CAPITAL PUNISHMENT

HL Deb 12 December 1974 vol 355 cc785-825

3.55 p.m.

Lord HUNT rose to call attention to capital punishment as a means of combating terrorism; and to move for Papers. The noble Lord said: My Lords, in rising to speak to the Motion standing in my name on the Order Paper I should like to make my own position quite clear. I am opening this debate because it seemed to me right to respond to an invitation of the House which I received at the end of last week. Otherwise, it had been my intention to speak, if I did so at all, as late as possible in the debate on this subject and after listening to as many of the previous speakers as I could. I had no special desire to speak because I had already made some remarks about capital punishment on 28th November during the debate in your Lordships' House on the anti-terrorist measures which, as everyone knows, have now become law.

My Lords, I expressed grave doubts about the wisdom of reintroducing the death penalty in this connection, but I also said, and I now repeat, that I could be persuaded otherwise by evidence. Sonic weeks earlier in a letter to The Times I had accepted that the time might come and circumstances could arise in which the reintroduction of the death penalty for terrorism might become inevitable, but I contented that that time had by no means arrived yet. My first reaction to the amended and less challenging—and some would say innocuous—Motion which is now before the House, and which I understand has been a matter of agreement through the usual channels between the Government and the Opposition Benches (as the noble and charming Baroness the Government Chief Whip is well aware) was one of some personal relief. Perhaps this was because it reflects more accurately a lack, perhaps a lamentable lack, of pugnacity or bellicosity in my own make-up.

My Lords, I have no desire to cause a Division among your Lordships. I recognise that this debate takes account of the decisive debate that took place in the other House last night and I sincerely trust that the discussion we are to have will be no less important and no less taken note of outside this House simply because it is not on a divisive Motion. Finally, my Lords, I have naturally not changed from the standpoint I expressed on 28th November and I will listen with all the more interest to the subsequent speeches. There are certain areas of agreement between us. We are all acutely conscious of the universal concern about the evil of terrorism in our midst. We all share that concern, and the length of the speakers' list today and the implication that those who speak are ready to endure a long and wearisome Session is a small token of that concern. We all share a deep sympathy for the innocent victims of the bombers.

I would guess, my Lords, that we also share the emotion of anger of the citizens of Birmingham, Guildford and the capital city of London, and of almost every other citizen throughout the British Isles about these bestial deeds. This House has already endorsed the Government's present anti-terrorism measures. I feel sure that we are all resolved to support the Government in any further security steps, if they should become necessary, and to play whatever part we may be reasonably expected to play in future in order to bring terrorism to an end.

On all these matters there is common ground between us and I feel confident that so far I have been voicing the views and expressing the determination of the whole House. However, I am also conscious, and so must we all be, of the growing difference of view—amounting to a conflict of convictions which are strongly and sincerely held in society at large and in this House, and which were shown last night in the debate in another place—on this question of bringing back hanging or any other form of execution as one further measure to combat terrorism. Among our own friends, and even within our own families, many of us must have experienced these opposing views. Indeed, one of the achievements of the terrorists has been to produce yet one more pressure to add to all the other pressures which we are experiencing; one more division in society, a division which includes a widening of the gap between Parliament and the people.

I have no doubt that it is part of the strategy of those who are waging this hideous form of warfare. Clearly we must take this into account, as it was taken into account in another place last night. However, one of the advantages of your Lordships' House is that not having constituents we can speak with a greater detachment, and a related attribute is that we habitually conduct our discussions without passion, without rancour, and with objectivity, and if ever that attribute were needed it is on this subject which we are about to discuss today.

My Lords, I have taken a few minutes of your Lordships' time in setting the scene and I should like now to invite your attention to the terms of the Motion. It relates to the question of capital punishment for terrorism alone, but there may be some of your Lordships who fear that by bringing back hanging for that one purpose it would be the thin end of the wedge—that if death were to be the penalty for political murder it would lead inexorably back to execution for murder, say, during an armed robbery. Others among your Lordships might well echo that view in a different sense: "Why not, indeed!" This leads us to the well-known difficulty in establishing a borderline in heinousness between certain types of murder, of determining the motivations of ordinary criminal murderers in order to determine or distinguish capital from non-capital murder in the past, which featured in your Lordships' debate in 1969.

My Lords, this may well be a matter which we need to discuss today. I am inclined to assume that the motivation of terrorists, and of those who hire or inspire or coerce them, should be capable of being identified as such, but I hope that one or other of the noble and learned Lords who are to speak to us, including the Lord Chief Justice himself, will be able to enlighten us on this point.

I have also referred to this wider area of murders in order to aver that, despite the increase in murders since the death penalty was experimentally suspended in 1965, there is no conclusive evidence that those who have murdered in the course of robbery—which is, I suppose, the nearest possible point of comparison with the subject we are talking about—have been encouraged to do so by the absence of the death penalty since 1965, or that they had been deterred from doing so by its active presence on the Statute Book before that date. I have Home Office figures—many of your Lordships will be familiar with them—and some of your Lordships will have seen the figures produced by Mr. Louis Blom-Cooper in the Guardian earlier this week, although I hope that we shall not get bogged down with figures this afternoon. However, I accept personally Sir Robert Mark's often repeated belief that the only effective deterrent for such people is the certainty, or the strong probability, that they will be caught and that they will be convicted.

Your Lordships may perhaps feel that this is irrelevant to the Motion before the House, but the relevance is that political murderers or terrorists who are prepared to kill indiscriminately as a means to a political end are even less likely to be deterred by the prospect of the gallows. Most of them are also much less concerned than is the case with ordinary criminal murderers about the chances of being caught. In most of these people there is an element of ideological fanaticism—a kind of courage in regard to their own fate which makes them just about as dangerous as those killers who are mentally deranged. In some of the others I fancy that the fear of certain execution at the hands of their own political masters for failure in their mission may outweigh the fear of the death penalty after the due process of law, from which they may hope for a finding of not guilty, or that they will receive a reprieve, or even possibly be released under duress.

Not only do I not believe that the spectre of the rope is likely to deter terrorists. My own experience is that it would fan the fires of the cause for which those murderers are prepared to die as heroes. I hope that your Lordships will allow me to repeat what I recalled in the debate on 28th November in a much more thinly attended Chamber. I recalled a comparable position in Bengal in the 1930s when we were dealing with a revolutionary movement within which a terrorist group succeeded in murdering a provincial Governor and three district magistrates in succession in the district in which at one time I was serving, as well as committing a number of other outrages. We hanged several of these men and I recalled in the debate on 28th November the execution of a schoolmaster, Surja Sen, and his accomplice, Tarakeswar Dastidar, following a bomb outrage at a cricket match in Chittagong in 1933. Those people immediately became posthumous heroes with a far wider and stronger appeal in death than they ever achieved in life—heroes of the idealistic and eager young people in the high schools throughout the Province of Bengal. They included some of the brightest and best pupils among the Hindu population—boys, and some girls, too, who were sadly misguided but not lacking in courage. Nor were they sadists or psychopaths. The spirit of rebellion spread like wildfire and children became the bombmakers.

Of course, Ireland itself provides a more relevant and a more topical example. We all know the extent to which the memory of the men who were executed after the Easter Rebellion in 1916 lives on. They have become larger than life and their spirit still moves in many an Irish breast. Is not this one of the facts which terrorist organisations exploit with diabolical effect? If this is the enemy's game it is folly to play it. And would not more Irish kids become bombers? If I am right about those two questions, how would the execution of IRA bombers, or any other organisation's sectarian or political gunmen, or those who shelter them, affect their co-religionists today? We have only to consider the crown of martyrdom conferred by the IRA on a number of those who died in various outrages—as recently as two or three weeks ago James McDade—to forecast that we might reap the whirlwind of hatred and bitterness which would result in counter-bitterness; and if history is any guide we should visit it on the children of today and on a generation to follow. I will come back to that point very shortly in connection with security.

My Lords, we are living in a world—not just two islands—in which the strategy and the techniques of violence have reached appalling depths of sophistication. Arrests, trials, convictions and detention are all a recipe for reprisals at any stage—all too often against innocent people who arc brutally murdered in the course of their lawful business and who could in the future in this country, as has happened elsewhere, be captured and used as pawns in a grisly and prolonged process of blackmail. Age and sex are no bar to these barbarous people.

