§ 2.28 p.m.
§ Debate resumed (according to Order) on the Motion for Second Reading, moved yesterday by the Lord Chancellor.
§ VISCOUNT TEMPLEWOOD
My Lords, the noble and learned Viscount, the Lord Chancellor, and my noble and learned friend, Lord Simon, yesterday made certain flattering remarks about the part I may or may not have taken in the production of this Bill. Being very human, I like praise, even when it is undeserved; but in this case it is so flagrantly undeserved that I have at the outset to make a definite disclaimer. The Bill of 1938 and the Bill of 1948 are not the work of any individual Home Secretary. They are not the work of any individual Government. They are the result of almost half a century of experience in the field of penal reform and of experiments and actual work in the prisons and in the courts by men and women who have been faced with these problems at first hand. If any praise be due for the provisions of this Bill, it is to those many men and women, social workers, expert inquirers, several of whom are members of this House, who have made it possible to gather together in sixty or seventy clauses the experiences or this half century of practical experiment and practical social work
When I look on the results of this fifty years' experience, I deduce from them one or two definite lessons. I deduce from them, first of all, the fact which is becoming more and more apparent and to which the noble and learned Viscount the Lord Chancellor alluded yesterday of 467 the complexity of penal questions. Penal questions cannot be dealt with in any rough and ready way. Experience shows that no single sentiment or element, such as fear, particularly fear of savage punishments, has proved in the past to be an effective deterrent. The merit of this Bill is that it gathers together these experiences and attempts to make a new approach to penal questions upon a much wider front.
For instance, it sets aside several of the old rough and ready methods which in some cases have been proved to be ineffective and in other cases have been proved to be actually harmful. Perhaps the most conspicuous case is that of short terms of imprisonment for young offenders. The Bill abolishes another of these rough and ready methods, the method of judicial whipping. It proposes the abolition of judicial whipping, not upon any sentimental grounds, but upon such evidence as is available that it is not a necessary deterrent, and that in Scotland, where it is not used for crimes of robbery with violence, those particular crimes of violence are less common than they are in England. The Bill further proposes a development on the lines of greater facilities for medical inspection and treatment, once again on the basis that penal questions have to be dealt with individually and that one cannot generalise as if dealing with a common herd.
This penal experience has in recent years been confirmed in what seems to me a very unexpected direction. I refer to the experiences of the Fighting Services during the war. In former wars Service delinquency was treated in a very rough and ready way. Severe penalties were enacted, and cases were not specially distinguished one from another. In the last war a different method was adopted—namely, that of taking cases individually, of careful investigation into them, and of applying the particular methods that were most suitable to reclaiming the particular delinquent or deserter. These practices were adopted for no sentimental reasons. They were adopted, so my Service friends tell me, for the purpose of making as effective use as possible of the man-power available in the three Services. Sir Ronald Adam, the Adjutant-General for a substantial 468 period during the war years (I think your Lordships will agree that it is worth my quoting his words, for they bear so directly on the spirit that I believe underlies the main provisions of this Bill) said this at the end of the war:We had continual cases in which the commanding officer sent up for court martial young men of seventeen or eighteen who were said to be quite hopeless; they would never be any good; they were just going from one trouble to another. We said: 'For goodness sake do not court martial them. Send them to us for training.' And we set up three training units, with picked officers and N.C.O.'s. The C.O. got hold of the young man's father and mother and best girl, and got them on the young man's side. The young man was not frightened of the C.O. He had the right to go to him at any time of the day without acquainting the sergeant-major or anybody else. We tried to make the training interesting and exciting, and the result was that almost 80 per cent. of those so-called helpless young men became satisfactory soldiers, and a great many of them became N.C.O.'s. This was one of the most successful things that we did during the war.Could there be a better example of the success of concentrating on the individual offender and of using the best methods of reclamation for restoring his self-respect?
This Bill tries to achieve these objects by abolishing, or greatly restricting, the old rough and ready methods of treating criminals in herds. It assumes, in fact, that no criminal is irreclaimable, and that the best protection for the community is to reclaim him by wise methods of treatment. I hope I have said enough to show that the Bill, so far from being the result of superficial sentiment or wishful thinking, is the result of hard, practical experience, and of hard practical experience that has not only been established in the field of penal treatment, but in the actual experience of the three Fighting Services during the war.
I would gladly have ended my speech at this point; I would gladly have restricted it to these fundamental principles of the Bill, in my view so very important in the history of our penal methods. But I fear that, in view of the interest that has been concentrated on the single question of the death penalty, and the speeches that were delivered upon it yesterday, it is inevitable that one who, like myself, differs in his view from a great many of his noble friends, should express his view, particularly when it runs counter to so many of the observations and arguments delivered yesterday. And 469 so, if your Lordships will bear with me, I will say something about the death penalty, and I will try as best I can to reserve the details of my argument on Clause 1 until we come to the Committee stage.
Let me first say this. Let us set aside from our minds any idea that this is a controversy between sentiment on the one side and legalism on the other; that those of us, for instance, who hold the views that I hold are sentimentalists and do not think of the victims of these horrible crimes, but are thinking only of making the way easy for the lives of despicable criminals. I hope that those who know me will not be tempted into thinking that I am a fanatical sentimentalist. Equally, I do not take the view that many noble Lords who do not agree with me are hardhearted reactionaries. For instance, there is my old friend Lord Oaksey, who so much impressed the House last night with the speech he made on the opposite side to me. There is no man, I am sure, more humane than he, no man less open to the charge of being an antiquated reactionary. Let us, therefore, approach this question upon its merits, as dispassionately as we can, and so far as is possible give up appeals to sentiment on either side.
Having said that, let me make another preliminary observation. I cannot help expressing my own regret that the Government have adopted on this question the procedure they have adopted. I feel that it has stirred up the maximum of excitement; that it has left both Houses in an atmosphere of doubt and obscurity, and that it runs the risk of creating a clash between the two Houses. I always took the view that the wise course for dealing with so grave a question as the death penalty would have been to introduce a separate Bill on the matter. I venture to suggest that, if that were impossible, it was a mistake to leave the discussion of the question until the eleventh hour of the debates in another place; that it would have been much better to have had a Committee discussion some weeks ago, enabling public opinion to concentrate upon the question and not to be faced with what was, to many people, a sudden issue at the last moment. The result has been that many people find themselves in a considerable difficulty. I could not help thinking yes- 470 terday that many noble Lords must find themselves in some difficulty after the Lord Chancellor's speech. There was the Lord Chancellor, head of the Judiciary, obviously opposed to the experiment, and yet recommending to the House that we should make it. That confirms my view that it would have been much wiser to adopt a different procedure. As it is, however, this procedure has been adopted, and we shall be faced on the Committee stage at the beginning of June with a definite issue upon Clause 1.
When we reach Clause 1, let us have the fullest possible debate. I should like to see the question discussed in detail from every angle. This is perhaps the one place in the world where such a discussion can take place. I would hope, also, that between now and the Committee stage the Government will do what I think they ought to have done before; that is, to issue a White Paper upon the whole question. By that, I mean a White Paper in which will be set out the actual position in the principal comparable foreign countries. One or two of the remarks of the noble and learned Viscount the Lord Chancellor yesterday made me think that there was need for such an authorised statement of the present position abroad. He quoted for instance, the case of Belgium. I am going to say a word or two-about that later, and I think he will see that there is some doubt as to the statement he made yesterday. In any case, before this House comes to a decision upon this grave question we ought to have before us the fullest information available on the subject—the experiences of foreign countries, and an analysis of the murders that have taken place in this country, say, since the First World War.
At one time there were analyses of this kind showing, at any rate in the past, how very small was the number of criminal's that I think most of us would say were irreclaimable. I can see no reason why we should not have, before the Committee stage, an analysis of this kind. Also, I think we should have a detailed statement of the way in which murderers have actually been dealt with. By that, I mean an amplification of the information which was asked for yesterday by my noble and learned friend Viscount Simon, setting out in categories the way in which sentences had been commuted, and also giving us any available information about the subsequent 471 careers of the individual murderers. Information of that kind certainly exists, for this reason, if for no other: that, as noble Lords know, murderers released after a period are released only upon licence. The Home Secretary of the day has in most cases full information as to what is happening. I feel that if we could have this information, and if we could then have the detailed discussion which I think is so necessary, we should on both sides be able to face the ineluctable facts, and avoid what is always the danger in debates of this kind, an atmosphere of heat, sentiment and, sometimes, almost hysteria.
Passing from these two general observations, with regard to the actual question itself, I will not attempt to go into all the many arguments for and against the change. We must leave many of them to the Committee stage. I will take only two which seem to me to be the two strongest arguments against the experiment of suspending the death penalty for five years. I take, first, the argument that was effectively made in another place by Sir John Anderson—that there is no alternative punishment for really dangerous murderers, and that we are faced with the dilemma that if the usual practice is adopted, under which a murderer is released upon good conduct after a period of years, dangerous criminals will be thrown loose upon the community but, on the other hand, that if these men are not released they will have no further hope in life and their very existence will run counter to all the reforming methods now being adopted in our prisons.
I do not accept that dilemma. I speak, like two of the former speakers in this debate, as an ex-Home Secretary. I tried to take a great interest in these questions when I was at the Home Office and I have not ceased to take an interest in them since I have been out of office. I had, for instance, the opportunity during the war of studying on the Continent, in Spain, very different methods from our own. These experiences have led me to this conclusion. I believe that it is perfectly possible, without damage to the reforming policy that we are now adopting in prisons, to keep a really dangerous criminal detained for much longer periods than is at present the case. I feel, therefore, that if the death penalty is suspended it will be necessary for the Home Secretary to make 472 it perfectly clear that there is no automatic release of any kind for murderers, and that he will have no hesitation in keeping the really dangerous murderer in prison for twenty or twenty-five years. That is what is actually happening in certain countries where the death penalty has already been abrogated. It happens, for instance, in Belgium and in Switzerland.
Here I come to the point that I mentioned earlier in connection with what the noble and learned Viscount the Lord Chancellor said yesterday about Belgium. He made the argument that one must compare like with like, and that if life imprisonment was to be a really effective deterrent any comparison must be between what is actually happening in foreign countries and what is likely to happen here. I think I am not misrepresenting the noble and learned Viscount's argument. He went on to say that in Belgium a convicted murderer is condemned to ten years of solitary confinement before he becomes subject to the ordinary prison conditions. I have tried to inform myself as to what is the present position in Belgium. I understand that it is perfectly true that there is a period of solitary confinement—not, I am informed, for ten years—but that the solitary confinement does not mean what I certainly understood it to mean from the Lord Chancellor's argument of yesterday. It means that during this period the prisoner works in his cell, but not in community with the other prisoners. It means, however, that he has frequent visits, that his family are allowed to visit him, and that he has many communications with the outer world—a very different situation from that which we have associated with solitary confinement in the past.
But whatever may be the position in Belgium, there is the significant case of Switzerland. Switzerland actually abolished the death penalty by law. In certain of the cantons, the death penalty had previously been in abeyance for some time. The abolition of the death penalty took place during the war, when it might have been imagined that crimes of violence, even in a neutral country, would be rising. No evil results followed—but for the moment that is not my main argument. My main argument is that in Switzerland the murderer is treated much as I believe he should be treated here. He serves his sentence with the 473 other prisoners; his release depends upon his good conduct. And I am informed from authoritative sources in Switzerland that in actual practice, in many cases, the murderer is found to be more easy to reclaim than many other types of criminal. That, for those who follow closely these questions of crime, creates no surprise. If one comes to analyse the lives of murderers in this country—and that is the kind of analysis I should like to see in the White Paper—one finds that a large percentage of them are first offenders. One finds in practice, therefore, that in the cases where the sentences have been commuted the released murderers have not proved to be a danger to the community; and in many cases they have made good. I am aware of the fact that there was a case—the only one that has been brought to my attention—of a murderer who was released during the war and who committed another murder.
§ VISCOUNT TEMPLEWOOD
No, here in England. I believe that it is a unique case in modern criminal statistics. The man was released for war reasons; he was released to go into the Army—as, indeed, were many other dangerous criminals, for better or for worse. He was sent into the Army with little or no aftercare for him, and in a fit of passion he committed another murder. I claim that a case like that is so abnormal that it does not vitiate my general argument that murderers, taken as a whole—I am excluding a few cases for which I have admitted that special precautions are necessary—are as reclaimable as, perhaps sometimes more reclaimable than, some of the other most serious criminals.
I pass from this argument, that there is no alternative punishment available for murder if we abolish the death penalty, to what I believe to be the second strongest argument against making any change. I refer to the argument that this is not the time for the change. There is the undeniable fact that crimes of violence have increased to a formidable extent. They always do increase after a great upheaval such as: he war. I would not admit that long after the war is ended they are likely to take a turn in the opposite direction. It is indeed a, formidable argument that, with crimes of violence increasing as they are, it is dangerous for the com- 474 munity and unfair to the police to make even this limited experience for five years. I wonder whether those who are opposed to a change will ever think the time suitable for a change. I hope that I am not misrepresenting some of them when I say that I can almost hear them saying, "But suppose the statistics of violent crime take a turn for the better. That shows how effective the death penalty is, how well things are going. Let: sleeping dogs lie. Let us risk no change." Even if they do not say that, I feel that the argument goes too far. It goes too far in view of the provisions and the principles of this Bill. This Bill is approaching these very questions of crime and delinquency in a different way. It is based on the fact, to which I alluded an the beginning of my speech, that crime is a very complicated affair. It has to be approached from many directions. The real deterrent is not a particular penalty but the raising, swiftly, if possible gradually, if not, of the whole social attitude towards crime and delinquency.
I do not stop to argue this consideration at the moment, but I have the profound feeling that crime rises or falls in a country according to the general attitude of society. I myself believe that 999 out of 1,000 people do not refrain from crime because they fear a particular penalty; I believe they refrain because it is the general atmosphere of this country at the time. If that be so, it seems to me vitally important that we should do nothing to lower or to degrade this standard, and that in everything we do we should do our utmost to raise it. As I see it, the Bill attempts to raise it. It attempts to show to the public and to the world an large that the rational approach to crime is the wise approach, and that the old rough and ready punishments and remedies of the past are out of date. If that be so, it seems to me that the continuance of executions with all their inevitable attendant horrors goes in the very opposite direction. It degrades the public: attitude to the profound gravities of crime It surrounds with an atmosphere of unhealthy melodrama a particular form of crime. In my view, it does not—and I venture to say this in answer to what the right reverend Prelate the Bishop of Winchester said yesterday—enhance the majesty of the law. In my view, it is not justified by the experiences of coun- 475 tries overseas. I hope to elaborate this part of my argument in greater detail upon the Committee stage. It leaves the mark of Cain upon the family of the executed man.
Moreover, I believe that it is unjustifiable to abandon any criminal as beyond hope. When I make that claim, it may be that I find myself differing from many noble Lords sitting here to-day, but I profoundly believe that, human nature being what it is and the complexities of crime being what they are, the time has passed when we can depend upon an infallible and inflexible judgment, and abandon the hope that there is a chance of reforming even one of these terrible murderers. Lastly, whilst I fully realise the gravity of the criminal statistics, whilst I feel as strongly as any noble Lord that it is essential that the community should be protected, whilst I agree with every noble Lord who has so far spoken that we must keep constantly in mind the fate of the victim as well as the fate of the criminal, I feel profoundly the need for this country, in a brutal, disillusioned world, to set the highest standard of humane conduct and to show its respect for the sanctity of human life, not by following the example of those who take it, but by wise methods of preventing crime and redoubled efforts for reforming even the worst of criminals.
§ 3.9 p.m.
THE MARQUESS OF READING
My Lords, in spite of the noble Viscount's emphatic disclaimer, there will be few persons, either in your Lordships' House or in the country, who, while recognising the services of his collaborators and advisers, will not continue to associate his name with the policy which culminates in the Bill that we are discussing to-day. If I may say so, while the noble Viscount held that immensely exacting office of Secretary of State for Home Affairs, he showed an innate humanity of outlook in many directions, and not least in his solicitude for those members of or exiles from society of which the population of our prisons is composed. The noble Viscount has done your Lordships a further service to-day by stating with so much conviction, and yet with so much moderation, the full terms of the case in favour of abolition, which has not yet been entirely proclaimed. Whatever may be the noble 476 Viscount's own view upon capital punishment, I think he owes no gratitude to those who, in another place, grafted upon the Bill this clause abolishing capital punishment rather than incorporate it in a separate measure. Their action has unfortunately done much to set out of focus the real underlying purpose of this particular Bill and to distract public attention from its central aim, with which we should all be in agreement—namely, that the penal system of this country must be increasingly based upon reformation, rather than on retribution. But, while accepting the general principle—and, indeed, most warmly welcoming it—it may be permissible to express a wonder and a certain degree of doubt as to a few of its constituent proposals, always bearing in mind the conditions obtaining at this moment of its introduction.
We must not forget that the earlier Criminal Justice Bill was introduced in the very different circumstances of 1938. This Bill takes shape at a time when we are affected by a shortage of man-power, by a shortage of materials, and by an outbreak of lawlessness and lack of observance of even the smallest aspects of the law that has probably been unparalleled for many years. It is not good policy to put Utopia into a Statute unless at the same time you are in a position to put it into operation. Lately we have seen a good deal of Bills containing more or less grandiose schemes which have received the assent in general terms of the House but in regard to which we are bound—not from any Party outlook but in the national interest—to wonder to ourselves whether there exist the persons required to put these measures into effective operation and, if they exist, whether they have arrived within an appreciable distance of the state of training for the discharge of their particular function which means that these measures are not visions but realities.
There is one other aspect. The noble and learned Viscount, Lord Simon, said yesterday that the great difficulty of examining a scheme of this kind is the inevitable conflict between the deterrent and the reformative aspects. The ratio of those two factors presumably depends upon the immediate conditions obtaining in the society to which they are to be applied. One noble Lord (I think it was Lord Kershaw) said yesterday, very truly, that there is no longer a criminal 477 class. But there are criminals of all classes; there are persons who are technically criminals because they have committed a crime, and there are other persons who commit crimes because they are basically criminal. Until we have uprooted from human nature and from the environment in which people live the diverse factors which lead men to commit crime, although upon many people we may produce a result by a system of reformation, there is likely to remain a hard core upon few of whom the desired effect will be produced. Therefore, without being hidebound, or out of date, or prejudiced, in looking at the system which is being introduced I think we must keep in our minds the reflection that there still remains a difference between a convict establishment and a Butlin's Camp. If people commit crimes against society they must be made to realise that society will call them to account, not only in their own persons but in order to deter others from following their example.
