Now the sponsors of the Bill are doing just that.
§ BARONESS WOOTTON OF ABINGER
I have no responsibility for what any Member of another place may have said. I have only noted that what is said in another place, and what is done in another place, has evoked to-day a surprising amount of respect which I have not previously seen in earlier decisions of your Lordships' House. That is the only comment I would make.
§ BARONESS ELLIOT OF HARWOOD
I am sorry to interrupt the noble Lady, but I never said anything about the other place. What I said was that I was supporting this Bill—and I have done so all the way through—but that I was not prepared to support at the eleventh hour 1265 Amendments put down by the Lord Chancellor which would alter the Bill, irrespective of what the other place had said, and I opposed these Amendments because the Bill would not then be the Bill for which I voted on Second Reading.
§ BARONESS WOOTTON OF ABINGER
I am obliged for those observations, but I made no reference to anything which the noble Lady said. Your Lordships' House has debated the question of capital punishment in various contexts for more than 100 years. Your Lordships' House has debated the question of capital punishment in relation to murder on three occasions in the last seventeen years. Your Lordships' House has at last brought itself to the point of agreeing in principle, and now completely, to the abolition of capital punishment for murder. But such is the timidity, apparently, of your Lordships' Committee, that after 100 years, in which you have defeated it right up to the last occasions, after having at last conceded that capital punishment is something which ought not to be operated in this country, your Lordships are so afraid that you have no confidence that your judgment can be valid for more than five years ahead unless it is expressly validated. The Committee are perfectly entitled to make that decision. But I can only say that the effect of that decision will be to enhance a reputation for timidity and hesitation which is very undesirable if the continuance of this House is wished—
§ BARONESS HORSBRUGH
Would the noble Lady agree that what is being voted for is the Bill as it came to us, and that we are wishing to keep it exactly, not making any change—
§ BARONESS WOOTTON OF ABINGER
I appreciate what the noble Lady has said, but if we are to vote for the Bill as it came to us, it seems extraordinary that noble Lords have moved and carried Amendments.
§ LORD OAKSHOTT
May I apologise to the noble and learned Lord Chancellor 1266 for not being here at the beginning of this debate, through no fault of my own? I have been moved to intervene for a few minutes because the noble Baroness, Lady Wootton of Abinger, said a moment ago that people seemed to be afraid of something. I am not by any means the only one in this Chamber to-night who has served a good many years in another place, and we came to learn, as your Lordships know, the difference between an Affirmative Resolution and the Negative procedure. To change this now seems to me to be a strange thing, in view of the fact that another place decided that this should be done at the end of five years by Affirmative Resolutions rather than Negative procedure.
The noble Lord on the Cross Benches spoke of his embarrassment, in that he had supported the Second Reading of this Bill with a perfectly clear reservation, I think he said, in regard to this five-year trial period. I myself supported the Second Reading of this Bill. Three times I voted in another place for the retention of this punishment. Over the years I have come to a different conclusion, and I voted for the Second Reading. I appeal to the noble Lord to have regard to the embarrassment which this causes us, and perhaps the noble and learned Lord will think again about pressing this Amendment, because there is a difference between the two types of procedure, Affirmative and Negative, in Parliament. Some of us who supported this Bill would feel happier if we could retain the Affirmative procedure, as it came to us from another place.
THE LORD CHANCELLOR
As I have said, I do not regard this matter as enormously important. But if I may reply to the noble Baroness and the noble Viscount, Lord Massereene and Ferrard, and the noble Lord, Lord Tangley, I can, of course, understand their attitude: that this is the Bill as it came to us which we voted for on Second Reading, and it is not really right to make alterations in this House, because either we ought to be in favour of the Bill or against it.
§ LORD TANGLEY
May I interrupt for one moment? That is not what I said. I am perfectly happy to see Amendments made in this House to Bills brought from another place. I have voted for them, and I have indeed moved some 1267 myself. What I object to is this being done in this way, and at this stage.
THE LORD CHANCELLOR
The Amendment that has already been made this evening by the Committee is a major one. It changes the punishment for murder, and changes it pretty radically, and in a sense with which the other House refused to agree. But this House, as it is entitled to, has overruled the other place. The Amendment which I am moving is not one which has been expressly considered in another place at all, and I always thought that it was part of the function of your Lordships' House to act as a revising Chamber—not for the purpose we fulfilled on the previous Amendment, or yesterday, when on the Rent Bill your Lordships took an opposite view to what had already been considered and voted on in another place, but to revise particularly on matters which had not been expressly considered in another place.
