§ 9.4 p.m
§ Mr. Hector Hughes (Aberdeen, North)
I beg to move, in page 1, line 7, to leave out "seven," and to insert "fifteen."
The object of this Amendment is to protect women, girls and children from becoming the victims of crimes of this sort, to deter, punish and give a longer opportunity for reform of those criminals who commit this crime, and to bring the penalties for this crime more into line with the penalties imposed for other crimes. I would draw attention to the fact that the penalty for the crime of murder is death, and the penalty for attempted murder is life imprisonment. The penalty for the crime of rape is life imprisonment, but the penalty for attempted rape is only two years' imprisonment, which is a great 2012 disparity. Rape, in its turpitude and in its effect on the community is second only to murder.
It is well for the Committee to remember that this is an enabling Clause. It enables a judge to impose a sentence not exceeding seven years' penal servitude for attempted rape. If we have confidence in the good sense of the judges in the High Court, as I am sure we have, there is no reason why they should not be given adequate powers to deal with sentences of this kind. If the judges go wrong, there is always the Court of Criminal Appeal to set them right, but the law reports show that the judges very seldom go wrong in matters of this kind. In my submission, the judges should have adequate power to apply their experience and common sense to the question of what the penalty should be for this crime, which is a shocking, devastating and anti-social crime.
The Committee will, I am sure, consider the effect of this crime in relation to the offender, to the victim and to the public. As to the offender, it was no virtue on his part that made his attack only an attempt and prevented him from realising his object. He did his best, or his worst, to achieve the offence; his turpitude is just as great as if he had succeeded. His intention was evil, to commit this crime which is next in depravity to murder. It is calculated to wreck the lives of women, girls and children.
The offender may have failed to realise his object only by the superior strength of the girl he attacked, or, perhaps, because he was interrupted by others, or, because, as is so often the case, he was suffering from some physical disability. How often have we heard of cases of men suffering from disabilities of that sort who, time and again, have made victims of young girls and young children, and have not got beyond the attempt stage. In my submission, such a man should be punished almost as severely as if he had realised his object. He should be given a period of time of sufficiently long duration to enable adequate curative treatment to be applied, and to give him a chance of recovery from his predilections for that kind of crime.
§ Colonel Dower (Penrith and Cockermouth)
Will the hon. and learned 2013 Member give an indication of what the curative treatment should be?
§ Mr. Hughes
I have dealt with the offence, and if the hon. and gallant Member resents my observations with regard to the offence, I cannot help it.
§ Mr. Hughes
Let me say a word about the victim. The victim may be, and is too often, a child of tender years, who, when going to school or at play, was enticed by sweets or a promise of a ride in a motor car, taken away and made the victim of an attack of this kind. It may be a young girl—the papers are full of such cases—or it may be a young wife whose domesticity and family circle are wrecked by this kind of attack. From the point of view of the community, attacks of this kind create insecurity and render unsafe the lives of women and children. By passing this Amendment, the Committee will express confidence in the good sense of the judges of the High Court. They will extend the powers of the judges to do good. They will punish the evildoer and extend his period of curative treatment. They will protect the women and girls of the country and bring security to the community from crimes of this sort—security which is very badly required.
§ 9.15 p.m.
§ The Under-Secretary of State for the Home Department (Mr. Younger)
In the Second Reading Debate on this Bill, there appeared to be substantial agreement with the course proposed to be taken under this Clause. Anybody who has any experience of the criminal courts knows that the penalty which may be inflicted in any case for a particular offence may vary enormously. They will also know that what is considered to be a working maximum for any particular type of offence is a matter of convention from one period to another.
My hon. and learned Friend the Member for North Aberdeen (Mr. Hector Hughes) spoke of bringing the penalty for this offence into line with other penalties. If one looks through the whole criminal calendar, one can find a number of offences for which the maximum penalty is 14 years or even more. I might say that they are a very odd lot. The maximum penalty which may be imposed for a particular offence is determined not so 2014 much by logic let alone by the practice of the courts in this particular age, as by history. There are offences connected with embezzlement, the forgery of the registry of births, exporting counterfeit coins, offences connected with arson and other offences which have no connecting thread running through them, which are punishable by 14 years' imprisonment. There are others which appear to us to be more serious and which carry lesser maximum penalties. I do not think very much could be gained by fixing the maximum by relation to other crimes in the calendar unless they were fairly closely related to the type of offence that one is considering.
On the Second Reading, I referred to one such case, namely, assault with intent to commit robbery, when the penalty is five years, though it can be greater in the case of aggravated assault or assault while armed. It was my impression that the House was in substantial agreement with the present maximum penalty of two years. [An HON. MEMBER: "No."] My hon. Friend says, "No," but perhaps he was not here during the Second Reading Debate. What was expressed by all hon. Members who spoke in the Debate was that there was a case for raising the existing two years. No one suggested that seven years was inadequate, and I should have thought those who know the practice of the courts at the present time would agree that for the worst type of offence, seven years is certainly not excessive, and there were few if any cases where a modern judge wished to impose a more severe penalty. I submit that seven years, which is the figure mentioned in the Clause, is approximately the right maximum and this Amendment should be rejected.
§ Amendment negatived.
§ Motion made, and Question proposed, "That the Clause stand part of the Bill."