It is my belief that by reintroducing hanging we should greatly increase the incidence of such reprisals, and that we should experience in this country the seizure of hostages in attempts to stay execution and to secure the release of murderers. Whatever the public pressure may be for bringing back hanging now, I wonder what might be the public mood if the price of execution were seen to be, or were seen to be about to be, the death of hostages in Britain?

My Lords, on these grounds alone I do not think capital punishment is justified, at any rate in present circumstances, and this appears to be the view, by its abolition or by its disuse, in every other Western European country except Spain and France. Even in Israel, terrorists, though they are often killed in action, are not executed when they are captured and convicted. We cannot claim at present to be more seriously afflicted than the Israelis; nor the Italians, for that matter, nor perhaps the Germans. I suppose such a time could come, but if it were to come I fear it would be in circumstances of a breakdown of our democratic society, and it may well be one of the objectives of one or more terrorist groups to force us into the straitjacket of a police State, in which execution would be axiomatic.

I have limited my arguments to those which are pragmatic in character. I have refrained from raising moral issues, such as retribution, atonement or revenge. I ventured a personal view on this aspect on 28th November, but I did so in the absence of any speaker from the Bishops' Benches. Today we are greatly blessed by having the most reverend Primate himself and a strong supporting cast and I hope we shall hear from that quarter on this very difficult and emotive question. Of course that is not the only quarter from which we can expect to hear a moral view. Those who maintain that death after judicial process is the only just response to murder in general, or terrorism in particular, will doubtless argue that questions of its effectiveness or inexpediency are secondary and perhaps even unworthy of consideration. I am not among them. There are other considerations: the awful irrevocability of a miscarriage of justice; the onus upon those who have to carry through the whole protracted process to its grim end. These are points which I would sooner leave to others.

What are the alternatives? These are not strictly within the terms of the Motion but it would surely be wrong to end on this negative note. The alternatives lie in the realm of greater security, and perhaps by reviewing the punishment and treatment of terrorists and those who aid and abet and conspire with them; and some of your Lordships may have read an interesting article in Justice of the Peace, as recently as 7th December, on that aspect of the matter. As regards security, this may well mean more stringent measures, more inconvenience and some more limitations on personal freedom, but surely these are an acceptably small price to pay. Never was the dictum of George Washington more apposite— "the price of freedom is eternal vigilance". And never was there a more striking example of vigilance, to say nothing of courage and readiness to support the forces of law and order, than the action of three taxi drivers in Piccadilly last night.

SEVERAL NOBLE LORDS

Hear, hear!

Lord HUNT

My Lords, I have spoken about support for the forces of law and order. Surely everything possible must be done to support and strengthen the effectiveness of the police, to help them in the essential task of identifying and locating would-be terrorists and securing their deportation; in maintaining an effective watch on our points of entry into Britain, and eventually of capturing these terrorists and bringing them to justice. It is interesting to note that to my knowledge the Commissioner of Police himself has not asked for the reintroduction of the death penalty as a measure of support for the forces under his command, and Mr. Roy Jenkins last night went further and revealed that not only the Commissioner himself but also five of his most senior assistant commissioners were of the same mind.

Here I come back to the question about the importance of retaining a measure of good will among the public and essentially in the communities where terrorists hide out. The days when I was an intelligence officer in a police force are long past but there are some things which do not change, and this is one. The police can only be fully successful to the extent that this public good will—and no less public confidence—can be fostered. Fear, suspicion and hostility are the enemies of police intelligence, on which so much depends in combating terrorism. Because of the sympathy it would arouse among the co-religionists of the executed terrorist and the bitterness it would engender against the forces of law and order, I believe that capital punishment would be counter-productive to security, just as I also believe that it could lead to inter-communal hostilities in certain areas of some of our cities, which would be counter-productive to law and order.

Finally, let us not forget, by preoccupation about exorcising this evil within the body politic, that the solution does not lie over this side of the Irish Sea, nor does it lie mainly in security measures, nor in sanctions. The solution must be a political one. I believe that to reintroduce the death penalty would risk destroying any early hope of conciliation and consensus between the two communities in the North, with the essential good will of the South, which has been so diligently pursued and to which this Parliament has set its seal. It is the purpose of some extremists on both sides to make it fail. Our policy must still be pursued. And I should like to echo, if not in exactly the same words, what the noble and learned Lord, Lord Hailsham of Saint Marylebone, said to us on 28th November: "That policy must succeed". I can think of nothing more calamitous than to place it in jeopardy.

So to conclude, I submit that capital punishment as a means of combating terrorism would in practical terms be ineffective, and in political terms highly inexpedient. On a balance of moral judgments, although I have not allowed this belief to pre-empt or prejudice my other arguments, I believe that morally it would be wrong. My Lords, I beg to move for Papers.

4.18 p.m.

The LORD CHANCELLOR

My Lords, the House will be grateful to the noble Lord, Lord Hunt, for initiating this debate, the importance of which is underlined by the list of the distinguished names of those who propose to take part in it. On one proposition I venture to think that there will be unanimity throughout the debate; namely, the need to combat terrorism by all effective means. The challenge from the threat and use in our own society which violence presents us with is mainly set in the context of the affairs of Northern Ireland. But as the noble Lord has said, we are debating this threat to ourselves at a time when indiscriminate murder of innocent children, women and men in the pursuit of political ends is becoming a frequent feature of international life.

The agonising alternative between the risk of murder of hostages and having to agree to release murderous criminals holding them, has become almost a routine international event. The international community is in danger of becoming conditioned into accepting terrorism and violence as a normal political means. We must not allow that to happen here, and it was right that the Government and Parliament should last week have reacted urgently and vigorously to the current terrorist threat by giving our police and our security agencies greater powers to enable the guilty to be detected, apprehended and punished. As the noble Lord, Lord Hunt, has said, certainty of detection is the biggest deterrent against crime.

My Lords, I have mentioned punishment and the House will have noted the statement made by my right honourable friend the Home Secretary yesterday: …there is no prospect of amnesties for those who have committed cold-blooded and indiscriminate murder or maiming in this country. I do not recognise political excuses for crimes of that order. Those who have received long sentences should, in my view, serve them, whatever political settlements there may be."—[OFFICIAL REPORT, Commons, 11/12/74; c. 634.] There is undoubtedly strong public feeling that we should go further than the steps that the Government have already taken. There will be common ground—and the public has manifested it—that the contemporary terrorism is particularly menacing. It is not only directed against those whose duty it is to protect our society; namely, the police and the Armed Forces. As we have seen in the several terrorist outrages that have taken place, it is also directed indiscriminately against civilians—children, women and men have all been among the victims. So that the sense of outrage and anger felt by the public is natural and right. Their feelings are a healthy indication that the methods of the terrorist are wholly alien to our way of life; and they express, too, I believe, a feeling of sympathy and concern for those whose lives have been destroyed or maimed.

My Lords, if I was persuaded that the restoration of the death penalty would help to protect our people against this threat, which I recognise has added a new dimension to crime, I would be ready to forgo my deep objection to the process of the State deliberately putting to death those it holds captive. However, I believe that the probabilities point the other way, and that putting a captive terrorist to death after the judicial process has taken its course would, in fact, further inflame the situation in Northern Ireland, further endanger the lives of our soldiers and the police over there, and add to the risk of escalating the indiscriminate killings of civilians there and here ill Great Britain. I am therefore of the opinion that the reintroduction of the death penalty would be contrary to our public interest.

It would indeed be extraordinary if we here were to reintroduce hanging, or whatever the form the death penalty might take, just over a year after Parliament—on the initiative of Mr. Whitelaw who last night in another place stood by the views he expressed then—deliberately abolished it in Northern Ireland where terrorism has been on a far grimmer scale than here. I remember taking part in the debate on that measure in another place. The factors which led a very large majority of Members to support it were briefly these.

First, there was the fact that the death penalty for terrorist murders existed in Northern Ireland, but it had not deterred the killers. Two hundred and sixty-six members of the security forces had been killed in the campaign of violence prior to July 1973, despite the fact that 158 terrorists had been killed. Secondly, death sentences, it was thought, exacerbate political tension and certainly would not help to achieve the political solution to which the noble Lord referred as the prime essential. Thirdly, the carrying out of death sentences would encourage the creation of fresh martyrs to the extremist cause. Fourthly, death sentences would increase the risk of retaliatory violence and ruthless reprisals. I believe, my Lords, that those considerations apply with equal force today to the threat from within Great Britain.

