§ 2.13 p.m.
§ Order of the Day for the Second Reading read.
§ VISCOUNT TEMPLEWOOD
My Lords, I rise to move the Second Reading of a Billto provide for abolishing, or suspending for a period, the passing and execution of the death sentence on conviction of murder and to substitute an alternative penalty therefor.It is a short Bill dealing with a long controversy. Indeed, I suppose that there never has been a penal question that has been so constantly discussed over the last century and a half and that has led to such an intensity of discussion during the last eight years. Press, public, both Houses of Parliament and the Royal Commission, each in turn has examined the question from every possible angle.
To-day I am here to ask for the Second Reading of a Bill that has gone through all its stages in another place and that has been sponsored by a Private Member; and, on that account I suggest that the achievement is even the more remarkable. Those of us who spent many years in the House of Commons know how difficult it is for a Private Member to get even the most uncontroversial Bill passed. Here is a Private Member who, in the face of admitted Government opposition, has managed to get this Bill passed through all its stages with, on the whole, steady majorities, although I admit not very big ones, in very representative Houses.
My Lords, I am here to-day to ask, first of all, whether any change has taken place since I made a not dissimilar speech eight years ago, when the side that I supported was defeated by 181 votes to 28 votes. I suggest—this is my first contention—that since 1948 there have been substantial changes in public opinion. The change has shown itself, as I have just suggested, in another place. It has shown itself even in my old office, the Home Office, where I have observed that the present Secretary of State has himself moved in another place a Resolution that would, if carried, have made several changes in the present system. I am told, most surprisingly of all, that there has been some change upon the Judicial Bench—I do not venture to say anything concrete. This is a subject that I know 565 has given rise to controversy in the past, and I shall be interested to hear in the course of the debate whether to-day there are not substantially more Judges on the side of abolition than there were in 1948. I suggest, therefore, that a change has taken place, and that every Peer should look upon this new situation and judge it, not by what he thought in 1948 but by what he thinks to-day, in view of the great body of evidence that has been collected by the Royal Commission and the years of publicity and controversy that hare taken place since our last debate.
I could make a very long speech upon these questions. I could repeat once again what I have often previously said in this House—indeed, in these penal debates we have come almost to the point when some of us have our "signature tunes, and as soon as one of us begins to speak we can almost assume everything that is going to be said. I am painfully conscious of the fact that there are something like seventy-two Peers who wish to speak, and I am sure I shall be conforming with the general wishes of the House if I keep my remarks to the lowest possible minimum. I propose, therefore, not to go into a detailed argument upon every phase of the question but rather to state my particular views in the form of four or five sample propositions. I do not suggest that the propositions arc non-controversial; I can well imagine that to-clay and to-morrow they may be controverted; but I cannot help thinking that it would be convenient if the mover of the Motion, at the start of the debate, put his views into the form of certain clear propositions that lay themselves open to debate during the next two days.
The first proposition that I venture to put to the House is that the existing law of murder is most "evasive and sophistical." I take my description from a Report of a Select Committee of another place which used those words as long ago as 1875. This is what they said:If there is any case in which the law should speak plainly without sophism or evasion it is where life is at stake, and it is on this very occasion that the law is most evasive and sophistical.Why is this? It is because the crime of murder shows every kind of variation in culpability, and it would be manifestly unjust to apply the death penalty to every case. The result is that, the law being rigid, means must be found Outside 566 the Statute Book for mitigating it. I give two instances: first, the frequent use of the Royal Prerogative, on which I shall say something towards the end of my speech and secondly, the frequent recourse, in murder eases, to the Macnaghten Rules. Both these expedients are unsatisfactory. Neither conforms to the Lord Chief Justice's statement that the punishment for murder should be "simple and certain." Each of them introduces elements of doubt and diminishes the certainty of the penalty which, according to some people, is the chief deterrent against the crime of murder. It is this unsatisfactory state of affairs that has made so many of the propagandists recommend, in the course of this controversy, changes in the present system.
Let me remind your Lordships of some of these recommendations. The Lord Chief Justice, in his evidence to the Royal Commission, has stated that there should be an amendment of the law dealing with constructive malice, suicide pacts and abortion. The noble Viscount, Lord Samuel, whom we are delighted to see in his usual place and than whom nobody is better qualified to speak upon penal questions, has urged greater use of the Prerogative for restricting the number of capital sentences. The most reverend Primate the Lord Archbishop of Canterbury, in a speech in 1948—a speech which in my view was the roost striking speech of the whole debate—recommended at the time a classification of murder that would differentiate between "foil murder" and "murder most foul," and stated categorically that we could not stay in the position in which we then were. He said that it would be a real setback to revert to the status quo, and added:… we must go … forward, not as a concession to weak sentiment but as a true progress. There is a profound uneasiness about the death penalty in the minds of many people.After all these various alternatives had been considered—and they were considered with meticulous care by the Royal Commission which sat for five years., and in its investigations visited almost every part of the world…either they were found to be unacceptable or it was found that they did not touch the real centre of the trouble. It is the death penalty that makes these difficulties, and 567 so long as that penalty remains there will have to be all kinds of evasive methods for mitigating it; and with every one of them the deterrent power of the death penalty will be diminished.
My first proposition, therefore, is that it is the death penalty that creates the difficulties. That leads me to ask this question: Is it then necessary, on the grounds of private and public security, to retain a legal procedure which creates so many insoluble problems? That question takes me to my third proposition—and here I challenge the noble and learned Viscount on the Woolsack, when he comes to speak after me. Whilst the death penalty creates all these difficulties, it cannot be shown that it is an essential deterrent against murder. There is no evidence to show, here or in any part of the world, that the presence or absence of the death penalty has any effect on the murder rate.
§ SEVERAL NOBLE LORDS: Hear, hear!
§ VISCOUNT TEMPLEWOOD
The Royal Commission examined meticulously the evidence in all the abolitionist countries and compared it with the evidence from the retentionist countries. They examined the evidence in Scandinavia, in the Low Countries and in the United States of America, and they came to the unanimous conclusion that the presence or absence of the death penalty has no effect on the rate of murder.
I come to my next condition, which also arises out of evidence collected by the Royal Commission. However the death penalty is carried out, an execution is a horrible and repulsive act that can be justified only if it is essential to the 'security of the State. I wonder whether noble Lords have read, for instance, the evidence of the Home Office and the public executioner. The public executioner gave the Royal Commission detailed evidence of the proceedings of an execution; and I notice that he has since been trying to publish his life story in one of the Sunday newspapers. I understand that that, fortunately, has been stopped. Let any noble Lord read this evidence and he must come to the conclusion that the whole business, whether it be necessary or not, is repulsive. The applications for the post of executioner, the training of the potential executioners with bags of 568 sand, the visit of the executioner the night before the execution to the prison, and his secret investigation of the weight of the murderer who is going to be executed the next day—all these things to me are absolutely repulsive and can be justified only if it is proved that these proceedings really check the rate of murder.
I remember that in our last debate one of the right reverend Prelates mentioned an execution and spoke of the death penalty as upholding the majesty of the law. He went further and spoke of it as creating "a quasi-religious sense of awe." I will not linger upon this part of the subject. I will merely ask noble Lords to read the public executioner's evidence before the Royal Commission, and I am convinced that three out of four of you will come to the conclusion that an execution is a horrible affair.
I pass on to my fourth proposition. If the death penalty is abolished an effective deterrent exists in life imprisonment. The Home Office and the Prison Commission have categorically stated that there is no insuperable difficulty in dealing with the small number of very dangerous murderers who would now be reprieved, but who, under a system of abolition, would be condemned to life imprisonment. I do not stop to argue this case in detail. I say only that in spite of all the difficulties with which the Prison Commissioners have been faced in recent years, prison treatment has been substantially reformed, at least in the training and special prisons where these dangerous criminals would be interned. It has been reformed out of all recognition since the late Sir Alec Paterson declared that hanging was more humane than a life sentence. Let me add only that I was very much disturbed when I saw that in another place the Secretary of State was slowing down the building of the East Hubert prison, which would be essentially the prison to which we should send these dangerous criminals. I hope that after these debates he will think again of that decision, and will not, for a mere £190,000, stop building what is the very kind of institution that ought to be used for dealing with the really dangerous murderers whom it is not safe to release.
Lastly, the sentence of death being irreversible, there is always the chance of an irrevocable mistake. I see it is 569 said that the precautions are so great that it is practically humanly impossible for a mistake to be made. I have, myself, had a good deal of experience of these cases—not only when I was Home Secretary, for before that, on two occasions, I acted for the Home Secretary when I was Secretary of State for Air and Secretary of State for India. Noble Lords will remember that any one Secretary of State can carry out the duties of any other. I say at once that when I deputised for the Home Secretary, my action was little more than perfunctory. Papers were brought to me; I knew none of the background. It was quite obvious that what was wanted was my signature before the execution took place. That may be inevitable when the Home Secretary is away. I suggest, however, in passing, that it is a thoroughly bad plan, and ought to be brought to an end.
When I was Home Secretary the position was different. I had the whole machine of the Government, of the Home Office, around me. I had an excellent permanent secretary in Sir Alexander Maxwell, who, in months of contact, had let me understand fully his mind in a way that I never could have known it if I had merely been brought in as Secretary of State for Air or Secretary of State for India. During the time, when I was Home Secretary I had forty-seven death sentences with which to deal. In twenty-four instances I advised reprieves. In four cases the persons concerned were found insane after the end of the trial. That means that out of forty-seven sentences nineteen resulted in execution. Did I make any mistake? I cannot say. I believe that on the evidence I had before me, and with the advice I had from my permanent officials, I made the light decisions in the circumstances. But what was to stop new circumstances arising after I had given my decision—new circumstances that seem to have influenced so impressively my successor Mr. Chuter Ede? Mr. Chuter Ede said in another place that in the Evans and Christie case he gave a decision based upon evidence at the time, but that subsequently evidence was available that he believed would inevitably have led him to decide upon a reprieve. Whatever care you take in this process, the possibility of these mistakes is bound to arise. It has arisen in 570 the past (I could quote to noble Lords several cases from past history) and it will arise again in the future. And the trouble is that the penalty is irremediable. Mistakes are irrevocable.
Now I could end my speech at this point. I have stated my five propositions: first, that the present law is admittedly unsatisfactory; secondly, that the death penalty is not an essential deterrent; thirdly, that an execution is a horrible proceeding; fourthly, that life imprisonment is an equally effective deterrent fifthly, that the death penalty, being irrevocable, makes mistakes irremediable. As I say, I could end what I have to say at this point. But I feel that my case would be incomplete if I did not, at the end of my speech, say something about public opinion, the opinion of the police, the opinion of the prison officers and the opinion of the general public.
Let me begin with the police. I admit that feeling against abolition is very strong among the police—indeed, I should be surprised if it were not. I have every sympathy with the police, especially now when almost everywhere, and particularly in the Metropolitan area, they are so short of men. But I must say—and I challenge anyone to controvert this statement—that there is no evidence to show that the police in abolitionist countries are any less safe than they are in retentionist countries. There has recently been a detailed inquiry into the experience in this matter in abolitionist and retentionist countries, which is forming the basis of evidence that is being given by the University of Pennsylvania to a Committee of the Canadian Chamber. And the results clearly show, statistically, that if there is any difference between experience in the two kinds of States in the United States, the advantage, so far as the police are concerned, is on the side of the police in the abolitionist States.
What is needed for the police is not a special clause in a Bill. What is needed is not authority to arm them—the Home Secretary has himself said the arming of the police has no bearing upon this question. What is needed is the very simple thing of greater numbers. If the police could be brought up to their full establishment (at the present moment I put the shortage, in the Metropolitan area and in the provinces, at no less than 10,000), the 571 deterrent against murder—the great deterrent against murder being certainty of detection—would become far stronger. I do not apologise for alluding to this question of the shortage of men in the police. I have raised it, I think, every Session since the end of the war, and I am sorry to say that every Government in turn has looked the other way. I would draw the attention of the Government to-day, when they say that it is very difficult to find the right number of police in a country of full employment, to the state of affairs in New York, where, as I read only this morning in the New York Times, the authorities have never had such good recruiting of the police. Their numbers are higher than ever before and the standard is better than anything in the past. That is the way to deal with the police: more police and better conditions.