There is one other aspect of this Bill which reproduces an inveterate tendency in this country to call things by a different name, and to assume that by so doing you have changed their character. I cite only one example to your Lordships. By the provisions of this Bill it is forbidden to use a familiar if perhaps never too apt term—that of "criminal lunatic," and to substitute for it a term novel and certainly inapt—namely, "a Broadmoor patient." I use that illustration only as an example of what we have to avoid; that is, thinking that merely by calling a particular establishment by a different name, we have changed the whole atmosphere of that establishment and produced something new and irreproachable.
It is inevitable that there should be some criticism, however superficial, of a Bill which introduces so many and so great changes, but of the spirit which lies behind the Bill the whole of your Lordships' House will approve. As I have already said, so much attention has been focused upon one clause (and that the first clause) that I cannot cease without making some reference to it. Nobody likes the death penalty; nobody wants to see it inflicted; nobody wants to see a state of society in which it is necessary to inflict it. But to say that does not mean that we have all arrived at the conclusion that that stage has now been reached. The 478 noble Viscount who has just spoken said, so justly, that this is not a subject to discuss upon the basis of a conflict between sentiment and legalism. It would be well if that remark were widely diffused and generally observed. A discussion on a matter of this kind, a matter of grave and anxious import, is not assisted by persons who desire to support their case by making statements to such effect as that the only motive which can lead people to desire the continuance of capital punishment is stubborn lack of heart. And yet, in another place, that was solemnly advanced as a proposition. Nor is discussion of this matter—such a prolonged and serious discussion as will have to take place in Committee—assisted by the remark—as again I read it was said in another place—that an advocate of abolition had spoken with what was described as "fire in the belly." It might be as good commendation for anyone speaking on a matter of this son: to say that he lad spoken "with water on the brain."
The noble Viscount, Lord Templewood, has referred to two of the main objections to the clause as it stands in the Bill. He said, in regard to the first, dealing with the nature of the alternative punishment that it was possible to apply, that it might be that, instead of having the death sentence passed upon him, a man could be sentenced to 20 or 25 years of imprisonment—in fact that the stage was being approached where "imprisonment for life" means what it says. Much depends upon the conditions in which: hat sentence would be carried out. It is not an attractive prospect, or one in conformity with the principles of the Bill, to have terms of imprisonment extended to such lengthy periods. The noble Viscount, again, pointed to the fact that so few persons who had committed a murder broke out a second time. May there not be a reason for that? May it not be that, so long as capital punishment exists, a man does not commit murder twice because he has been executed for it the first time? In all seriousness, I suggest that, when you say that it is not often a man is known to commit murder a second time, that may well be one of the contributing reasons.
The noble Viscount also spoke of the general atmosphere of society. Of course that has, and must have, a considerable, indeed a predominating, influence upon the whole field of penal law. Yet, at the 479 same time, that leaves out of account what the right reverend Prelate, the Lord Bishop of Winchester, called attention to yesterday—the unique character alike of the crime of murder and of the type of punishment which under present conditions we apply to it. I thought, if I may say so, that there was much attraction in the proposal made by the noble Viscount, that a White Paper should be prepared upon the lines which he indicated. I would hope that that White Paper would contain something else—which the noble Viscount touched upon in a slightly different connection—over and above those particulars he required, and would give, in relation to the foreign countries cited, as definite particulars as possible of the exact circumstances of the imprisonment which is meted out in place of execution to condemned murderers.
I have studied with considerable care the report of the debate on this subject in another place, and while I realise the seriousness of the whole question, while I want, as an individual, to give every possible weight to arguments on both sides, I cannot help thinking that the argument in favour of the clause was largely given away in the first two or three sentences of the debate to which my noble friend Viscount Samuel referred yesterday. The peculiar aspect of the matter is this: that it is proposed by those who support the clause as it now stands to make it applicable only to murder, and to allow the death sentence to continue in the cases of three exceptions, treachery, piracy and sabotage in His Majesty's dockyards. Where is the logic in that? If, as was done in a few sentences after these exceptions had been proclaimed, the basis of the attack upon capital punishment was laid upon the sanctity of human life, then we have to ask ourselves: Is the life of a man who deliberately, and over a long period, poisons his lodger, in order to get her insurance money, sacred, and the life of a man who commits treachery not sacred? Is the life of a man who murders a series of wives sacred, and the life of a man who commits piracy not sacred? Is the life of a man who shoots a policeman in the execution of his duty sacred, and the life of a man who commits sabotage in one of His Majesty's dockyards not sacred?
480 Having recognised these exceptions, how is it possible to put this case on the basis of the sanctity of human life? Surely those exceptions carry the matter still further, because (and in this matter we are all of one mind) the overwhelming purpose is to discover whether capital punishment is or is not a deterrent. If it is not a deterrent, if it does not keep anyone from committing the crime, what is the object in keeping it in existence in regard to the three crimes of treachery, sabotage and piracy? What is the purpose of preserving the capital sentence in those three cases if you are prepared to admit that it is not a deterrent? But if it is a deterrent, then the whole case for its abolition goes at one swoop.
We shall have a Committee stage of this Bill and I should be sorry to take up your Lordships' time by developing at greater length that aspect of the matter. I would say only this. Certain alternatives or compromises have been suggested in various quarters. One is that we should have degrees of murder. My sympathy would go out to the draftsman who set about drafting for a Criminal Justice Bill the various categories into which murder would fall. It is said that we might have two categories. Why only two? Why not twenty? The permutations and combinations, alike of the motives and of the character of murder, are infinite. We can surely never reduce to the terms of an Act of Parliament words which will draw an adequate distinction between the various degrees. And who is to fix the degree? Is it to be the person who initiates the prosecution? Is he to say to an accused man: "You are to be indicted for murder in Class I, or Class II, or Class VII"? Or are the miserable jury to be asked, in addition to their already overwhelming responsibilities, to draw a distinction between the different degrees in a particular case? Another suggestion has been made in some quarters, that although we might abolish capital punishment for a first murder, we should impose it for a second. And that suggestion appears to be put forward seriously, and even to be resolutely maintained. In the course of the discussions on electoral reform we have heard of "One man, one vote," and the abolition of plural voting. Are we now to start legislating on the basis of "One man, one murder" and the abolition of plural murdering?
481 Your Lordships will no doubt accord to the Bill at this time a favourable Second Reading, but that does not mean that, when the Committee stage comes, whatever support your Lordships may give to the general underlying reformative principle of the Bill, you will not consider closely whether you are able to accept the somewhat tentative invitation held out by the noble and learned Viscount on the Woolsack—namely, to make an experiment with the public safety which it is against the conviction of the Government to make, which it is against the personal opinion of the chief legal adviser of the Government, the Lord Chancellor himself, to make, and which I believe is profoundly against the feeling of the country as a whole. When the moment comes, this House will no doubt consider the matter calmly, gravely and objectively, neither blinded by sentiment nor shaken by passion, but in the sole interest, so far as it conceives it after anxious and full deliberation, of the public good.
§ 3.35 p.m.
THE LORD BISHOP OF TRURO
My Lords, I think we are agreed that the general humanitarian tendency of this Bill is warmly to be welcomed. Details will have to be examined with care and attention, but we entirely approve the increased concentration of effort upon the reform and recovery and restoration of the offender. "No criminal irreclaimable," is indeed a noble ideal, and we must never forget it, even when other considerations may have to be taken into account as well. The problem of punishment is philosophically a difficult one. Punishment should be either deterrent or reformative, or both, and it should also be appropriate to the crime. Every schoolboy knows that some punishments may be too severe upon an alleged mismonduct, and some may be too light. According to the Statute Book hitherto, the appropriate punishment for cold-blooded murder is death—a very ancient idea.Whoso sheddeth man's blood, by man shall his blood be shed.That has appealed to man as at least an approximation to justice. "Murder deserves death," is what the English law has been saying, and it thus has encouraged people to feel, as most people do in fact feel, that murder is so a dreadful crime that it deserves the 482 extreme penalty. And now the law proposes to lighten that penalty. What will be the effect on the ordinary mind, and still more on the criminal mind? Will it not be inevitably to suggest that the responsible authority does not regard murder as quite so dreadful a crime after all? It is most important to maintain in the public mind a strong sense of justice. If a man deliberately and wantonly deprives another of his life, does not justice say that he deserves to die? It may be answered that we may go on saying that such a man deserves to die, even if we abolish the death penalty. But what we say counts little as compared with what we do. If we abolish the death penalty, the potential criminal will conclude, whatever we say to him, that we take a less serious view of the matter.
Now I am sure that we all most earnestly desire to have regard to mercy as well as to justice. And I submit that the best way of having due regard to both, the best way that has been so far discovered, is to keep the law affirming that the murderer deserves to die, while at the same time encouraging the Home Secretary to put into the most conscientious operation his power of reprieve. The present Home Secretary, Mr. Chuter Ede, said on April 15 in another place:The administration of the law of this country has become increasingly generous in this respect.The fullest consideration is being given by the Home Secretary to every mitigating circumstance: to provocation, for example. In the year 1947 nine offenders were executed and fifteen were reprieved. The noble Viscount, Lord Samuel, told us yesterday that over he last twelve years the average numbers were ten criminals executed each year, and eleven reprieved. The proportion of reprieved last year, therefore, is comparatively higher, and I think we may take last year's figure as significant of the tendency of the administration of the law: the tendency towards increasing generosity, Why not let this increasing generosity of the law go on operating at this point? I feel sure that we can trust the Home Secretary's judgment entirely as regards the first offender—the special case in the mind of the noble Viscount, Lord Templewood, a few moments ago. Surely this is the most appropriate point at which to give due consideration to the claims of mercy, 483 which we all so earnestly desire should be given.
The removal of the death penalty from the Statute Book seems to me to be the removal of a great deterrent. Statistics quoted from other countries really require a trained statistician for their interpretation. My early mathematical training leads be to suppose that very little can be deduced from such meagre data. My own feeling seems to me to be a surer guide. I recognise sufficient criminal tendencies in myself, and I cannot regard the criminal as an altogether different being. I say unhesitatingly that the death penalty would be a great deterrent to me if I were contemplating murder. A term of imprisonment, however long, is, to my mind, in an altogether different category. I should feel that I could make play with modern humanitarian tendencies, and either by showing good behaviour, or by making myself a nuisance—or more probably by alternating between the two—I should count on getting along tolerably well. And even if the Home Secretary had issued a warning that my imprisonment might extend to twenty or twenty-five years, as the noble Viscount, Lord Templewood, suggested in his most weighty speech, I am not sure that I would take that warning very seriously. But death by hanging is just horrible and loathsome, quick and almost painless though it be. That is what I instinctively feel, and I am sure the whole criminal world agrees with me.
That brings me to an argument pressed in another place. It was urged that hanging is such a dreadful job for the hangman. I am afraid it is. But surely modern science could make the whole miserable process much less crude. I know nothing about the technique of hanging, but certainly modern science could make it such that the final act of the hangman was clearly to him an act of duty comparable to that of an artilleryman bombarding the enemy in battle. Another argument often brought forward refers to that class of murderers who are exhibitionists. It is said that the whole publicity of a murder trial is an attraction for them and is a positive inducement to crime. If that is so, then surely the remedy is not to allow such morbid publicity in the case of murder trials. There are, in short, various improvements that can be suggested in the 484 whole process of punishing which would not involve the abolition of the death penalty altogether.
I conclude with what is to me, as it was to several noble Lords who spoke yesterday, the most practical difficulty in the way of abolishing the death penalty. Not only do I feel bound to take the view that it is a real and important deterrent, but the police themselves take that view. The police are our agents in this most unpleasant and dangerous task of dealing with desperate and violent men. The noble Viscount, Lord Templewood, said just now that 999 out of every 1,000 of our citizens are not deterred from crime by any fear of punishment, but on higher grounds. Even if one out of every 1,000 must be put in the exceptional class, that amounts to about 4,000 people in this country—4,000 people who are actuated by different motives. The police are our agents for dealing with these dangerous and violent men. This nation has rather a habit, I am sorry to say, of sending its agents on dangerous errands under great disadvantages. It happens in the early stages of every war. We send out small forces to engage enemies more numerous and much better equipped. It does not do. In the end we have to build up numbers and equipment incomparably more adequate. But in the meanwhile hundreds of valuable lives are prematurely sacrificed. The nation is far too optimistic in the face of its relentless enemies. Merely to abolish the death penalty, as Clause 1 proposes, and to leave it at that—to do nothing more, for instance, to prevent criminals possessing firearms while our police go about habitually unarmed—is not fair to a gallant and conscientious body of men, who justly command the respect, as they earn the gratitude, of the whole community.
The proposal before us is to do away with the death penalty for a trial period of five years. I think there would be a good deal to be said, on the contrary, for enlarging the possible application of that penalty for a five years' period at this time of unusual unsettlement and disturbance. Why should it not be at least possible to pass the death sentence upon a thug who beats a poor old woman almost to death, though she does not quite die, or upon a man who rapes with brutal violence? Do not such crimes 485 deserve death? Justice seems to me to say that they do. The law may well be so framed that in any particular case mercy might intervene through the reprieve of the Home Secretary, or otherwise. This is a distressing subject. It is a great evil to have to put a man to death; but to erase the death penalty from the Statute Book and thereby give the impression that we think less seriously of murder, and also to remove a potent deterrent from crime, may be a greater evil still. Unless a White Paper is produced containing more evidence than we have yet before us, as at present advised I hope that this House, while giving general approval to the Bill, will not easily accept Clause 1 as it now stands.
§ 3.48 p.m.
§ LORD GODDARD
My Lords, I have not had the privilege or honour of addressing your Lordships' House before, but it occurred to me that you would expect the holder of my office—because I suppose I am the head of the Criminal Judiciary—to say a few words to-day upon the practical working of this Bill, as I see it. I do not propose to follow the right reverend Prelate in all his bloodthirsty suggestions, nor do I propose to address your Lordships on the policy of much of the Bill. Of course, we all welcome and greatly look forward to the working of the probation provisions. But upon questions of policy I do not propose to embark, because I profoundly believe that the less Judges have to do with policy, the better. Any Act which Parliament sees fit to pass we carry out to the best of our ability. It is rather, therefore, on the practical application of this Bill that I desire to offer some observations to your Lordships.
First of all, I want to deal with a point which was dealt with yesterday by my noble friend Lord Schuster, and upon which the noble Marquess has also touched this afternoon. I look with some dismay, not at what is in this Bill but at what is not in it. We are about to embark upon a great experiment. Many changes are being made in the law relating to probation, and for their successful working those changes will depend on the courts—and very largely upon courts of summary jurisdiction. I regret, therefore, that this Bill comes forward before any attempt has been made to implement the valuable suggestions which were made 486 by the Committee over which my noble friend Lord Roche presided, and which reported so long ago as 1944. That Committee was appointed more particularly to deal with the appointment and position of justices' clerks. Many of your Lordships who habitually sit, both at Quarter Sessions and at Petty Sessions, know full well that it is largely upon the clerk that the success and proper working of those courts depend.
We have here a Bill of seventy-nine clauses. Many of them, no doubt, deal merely with administrative provisions and provisions relating to the duties of the Secretary of State. Not only are there seventy-nine clauses in the Bill, but no fewer than ten Schedules, one of which is nine or ten pages long and deals with amendments of the law and the changes that take place in numerous Statutes. If your Lordships refer to it, you will see the task which courts will have thrust upon them, because they have to keep themselves acquainted with the different changes and amendments in the law which this Schedule provides. Let me read just one short passage from the Roche Report:The work of courts of summary jurisdiction has also grown more complicated through the extension in the methods of treatment of offenders…. There has been a steady-increase in the variety of treatment hat can be imposed on an offender, whether he is a juvenile or an adult. A justices' clerk must be expert not only in the law as to offences and procedure and the laws of evidence, but also in the courses open to the justice; if they find the charge proved. This part of their work is likely to increase, for new methods of dealing with delinquency, such as those proposed in the Criminal Justice Bill of 1938, may lie introduced after the war.The Report went on to recommend a whole-time service, at any rate for a large part of the country. Your Lordships know that in many parts of the country courts have to be served by solicitors of no great experience. Speaking of justices' clerks as a body, I have the greatest admiration for the way in which they do their work, but they are now to be called upon to take part in the administration of an Act which makes and will make a profound change in many respects, and which will impose upon them a large addition in the clerical work that they have to do. We live in a form-filling age, and there are a great many forms which will have to be completed under this measure and for which they will 487 receive no extra remuneration. I hope that before this Bill comes into full force—because, as I see it, it cannot come into force for a good many years, for reasons that I will give in a moment—some change will be made in this very important matter of the position of justices' clerks.
As my noble friend pointed out yesterday, we are now to find, under this Bill, probation homes, probation hostels, detention centres and various other places. When they are to be built I do not know, and how they are to be manned I do not know. I suppose that houses for those who have not committed offences will have priority over detention centres for those who have. I am not seeking to make a gibe at the Bill, because I believe that this Bill contains much of the greatest possible value, but I also see that it cannot come into force, in the way that its framers obviously hoped, for a very long time—simply because the machinery will not be there. It seems to me that it is rather a feature of modern legislation—as the noble Marquess pointed out—that we are apt to require certain things to be done, without providing the machinery which is necessary for their adequate working.
However, I am concerned in this matter because, as I say, it is through the courts that this Part of the Bill relating to probation has to be worked. Magistrates may, from time to time, seek the guidance of the High Court. The High Court Judges themselves, the Recorders and the Chairmen of Quarter Sessions will also have to carry out the provisions of this Bill. It seems to me that I shall have disappeared from the scene for a long time before this Bill can be properly worked, because I do not believe that the necessary machinery can be provided for a long time to come. In the meantime, we shall have to carry on as best we can, applying so far as we can the principles which we find enshrined in the Bill. Whether we can adequately put them into force is a matter that I cannot yet tell, but I can assure your Lordships that His Majesty's Judges will do their utmost to follow the policy outlined in the probation clauses.