This Amendment does not abolish the five-year trial period. That is not its object. If it had been its object it would of course have been worded differently. On the contrary, if the words in this Amendment are inserted the clause will start:This Act shall expire on the 31st day of July 1970".It still maintains the five-year trial period. The sole question is the question which was never really considered in another place as to whether that should happen if no action was taken at all or only if Parliament, by Affirmative Resolution, so determined. It seemed to me, rightly or wrongly, that it would be much more satisfactory to provide that it should expire if there was an Affirmative Resolution rather than that we should automatically, if nobody did anything, go back to the Homicide Act.
I am sorry if the noble and learned Viscount thinks I was rather rude or discourteous. I had assumed, it may be wrongly, from the passage in the speech of the noble Earl, Lord Kilmuir on Second Reading, quoted by the noble Lord, Lord Byers, that in substance he was saying that it was he and the noble Viscount, Lord Dilhorne, who had been in effect responsible for the contents of the Homicide Act. I apologise if I have misunderstood that passage.
§ VISCOUNT DILHORNE
I am grateful to the noble Lord for saying that, but what he did say and I do regard as most offensive—I do not mind any criticism of the Homicide Act, in which many Members of Parliament took some part—was for the noble and learned Lord the Lord Chancellor to say that my noble and learned friend and myself were two lawyers "playing ducks and drakes with men's lives". If the noble and learned Lord, the Lord Chancellor does not think that was highly offensive, then I am sorry, but I do.
THE LORD CHANCELLOR
I said it was an attempt to arrive at a compromise; I said it was well intentioned, but, for the reasons I gave on Second Reading, I have, rightly or wrongly, always taken the view that the question of capital punishment ought not to be a question of Party politics. I have always opposed that. I know a number of members of the Labour Party who are passionate retentionists and a number of members of the Conservative Party who are strong abolitionists, and, for a generation, whenever this question has come before either House it has always been dealt with on a free vote, with one exception only, the Homicide Act, which was forced through with the Whips on, and not one word was allowed to be changed from the first draft in another place, in spite of innumerable Amendments, or in your Lordships' House. The opinion that I have expressed of the Homicide Act is one that I sincerely hold.
§ VISCOUNT DILHORNE
If the noble and learned Lord, the Lord Chancellor, will forgive me, I am not sure whether his observations on the Homicide Act are meant to be a withdrawal or an apology for what I regard as a most offensive observation, that my noble and learned friend and I were playing ducks and drakes with men's lives.
THE LORD CHANCELLOR
What I said was that this was the effect of the Homicide Act. I made it quite clear I was sure that it was not intentional and that it was an ordinary, English attempt to arrive at a compromise, though it was in a field which I myself think does not admit of compromise. I accepted the fact that it was well-intentioned, but this was the actual result. After all, we do 1269 not often have the Lord Chief Justice, speaking, he thought, with the agreement of all the other judges, saying that they were all absolutely disgusted at having to administer an Act like the Homicide Act. That is the Act which, under this clause as at present drafted and if we make no amendment to it, is the position to which the law of England will return if nobody does anything in five years' time. I hope that no Government of the day, whatever it is, will do anything; I hope that no Opposition of the day, whatever it is, will do anything, because of this very strong view of mine: that this question ought not to become a matter of Party politics.
There are some things on which we ought to be allowed to say what we think, whatever the politicians may say. But
§ Resolved in the negative, and Amendment disagareed to accordingly.1270
§ it is not always easy for the Private Member to get something done at a particular time, and this was why it seemed to me that this would be the wrong way round. I am for keeping the five years' period but I am for changing the emphasis so as to provide that the Act shall expire on July 31, 1970 if Parliament by Affirmative Resolution so determines, but I think it would be wrong to leave it as it is and to provide, as is now provided, that if nobody does anything at all then we get the Homicide Act. It is for those reasons I put down this Amendment.
§ 9.25 p.m.
§ On Question, Whether the said Amendment (No. 12) shall be agreed to?