Those who advise us do not believe that the terrorists would be uniquely deterred by the death penalty. In respect of so-called "normal" murder, there is no evidence to support the view that capital punishment in any way acts as a unique deterrent. Professor Thorsten Sellin, possibly the greatest expert on the question of the deterrent value of capital punishment, has said: Anyone who carefully examines the data is forced to arrive at the conclusion that the death penalty exercises no influence on the extent or fluctuating rate of capital crimes. It has failed as a deterrent. It is of course suggested, and it may well be suggested in the course of this debate, that the arguments which apply in the case of the so-called "normal" murder might not operate in the case of terrorist activity. But I submit that there is nothing to substantiate the deterrent theory even in that category of crime. Experience in the use of capital punishment in the emergencies in Palestine, Cyprus and Kenya suggest that if it had any effect at all it might have increased support for the cause it was being deployed against, rather than diminishing it. Usually political terrorists are not isolated killers working alone. They are members of a close-knit organisation of political fanatics who accept no restraint in carrying out their purposes. Their own sanctions against their own defaulting members arc horrific—from brutal murders of them to the comparatively mild punishment of shooting away their kneecaps. They are not likely to be deterred by the threat of execution at the hands of the British.

On the contrary the most committed person would feel glorified by the prospect of martyrdom. It is the case that terrorists who are executed can be perversely elevated into martyrs. They immediately attract a credibility and a vindication which their activities might not otherwise have evoked in the public. They would provide powerful propaganda to the military arm of the IRA. Winston Churchill expressed the matter memorably when he said: Over the graves of soldiers who died in battle the grass grows quickly; over the graves of those who died on the scaffold never. My Lords, I concede that to some extent all the arguments on deterrence and efficacy are theoretical; it is impossible to argue with certainty either way. But it is possible to conceive of situations in addition to those I have mentioned where the existence of capital punishment might well aggravate the problem it was intended to solve. For example, the terrorist who is caught in a critical situation, facing a choice between the risk of being blown up by his own bomb or being caught, facing execution if he is caught, has no reason to pull back from carrying out his mission.

This leads me to the risk of retaliatory violence, about which the noble Lord spoke. There are grounds for believing that if the terrorist had to face the death penalty, ruthless reprisal action would follow. There would be more murders and more explosions. No one, I take it, in this House would favour execution on arrest. The trial process would be bound to take time. The gap between arrest and trial would take weeks, if not months. The death penalty, by heightening emotions and creating a "now or never" situation would, I believe, accelerate and intensify the pressures for direct action on the part of the terrorists. It would allow the initiative to pass into the hands of the terrorists, and might lead to an escalation of violence.

If I may say so, the matter was put clearly by the right honourable gentleman, Mr. Whitelaw, in another place in a debate in May last year, when he said: I am therefore absolutely convinced ߪ that in these days immediately before and after any proposed execution the police and the soldiers would be at increased risk. As a result, the effort to protect the lives of policemen and soldiers by making an example in the case of a death which cannot be reprieved would be likely to provoke more shooting and more risk of death than to reduce it."—[OFFICIAL REPORT. Commons, 14 / 5 /73; col. 1029.] My Lords, I feel reassured about the conclusion to which I have come on this matter by the information which the noble Lord has just referred to, which the right honourable gentleman the Home Secretary gave last night when he informed another place of the information given to him by the Commissioner of the Police of the Metropolis, who told him that of the six most senior of the Metropolitan Police, five are opposed to the return of capital punishment. The five include the Commissioner, the Deputy Commissioner and the Assistant Commissioners (Crime) and (Operational). All are long-serving professional policemen with extensive practical experience. Apparently the Senior Operational Detective was also of the same view. My Lords, another grim risk is that the introduction of the death penalty would encourage the under-18s, whom the IRA would not hesitate to recruit, to do the killing, for they are immune from the death penalty. A further problem about the application of the death penalty to terrorism arises; that is, the question of definition. How far along the line should the capital sentence extend? Should it include those who shelter the terrorist, those who supply him with explosives, or a car, or money? Where there are gradations of penalty, the responsibility of each of those involved in an offence can be recognised accordingly by the court, but when the penalty is final and absolute, it is all or nothing. Either one says that anyone connected with a terrorist attack deserves death, which means that all attempts to distinguish degrees of responsibility will fail, or one has to decide on which side of the capital fence an activity lies, a task which would be difficult to assess. All this would rest on matters of opinion, but our experience previously with categories of murder suggests how unsatisfactory, indeed unworkable, a law which works on such definitions can become.

My Lords, so far my approach to this problem has been strictly pragmatic. I have sought to answer the question: how successfully would restoration of the death penalty be in combating terrorism? My own conclusion is that it would not help either to stop terrorist attacks in the short term, or to remove the causes of grievance from which those attacks claim to derive, and that it might well have the opposite effect. But there are other important considerations, for the mention of which I make no apology, which also militate against the death penalty. First, as has been said already by the noble Lord, Lord Hunt, it is irrevocable; there is the possibility of error, we might hang the wrong man; it being a human judgment in a human process which must be faced. If we take life away, we cannot bring it back. As the right honourable gentleman the Home Secretary said last night, there is thought to be considerable doubt about the guilt of at least three men hanged since the end of the last war.

Secondly, as to the nature of the death penalty, a former Governor of Pentonville Prison said this to the Royal Commission on Capital Punishment in 1953: I never can help asking myself why it is that whenever I am called upon to superintend an execution I should be affected by such an acute sense of personal shame. There must be something very wrong with a law which lowers the self-respect of those whose duty it is to carry it out. I believe society diminishes itself whenever it takes the life of a prisoner in captivity. We live in a period when there is a desperate need to restore respect for human life. I believe we need to foster a deep reverence for it. I do not believe that restoring the death penalty will increase that reverence. Accordingly, both on pragmatic grounds and on these wider grounds, I believe our society would lose, not gain, by restoring the death penalty now.

4.36 p.m.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, the House has listened with rapt attention and great interest to the two notable speeches which have so far been delivered. It is no criticism of either—because if it were it would be a criticism of almost everything I am going to put forward myself—to say that in a sense those speeches contain little which has not been said before in this context. But there are one or two things that I should like to say about this debate which may not have been said before.

My Lords, the noble Lord, Lord Hunt, began by explaining the change of Motion. Despite a certain amount of criticism yesterday, when I regret I was not in my place, I think he was wise to take the course he did. I think also that the Government were wise, if, as I understand, they counselled him to do it. In the light of the debate in the other place yesterday, and the vote that was taken last night, there is a real sense in which a vote in your Lordships' House would either be unnecessary or purely academic, because the most determined adherent of the death penalty, and the most consistent adherent of it could hardly urge the Government—and I have lived in government with this problem for some years—to impose the death sentence in the light of the opinion of either of the two Houses of Parliament if it was as decisively expressed an opinion as it was in the House of Commons last night.

Therefore, although I am going to argue, as will be seen, rather on the other side of the case to that which has been argued by the two noble Lords who have so far spoken, I must say at the outset (because I accepted this when I was a member of a Government before, and I accept it now) that in the light of the opinion expressed in the House of Commons, the immediate re-imposition of the death penalty is wholly impossible for any Government. Therefore, the points which we argue this afternoon must necessarily be in that sense, at least academic.

My Lords, all the same, I think that both because of the great public interest in the matter and because of the large number of noble Lords who have expressed a desire to speak in the debate, it is perfectly right that the House should express individual opinions upon it. Indeed, if I may say so, after very many years in this House I sometimes think that this House is at its very best when, in the course of a discussion, a large number of valuable individual expressions of opinion are given without necessarily a vote being taken at the end. But in either event, I am quite clear in my own mind that a vote would have been a mistake. The noble Lord, Lord Hunt, served the true interests of Parliament by changing the terms of his Motion accordingly.