§ Mr. Hector Hughes
On a point of Order, Sir Robert; are you not going to call my second Amendment, in page 1, line 9, at end, to add,(2) Every person convicted of attempted rape may be ordered as part of the penalty on such conviction to pay to the person against whom the offence was committed such compensation as the court shall see fit.(3) The order for payment of any such compensation shall be made out and delivered by the proper officer of the court to the person entitled to receive the same or to some one2015on her behalf to be named in such order by the director of the court and every such order shall be executed by the sheriff of the place where such convicted person or his estate shall be.(4) In the event of a person so convicted as aforesaid being unable or unwilling or in the event of the estate of a person so convicted being, after his death, insufficient to pay such compensation the said compensation shall be payable out of moneys provided by Parliament.I quite realise that there may be an objection to the second paragraph of my Amendment, but, in my respectful submission the first paragraph is of exceptional interest, and I ask that it be considered.
§ The Deputy-Chairman (Sir Robert Young)
The first part of the Amendment is outside the scope of the Bill, and the second part is not covered by the Money Resolution.
§ Mr. Boyd-Carpenter (Kingston upon Thames)
Before the Committee passes from the Clause it is right that the major point which the hon. and learned Member for North Aberdeen (Mr. Hector Hughes) had in mind on the second Amendment, which did not have the good fortune to be selected, should be put forward. That point is that it is not sufficient to lay down a purely penal provision affecting the guilty man, but that some provision—
§ The Deputy-Chairman
As the Amendment was ruled out of Order, it is beyond the scope of the Debate for it to be discussed on this Clause.
§ Mr. Boyd-Carpenter
I fully appreciate that. The Clause provides a penalty, and therefore it is surely in order to argue that the penalty is insufficient. My argument was directed to that point, that the penalty imposed was solely on the guilty man for the benefit of the State to remove his liberty and did not make any provision whatever for compensating the victim. I submit that an argument which is in Order is that some part of the penalty should be so arranged as to compensate the victim. That is a point of very great importance, not only on this Bill but throughout the whole of our criminal law, 2016 and it is right that the initiative of the hon. and learned Member for North Aberdeen should not be allowed to pass wholly unrewarded merely because he has been unfortunate in the drafting of his Amendment. I suggest that the penalty provided is inadequate.
§ Mr. Hector Hughes
May I draw your attention, Sir Robert, to the fact that in my first proposed Subsection I referred expressly—
§ The Deputy-Chairman
I have already given my Ruling on that Amendment. The question now is, "That the Clause stand part of the Bill," and remarks must be confined to the Clause as it is now.
§ Clause ordered to stand part of the Bill.
§ Clause 2 ordered to stand part of the Bill.
§ Bill reported, without Amendment.
§ Motion made, and Question proposed, "That the Bill be now read the Third time."
§ 9.24 p.m.
§ Mr. Benson (Chesterfield)
We cannot allow this Bill to go through practically without Debate. On the Second Reading the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) stated quite correctly that this Bill was in entire contradiction to the trend of our penal development over the last half century. When we get a Bill which reverses a tendency, it requires very careful examination.
I was unfortunately unable to be present on Second Reading, but I have read the case put up for the Bill by the Under-Secretary and I find it extremely unconvincing. He made two points. One was a statistical point and the other was an appeal to so-called authorities. Let us take his statistical point to begin with. The number of convictions for rape and attempted rape before the war was somewhere about 40 per annum. In the case of rape, as in the case of a very large number of crimes of violence, there was a sharp increase just after the war ceased.
2017 In 1945 the number of convictions amounted to 100, but in 1946 they had dropped to 65. Quite obviously this was a temporary peak and the peak is already past. I ask the Under-Secretary whether he can point to any other crime of violence where the figures have dropped by 35 per cent. since 1945. There is certainly no case whatever for what is little more than panic legislation on the figures he produced. We have an almost identical example of panic legislation in the case of the Garrotting Act which was passed after garrotting had passed its peak and which has, as statistics show, been entirely unnecessary and ineffective.
With regard to his appeal to authority he said that the judges required this, and the hon. Member for Huntingdon (Mr. Renton) backed him up in the suggestion that the judges were excellent authorities on this matter. Since when have the judges had anything to say about penalties that is of any value—
§ Mr. David Renton (Huntingdon)
On a point of Order. Is it in Order for the hon. Member to attack the judges at large in the harsh terms in which he is doing, when the judges are unable to come to this House and defend themselves against any attacks made?
§ Mr. Benson
Further to that point of Order. If it is permissible for the Under-Secretary and for the hon. Member for Huntingdon to quote the opinion of the judges in favour, surely I can impugn that judgment?
§ Mr. Deputy-Speaker (Sir Robert Young)
I am afraid both hon. Members are out of Order on this matter. On the Third Reading of a Bill hon. Members are confined to speaking on what is in the Bill, and the only question is the seven years which is put into this Bill.
§ Mr. Benson
I am proposing to attack the seven years. The argument put forward on Second Reading was that the seven years was necessary because the judges thought so. I deny that seven years is necessary, and I deny that the opinion of the judges, which has invariably been wrong on penal matters, is evidence in favour of the seven years. [An HON. MEMBER: "That is only an opinion."] I am entitled to my opinion. If hon. Members will look at the opinion of the judges from the time when they 2018 opposed the abolition of the death penalty for theft of five shillings down to the time when they gave evidence that flogging was a valuable deterrent only a few years ago—[An HON. MEMBER: "Five shillings?"] Five shillings stolen from a dwelling house. However, I will not argue any further on the question of the opinion of the judges, because they have proved to be so wrong.