I come now to the prison officers. There again, they feel very strongly that if the death penalty is abolished there will be no further penalty with which to deter a murderer already enduring a life sentence in prison. My Lords, I do not altogether accept this view. I believe—and my belief is founded upon some study—that, even with the most hardened criminals, the hope of liberty is a deterrent and that, though it may operate only many years hence, it will still have a restraining influence upon these dangerous murderers. But if that be not so. I say that there is other action that ought to be undertaken. I say that we ought to fill up the gaps in the ranks of the prison officers, and that will mean better conditions for them. They are one thousand men short at the present time. We ought to press on with our prison reforms, in specialising between one prison and another; and we ought to see that the conditions of the prison officers are a good deal better than they are now. But perhaps most important of all, we ought to see that there are three shifts of work in the prisons and that the prisoners are kept well employed. I do not apologise for having interjected those comments: they bear directly upon the central problem with which I am dealing.
Lastly, I come to the general public. I am aware that there is a very vocal opinion in the general public against abolition. The case is that they have never been consulted. When they have been asked a question, in a Gallup Poll, 572 whether they were in favour of capital punishment they have said. Yes. This Bill, therefore, so the argument goes, should not be pressed. My Lords, I do not accept this conception of the duties of Parliament. If it were applied to every controversial question, parliamentary government would become impossible. If it had been applied in the past to every important penal question there would have been none of the penal reforms of the last century that are now regarded as necessary and beneficial. Let us picture to ourselves what would have been the result in the 'sixties of a Gallup Poll upon public executions. An example like that shows the danger of accepting an opinion that is based principally upon emotion and applied to a question that I maintain depends for its right answer upon a very careful study of the ascertainable facts. How many of those who answered "Yes" had studied the details of this question? How many of them knew what is happening in other countries? How many knew what is the variation between one murderer and another? How many knew of the improved conditions in British prisons?
I am much more impressed by the fact that in two Parliaments, the first under a Labour majority, the second with a Conservative majority, Members of the House of Commons have voted definitely in favour of abolition. This is a fact of far greater importance than the casual votes of any Gallup Poll. It is a significant fact, but it by no means completes the process of parliamentary government. Your Lordships' House has its constitutional part to play. Every Peer will vote as his mind and conscience direct him. So far as I am concerned, I would say nothing to detract from the full liberty of every individual Peer. I have always defended the powers of your Lordships' House, but I have never regarded them as simply a check on reforming legislation. To me, at least, they depend for their justification on the need of an opportunity to discuss and decide difficult questions in an atmosphere less disturbed and emotional than the atmosphere of another place—an opportunity, that is to say, in which the evidence can be carefully weighed and a decision reached unaffected by the fear of an Election or popular resentment.
It is in this spirit that I move the Second Reading of this Bill. It is in this 573 spirit that I ask the House to give a Second Reading to a Bill that abolishes a repulsive punishment, that upholds the standards of a civilised society and that endangers the security neither of the State nor of the private citizen. I beg to move.
VISCOUNT DE L'ISLE
My Lords, before the noble Viscount sits down, may I ask him one question which I think would be in the minds of other noble Lords, as well as in mine? He has told the House that he does not think that the death penalty is the most effective deterrent. Will he be a little more informative about the details of the alternative he suggests?
§ VISCOUNT TEMPLEWOOD
My Lords, I gather that noble Lords agreed with my wish to speak at no great length. I am sure that the point he raised will be dealt with constantly during the debate. If it is not, I will intervene later in the course of the debate.
§ Moved, That the Bill be now read 2ª.—(Viscount Templewood.)
§ 2.53 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, before I proceed to give my answer to the five main points which my noble friend Lord Templewood has put forward, there are one or two general observations which I would venture to put before your Lordships. After this debate your Lordships will decide whether this Bill should be given a Second Reading, and that decision will be taken, as a similar decision was taken in another place, on a free vote. It will be for every noble Lord to search his conscience and express by his vote his personal conviction of what is right. Nevertheless, it is proper that at this early stage in the debate your Lordships should know the views of Her Majesty's Government.
Her Majesty's Government are clearly and unequivocally of the view that capital punishment must be retained. I endorse fully today what my right honourable and gallant friend the Home Secretary has said in another place about the dangers of this Bill. However, I have said that this will he a free vote and I do not withdraw from that statement in any way. The Government do not expect or wish that any noble Lord should speak or vote against this Bill out of a sense of loyalty to the Government and, least of 574 all, from Party feeling. At the same time, no Government with any sense of responsibility could abstain from expressing their own view on such an important matter. The view which I venture to express to your Lordships is the considered view of the Government, a view they have consistently expressed in debate in another place and which, after examining all the arguments and all the evidence, they still continue to hold.
My noble friend Lord Templewood proceeded for a short period in his speech to deal with the history of this matter. I shall try to emulate him in not going into it in detail, and endeavour to extract the important points which 1. believe your Lordships should have in mind. It is eight years ago since this very question was debated both in your Lordships' House and in another place. Those debates took place when, as now, crimes of violence were only too prevalent. What happened then will be so fresh in your Lordships' minds that again I need not go into detail. I shall content myself with reminding your Lordships of two points. In the first place, the clause by which it was sought in 1948 to suspend the death penalty for murder was inserted in the Criminal Justice Bill on a free vote, against the advice given in another place by the Government led by the noble Earl, Lord Attlee. Secondly, the attempts made during the passage of that Bill to divide murder into capital and non-capital crimes proved totally unsuccessful.
It was as a result of these arguments, debates and discussions that the Royal Commission, which my noble friend has mentioned, was appointed in 1949 by the Government led by the noble Earl, Lord Attlee. After a patient investigation of 4½ years—and I should like to pay my tribute to the thoroughness with which they did their work—the Commission reported in 1953. Again I would remind your Lordships that, although investigating almost every question connected with the death penalty, by their terms of reference they were precluded from going into the question which is before dour Lordships to-day. Therefore I will not examine the recommendation in detail. For the purpose of this debate it is sufficient for me to say that they, too, after exhaustive research, including, as my noble friend has said, inquiries into the 575 experiences of foreign countries, were unable to recommend any method of introducing what are sometimes called "degrees" of murder. If I understand my noble friend correctly, it is the report of that Commission which is the major change on which he relies for his argument.
I do not say for a moment that it is impossible to distinguish those kinds of murder which are most dangerous to society—for example, those involving the use of poison or firearms, those striking at public order or those committed by professional armed criminals. Your Lordships will be well aware that since the Commission's Report was published these possibilities have been much canvassed, both in public and in the many debates that have taken place in another place, both before and during the passage of this Bill. Again I will not trouble your Lordships with details, but I agree with my noble friend that there are few questions that have received so much debate and so profound examination. But I believe that the question your Lordships have to decide in this debate is both narrower and more fundamental. That question is: Is capital punishment for murder to be retained at all in this country? That, I think, was the burden of my noble friend's speech. It is my task to set before your Lordships the conclusions which the Government have reached after long and anxious consideration.
That question must be considered without prejudice to the improvements in the law of murder which the Government have said they would be glad to consider, and which, indeed, dispose of much of the earlier part of my noble friend's speech. We have to look, as I say, at this narrow but fundamental question. I believe that the final object of criminal punishment, whether it takes the form of execution, imprisonment or a fine, is to reduce crime. It is commonly said, and I agree, that there are three elements of punishment: reformation, retribution and deterrence. I was reminded of these by the point made by my noble friend Lord Templewood in his evidence before the Royal Commission, when he said:The reforming element has come to predominate and the other two are carried incidentally to the reforming clement.The noble Viscount has developed something of that line in part of his speech 576 to-day. I agree with the noble Viscount that when treatment, such as imprisonment or probation in its various forms, is being considered, reform comes first. But the other two elements are not to be ignored. In some cases—and I believe that murder is one of them—they are of paramount importance.
In speaking of "retribution", I do not mean revenge. "An eye for an eye" should have no place in our criminal law. I mean, to use the Royal Commission's phrase in paragraph 52,— the State's marking its disapproval of the breaking of its laws by a penalty proportionate to the gravity of the offence.The State cannot ignore crime. Let me remind your Lordships of the words of the late Archbishop Temple, who was himself a convinced abolitionist. He said:…if when a crime has been committed, the community does nothing, it is condoning the act, and to that extent becomes a partner in the guilt of it.The State is bound to punish crime, quite apart from the possible effect of punishment on the criminal. I want to draw your Lordships' attention to the opinion expressed to the Royal Commission (your Lordships will find it in paragraph 53 of the Report) by Lord Justice Denning, when he said:The ultimate justification of any punishment is not that it is a deterrent, but that it is an emphatic denunciation by the community of a crime: and from this point of view, there are murders which, in the present state of public opinion, demand the most emphatic denunciation of all—namely, the death penalty.The paragraph continues with these words:The Archbishop of Canterbury, while expressing no opinion about the ethics of capital punishment, agreed with Lord Justice Denning's view about the ultimate justification of any punishment.That is an important start. I myself would go further. I believe that the "emphatic denunciation" of a crime does more than mark the State's disapproval. It causes individuals, and, indeed, the whole people, to regard that crime with detestation. I cannot put the point better than it was put in a leading article in The Times newspaper on February 16 of this year, which your Lordships have no doubt read, when it said:Rather do [the retentionists] think that a century and more during which … murder 577 has been practically the only offence punishable with death, has bred in the whole people a unique horror … of the guilt of this one most dreadful crime.I agree with the Royal Commission when they say, in paragraph 59, that the effect on the moral consciousness of society must itself play a part in deterring members of that society from committing murder. I have heard the abolitionists argue that the one person not concerned in this problem is the murdered man, for he cannot be brought to life. Is, my opinion, a mature community cannot escape from so grave a responsibility by so light a phrase.
Whatever we may think about the relative importance of various elements of criminal punishment, I apprehend that to roost of your Lordships the real crux of the question at issue in this debate is whether capital punishment is, in erect, a uniquely effective deterrent. That is the challenge which my noble friend. Lord Templewood, put to me specifically, and which I gladly take up and will try to meet. I suppose there are some people to whom the issue is clear, and for whom there can be no argument; who believe that it is wrong for the State, in any circumstances, to take life. I respect that view, which I do not share, but I shall not attempt to enter on that discussion, which must in the end turn upon religious faith. Nor do I suggest to your Lordships that a decision taken solely on the issue of deterrence would be satisfactory to all minds. In that context a moral problem is raised, and, as I myself have suggested, other considerations are important. But I think most of your Lordships will agree with this view: that if it could be clearly shown either that capital punishment does, or that it does not, reduce murder, the number of those in favour of retention, or abolition, as the case may be, would be so great, and the argument that could be presented so powerful, that few would be in any doubt about the proper course to take. Therefore, the question whether capital punishment has a greater deterrent effect than life imprisonment, has assumed almost overwhelming importance. Indeed, the noble Viscount, Lord Templewood, has indicated that most clearly in the speech that he made this afternoon.
The Royal Commission, though they were not directly concerned with the question of abolition, did consider the evidence 578 about the deterrent effect of the death penalty, and surveyed with diligence and patience the information available over a wide field, including the experience of countries that have abolished capital punishment—and we are greatly indebted to them on this score. I funk it is an indication of the respect with which their work has been treated that no-one has sought to challenge their conclusions on this point, although varying interpretations have been placed on these conclusions. Therefore, I think it is important that your Lordships should have, at the beginning of the debate, what these conclusions are. I agree that in summarising them, there is an inevitable risk that one will give an over-emphasis or under-emphasis to certain points, and, while accepting that risk, I shall do my utmost to be fair. And I am sure I shall be corrected if I am wrong.
I would summarise the conclusions as follows: first of all, prima facie one would expect the penalty of death to have a uniquely deterrent effect; arid there is some evidence, although no convincing statistical evidence, to this effect. But this effect does not operate universally or uniformly, and there are many offenders on whom it is limited and may often be negligible. Secondly, the Commission say that the statistics of murder in the countries which have abolished capital punishment neither prove nor disprove the uniquely deterrent effect of capital punishment, because the murder rate is conditioned by many factors, and we cannot isolate the effect of that one factor. In fact, as they say in paragraph 67,… the figures offer no reliable evidence one way or the other.Thirdly, they say that the statistics of murder in many foreign countries are not as reliable as our own statistics, because they are generally based on the number of prosecutions or convictions or on the registered cause of death; and this means that such factors as the efficiency of the police, the prosecuting authorities or of the registration officers may influence the figures. Your Lordships will see that statement in paragraph 65 and 27 of Appendix VI. We cannot assume that these factors are constants, and it follows that the statistics are riot as reliable as figures based (as are our own) on the number of murders known to the police. Our system reduces the possibility of error 579 to the minimum, although it does not eliminate it.