There are in this Bill many provisions which I welcome wholeheartedly, matters which relate to what I may call the 488 everyday working of the courts. For the first time, courts which are trying prisoners on indictment will be able to fine for felonies. In the past, they have never been able to do that, except in the one case of manslaughter, although we have always had power to fine in the case of misdemeanours. One is constantly faced with a man charged with felony—not a serious case—and one feels he should not be sent to prison. If one is not to send him to prison one can only bind him over, and after that he gets away with it. If one could impose a monetary penalty it would be a great thing. It might "touch him up" in his pocket, and lead him to cease to carry on that particular form of activity in the future. Of course, if he does carry on that particular form of activity he will probably find himself subjected to another penalty. But it is a good thing to be able to fine. The distinction between felonies and misdemeanours is so artificial as to be absurd, when the punishment given for one cannot be given for the other. If you obtain £1,000 by false pretences you are merely guilty of a misdemeanour, but if you steal a halfpenny you are guilty of a felony. Why that is so nobody knows, but that is the law of England.
Another point which seems to me to be of some value is the increased power which is given to the High Court to grant bail in certain cases. There have been some curious lacunæ in the law relating to bail. Where, for instance, Quarter Sessions have stated a case for the opinion of the High Court upholding the conviction on appeal of an accused person (in the case of an appeal to Quarter Sessions, the Court of Criminal Appeal have no jurisdiction) it has on more than one occasion been found that there has been no means of the High Court admitting that man to bail pending the hearing. Nor is there power to allow bail where the High Court have given leave for a conviction to be questioned by means of what is called a Writ of Certiori, where it is said the conviction is, on the face of it, bad, or is bad on some point of law. Another point is that, where bail is granted, in certain cases provision has not been made for the time the man is on bail to be counted as part of the sentence. Those matters are put right in this Bill, and a very great improvement will be made in the ordinary 489 administration of the criminal law when they are carried.
Now may I deal briefly with the two points which were made by noble Lords yesterday. The noble Lord, Lord Holden, with his great experience as a probation officer, was inclined to deplore the fact that if this Bill becomes law it will no longer be possible for magistrates to dismiss a charge against a young person or any other person and at the same time make a probation order. It has always seemed to me that to do so is really anomalous. What right have I to put someone on probation if he is not convicted? I cannot understand it. You bring a man or boy before the court and state a case against him, and then you say in effect: "We will not convict you but we will put you on probation." I do not understand the reason why such things should take place.
The noble Lord, Lord Kershaw, called attention to the fact that it would be possible under Clause 8, subsection (3) to discharge an offender without imposing any penalty, and he said he welcomed this. But I would remind the noble Lord that that power was given to magistrates certainly as long ago as 1879; under Section 16 of the old Summary Jurisdiction Act of 1879, magistrates have always been able, in the case of a trivial offence in which they think it desirable not to impose a penalty, to dismiss the information. Of course, once a case comes before a court on indictment no one can say that the offence is one of a trivial character; but there are many cases in which the court think it unnecessary to inflict a penalty and the difficulty is overcome merely by sentencing the man to one day's imprisonment, which enables him to be immediately released. If magistrates have a case in which they think it undesirable that a penalty should be imposed it is still open to them—it was in the Act of 1879 and was left in in the Probation Act of 1907 and so is still kept alive—to dismiss the case. I think that is the answer to the objection raised by the noble Lord, Lord Holden, and it also explains the matter to which the noble Lord, Lord Kershaw, drew attention.
Much of the debate which has so far taken place on this Bill has related to the question of capital punishment. It is unnecessary for me to traverse the ground that has already been covered, but I 490 should like to look at the matter from another angle. I cannot help feeling that this is really part of a much wider subject—the true functions of criminal law in regard to crime and punishment. Reading the debates in another place and leading articles that have appeared in responsible and weighty journals, and listening to the speech of the noble Viscount, Lord Templewood, and others, it has seemed to me that there is a great tendency nowadays to consider that punishment should never be punitive, only reformative. I agree with all my heart that when you are dealing with the sort of cases which come before magistrates daily, and perhaps to a lesser extent before Quarter Sessions—that is, when you are dealing with the young criminal, the boy who is drifting into crime, the man who has made a slip from which he can be rescued, or even the old lag in whom there is still some good that, given a fair chance, he will be able to develop—reformation is the main thing for a court to bear in mind.
But that class is not the only class of criminal with which the law deals; and when you get to the Court of Assize an entirely different picture is presented. There you get cases in which there is definitely no question of reformation as it is ordinarily understood. If we are to punish only with a view to reformation, what is one to do, for instance, with the ordinary motor manslaughter case? No kind of case is more distressing. You have a man before you, very often a man of education, of position, of some culture, perhaps a successful business man. For one reason or another—it may be that he has been at a party and taken more than he ought—he gets an overweening confidence in his skill as a driver and takes a risk, which has dreadful results. Sometimes not only is one person killed; in one case which came before me some years ago four persons were killed in the twinkling of an eye. Was it too much to say, at any rate in the days before the restrictions were placed upon motoring, that the roads of this country were strewn with dead and dying? The statistics of the people killed on the roads are such that they make one shudder. It is not a question of "reforming" drivers of the type I have mentioned. Such a man probably bitterly repents, and will be haunted to his dying day by what he has done. But, as I say, he makes the roads dangerous, and he must be punished.
491 Then there are other cases, such as the bigamist—and very often the persistent bigamist, for it is no unusual thing to find a man who has committed bigamy three times: a strange state of affairs, but there it is. Then there is the professional abortionist; and the homosexual who corrupts small boys. These are cases with which every Judge has to deal at every Assize. Or take the case of a professional receiver, a man, perhaps, with a snug little business in a town where he is respected and where nobody would believe that he is other than a most respectable citizen, and who yet may be plotting crimes so that he may receive from the youths who commit them for him the proceeds of their ill-gotten gains.
There is the case of the man who slips into crime of another kind, such as the defaulting solicitor, or the bank manager who has embezzled his bank's funds. Those men have undoubtedly, before they stood their trial, gone through hell. They know they will be discovered, and nothing on earth would make them commit the crime again. They are probably good husbands and good fathers, and perhaps carry the bag round at Church, and no one believes that they are guilty of criminal conduct. Yet, suddenly, perhaps because of some unlucky speculation or some unfortunate incident in their history, they were tempted and they fell. They will never do it again. But can the Judge overlook it? Can he pass it over? Would it be fair to the hundreds of other bank clerks, managers and solicitors—whom we all know to be most honourable members of their profession—if these people were not sentenced to a term of imprisonment? Yet one is not sentencing them for reformative purposes. They are sentenced because it is society's method of showing that if that conduct or those acts are persisted in certain consequences which must be unpleasant and which must be punitive will result. I have never yet understood how you can make the criminal law a deterrent unless it is also punitive. The two things seem to me to follow one on the other.
There is one other consideration which I believe should never be overlooked. If the criminal law of this country is to be respected, it must be in accordance with public opinion, and public opinion must support it. That goes very nearly to the root of this question of capital punish- 492 ment. I cannot believe that the public opinion (or I would rather call it the public conscience) of this country will tolerate that persons who deliberately condemn others to painful and, it may be, lingering deaths should be allowed to live. I am not afraid to make a confession on this point. It is a common reproach against Judges (though I believe it is absolutely groundless) that they are—the word generally used—reactionary, and are always on the side of severity. It is not so. It is an idea that I think has been fostered by the historical fact that a great predecessor in my office, Lord Ellen-borough, in the early days of the last century, was a bitter opponent of the reforms then suggested to make a great number of offences which were then capital non-capital. I suppose that, to a large extent, he reflected the opinion of his time, and perhaps sufficient credit is not given to him, because at least he erred in good company. If your Lordships refer to the Parliamentary Debates of those days, you will find that nearly the whole of the Bench of Bishops supported him.
I know that in uttering this sentiment I shall not have the sympathies of everyone but, in my humble opinion, I believe that there are many many cases where the murderer should be destroyed. The cases which come before one, where there is no question of insanity, are sometimes so horrible that I confess that I have suffered feelings of actual physical nausea in having to listen to them. I know full well the danger of arguing from the general to the particular, but let me give your Lordships two instances to justify my view that some of these bestial murderers should be destroyed. Last November, I tried a case at Bristol. The prisoner, thank God, was not a British subject. He was a Pole, but he had been here for quite a long time. On his own confession, having finished his supper, during which he had had only a moderate quantity to drink, he said that he had had an overwhelming desire for sexual intercourse. He went out and, finding no young girl near his camp, went to a little village alehouse on the outskirts of the village, kept by an old woman of seventy-six. He entered that woman's house at dead of night, he went into her room, he raped her, he committed another nameless offence on that poor creature's body, and he killed her.
493 At the end of last sittings, another case came before me in the Court of Criminal Appeal. I regret to say that this time the prisoner was a British subject. In a, mining village in South Wales, a young man of about twenty-two years of age who had had a little to drink—not much, for no one suggested he was drunk—while pushing his way down an alley knocked against an old woman who reproached him—reviled him, if you like, for I expect she used strong language at him. He struck at her so that she fell on the sidewalk and fractured her skull. Then he kicked her to death and raped her as she was dying on the pavement. When one is faced with cases like that, can one doubt that those who have to listen to them, and those who have to try to keep an impartial and cool judgment, come to the conclusion that some cases are so awful that the prisoner should be destroyed? I wish those whose opinions I respect, and whose views I can understand, would sometimes come and listen to an Assize at some towns that I could mention. The depravity of human nature is dreadful. In many cases, it is capable of reform. In God's name, where it is capable of reform let us reform it; but in the sort of cases that I have instanced to your Lordships I feel that no question of reform can in any possible circumstance arise.
Let me say one other word, because this does raise a question of policy. It is proposed in this Bill—and the noble Viscount who opened the debate to-day said some feeling words upon the subject—to prohibit any sentence of corporal punishment. May I say at once that, if there were a prohibition against inflicting corporal punishment with the "cat," not only I but every Judge on the Bench would welcome it. I think that the "cat" is a weapon or an instrument which ought not to be used. But are we so certain about the birch? Mind you, when people talk about the birch, it is always thought that they are talking about juvenile offenders. I am not. The birch is an instrument that can be used as a very strong deterrent, as one experience has shown—an experience that I can quote, and will quote in Committee, if necessary. When I hear that there should never be corporal punishment in the case of an adult, I am sometimes inclined to say, "If that be so, I wish you would tell me what I am to do 494 with certain cases." I may be wrong. I shall be the first to admit it if it can be shown that I am wrong, but I believe that in many cases involving youngish men—men up to twenty-five or thirty years of age and so forth—it might be far more beneficial to give them a very short sentence of imprisonment and something in the way of a whipping for the crime that they have committed, rather than to send then to a long sentence.
At the risk of wearying your Lordships by quoting instances, may I just mention a case which I had to try at Cambridge Assizes last summer? There was a young man of twenty, a big, fine, hefty fellow, who had the character of being an excellent farm worker. The last person who wanted to see him go to prison was the farmer for whom he worked. That boy went into a jeweller's shop in Ely and asked to see a watch. He chose a watch and said that he would have a few other trinkets as well. The shopkeeper, who was an elderly man of some sixty-eight years, offered to wrap them up, and while he was engaged in wrapping those things up, this lad whipped a two inch spanner out of his pocket, struck the old man on the head, knocked him down and, just to make certain that he would cause no trouble, gave him two more crashing blows as he lay on the floor. I do not believe that that boy will ever do thing like that again. But was he to get away with it? Was he not to be punished for so cowardly and brutal attack upon an old man?
My Lords, I may have been wrong, and I can well understand that many of your Lordships in the House to-day will say that I was wrong when I tell you that I gave him a very short sentence—I think it was two or three months—because some sentence of imprisonment must be given so that there is an opportunity for the man to appeal, and one thing and another, and to keep him there while the corporal punishment is given. I think I gave him two months' imprisonment and twelve strokes of the birch rod, and I was not then depriving the country of the services of a good agricultural labourer over the harvest. I cannot help thinking that that was a better punishment than a sentence (which otherwise I would have had to impose) of at least two years' or possibly three years' penal servitude. We are: old that there is to 495 be no corporal punishment. As I say, abolish the "cat" by all means, because it has the essence of brutality about it. I should like to see it go. And I am able to tell your Lordships that in every recent case in which a sentence of the "cat" has been given, the Court of Criminal Appeal has altered it to the extent of ordering the birch instead, and I have not heard that that policy has not worked satisfactorily.
I do not want to detain your Lordships further. I welcome the Bill in many respects, and I hope that by the time it comes into force we shall have some indication of other matters about which I think Judges and magistrates are entitled to be informed. New methods of treatment are being introduced by this Bill. We are told that young offenders under a certain age are to be sent to detention centres for three months, or, in exceptional circumstances, six months, as soon as those centres are available. I think most people are agreed that if a sentence of imprisonment is to be given, it is no use giving a very short term, because that can do no good. I do not know what the aims of the detention centres are, or what is the discipline or training or anything else which will be given. Then instead of sending older people to prison they may be sent for "corrective training"; and I also notice that corrective training is to take place in prisons.
I think those whose duty it is to pass sentences have a right to know what corrective treatment consists of and what will be the discipline or other training which will take place in the detention centres. I know at present more or less what happens to a man if I send him to prison for nine months. I think I ought to know what happens if I send him for a period, which may be two years, of corrective training. Until I am told what corrective training is I shall not know what procedure to adopt. I hope that before this Bill becomes law, if it does become law, we in the courts will have that which I think we are entitled to have—namely, full information as to what these novel methods of training are. Not that I doubt that they will be good; not that I doubt that they will have for their object the reform of the criminal; but I do think we are entitled to know of what they will consist. I do not propose to detain your Lordships any longer. 496 I think I have dealt with all these matters and I believe I can say, not only for the Judges but also for the magistrates of this country, that if this Bill does become law we will do our utmost to see that it works.
§ 4.25 p.m.
§ LORD PETHICK-LAWRENCE
My Lords, the noble Lord who has just sat down will have realised, from the rapt attention with which his remarks have been received, the great pleasure it has been to the House to listen to his speech. If, in following him, I put into a few words our good wishes to him on his first appearance as a speaker in this House, it is not from any desire on my part to magnify my position, but merely because as I am following him it is my great pleasure and privilege to express what I am quite certain is the feeling of the whole House. He has given us a most careful and exceptionally well-informed speech which we should naturally have expected from a man with his knowledge and experience, and I am sure that the whole House will wish that on many future occasions his knowledge and his judgment will be at our disposal.
I rise in this debate with a great deal of diffidence. Your Lordships have heard from men of great distinction who have fulfilled many important functions in the State. Some of them are still fulfilling those functions, and I realise to the full the importance of the testimony which they have given. I feel, however, that I also have some special contribution to make to your Lordships' House. I think I am the only one who has so far spoken, and probably only one of very few in this House, who has a knowledge of His Majesty's prisons, not merely from the theoretical side, but from the fact that I was a guest of His Majesty in one of those prisons in the course of an agitation in which I took part a good many years ago. Not only have I experienced what has happened there myself, but I have been in contact with quite a large number of persons who have also shared His Majesty's hospitality. If the time and the subject were appropriate I could regale your Lordships with many fantastic stories of what went on in a prison, certainly in those days, and which I suspect in many cases goes on at the present time; but that would take your Lordships away from the subject of this Bill and I think it would be inappropriate.
497 But I claim another qualification for taking part in this debate—namely, that in the course of a fairly long public life I have been a journalist, an agitator and a Member of the House of Commons, and I have in many ways come into contact with human nature. I have used my opportunities to try and study the psychology of mankind, and to help in that I have made a study of myself. In accordance with the old Greek maxim, I have tried to understand myself and all the varying complicated instincts and sentiments which lie with my own being, and I have appreciated that we have in ourselves—certainly I have, and I think others would agree with me—the potential instincts which might in different circumstances have led us into some of the grave crimes which are committed by other members of the community. Only the Grace of God and the kind circumstances of our upbringing and environment have prevented those elemental instincts from reaching such disastrous results.
I think of all this because I confess that during the speeches that were delivered yesterday in this House I was grievously depressed. I was saddened to think that so many noble Lords for whom I have a great respect should take a view which seemed to me quite wrong—and I will not put it higher than that. They were certainly at variance with my own psychology of human nature. I am bound to single out in particular the speech of the right reverend Prelate, the Lord Bishop of Winchester, and that of the noble Lord, Lord Oaksey. I confess I was considerably shocked at some of the things that fell from the lips of the right reverend Prelate, to which I will refer later on. I do not want to take up his speech and quarrel with each point, but I do want to disagree with the general trend of many of his remarks. Before I do that, however, I wish to repeat what was said by the noble Viscount opposite in protest against the suggestion that those who support this Bill in its entirety, including Clause I, are persons who are to be described as, shall I say, "softies," and are full of sloppy sentiment, preferring the comfort of the criminal to the well-being of the victim. I think that the noble Viscount has already dealt with that point, but I would entirely repudiate such a charge, and, if I am compelled to do so, I will pursue the campaign into the enemy's 498 camp. I maintain that it is those who want to preserve many of the things in which they have been taught to believe in days gone by, against the knowledge and experience that have been gained in recent years, who are guilty of sentimental ism. I claim to be a realist. I claim to be fighting the battle of the criminal's victim, because I want to reduce the number of the criminals by the only method which is going to be effective, the method of reclamation, and not by fear.
Let me deal, in the first place, with the question of the growth of criminality at the present time. There is surely not the smallest disagreement as to the cause of it. How can we expect anything else when for five years men were taught that it was their duty to throw over a large number of the commandments in the Decalogue. I am not saying that it was not inevitable. I was not one of those who were objectors to the war. I realised that the war was necessary. But it is no good blinding our eyes now to the fact that, in the war, murder, theft, and violence of all kinds were practised on an incalculable scale, and were copied at home by the little children playing in the streets. To suggest that when those men come home from the war with those terrible memories (and some, be it remembered, come home as deserters, social outcasts) they are suddenly going to recover their whole equanimity of mind and behave as proper peace-time citizens—which is what they used to be before the war—is a mistake. It is entirely contrary to human psychology to expect anything of the kind. What has happened? The outbreak of lawlessness, terrible as it is, disastrous as it is, is a natural, normal, regular and inevitable consequence of the mentality which has been imposed on the people of this and other countries during the war years. That is not to say that it is not a thing which is to be gravely deplored. It is not to say that it is a thing which we should not by every conceivable means try to prevent. But it does provide a reason for not being—as I think the noble Viscount suggested—almost hysterical with regard to the matter.