What is the purpose behind this increase, and what do the Government hope it will achieve? It is not a question of what the judges or anybody else think as to the necessity for it. There are two alternative possibilities as to the purpose of the seven years. It may be a desire purely to increase retributive punishment, or it may be based on the idea that the increase will result in a more effective deterrence. Retributive punishment, the House will remember, is only a polite name for pure vengeance. These two purposes—and judging by the speech of the Under-Secretary both are apparently in his mind—are entirely different purposes; there is no connection between the two. Unfortunately, retributive punishment and deterrence have been, through the whole of our criminal history, inextricably confused in the public mind, and in the mind of Parliament. This confusion has bedevilled our penal system for the last 150 years. It would not be so serious from the point of view of society if retributive punishment had not very seriously interfered with the efficacy of deterrence. I need only point to the severity of our penal system in the 19th century, and to the Report of the Gladstone Committee that it had the effect of turning the casual offender into the habitual criminal. That was the result of the urge to incorporate into our penal system this retributive punishment.
There is only one rational reason for a penal system. That is that it shall protect society, and to protect society there must obviously be sanction. The aim of a penal system ought to be to adjust the sanctions in such a way that they reduce any infraction of the law to a minimum. Does this Bill help in that? How far is it likely to increase the deterrent effect of the penalty, or how far is it purely retributive? Any punishment which goes beyond mere deterrence, any punishment which goes beyond the minimum sanction requisite to reduce crime 2019 to a minimum, is obviously purely retributive.
How far is the Bill a deterrent? How far is it likely to reduce the incidence of rape, or attempted rape? What is the mechanism of deterrence, and how does deterrence operate? So far as I can understand it, a deterrent operates in this way. If a man has an intention of committing an offence, he refrains from committing it for fear of the penalty he will incur, but that operates on the intention of the would-be delinquent, and prevents him carrying out his intention. I suggest that no one yet in the history of this country has ever started out with the intention of committing an attempted rape. He starts out with the intention of committing rape, and the penalty for rape is imprisonment for life. If he commits attempted rape he is—I am not attacking hon. Members opposite.
§ Lieut.-Commander Gurney Braithwaite (Holderness)
Why does the hon. Member for Chesterfield (Mr. Benson) point with such vigour?
§ Mr. Benson
There was no implied guilt. Perhaps I was more vigorous because this is a matter on which I feel very deeply. I think the House will understand my point that no one starts out with the intention of committing attempted rape. Whoever commits attempted rape, starts out with the intention of committing an offence for which the penalty is imprisonment for life. If by chance or accident he fails to accomplish his intentions, the result is attempted rape, and he is not likely to be deterred by a minor sentence of seven years, when he has already risked the major sentence of imprisonment for life.
Quite obviously this increase of penalty from two years to seven years can have no effect on the intentions of the people who are ultimately found guilty of the offence. If it can have no effect upon their intentions it is quite obviously not likely to have any deterrent effect. In other words, so far as the effect of the Bill is concerned, it is purely retributive punishment and not a deterrent at all. I suggest that in a rational penal code there is no room for retributive punishment. If one examines what retributive punishment means it becomes quite obviously an impossibility. Retribution 2020 has no meaning whatever unless the retribution equates with the wickedness of the offender. If it exceeds that, it is no longer retribution, it is pure vengeance; and how can we assess wickedness? How can we measure the wickedness of a man? We can measure his offence, but wickedness inheres to the individual and not to the offence. Therefore, because we cannot measure wickedness there is no criterion by which we can measure the amount of retribution, so our retribution fails as being something entirely irrational. There is one measure that can be applied to retribution. An attempt at retribution is not an assessment of the wickedness of the offender; it is merely a measure of the horror or disgust which is felt of the offender or of the offence. It is an emotional approach, not a rational one.
§ Colonel Dower
Might I suggest to the hon. Gentleman, who I recognise is speaking with earnestness, that surely all his arguments would apply equally to attempted murder? Surely he would not suggest that there should be no retribution in that case?
§ Mr. Benson
Certainly. I am opposed to retribution in any shape or form. Retribution cannot be measured, and that is why there is so much wisdom in the phrase:Vengeance is mine … saith the Lordbecause there is no one else capable of measuring vengeance.
§ Lieut.-Colonel Hamilton (Sudbury)
Is my hon. Friend implying that an attempt at any crime which fails, whether it is murder or rape, should have no punishment whatever?
§ Mr. Speaker
We are getting far from what is in order on the Third Reading of this Bill. The Third Reading is confined to what is in the Bill and is not concerned with the motives behind it or anything else. On Second Reading it has been decided that certain penalties would be imposed. Therefore, one cannot go into the various motives which may have induced those proposals.
§ Mr. Benson
With the greatest respect, I was trying to deal not with motives but with the effect of the proposals, and my contention is that instead of being a deterrent, which they cannot be in the circumstances, they must necessarily be retributive. The motives of the Home 2021 Secretary and the Under-Secretary are something which one can only surmise. One can judge what is the actual effect of the Bill, and I submit, with the greatest respect, that it is entirely in Order, on Third Reading, to consider the effect.