Fourthly, the Royal Commission say that, with the exception of Belgium, where, before the war, the convictions were, proportionately, five times those in this country, comparison between this country and most of the countries that have abolished capital punishment is vitiated by differences in social and industrial conditions and in density of population. Your Lordships will find that statement in paragraph 61 of the Commission's Report.
That is the fairest summary that I can make of the conclusions reached by the Royal Commission, and my noble friend Lord Templewood, and those who agree with him, have based their arguments largely on the inconclusive nature of these statistics. Beyond doubt they are entitled to say, as they do, that nowhere do these statistics prove that capital punishment is a unique deterrent. But it is in the nature of things that they should not. It is the murders which have not been committed that matter, and their number can never be shown in statistics. Again, let me put it in the words of the Royal Commission in paragraph 59.
Capital punishment has obviously failed as a deterrent when a murder is committed. We can number its failures. But we cannot number its successes. No-one can ever know how many people have refrained from murder because of the fear of being hanged.The statistics, however, reveal one fact to which I think too little attention has been paid. I would ask your Lordships to study Table 46, on page 371, of the Report, where the Royal Commission have set out the comparative "murder tables" per head of population for the various countries for which figures are available. When every allowance is made for differences in the law, the inaccuracy of reports, varying standards of efficiency and conscientiousness in police forces, one most significant fact remains: the number of murders known to the police (not merely the number of convictions for murder) in England and Wales, and even more so in Scotland, has been consistently lower than in all the other countries. I know that it would be dangerous to make that a conclusive and sole ground of inference, and my noble friend Lord Templewood would point to other countries where capital punishment exists and 580 the murder rate is dreadfully high, or whether it does not exist and the rate is comparatively low. Nevertheless, the fact remains that we have the lowest murder rate, and I for one would hesitate a very long time before asserting that capital punishment has nothing to do with it.
My Lords, I believe that the death penalty is a uniquely effective deterrent, but I do not believe its effect is universal—obviously, it is not. No deterrent will deter the insane or those who kill in moments of blind rage or passion, without thought of the consequences. Some people do not count the cost to themselves of what they do. The ability not to count the cost may produce great acts of heroism in some fields or foolish recklessness in others. But the fact that human beings do sometimes act without thought of the consequences puts them at times—I repeat at times—beyond the reach of deterrents. But murder is not a thing that occurs to the human mind only in moments of passion or frenzy. The mind is capable of calculating the advantage to be gained by eliminating a particular person or by accepting the risk of killing in the course of a particular enterprise. It is here that the natural disinclination to take in cold blood a substantial risk of death may tip the balance against murder.
It is sometimes argued that the risk is not great because only some 12 per cent. of known murders result in the execution of the murderer. But this is not for this purpose the relevant figure. Some murderers commit suicide some are found insane on arraignment, some guilty but insane and some are reprieved on the ground of mitigating circumstances. But those who are not insane and can plead no mitigating circumstance—and, surely, the armed criminal and the deliberate killer for gain are among these—must have considerably more than an even chance of hanging. This represents a big risk for the man who counts the cost. For those who are capable of being deterred. I believe that capital punishment is on all counts—the terrifying nature of the thing risked and the likelihood first of detection and then of execution—a most powerful deterrent. I do not believe that the prospect of imprisonment, even with the same likelihood of detection and conviction is to be compared with it. A man who contemplates imprisonment contemplates something that has an end— 581 something that may go on for a long time, but from which he will, he supposes, eventually emerge. It is something known, often very well known, to him, a state the inconveniences of which, such as they are, he has experienced and knows he can endure. But death is final and unknown. Can there be any serious doubt which prospect is more likely to make a man pause and consider whether the risk is worth running?
Let us turn for a moment to the armed criminal, since this is an aspect of the problem which causes the Government much worry and the public, I believe, great concern. What is the position to be if capital punishment is abolished? A man going out to commit a robbery, or it may be a burglary, perhaps with a long criminal record behind him, will know that if he is caught he is likely to be sentenced to from ten to fourteen years' preventive detention. If he arms himself and kills someone he will run the risk of a rather longer term of imprisonment. He cannot tell how much longer; I cannot tell how much longer; I did not understand my noble friend Lord Templewood to be able to tell how much longer. Let us say that it would be a few years longer. Is this difference in sentence, if he arms himself and commits a murder and is caught and convicted, a sufficient deterrent to prevent him from taking a revolver with him? My Lords, I believe it is not, because there are solid advantages for him if he arms himself. If lie takes a revolver, he increases the chances of success in the crime, because he can make other people do what he wants; he increases his chances of escaping apprehension if he is surprised at the scene of the crime, because he can shoot down policemen and others who try to arrest him; and he increases his chances of escaping conviction if he is caught at some later date, because he can shoot down eye-witnesses who may see him.
Faced with these solid advantages, what will be the reactions of the criminal classes with whom we are concerned? We must remember that we are concerned with the possible deterrence on criminals, not on armchair critics considering it afterwards. I believe that they will arm themselves on a much more extensive scale than they do at present. In reply to this argument my noble friend has said—and it has been consistently argued—that where capital 582 punishment has been abolished overseas there has been no increase in murders by armed criminals. My Lords, the conditions are not comparable. I know of no country comparable with our own which has abolished capital punishment and which has an unarmed police force. Where the police are armed the considerations are quite different. There the penalty of death remains for the armed criminal, even if capital punishment is abolished; he knows that if he uses his weapon while committing a crime he may be shot dead on the spot. This may well be the most important factor in the criminal's mind; the prospect of being executed, if he is caught, and if he is convicted, may not assume as much weight as it does in a country where the police are not armed.
In this country, the criminal may normally shoot at the police, or at a householder, or at a witness, with impunity from immediate retaliation; and the existence of the death penalty is the only deterrent, other than the prospect of a rather longer term of imprisonment if he shoots but fails to kill any one, against such action. Arguments from countries which have armed police, or from countries with a sparse population, have no validity for us. I pause only to say this. My noble friend made an eloquent appeal for better recruitment for the police force. I have been Home Secretary for three years, and I know just how great the problem is. But it is the first time that I have heard that that problem would be nearer solution by making the job of the police so infinitely more dangerous than it is to-day.
Some abolitionists are prepared to push the argument further and to say that if what I have said is a real danger, then the police should be armed. I hope your Lordships will not accept that point of, view. An unarmed police force is part of our tradition and our heritage. The Government would be most loath to see it otherwise, and any of us who has been at the Home Office would, I am sure, be most concerned at seeing something like that, which would lessen the good relationship between the police and the public. Nor is it an answer to say that the penalties for carrying arms can be increased and that this will be a sufficient deterrent. The penalties for committing offences while armed are already as high as can be justified. It is, for 583 example, punishable by life imprisonment to commit robbery while armed, or to shoot with intent to do grievous bodily harm or to resist arrest. In recent years Her Majesty's judges have imposed a number of very long sentences for armed robbery and similar crimes, and there is really no scope for providing for higher penalties in that regard.
On this aspect of the armed criminal—and how important an aspect it is!—this is a question on which each of us must form his own judgment. When all the statistics and all the arguments have been analysed and considered, that judgment will still be largely subjective and based on experience. Many of your Lordships have vast experience in the administration of the criminal law, not only in this country but throughout the British Commonwealth and Empire.
My Lords, I have no wish to obtrude upon your Lordships details of my own experience, but I have seen the criminal from the point of view of counsel, of judge and of Home Secretary; and I have had some opportunity of seeing how his mind works. With that experience behind me I can say that, in my opinion, to the professional criminal fear of execution is a very real deterrent—of that I am perfectly certain. I remind your Lordships again, and I hope you will bear with me in doing so, that it is the criminal we want to deter. Putting the question the other way, as the abolitionists wish, is the abolition of the death penalty likely to create a greater sense of the sanctity of life among the criminal classes? That is the question which must be asked.
I pass to some of the other arguments which my noble friend adduced. One of them—and this has often been raised—was the possible bad effect of an execution on the prison staff, and the rather more unpleasant manifestations of public and journalistic sensationalism. There is no substantial evidence of any real harm being done to the staff, and I think that a candid reading of paragraph 781 of the Report bears that out. I leave it to your Lordships to judge. On the other point, I would remind my noble friend Lord Templewood that murder repulsive and very often sensational, and when people commit murder the fact of the murder appeals to that aspect of human nature. We have tried, as my 584 noble friend knows, by administrative means to get rid of some of the factors, but essentially this is a problem for those responsible for the morals, education and taste of the people. People buy the newspapers they like, and we must never get rid of the responsibility which we, as some of the leaders of the people, have on ourselves for the public taste that we see around us.
There is one argument—my noble friend advanced it, of course—which we must all face. He said, rightly, "Death is final and a mistake can never be undone." That is true. But I do not believe—and I speak with full awareness of what has been said and written about recent cases—that within living memory a mistake has been made. It is possible that, after an execution, evidence comes to light which, if known earlier, might have prevented a conviction. That is a possibility that I accept. I also accept the theoretical possibility of an innocent man being hanged, but I do not for a moment believe that that is a practical possibility. The administration of the law and the government of this country have to be based on practical and not theoretical possibilities. I do not believe that it is a practical possibility, because, if any fresh evidence comes to light after the conviction, the most meticulous inquiries are made; and even if there is no fresh evidence the Home Secretary examines in the closest detail all information relating to the case, including the complete transcript of evidence. If, after this examination, there is in his mind a scintilla of doubt as to the rightness of the conviction, the convicted man is invariably reprieved. I can only say, with full knowledge of the genuine uneasiness that some people have felt, that I do not believe that any mistake has been, or is remotely likely to be, made.
My noble friend said there were occasions when, as Secretary of State for Air, he deputised for the Home Secretary. I was three years at the Home Office. I never let anyone deputise for me. The only time when I had to leave these shores, I arranged that I did not go until the middle of August and so dealt with all the cases which had come to the Court of Criminal Appeal after the Summer Recess. I do not believe that 585 that is a necessary danger if the Home Secretary sticks to his job.
With regard to other cases, I myself ordered inquiries in two, and the results of the inquiries have been published. In the only other case, where my predecessor had ordered an inquiry, I reconsidered all the facts. It is an unpleasant argument to have to advance that is based on one's own experience but, after all, on what better can one base views properly than experience, knowledge, and the best of information?
I have tried to give your Lordships, as sincerely as I can, the views I have so formed. I have spoken to-day—and I hope your Lordships will believe me—with a great sense of my responsibility. This Government, like every other Government, are, in the end, responsible for the protection of innocent people. This is a prerequisite of freedom. Our generation, let me remind your Lordships, has seen democracies fall on the Continent of Europe largely because ordinary people did not believe that the democratic Government would give that protection. It is our duty to see that the private citizen is not subjected to armed assault or armed burglary, and that the prison officers and the police, in carrying out their duties, do not go in peril of their lives.
Your Lordships will know only too well that there are still far too many crimes of violence in this country and I, for one, do not believe that the right time has come now, any more than it had eight years ago, for relaxing any safeguard. But it is not for this country alone that the Government are responsible. The Bill, it is true, directly affects only us here, but its enactment could not fail to be felt in every part of the British Empire. What would the effect be in Kenya, in Malaya, in Cyprus? I ask your Lordships to weigh that question very carefully before coming to any conclusion.
There are those among your Lordships who can give the House the advantage of their experience of government and administration in many parts of the Commonwealth and Empire. I, for my part, believe that a decision to abolish the death penalty for murder here will have disastrous consequences there. For any Government to carry out its duty 586 involves, to some extent, a repressive side. At times things have to be done which are unpopular with many and severe towards some. The infliction of criminal punishment is always such, but we cannot shrink from inflicting it where necessary. In the end, it is a question of balancing the severity of the penalty against the interest of the community. I am convinced that the interest of the community requires the mention of the death penalty for murder, and I should be failing in my duty if I did not repeat, in unequivocal terms, that the Government consider this to be an unwise and dangerous measure the presence of which in the Statute Book would be a disaster for the country and a menace to its people.