I do not propose to deal at any great length with the question of the death penalty. I hold strong views about it, and I shall say a few words upon it at the end of my speech. But I want to deal now with the general trend of the speeches of 499 some noble Lords and with the speeches of both the right reverend Prelates, who have spoken on the general principle of dealing with persons who are guilty of offences. I do not take the same exception to what was said by the noble Lord who has just sat down. He has spoken from his great experience, and I think that the general tenor of his speech showed that he believes in reformation in every conceivable case where he considers it to be possible. But I do take exception to the elevation of punishment into a moral principle, and the preference for some of the older punishments which the good sense, the wisdom and the decency of this country have gradually got rid of. I agree with one thing that the right reverend Prelate, the Lord Bishop of Winchester, said. He said that he believed in atonement and reparation. In my view one of the defects of the criminal law is that reparation figures so very little in it. It seems to me that where a man has committed a terrible wrong on another human being, the right kind of punishment to inflict upon him is to say that for years and years of his life he must devote himself to making reparation. If he has robbed, then part of his labours should go continually to making good, so far as he can, the loss which he has inflicted upon another person. I will not pursue that idea right through, but I certainly believe in atonement and reparation in that sense.
My philosophy tells me that fear is a very bad guide or driver. I do not believe that people who are driven by fear reach any satisfactory conclusion. If you succeed in cowing a person by fear—and the worse the criminal, the more violent his nature, the less, I believe, do you really cow him—what do you achieve? If only you can eradicate those tendencies from him, that is different. But by cowing a man by fear, you do not make him any less criminal in intent. You drive his criminal instincts inside. You exaggerate his antagonism to the community as a whole. You force him, if he is going to commit a crime, to commit it in the dark places where he feels confident that he will never be found out. I do not believe that that is in the interests of the victims whom that man assaults or injures. You have made of the man a worse criminal at heart, and, sooner or later, the criminality which is inside him will come out to the 500 detriment of society and of his fellow-beings.
It is in that connection that I find my-seld in such complete agreement with the noble Viscount who opened to-day's debate. He says that if we really study the facts, if we learn the lessons which penology teaches, we shall find that severe penalties, cruel penalties, so far from reducing crime, so far from preventing the infliction of injury, have precisely the opposite effects. In so far as we really study the psychology of the criminal and deal with him as a person who needs alteration, we may make some progress, and by doing that we reduce crime. Therefore, the noble Viscount says, this Bill is designed to reduce crime. It is not designed to coddle the criminal. It is not designed to be sloppy and sentimental about crime. This Bill says that if we want to stop crime, the imposition of sentences which are cruel will not achieve their purpose, and there is still enough in criminal law that needs to be altered before you can achieve your end. One of the great things we require—and here I think I shall have the support of the noble Lord who spoke last—is greater certainty of detection. It is the hope that he will not be found out which plays the largest part in the attitude of the would-be criminal. If he were satisfied of 100 per cent. or 90 per cent. detection, and the prospect of something unpleasant happening were far nearer him, he would be deterred. If a man thinks he is not going to be found out at all or, even, if he is, that some shadowy thing may happen to him in months to come, the operation of that possibility on his mind will be much reduced. I deny that fear at the moment of what may happen some time hence is an effective deterrent to crime in the great majority of cases.
Here may I take up the case that was put forward by the noble and learned Lord, Lord Oaksey. He told us the story of a man, in ordinary life a devoted father—and that must imply that he was fond of his family and of his little girl of five—who one day got drunk, and in a terrific passion of sexual excitement violated his own daughter of five. The noble Lord said that the Judge who had to deal with this was glad there was a difference between simple imprisonment and hard labour, because he was able to give him hard labour and force him at least to sleep 501 on a plank bed for two weeks before ordinary imprisonment began. The noble Lord started by saying that he believed in deterrent punishment. I put it to your Lordships seriously, do you imagine that a man worked up to such a high pitch of sexual excitement as to violate his own child would think that he might be found out and that, if he were found out, he might be taken to court and convicted and might have to undergo two weeks of sleeping on a plank bed? Do noble Lords seriously think that that will make any difference to the commission of such a crime. To my thinking, such a suggestion is absolutely grotesque. I would go farther and say, from such knowledge of human nature as I have, that not only will it have no effect but if, by any conceivable chance, a man should think of these things the idea of punishment of that kind would add spice to the act.
Let us think about the psychology of human nature. When I was a boy at school I played on the football field, and was kicked and hacked on the shins and came home with legs all green and blue. Did I care one rap about that? Did it make me any less anxious to play football? Quite the contrary, it was all part of the spirit of the game; and I took it, if I thought about it at all, with pride. People often talk about corporal punishment in a public school, as if it were the same as corporal punishment inflicted by action of the law. My recollection of what was called flogging at Eton is that it was more or less a joke. It washed out all the previous "yellow tickets," as I think we called them, and other impositions, and started a boy off afresh. No one took it very seriously, and no one imagined for a moment that fear of a flogging really deterred any boy of spirit and determination from committing the little breaches of regulations for which it was made a punishment.
Let us go a little further. Big game hunters go out to hunt big game. Some of the hunting is combined with some risk to the hunter. I never knew a man who was deterred by that. The fact that there is some sporting chance of losing his own life, or of being injured, adds to the excitement. It is only a few years since we went through a great war, and in that war there were men and women who had to do brave and dangerous actions, at the peril of their lives. Large numbers of men and women went out to the front because their 502 duty inspired them to do so, with the knowledge that the perils they were undergoing were very grave and that it might well be that they would not come back alive. Does any one suggest that the bulk of men and women were terrorised, or were cowed by those things? I think better of my fellow human beings. It may be said that these were fine men and women and that we are dealing with criminals, who are a rotten lot of people. That may be so, but although some of them may be rotten in many senses, many of them have still those qualities of pluck and endurance to which I have referred in connection with other people.
I would say—and I think this is a truth which those who understand psychology better than I do would substantiate—that in human beings there is a streak of two extraordinary things. Anyone who did not know the facts would imagine that sadism, which means the enjoyment of inflicting pain and punishment on other people, and masochism, which means, strange as it may seem, the enjoyment of having suffering inflicted on one-self, would be antagonistic, and oppositional. But that is not the case. Those sadistic and masochistic tendencies are both a form of sexual excitement which is pleasurable to a certain number of people. That being so, I do not believe that the threat of punishment, particularly of physical punishment, will deter to a greater extent than it will encourage people to commit acts of violence and other crimes. I will say one thing more with regard to the criminal which I profoundly believe to be true. We are all complex personalities. We all do things at times which at other times we regret, but under certain stresses of emotion we are carried away; we do things of which in our heart of hearts we disapprove. Some persons are more fully integrated than others and rarely break their own laws. I venture to suggest that the criminal is a very badly integrated person, who at times deeply regrets and desires to prevent himself from doing acts which are crimes and which bring him into trouble—not because of the punishment and the suffering which he has to undergo but because, in another part of his nature, he thoroughly disapproves of the acts which he at times commits. I venture to think that these considerations of fear, and the other deterrents put forward do not adequately take into account this difference and lack 503 of integration in many of those who commit crimes.
I have taken up sufficient of your Lordships' time, but there is one thing more that I want to say before I sit down. It is a matter of some importance, and I think it needs to be said. Your Lordships' House has not a very good record with regard to the punishment of crimes. In days gone by, your Lordships' House has often stood out for savage penalties after they have been disapproved of in another place. One of the questions which arises on this Bill is the question of the death penalty. I had intended to say a few words with regard to that, but the noble Viscount who spoke first to-day so admirably covered that subject, and as what I have had to say with regard to deterrents applies to a great extent to the death penalty as well as to other punishments, I do not think it is necessary at this stage for me to say much about it. But your Lordships' House has not a very good record with regard to the death penalty. If we go back a little over one hundred years we find that by a decision of this House the death penalty was retained on several occasions when it had been disapproved of in another place.
I wish that the right reverend Prelates who have spoken were here in their places, so that they might hear criticism of their speeches. The Bench of Bishops has a particularly bad record in regard to the preservation of the death penalty. In the year 1834, when the House of Commons had been converted to the abolition of the death penalty for stealing, and the lay Peers had also been converted, that penalty was kept on by the vote of the Spiritual Peers for an additional year. I am not going to condemn this House for the sins of those who went before them, but I would say to the members of this House who are inclined to throw out the decision of another place to remove the death penalty, at any rate for a period of five years: Do not forget that the action of your predecessors is held up against this House, and will be held up against this House for years to come. I have been in this House for only a few years. I was brought up to think that this was a reactionary Chamber which turned down every good proposal, because it clung to ancient tradition and to ancient ideas. I have 504 learned a great deal better during the three years that I have sat in this House. I have found that in many ways this House is an enlightened progressive assembly. I beg of your Lordships not to destroy that new-found respect for this House. You will do so if, following the lines of your predecessors, you once more throw out the reform which the other place has inserted into this Bill.
§ 4.55 p.m.
§ LORD ROCHE
My Lords, at this hour of the second day of the debate on this Bill I think that the last thing that is desirable is that I should go over all the ground that has been covered by so many speakers. At the same time, it is possible that your Lordships may care to have the broad and general view of one who was a King's Bench Judge, charged with amongst other things the right and duty of trying the crime of murder, and who for another thirteen years shared the experience of my noble friend Lord Schuster in magistracy in Petty and Quarter Sessions. I was for thirteen years Chairman of the Quarter Sessions in my own county. That carries with it, of course, the function of presiding over such activities as probation area committees, in which I had the same happy experience as the noble Lord, Lord Holden, of conceiving the greatest admiration for the probation officers, and the greatest admiration, also, for the benefits of the probation system. I also had, fortunately, experience on the Probation Advisory Committee at the Home Office. I cannot express fully enough my strong sense of what has been achieved by the probation system and by Borstal, and the debt that the country owes, on the one hand to Sir Sidney Harris, whom I always regard as the foster-father of probation, and, on the other hand, to the late Sir Alexander Paterson—whose death we so much regret—whom I always regard as the foster-father of Borstal, although he was not the creator of that system. In the light of that experience, I propose to say a few words on the main topics that present themselves for your Lordships' consideration.
I do not think I can do better than go back to the time when I was a good deal in the Home Office, presiding over the committee to which the noble Lord, Lord Schuster, and the Lord Chief Justice, Lord Goddard, referred. The noble 505 Viscount, Lord Templewood, at that time showed me his Bill, which was then in proof. I said to him that there were many things in the Bill which were very good, although they would no doubt require some consideration in Committee, and some amendment, but there was one clause in it of which I completely disapproved. That was not the first clause in this Bill—that was not there at all, of course; it was not even mentioned or discussed between us. But there was a clause with regard to corporal punishment with which I entirely disagreed. Let me make plain what I mean now, as I at that time made plain to the noble Viscount what I meant then. He said to-day, so I understand, that Army experiment had reformed 80 per cent. of a certain class of offender. So be it. For the purpose of argument I am quite willing to accept that statement. It is all the more strange that it corresponds to the claim that was made—I dare say quite rightly—by Borstal some years ago to have succeeded in reformatory methods with some 80 per cent. of the unlikely material that was presented to them.
It is an odd coincidence again, but a great friend of mine (the best horse-master I ever knew) conducted an establishment in the 1914–18 War for the horses and mules which were quite unmanageable in the Army. I was often there out of interest in those things, and his verdict was that 80 per cent. were wrong of nothing but their stomachs, and when you got rid of that trouble, then you had to deal with the residue. That is just the question, and that is just where the noble Viscount who spoke with such feeling to-day did not meet the case. What of the other 20 per cent.? What methods are suitable for them? I am not going to discuss the psychology and philosophy of the noble Lord who spoke last, because we differ fundamentally on those matters. I am too old to be converted by him, and I suspect he is too old to be converted by me, but I am bound to tell him that his facts are all wrong. His analysis was that this was all due to the war. That was the foundation of his argument. Now the sad thing for those who care anything about young men and boys is that, for years before the war broke out, and in 1938 when I was conversing on these matters with my noble friend Lord Templewood, 506 the curve of juvenile delinquency was steadily mounting until it was deplorable.
My analysis is that besides these gentle methods, some method of discipline is necessary, and in that method of discipline corporal punishment has its part. In my years of experience as a Judge I have not ordered corporal punishment more than the times you can count upon one hand, but in those times I felt that it was necessary and deserved. For other purposes, I am going to give your Lord-ships one example presently. The fact is that there has been a tendency in some of the juvenile courts to make a mess of the administration of these remedial methods by an undue leniency. There is a forgetfulness of the maxim which was laid down by a great Judge. Sir Mathew Hale said years and years ago, when laying down some six maxims for his own guidance—he was a humane Judge as well as a great Judge—Though my nature prompt me to pity, yet to remember that there is a pity due to the country.By "the country" he meant what we mean by the community. Laxity is not kindness. Laxity is unkindness. It is un-kindness to the individual and to the community. There has been too much of it, and that is why my objection exists to Clause 3 of this Bill.
In the Bill which I was considering there was, of course, no reference at all to capital punishment. That was never discussed between the noble Viscount and myself. Had it been there, I should have said to him with great frankness: "This, in my opinion is so wrong, so dangerous, that I would rather not have your Bill at all than have it with that clause in it." In spite of the warnings and the threats of the noble Lord who spoke last, if your Lordships agree with that, I would suggest that we regard his threats with equanimity and do our duty as we see it. I believe in the death penalty. I believe it is necessary for it to be mitigated by great and wide powers of leniency and reprieve, as indeed it is. I believe in it, because I believe with the Lord Chief Justice, Lord Goddard, that there are some men who cannot be reformed. I do not propose to repeat my experiences here—I will do so on Committee stage if necessary—but I have tried cases as awful as those he has narrated to your Lordships. I believe that those persons are quite incapable of 507 reform, and that they are dangerous to let out. The alternative of shutting them up for ever for the whole of their lives is one that appals me. I also believe that the death penalty is the strongest deterrent. My analysis of human nature is the same as that of the right reverend Prelate, the Bishop of Truro, but differs from that of the noble Lord who spoke last. Perhaps that is because he is a braver man than I am or the Bishop is, although I believe the Bishop went to the wars in his time.
I believe that the fear of death and the desire for life, as it prevails in all members of the animal creation—and man is an animal although we so often forget it—is the great restraining influence against the commission of the crime of murder. This is not a question of persons who are guilty of sudden outbreaks of violence; it is a question of the sort of man who, since the time of Bluebeard, because he is tired of an old wife who has perhaps borne his children, and is desirous of another wife, murders her by slow poison or, as in one case I tried, strangles her and then stages a mock suicide, and hangs her up to make people believe she has done it herself. That sort of man counts his chances of being found out and of being put to death. Nothing will convince me that that penalty is not the most powerful deterrent in the world. I will just add two considerations in-that connection. I have sat in courts of first instance, in Appeal Courts and at the Privy Council, which entertains a number of appeals or applications for leave to appeal in murder cases, from all sorts of places. The appeals both in this country and in those countries from which the cases come before the Privy Council, outnumber overwhelmingly the appeals in every other case. Why? Because the death penalty is the one thing which criminals try above all things to avoid.
The last reason I want to advance is that I am a great believer in the common man. The noble Lord, Lord Saltoun, represented himself as such. I have generally found the verdicts of juries sensible, and one must not give too much weight to sudden fits of passion or sudden aberrations of feeling in a country. But when conviction is settled, not only through the channels in the past but in the whole community in the present, then I believe in the maxim securus judicat 508 orbis terrarum, which means that the people, when they are unanimous enough and hold their opinion long enough, are right. I am quite satisfied that feeling in this country is on this matter overwhelmingly on the side that I am representing to your Lordships, and is emphatically against the decision of another place, both because of the manner in which it was arrived at and because of its substance. For those reasons, when the times comes, I shall support the view that Clause 1 should be eliminated from the Bill.
There is one last topic with which I want to deal, and that is in connection with my friend Sir Alexander Paterson, whose name was, as I conceive it, recklessly abused in another place, and a quite unwarrantable course was taken with regard to his supposed views. I shall say something about him, because what I say bears upon several topics in this debate. He wrote a book years ago which I think was called London Across the Bridges. That book had a great effect upon me as a young man, and gave me that interest in youth movements which has inspired the whole of my life and, I am happy to say, to some extent, in a very inactive fashion, my declining years. Boy Scouts and Boys' Brigades, boys' clubs, are the truest means of reformation, long before you get to the point of penology.
When I was a young Judge in the early 'twenties I had a very difficult case in a northern town of a young man of respectable birth and public school training who had committed a series of burglaries. He was recommended for Borstal, in spite of the fact that he had been to prison already. It is difficult for a Judge suddenly to "reverse engines" on his predecessors and colleagues, and I felt great difficulty about this case. I thought I should like to see a Prison Commissioner. As your Lordships no doubt know, a Judge is by Statute not only entitled to have but is bound to pay attention to private representations from the Prison Commissioners. I was very pleased when Mr. Alexander Paterson (as he then was) turned up at the Judge's lodgings. He took a long time to persuade me. We sat a long time over it, but at length he convinced me that this young man should have his chance. He had it, and I learned later that he had behaved very well in Borstal, and that by some charitable agency's good offices he had been 509 assisted to leave this country and go to one of the Dominions. What immigration restrictions were by-passed I do not know, or whether the Prison Commissioner had any knowledge of it. But I was not sorry that it happened.
Ten years later, in the southern counties, I tried a lad under sixteen years of age who had violated in the most shocking fashion a girl of under thirteen, resident in the same house in a rural district. They were both workers on the farm or estate. I will not trouble your Lordships with details, but it was literally and in every sense a bloody crime. The house was strewn with blood and hair after he had dragged the girl about. He was recommended for Borstal, but I felt that this by itself would not do. The advantage of Borstal is that one can present it to a lad as a chance of rehabilitation and reformation; but to talk of those things to a boy who had done that sort of thing was useless. It would have been a triumph for him and would have caused execration and ridicule in the neighbourhood. Therefore, I said that, in spite of the recommendation to Borstal, I should like to see a Prison Commissioner. To my great relief, Mr. Paterson appeared. I told him that I thought it was imperative that this lad should be whipped. He said he would see the lad. He did so, and when he came back he said, "Are you sure that he did it? Because he denies it with every appearance of honesty."I said" You need not trouble about that; neither I nor the jury had any doubt, because the evidence was both direct and in the strongest sense circumstantial."