This Bill has the effect of introducing retribution. I quite admit that there is a grave difficulty in the point which my hon. and gallant Friend the Member for Sudbury (Lieut.-Colonel Hamilton) has raised, but that is because our whole penal system—I will not go into this point at great length—is completely shot through with all kinds of illogicalities, and the approach it has is not rational. All one can do at the present moment is to tinker with it, or, as I am trying to do, prevent it from being made worse. If this Bill were a deterrent, I would be prepared to support it, but it is not. It cannot be. It is retributive, and because retribution, as I say, has bedevilled our penal system for a century and a half, and made it ineffective as a protection for society though I may be illogical I say, at any rate, we can prevent—at least I am trying to prevent—our penal system from being made worse than it is by the introduction of a heavy penalty, which can have no effect upon the incidence of crime.
§ 9.36 p.m.
§ Mr. Paget (Northampton)
I certainly propose to divide against this Bill. I think it is an unnecessary Bill, an obscurantist Bill and an extremely dangerous Bill. My hon. Friend has pointed out the absurdity of the case which is here put forward. It is said that there are a lot of violent people about and, therefore, we must have an extra deterrent. That is the way in which it is put. There is no conceivable reason for deterring people from doing something which nobody has ever set out to do. As my hon. Friend has pointed out, nobody has ever set out to attempt to commit rape. They have set out to commit rape, and the only effect, from a deterrent point of view, which this Bill can have is to say to the man who is attempting to commit rape, "You had better go on, you had better complete what you are doing, because it will not make much odds." We are closing the gap between the completed offence and the attempted offence. Therefore, when a man has started to try he may as well go on.
2022 As far as being a deterrent is concerned, it works in precisely the opposite way. If it is not intended as a deterrent, how else can we justify this increase in the sentence? Can it be justified as reformative? Anybody who really has any idea at all about these things will not imagine that the excessive sexual enthusiasm of a man is going to be rectified by imposing upon him a long period of unnatural living. That is what a long sentence of penal servitude does. We come now to this sheer question of vengeance. This Bill is aimed at preventing the wrongful giving in to emotional urges. That is precisely what we are doing if we call for vengeance. We are doing the very thing which this Bill is aimed at preventing.
§ Mr. Speaker
I really must remind the House that we have had a Second Reading of this Bill, and now the only point, so far as I can see, is whether the law shall have the power to pass a seven-year sentence instead of the shorter penalty. That really is all that is in this Bill. The reasons for it have been settled and decided, I gather, on Second Reading. Now we are on Third Reading, which deals with what is in the Bill, and nothing else.
§ Mr. Paget
My remarks are designed to argue that we should not encourage a penalty of seven years. I have attempted to put forward reasons why seven years—the increased sentence—should not be put in the Bill. I will endeavour strictly to confine myself to that point.
I would say that another reason why we should not have that long sentence in this type of case is the really terrible difficulty which arises when one considers the question of definition. What amounts to an attempt to commit rape? It is a terribly difficult thing to define. Many girls say, "No," but there are quite a lot of those girls who would be profoundly disappointed if they were taken at their word. That is always the difficulty in this case. It is in female psychology to wish, to some extent, to be overcome by a superior male. In these cases, just how is a man to know at what point it becomes an attempt? When we have these difficulties of definition, a long sentence of penal servitude is inappropriate.
2023 This is just the type of offence where there is a really dreadful danger of miscarriage of justice. Again, I say that that is a reason why it should not have a long sentence of penal servitude. A girl and a boy are surprised together in a compromising situation. The girl, in order to provide herself with an excuse, screams. The boy runs away. Then there is a charge of attempted rape. It is often a difficult charge to meet. I was present at Nottingham at what I was convinced certainly was a dreadful miscarriage of justice, when a man was charged with this offence and, because he was married, he would not put forward the real defence, which was consent. He denied the whole thing, with the result that he was convicted in circumstances in which I know that the police were entirely convinced that he was innocent. That is the sort of danger which is run with this sort of case. It is very dangerous to have penal servitude.
I wish to make one further point which is very relevant. Another reason why it is extremely important that we should have a low limit is that on this sort of matter judges' opinions vary enormously. We get some judges who, perhaps, have not had a very large experience of the world. That happens with specialists who have been brought up in the law and who may have a "crank" view about these sexual questions. We have others who take quite a different view. The sentence which will be imposed in this sort of case is a lottery depending upon the judge before whom a man happens to appear. If we wish to limit that lottery, we should confine the sentence to a low upper limit. I have had a good deal of practice in the criminal courts. I feel that it would be a desperately dangerous thing to give some judges power to impose seven years penal servitude in these cases.
§ Mr. Speaker
The hon. and learned Member will forgive me for interrupting. He says, "some judges." Is he not making a reflection? Hon. Members must make no reflection on judges as individuals.
§ Mr. Pritt (Hammersmith, North)
On a point of Order. Is it a reflection on 2024 His Majesty's judges to express the view that some judges would give very different sentences to others? It is a view often expressed by members of the Bench that there is a very great variation between what one judge will do by way of sentence and what another will do.
§ Mr. Speaker
I gathered from the hon. and learned Member for Northampton (Mr. Paget) that he had a particular judge in mind. That is why I jumped up very quickly.
§ 9.50 p.m.
§ The Secretary of State for the Home Department (Mr. Ede)
In the whole of the consideration that has been given to this matter by my two hon. Friends who have spoken on it, they have dealt with the effect of this Measure on the offender. There are few cases in which it is more necessary to have regard to the effect on the offended, and, particularly, on the relatives of the offended. No one who has been associated with the courts, and has come out of court and mingled with relatives of women who have brought allegations of this kind and have found that the jury have supported them and then discovered that the judge or chairman of quarter sessions could give no more than two years as a penalty, will have failed to realise that these people thought that there had been an inadequate recognition by the State of the enormity of the offence that had been committed against the girl or woman to whom they were related.