§ 3.37 p.m.
§ LORD PETHICK-LAWRENCE
My Lords, I feel a great sense of responsibility in taking part in this debate in your Lordships' House to-day. It is a debate which will, for many reasons, be historic in the years to come. We are facing the issues of life and death. That is one which cannot fail to give us a great sense of responsibility. We have a constitutional issue—an unusual thing. I do not ever remember in the course of my life the carrying by another place, through all its stages, of a Bill which was from the start opposed by the Government of the day. Noble Lords in all parts of the House recognise the fact that we may be faced with a constitutional issue between this House and another place. It is not for me to say anything about that.
Now that we have had two speeches of some length, one from each side in this controversy, and we have, I believe, sixty-one Members of this House who are waiting o speak, I propose to make my remarks very short. In doing so, I naturally shall not be able to give, chapter and verse for all the statements I make; but if any of the statements I make are challenged, then I am quite sure that amongst the numerous other speakers who take my view in this question documentary answers can and will he given to substantiate the truth of what I am about to say. We have had a very powerful speech from the Lord Chancellor, a speech we should have expected from him. I should call it a massive speech, fully documented and building up a great edifice. But the 587 real point is this: no edifice, however well built, will stand unless it rests upon solid foundations. The question I have to put to your Lordships is whether this great edifice which the Lord Chancellor has built up to-day really rests upon any solid foundations of evidence. Over and over again, the Lord Chancellor said, "I believe this", "I believe that", "It seems obvious this", and "It seems obvious that"; but what is the evidence on which he bases those beliefs? I venture to maintain that there is no evidence of fact. The Lord Chancellor quoted from the recent Royal Commission and, of course, with his accustomed fairness he quoted correctly; but I suggest to your Lordships that he built a conclusion upon an entirely inadequate basis.
The Lord Chancellor himself admits—and, as my noble friend the mover pointed out, I think we must all admit—that putting another person to death is a pretty sorry business, and it can be justified only if it is really necessary. I do not think anyone in any part of this House will deny that. The Lord Chancellor quoted from the Royal Commission and said that they came to an inconclusive decision. They were bound to come to an inconclusive decision; we can never prove what would happen if we were to do something that we have not done. All we can do is to take analogies. The argument put forward by the Lord Chancellor was put forward in even stronger language than he put it to-day over a hundred years ago when the death penalty existed for a large number of things. It was said then, as it is said today, that if the deterrent of the death penalty were removed no one in this country would be able to go about with any prospect of safety for his life; he would have to go about armed and his possessions would be at the mercy of thieves and robbers. The Judges, the Lord Chancellor and the House of Lords for years begged Parliament to refuse to remove the death penalty, because it was said that it would be certain to open the floodgate to unlimited crime. Every one of those prophecies was falsified in the event. So far from the gloomy forebodings that were put forward taking place, crime gradually decreased from that day.
The Royal Commission said: "Let us see what has happened in cases where the 588 death penalty has been removed." They took the greatest trouble to inquire into the cases of all those countries which at some time in their history removed the death penalty. In the course of his speech, the Lord Chancellor said that one could not tell what effect the deterrent had on people who did not commit the crime. But if you remove the deterrent and there are not more crimes committed, surely that is proof that the deterrent was not what it was supposed to be. It seems to me that it is a strong argument if you can show that in all the countries where the death penalty has been removed there has been no increase in the murder rate.
But the Royal Commission were not content with that. There are some countries where the death penalty was removed and subsequently restored. They inquired whether, when the death penalty was restored, the murder rate went down. There is no evidence whatever that it did. The Royal Commission were not content with that. They travelled to a great many of these countries. They investigated what is happening in the United States, where some States have the death penalty and some have removed it. They considered whether, in the cases where it had been removed, the effect had been one of reducing or of increasing the number of murders, and they found that it had no effect whatever. They took two adjoining States of a similar type, one of which had removed the penalty and the other of which had not, and they found that the curve of the murder rate had assumed almost an identical line in the two States. Therefore I suggest that when the Lord Chancellor says that he believes, and it is incontrovertible, that removing the death penalty will have the effect of increasing the number of murders, that is entirely unsupported by any direct evidence. It is not enough to say that the Royal Commission did not find any positive evidence; such evidence as that is as far as it is possible to go. The Royal Commission did produce those statements.
The Lord Chancellor says that he has read—and I have no doubt that he has—the bulk of the Report of the Royal Commission, and that in his opinion they have produced a negative result. But I should have thought that perhaps the most important person who would be influenced by the Report would be the Chairman of the Commission himself. I 589 know Sir Ernest Gowers personally very well indeed. He is not a man to be swayed by sentiment or by emotion; he is a hard-headed man. He has been long connected with the Civil Service and with the main institutions in this country. Sir Ernest Gowers joined this Commission, as he himself states, with no very definite opinion but, on the whole, thinking that probably it was necessary to retain capital punishment, and he says:In the end I became convinced that the abolitionists were right in their conclusions, though I could not agree with all their arguments, and that so far from the sentimental approaches leading into their camp and the rational ones into that of the supporters, it was the other way round.I could, of course, quote many passages from the Report of the Royal Commission and from many other sources, but in the short time that I am going to occupy your Lordships' House it seems to me that those things are pretty conclusive.
I come now to the question of armed burglars. The Lord Chancellor again says that, to his mind, it is quite obvious that if the death penalty is removed a great many more burglars will carry arms than is the case at present. That does not rest upon any evidence: again, it rests upon opinion. It does not seem an unreasonable result, but the question is one of fact. In all the other countries where the death penalty has been removed, is it, or is it not, true that the number of burglars who go about armed has increased? The answer to that is that it is not true. Of course, the Lord Chancellor can get out of it by saying that those countries arc different from our own. Every country is different from every other country. The Lord Chancellor began by saying that the facts that I am quoting come only from countries where the police are armed. But he admitted afterwards that they come from other countries but argued that they were smaller countries than our own. You can always evade an argument by putting forward some condition which may not be fulfilled. But the simple fact is that in countries where the death penalty has been abolished there is no evidence whatsoever that the number of burglars who go about armed and commit murder has increased. It is not a sufficient defence in the act of taking life to say that you cannot prove your contention. In this enlightened age, in the second hall' of the twentieth 590 century, you have to show positively that there is evidence demanding the retention of the death penalty, and I venture to suggest to your Lordships that if you cannot do that you have no right to defend the continuance of this practice.
I propose now to leave that aspect of the question and to come to one other, because though I notice that to-day it occupies a lesser place in the public mind, if I am not mistaken, when this question was before the House eight years ago it was one of the principal matters that was brought into account. It was said then that the countries that have abolished the death penalty have substituted real life imprisonment in its place—by that I mean that the man stays there until he dies. If, therefore, we are too humane to do that in this country, we should have to adopt the principle which we adopt in the case of other prisoners: we should have to release murderers after they have served a considerable term of years. I am going to deal with that aspect.
First, your Lordships must realise that there is a very large number of murderers who are reprieved at the present time. They are reprieved, not because of doubt about their having committed the crime, but for various reasons appearing good to the Home Secretary of the day. Having served their sentence in prison they come out when the prison authorities consider it appropriate to let them out; and I believe that in the last fifty years there has been only one case in which it was alleged that one of those murderers committed another murder or even any other offence. Even that case is exceedingly doubtful, for later there were grounds for believing that the second murder was not committed by that man. In all but two of the countries that have (many of them for many years past) abolished the death penalty, no murderer has ever been known to commit another murder after his release. I will be quite fait; there are two exceptions. One is Belgium, where there have been three, the other is Denmark where there has been one; font in Holland, Luxembourg, Maine. Michigan, Minnesota, North Dakota, Norway, Queens land, Sweden, Switzerland, and Wiscon sin, not a single such case has ever occurred.
591 Not very long ago I had the privilege of meeting, in one of the Committee Rooms in these Houses of Parliament, the Ministers of Justice of Belgium, Norway and Sweden and the head of the Psychopathic Institute in Sweden. They were prepared to answer questions. They scoffed at the idea that there was any likelihood that the death penalty would be re-instituted in their countries. They said that the public of those countries were perfectly well satisfied with the way things were working. I asked them: "How do you get on about letting your murderers out? Do they really have to stay in prison for the rest of their lives?" They told me that they regard murderers as broadly of two classes: those who may be criminals but are perhaps actuated in murder by sudden impulse; and those who are psychopathic and who, though they may not be definitely lunatic, have a disordered mind. With regard to the first category, some of whom prove to be among the best behaved men in prison, they found that they could let them out, on average, after between ten and twelve years—some more, some less. Except for those to which I have already referred, there has been no repetition of the crime.
Psychopathic murderers, having disordered minds, have to be treated in an institution but I was told that in those countries they effect a cure in a considerable number even of those cases. If, however, there is someone on the verge of lunacy, naturally he cannot be let out. These gentlemen said to me: "You do not let your lunatics out of criminal asylums unless they are cured. They have to stay there for life because they cannot be trusted out." It is precisely the same case. If a man has a disordered mind he is a psychopathic patient. They told me, "In the great majority of cases we can even cure those men, but if we cannot do so we have to keep them in an institution for the whole of their life, though that is no different from what you do here."
My Lords, I promised to be very short in order to give as much time as possible to other speakers, and I am not going to argue my case any longer. Those who will speak following me from the same point of view will give chapter and verse 592 for any questions raised. In conclusion I want to say only this: I take it that all of us, whichever side we may be on, regard this question of murder and capital punishment as not merely a rational question, but as a matter charged with deep emotion. We all have in our hearts a deep sense of disgust at the deliberate killing of a human being. But these emotions have to be governed by reason if they are to yield sound fruit. It is my firm opinion, and I believe the opinion of others who in regard to this Bill are on the same side as I am, that facts alone are what count. As I see it, the facts are overwhelmingly in support of our case, and the opposite view, however honestly and eloquently put forward, can be held only in the teeth of the evidence.
§ 3.57 p.m.
§ VISCOUNT MALVERN
My Lords, I regret that on the first occasion on which have the honour of addressing this House the subject of discussion is one which causes great controversy in the United Kingdom, and, further, is somewhat grim, if I remain true to form, however, mine will be the shortest speech in this debate. I have had some experience of this matter, having sat for twenty-one years on an Executive Council which played the part played in this country by the Home Office, and I have come to certain definite conclusions. First, I premise by argument on what I believe all noble Lords will agree is a fact: that the first duty of really democratic government is to preserve law and order from within; and if the Legislature is not prepared to provide the Government with the necessary instruments for preserving law and order, then law and order cannot prevail. Like the noble and learned Viscount on the Woolsack, I am quite satisfied, after much experience, that capital punishment does act as a deterrent. That is a matter on which everybody is entitled to his own opinion. There is room for manoeuvre and for argument; but, at any rate in the case of the noble and learned Viscount, nobody can say that these very positive opinions, which are given by so many people, are given by those who know little or nothing of the subject.
Overseas countries were referred to in the course of the debate, and that is my excuse for entering into this discussion. What I fear is that if this Bill for total abolition of the death penalty is passed 593 and becomes an Act and resides in Whitehall, it may at any time be pulled out of the drawer and imposed on one of those overseas territories which, whatever may be the position here, are certainly not yet ripe for total abolition. As a student of the Colonial Office policy of this country over many years, I am aware that we are often used as a kind of guinea-pig for trying out social experiments, and therefore I am most anxious to see that this Bill does not become an Act of Parliament.
And I take my stand from another angle. In another place, no Amendments were accepted, and we all know that we are looking for reform in this type of legislation. In my own country we found a formula which prevented a large number of people from being condemned to death, but I am told that what is suitable and satisfactory in a non-civilised community would not apply in this highly civilised community here. However, like every other noble Lord. I should like to see the number of death sentences reduced. The next difficulty I am up against is in dealing with the question: where does the conscience of the people really reside? It seems to me that it resides where whoever happens to control the Government of the day wishes it to reside. This matter has not been before the people of the United Kingdom, and, furthermore, as I understand it, the principle of the Bill is total abolition. I am opposed to that principle.
§ 4.2 p.m.