I must say now, as I am speaking from the Front Bench, that of course I am merely expressing a personal opinion. The members of the Shadow Cabinet, the members of the Conservative Party, are not united upon this subject and they arc not ashamed of holding different opinions. It is a matter not of political principle, but for personal judgment, and of the individual conscience. And from the point of view which I have hitherto always expressed, over a period of many years now, I have always made it clear that I should regard it as an affront to the dignity of Parliament to attempt to adopt the whipping procedure on a matter of this kind. If any attempt were made by either side of the House to do so, I fancy that those who differed from their Leaders would have no hesitation in resisting the approach of the Whips.

I shall be saying something about the death penalty for murder before I sit down, because it has a certain bearing upon what the noble and learned Lord said from the Woolsack a moment ago. But I said the other day, and I wish to make it plain now, that I wholly agree with the noble Lord, Lord Hunt, that different considerations apply to the application of a death penalty to terrorism as such and to murder as such, because they are essentially different crimes, although in each case death may ensue, and of course in the case of murder it is an essential ingredient of the offence. But murder is primarily an offence against the person and right to live of individuals. The State intervenes against murder because it is its duty and its interest to protect individuals, and particularly to protect their right to live. But terrorism is primarily and essentially an offence against the State, or in the case of some international crimes of which we have now all too vivid a memory an offence against international society. It is in its nature the destruction, or the threat of destruction, of innocent lives, deliberately designed to secure changes of policy which cannot be obtained by lawful means. Therefore, the arguments which apply to the appropriate punishment for murder as such and the appropriate punishment to be applied to acts of terrorism, whether or not they result in death, are necessarily different and might well lead different people to different conclusions about both.

I want to confine myself simply to the question of principle. I do not wish to enter into questions of definition, as invited by the noble Lord, Lord Hunt, except to say that I am not altogether impressed by the difficulties expressed by the noble and learned Lord. Nor do I wish to enter into questions relating to the method of execution. I want to discuss the principle of the death penalty when applied to crimes of this kind, and I want to discuss it in the way in which one can discuss things which are not going to result in a vote. I said the other day, and I repeat today, that the arguments are more nicely balanced than the enthusiasts on both sides are apt to suppose, and I want to tell the House how they appeal to me in various forms.

May I first march into the subject of revenge. No one has so far in this debate accused those who support the principle of the death penalty of a desire for revenge, and I think it would be wholly inappropriate were they to do so. It cannot be logical, even if it were not offensive, to suggest that to sentence a man to the deprivation of liberty for 30 years or for his natural life is not an act of revenge, whereas to take his life away is an act of revenge. I think we ought to think a little about what we mean by revenge in relation to punishment; I think we want to think a little more deeply about it.

Revenge in relation to punishment is always wrong. It is always wrong because it consists in inflicting a punishment which is disproportionate to the crime. If in fact death is disproportionate to any crime which is committed, it should never be inflicted; so also in fact if a particular period of imprisonment is disproportionate to the crime. But the same considerations apply to all sentencing policy, whether what you are talking about is a fine, a custodial sentence or a corporal sentence like the sentence of death. There is, of course, a sense in which all punishment has a retributive element and that sense is this: that you cannot make a man amenable to punishment unless he has been convicted of doing something wrong. We are not parents dealing with children and subjecting them to treatment which we may think to be good for them. All punishment has a retributive element, and it is quite right that it should, because as a matter of fact the retributive element in punishment is precisely that which moderates the punishment so that in no circumstances may it exceed that which is proportionate to the offence committed. What we have therefore to consider is whether the punishment is necessarily disproportionate if it takes the form of depriving a man of life.

The other thing I should like to say, which I said the other day, by way of general introduction to the subject, is this. We can all aeree with the noble Lord, Lord Hunt, that obviously there are things in the deterrence of crime which arc much more important than the size of the punishment ultimately inflicted; the identification of the culprit, the apprehension of the culprit, the trial and conviction, are not only anterior in point of time but they are logically of greater importance to the deterrence of crime. In the absence of an effective criminal procedure, an adequate police force and a method of trial which results in the punishment of the guilty when they are proved guilty, no punishment, even if it were something like lingering with boiling oil, as the Mikado said in Gilbert and Sullivan, would really deter the criminal.

On the other hand, I think we have to think again a little more deeply than that. No punishment so far invented has ever prevented crime; it has never put an end to it, it never will. And in that sense no deterrent is ever effective. We have had various punishments for burglary ever since the common law has developed, but burglars still enter houses and steal the goods of householders. At one time we hanged them. We now send them to prison. But neither penalty proved effective in that sense. Therefore, one must expect to find, whether one reintroduces the death penalty or not, and whether one introduces it for terrorism or for something else, that a certain number of terrorist crimes will be committed and will have to be punished.

My Lords, having dealt with those two points, let me deal with two more of the points which have been stressed very heavily by the noble Lords who have spoken hitherto. One is something which I wish the public, when they call for the death penalty, would understand a little more clearly, because there is a sense in which I wholly agree with it. It is said by the noble and learned Lord and by the noble Lord, Lord Hunt, that if we were to introduce the death penalty for crimes of terrorism, one could expect some escalation in terrorism in the immediate aftermath of the reintroduction or, at any rate, of the implementation of the new law. I think that that is almost certainly true. Hostages might be taken and murdered in revenge without trial. Indiscriminate bombings might, or might not, occur. Prominent persons—including perhaps members of the Royal Family—might be threatened or actually attacked. We do not know what depths of wickedness our enemies will sink to, and one must therefore assume the worst. Therefore, it does not surprise me that senior police officers—though I rather wish that the noble and learned Lord had not identified them so clearly—should often say that they do not wish the reintroduction of the death penalty, because I fully accept, and the public must learn to accept if it wants the death penalty, that in the short run an escalation of violence might well take place, and this is one of the factors that has to be weighed.

The LORD CHANCELLOR

My Lords, as the noble and learned Lord has reproached me somewhat for identifying the senior officers, may I say that I did so because I was reading an extract from Hansard of another place last night where they had been previously identified. I obtained no intimation that they, or anyone else, objected. That is the explanation of why I took the course that I did.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, if I reproached the noble and learned Lord I now reproach the Home Secretary, or whoever it was who made the identification, and exonerate the noble and learned Lord for following the bad example of his colleague. Public servants should not be named except in very exceptional circumstances. Governments, and individuals, must take responsibility for their opinions. But for the reason I have stated, I am not surprised when I hear that there are senior police officers who have expressed that opinion, and I have no doubt that the noble and learned Lord could, if he had expatiated on the subject, have found senior Army officers who would have taken exactly the same point of view.

Lord SHACKLETON

My Lords, would the noble and learned Lord go so far as to say that a senior public servant could not himself volunteer an opinion of great concern? This was a statement that was volunteered.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, I do not want to be diverted, with 37 further speakers, into a general constitutional argument as to whether, and in what circumstances, public servants should be identified. All I have said at the moment is that I personally regret that they were in this case, and that I am not surprised that they expressed that opinion. I think that perhaps we should be wise to leave it at that.

The only comment I would make about it is that while one must accept—and I do accept—that some escalation might well succeed the reintroduction of the death penalty, one must recollect also that this implies (and it must also be accepted) that the terrorists, whoever they may be, have that escalation within their power now. We know that they are ruthless and pitiless men, and we know that if they thought that that escalation would ultimately bring about the achievement of their desires, they would, at some stage in the campaign, be likely to escalate it in that way whether or not we reintroduced the death penalty. To say in advance to them that there is a point at which our will is going to be weaker than theirs, to say in advance to them that there is a point of horror which we are not prepared to face in dealing with their terrorism, means that we are telling them in the end that by escalating beyond a point they can win the war. My Lords, I find that the answer to the criticism that is made if, instead of taking the short view, you take the longer view about the reintroduction of the death penalty.

I quite agree with the noble Lord, Lord Hunt—though not for the same reasons but for the reason I have given—that this cannot now be the moment to reintroduce the death penalty. But I believe that by yielding to that kind of argument, which has evidently weighed very heavily in another place and with the two speakers who have addressed this House up to this moment, there is a real danger that, in the battle of wills, they have already lost the war.