It is extremely important that we should keep respect for the law not merely among offenders, but among the people who have been offended, so that they may feel that the law is something in which they can put their trust, and that its impartial administration by the courts will support the standard of morality and conduct which they think ought to be observed.
It is true that no one starts out to commit attempted rape. The victim may often 2025 have endured all the indignity, all the terror, all the bestiality that is really connected with the accomplishment of the crime, and it is not a matter of congratulation to the offender that he should have been baulked of what he intended to do. I can recall myself, as a justice at quarter sessions, when we have gone out to consider the sentence that should be imposed after a man has been found guilty of this offence by a jury, the feeling that the magistrates had that this penalty, the maximum that they could inflict, was utterly inadequate to mark the feeling that the courts ought to show with regard to this offence.
It is all very well for my hon. Friend the Member for Chesterfield (Mr. Benson) to condemn retribution in every form, but a penalty must, to some extent, be retributive. There are cases in which it can be determined, and, wherever it can be determined, it should be determined. There may be cases where the punishment should be reformative, but the aspect of retribution, particularly in this kind of case, cannot be lost sight of, and I ask my hon. Friends to realise that this present penalty, when viewed from the point of view of those who have been offended, appears to be utterly inadequate. A person may be in a court of quarter sessions and may hear a man sentenced to three or even five years' penal servitude for offences against property, and quite rightly, and then find that this particular offence comes up and a sentence of two years' imprisonment is imposed. They express their surprise at what they regard as the leniency of the court, and they are horrified and sometimes terrified to discover that the court has given the utmost penalty that it can impose.
It does not follow that if we raise the maximum limit to seven years every offender will get seven years; but it does enable gross and wicked cases of this sort to be appropriately dealt with, and, while I do not imagine that any high proportion of the offenders will get as much as seven years, there have been cases in front of me as a justice of quarter sessions where I am quite sure that justice would not have been strained had five or seven years' penal servitude been inflicted. I ask the House to give the judges the greater discretion which this Measure will give them, and not to leave them in the pitiable condition that 2026 arises on several occasions at the present time when they have to say, "I regret that the utmost I can award in this case is two years' imprisonment." I appeal very strongly to the House to enable this, in my opinion, very necessary Amendment of the criminal law to be made.
§ 9.57 p.m.
§ Mr. Pritt
I do not want to prolong the Debate, but there is one point I wish to make. The right hon. Gentleman has pointed out that the relatives of the injured or offended person in a case like this might be very shocked to learn that a comparatively small sentence, as it seems to them, has been inflicted. I can understand that, and can sympathise with it to some extent, but with a reservation about the retributive aspect of punishment. I would warn the House that juries often arrive at curious verdicts. They know a great deal more about the law than some people think. It is very common, in relation to some sentences, for the jury to say, "Well, yes, but if we find him guilty, he will get a heavy sentence. We do not think he ought to have a heavy sentence, and, if the only way to prevent him getting a heavy sentence is to acquit him, we may do that." All regular legal practitioners in criminal work know that sort of thing happens. The anxiety which afflicts the minds of the relatives of the offended person when they go away feeling that an inadequate sentence has been inflicted is as nothing to the deep and abiding sense of injustice felt by the offended person when she has gone into court and told a true story, and yet finds the prisoner acquitted as if she had not been telling the truth.
§ 9.59 p.m.
§ Mr. Quintin Hogg (Oxford)
I wish to add, in a very few words, my own reinforcement of what the Home Secretary has said to the House. I know I run the risk of being told by the hon. Member for Chesterfield (Mr. Benson) that, like the bench of judges he so strongly attacked, I am always wrong. At any rate, I can claim that I have probably prosecuted as many people for this offence as anybody in the Chamber.
§ Mr. Hogg
I cannot say that, but on occasions like this I think a certain amount of experience is possibly worth 2027 a good deal of theory. The small experience I have gathered confirms every word the Home Secretary said. The case for this Bill can be summed up in a single sentence—that there is a gross disproportion between the penalties which can be, and, rightly or wrongly are, inflicted for the full offence, and the penalties which can be, and, rightly or wrongly are, inflicted for the attempt. It is an obvious and gross anomaly that people can be, and sometimes are, sentenced to penal servitude for life for the commission of rape, but can only be sentenced to two years' imprisonment [...] the commission of attempted rape.
Last year, at Kingston, I prosecuted a man for rape; he got 15 years. The difference between the achievement of the full offence and the attempt in a crime of this nature does not depend upon the degree of guilt of the person who commits it. There are some cases where the man may leave off. In the main, the difference between the attempt and the full offence in this matter does not depend upon the degree of guilt in the person who commits the offence. On the contrary, it often depends on the degree of heroism of the person against whom the offence is committed. It is grotesque to say that because a woman attacked is more heroic in one case than another, or because she is physically stronger, the person who does in relation to her exactly the same thing as another man who gets 15 years should be limited by the law to a penalty of only two years. The thing just does not make sense. If I may say with respect to hon. Members who have spoken in the opposite sense in this House, it is their arguments which are theoretical, emotional and sentimental in this matter, and not the arguments of the Home Secretary.