My Lords, as it has been agreed that this debate shall not be conducted on Party lines, I should like to make it clear that any expressions of opinion I utter are my own, and do not necessarily represent the views of any other noble Lord on the Liberal or, indeed, any other Benches. For that reason, I propose to be extremely brief. But I do not propose to deprive myself of the privilege and pleasure of being the first to congratulate the noble Viscount, Lord Malvern, upon a notable and most interesting maiden speech. I need not disguise from the noble Viscount that when we heard that he was to address us our expectations rose very high, and I cannot disguise from him that he has delighted us by exceeding our expectations. I am sure that all your Lordships will join in hoping that he will frequently give us the 594 pleasure of hearing him, when he can spare the time from other duties. It must surely be a rare occasion on which felicitations can be offered to a Prime Minister on his maiden speech, but this is the position in which we are to-day, and we offer them to him with all good will.
My Lords, I am in favour of this Bill, for many of the reasons which have been put forward already, and will be put forward again, by its supporters. I do not propose to recapitulate any of them. I shall confine myself merely to saying that we who support this Bill feel that, without any doubt, it represents a logical and consistent step forward in the advance of civilisation. It is many centuries since the rack and the thumbscrew were abandoned. It is a very long lime since we also abolished the selling of human lives into slavery. We who support the Bill feel that here is another stage forward in the same progression.
We are well aware of, and we respect, the opinions of our opponents, just as the noble and learned Viscount the Lord Chancellor was good enough to say that our opponents respect ours. But to many of us the only real doubt has been whether, from the point of view of public opinion, we are perhaps a lithe premature in putting this measure through now, rather than a few years hence. I am no longer in any doubt about this. I believe that the step which is now proposed is bound to come soon, and as a progressive I prefer to see legislation—particularly de-restricting legislation—keeping pace with, not lagging behind, the will of the people. I consider that within a couple of decades of the abolition of the death penalty we shall be saying to each other: "Is it credible, is it conceivable, that as recently as 1956, we still had this barbarity on the Statute. Book?"
There is only one further aspect which I would mention. If we reject this Bill now and, in all consistency, reject it again, should it come before us again from another place, we shall obviously be inviting the operation of the Parliament Act. As a Liberal I have neither fear of, nor resentment at, the Parliament Act; but I should rather regret the necessity for its operation in the case of a Bill supported repeatedly by another place, irrespective of Party allegiances, and in respect of which no political Party has a mandate—either for or against—from the 595 electorate. Since the Bill has been passed by the House of Commons on a free vote, despite very influential persuasion against, it is surely reasonable to argue that the citizens of this country desire your Lordships to pass it as the other House has passed it. For those who conscientiously oppose this Bill, there is the traditional and honourable course of making in the Committee stage such modifications and alterations as would render the Bill acceptable to them. There is no limit to the degree of alteration which can be made in Committee; and even for that reason alone I urge your Lordships, in all parts of the House, to accept—if only to give the Bill examination—the affirmed and reaffirmed will of the House of Commons, by giving this Bill a Second Reading, and by deferring your veto, whether it be a total or a partial veto, until a later stage.
§ 4.7 p.m.
THE LORD ARCHBISHOP OF YORK
My Lords, I am sure that I can count upon the indulgence which your Lordships invariably give to one who rises to address you for the first time. On this occasion, the indulgence of your Lordships must be very considerable, as I can never hope to bring to your Lordships' debates one fraction of what was brought to them by my distinguished predecessor. I have, however, the ambition that I may he of some service to your Lordships' House.
I intend to vote for the Second Reading of this Bill. In saying this I wish to dissociate myself from some assumptions which have entered into some of the propaganda on behalf of this Bill, for I believe them to be dangerous and morally enervating assumptions. One assumption of which we have heard something—though not in your Lordships' House—is that it is progressive and Christian if we can gradually eliminate the element of retribution from punishment, and let the idea of reformation of the criminal hold the entire field, leaving no portion of it whatever to retribution. I dissent from that notion. I would endorse most gratefully what the noble and learned Viscount the Lord Chancellor has said this day about the moral necessity of retribution within our penal code; and as for reform. I believe that the reform of people who have done things that 596 are terribly wrong includes on their part the recognition that they have deserved the penalty meted out to them. It will be a sad day for our country if the verb "to deserve" is eliminated from thought on this matter.
A second assumption which has also come into some of the propaganda for this Bill I would also wish not to endorse. I think it is a fallacy to assume that the New Testament disallows the taking of life by the State whether for justice or for the protection of its own citizens from violence. I will not here weary your Lordships by arguing that matter. I refer to it only because, from a fairly responsible quarter, literature has been circulated to the public, and I believe to your Lordships, setting out certain propositions about the law of forgiveness and the law of love, assuming that these propositions, taken naïvely, settle the matter and that there are no deeper and other aspects of truth going with them. The literature saying this comes from a body called Christian Action, but I hold it to be a very unchristian action to encourage the public to superficial thinking on a great moral issue, and to send the result of their views on postcards to a Canon of St. Paul's. If this Bill passes it will not, I am sure, be in virtue of assumptions such as those.
I make these main assumptions in approaching this terrible problem: murder must be punished. How? First, the penalty must be severe; second, the penalty must have attached to it a certain moral dignity as a simple and certain answer of the community, repudiating as unspeakable a horrible crime; third, the penalty must deter as effectively as a penalty can deter; and fourth—and this is an assumption to which, as a Churchman, I am compelled to attach importance—there must be no losing sight of the possibility that the worst type of human nature can be changed into something different before a man passes to his eternal account. If the necessities of deterrence make it exclude the possibility of so changing a man that he can resume some sort of place in society, at least it must admit of that gap allowing repentance and change before he leaves the world for a greater judgment.
In the past I believe that capital punishment has very often fulfilled all these four conditions. It has been severe; 597 it has had that simple certainty of condemnation by the community of an unspeakable crime to which an unspeakable penalty is attached. It has indeed deterred, and it has not been incompatible with that right of a human person to repentance and change before he faces his Maker. It is interesting to recall that one of the most gentle and sympathetic pastors ever known in the Church of England, Bishop King of Lincoln, who had much experience in dealing with criminals, believed the death penalty to be right, because he found it possible to deal with a man in terms of his mortal soul when that man first acknowledged that the terrible penalty was no less than his desert. On the other hand, all these considerations have for long been balanced by a consideration on the other side: that the State, by taking life as a penalty for murder, is not contributing to the sense in the public of the sanctity of life as much as it would be doing if it refrained from taking life as a penalty for murder. That is the consideration which used to be advanced, I believe in your Lordships' House as elsewhere, by the late Archbishop Temple, and I am one of those who have been perplexed as to the respective weight of that consideration and all those older considerations on behalf of capital punishment.
I do not think that there is a moral absoluteness, as it were, belonging to either side of this controversy. I believe it to be a matter of weighing the total moral effects upon the country if one line or the other line is taken. In weighing this matter, the question of deterrence comes to the head as a vitally important matter. I was moved by what the noble and learned Viscount, the Lord Chancellor, said to your Lordships about deterrence: but what was he saying? He was not claiming to offer the result of scientific examination of evidence. He was claiming that from his vast and massive experience of the problems he had an intuition, a "hunch," that a certain conclusion was right. Most decisions are made by intuitions and "hunches," and I want to repeat how greatly moved and impressed I was by the weighty words of the noble and learned Viscount the Lord Chancellor. But I think that I, and perhaps some of your Lordships, would have had a still 598 more overwhelmingly grew: impression if the noble and learned Viscount the Lord Chancellor had done what he refrained from doing—namely, taken into account all those fields of evidence, some of which he gave the impression of regarding as irrelevant, and had given us that kind of conclusion as well.
Very perplexed as to the weight of force of argument to the conscience on the one side and on the other I have come to think that the abolitionists' case is by far the stronger, for this reason: that the death penalty in this country no longer has the moral dignity of representing, in an absolutely sure and certain way, the will of the community to inflict an unspeakable penalty for an unspeakable crime. For one thing, the bigger varieties of treatment given in the end to murder cases remove that simple certainty to which the noble Viscount, Lord Temple-wood, referred in his opening speech. For another thing, the deep divisions in the public conscience no longer enable it to be said that there is a united will of the public conscience in this matter. And, further, what is the effect of capital punishment upon the public in general? Between the trial and the sentence and the execution there is the Press, carrying it to the public, and it can be carried to the public in no other way. I want to put this question: what is the use of telling us that hanging is an unthinkable penalty for an unthinkable crime if for periods on end the Press prevents sections of the public from thinking of aught else? What is the use of telling us it is an unspeakable penalty for an unspeakable crime if the Press discourages the public from speaking of aught else? It is these factors, which I will call the concomitants and atmosphere surrounding the place of the death penalty in the nation, that have come to weigh with me and to lead me to the conclusion—a conclusion reached by balancing the two views, each of which has moral potency attached to it—that it will be for the good of this country if this Bill passes your Lordships' House and becomes law.
§ 4.21 p.m.
§ VISCOUNT HAILSHAM
My Lords. I am certain that, even against the sombre backbround of the subject matter of this discussion, your Lordships would desire me to turn aside for a moment from the debate in order to welcome into our midst 599 the most reverend Primate who has just concluded his first speech to your Lordships, even though the fact of his maidenhood in this matter was cunningly concealed on the list of speakers. The most reverend Primate touched all our hearts when he referred to his illustrious predecessor. I think that we cannot wish anything better for him than that he should have as many useful years of active life in our midst as his predecessor enjoyed, and win as warm a place in our affections. I think that I speak with the hearts of all of us when I say that this beginning gives us good ground for hoping that this will be the case. The most reverend Primate said that he had an ambition to serve your Lordships by the interventions in debate that he would make. I can only tell him that that ambition has already been achieved and that we all look forward to many other occasions when he will achieve it not less fully.
There are two ways of approaching this debate. One could come down to the House with a wealth of argument and statistics and thought, carefully prepared in advance; but I have chosen the other way, which I hope will commend itself to your Lordships. Deliberately I did not determine in advance the particular arguments to which I would address myself. I had played some part in the controversy in another place in 1948. I wanted to be very sure that it should not be thought, however strong my opinions had been on that occasion, that I had not genuinely tried to review the situation in the light of all that had taken place since and, in particular, in the light of the speeches which have been made by your Lordships.
I am glad that I chose this course of action, because I am bound to say that as I heard the noble and learned Viscount the Lord Chancellor develop his argument, I found that he was putting arguments on the merits of the discussion which, one after another, seemed to be put as well as arguments can conceivably be put—arguments which I found absolutely overwhelming. I should have stopped there but for the fact that I do not think the discussion can quite stop there. It must be apparent that, after so many years of controversy, apart from those who accept the assumptions which were rightly condemned by the most reverend Primate, 600 the real division of opinion in the country is on the weight to be attached to the undoubted fact that the statistics are inconclusive. I attach to that fact the opposite weight given to it by the noble Lord, Lord Pethick-Lawrence, and I attach to it exactly the same weight as was given by the noble and learned Viscount who sits on the Woolsack.
My reason for doing so, apart from the argument he so admirably expressed, is ultimately this. As the noble Viscount who so well moved the Second Reading said, murder is a crime which is extraordinarily difficult to categorise and classify. None the less, when all is said and done, the question is not whether we can measure (because we certainly cannot) the relative value of life imprisonment and hanging as a deterrent to murder—that is an argument which can never be solved by statistical material, for the reason which the noble Viscount gave. To my mind, the conclusive argument is the fact that, if this Bill becomes law, and your Lordships deliberately substitute life imprisonment for the penalty of death, we shall have a situation in which there will be a certain number of murders, possibly more numerous than the advocates of the Bill are prepared to admit, where there will be no deterrent for murder at all, or where the additional deterrent is only marginal. When I am faced with this proposition I am compelled to say that I regard the burden of proof as upon those who wish to bring about that situation. To my mind, that is a conclusive argument upon the merits of the debate.
What do we look for from a penal code?—surely that it should be, so far as possible, humane; that it should be, so far as possible, logical, and, so far as possible, practical. That is where I part company with the noble Lord, Lord Pethick-Lawrence. Again and again we hear from those who differ from us the kind of argument that, because the penal code was inhumane and illogical, rather more than a hundred years ago, one should view the progress of penology as something which consists solely in the removal of excessive penalties. I do not so view it. Admittedly the so-called "Bloody Code" was inhumane. It was illogical also and it was illogical precisely for the reason that it deliberately encouraged murder. The old saying which dates from that time is, that it is as well 601 to be hanged for a sheep as for a lamb—in other words, if death is the penalty for robbery and for murder, there may be solid advantages in killing your victim. That is why the rate of violence decreased after the imposition of illogical penalties was removed, not because the fear of death no longer operated as a deterrent, as many advocates of the illogical code believed.