I want to deal with the second of the two points which they have made, the creation of martyrs, because this also is something about which I think we ought to think more deeply. I personally find it difficult to believe that a very copious, or effective, martyrology could grow up around persons who employ indiscriminate weapons inflicting the kind of casualties which one saw photographed at Aldershot, Guildford, Birmingham or Chelsea. That is a matter of opinion. I can, of course, understand that those who get shot in the course of a battle, or executed after a judicial trial following a battle consisting of a stand up fight between formed bodies of troops using precision weapons and aiming at one another, may, or may not, be held to be martyrs according to what view one takes about the merits of the cause the rival bodies were defending or protecting. The noble Lord, Lord Hunt, referred to the Easter Rebellion, and I am not going to state what I might have thought about that. But he will understand me when I say that that kind of person, indulging in full-scale military operation, is obviously very different from the kind of person who throws a bomb into a crowded public house on a busy night in Birmingham in full time of peace. I can see how the one can be made a martyr by those who respect his cause, but I do not understand quite so easily who will respect the martyrdom of the latter.

There are two further points I want to make about martyrs. First, the IRA have already lost the lives of people who are far more reputable than the bombers. They have lost them in battles with the troops. They already have the martyrs that they want, if this is what is going to be asked for and if this is what we have to fear, and they are going on getting them unless we wish to give up the battle. The second point I wish to make is that of those who have been convicted and sentenced to life imprisonment, some are being treated as heroes or heroines already without having lost their lives. Whether the possibility that, by losing their lives, they would be honoured the more is a serious consideration to weigh in the balance and is something which the House must take into account when it makes up its mind about these things.

Of course it is true, as the noble and learned Lord the Lord Chancellor said, that those who commit terrorist crimes belong to tightly knit societies with an ethic, if that is the right word, of their own. But I believe that they are not quite so impervious to reason as either noble Lord has suggested. They believe, I am sure—or at any rate a great majority of them believe—that before their sentence is served there will be a political settlement or "solution" (did the noble Lord say?) of which an amnesty will be a part, or that hostages will be taken, or perhaps a helicopter descend into the prison yard and in one way or another they will be rescued. I welcomed, of course, the Statement of the Home Secretary yesterday, that he at least would not be moved to give an amnesty to those who have been convicted of these horrible crimes. But the point is not what the Home Secretary says, but what they think subjectively. I feel myself quite convinced that a number of them do think that they will get out before they have served very long and then will be acclaimed as heroes by a victorious movement of which they are part. It is because I think that that I tend to take a view about the death penalty for terrorism that is markedly different from that of the noble Lord, Lord Hunt, or of the noble and learned Lord on the Woolsack.

My Lords, I have very largely done, but there is something I ought to say about the penalty for murder which has a direct relevance to the penalty for terrorism. I think Parliament has to face the fact that it has put a premium on murder by abolishing the death penalty for murder. It is no good pretending that it has not, because it has. Every system of criminal law enforcement depends, as the noble Lord, Lord Hunt, said, in a different connection, upon, first of all, the identification of the criminal by a credible witness; and, secondly, upon the apprehension of the criminal in order to bring him to trial and to keep him in prison.

It so happens in the course of crime—and one particularly brutal murder in Belfast is a good example—that only one human life stands between the criminal and his escape, either because he cannot be identified or because he cannot be apprehended. This is particularly true of rape and of many terrorist crimes. Only the victim sees what is going on; if there is a bystander there may be only one witness left. If the crime is such that it will attract a life sentence, or even a prolonged period of imprisonment, who can doubt that the criminal, if he he rational (and I am afraid that the terrorists are rational and capable, as has been shown, of fairly sophisticated reasoning) can easily see that the advantage lies in committing a murder, or a further murder; and by depriving the courts of the penalty of death for murders of that kind, Parliament has put a premium on killing. I believe that a number of recent murders have shown signs that there are criminals who understand that fact.

Having said that, I leave the subject except to make just these two additional points. The one argument against the death penalty which weighs with me is the argument with which the noble and learned Lord concluded his speech. The death penalty is and remains a horrible and degrading thing. There is no question about that, whatever view one takes. At the end of the day it is a terrible thing to take a helpless young man or woman (he or she is helpless and is usually young; helpless because of the power of those who have apprehended them) and in all their health and strength suddenly to plunge them into death. I remember having a word with the late Victor Gollancz, who took a different view from me about this kind of thing. At the end of his very long life, he said that this is what weighed with him. He was referring in particular to the degradation of the human body involved in the act of hanging.

My Lords, that does weigh with me, and it should weigh with every man or woman who considers this subject. But I am persuaded myself that it can be the lesser of two evils. The indiscriminate slaughter of innocent victims for political ends has got to stop. Among the various means open to us whereby to help stop it there is, I believe, nothing which can exercise a more powerful influence in the minds of potential criminals, or those who might be minded to help them, than this penalty which we did not scruple, not so very long ago, to inflict upon some of our defeated enemies, the war criminals of the last war, sometimes for crimes less serious than these.

My Lords, this debate has inevitably taken place against the background of crimes by the IRA. It is natural that it should. I am afraid f have felt that, too. Only last night, if I may end on a personal note, a member of my family, a young girl, was in the club which was bombed and mercifully remained unharmed; otherwise, instead of making this speech I should have been among the parents who were mourning their children.

But we must remember—as the noble and learned Lord pointed out, and as I think the noble Lord, Lord Hunt, and the noble Lord, Lord Janner, the other day, also reminded us—that we are living in a world in which the IRA is only one of a series of groups of terrorists. The noble Lord, Lord Hunt, pointed to the fact that Europeans, following on a century and a half of amelioration and softening of human manners, had very largely abandoned the death penalty. So they have. We are entitled to ask, I believe, my noble Lords, what is happening in Europe today? What about the massacres at the airports? What about the horrible murder of the innocent German passenger on the airstrip at Tunis? What about the hostages who have been let out after one demonstration after another in order to secure their release?

Noble Lords who have spoken have referred to the possibility of retaliation. But the possibility of blackmail is there to be seen, and people are yielding to it. Every time that blackmail is yielded to, however much we may be relieved at the escape of the innocent hostage who has been placed in jeopardy, we are thereby giving a licence and encouragement to further people to secure more innocent hostages, to deal with them in the way in which they threatened to deal with them.

I believe that when we end the day, sooner or later we have to recognise that society has the right and the duty to take human life deliberately on occasion. In our time we have fought two just wars. We recognise the right of self-defence and the right to take human life to save an innocent person by way of defence of that innocent life. In the last resort I believe that if society refuses in the end to allow this sanction to the judicial process as an ultimate resort, as the least of evils in certain irreducible cases, eventually we shall lose the values which we all desire to defend.

5.8 p.m.

Lord WIGODER

My Lords, at this moment there are two clients of mine who are in the condemned cells in one of our Colonies. They have been there now for something over two years. I have seen them there. They wear prison garb with the word "condemned" stamped upon it in large letters. As I visited them, my mind inevitably went back to the days which I had hoped had gone for ever, of the murder trials before 1957 at the Old Bailey; trials where the public gallery was crammed with onlookers; trials where the seats in the well of the court, reserved for friends of the officers of the court, were full with fashionably dressed ladies, unless the defendant was a woman in which case they were full of rows of immaculately dressed men. I remember the ceremony of the passing of sentence; the crowds waiting outside in the street for a glimpse of the prisoner as he was being driven away; the publicity in the newspapers; the endless reporting of the trial and the appeal, and the efforts to get up a petition; the serialising in the Sunday Press of the spurious memoirs alleged to have been written by the prisoner; the time when the execution came—and that can hardly have ennobled those who had to participate in it—and the notice on the prison gate, with another crowd waiting outside to read it.

It is all, perhaps, exemplified by the report of the small group of schoolchildren, young children, who were overheard one morning on the bus going to school, as the clock struck the hour, discussing animatedly among themselves just who was doing what to Ruth Ellis at that particular moment. My Lords, it is a squalid performance. It is a squalid performance from the moment of arrest to the moment of inquest; and it is a performance that is bound to be a protracted one, as the noble and learned Lord the Lord Chancellor has pointed out, with all the security risks that are attended by that. It might be possible to revise or reform some of the ritual: it will never be possible to abolish the ritual. It follows, does it not, that it is a squalid performance of the sort that debases everyone who has to take part in it and every onlooker—and that, therefore, means the whole of society—and, indeed, degrades and lowers the whole standard of our civilisation?