§ Mr. William Wells (Walsall)
Does not that emphasise the danger of the gross disproportion between sentences of life imprisonment for rape and two years' imprisonment for attempted rape? Does not the hon. Member consider that there is an equal danger of gross disproportion between a sentence of seven years for attempted rape and two years for indecent assault?
§ Mr. Hogg
I do not think that I should be in Order to discuss that on this Bill. I must be confined to the terms of 2028 the Bill on Third Reading, and it seems to me that the purpose of the Bill is to remedy the disproportion to which I have drawn attention. Other legislation, which I should not be in Order to discuss now, might remedy other anomalies, but I am concerned with the mischief which this legislation is designed to remove, and my argument has been that where public opinion and the experience of the courts justify long sentences in connection with the full offence, it simply does not make sense arbitrarily to fix at an extremely low level the penalty for the attempted offence.
§ Mr. E. P. Smith (Ashford)
Does it not appear to the hon. Member that conceivably the penalty for the full offence may be a little too high?
§ Mr. Hogg
That may or may not be true. We must assume, unless we are going to hold an inquiry into the whole range of criminal justice, which would not be in Order on this discussion, but only in Order in discussion of the Criminal Justice Bill, elsewhere, that the general level of penalties of our criminal law at the present time is right, and, if it is wrong, the way to remedy it is not by reducing an individual penalty for an individual offence. My own difficulty, with a professional knowledge of this offence, has not been to prevent people from being emotionally angered against it, but to make them take it seriously. Those who have seen the effects of this crime realise that it is a more horrible thing than some of my hon. Friends are apt to believe. I will leave that part of my case, because I am being tempted to go outside a Third Reading speech.
I will come back to some of the arguments used on the other side. It is my conviction that the arguments on the other side have been irrational to a degree which it is scarcely possible to exaggerate. I pass over the attack which the hon. Member for Chesterfield made upon the bench of judges. I only say in answer, that if that were true it would be an argument for a Bill to alter the people who, in fact, impose the penalties in our criminal courts. He used some fancy belief in the value or otherwise of the experience of judges in assessing penalties for crimes, as an argument for saying that these men who have the practical business of sentencing prisoners all over the 2029 country for 12 months a year should not even be taken into account by this House. That argument seems to bear no relation to common sense.
The hon. Member for Chesterfield went on to support his case with an argument the main defect of which was that it proved too much. He said that nobody started off with the idea of committing an attempt, but started off with the idea of committing the full offence. Of course, that is true. But look what it proves. If it is to be taken seriously as an argument at all, it is designed to support the conclusion that no attempt ought to be punished to any degree whatsoever. But if it is once assumed—as we are bound to assume on the Third Reading of this Bill—that an attempt at a crime, and an attempt at the crime of rape in particular, merits some punishment, then it can give absolutely no assistance whatever in deciding as between seven years and some other penalty.
The last argument which was used in criticism of this Bill was used by the hon. and learned Member for Northampton (Mr. Paget), and a rather similar argument was used by the hon. and learned Member for North Hammersmith (Mr. Pritt). It was that rape, and, I assume, the attempt at it, is a case in which juries, for one reason or another, sometimes go wrong either in one direction or the other, and the hon. and learned Member for Northampton tried to persuade us to vote against this Bill by an account of one case in his own experience in which he did not agree with the verdict of a particular jury.
I utterly fail to understand the relevance of his argument. The hon. and learned Gentleman's argument appeared to be that he does not mind an innocent man's being sentenced to two years' imprisonment, but will object if the penalty is raised to seven years. If it be true—and to some extent we all know it is true—that juries are fallible, and may be more fallible in sex crimes than in others, it does not follow that where the offence is proved—and we must assume it is proved when we come to discuss the penalty—the penalty ought to be lighter because juries are sometimes wrong. Surely, we must try to assess what penalties we think proper for what is a very horrible offence.
2030 It is, of course, extremely difficult, in dealing with crimes of this kind, to preserve an objective and unemotional approach to the matter. Those who favour undue leniency are, in my opinion, at least as emotional as those who favour undue severity. I myself have tried to be as unemotional about it as I could. If there had been a Division on the Amendment to raise the penalty to 15 years, I should have voted against it as being intolerably excessive. As the case now seems to be that seven years is too much, I shall equally vote against that, and for the Third Reading of this Bill. The truth of the matter is that this is a horrible offence for which a serious penalty is appropriate and some kind of proportion has to be observed between the full offence and an attempt at it, particularly in relation to the fact that, with regard to this offence, the fact that it is an attempt is due very largely to the heroism and resistance of the person who has been attacked.
§ 10.10 p.m.
§ Mr. Donovan (Leicester, East)
We have listened to two very powerful speeches, one by the Home Secretary and one from the hon. Member for Oxford (Mr. Hogg). Each of them has stressed that we should not lose sight of the injury inflicted upon the offended person. I quite agree; and I approach consideration of this Bill from that angle, too. It is in approaching it from that very angle that I feel considerable misgiving about suddenly raising the penalty from two years to seven years with no evidence placed before this House that the offence is on the increase, but is rather on the decrease, and no evidence to show—though there are very many rumours to the contrary—that judges at the moment are even exercising their powers to the full and sending persons who commit this offence even to two years' imprisonment.