§ Their Lordships divided: Contents, 55; Not-Contents, 59.1269
|Addison, V.||Haddington, E.||Reay, L. [Teller.]|
|Airedale, L.||Haig, E.||Rhodes, L.|
|Archibald, L.||Haire of Whiteabbey, L.||Royle, L.|
|Arwyn, L.||Henderson, L.||St. Davids, V.|
|Beswick, L.||Henley, L.||Samuel, V.|
|Blyton, L.||Hertford, M.||Segal, L.|
|Bowles, L.||Kinnoull, E.||Shepherd, L.|
|Brockway, L.||Kirkwood, L.||Simey, L. [Teller.]|
|Brown, L.||Latham, L.||Snow, L.|
|Burden, L.||Leatherland, L.||Sorensen, L.|
|Burton of Coventry, Bs.||Lindgren, L.||Stonham, L.|
|Byers, L.||Listowel, E.||Swanborough, Bs.|
|Champion, L.||Longford, E. (L. Privy Seal.)||Taylor, L.|
|Crook, L.||Merthyr, L.||Terrington, L.|
|Emmet of Amberley, Bs.||Mitchison, L.||Waldegrave, E.|
|Francis-Williams, L.||Peddie, L.||Wells-Pestell, L.|
|Gaitskell, Bs.||Plummer, Bs.||Winterbottom, L.|
|Gardiner, L. (L. Chancellor.)||Raglan, L.||Wootton of Abinger, Bs.|
|Ailwyn, L.||Dilhorne, V.||Massereene and Ferrard, V.|
|Albemarle, E.||Drumalbyn, L. [Teller.]||Molson, L.|
|Allerton, L.||Dundee, E.||Monk Bretton, L.|
|Auckland, L.||Effingham, E.||Monson, L.|
|Bossom, L.||Elliot of Harwood, Bs.||Mowbray and Stourton, L.|
|Boyd of Merton, V.||Erroll of Hale, L.||Newall, L.|
|Bridgeman, V.||Falkland, V.||Oakshott, L.|
|Brocket, L.||Ferrers, E. [Teller.]||St. Aldwyn, E.|
|Brooke of Ystradfellte, Bs.||Ferrier, L.||St. Oswald, L.|
|Chichester, L. Bp.||Gage, V.||Somers, L.|
|Clitheroe, L.||Goschen, V.||Strabolgi, L.|
|Cohen, L.||Greenway, L.||Strang, L.|
|Colville of Culross, V.||Grimston of Westbury, L.||Strange of Knokin, Bs.|
|Colyton, L.||Hawke, L.||Stuart of Findhorn, V.|
|Conesford, L.||Hobson, L.||Swansea, L.|
|Coutanche, L.||Horsbrugh, Bs.||Tangley, L.|
|Cullen of Ashbourne, L.||Howard of Glossop, L.||Tenby, V.|
|Denham, L.||Inglewood, L.||Wakefield of Kendal, L.|
|Derwent, L.||Killearn, L.||Wolverton, L.|
|Digby, L.||McCorquodale of Newton, L.|
THE LORD CHANCELLOR moved to add to the clause:
Provided that this Act shall continue to have effect in relation to any murder not shown to have been committed after the expiration of this Act, and for this purpose a murder shall be taken to be committed at the time of the act which causes the death.
The noble and learned Lord said: This Amendment arises on the Bill as it came from another place, and it would equally have arisen if the Committee had passed the Amendment which I have just moved. It is needed to deal with the situation where a murder may have been committed before the expiration of the Act, but is not dealt with by the courts until after the Act has expired—assuming that the Act is allowed to expire. The one thing that none of us wants is that men's lives should depend on the toss of a coin.
§ As at present drafted the clause would have the effect that if abolition of the death penalty should expire on July 31, 1970, the death penalty would immediately revive for anyone convicted of a murder that was capital under the present Homicide Act, even though the murder was committed during the period of abolition. To take an extreme example, a person who murdered in the course of theft would be sentenced to life imprisonment if convicted on July 30, 1970, but would he sentenced to death if convicted on the following day, no matter on what date the murder had been committed. It is an established principle that where the criminal law is changed to provide for increased or different penalties the change does not apply to offences committed before the change became operative. Therefore, this Amendment seeks to ensure that if the death penalty does revive, it shall apply only to murders committed after revival.
and for this purpose a murder shall be taken to be committed at the time of the act which causes the death
are necessary in order to avoid the anomalous situation that could otherwise arise in which a murder would be non-capital if the victim died before July 31, 1970, but would become capital if his life lingered on till that date. This is because a person can be charged and convicted of murder if his victim dies within a year and a day of the act which causes his death. Therefore, quite irrespective of the previous Amendment and taking
the Bill as it now is, I submit that, for those reasons, this Amendment is right in order to cure the defects to which I have ventured to refer. I beg to move.
Page 2, line 31, at end insert the said proviso.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 3, as amended, agreed to.
§ Schedule agreed to.
§ House resumed: Bill reported, with Amendments.