My Lords, having said that, may I go on to say that I do not regard that as being an overwhelming reason why in no conceivable circumstances capital punishment should be restored. I do regard it as being an overwhelming reason for being able to say that the burden rests very heavily indeed on those who now advocate its restoration to prove beyond a doubt the efficacy of the measure that they are advocating. I have listened so far with interest to hear what can be said about that, and all that can be said really is in the suggestion that in certain circumstances it might act as a deterrent. The noble and learned Lord, Lord Hailsham, suggested that it was putting a premium on murder not to have capital punishment. My Lords, I have seen many people in the dock in the days when there was capital punishment who were not deterred by its existence. I have taken part in innumerable murder trials since then, and I doubt very much whether I could say with confidence of a single one of the prisoners that, had there been capital punishment, that murder would not have been committed.

In the case of the terrorists, whom is it that we are seeking to deter? What sort of people are they? I offer the opinion with some hesitation, having seen only a little of them in some of the cases in this country, that they fall into two classes. There are those who would call themselves idealists, who are quite impervious to argument or to the logic of history or politics, quite oblivious of the claims of compassion or decency. They would be the last people to be deterred by the thought that they might go on the roll of what they regard as the long list of Irish martyrs. Then, my Lords, existing alongside them there is a group of hangers on, very often the unintelligent, lower criminal fraternity, not particularly interested in the cause that they are seeking to serve, but interested in the opportunity which it gives them to vent their spleen on society by creating havoc in a way which they regard as being a tolerably safe way because they think they can escape detection. It may be that one or two of that fringe might be deterred by the thought that they might be hanged. I doubt it, because I doubt whether they are intelligent enough to contemplate the consequences of their actions in that way. But if one or two of that fringe were deterred there are, unhappily, others who would very willingly come forward and take their places, and not least, as the noble and learned Lord the Lord Chancellor said, young teenagers who could no doubt be found to carry out those beastly jobs.

In those circumstances, I come to the view that capital punishment for terrorists is singularly unlikely to deter any of the outrages that we have seen or, regrettably, might see in the future, and, indeed, that it is only too likely to lead to an escalation of violence in which many more innocent people may be harmed. When one talks about innocent people being harmed, may I echo again the words of the noble and learned Lord the Lord Chancellor? Innocent people are sometimes found in the dock, and the chance of an innocent person being wrongly convicted is very much greater in a case where emotion is likely to outweigh reason—and it is, of course, precisely that sort of trial which is only too likely to take place where terrorists are concerned, particularly if the gallows are in the background.

That is the argument that is put forward about deterrence. There is another argument which is expressed nowadays in terms of some philosophical circumlocution. It deals in long words and phrases like "retribution" and "the abhorrence of society for a unique offence", and matters of that nature. I suspect that what people mean when they talk in those terms is no more than that many of us would feel better if terrorists were hanged. That is no doubt true: it is human nature. Many of us would no doubt feel better if terrorists were unspeakably ill-treated before they were hanged. It is not for me to seek to deride public emotion in this respect, still less to ignore it; but it is, I would suggest, for your Lordships and for Parliament to lead and to educate public opinion in this matter, rather than to follow on behind it.

My Lords, this is not an issue which is confined within the frontiers of our political Parties, but I know that I am expressing the views of the overwhelming majority of my noble friends on these Benches when I say that we would strongly oppose the restoration of capital punishment at this juncture, as being a measure which would serve no useful purpose and which might have catastrophic consequences.

5.18 p.m.

The Lord Archbishop of CANTERBURY

My Lords, I must crave the indulgence of your Lordships if I leave before the conclusion of this debate because of an engagement entered into before the date of this debate was fixed, and I hope that I shall not be accused of any discourtesy to the House in being compelled to do so. No debate on this subject can take place without our minds turning to Northern Ireland, in its long drawn-out agony. I hold in my hand this afternoon a letter received only some four days ago, if that, from the Archbishop of Armagh and the Primate of All Ireland, George Simms, in which he wrote that he wanted me to know that from next Sunday …the four main Churches here", in Ireland, —Roman Catholic. Presbyterian. Methodist and Church of Ireland—are encouraging through prayer and action towards peace all who can contribute to the work of reconciliation and the finding of a solution and a breakthrough of the present conflict. We are most grateful", the Archbishop writes, for your continual support". I mention this, my Lords, because it has sometimes been said—often, I think, by those who do not know how much is going on—that the Churches have failed to take any united action in this terrible struggle. Over the signatures of the four leaders of the four main Churches, Roman Catholic and non-Roman Catholic, there is being sent out this week a letter addressed to all the clergy in all their Churches, and I would beg leave to read two brief paragraphs from that letter, because it seems to me to have about it an urgency in co-operation to which wide publicity should be given.

These four leaders write: As we approach this Christmas season, when we celebrate again the coming of the Prince of Peace, we believe another special effort should be made in all our Churches and by all our people to seek a cessation of the violence in our land, in the hope that this may be the first step on the way to better days. We aim to begin something this Christmas season which may yet last when Christmas is gone. Then, after a paragraph with which I will not delay your Lordships, the letter goes on: We hope that this campaign may be launched publicly through the news media in the week preceding Sunday, December 15th; and that it will be supported by many outside our ranks. This advance notice is sent to you so that, despite the many other commitments you may have, you may make a special place for this united effort. I am sure that when I reply to the Primate of All Ireland I may tell him that the thoughts and sympathy of all Members of this House are with him and with his fellow religious leaders in this great united effort.

Nine years ago, in 1965, I spoke in the debate in this House on a very similar matter and I pleaded for the abolition of the death penalty. Since then I have often found myself forced to ponder this matter again and to do so with deep anxiety. What thinking man or woman among us has not done so? Conditions have changed very greatly during these last nine years. Violence has taken new forms; the situation in Ireland so far from mending has worsened, as I saw it when I visited Northern Ireland a couple of years or so ago and as I shall see it when I visit it in a few months' time. Terrorism has increased, people travelling on their lawful occasions find themselves open to hijacking, and the forces of law and order in this country and far beyond its bounds are increasingly threatened.

My Lords, some have argued, and some indeed are still found arguing, that these are reasons for a return to the exercise of capital punishment, at least in certain circumstances; and although I frankly admit that I have been at times tempted to go back on my former convictions, I can only say that after debating it with myself I find myself unable to give my assent to these arguments. I believe that it is certainly difficult, and probably impossible, to prove from figures that the absence of capital punishment is itself a significant feature in the rise which we have all seen of criminal activity. There are, I believe, too many contingent factors to be considered to allow very much force to that argument. It is perhaps natural that recent incidents of an appalling kind should lead in the case of many people to an upsurge of revenge; but I believe that this is no argument by which a civilised State should be guided. The satisfaction of human wrath by the taking of human lives is an unworthy method of procedure. Panic should not be allowed to move rational men; and all too easily revenge can prove counter-productive.

I had wondered as I debated this matter whether there was anything to be said for the restoration of capital punishment for certain categories of crime and not for others; for example, for those who kill police or prison warders. I cannot believe that this would work. The selective application of the death penalty to any particular category of murder would, I believe, only produce anomalies, as the last Royal Commission on Punishment (the Gowers Commission of 1949/53) demonstrated. The death penalty must either be applied, subject to the prerogative of mercy, to all murderers or to none.

My Lords, I receive from time to time a trickle, which I have no doubt under provocation might rise to something like a stream, of letters from people who ask me to plead for the restoration of capital punishment on grounds which they would argue find their bases in Holy Scripture—although I note that generally they quote from the Old Testament. "An eye for an eye, a tooth for a tooth" is sometimes quoted; although those who quote that passage fail to realise what I believe is the case, that this was not primarily a vengeful law but rather a restrictive law, restrictive on vengeance itself; that if somebody plucks out your eye, please do not pluck out both of his. More often the writers say, "He who sheds men's blood, by men shall his blood be shed."

But I am forced to point out to them that there are many Old Testament laws which fail to operate in British society today, and which even the writers of those letters might themselves perhaps sometimes refrain from seeking application. Let me quote but one: If a man be found lying with a woman married to a husband then they shall both of them die, both the man who lay with the woman and the woman. If we brought that law to bear in British society today we should find ourselves in a sorry state. Rather, I find myself moved by the argument of St. Paul who maintained that vengeance belonged to God—and we are often very well to leave it in that quarter—and it is for Him to repay.