Approaching it from the practical angle that I want to see justice done to the offended, I should like to give the House my experience within the last fortnight of sitting at quarter sessions trying sexual offences. I found that, although to my mind—I feel I must have been wrong, in view of the ultimate verdicts—the evidence was cogent and conclusive, in the first case the jury found a verdict of not guilty, and in the second case they disagreed. Anyone with recent experience 2031 of sitting at quarter sessions will agree that, unless the evidence is overwhelming, there is a great reluctance on the part of juries to convict of this offence. In those circumstances when, for no visible—
§ Mr. Speaker
I am sorry to interrupt the hon. and learned Gentleman, but what point arises on this Bill on the conviction of an offence? Surely, this Bill relates to sentence after somebody has been convicted of an offence. We cannot discuss whether or not somebody has been convicted.
§ Mr. Donovan
That is perfectly true. The conclusion I want to draw takes a certain amount of introduction. If juries now, for no visible reason, suddenly find that the penalty is increased from two years to seven years, in my opinion there will be fewer convictions than there were before, and this Bill will defeat itself. For those reasons I very much hope that this matter will be further considered and the Bill amended in another place.
§ 10.13 p.m.
§ Mr. Assheton (City of London)
Most hon. Members who have had experience as magistrates or practising barristers would, I think, agree with the views expressed by the Home Secretary. I rise merely to say that I will support him in the Lobby if his hon. Friends divide the House against the Bill; and most of my hon. Friends will, too.
§ 10.14 p.m.
§ Mr. Ungoed-Thomas (Llandaff and Barry)
I, personally, will support the Government on this Bill, but I wish to dissociate myself from the approach of the Home Secretary. I would deplore regarding this as a matter in which retribution played a part. I rise only because of the illogical argument put forward by my hon. Friend the Member for Chesterfield (Mr. Benson) and my hon. and learned Friend the Member for Northampton (Mr. Paget). It was an attractively dangerous argument. The argument was that nobody sets out to commit an attempt, but only to commit the result, and that, therefore, to increase the penalty
§ for an attempt was not to act as a deterrent at all. While attractive, that argument will not bear examination, for it is two-edged. The object of the penalty is to prevent the person setting out to commit the offence of rape, and, therefore, the penalty should attach to embarking upon the criminal act—that is, attempting physically to put the criminal intention into operation. Thus, it can be argued logically against my hon. Friends that an equal penalty should attach to the achievement of the attempt as to making the attempt itself. Their argument, attractive though it is superficially, does not bear examination. I rose merely to deal with that argument, and to say that I shall support the Government in this.
§ Mr. Benson
I merely pointed out that the effect of this Bill could not be to increase the deterrent effect. I was not arguing the rights or wrongs of two years', seven years' or life imprisonment. I was merely pointing out that there could be no deterrent effect from this Bill.
§ Mr. Ungoed-Thomas
I was dealing with the point raised by the hon. Member that to impose a penalty on the attempt when the intention was to achieve the full crime, does not act as a deterrent. My answer to that is that the deterrent is intended to prevent a person embarking upon the offence. Therefore, that argument cuts both ways, and it can equally well be said that the same penalty should be applied to the full achievement as to the attempted offence.
§ Question put, "That the Bill be now read the Third time."
§ The House divided: Ayes, 196; Noes, 17.2033
|Division No. 71.||AYES.||[10.18 p.m.|
|Adams, Richard (Balham)||Ayrton Gould, Mrs B||Bechervaise, A. E|
|Agnew, Cmdr. P. G.||Bacon, Miss A.||Bennett, Sir P.|
|Allen, Scholefield (Crewe)||Baldwin, A. E||Blyton, W. R.|
|Alpass, J. H.||Balfour, A.||Boardman, H.|
|Assheton, Rt. Hon. R||Barton, C||Boles, Lt.-Col. D. C. (Walls)|