The effect of what your Lordships are invited to do this afternoon is to create a series of cases of murder in which the illogicality of the code is reimposed by making no difference, or no substantial or inadequate difference, in the mind of the criminal between the consequences of killing and the consequences of committing a crime without violence. That has always been to me the operative factor, and because the reasons were so well and fully put forward by the noble and learned Viscount on the Woolsack. I do not at this stage say anything more about it.
But I frankly do not think that the mere fact that a Second Chamber may think that a Bill proposed for Second Reading from the other place is a bad one is necessarily conclusive. The noble Lord, Lord Pethick-Lawrence, said that we might be faced with a constitutional crisis. I rather wonder why. I should myself be glad to defer to other people's opinion in this matter, if I felt it possible to do so. It is a case in which I am emotionally on the side of the abolitionists, even if intellectually I am convinced that they are utterly misguided. But I wonder on what principle one can conscientiously vote against one's conscience in a Second Chamber. If the Government told us that, in their view, the Bill was workable and to the public advantage, and I happened privately to disagree, then I feel I could find it in my heart to abstain. But here the opposite is the case. The Government tell us in both Houses of Parliament that they view the Bill as a public disaster. We are the trustees of a limited constitutional power. We have to exercise that trust responsibly, unprovocatively, but still legitimately. That constitutional power was revised as recently, I believe, as 1948 or 1949. By all the canons of construction and common sense, that means that circumstances must exist in which it is right for us to exercise that power.
602 No doubt the other place can override us, and we shall feel no resentment if they do. But why they should try to make us the accomplices of what they desire, and then threaten us with the most frightful penalties if we will not become accomplices, I do not know. If they want to "go it alone", they can "go it alone". They will have the Government against them; they will have, I still believe, the Judiciary against them; they will have the police against them; trey will have the prison officers against them; and I have no doubt that they will have public opinion against them, too. But why they should feel it necessary to make us share their loneliness. I do not understand.
That is where I differ from my noble friend who moved the Second Reading of this Bill. Of course, I agree that this country is, and ought to be, governed by Parliament and not by momentary waves of public opinion. Here we are not, of course, representing constituencies. In another place Members are representatives and not delegates. But when another place says to us: 'We propose to go against the opinion of our constituencies, because we invoke the high doctrine of Burke, and then when we send it up to the Second Chamber we will complain of what the House of Lords does, because we invoke the high doctrine of democracy", it seems to me that they are guilty of some slight inconsistency. The truth of this matter, to my mind, is that if one comes to the conclusion that the Bill is good, one must vote for it—and I am sure that noble Lords who have spoken in that sense will record their votes. But if that argument is false, and one is driven rather against one's inclinations to the view that it is a bad Bill, then there seems to be no alternative but to vote against it. If those who vote against it happen to be in a majority, then the consequences of majority rule have to be faced, even when you do not like them. The worst that can happen is that the other place will decide to "go it alone", and they will no doubt follow their own counsel in that matter.
I should have been quite happy to give the Bill a Second Reading if it had been capable of amendment in a reasonable sense. The noble Viscount who moved the Second Reading of the Bill began his remarks with a proposition with which, with some qualifications. I wholeheartedly 603 agree. He said that the law of murder—I forget the epithets—is not perfect. I agree with him that it is a branch of the law in which clarity and perfection must be constantly sought after. If, therefore, this were a Bill for the amendment of the law of murder, I should feel, within reason, that the right course would be to give it a Second Reading and to amend it in Committee so as to reach out after perfection.
But this is a Bill which prevents amendment of the substantive law of murder; it is a Bill which would render it out of order to propose an amendment of the substantive law of murder. It is only a Bill for the attachment of a different penalty to murder. In so far as it can be amended, it can be amended only by taking out of that general exclusion an inner circle of non-exclusion, by citing particular kinds of murder which are not affected by the general ban on the death penalty while leaving the substantive law of murder unaltered. I do not believe that that is a dignified or, in the last resort, a possible method of promulgating to the country what the law of murder or the death penalty should he. That, I believe from the point of view of the abolitionists and the abstentionists. While, therefore, if the Bill went to Committee there might be Amendments which we should support as a second best, I do not think I can conscientiously put this Bill to the House as one that is capable of amendment. I think it would necessarily be a Bill which, even if amended, would render the state of the law worse than it is at the moment.
There is one other thing that I should like to say before I sit down. The noble Viscount who moved the Second Reading spoke at considerable length on the use of the Prerogative. I take the view—and here I do not think I should carry my noble and learned friend on the Woolsack with me—that over the last fifty years the use of the Prerogative has become too stereotyped. We none of us know for certain what the various categories are which constitute a sufficient reason for granting a reprieve. But I start with the proposition that there are many types of murder and many types of murderer, and that the attempt to categorise them by lawyers has hitherto failed. I should like to see the Prerogative used much more generously and 604 imaginatively. Not that I blame any individual Home Secretary for following the established custom in this matter. But I should like to see Home Secretaries go forward with the authority of Parliament in a more imaginative and constructive way of utilising that Prerogative.
If we did pursue that line, it might also be said that should the abolitionists be right, and those of us who are not persuaded by them be wrong, one could make a progressive utilisation of the Prerogative to enable changes to take place, with the complete certainty that public opinion was behind it, with a much more gradual and practical approach to the matter. If abolition were to come by that road, as it has already come in some countries, I should probably continue to think it a mistake. But if it were to come, that would be the royal road of progress, and not that which it is now proposed to take.
We are now asked to give a Second Reading to a Bill to which most of us cannot conscientiously give even a qualified blessing of any kind. We are asked to do that in the knowledge that the Government oppose it; in the knowledge that the police and the prison officers oppose it, with the solatium offered by the noble Viscount who moved the Second Reading that their conditions ought to be bettered. But whether recruiting would be more or less vigorous if to the existing arduousness of their professions were added the abolition of the death penalty, I must leave the House to judge We are asked to do it in the knowledge, or the belief, at any rate, that it does not appeal to the greater part of public opinion. I would agree, sadly, with the most reverend Primate in his maiden speech, that the division on this subject is deep and deplorable; but unless the minority is arrogantly to assume to itself the right against all opposition to rule the majority, then I believe that is an evil which cannot be helped.
§ 4.40 p.m.
§ LORD BRABAZON OF TARA
My Lords, I know that your Lordships always look forward to any contribution that my noble friend Lord Hailsham can make to our debates, and certainly he has not disappointed us to-day. I do not entirely agree with his point of view, but I must say that I share with him a certain feeling of blame on the part of the Govern- 605 ment as to the position in which they have put your Lordships' House. Surely this question is of sufficient importance for the Government to be able to make up their minds and to give us guidance. At present we are all in different moods and not knowing what to do. I look forward with great interest to what our noble Leader will tell us to-morrow. Nobody will have more influence upon this House than he, because we all look upon him with immense affection and with a tremendous realisation of his wisdom in these matters.
I approach this problem not as a sentimentalist and not as one of those believing in "an eye for an eye and a tooth for a tooth." I have always been under the impression that capital punishment was a deterrent. I think everybody is entitled to share that view until one comes to the Report of the Royal Commission. The statistics that are quoted there—and we must rely on them—have shot that case to pieces. There is no doubt now that, curious as it is, remarkable as it is, the death penalty is not the deterrent we thought. Knowing that this particular problem was coming up, I read all the propaganda from both sides —and, Heaven knows! there has been plenty of it—and I was not impressed by anything except one document, which gave a list of the last fifty murders and, roughly, the description of them—cases like murder through mad suicide, and cases of suicide pacts. I must say that I am shocked at the way the Royal Prerogative was not used. Never in my life have I been so shocked that crimes led to execution when they were really due to abnormalities and were not criminal acts. For that reason I come to the conclusion that reform is urgent, necessary and long overdue. Consequently, for that reason I will give this Bill enthusiastic support on its Second Reading.
I do not believe, as my noble friend Lord Hailsham said, that it is incapable of amendment. For instance, I should like to see an Amendment made relevant to resisting arrest. I know that, having given away the case of deterrent, it is not logical to do such a thing as that. I know there is no logic in it, but I think it would be of confidence to the police, who have to do the "dirty work" in this regard. If they want such an Amend- 606 ment, I should be prepared to support it. I firmly believe that the Bill can be amended but, after all the consideration I can give to it, I feel that it deserves a Second Reading from this House.
§ 4.45 p.m.
§ LORD CONESFORD
My Lords, I find this subject one of the most difficult with which we have been faced. I do not suppose there is a single one of us who does not number among his personal and intimate friends men who take opposite views on this great question. I find myself in so much agreement with what was said by my noble and learned friend the Lord Chancellors, and by my noble and learned friend Lord Hailsham, that I can cut out a great deal of what I might otherwise have said. But I would repeat what has been said already by some noble Lords: that we are not in this Bill discussing the reform of the law of murder. If any question of the reform of the law of murder were involved—questions of constructive malice, insanity, provocation and so forth—there are many of us who would support some amendment. I would also say to the most reverend Primate, by whose speech I was most deeply impressed, as I think was the House that I do not think we are discussing either whether there are not some improvements that might be made in what I may call the process of capital punishment.
May I give two examples which occur to me? I am myself wholly opposed to the idea of returning a condemned prisoner to any prison where there are other prisoners. I am also wholly opposed to the present publicity given in advance about the time and place of execution. But those are not the questions that we are considering. We are considering the simple question: shall the death penalty for murder be abolished?
I have never regarded that question as at all easy, and I am certain that we cannot derive a clear and simple answer to it by an over-simplification of the problem of punishment. I was delighted to hear what the most reverend Primate said on that subject. Ever since I read philosophy at Oxford many years ago, I have always thought that the problem of punishment presented one of the most difficult with which philosophers, theologians, lawyers and statesmen have to deal.
607 Broadly, there are three main theories of the justification and purpose of punishment—retribution, reformation and deterrence. I am myself convinced that none of these theories can be pursued to the exclusion of both the others without producing absurd and even shocking results. Of course, punishment normally has all three aspects. These problems with which we so often torture ourselves have little reality to the man in the street. May I give your Lordships an example? Suppose a man sees a brute attack a child in the street and rushes to intervene and to knock him down. What is the rescuer likely to think or say? Is there not an almost equal chance of his saying any of these three things: "I'll teach him"; "I'll give him his deserts"; "I'll see that he does not do it again, or that people do not do that with impunity"? He may say any of those three things; and of course, according to which he has said, he has stated the reformatory, the retributive or the deterrent theory of punishment.
In another place I noticed that the honourable Member who seconded the Motion for the Third Reading of the Bill said, as though it were an almost decisive argument in his favour, that admission had been increasingly made that there was an element of retribution in the capital sentence. Of course there is. But is there not also an element of retribution in the alternative sentence of imprisonment for life? I believe, with the most reverend Primate, that retribution—which is, of course, quite distinct from personal vengeance; the principle is sometimes expressed in the two Latin words suum cacique—is the most fundamental aspect of punishment. If that principle is wrong, all punishment is wrong. Reformation or deterrence can have its place when we consider the form or method of punishment; sometimes both reformation and deterrence can have their place. But neither can justify punishment if retribution itself is wrong.