My Lords, I venture to repeat what I said in the debate of 1965; that there comes a point—and I believe it is the point whence there is no return, the point of the death penalty—where weak and fallible human beings, as we all are, must say, "Hands off! This is the sphere where we mortals give place to the divine wrath." Let there be punishment of the most severe kind for those who murder defenceless women and children, or who hold to ransom those whose way of life or thought they happen to oppose. But leave the final judgment of death, so terribly irrevocable by its very nature and so degrading to those who have to carry it out, in Hands where the final judgment rests and, indeed, where forgiveness can alone be found.

My Lords, I fully realise that this may mean, and does indeed mean, the detention of some persons for the remainder of their lives. I am not blind to what that means to human personality. This raises for the future problems of the greatest gravity as to the nature of their detention and as to the effect of it on the persons concerned and on their relatives. But better this than a return to a system of capital punishment rejected in this House nine years ago; something, I believe, which is contrary to the minds and convictions of an increasing number of civilised men and women. None of us in a debate like this can lightly decide on one side or the other. The issues are too grave and they touch mind and conscience too deeply. I can only record my conviction—one held by the noble Lord, Lord Hunt, who moved the Motion, and one which. I trust, I share with the great majority of the Members of this House—that nothing will b.-2 gained and much may well be lost if we take what I believe to be the retrograde step of reintroducing capital punishment as a means of combating terrorism.

5.31 p.m.

Baroness WOOTTON of ABINGER

My Lords, I, too, must open with an apology because, owing to the complications of rural transport, I cannot stay to the end of the debate. After hearing the speeches of the noble Lord, Lord Hunt, the noble and learned Lord who sits on the Woolsack and the noble Lord, Lord Wigoder, I wonder how I have the arrogance to attempt to gild such a distinguished sheaf of lilies. I venture to do so only because it fell to my lot some 10 years ago to introduce the Bill which finally—as we thought—abolished capital punishment in this country. Some Cassandra-like quality in myself caused me after that debate not to destroy the file of literature that I had compiled, but to hold it against some future date when it might be called for again. I like to think that most of that file has become totally irrelevant because we are now discussing the return of capital punishment in a very much more restricted context.

My Lords, I also listened with fascination to the speech of the noble and learned Lord, Lord Hailsham of Saint Marylebone, and I formed the conclusion that, in common with a number of other members of his profession, he spent so much of the early part of his speech in conceding various merits in the case of his opponents that it was only in the last few minutes that he turned the force of his eloquence to propounding his own case. I was therefore left relatively unshaken by what he said.

My Lords, I hope that much of what has been said over and over again in this House on the question of capital punishment in general need not be repeated. The absolutists on both sides are beyond conversion: there are those who believe that people who take the lives of others are morally required to forfeit their own and there are those who believe that judicial execution is in all circumstances a violation of morality. I know that those positions are held by various Members of your Lordships' House: repeating them will not cause anyone to change his or her view and I therefore hope that they will not be repeated.

My Lords, I wish to be pragmatic. We cannot use the experience of the empirical evidence which played so large a part in our former discussions. We cannot build upon the experience of countries which, either have or do not have the death penalty, or of adjacent States in the United States which either use or do not use it, or of countries which, like New Zealand, have had, then abolished, then returned to, then again abolished the death penalty. They were dealing with a totally different problem from the problem of a penalty confined to terrorism. We have to look elsewhere—as the noble and learned Lord who sits on the Woolsack suggested—to other parts of the world and to very limited experience to see to what extent the death penalty is a deterrent to terrorism.

We have instead to think in terms of psychology, the psychology of those who commit these horrible outrages. As has been pointed out, most—indeed we might say all—of them are fanatics, psychopaths or persons who are acting under duress. For the last named, we can have only something like compassion. Psychopaths, are, by definition, people who are quite incapable of visualising the consequences of their actions to themselves. Fanatics are notorious for their contempt of death.

The fanatics in this case know that they are engaging in hazardous occupations. They are dealing with dangerous materials and occasionally something goes wrong and they blow themselves up. Then they gain a martyr's funeral. Some of them, as we have seen, are even prepared to starve themselves to death, at which point they get an even more jewelled martyr's crown If we add judicial execution to the risks they run, we shall only be offering them a road—and a highly publicised road—to a yet higher rank in martyrdom. We must also remember that many of these people honestly believe that they are in a state of war with this country and they know that in the present age no country which is at war is particularly squeamish about the lives of civilians, though it is very difficult to see what military objective can be attained by the horrible outrages of which these people are guilty.

My Lords, I think that that is the core of the matter: we have to get inside the psychology of the persons who are committing these outrages. In our general debate on capital punishment, some of your Lordships seemed able to make the imaginative effort required to know how one would feel if one were about to rob a bank and to know whether, if it came to the risk of being caught, one might say, "If I shoot now, I am less likely to be caught and I will not receive a more severe penalty." That argument was used in favour of retaining the death penalty, but I think that the psychological condition of these people is beyond the imagination of any of your Lordships. We cannot therefore argue even from introspection. What we have to realise is that many of them are not only psychopaths and fanatics but that many are also young. If we take their lives away, we take away from them the opportunity for later wisdom and repentance. I have known young men who have committed the most horrible crimes, including murder, early in life, and who later lived, either as the result of a reprieve or of having taken this action in a country where there was no death penalty, to a very real and profound repentance; they have tried to return to society some compensation for their crime.

My Lords, there are also the practical difficulties mentioned by the noble and learned Lord who sits on the Woolsack and the noble and learned Lord, Lord Hailsham of Saint Marylebone. I was rather struck by the fact that two such distinguished lawyers made no attempt to explain how the distinctions between capital murder for terrorism and non-capital murder for other crimes would be defined. The noble and learned Lord on the Woolsack said that he would leave the matter and he suggested that it was somewhat difficult, and the noble and learned Lord, Lord Hailsham, simply bypassed it—he said it existed but that this was not the moment to discuss it.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, I also said that I did not agree that it was quite so difficult as the noble and learned Lord, the Lord Chancellor thought.

Baroness WOOTTON of ABINGER

My Lords, that is indeed true, but no evidence was given in support of the proposition. When we come to the practical difficulties we have to ask, when is a terrorist not a terrorist? Will it be necessary to belong to some recognised organisation and shall we have a list of such organisations? Will it be necessary to have planted, carried or prepared the bomb'? How far back does the chain go? In this connection, I wish to refer to the fact—though I make no comment because the matter is sub judice—that six people have been charged with murder in connection with the Guildford bombings. When is a terrorist not a terrorist? When we come, not to bombs, but to individual murders, we have had cases where murders have been attempted—though not, I think, in this country, successfully committed—purely on racial grounds. Is that a terrorist murder? Or is it like a murder committed by a man because he could not stand his neighbour's face or because there had been a general quarrel about some trivial difficulty such as a boundary fence? All these questions would have to be resolved.

Then I come to the question of mistakes, which were mentioned by the noble and learned Lord on the Woolsack. I think it is terrible that in the present climate we should run the risk of making our mistakes irreversible. Not only have we suspicions of mistakes made about certain people who have suffered the death penalty for murder, but in one or two cases we have actually acknowledged it, and many of us are of the opinion that there are people now serving life sentences who are innocent of the crimes for which they have been convicted. But at least those matters are capable of being put right at some stage, even if they are not. However, when it come to mistakes we have to realise that although the police are extraordinarly careful (and their new powers will enable them to make still more searching investigations) they may at times bring some innocent person to court and they, too, will feel the pressure of public opinion, strongly though they will resist it. When juries come to court, there is no doubt that they will feel the public demand that someone must be caught: we must catch the criminals—and the public is perhaps not quite so particular as it should be as to whether the right ones are actually caught. For these reasons, it seems to me that the danger of making mistakes is much greater now than it would be in a more moderate climate of opinion.