|Bossom, A. C.||Hudson, J H. (Ealing, W.)||Pursey, Cmdr. H|
|Bowden, Flg.-Offr. H. W||Hughes, Hector (Aberdeen, N.)||Ramsay, Maj. S|
|Bower, N.||Hutchinson, H L. (Rusholme)||Ranger, J.|
|Boyd-Carpenter, J. A.||Hynd, H. (Hackney, C.)||Rees-Williams, D. R|
|Braddock, Mrs. E. M. (L'pl, Exch'ge)||Hynd, J. B. (Attercliffe)||Renton, D.|
|Braithwaite, Lt.-Comdr. J. G.||Irving, W. J. (Tottenham, N.)||Ridealgh, Mrs. M|
|Brook, D. (Halifax)||Isaacs, Rt Hon. G. A||Robens, A.|
|Brooks, T. J. (Rothwell)||Janner, B.||Robertson, J. J. (Berwick)|
|Brown, George (Belper)||Jeger, G. (Winchester)||Ross, William (Kilmarnock)|
|Brown, T. J. (Ince)||Jeger, Dr. S. W. (St. Pancras, S.E.)||Royle, C.|
|Buchan-Hepburn, P. G. T.||Jones, D. T (Hartlepools)||Sargood, R.|
|Burke, W A.||Jones, P. Asterley (Hitchin)||Scollan, T.|
|Butler, H. W. (Hackney, S.)||Keenan, W.||Scott-Elliot, W|
|Chamberlain, R. A.||Kenyon, C.||Segal, Dr S.|
|Cobb, F. A.||King, E. M.||Sharp, Granville|
|Coldrick, W||Kinley, J.||Shawcross, C. N. (Widnes)|
|Collindridge, F.||Lee, F. (Hulme)||Shawcross, Rt. Hn. Sir H (St Helens)|
|Colman, Miss G. M||Legge-Bourke, Maj. E. A. H.||Simmons, C. J.|
|Comyns, Dr. L.||Levy, B. W.||Skeffington, A. M.|
|Conant, Maj. R. J. E.||Lewis, A. W. J. (Upton)||Skinnard, F. W.|
|Cooper, Wing-Comdr. G.||Lewis, T. (Southampton)||Smith, C. (Colchester)|
|Corlett, Dr J.||McAdam, W.||Snow, J. W.|
|Crosthwaite-Eyre, Col. D. E.||McCorquodale, Rt Hon. M. S.||Soskice, Sir Frank|
|Darling, Sir W. Y.||McEntee, V. La T.||Sparks, J. A.|
|Davidson, Viscountess||McGovern, J.||Stamford, W|
|Davies, Edward (Burslem)||Mackeson, Brig. H. R.||Steele, T.|
|Davies, Ernest (Enfield)||McKie, J. H. (Galloway)||Stewart, Michael (Fulham, E.)|
|Davies, Haydn (St. Pancras, S.W.)||McKinlay, A. S.||Stoddart-Scott, Col. M.|
|de Freitas, Geoffrey||McLeavy, F.||Strauss, H. G (English Universities)|
|Delargy, H. J.||Macpherson, T. (Romford)||Strauss, Rt. Hon. G (Lambeth, N)|
|Diamond, J.||Maitland, Comdr. J. W||Studholme, H. G.|
|Dower, Lt.-Col. A. V G (Penrith)||Mallalieu, J. P. W.||Sutcliffe, H.|
|Ede, Rt. Hon. J. C.||Mann, Mrs. J.||Sylvester, G. O|
|Edwards, N (Caerphilly)||Manningham-Buller, R. E||Taylor, R. J. (Morpeth)|
|Edwards, W. J. (Whitechapel)||Marshall, D. (Bodmin)||Taylor, Dr. S. (Barnet)|
|Evans, A. (Islington, W.)||Mathers, Rt. Hon. G.||Thomas, I. O. (Wrekin)|
|Evans, John (Ogmore)||Medland, H. M.||Thorneycroft, Harry (Clayton)|
|Evans, S. N. (Wednesbury)||Mellish, R. J.||Tiffany, S.|
|Farthing, W. J.||Mellor, Sir J.||Titterington, M. F.|
|Forman, J. C||Middleton, Mrs. L||Tomlinson, Rt. Hon. G|
|Gage, C.||Mitchison, G. R.||Turton, R. H.|
|Gibbins, J.||Morgan, Dr. H. B.||Ungoed-Thomas, L|
|Gibson, C. W||Morley, R.||Viant, S. P.|
|Gilzean, A.||Morrison, Maj. J. G. (Salisbury)||Walker, G H.|
|Glanville, J. E. (Consett)||Moyle, A. Murray, J. D.||Wallace, G. D. (Chislehurst)|
|Greenwood. A. W. J. (Heywood)||Neal, H. (Claycross)||Warbey, W. N|
|Grey, C. F.||Nicholls, H. R (Stratford)||West, D. G.|
|Gunter, R. J.||Noel-Baker, Capt. F. E. (Brentford)||Wheatley, Col. M. J (Dorset. E.)|
|Guy, W. H.||O'Brien, T.||Whitcley, Rt. Hon. W.|
|Hall, Rt. Hon. Glenvil||Odey, G. W.||Wilkes, L.|
|Hamilton, Liout.-Col. R.||Orbach, M.||Willey, F. T. (Sunderland)|
|Hannan, W. (Maryhill)||Orr-Ewing, I. L.||Williams, D. J. (Neath)|
|Harmon, Sir P. (Moseley)||Osborne, C.||Williams, Gerald (Tonbridge)|
|Haughton, S. G.||Paling, Rt. Hon, Wilfred (Wentworth)||Williams, W. R (Heston)|
|Henderson, Joseph (Ardwick)||Palmer, A. M. F.||Willis, E.|
|Herbison, Miss M.||Pargiter, G. A.||Wills, Mrs. E. A|
|Hobson, C. R.||Parker, J.||York, C.|
|Hogg, Hon. Q.||Pearson, A.||Younger, Hon. Kenneth|
|Holmes, H. E. (Hemsworth)||Perrins, W.||TELLERS FOR THE AYES.|
|House, G.||Porter, E. (Warrington)||Mr. Popplewell and Mr. Wilkins.|
|Hoy, J.||Proctor, W. T|
|Attewell, H. C||Mackay, R. W. G. (Hun, N.W.)||Smith, H. N. (Nottingham, S.)|
|Bing, G. H. C.||Millington, Wing-Comdr. E. R.||Thomas, D. E (Aberdare)|
|Foot, M. M.||Nally, W.||Yates, V F|
|Kinghorn. Sqn -Ldr. E.||Paget, R. T.|
|Lever, N. H.||Pritt, D. N.||[...]LLERS FOR THE AYES:|
|Lewis, J (Bolton)||Silverman, J. (Erdington)||Mr. Benson and|
|Longden, F.||Smith, E. P. (Ashford)||Mr. William Wells.|
Question put, and agreed to.
§ Bill accordingly read the Third time, and passed.