I am glad to see that the view which I have been expressing is not confined to supporters of capital punishment. I would plead in aid not only the speech of the most reverend Primate this afternoon, for the doctrine which I have just explained was held with equal conviction by the late Archbishop Temple, who was, of course, opposed to capital punishment. 608 I wonder if I may read to your Lordships a few sentences from Archbishop Temple? He said that in all punishment there were the three elements which I have mentioned and that they may, of course, be active in very varying proportions. He said:These have usually been called the Retributive, the Deterrent and the Reformative. Personally, I hold that the essential element in what has been called retribution is not the infliction of pain to balance evil done, but is the action of the community in repudiating a criminal act. If, when a crime has been committed, the community does nothing, it is condoning the act, and to that extent becomes a partner in the guilt of it. If it treats the criminal"—and I ask the House carefully to note these words—merely as a subject for remedial care it is ignoring his moral character.A little later in the same article, the late Archbishop Temple dealt with the question of deterrents:Now, so far as punishment is deterrent only, it is treating the criminal as a means to an end, and though the law which condemned him may aim at preserving him from the crime, the actual infliction of the punishment is mainly concerned with other people. So far as this is true, it is non-moral; and if there were no other element in any instance of punishment, it would he immoral, for it is always immoral to treat a person only as a means to some end other than his own wellbeing.Although I differ from the late Archbishop Temple in his conclusions on the question of capital punishment, I associate myself wholly with what he said in the passages which I have read about the three theories of punishment. As my noble and learned friend the Lord Chancellor pointed out, Lord Justice Denning said something of the same kind in the passage which is quoted in the Royal Commission's Report. The fact, therefore, that capital punishment is retributive does not help us at all in determining whether it is the best punishment for murder. What we have to determine is which of two punishments, both retributive, is better—death or imprisonment for life.
Before I consider that question, may I deal for a moment with a matter which has figured so largely in this controversy, both outside the House and in some allusions in the House this afternoon? Many have quoted Lord Ellenborough and other lawyers in the House over a century ago who opposed the abolition of the death sentence for small thefts. 609 In my view, those who took that line were terribly wrong, and I find their arguments shocking. But may I call the attention of the House to this fact: the House will note that Lord Ellen-borough and the rest would never have been led into that error by the retribution theory. They were led into their error by deterrence run mad.
My Lords, in choosing between death and life imprisonment as the penalty for some murders, we are choosing between two forms of retribution. In making that choice we can rightly consider, among other matters, which is the more calculated to deter. The noble and learned Viscount the Lord Chancellor has given reasons why it is difficult, and indeed impossible, to give absolute proof in this matter, but I would call attention to a few considerations which make me think —indeed, which convince me—that the death penalty does prevent a number of murders from being committed in this country. Let me mention again a matter which has been far too little mentioned in this controversy, although it was mentioned by my noble and learned friend the Lord Chancellor. It is that to-day in this country we have the lowest homicide rate in the whole world.
Let me put it to the House in this way. Every Member of the House has received a number of communications from outside bodies, all sincere and intended to help us; and all, one after the other, making the point that surely this country should abolish the death penalty and put itself in agreement with so many other civilised countries. But does it never occur to any noble Lord that, if he have the lowest homicide rate in the world, it may be that other countries could learn from us? Why should it be assumed that we must change our law of the punishment of murder, when the fact is that with this punishment—I do not venture to say whether as a consequence—as tempered by the exercise of the Royal Prerogative, we enjoy the lowest homicide rate in the world? I need not refer in detail to the passages on which I rely, but I would refer any noble Lord who is interested to pages 370 to 372 of the Royal Commission's Report.
That is my first reason for believing that the deterrent may be real and effective.
610 My second reason is that given by my noble and learned friend Lord Hailsham. In some cases we shall be considering not which, in general, is the more effective deterrent, death or life imprisonment; we shall be considering, as Lord Hailsham quite rightly said, whether there shall be any real deterrent at all. As he pointed out, in the case of the habitual criminal engaged in a robbery for which he may be sent to prison for fourteen years, if nothing but long imprisonment is suggested as the penalty for murder, there will be no additional penalty before him to deter him from murder. As I have said, we have the lowest homicide rate in the world, but we have not a diminishing number of crimes of violence.
The next reason why I believe that the death penalty is a real deterrent is the fact that that is the strong conviction of the police, generally supported by the judges. Perhaps I may read a few sentences in paragraph 61 of the Report of the Royal Commission:Of more importance was the evidence of the representatives of the police and prison service. From them we received virtually unanimous evidence, in both England and Scotland, to the effect that they were convinced of the uniquely deterrent value of capital punishment in its effect on professional criminals. On these the fear of the death penalty may not only have the direct effect of deterring them from using lethal violence to accomplish their purpose, or to avoid detection by silencing the victim of their crime, or to resist arrest. It may also have the indirect effect of deterring them from carrying a weapon lest the temptation to use it in a tight corner should prove irresistible. These witnesses had no doubt that the existence of the death penalty was the main reason why lethal violence was not more often used and why criminals in this country do not usually carry firearms or other weapons.We must be very conceited if we claim that we know so much more about the habits of the criminal classes than do the police, who have to deal with them daily. I say that the evidence of the police is worthy of the greatest respect, especially when it is so often supported by the judges. I repudiate most strongly the suggestion that the Judges of the Queen's Bench Division throughout our history have been rather blood-thirsty men, generally in the wrong. I think it was my noble and learned friend Lord Oaksey, eight years ago, who pointed out that it was to the judges that we owed the doctrine of the presumption of innocence.
611 I wonder whether I may say one personal word about the judges. In the debate eight years ago, a very valuable contribution was made on the Second Reading of the Criminal Justice Bill (when the question of capital punishment was only one of many questions involved) by the noble and learned Lord, Lord du Parcq, who spoke with great authority in this House, and charmed this House in all quarters. When I was called to the Bar long ago, in 1919, I went as a pupil to Herbert du Parcq (as he then was), and towards the end of my pupilage he invited me to stay on in his chambers. From then until he was appointed a Judge of the King's Bench Division, I was in daily contact and constantly having discussions with that very humane lawyer; and after he became a judge and, later, went to the Court of Appeal, and ultimately in your Lordships' House, he remained my very close friend.
I remember, eight years ago, as a Member of another place, hearing, at the Bar of your Lordships' House, the speech which he made. Perhaps I may quote the few sentences with which the noble and learned Lord, Lord du Parcq, concluded his speech on April 28, 1948 [OFFICIAL REPORT, Vol. 155, Col. 519]: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.I come to the last of my arguments, to the effect that capital punishment is a direct deterrent. This, perhaps, is the most astonishing of all. It is an admission in another place by the promoter of this Bill himself. In another place, an Amendment was moved on the Committee stage which would have exempted from the operation of the Bill certain people by a proviso which said—Provided that this Act shall not apply in any case in which the murder was committed(a) in the furtherance of burglaryet cetera, and(b) by the use by the person charged of some offensive weapon or instrument with which such person was himself armed.612 That was the Amendment to which the promoter of the Bill had to address himself when he came to reply. By the Rules of your Lordships' House I am not at liberty to give his exact words but must give them by paraphrase. But I ask all your Lordships who wish to study this to turn to Columns 2077 and 2078 of the OFFICIAL REPORT of another place for May 16. The promoter of the Bill pointed out how useless this Amendment would be in dealing with gang warfare, because the master spirit would be encouraged to make certain that someone else used the weapon. A little later on, he pointed out that, if the Amendment were passed, it would be only the hand that fired the shot that would be held to be supremely guilty; and he suggested that the Committee could be quite certain that those who planned the murder would make absolutely sure that somebody else actually fired the shot. Could one have a clearer admission that, in the view of the promoter of the Bill himself, capital punishment provides a unique deterrent which imprisonment does not?
I believe the death penalty to be a valuable deterrent. I also believe, with the late Alexander Paterson, that it is morally preferable to the proposed alternative. One of the extraordinary things in this great controversy is that each side thinks the other is lacking in imagination. The abolitionists think that we do not share the view that capital punishment is horrible, and those who uphold the death penalty think that the abolitionists are unimaginative when they come to deal with long imprisonment. I met the late Alexander Paterson in my student days and, like so many of us who knew him, even slightly, I was very much impressed by him. I do not claim that I knew him nearly so well as many of your Lordships in different sections of the House knew him, but I know it is suggested that he might have been prepared to revise the views which he so strongly expressed some years ago if he had been made aware of all the improvements in prison conditions that had taken place.
My Lords, I am unable to take that optimistic view. I still find a little shocking what is said, with great honesty, in the Report of the Royal Commission itself—I quote the concluding sentence of paragraph 657:that the principles now followed by the Secretaries of State in determining the actual length 613 of detention in each case are in general appropriate for the purposes of punishment, deterrence and the protection of the public, without undue risk of causing moral and physical deterioration in the prisoner; and that if, in exceptional cases an exceptionally long period of detention is called for, the additional risk of such consequences ought not to be held to rule it out.I cannot believe that that is a conclusion with which all humane men will agree.
Much has been said of the sanctity of human life. I think I need say nothing on that matter this afternoon, except to associate myself with what was said by the most reverend Primate. The matter was also dealt with by the right reverend Prelate the then Lord Bishop of Winchester in the debate in 1948. Absolute opposition to capital punishment has never been an unqualified principle of Christian thinkers or of the Church of England; but if the words "sanctity of human life" have an important meaning for the Christian, they must, I think, refer to the quality of life and not only to its duration. I believe that this Bill is wrong in principle and wrong in practice. Of course, I have considered, as have so many, whether, notwithstanding my personal convictions, this was a matter in which I could honestly bow to the will of the Commons and not record a vote against it. I can find no ground whatever on which I can justify abstention. How can we claim to be a Revising Chamber if, in a matter of this moment, we fail to record an honest vote? I blame no Member of another place who voted as his conscience dictated, even if, as the seconder of the Motion for the Third Reading admitted, he voted knowingly in defiance of the wishes of his constituents. For my own part, having long and carefully considered my duty, I shall vote as honesty compels me.
§ 5.13 p.m.
§ THE EARL OF GLASGOW
My Lords, I must ask for your Lordships' indulgence because I am not able to speak in your Lordships' House unless I read what I have to say. But, to come to the point, I believe that the abolition of the death penalty would be a mistake for the following reasons. A Bill passed through Parliament in an emotional atmosphere, in which tears were seen streaming down the cheeks of some of its supporters, cannot be sound, in spite of the obvious sincerity of its promoters. It reminds me of what a Parliament of women would be like who sometimes are inclined to 614 judge with their hearts and not with their heads. I was struck with the unanimity of the Judges who, with scarcely an exception, were against abolition. Your Lordships will probably recollect, as has already been mentioned, that one of there commented that at present burglars are, as a rule, unarmed, bat if this Bill passes they will arm themselves and may think it worth while to shoot their way out, as the penalty for murder would not be much greater than what they would get for robbery with violence. I know a prison chaplain who, whilst talking with "old lags," was told by them that they hoped hanging for murder would be abolished as it was the one deterrent feared by all criminals.
I think this country is disturbed to-day by the amount of violence and vandalism amongst adolescents and young people. There are several reasons for this state of things, and lack of parental control is one of them. The other reasons are the abolition of the "cat" and the cane and the defective education given to so many of the younger generation. Some cinemas are not good for the young. Many films have the effect of inciting boys to be what are called "tough guys" and they model themselves on those lines, go about in gangs, and are a terror to their neighbours. They are prepared to steal and even to kill, for they know that their precious skins will undergo no pain and that, if under eighteen, they will not hang. I believe that there should be a review of what were called "progressive and beneficial measures" which have been introduced during the last few years, because they have been obvious failures. The Government should turn a deaf ear to the sentimentalists and reintroduce the "cat" and the cane. If young people had been disciplined in their early years by corporal punishment, there would be less need for the death penalty; but if abolition is brought in now, when, owing to lack of discipline, violence and vandalism are so much in evidence, it would be a danger to the country. I know, of course, that there are hundreds of thousands of boys and girls, many of them members of youth clubs, who will make the best kind of citizens that any country could have. In passing, let me congratulate the inhabitants of Guernsey on their common sense in deciding, by a considerable majority, to retain the "cat" and the cane.
615 The arguments of the abolitionists by which they make comparisons between nations are, to my mind, untenable. When I read of the nature of the murders which have been committed during the last few years, such as the horrors who take children of tender years into woods and rape and murder them, I feel that there is in this country a streak of insensitiveness and a tendency to violence in certain strata of the population which is lacking in many foreign countries. Also, how is it possible for the abolitionists to compare Scandinavian countries, with their small population of well-educated and cultured peoples, with Anglo-Saxons? But, as they seem to set store by these comparisons, let me remind them that in the small Anglo-Saxon country of New Zealand, with a population of nearly two million, the death penalty was not in force between the years 1935 and 1950. Between 1935 and 1941, although hanging was the law, it was not carried out. In 1941 hanging for murder was abolished, and in 1950 it was restored. During the fifteen years in which it was not in force, the average number of murders was nine. Since it was restored in 1950, the average has been three. If hanging is a deterrent in New Zealand, the people of which are of the same stock as ourselves, there can be little doubt that it is a deterrent here. If your Lordships pass this Bill there is no doubt in my mind that the number of murders will be greatly increased, and in my view this experiment —for that is what it is—should not be tried out, because it is not worth the sacrifice of even one more life per annum, much less the many which abolition would entail.