There is a foolish idea that circumstantial evidence is rather weak, but if it really is circumstantial evidence, it is the best evidence, because it cannot lie or be mistaken. Mr. Paterson said "If you are satisfied about that, you are quite right—this boy must be whipped. And in my opinion it is not a case for the birch, it is a case for the cat-o'-nine tails." The cat-o'-nine tails sounds worse than the other, and that was Mr. Paterson's reason. The sentence was imposed, after reflection, and was carried out. Afterwards, Mr. Paterson said he thought I might like to know what had happened to the boy. He said that when it was over, and the boy was taken down from the triangle, his observation was, "Well, I will never 510 do this sort of thing again." I should say that, as a step to reformation, first comes confession of fault. It is an old doctrine, which seems now to have gone out of fashion, that there must be repentance before there is reformation. There is indeed a fashionable philosophy that there is no such thing as sin. I am not a theologian but I entirely endorse what the right reverend Prelate, the Lord Bishop of Winchester, said—though he seemed shy of calling it sin: he called it "wickedness." Anyway, there was apparently some effect produced by the whipping in the particular case of which I have just spoken, since it caused the boy to say that he would not do the same thing again. That is one of the reasons why I think that this power should be held in reserve. I would whip last and not first; but when I did whip I would whip severely.
The last thing I wish to say with regard to Sir Alexander Paterson is of a different kind. It was said in another place: hat he had changed his views on capital punishment. But I should like to say that about ten years after the time of which I have been speaking, I had occasion to ask him to come and see me here on an extraneous matter. I wanted him to give me his direct personal view with regard to a young man who had given his name as a reference in connection with an application for appointment as head of an institution for maintaining and educating the best part of 200 boys—mostly orphans and boys whose parents had been killed. When we had disposed of that business he went or to tell me something else. In passing I would remind your Lordships that Paterson was a man who did not merely talk about doing good and being kind. He did things. He took infinite pains.
He said to me, "Do you remember that lad you tried for murder twenty years ago?" (The lad was under the age at which he could have been executed.) I said that I remembered him well. Paterson then said that he had just been to the prison to meet the lad on his release. He had gone in his car, so that he could get the lad away and thus evade the reporters. "Of course," he said, "the effect of those twenty years' incarceration was marked and terrible." He never said one word about a change of view as to the advantage of capital punishment over 511 that sort of incarceration. I do not for a moment believe that he said or did any of the things which have been imputed to him in regard to that matter. That is my private opinion. As so much has been said on this point and it has obviously had such an effect, I feel that I ought to record my conviction that when I spoke to him—I believe it was in the year 1943 or 1944—on this matter of the engagement of the schoolmaster, he was of the same opinion as when he gave evidence before the Committee.
That is all I have to say to your Lordships now. The sum and substance of it is this. If you arrive at the conclusion at which I have arrived—that this clause is a wrong clause, and that it is a most inopportune time to introduce it, whatever we may hope with regard to some future time when people are softer, kinder and more mellowed in their conduct—I suggest that the clause be rejected now, and that we should adhere to our rejection. The rest of the Bill is valuable but, in my opinion, it is not worth the mischief of this clause. If, through any obstinacy or misadventure, this Bill were lost, then the fault would not be on the side of your Lordships.
§ 5.22 p.m.
§ LORD DU PARCQ
My Lords, my chief reason for wishing to say a few words about this Bill is that I had the privilege a long time ago now of being a member of the Persistent Offenders Committee. It is pleasant for me to see some of our work coming to fruition in the form of a Bill. I have had some interest in prisons, prison administration and crime generally. In a sense, it was forced upon me, because every Judge of the King's Bench Division and every Recorder is compelled to interest himself in those matters. I have interested myself in them beyond that, and I have vivid recollections of visits to a great many of the prisons and other institutions of the country. Perhaps the most vivid of all my recollections is the visit which, owing to the action of the noble Viscount, Lord Samuel, who was then Home Secretary, I paid to Dartmoor on the occasion of the mutiny there.
I agree with so much that has been said by some of the speakers, notably the Lord Chief Justice, my noble and learned friend Lord Goddard, that much of what he said I would desire simply to adopt. 512 I believe with him that every effort ought to be made to reform every criminal, but also with him I am quite unable to believe that every criminal can be reclaimed. So far as my experience goes, if one gets a boy young enough, one can do almost anything with him. If a boy who has started on a wrong career goes soon enough to Borstal and goes, as he is quite likely to go, fortunately, to a Borstal institution which has a wise and sympathetic head and equally sympathetic masters under him, he is likely to turn out a good citizen. We all know that there are a number of good citizens to-day who have gone through Borstal. It is not always too late, even at a later stage in life. And here I want to point out one thing. There is a precise lesson which one ought to draw, I think. Yet I do not know; it has puzzled me. The only lesson that I can draw is that some men who are thoroughly bad characters in ordinary life are perfectly good characters when they are under discipline.
Over and over again I saw this sort of thing after the First World War. There would be a man with a long list of criminal convictions, sometimes perhaps, beginning—I say this incidentally—with a birching, and going on to terms of imprisonment, first hard labour and then, often, penal servitude. Then came the First World War. We found that the man had become a soldier and, during those four years or more when he was in the Army, it was not infrequently the case that he had risen to a high non-commissioned rank. I have had before me a man who had been a regimental sergeant major of a first-class regiment. Those who are well acquainted with the Army know that it is a great deal more difficult to become a regimental sergeant major than to obtain some of the high commissioned ranks—or so I am told. After leaving the Army it has sometimes happened that men who have had those opportunities and done well have relapsed into their old ways. I know that because they came before me. I had one man who had been a coiner all his life until he went into the Army. He reached the very rank that I have just mentioned. He left the Army, he behaved perfectly well for some years and then he had some financial trouble; and there was his old trade ready to his hand. He started again, he was caught and I 513 had to deal with him. The lesson that one can derive, for what it is worth, is that there are men who under discipline behave perfectly well and act most creditably.
There is a sad side to this question which makes the problem of reform, and the question of how far one can reform the criminal, more complicated and difficult than ever. As the Lord Chief Justice, Lord Goddard, has said, there are some whom one regards as irreclaimable, dreadful people. One is sorry to think that such people exist. But there are others about whom one cannot: feel angry at all. I met some of them at Dartmoor. There was a man there who was a burglar. I do not think he can have been a very successful burglar because he told me that altogether he had been fifteen years at Dartmoor. Then he said to me, with the same pride with which an old soldier might have spoken to me of his record in the Army: "And you can search my record, sir, and you will not find a black mark against my name as long as I have been here." That was absolutely true. He was a perfectly good prisoner. But was he reformed? Not a bit of it, I am afraid. I have little doubt that on the day he left the prison he was getting his burglar's kit together, in order to start on what he had come to regard as his regular trade. I do not dogmatise about these things. I think it is dangerous to generalise. I only tell your Lordships these things which are true and which come from my own experience, because I think that people are much too ready now to present the problem to themselves as if it were: On the one side, punishment, and, on the other side, reform—which do you vote for? We should all vote for reform if the referendum were put to us in that form, but it is not so easy.
May I tell your Lordships what I saw the first time that I entered a prison? It was the prison at Portsmouth. In my early days at the Bar, I used to do a great deal there, sometimes prosecuting and sometimes defending prisoners. The governor of the local prison which then existed used always to be there, and he was delighted when I said I would like to see over the prison. He said that so few people came to see his prison. He was showing me round, and a young man, obviously a prisoner, passed us. He gave the governor a word of greeting with the 514 sort of respectful and almost affectionate smile that you might expect the head boy of a school to give to his headmaster. He seemed a charming young man; he was in his early twenties. I said to the governor: "What is he in for?" "Oh,"he replied," stealing bicycles. As soon as he gets out he always steals a bicycle, and then he very soon cones back. We are always glad to have him with us; he is a good influence in: he prison. Only the other day one of: he prisoners lost his temper and attacked a warder, and that little chap had: he prisoner down on the ground in a moment and sat on him till the other warders came up."
I do not know what became of that young man, but your Lordships will observe that his life had become thoroughly well regulated. He experienced what I suppose was the delightful excitement of stealing somebody else's bicycle. If he was lucky he sold it, and with a little money enjoyed himself, and no doubt had a riotous time. Soon afterwards (probably with the second or third bicycle) he was caught, and he then went back—rather as some of your Lordships used to go back to school, thinking on the whole that you preferred the holidays but being glad to go back to the institution where you enjoyed considerable prestige, very likely as prefect or sixth form boy. To him I dare say the food was quite good. Of course, it is nourishing and it is well calculated—it has the right number of calories and perhaps more than some of us get outside, although, I agree, probably not served in a way which would be attractive to many of your Lordships.
Men like my Dartmoor burglar and this youth are in a way just as great a problem as the horribly irreclaimable man. You cannot dislike them. I stopped to chat with a burglar in his cell. He was a charming man. On the little shelf that prisoners are permitted to have he had a photograph of his wife of which he was immensely proud. He produced from his pocket, with great pride—as I would venture to say many of your Lordships have done before now to show to your friends—a little letter that had just come from his small boy, aged about seven, who was writing to him to say that he hoped Daddy would very soon be coming back. It was 515 a pathetic business, but what are you to do? I do not say that these men cannot be reformed; I do not say they cannot be rehabilitated; but it is no use pretending with a facile optimism that you have only to say, "Please take this man and reform him," and he will be turned out at the end of a few years as a reformed character.
When I was a member of the Persistent Offenders Committee, I was told of something which happened in the Army during the 1914 war. It concerned a young non-commissioned officer in the Army who became friendly, so far as it was permissible, with a commissioned officer. He respected his officer and confided in him. They got to know each other well, and the commissioned officer relied greatly upon the non-commissioned officer. One day the latter, in the course of his confidences, admitted that he had been a burglar in civil life. He rose to a good rank and the time came for him to leave the Army. The young officer said to him: "At any rate, now there will be no need for you to go back to your old business. You have a good gratuity, you have a pension, you are a very able man, and you have this good record behind you. You can earn a good and honest living." The other replied: "Well, sir, you have been very kind to me, and I will be quite straight with you. I will tell you exactly what I am going to do with the money I have got. I am going to fulfil the ambition of my lifetime. I am going to buy a first-class set of burglars' tools." That was told me by a credible witness as an event which happened in the Army.
We are dealing with men who love excitement. They have this trade and do not know any other, and it is much easier to go on with it. At present I fear that prison is not doing very much with them. They are good prisoners, and it is making them good prisoners. They never break the rules. The "old lag," as he is called, never breaks a rule. He is rather like some of the boys we knew at school, who knew exactly how little work they need do to get through. He never does more than he is obliged to do, but he never gives the warder an opportunity of putting a black mark against his name. He is a good, satisfactory, quiet prisoner. Surprisingly, 516 perhaps, in the circumstances, but be it said to their credit, many of these men when the mutiny occurred at Dartmoor took the right and proper part of going to the assistance of the warders and joining with them, and, I will not say saving their lives, but at any rate saving them from what might have been serious injury. I am conscious that what I have told you does not greatly assist your Lordships, except in the sense of helping you to recognise the real difficulties of the problem.
I do not want to add much more, but I wish to say something regarding the remarks of my noble and learned friend Lord Oaksey yesterday. There have, of course, been immense changes in prison administration during the past century, and striking changes during my own recollection of the courts, which goes back to something like forty years ago. When one talks about hard labour, as my noble and learned friend Lord Oaksey did, one ought to remember that to avoid misunderstanding it is very important to define one's terms, because the term "hard labour," in the works of those who write about prisons, has a very evil connotation by reason of its history. There was a Select Committee in 1863, and their recommendations are summarised in the words: "Hard labour, hard fare, and a hard bed." It was the view at that time that you must be severe and rigorous. There was to be separate confinement and the tread-mill and the crank were to be relied upon. That was hard labour. There was no association of prisoners with their fellows. Even the treadmill was so constructed that the man was in a little separate compartment, and there was no chance of talking. It was said also in the Report of that Committee:Industrial occupation, though it may vary in amount and character, is so much less penal, irksome and fatiguing that it can only be classed under the head of light labour.And so it was condemned.
The wheel has gone almost full circle. In 1895 the Gladstone Committee, as it was called, reformed the whole prison system, and at that time the Permanent Secretary to-the Home Office, Sir Godfrey Lushington, used these remarkable words:I consider that the medieval thief who had his right hand chopped off was much more likely to turn over a new leaf than a convict who has had ten years' penal servitude.517 He was speaking of the prisons as they were up till then. With the Prison Act of 1898 there was a compromise, and it was felt—and I remember that this was approximately the state of affairs when I was practising at the Bar—that after a while prisoners should be given an easier time, but that for the first month there must be great severity. For the first month the work was made onerous and disagreeable, and there was, for that term, separate confinement. The earlier system—the severe and rigorous system of what used to be called hard labour, with the treadmill and the crank—is regarded, I think by common consent, as a complete failure. I do not think anyone doubts now that that severity, and the severity of the first month—the idea of the short sharp sentence—did not really work. I believe one is forced to that conclusion, and I confess doubt as to whether it would be wise, as my noble and learned friend Lord Oaksey has suggested, to have a different system providing for a short term of imprisonment with what might be called hard labour—of course he did not mean what used to be called hard labour. On the whole, I believe that the present view, that short sentences are a mistake, is right. You cannot do anything with people if the sentences imposed upon them are short. You may be able to do something if the sentences are long. It will be a difficult task at best, but there are cases in which something can be done. After all, one has to remember—and I think that people have not always the imagination to remember it—that loss of liberty is in itself a terrible punishment. It means the loss of all a man's amusements. A man who likes a drink has no opportunity in prison of having one. Until he has been a long time in prison, he will not have any chance to smoke. He will enjoy no female society whatever; indeed, he will have no chance of seeing his friends or relations except at distant intervals. Loss of liberty is a terrible punishment; that, I think, ought always to be remembered.
I agree heartily with what has been said to the effect that we must not expect too much as the result of passing this Bill. I read with distress the other day—as, no doubt, others of your Lordships did also—the account given in another place of life in Wormwood Scrubs. I am not blaming anyone or criticising anyone. I know the difficulties. I know that we 518 cannot build new prisons. Wormwood Scrubs is one of the best of our prisons, but it seems to me a dreadful thing hat a man should be alone in his cell from 4.30 in the evening until 6 o'clock the following morning, with, perhaps, a book from the prison library with missing pages. That is not the way to reform people. I am certain that that kind of monastic life, while in may be excellent for the saint, is not I good life for the sinner. It is not good for him to shut him up alone in a cell for all those hours. I should like to tell my noble and learned friend Lord Oaksey that although I doubt very much the efficacy of anything which was or is called "hard labour," I do believe in hard work for the prisoners. And I think it is true to say that many of them believe in it themselves. When I was at Dartmoor I spoke to numbers of these prisoners quite confidentially in their cells. I found that they did not complain of too much work, but rather of not having enough. They did not like being shut up by them selves in their cells, with nothing to do. Some of them, of course, are not by any means literary persons, and if they had books they would not be interested. Some of them cannot read. I think any of us, if we pictured ourselves in that plight, would feel not only that it was a terrible punishment but that it would not make us better men.
I have said as much as, and perhaps more than, I ought to have said. I want to add only one word before I sit down, otherwise I shall have left untouched the topic which seems uppermost in the minds of everyone. Although, unfortunately, I could not be present yesterday, I have read the report of all the speeches which were delivered in your Lordships' House. Of course, I read the speech of the noble and learned Viscount the Lord Chancellor. If I may say so, there was very little in it with which I could disagree—except the conclusion. But I did feel that, although the noble and learned Viscount's speech proceeded with all the symmetry of a proposition of Euclid, when one reached the conclusion and the quod erat demonstrandum one felt it had crept in from another proposi[...]
When the time comes to vote on whipping, and if I still feel my present inclination—and I was impressed by what the noble and learned Lord, Lord Roche, said—I shall not be disposed to oppose 519 the clause in the Bill dealing with it. As to capital punishment, unless my views are changed in Committee I shall feel obliged, if there is a Division, to vote against the clause in the Bill relating to that. I believe—and I am not going to develop it—that some murders are prevented because capital punishment exists as a penalty. I can understand those who are convinced that capital punishment does not act as a deterrent saying that they will vote for the clause. I can understand the attitude of those who say that, whether it is a deterrent or not, it is so wicked to take another man's life that they will have nothing to do with such a penalty. It is fundamentally a question of principle, I believe, and if you feel that way you will no doubt vote for the clause. For my part, believing as I do that capital punishment is a deterrent, I shall not vote for that clause. You must record your own vote as if upon you alone rested responsibility. That, I suggest, is the only test by which to judge. If it rested with me to decide, then in the future, whenever I read in the Press of a murder I would be mentally confronted with the question: would these innocent lives have been sacrificed, would those innocent relatives have been bereaved, if the capital penalty had been in existence? That would be much more for my conscience to bear than the thought that a few murderers had been executed.
§ 5.47 p.m.
§ VISCOUNT TRENCHARD
My Lords, the only excuse I have for addressing your Lordships to-night is that in the course of a fairly long life, and especially during my association with the Metropolitan Police some little time ago, I have come in contact with many matters affected by this Bill. I propose to deal with only two matters in the Bill—capital punishment and whipping. I am in favour of the deletion of Clause 1 and Clause 3. In other words, I am in favour of capital punishment, and in favour of whipping. I entirely agree with what has been said in this House, particularly by the right reverend Prelate, the Lord Bishop of Winchester, yesterday, and also by the noble Lord, Lord Schuster. Further, I listened carefully to what the Lord Chief Justice, Lord Goddard, said and he put the matter in a way that I wish I could emulate. I agree with everything he said.
520 If capital punishment is done away with, and the only punishment for murder is imprisonment, it seems to me that it will mean we shall be looking upon crime against the person as no worse than crime against material. Is that really so? If we are to have no different punishment for murder than for crimes against material, I think it will be a great mistake. I am not empowered in any way to speak for the police or the police authorities. But, as the result of my association with them, I am certain that they agree with what I am going to say today about capital punishment and whipping. On this question of putting crime against the person on the same plane as crime against material, a point which strikes me is that if we are to make the punishment for a brutal murder similar to that for a great robbery or some other serious criminal offence, we shall be giving to the public at large a feeling that the sanctity of human life is no more important than the sanctity of an individual's property. That must tend to remove from the public mind the feeling that murder is still by a long way the worst crime.