Finally, I should like to refer to the fact mentioned by the noble and learned Lord the Lord Chancellor, that it was only in the summer of last year that the abolition of the death penalty in Northern Ireland was brought into line with its abolition in this country, on the ground that there should be one law on this matter for the whole of the United Kingdom. If at this juncture we reverse this process we should justly lay ourselves open to the charge that so long as only our fellow citizens in Northern Ireland were affected we were prepared to stand stoutly by our principles, but as soon as the threat came to our own doors then those principles were overthrown in a sudden upsurge of revenge and hatred. For these reasons, it seems to me that on practical grounds we should be quite wrong in going back on what many of us had thought to be a final decision regarding the death penalty.

5.43 p.m.

Lord WIDGERY

My Lords, although the Motion is concerned with the death penalty for terrorism, it necessarily raises certain matters which are more familiar to us at the moment with regard to the death penalty for murder. It raises the question again of whether one can have sub-divisions of murder, so that some are capital and others not; and it also raises problems which require a great deal of consideration, of the present maxima for penalties with which very serious crimes can be met.

I am sure your Lordships will remember that it was in the Homicide Act 1957 that the first attempt was made to separate murders into capital and non-capital. It was in fact, in terms of numbers affected, the biggest step of them all towards the abolition of the death penalty, because, as again your Lordships may remember, it took away from the scope of the death penalty the overwhelming majority of murders in this country. It took out most of the "hot-blooded murders"; it took out what the police call "domestic murders", where the husband stabs the wife or the wife stabs the husband's mistress. It took out all the murders which were committed in the course of bar-room brawls, and retained capital punishment only for a few acts of murder which were scheduled in the Act.

The Act was a failure of course, but it was a failure only because the dividing line between capital and non-capital murder was not satisfactorily drawn. What we in the courts found at a very early stage was that we would find two cases close to the line but on opposite sides, where the difference between the culpability of the two accused concerned was so trivial that no one could possibly accept that capital punishment should attach to one and yet not attach to the other. As the early 1960s went by, the judges were getting more and more frustrated over the difficulty of applying the Act of 1957, having regard to the drawing of the demarcation line. I have no doubt myself that it was largely that frustration, which was no doubt also felt by many other people as well, which caused Parliament in 1965 not to try to re-draw the 1957 Act but to move to a temporary suspension of capital punishment.

I would emphasise that it seemed to me at the time, and still seems to me now, that no real effort was made to give the 1957 Act a second lease of life. It may have been that public opinion was running against capital punishment at that time, and that nobody was really interested in trying to redraft an already unpopular Act. But it was not redrafted and it seems to have been allowed to die a natural death. However, I would seek to make the point that there is nothing in the history of that Act to suggest that the separation of murder into capital and non-capital should be regarded as impossible or impracticable. It will not be altogether easy, and in view of the strictures passed upon the noble and learned Lord who sits on the Woolsack and the noble and learned Lord, Lord Hailsham of Saint Marylebone, in their failure to define the precise category of offence which is involved in terrorism, I ought, I suspect, to make some attempt myself.

It would probably be necessary, in defining such a conception as terrorism, to have some regard not only to the intent and the identity of the doer of the offence but also to the nature of the weapon used. You see, my Lords, if one is content to approach it by saying something like, "Terrorists use bombs: therefore killing by bombs is terrorism", that is a very elementary way and is wholly unsatisfactory for the Parliamentary draftsman. But I have little doubt that by some such route it could be made perfectly clear into what general sphere Parliament thinks it proper to extend the death penalty on this account. There seems to be no insuperable difficulty in drafting, once the conception is clear and once those instructing the draftsman really know what they want him to do. I should have thought it was fairly obvious that, at all events at this stage, we should not be contemplating the death penalty except for murder. It should be a sine qua non that the offence is murder, and murder complicated by the element of political pressures, or whatever may be decided to amount to terrorism for present purposes.

Baroness WOOTTON of ABINGER

My Lords, may I ask the noble and learned Lord whether he would add something about individual assassinations?

Lord WIDGERY

My Lords, I am not quite sure about individual assassinations. If they are murder, then of course they come into consideration as being appropriate for the death penalty under this discussion. The point I am making is that there has been some speculation in the course of this debate as to whether the death penalty, if it is introduced for terrorism, should be confined to murder or should extend to other activities of the nature of terrorist activities, even though they do not amount to deliberate killing. My response to that is to say that I find it very difficult to imagine that capital punishment will be restored for any offence other than murder, and the proposition before your Lordships is that it might be restored for murder with terrorist or political overtones of the kind to which reference has been made.

Referring to the deterrent effect of capital punishment, I would wish to follow the excellent example already shown of not attempting to go over a great deal of old ground. Like the noble Lord, Lord Hunt, I recognise—and, indeed, am delighted that he recognises—that the statistics, so far as they have been made available to us, are wholly inconclusive on this question. My firm belief that capital punishment can act as a deterrent in regard to murder, whether terrorist or otherwise, is based on the fact—and I am speaking now of selective, premeditated murders of a rather special kind—that it has seemed to me, from my experience, that there has been a marked difference since the abolition of capital punishment in the grievous nature and degree of violence which is used by certain criminals, mainly robbers, against innocent people who get in their way.

It is not very long ago, perhaps only twenty years ago, that professional criminals planning to rob a bank by violence could almost always make it a term of their bargain that firearms be left at home. The reason for that—and I think this is a general view—was that in those days if all went armed and one, in a panic, fired and killed, all would hang. The deterrent effect of those circumstances on the more responsible members of the gang (if one could so describe them) must have been enormous. Why should they offer their lives as hostages to the irresolution or quick temper of the other members of the gang? That was the reason why years ago firearms were not used in this kind of offence. Now not a Friday passes without some kind of wage snatch, bank robbery, or something of the kind; and now firearms, particularly the sawn-off shot guns, are exceedingly common. I can only believe that this really appalling change in the degree of violence used must in some way be related to the fact that the game is now worth a candle when previously it was not.

It is not restricted to the more sophisticated type of crime; the lonely garage attendant, who is attacked in the middle of the night for the money in his till, nowadays is lucky if all that happens to him is that he gets gagged and locked in a cupboard. The overwhelming probability is that he will be brutally beaten in a manner which indicates that his assailants care little whether they leave him dead or alive. That again is a development in the gravity of the violence used which I find extremely distressing and which seems to spring from a devaluation of human life on the part of those who practise these particular criminal activities. If there is a devaluation to human life in this way, it may be that the system is in some way responsible when one comes to look and see what the present alternative sentences and punishments are, and how they work in practice.

May I detain your Lordships a little longer in order to demonstrate a point that I am seeking to make. If one goes hack to my example of the bank robbery by predetermined means and careful planning, if that bank robbery is carried out and no one is hurt, then those who take part in the raid are likely to get prison sentences of about 14 or 15 years. They are likely to be detained in prison, when regard is had to good conduct and parole, for about eight or nine years. I look to the former President of the Parole Board for confirmation or denial of that fact. If there is no killing, no one seriously hurt, the nominal sentence is about 14 or 15 years, and the actual period they would expect to spend in custody is about eight or nine years.

If one supposes as the next example that someone is accidentally killed, the killing does not amount to murder but is manslaughter. The sentences passed would be little different, if at all, from those in the first instance—about 15 years. The person would be let out after about 8, 9 or 10 years. That would be the order of the day. Contrast with that the situation where murder is involved. Imagine that some spectator is shot down in cold blood by these men as they are making their getaway and that, in addition to the crime of robbery, the crime of murder has been committed. For murder the sentence is mandatory, imprisonment for life. In all probability, that murderer can expect to be released after about 12 years.

The difference between a robbery with no death and a robbery with a murder involved can be as little as four or five years. That seems to me to be an insufficient interval to give due regard to the awful consequences which this spread of violence among this type of criminal has had. It is no answer to say, "Let them be kept in prison for life". No one who has had anything to do with the custody of prisoners, their concern for them and treatment, really contemplates that a sane man can be kept in prison for the rest of his natural life. If that is the view which is to be held in the future, it certainly has not been the view in the past. For really serious, premeditated crimes—such as acts of terrorism with which we are now concerned—the only real way in which we can restore the value of human life for personal purposes is to return to capital punishment.

Lord PLATT

My Lords, before the noble and learned Lord sits down, may I ask a question about statistics? Has he any similar statistics of the increase in violent crime in other countries which have not altered the law on the death sentence?

Lord WIDGERY

No, my Lords. I have based my remarks entirely on my own observations and experience in this country.