I can understand some of the arguments—though I do not agree with them—but I cannot understand the argument which says that a sentence is only a deterrent. Many noble Lords did not say "only," but I felt that one or two of them implied it. If that is the only reason for punishment, it has not made much effect on crime. The number of robberies is still increasing. I agree with the Lord Chief Justice that we must have punishment for murder, as well as for other crimes, and must not think only of reformation. I feel strongly that the State should keep to the Christian principle that life is most important. The State must accept the responsibility for declaring that a man who deliberately murders another should forfeit his own life, and must see that the sentence is carried out.
§ 5.52 p.m.
§ LORD DARWEN
My Lords, I have listened with great interest, but with growing depression to this debate. While there is obviously a large measure of slip-port for parts of this Bill, I feel there is a deep cleavage between us which is crystallised only on the question of the suspension of capital punishment. As I listened, I could not help but feel that 521 there is an extraordinary lack of agreement among us as to what is the philosophical basis of our social order. No social order can be firmly established, except on some widely accepted concept of its nature and functions and of the nature of man. For centuries the social order of the civilised world has been based on the concept of man as economic man, moved by economic motives and benefited by economic progress. The accepted function of the social order was to keep the ring, to correct glaring abuses and to ambulance those maimed in the fight. It will be generally agreed that that basis has lost its validity in Western Europe—I emphasise Western Europe—and that in this country we are now working out a new basis for our social order. Full employment, greatly increased social services and the nationalisation of industry clearly mark the end of economic man as the? basis of our social order. More than that, they mark the new concept of man which is coming to underlie our new social order, the concept of man as a spiritual being, in a much deeper and truer sense than that held in the Middle Ages. The new society which we are building is based upon a belief in the infinite value of every human being, and the new concept of the functions of the social order is that they must provide the environment in which every member of the social family will have the best possible chance of development. I think that this Bill marks an advance towards that ideal.
I must confess that, while I cordially welcome the Bill, I feel it is only a partway house. It marks the fact, which is clearly seen in the Bill, that we have not fully committed ourselves to this new concept of man and of the social order. The divided mind is evident in the Bill, and its existence has been even more clear in the debate in this House. The noble and learned Viscount the Lord Chancellor put it clearly in opening this debate, when he said:I think the difficulty arises from the fact that we want to carry out two objects at the same time. In the first place, obviously, we want to try to reform the prisoner. We want to restore his self-respect, and we want to ensure that when he goes out again he can stand on his own feet as a useful, responsible member of society. On the other hand, we want so to arrange our affairs as to deter prospective criminals from embarking upon crime. Those two horses, the deterrent and the reformatory, 522 are especially difficult to drive in double harness. If one or other is given his head, the vehicle which you are driving is likely to be ditched.If we could adopt whole-heartedly as the basis of our social order this concept of the infinite worth of every human personality, we should and the solution of many of our problems.
I submit that this basis is the only basis really in harmony with the teaching of Jesus, reiterated again and again in the Parables of the Prodigal Son and the Lost Sheep and in many other places, and really in harmony with His teaching of forgiveness and its healing power, both for the wrongdoer and the wronged. If we accepted that basis, we would not try to drive those two horses in double harness. We would seek the reform of the criminal, and in seeking the reform of the criminal we would find the best possible protection for society. I am convinced that if we could make it clear to the criminal: hat society was not seeking tit for tat, or even its own protection, but was seeking the well-being of the criminal, really aiming to set him on a better way of Life, we should succeed far better in the redemption of these men and women, because we should then be able to appeal to the best that is in them. I have had remarkable experiences of how there is always something wonderfully good in even some of the worst of these men.
In seeking to increase the redemptive nature, this Bill attempts more widely than before to fit the punishment to the criminal, and it extends the nature of punishment and the nature of treatment open to the courts. Moreover, it clears the decks of outworn classes of imprisonment, so that further variation can be adopted within the present system. I have had a good deal of experience of prison life (not as a prisoner) and I feel that we are a long way from having reached any great work of redemption and reformation in our prison system. I entirely agree that a great deal of improvement has been achieved, but there is still a long way to go. Reference has been made to what was said by Mr. Weitzman in another place about the eighteen hours of solitude imposed in many of our prisons. I can say, from my own experience, that that eighteen hours of solitude has a terribly nervous effect on prisoners, and creates what can only be described as a sort of prison hysteria.
523 I believe that far more ought to be done in developing work in the prison—work, I hope, in co-operation, because, after all, most prisoners are men who have never learned to work in cooperation with others. I believe that company work, if properly used, would be a great educational factor. I hope it will be possible, also, to introduce a decent system of paying men for their work, and letting the pay mount up so that there is something with which they can start when they come out of prison. I further hope that there will be much more development of education, much more care in supplying reading matter. Above all, I would plead with the Home Secretary in making the new regulations to see that every prisoner has the right to paper and pencil, unless there is some good reason why he should not have them. I agree that they have a slate and a slate pencil, but believe me, my Lords, for many prisoners the inability to express themselves on paper is a tremendous loss. I believe it has a bad effect upon their mental and nervous condition. I would remind your Lordships that some of the greatest of the world's books have been written in prison, and we do not know what we are losing by not letting men have paper and pencil. John Bunyan wrote Grace Abounding during his first imprisonment in Bedford gaol, and he wrote the first part of Pilgrim's Progress on his second imprisonment in Bedford gaol; William Penn wrote No Cross, No Crown in the Tower, and he wrote The Great Cause of Liberty of Conscience in New-gate. I know that even now it is possible for prisoners, with the consent of the governor, to have pencil and paper, but what I am pleading for is that it shall be a right which shall be withheld only when there are special reasons.
I have said nothing about the suspension of the death penalty but, from what I have already said, it will be obvious to your Lordships that I regard the death penalty as a complete denial of the principles which I have been trying to enunciate, and which I believe are the principles underlying the very parts of this Bill of which many of your Lordships approve. I am only carrying to their logical sequence these principles. I will say at this stage only one thing about the suspension of the death penalty. I entirely agree that legislation cannot go very far 524 ahead of public opinion. I would add to that, however, that legislation itself has an educational value, and you cannot teach the people the sanctity of human life by hanging. That is like a father trying to teach his children virtue by punishment, when he himself is living a life of vice. I plead with your Lordships carefully to weigh this issue, and to recognise that this Bill, with the first clause as it now stands, is in harmony with the way in which we are moving in this country, towards a new and better social life, and is entirely in harmony with the teaching of our Christian religion.
§ 6.8 p.m.
§ THE EARL OF HALIFAX
My Lords, the noble Lord who has just spoken will forgive me if I do not follow him in his discussion of the philosophic basis of social order. He has made a speech which I doubt not, by the spirit of it and the sincerity of it, will have made great appeal to your Lordships, however dubious many of you, with myself, may have felt certain of his implications and conclusions to be. In asking leave to intervene for a few moments in this debate, may I say that it is not part of my purpose to endeavour to contribute anything to the discussion on the general merits of the Bill, or on the content of the contentious Clause I, upon which much has been said; for, indeed, I should be ill-qualified to do so. We have listened to a debate in which the quality of the speeches, delivered by those singularly well-qualified to deliver them, must have profoundly impressed all who heard it. It is, of course, evident that there is among your Lordships a sharp difference of view—and the speech of the noble Lord who spoke last reinforces that opinion—in regard to the principal matter of Clause I, just as we have been given to understand that there has been a sharp difference of view evident within the Government. But I do not doubt that the majority of your Lordships have already made up your minds upon that issue, as I have myself.
Therefore, the reason why I venture to intervene for a moment or two is to discuss briefly the propriety of this House so acting as to give another place an opportunity of reviewing a decision which was, as we all know, reached by a narrow majority only a short time ago. I do not know what advice my noble friend who leads the Opposition may desire on Committee 525 stage to give to those who look to him for advice. I speak only for myself, from a position of greater freedom and less responsibility, but I have no doubt whatever that we have not only the right but also, I would say for myself, the duty so to act as to ensure that opportunity for that further review shall be afforded. I would like to give your Lordships, quite briefly, the reasons why I venture to make that assertion. The noble and learned Viscount on the Woolsack made yesterday what seemed to me to be a somewhat remarkable argument, which was that because in another place a decision, regrettable, as he thought, had been reached, it should now be accepted. He said:Since it has been decided, however, that it is the right thing to do, let us now go forward.If that means that your Lordships are invited, irrespective of the arguments so powerfully deployed by the Lord Chancellor himself, to accept the narrow vote in another place as conclusive, I should find it impossible to follow such an invitation. I would find it impossible to do so on any ground of constitutional claim so far made by any Party in this House; still less would I be able to assent to it having regard to the gravity of the issue and, perhaps even more particularly, to the force and the power of the arguments that we have heard during this debate.
This matter, when it comes to the Committee stage, will be no ordinary question of political difference between Parties, for, as we all know, it cuts across the dividing lines of all Parties. For that reason, as also for its intrinsic character, I would judge the issue to be quite exceptional and, indeed, I would say that if such constitutional provision existed in our arrangements, I can imagine no subject that would be more properly the object of direct reference to the people than an issue such as this. It is also brought forward, as we have been reminded, in very exceptional times, when life is not at all normal and when many may therefore rightly hesitate to take a course which in times more serene they would adopt. Lastly, the matter comes to your Lordships' House from another place in circumstances which are in themselves very exceptional. Your Lordships generally are familiar with those circumstances and I need not, therefore, develop them.
526 There is one other point to which I think we are entitled to attach some importance and upon which I personally feel it right to lay some emphasis. It is that in this House your Lordships lave the opportunity on rare occasions, such as we have enjoyed during the last two days, of listening to speeches made by men who seldom make their presence felt in this part of the life of the House, but who are able to speak with an unrivalled authority and whom it is impossible for those deliberating in another place to hear. Speaking as those noble Lords have, from a lifetime of experience, they have given what is surely a remarkable corpus of striking and formidable testimony.
For all those reasons, therefore, I conclude, as I said at the beginning, that it is not only the right but also the duty of this House to ensure that this grave matter is again brought before another place for full consideration, in the light both of the arguments that have been propounded here and of such reaction of the public outside as there has yet been to this proposal. I certainly cannot attempt—nor would it indeed be proper to do so—any prediction of what the result of such further review by another place may be. It may be, as I have heard suggested, that some reasonable middle way will emerge, which might be made generally acceptable and might relieve some of the worst anxieties that are naturally felt. However that may be, all I would plead for at this stage is the assistance of His Majesty's Government, so that if and when such an opportunity for review does arise in another place His Majesty's Government will ensure that that review is carried out as deliberately and as dispassionately as may be, without the intrusion of any such prejudice as is apt to accompany a normal political difference between the two Houses. I ask that there shall be a full recognition on the other side—and on this I am sure we can count—of everything that is involved for our people and for the nation in what may be the final decision of this, the High Court of Parliament.
§ 6.20 p.m.
§ THE MARQUESS OF SALISBURY
My Lords, I had not intended to speak this afternoon, and I shall do so for only a few moments. The Criminal Justice Bill 527 which we have been discussing is inevitably a fairly technical measure, and I am in the same position as the noble Earl, Lord Halifax, who has just addressed you: I cannot pretend to be an expert on these technical questions. Others far more competent than I have already dealt with the detailed provisions in what I think we shall all agree is one of the most impressive debates to which any of us has ever listened or is ever likely to listen.
As your Lordships know, however, there is in this measure one provision of a fundamental character; that is, of course, Clause I, which deals with capital punishment. It is about this that I should like to say a word. I do not propose to-day to go into the merits or demerits of this proposal. An opportunity will occur for this on the Committee stage of the Bill. I am concerned, as was the noble Earl, Lord Halifax, only with the constitutional position of your Lordships' House. Of that the noble Earl has spoken with all the authority of a past Leader of the House, and I should like, if I may, very diffidently to reinforce what he has said. I hope that the Government will not allow this to become an issue between the two Houses of Parliament. It is not, in fact, one of those mere Party differences to which we have from time to time been accustomed here. It goes far deeper than that, and cuts across all Parties.
We must, of course, recognise—indeed, it is clear from the speech of the noble and learned Viscount the Lord Chancellor—that the Government have been placed in a situation of very real difficulty by the course of events in another place. The Home Secretary had advised the retention of the death sentence, and he was supported in that view by the Prime Minister, the Foreign Secretary and other members of the Government. But, by a free vote—though with many abstentions—and by a fairly narrow majority, the House of Commons, as they were perfectly entitled to do, took a different view. All of us who have been in office will sympathise deeply with the Government in the dilemma in which they have been placed by a vagary of Parliament for which they were not prepared. I am sure that the Government will agree that a decision by the Commons does not bind your Lordships one way or the other. We have here a duty to perform, and it cannot be influenced by what has 528 happened in another place. We have, to the best of our ability, to decide upon the merits of the case. I do not know what view your Lordships will take when Clause 1 comes before us during the Committee stage. You may decide to support the view that has been taken by the other place. You may—and I think at present it seems much more probable—wish either to delete or greatly to alter Clause 1 and to refer back the question at issue for further consideration by the other place. In any case, we must use our judgment; that is not only our right but our duty under the Constitution.
Like the noble Earl, Lord Halifax, I was a little shocked by the metaphor employed by the noble and learned Viscount the Lord Chancellor about the "umpire." The Lord Chancellor seemed to assume that the Commons were the umpire, and that the Lords had nothing to do but accept the decision of the umpire, whatever it might be, and however disastrous it might be for the welfare of our country. That, surely, is entirely to misread the constitutional position. It is not the House of Commons that is the umpire; nor, certainly, is it this House. The real umpire, as I think the noble Earl, Lord Halifax, indicated, is the British people. They are the umpire, and it is they whose views on a matter of such importance for every individual citizen must certainly and ultimately prevail. Fortunately for your Lordships' House, the views of the British people on many matters that come before us are already known, and then the task which we have to perform is a comparatively easy one. I think it will be agreed in all parts of the House that we have tried to perform that task properly and fairly.
Sometimes, as in the present case, the views of the people are not clearly known; but up to now I think the indications, as the noble Viscount, Lord Samuel, said yesterday, are that the country on the whole is heavily against abolition. I do not know whether that is correct, but I have had considerable correspondence. I have no doubt that the noble and learned Viscount the Lord Chancellor has also had correspondence. I have had extremely moving letters. They are not confined to members of any one Party. I have had letters from members of the Labour Party, appealing, rather pathetically, to the House of 529 Lords to save them. In all these letters the view has been the same; it has been always on one side. And that is the side which has been so powerfully represented yesterday and to-day by such men as the noble and learned Viscount, Lord Simon, the noble Viscount, Lord Samuel, the Lord Bishop of Winchester, Lord Oaksey, the Lord Chief Justice and many others.
Such straws in the wind, added to the Gallup Polls, are certainly significant. I therefore submit to your Lordships that in such circumstances it is particularly important that there should be no impression that a free vote by your Lordships is in any way prejudiced by any Party consideration. It must be, in the fullest sense of the word, a free vote. Certainly I intend, so far as it lies in my power, that it shall be so on this side of the House. And when the time comes for the Committee stage, I do not propose to advise my supporters as to the vote they should give. I think that in the circumstances that would be improper. I shall express merely my own views and indicate the course I myself propose to take; I shall leave their vote to their own conscience. I hope most sincerely that a similar course will be adopted by the Government towards their supporters, and that in this case there will be no "direction of labour." Any impression that the vote has been influenced for Party reasons would, I believe, have a most deplorable effect on the public, who feel very deeply on this question. It might even go far to impair the authority of Parliament at a time when it is most necessary that that authority should be maintained.
I am very conscious, as I have no doubt are all your Lordships, of the heavy responsibility which lies upon us all in this matter. It is a responsibility which I believe we are very well fitted to exercise, and if it shows that wisdom and that independence which in my experience have always characterised your Lordships, then, whatever may be the result, we shall deserve well of those many thousands of fellow citizens who are at present looking to us with some anxiety to exercise that judgment and to perform those duties which are laid upon us by the Constitution. I do not want to anticipate what the decision of the House will be, but we must not be afraid to send 530 back this particular clause for further consideration by the other place and must not be deterred from doing so, if your Lordships take the view that that is the proper course.
§ 6.30 p.m.
§ VISCOUNT MAUGHAM
My Lords, it is always difficult to address your Lordships at the end of a long debate, especially rather late in the evening. It is still more difficult when the very powerful speeches which have been delivered are speeches with which one agrees. On this occasion, I should like more people to attack. As it is, I want in particular to say that I range myself behind my noble friends Lord Oaksey and the Lord Chief Justice, Lord Goddard, on the view I take of Clause 1 of the Bill now before us. The noble Lord, Lord Darwen, said something with which I should like to deal, because I think he is right in saying that very little has been said about the principle which should animate us, or should animate the country, in dealing with matters of a penal character. I will make a confession to your Lordships: on one occasion during my long life I was asked to give a lecture on this very subject. I hasten to relieve your Lordships by saying that I am not going to repeal: any of it now. However, I want to say that the conclusion to which I came, after having studied a number of books—and there are some twenty or thirty books of authority with regard to the principle which should animate the country in regard to crime and punishment—was that the principle, and the only possible principle to be considered, is the safety and benefit of the State.
It is the State's interest which is concerned. It is quite true that that may involve the reformation of the offender, so far as he is capable of reformation; but, at the same time, it is the State that is concerned, and no sentimental idea about the sacred nature of human life. In this country, where many thousands of people die long before their time every year, by accidents on the roads, in the air and on the sea—lives which, in many crises, are lost in the pursuit of adventurous aims or practices—it is quite absurd to pretend that the lives of some eleven or twelve people a year are of so great importance that heir deaths ought to be weighed against anything which is proved to be the interest of 531 the State. I have said that, and I do not want to enlarge upon it at this late hour. I should like, however, to say one word on the subject of punishment.
Some of your Lordships seem to think that there is something improper in the idea of inflicting punishment upon an offender. I am not going to state my own opinion, but I would call to your Lordships' minds the very distinct statement made by Lord Lang when he was Primate of All England, in which he wholly repudiated that notion and said that it was not the view of the Church that crime should never be punished, or that the question of punishment should not enter into the matter. It is quite true that one may have to consider the nature of the punishment, and one ought to consider the question of possible reformation. But he scouted the idea that there was any improper notion in punishment for crime. I would observe, in that respect, that there is a very old and commonly quoted phrase which comes to one's mind from the New Testament. It is this:The wages of sin is death.That is not an idea that can possibly be consistent with the notion that we should put out of our mind altogether any question of punishment for serious crime.
I will mention only shortly my own approach to one or two of the questions which have been discussed in this debate. In the first place, I want to say a word about onus, in which I shall be following what my noble and learned friend Viscount Simon has already said, although I shall be putting forward a rather different reason for my view. We have had capital punishment in this country for many hundreds of years. Nobody knows how long it has existed, and it still continues. I think it is worth while to ask what has been the effect of capital punishment on the crime of murder. The first question is: How many people per annum are found guilty of murder at the present time? Going back to 1935, and taking the years since then, I will give your Lordships, shortly, the results. In those twelve years, 20 was the lowest figure and 31 was the highest; that was in 1942. It is not many, compared with deaths by accident, but that is not material to what I am now going to say.
The question I want your Lordships to ask yourselves is: What is the position 532 in other countries? I would remind your Lordships that in the United States of America, instead of an average of about 30, they have 1,000 murders a year. That enormous disproportion leads me to think that, under our system of judicial punishment and convictions, the number of crimes of murder in this country is very small—certainly far smaller than anybody would guess if he read the statistics for most other countries of a densely populated nature. Then, regarding the onus of showing that capital punishment is injurious to our judicial system, I ask your Lordships to take the view that, when things are going so well as regards the number of murders, this is not the time to make this great alteration. The onus is on those who think that by the proposed alteration they can reduce still further the number of murders per annum for which there will be convictions. So much for onus.
Now one word on the subject of this being experimental. The suggestion is that it is to be a five years' experiment. Your Lordships may think that it is a rather curious matter upon which to make an experiment of this sort. It will prove nothing. On one side we are told that the number of murders will go down if we abolish the death penalty; on the other, we are told that the number of murders will go up. As has already been mentioned—I think by my noble friend Lord Samuel—the number of murders in a country like ours depends on all sorts of things other than whether, if caught, a murderer will suffer a particular sort of punishment. It depends on the state of trade, on the state of employment, on the number of police and on housing conditions—because I have no doubt that bad housing drives people to commit crime. It also depends on the number of deserters, who are often criminals, and so forth. Those matters must all be considered. In this year, 1948, we are diminishing the number of deserters, and we may hope greatly to improve the number of houses, even in five years—which is a considerable time with the present Government—and to make other improvements.
I would venture to make a prophecy. Whether you agree with this clause and make the experiment, or whether you disagree with it and do not make the experiment, in five years you will find practically 533 no difference in the number of murders. It is not there that the alteration will show its effect, it is in the number of prosecutions for injuries to the person. I mentioned the statistics of the persons accused. The persons convicted during the last ten years who suffered the death penalty are only 11 per annum. If you have in one year 11 and in another year, perhaps, 13 or 14, that does not show anything as to the influence or otherwise of the death penalty. The extent to which, in a particular year, there is some greater number of murders may depend simply on some question such as people being out of employment in a particular district, or something like that. I ask your Lordships to believe that the experiment has the vital defect that it will prove nothing either way. We must consider this question on general circumstances and arguments as to the position.
I will make one more incidental remark, and that is on the subject of the position of the murderer if he has a ten or fifteen years' sentence. I shall ask the question that I think other noble Lords have asked—namely, how is the murderer to live after he is released from ten or fifteen years in gaol? According to Sir Alexander Paterson, his mind and body in that time will have been greatly impaired. He is a murderer, which is a fact that may become known. In general, although not always, he will be unable to secure any sort of employment. The police are probably watching him and the fact will become known. Then what is to happen? If this becomes law we shall have perhaps 120 murderers in a number of years, all of whom will be unable to work, who will starve if they are not supported by the State, and whose health is of an exceedingly doubtful character. That has got to be dealt with by those who say that we must alter the law. Those, generally, are the arguments which I want: as shortly as possible to make.
I want now to say one thing which has not so far been touched on, and which I invite the House, and those who happen to read the report of this debate, to consider before the Committee stage, because to me it seems a matter of some importance. We all know that capital punishment involves hanging on a scaffold provided with a trap door, which is usually erected in the prison a day or two before the execution. It is said to 534 keep awake the prisoners in the gaol. The Capital Punishment (Amendment) Act of 1868, lays down that there shall be present at the time of the hanging the sheriff, the chaplain, the gaoler, the surgeon and other officers of the prison as the sheriff may require; and in many cases the sheriff has to admit some relations of the person who is to be hanged. My belief is chat that method of exterminating a brute is entirely out of date; to me it is horrible. All these people who have to attend hate it. The prisoners in the gaol get to know about it, and, in many gaols, there have been cases of hysteria among prisoners because they bear that the hanging is taking place on that day.
It is ridiculous to think that in this year of Our Lord we cannot invent a better method of putting an end to these wretched brutes than that of hanging by the neck. It is an unscientific method which, as we know, sometimes has defects because the rope may break, or the drop may not be sufficient to put an and to life at the moment of the drop. What I would suggest as a matter for consideration by the Government—partly because of his and partly because I believe in my heart that it is necessary to have an improvement of this method—is that they should seek advice as to the easiest method of annihilating these creatures, without pain and without trouble, either by the administration of a narcotic of some description, or by a pricking of the arm with some substance that will take away their lives.
I may be wrong (this is the sort of matter about which nobody should be arrogant in his opinion), but my belief is that a large proportion of those people who have spoken so strongly in the other place against the death penalty have done so because of the method by which we are still administering that penalty. With modern knowledge and the introduction of euthanasia, such as a mere prick in the arm, without any such procession as has been mentioned and without the necessity of erecting a scaffold in the gaol, there is surely some way of carrying out the only course which, in the view I take, is necessary in the interests of the State, and which will at the same time accomplish the purpose—or what ought to be the purpose—of the State without any of the horrors and misery of a death by hanging. That is all I have to say, except that I agree fully with what has been said by 535 the last two speakers on the constitutional question. I think also that the Bill as a whole is a good Bill. Even though I know that it probably cannot be brought into full operation for a considerable number of years, it will do no harm to have it on the Statute Book, and ultimately it will become the law of this country.
§ 6.49 p.m.
§ LORD ROCHESTER
My Lords, in following the noble and learned Viscount who has just spoken, I recognise that unwittingly he has thrown an onus upon me of answering the question that he put to those who differ from him—namely, what would be our solution to meet the problem of those men who, when the capital penalty has been commuted, are discharged after a term of imprisonment and have to earn a living. I promise frankly to face that issue before I sit down. Before doing so, however, I want to come back to the Bill itself. Notwithstanding the disclaimer of the noble Viscount, Lord Templewood, I should like to add my thanks to those already expressed to him as being in a very real sense the author, if not the finisher, of this Bill. I join, too, with other noble Lords in expressing the hope that the merits of the Bill will not be obscured by so much concentration upon the question of the abolition of the death penalty. For myself, I welcome the Bill, including Clause 1, and as to that clause 1 will say a few words later.
I am not going to delay your Lordships unduly; first, because the hour is late and we have had a long and, as I think, momentous debate, and secondly, because the noble Viscount, Lord Templewood, has said infinitely better than I can much that I had wished to say. But there is one point upon the general issue of the Bill to which I desire in passing to refer. Notwithstanding what was said by the noble Lord, Lord Schuster, and I think also by the noble Lord, Lord Kershaw, yesterday, I join with the noble Lord, Lord Holden, in intensely regretting the provision that a conviction must precede a probation order. I have been a magistrate for over forty years, and I remember well during my association long ago with the late Mr. Sidney Edridge, feeling what a valuable work he was undertaking when he took so large a part in the formation of the Probation Officers Association. With almost a lifetime of 536 experience since then, I now say without hesitation that, in my humble judgment, it would be difficult to exaggerate the value of the probation system in this country. But I confess that I regret the inclusion in this Bill of a provision—nay, a Statutory obligation—that makes it essential that there must be a conviction before an individual is put on probation. My primary objection is on the ground that it entails a stigma which we would much sooner should not rest upon the person concerned. Speaking generally, I am sure that probation officers are doing a work that is of inestimable value to the country, and I hope, with one of the noble Lords who spoke yesterday, that when the question of their emoluments comes to be considered it will be considered in a very generous spirit.
While I am sorry to sound a discordant note, I confess frankly to amazement at some of the things that were said by the two right reverend Prelates who have taken part in this debate. I sincerely hope that the sentiments they expressed do not represent the considered judgment of the Anglican Church. As I listened to the right reverend Prelate, the Lord Bishop of Winchester, yesterday, developing his argument on the subject of punishment generally, and to both right reverend Prelates on the subject of the capital penalty, I felt that the late Archbishop Temple, of revered memory, might well turn in his grave, but for the fact that, having reaped the promised reward, he is not there.Blessed are the merciful for they shall obtain mercy.For a mere layman like myself, I confess that it is somewhat difficult to reconcile the words of the two right reverend Prelates with the admonition of their Master, and mine, in St. Mark XI, 25. As I listened to the right reverend Prelate, the Lord Bishop of Truro, I wondered whether he was looking back with longing to the Eighteenth Century, when stealing anything worth five shillings entailed the capital penalty. As to the capital penalty being a deterrent, I would ask the right reverend Prelates, is there any deterrent to crime which can effectively operate, other than a revival of personal religion? My objection to the capital penalty is primarily that I believe, with the fullest conviction, that all punishment, without 537 exception, should be reformative; that no criminal should be abandoned beyond hope. The capital penalty cannot be remedial in respect to the person affected, for it takes away irrevocably the possibility thereafter of repentance and reformation.
We were told yesterday by the noble and learned Viscount who sits on the Woolsack, in reply to a question by the noble and learned Viscount, Lord Simon, that, during the last ten years 104 persons convicted of murder, whose capital sentences had been commuted to penal servitude for life, were released from prison. At this point I would like to meet the question raised by the noble and learned Viscount, Lord Maugham, when he threw the onus upon us of saying what should be done with those who are so released. I must here crave the indulgence of your Lordships, for I am speaking on the spur of the moment and from memory. I am an old man now, between 70 and 80 years of age. I do not know that I can trust my memory as to details, but I can tell your Lordships this. When I was in the other House as Liberal Member for Rochester, at a certain time—I am not sure, but I think it was between thirty and forty years ago—I received a letter one morning from the Methodist chaplain at one of our convict prisons about a particular prisoner. He felt keenly that this prisoner was very repentant and recognised to the full the immensity of his crime, and he, the chaplain, asked whether he might come to see me. I hesitated, but eventually I intimated that I should be willing to see him. He came to see me and he told me a story that I shall never forget.
As a Member of the other House, I went to see the then Home Secretary, and I put the facts before him. But I did not carry my point; he could not see his way to release the man on licence. Some years passed and (I cannot trust my memory as to whether there was a change of Home Secretaries) I received a letter from the Home Office asking me to call on the Home Secretary. I went to see him, and he said that he was considering the question of releasing on licence the man to whom I have referred. The question he faced me with was this: "If he should be so released, would you be prepared to employ him?" I will be quite frank: I was in a pretty serious position, as a 538 public man with a great number of employees, and I hesitated. I said I should like to have time to consider it. But eventually I saw the Home Secretary and agreed. And I want to say to your Lordships that, having once employed such a person as one of those referred to by the noble and learned Viscount the Lord Chancellor in his reply to the noble Viscount, Lord Simon, I never once had to regret doing so. That man made good. If ever I have come in contact with a man who was really repentant and at the same time recognised the immensity of his crime, that man did. He made good. And I think I am justified in relating that personal experience in answer to what the noble and learned Viscount said. I do not want to detain your Lordships. I desire to commend the Bill entirely to your Lordships' favour and ask you to give it, including Clause I, a Second Reading.
§ 7.1 p.m.
§ LORD MILVERTON
My Lords, in making a brief intervention in this debate, I feel that at this late hour it requires a certain amount of personal explanation as to why I should have the temerity to speak when all the main points in the debate have been made with such ability by abler and more experienced speakers, My reason for speaking at all is that there is one aspect of the abolition of the death penalty which has not been touched on in this House, but which I think has some bearing on the question and should be considered, and that is the effect which any such abolition will have in our Colonial Dependencies. We are dealing there with over 60,000,000 people, and whatever may be the view taken about the standard of civilisation reached in England, which may or may not justify such a drastic step as this, there is no question whatever that neither public opinion nor public advancement in those territories could possibly justify any such step. I speak as an administrator trained to take an objective view of these questions and to appreciate also the danger of allowing waves of sentiment or emotion to cloud one's judgment in matters of public policy and public security.
Before I proceed, perhaps I should make my own position clear in regard to Clause I, which as it stands concerns this country. I feel that it is not only my right but my duty, as a member of this 539 House, when the time comes, to express in a suitable way my view that that clause should not be allowed to stand in the Bill. It may be that in the opinion of some people the time has come to introduce such a provision, but I differ with equal sincerity. There is no need for me to go into the reasons, which have already been explained with such clarity. It seems to me a curious argument that this country has reached such a stage of advancement that the time has come to abolish the death penalty. I should have thought that the greatest proof that this country had reached such a stage would be a diminution in the number of murders, but apparently the process is to take place from the other end. It seems that the prodigal son is obtaining rather a monopoly of sympathy in this country at the present moment, to the detriment of the ordinary decent citizen.
May I now turn to the question of the Colonial Dependencies? In our Dependencies in various parts of the world during the past eighteen years I have been in the position in which the Home Secretary is in this country, and during that time it has fallen to my lot to exercise the very grave responsibility of deciding whether or not the law shall take its course after a conviction for murder. I assure your Lordships that that responsibility is taken with the utmost gravity by the Governors throughout the Empire. They have to consult the members of their Executive Council, who offer their advice. They do not have to take that advice, but the matter is considered by a group of responsible men. Whether or not there has been a recommendation for mercy from the Judge who heard the case, every possible detail that may bear on the exercise of the prerogative is considered. A study of the figures will show that wherever it is reasonably possible, that prerogative is exercised. But there can be not the slightest doubt that nobody with the personal knowledge I have could possibly argue that the abolition of the death penalty throughout the Dependencies would be other than disastrous to the Governments of those countries. I consulted to-day another member of your Lordships' House who is not able to be present, and he asked me to quote him in support of what I say. I refer to the noble Lord, Lord Hailey, who says in the most emphatic way that the first 540 result would be an outbreak of new murders, and the position of the police and those responsible for order would be made almost impossible.
I can point to one instance where this arises—the operation of the murder gangs, the Leopard Men, in Africa. During the past year or two there have been upwards of 200 of the most brutal and degrading murders in a certain area of that country, and if it were not possible to impose the death penalty when the murderers were caught, it would unquestionably bring the law into contempt. What is more, it would start a series of blood feuds. After all, is not that the origin of the death penalty in the courts—the State saying that blood feuds must cease? We have imposed that view throughout the Colonial Dependencies. Surely the greatest obligation on the part of the State is to see that public opinion as it exists in these countries is adequately satisfied that justice is done. There is no question that, apart from the degree of murder, which we have been discussing, if the convicted murderer were not to suffer the ultimate penalty it would mean that we should have these people slipping slowly back into the practice of taking the law into their own hands. In the light of the way they look at things, we could not say they were wrong or blame them for it.
I do not wish to detain your Lordships any longer, other than to say that if this clause does not automatically come into force in the Dependencies, it is quite inevitable, especially if there is a Secretary of State for the Colonies who himself does not believe in the death penalty, that persuasion, direct and possibly indirect, will be brought to bear on the Colonial Legislatures to follow suit. That is the normal thing which is done in important matters of legislation like that, and the results, as I have endeavoured to indicate, would be quite disastrous. In passing, perhaps I may say in relation to whipping (I do not refer to the "cat" but to whipping by the birch) that again there can be no question whatever of the harmful effect that abolition would have, certainly in the Colonial Dependencies. I can quote an instance from my own experience in one Colony where I was responsible. Certain forms of crime appeared and grew, and it was quite impossible to control them. I re-introduced the penalty of 541 flogging, and they stopped at once. You can have no greater proof, my Lords, than that. I do not say that that would necessarily apply in this country, but I quote it to indicate my point that, whatever may be the state of things in Britain, it does not follow that our Colonial Dependencies have yet reached the requisite stage of development.
§ 7.12 p.m.
§ LORD DOWDING
My Lords, I desire, with your permission, to occupy a few minutes of your time by a discussion of two points which, surprisingly, have received no consideration in the speeches to which I have listened during this debate. They are both in connection with the principle and application of the death penalty. The first is the effect of execution on the criminal himself. I expect that many of your Lordships, like myself, were brought up and taught as children that those who fail to attain to a certain standard of morality, and who die unrepentant, go to a place called Hell, where they remain in torment for all eternity. It may be that some of your Lordships, Spiritual or Temporal, still hold to that belief. If that be so, it would seem to me that those noble Lords must necessarily support the proposal to abolish the death penalty, in order to give the criminal, in the words of the Prayer Book, "time for amendment of life."
It would be unthinkable for people who hold such views to jeopardise the eternal future of a human soul by precipitate action, however much such action might conduce to the convenience or the safety of the community. Others of your Lordships, again, may believe that at physical death the human personality is snuffed out like a candle flame, never to be rekindled, never even to be able to experience regret for the termination of its existence. Such of your Lordships—if any there be—may confidently support the death penalty; and, if they are logical, they will wish it to be extended to all who, on balance, are a liability rather than an asset to the community.
But I should probably be right in saying that the great majority of your Lordships subscribe to neither of these extreme views. You may, perhaps, share with me the belief that the spirit of man is immortal; that he continues his 542 life on the other side of the grave, and that in the early stages of that existence, at least, his condition is decided largely by the personality which he has made for himself in this life. Here, then, is an argument against hurling the murderer precipitately out of physical existence, and for giving him at least a chance to amend his life, if he is willing to do so, though the argument is not so compelling as it would be if we believed that the man was headed for eternal damnation. I think perhaps a good many people say to themselves, if only subconsciously, something of this kind:" He has made his bed, let him lie on it. By all laws, human and divine, he must suffer for his evil deed. Let him suffer, if needs be, on the other side of he grave. We, at any rate, shall be rid of him. We shall not have to look after him at the common expense for a number of years, and we shall not be faced with the responsibility of eventually letting him loose again upon society."
This argument contains a serious fallacy which brings me to my second point. These people say: "We, at any rate, snail be rid of him." But that is not a fact. Our three-dimensional minds lead us to think of Heaven and Hell as definite localities. We do not quite know where they are, but we think, at any rate, that they are not "here now," as the relativitists say, and that their inhabitants cannot contact us and affect our daily lives. That is just where we are wrong. The fact is that all worlds are one; the perpetual war of Light against Darkness continues, in that world, be the combatants incarnate or discarnate; and the forces of Darkness depend to a great extent on the recruitment of evil men hurled across the border, whether by war or by execution, filled with rage and hatred and a burning thirst for revenge. Have your Lordships sometimes heard of a poor bemused prisoner, being tried for murder, saying: "I do not know why I did it. I had nothing against him, but I heard a voice inside my head saying: 'Hit him with a hammer; hit him with a hammer.' "If you have heard a story like that, you have heard of one murderer, at least, with whom we did not finish.
This capital punishment clause is very important: to this country, and the decision of this country is very important to humanity. Each one of us who has a 543 vote in this House carries a responsibility transcending the mere political effect of accepting or rejecting the clause. Each one of us must vote in accordance with his conscience. I have chosen to speak to-day, rather than wait for the Committee stage, in order to give time for the study of a point of view which, though perhaps new, many may yet think worthy of consideration.
§ 7.20 p.m.
§ LORD BALFOUR OF BURLEIGH
My Lords, it may perhaps be a relief to your Lordships if I say at once that I do not intend to refer to Clause 1. I think it is a great pity that this debate has been almost entirely overshadowed by Clause 1. I do not mean that I regret a single one of the speeches which have been made. We have had a wonderful debate, and I express the hope that that debate will continue fully when we come to the Committee stage and consider Clause 1. This Bill contains in all seventy-nine clauses, and there are many matters in the other seventy-eight clauses which I would have liked to hear debated on Second Reading. There are some great principles in this Bill, and it is on Second Reading that we refer to principles. I do not intend to enter the discussion as to whether the system should be deterrent or reformatory. I accept what has been said by great authorities in the law, that our system of law must be deterrent. That I accept absolutely, and I would not like to see the law so altered as to cease to be in any way deterrent.
What I am more interested in, if I may say so, is the attempt to make the law reformatory, because if we can reform a criminal, or a potential criminal, we are adding an asset to society which is a permanent gain. Glancing through this Bill—and I do not pretend to have made more than a cursory survey, because we have not had very long since it came from another place—I find that the new system of reformatory legislation is leading, so far as I can see, to some rather strange conclusions. I am going to mention only quite briefly to your Lordships three points which seem to me a little startling. I say at once that I do not doubt the good intention behind these propositions, for I am certain those are excellent, but I do think the proposals require examination.
544 The first point to which I wish to draw your Lordships' attention is that quite an early clause of the Bill provides that a particular form of treatment may be prescribed by Order in Council, limited to persons of one of the sexes. If that is left in the Bill, what becomes of the great principle of equality before the law? I have always been brought up to believe that it is the pride of our legal system in this country that we are all equal before the law—rich or poor, old or young and, I should have thought, male or female. But here we have a provision which is going to permit, by Order in Council, legislation limited specifically to one of the sexes That is a matter about which I should like to know more, and perhaps we shall have an opportunity of discussing it on the Committee stage. But equality before the law is a great principle and I should have thought deserves mention on Second Reading.
The second point is that I find enshrined quite definitely in a later clause—not only in the clause of the Bill which originally dealt with mental affairs—a provision for compulsory mental and physical examination. Again I have always understood it to be a principle of the common law that the person of an accused could not be physically examined without his consent. I believe there are practical reasons for that. I believe, for one thing, that you will not get much benefit from an examination, either from the mental or physical aspects unless you have the co-operation of the prisoner. That, again, I believe to be an entire departure from any principle of law which has been established in this country up to date.
My third point refers to a clause where I find that power is taken to take fingerprints of an accused person before there is any proof of guilt. That, I think, is a provision which we must look at with great care when it comes to Committee stage. I observe with some interest that the Bill provides that a constable is to be empowered in this matter to use "such reasonable force as may be necessary." I hope the Lord Chancellor will tell us what "reasonable force" means. I know what reason is—at least I can always respect reason when I hear it—and I know what force is, but I do not know what "reasonable force" is. On the Committee stage I hope we may examine that matter further, 545 but it is an entirely new principle of law that an innocent person—because a person is innocent until he is proved guilty—should be forcibly made to give a fingerprint. I am not a lawyer, and I hesitate, in a debate in which there has been participation by a galaxy of ex-Home Secretaries as well as a large number of great lawyers, to lay down principles of common law, but I have always understood that among them are these three principles. The first is equality before the law, the second is inviolability of the person of the accused, and the third is a presumption of innocence until the establishment of guilt. I am startled to find that these three principles are, as I see it, infringed in the Bill. Every one of them is a potential weapon of oppression of people who may be defenceless.
I now address myself to the Government. This is a Government which I suppose would claim, above all Governments, to be the protector of the oppressed and of the defenceless. I think I would not appeal in vain to the Government as being a Government which set out to see that the underdog gets fair treatment, and we shall look to them to see that very adequate reasons are given for such strange innovations as I have ventured to indicate. There may be others, but those are the three which I happened to notice in the very cursory study which I gave to the Bill. We must see to it that the zeal of the administrator is not allowed to outrun the limit of discretion which the Legislature ought to give him.
§ 7.28 p.m.
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
My Lords, I shall follow the excellent example set by the last speaker, and say nothing further about Clause 1, except just this about my previous speech. Both the noble Earl, Lord Halifax, and the noble Marquess who leads the Opposition, seemed to think that in that speech I cast some doubt upon the propriety of your Lordships' House dealing with the Bill in any way you thought proper. It is not that I want to justify myself or read it, but if your Lordships would look at what I said, as reported in column 398 of Hansard, you will see that I made it quite plain that I was speaking for myself. For myself the position is quite simple. I was a party to a bargain. I agreed that this matter should be left to a free vote, and I agreed to stand by the result of that
546 free vote. It is quite plain, therefore, that I cannot do anything. I do not suggest for a moment, however, that your Lordships are bound, because you were not parties to the bargain. All things are lawful for you. What is expedient is a matter for you to judge, but certainly your Lordships have constitutionally, beyond any argument whatever, the perfect light to send the clause back to another place for further consideration if you are so minded. If your Lordships will look a little carefully at the words I used, I think you will find that, although I was speaking on the spur of the moment, what I have just said is correct. I think you will find that that is my position. I venture to think, too, that that is not an illogical position. I venture to think it is a position to which I am logically driven by the course which I took. I frankly confess that I expected an answer in a different sense, and if I had received an answer in a different sense I should have made every use of it. Noble Lords will forgive me if I do not go through all the Committee points which have been raised. I am glad they have been raised, because I now have warning in advance of the sort of points which I shall have to meet. But I must say that, having listened to practically the whole of this discussion over the last two days, I think this is one of the most remarkable debates to which I have ever listened. And I am rather proud to say that it has been illuminated, as I think, by great speeches setting forth the two rival points of view. May I assure the noble Viscount, Lord Templewood and the noble Lord, Lord Pethick-Lawrence that we do not think that those who differ from us are soft or mealy-mouthed, or in any sense whatever different from ourselves. The debate has also been illuminated by the speeches of some of the Judges; and having listened in my time to many ma den speeches and having on many occasions had the obligation of congratulating a speaker on his maiden speech, I would say, without hesitation, that, of all the maiden speeches I have ever heard, that made by the noble and learned Lord, Lord Goddard, the Lord Chief Justice, was quite the best. I think he showed in that speech that the Judges are not the inhuman creatures they are sometimes supposed to be, not "stick-in-the-muds," talking the language and thinking the thoughts of about 200 years ago.
547 The old gibe about Lord Ellenborough is really not sufficient ground on which to say for ever afterwards "You may completely disregard what the Judges think." After all, Lord Ellenborough was making the mistake of forgetting that juries were not convicting because the penalties were so hopelessly out of proportion to the offences. When (in the year 1832, I think) the Act to abolish the death penalty for forgery was passed, it was the bankers who produced that Bill—not because they were moved by any sympathy for the forger, but because, so long as the penalty for forgery was death, they could not get a conviction. When I recall some of the great Judges since Ellenborough's time, I think, for instance, of Sir Samuel Romilly—and who has done more to restrict and limit the death penalty than Romilly?—and of many other names which will occur to any educated person. And I should like to think that our Judges to-day are in the same great line.
The question was asked by the noble Marquess, Lord Salisbury, as to whether there would or would not be a free vote, so far as our side is concerned. That, of course, is a matter for my noble friend the Leader of the House. All I can say, because I have not had an opportunity of consulting him, is that he is aware that the suggestion has been made. He will look carefully at the suggestion, and he will no doubt take an opportunity of communicating with the noble Marquess about it. I cannot, at the moment, go further than that.
§ THE MARQUESS OF SALISBURY
I should not presume to expect an answer from the noble Viscount the Leader of the House on what instructions he intends to give to his Party. All I can say is that I hope there will be a free vote. I do not wish to carry the matter further than that.
§ THE LORD CHANCELLOR
The question of whether or not there will be a free vote will depend upon the instructions given by the Leaders of the four Parties—and, of course, upon whether their followers follow their lead. I was also asked whether I would prepare a White Paper. I have not had an opportunity of consulting the Home Secretary about it, but I am sure that he would be quite willing to obtain for noble Lords any available information which there may 548 be. It seems to me—though I am speaking without authority—that it is quite impossible, between now and the Committee stage, to prepare a White Paper dealing with this matter. The reference I made to Belgium also relates to a large number of other countries. It is set out in an Appendix to the Report of the Committee of 1929–30. This volume is, of course, in our Library and the facts I stated about Belgium are derived from it. Whether there have been any alterations in the facts and figures since 1929–30 we could no doubt ascertain by inquiry. The statement I made—and I have checked it since—was accurate as at 1929–1930, and your Lordships will find there also the statistics and figures for many other countries. It is quite impracticable, in any period of time short of months, to bring that sort of information up to date. But I will gladly convey to the Home Secretary the requests which several noble Lords have made and ask him to consider to what extent, if any, he can satisfy them.
§ THE MARQUESS OF SALISBURY
If my memory serves me aright, it was not a very harmonious Committee in 1929–30. One Party walked out long before the Committee had concluded their discussion, and therefore this Report represents only one side; the minority never presented a Report at all.
§ THE LORD CHANCELLOR
That is quite right. But the evidence which was given is all there. The statistics were all given in evidence. The book which the noble Marquess has in his hands is only the Report and not the evidence. That is all in this formidable document I have here which I borrowed temporarily from our Library.
§ VISCOUNT TEMPLEWOOD
May I interrupt the noble and learned Viscount for one moment? I wonder whether he could not communicate with our representatives in, say, Belgium, The Hague and the Scandinavian countries, to ascertain the latest information upon the points that I raised to-day. If so, I think he will find that a great deal of the information of 1929–30 is out of date. I should have thought it was quite possible, through the Diplomatic channels, to have obtained, I do not say a detailed analysis but a general picture of the changes that have taken place since the taking of the evidence.
§ THE LORD CHANCELLOR
I am perfectly willing to consult the Home Secretary about it, and to tell him what is wanted. The matter was raised only to-day, and I have not had an opportunity to consult him. If he can do anything, I have no doubt that he will do it.
I should like now to refer briefly to some of the matters which have been mentioned in the course of the debate. May I justify myself to the noble and learned Viscount, Lord Simon, as to what I said about sending children to prison on remand? If he will refer to Section 33 of the Children and Young Persons Act, 1933, he will find that I quoted that section correctly.
§ VISCOUNT SIMON
I am greatly obliged to the noble and learned Viscount. What I meant was that, however that may be, I am sure that the case I mentioned occurred—in that I was confirmed by the noble Lord, Lord Schuster—because I had to take action.
§ THE LORD CHANCELLOR
I do not know the date. It may, of course, have been before 1933. The noble and learned Viscount will know that it sometimes happens that magistrates exceed their jurisdiction; but under the law they are not entitled to send a child to prison on remand.
The noble Viscount raised another question—I am dealing only with a few of these broad issues—whether we should take this opportunity for ending what he referred to as a preposterous anachronism with regard to the trial of Peers and their wives. To my way of thinking, it is a preposterous anachronism. He poked some fun at it and, if he had had unlimited time, he could have poked much more fun at it. It often happens that a set of circumstances give rise to two crimes, one of which is a felony and the other a misdemeanour. Lord de Clifford was tried for manslaughter. Manslaughter is a felony, and the ordinary courts of the land had no jurisdiction to try him. He had to come here. I hope I am right about this. When a man is charged with manslaughter, he can be convicted of dangerous driving. Dangerous driving is a misdemeanour, and for misdemeanour we in this House have no jurisdiction at all. So the unfortunate man, having been acquitted here of the charge of manslaughter, which is a felony, then had 550 to go to the Old Bailey to be acquitted there of dangerous driving, which is a misdemeanour. When I tell your Lordships that this applies not only to ourselves but also to our wives, I am sure you will appreciate in what peril we all are!
Some years ago, this House passed a Bill to alter all that, and we sent it down to another place hoping that we should get it through. I think the date was about 1937 or 1938. When it reached the other place, no less a person than Mr. Churchill himself gave notice that he was going to move this Resolution:That this House declines to proceed with the Second Reading of the Bill in advance of the measures for the general reform of the House of Lords formulated in the Preamble to the Parliament Act, 1911.I cannot help feeling a little alarmed for the speedy passage of the Criminal Justice Bill if, when it reaches another place, it is to be held up by consideration of the reform of the House of Lords as promised by the Parliament Act of 1911. Therefore, I am a little disposed to think that, unless we can secure the most complete assurances of what will happen, it may be better to do it by means of a, separate Bill. If I talk about any new or separate Bills, the noble Viscount the Leader of the House will look rather glumly at me. So far as sympathy with the project is concerned, I am entirely with the noble Lord, either in this Bill or in some other Bill if time permits, but I make no promise that it shall be done.
There was some criticism of the Bill on the ground that all this project is really very much in the air. I said something of the same sort to the noble Marquess, Lord Reading, on some earlier occasion. Of course, it is true that there is no doubt: hat we have to build detention centres, and the like, but there is not much chance of building them at the present time. On the other hand, for some purposes—I do not say these purposes, because we should require secure buildings out of which people could not escape—we are able to obtain accommodation in the form of large country houses. Indeed, we have done so. So far as probation homes and hostels are concerned, they will not necessarily involve any building at all; it is merely a question of obtaining suitable premises. Remand homes already have to be provided by local authorities, 551 and this Bill does not add to their commitments. Borstal institutions are available and we have obtained some country houses to deal with this particular matter. I agree that it will be some time before remand centres and detention centres can be built, but it is just as well now to take the power to build them so that, when the opportunity does arise, we shall be able to do so.
The Prison Commissioners also have their plans about building. Part of their plan is to pull down a number of old, antiquated prisons and that will take some time. I do not want your Lordships to go away with the idea that this is a "soft" Bill. It is nothing of the sort. It enables any court dealing with a serious offence to impose a severe punishment if, in the opinion of the court, a severe punishment is required. The whole distinction between penal servitude and imprisonment is now very little. For a very long time it has been the practice for convicts to serve sentences in local prisons. Again, the distinction between hard labour and ordinary imprisonment has almost ceased to exist. Hard labour was described as beingany labour which does not visibly quicken the breath and open the pores.I suppose that was in connection with the working of cranks and treadmills, and also shot-lifting. I really think—and I am sure that everybody who thinks about this takes the same view—that that is a completely antiquated idea. I am quite convinced that one of the secrets is to make the man engage in useful work. I mean that even supposing we do not have that very hard form of labour, to make a man dig a hole and fill it up again is, to say the least, soul-destroying. We want to give him useful work to do, work in which he can take a pride and nothing will restore his self-respect better than such an opportunity. It may be that some of your Lordships saw a letter in The Times recently from Lord Justice Wrottesley in which he expressed this point of view. I feel certain that the Prison Commissioners—I am only saying what they desire to do—must try to introduce more useful work into the prisons, into the prison workshops and so on.
We were criticised upon the fact that we had not been able as yet to introduce a Bill dealing with the most valuable 552 Report of the Roche Committee on Magistrates' Clerks. There again, I can say that I am very anxious to be able to introduce a Bill to implement that Report. However, as I have said before, it is more than my post is worth to promise a particular place for it in any particular programme of legislation. In the meantime, it is the fact that we have been doing what we can without legislation. The amalgamation of the justices' clerkships with adjoining areas, so as to provide whole-time clerks can, to some extent, be carried on without legislation. That is being done.
Now just a word on the divisions of prisons. There used to be a first division, a second division and a third division. That system has now become completely obsolete, if only because the Prison Commissioners themselves have a much more detailed classification than that. It depends to-day upon many considerations. All this is worked out in prison rules, and the clause regarding first division, second division and third division strikes out of the Statute Book much unnecessary and old learning.
I could not agree more than I agree with the Lord Chief Justice in that we must clear our minds with regard to these detention centres. I cannot pretend to-day to give your Lordships details of the courses that will be instituted there. The buildings are not yet built, we have not yet got the staff and the whole scheme lies in the future. But I think it very desirable that we should have a system in a detention centre whereby we can bring home to a wrongdoer, by means of short but sharp punishment, that he had very much better not work against society but try to become a useful member of it. That is the line on which we shall try to work these centres. Of course, before Judges are expected to send people to these centres they must be told about them, so that they can see for themselves exactly what we are doing.
I am not going to detain your Lordships any longer at this late hour. Although I have not mentioned many of the matters which have been referred to, I can promise that all the suggestions which have been made will be most carefully examined and, when we get to the Committee stage, we shall of course be able to give detailed consideration to those various matters. I myself agree with the 553 last speaker: I think it is a pity in a way that, by reason of the fact that Clause 1 has taken such a prominent part in our discussions, we have at times seemed rather to forget that there are seventy-eight other clauses. But when we reach the Committe stage we shall be able to correct that, and I, with the assistance of some of my noble friends, will do the best I car to answer the points that have been raised, and to try to justify the various proposals. The discussions we shall have 554 will, I have no doubt, be friendly—they always are, more especially when there are no Party politics in; he Bill. I have no doubt that from those discussions, and in the light of your Lordships' experience, we shall be able to make what I claim is a good Bill an even better Bill.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.
§ House adjourned at five minutes before eight o'clock.