At a recent meeting of the General Assembly in Edinburgh, certain prominent Ministers of the Church of Scotland declared their belief that to hang a man was unchristian. That belief is held by other people, notably the most reverend Primate who spoke today. I want to say a word on that. Before Italy was united in 1871, some of the States and Parliament enforced the death penalty and some did not. Piedmont did it, but Milan and Lombardy did not. In the Papal States the Roman Catholic Church, being a spiritual organisation, did not admit capital punishment. Their own words on this point were: "Ecclesia non sitit sanguinem", which I am told means 616 "The Church does not thirst for blood." In the old days the death penalty was reserved for heretics and its execution was entrusted to the civil powers. Nevertheless, in countries subject to the Roman Catholic Church as a temporal power, the death penalty was inflicted for murder and even for common crimes of particular gravity. Even to-day, in the small state of the Vatican City, capital punishment can be inflicted for any attempt against the life, integrity or personal liberty of the Pope. Equally, a similar offence committed possibly against the heads of foreign countries in Vatican territory may be punished by death if the laws of the victim's country admit capital punishment, So it would appear that successive Popes of Rome considered that the penalty for murder was not only not unchristian, but was a necessity.
My Lords, to sum up, I think that this is a question of "black" or "white" and that this is not the moment to follow suggestions for compromises, from whatever source they may come. Whether a murderer should hang or not should be examined from a practical and not from an emotional angle. Any sympathies I have are for the relatives of the corpse, and for the victim who was once a human being but whose life has been blotted out by a gorilla. I feel strongly that hanging is a deterrent, and that, if the floodgate is opened, we shall contrary to the experience in some countries, have a large increase in the number of capital offences.
Finally, I have been out in the byways and hedges. I have accosted perhaps fifty to eighty strangers in the streets and on the roads, including two engine drivers and firemen. Most of these people were working class. They ought to know, as it is from their ranks that most of the victims come. This was a small cross-section of the Scottish people, and only one of them was in favour of abolition. Of course, that proves nothing, but it convinced me that at least 70 to 80 per cent. of the people north of the Tweed are against this Bill. My Lords, as has been said, this Bill passed through another place by nineteen votes, with many Members abstaining. Is that true democracy working through the elected representatives of the people? Your Lordships know in your hearts, even those who are for the Bill, that the great majority of the population are against it. If your 617 Lordships act in the interests of true democracy and throw out this Bill now, you will have the thanks of the people.
§ 5.22 p.m.
§ LORD WISE
My Lords, the noble Lord who has just sat down, will not, I am sure, wish me to follow him through his speech. I want to deal with the matter before the House in quite a different way from that in which he has covered it. I think we can assure ourselves that the effect which this discussion will have upon public opinion outside the House will be to the advantage of all. Our discussion will undoubtedly bear scrutiny outside, and be considered as a serious attempt on the part of the House of Lords to solve a difficult situation. This is indeed a problem which creates differences of opinion among people, wherever they have gathered together, even in family circles and in places such as that.
It has been stressed, and I think it cannot be over-stressed, that we, as Members of your Lordships' House, have to-day and to-morrow to come to an extraordinarily difficult and important decision. That rests with us, but I am sure that nobody here will wish to avoid the responsibility of deciding, according to his own conviction and his own conscience, whether he should vote for abolition or retention of the death penalty. None here, or elsewhere, can condone murder in any form or in any circumstances. The last speaker referred to his heart, but I am convinced that none of us, in his heart of hearts, can agree with capital punishment or retribution by the destruction of what we know as "a life for a life."
We all know what constitutes murder in individuals or by an individual, but I want to make a suggestion to your Lordships for consideration which may not find favour with many of you. I hold the view that premeditated and planned death by execution can in itself be described as murder and is therefore equally indefensible. Such a retribution to expiate a previously committed murder cannot satisfy a reasonable conscience. It may be brought about by a desire for some such retribution as the outcome of either an orderly or a disorderly mind. There may be a spirit of revenge in sanctioning a death by execution or agreeing with death by execution. On the other hand, 618 it may be a result of a conviction very firmly and faithfully held.
We have been told that, in order to counteract a seemingly increasing number of murders, punishment must be swift, terrible, final and complete. I want to emphasise a point about confinement for life. The noble and learned Viscount on the Woolsack suggested an increasing degree of penalties, according to the crime. I suggest that, as a suitable punishment to be considered, there is confinement for life; and when we talk of "life," we mean life, and not a prescribed period of years. We may be persuaded against such punishment by reason of cost, but we must remember that we do not leave mental defectives at large: we control them. We bear the cost of their control, whether for a long period or a short period; and, in my view, every murderer is a mental defective of some degree. I also want to stress this particular point—unfortunately I was not here when the most reverend Primate spoke. I want to suggest to your Lordships that murder is not only a sin against earthly society but is a sin against a higher Power. The opportunity of repentance is given to all of us. Life comes front above, and it is not ours to destroy. I want to stress that particularly, because I hold that view very strongly.
I want to put a point for every individual one of us to consider, not only in this House but outside as well, because this is a point which affects every family, not only here but overseas and elsewhere. We are all human, subject to like temptations, passions, mental reactions and balances and the rest. We all have the power to resist sin, but that power is not equal. The risk of family or personal tragedy has to be run by all of us—rich, poor, and all alike. We ca mot be certain that we can circumvent it. We may sin, or we may be sinned against. Murder may fall upon us or ours, or be committed by any of us. The risk is there. We may break down without warning; we may be troubled by overwork;, we may overrate small day-to-day happenings in family or business life; we may misjudge the actions of others. At any t me, anyone may come face to face with provocation or temptation. It may arise from envy, malice, avarice, covetousness and the like. A blow may 619 be struck after long premeditation or as the result of sudden impulse.
And here is where I want to put a direct question to every one of your Lordships. If a man should murder his wife, if you should be the man who did that, do you think that the wife would wish that the death penalty should be inflicted? The reverse applies. If your wife should murder you or anyone else, what would your reactions be concerning the penalty? What would your reactions be with regard to the penalty which should be meted out to her? If the criminal should be one of your own children, what would your feelings be as to what should be the measure of retribution? We must think of the possibilities as to what might follow from sudden temptation or otherwise in any of our own families. Your own boy or girl might overstep the mark in any direction. That is indeed a serious thought.
The noble Earl, Lord Glasgow, referred to a conversation which he had had with a prison chaplain. I should like to conclude by mentioning a conversation which I had with a prison chaplain who was well known to me some years ago. He was present at two, if not more, executions. In the first instance, the person to be hanged was an old man who, when drunk, assaulted an old lady and then killed her. He was hanged. I may say that these executions which I am now mentioning are not included in the list which has been sent round, I think, by one of the papers. They occurred before the time of those executions which are set out in that list. The second murderer was a young man. It was alleged that he robbed a young woman and that then, in the excitement, a shot was fired either by him or by someone else. He was found guilty and hanged. He admitted the robbery, but he steadfastly pleaded to the prison chaplain that he was not responsible either for the revolver or for the shot. The prison chaplain, as was his duty, spent hours in the condemned cell prior to the execution, and he was so convinced that the lad was innocent of murder that after the execution he resigned. Now that boy, I understand, was a typical British boy—full of vitality, full of life. He was a clean-living lad, except for that one occasion when he overstepped the mark. He was a typical 620 young British boy. And that is the sort of thing that might have happened to one of your own children.
The noble Viscount, Lord Temple-wood, spoke of the horrible effects of execution. I come now to the horror of the two executions attended by the chaplain I have mentioned. One murderer was hanged and the other was strangled. The chaplain inspected one body but he was not allowed to inspect the other. Cannot we do something in our society to prevent things of that sort happening? Cannot we, if only for a trial period of years, do away with the death penalty and make imprisonment the punishment for murder? I cannot bring myself to believe that hanging is necessary in our Christian society. I hope that, in the ages to come, humanity will outlive everything which is horrible and beastly in our present age.
§ 5.36 p.m.
§ LORD WEBB-JOHNSON
My Lords, the noble and learned Viscount who sits on the Woolsack spoke of his own experiences. I propose to follow his example. First, I would speak of the two murders by violent methods which I have witnessed. I may say at once that I formed quite different conclusions in regard to them. In one case, the killer was a notorious "bad hat." He awakened us in the small hours of the morning, and my mother and I rushed to the window from which we saw that the man had chased his wife into the front drive, and there before our eyes he slaughtered her. Not satisfied with that, he kicked her in the face and kicked her in the belly. That man was not insane; he was a beast, a brute and, as such, he ought to have been destroyed. That was the conclusion I came to then, and it is the conclusion which I have held for fifty years since. What would he have been preserved for, and who was going to welcome the job of looking after him for the rest of his life? It did not strike me that there was any sanctity in that so-called human life.
The second murder I witnessed when leaning over a ship's rail in the harbour of Tampico, which is some six miles up the Gulf of Mexico. Some men were loading, a ship with a cargo of coffee, and a few hasty words passed. Almost before one could see anything of what was happening, one man pulled out a knife and plunged it into another. He afterwards, 621 went on loading coffee, but later the local police carne and took him away. In my view, that man required treatment quite different from that of the first murderer I have mentioned. I think that if any of your Lordships had had a short sojourn at Tampico you would have realised that tempers there were a little short and that knives came out very easily. What that man wanted was a good slap in the face, and then a few years in gaol to cool his temper arid teach him to control it.
Another type of murderer that has come under my notice is the poisoner. I have had direct personal experience of the work of poisoners, and on two occasions I have been able to recognise that a man was the victim of slow arsenic poisoning. It is very difficult for a family doctor to turn his mind towards the idea that his patient is being poisoned. But when you are acting in a consultant capacity and the patient is brought to you revealing symptoms, we will say in this case, very like cancer of the stomach, and yet again not looking as if he was going through a mortal disease, but through another crisis, you are more ready to form certain conclusions. When I isolated this man in a nursing home, allowed him no visitors, and saw to it that no food reached him except food prepared by a nurse and served to him by a nurse, in a few weeks he became well. What does one do in such circumstances? The noble and learned Viscount may say I did the wrong thing. What I did was to tell the patient that his symptoms were due to the fact that he had swallowed continuous doses of arsenic, and I reckoned it was his business to find out where it came from or who kindly gave it to him. I saw his wife and I imagined the situation in that home as she carefully watched the effects of her means of doing him to death. There it was; there was no getting away from it. But there is a type of case where nothing but the extreme penalty for crime seems to meet the case.
To show your Lordships the difference between the general practitioner and the specialist, I will give you another instance, if I am not taking up too much time. During the "blitz" I went to answer the telephone, which was near the window. That sharpened ones' wits; one wanted to get away from the window as soon as one could. The doctor wanted me to go to the outskirts of London to see a man 622 who was desperately ill; he thought he was dying. I said, "What do you think he is dying of?" He replied, "I think he has cancer of the stomach". I said, "He did not get it this afternoon. You might have let me know earlier in the day." I asked him some questions about the symptoms, and they were all such as I have told your Lordships about in the other case. I asked, "What about the X-ray?" He said that the curious thing about that was that it did not show any deformity of the stomach. I said: "Don't be a damned fool. Somebody is poisoning him." I hope your Lordships will excuse the language. I never saw the patient, but I got rid of the telephone and I got away from the window; and my wits had been sharpened—for I was right.
I saw the doctor about six weeks later, and asked, "What happened about that patient?" He answered, "You were right." I said, "How do you know?", and he replied: "I put him into a nursing home, isolated him, and tested him. He was full of arsenic, and he was soon on the way to getting well." I then asked, "What did you do about it?", and he replied: "I told him he ought to be very careful what he ate." That is all very well, but if these women had succeeded they would have deserved the extreme penalty. These prisoners are dreadful people! I would not have any thing to do with them! Then I had two friends in Broadmoor. You may think that a little curious, but there it is. That is a wonderful institution for the right type of patient. Both those men served two or three years and then were liberated, and they served their fellow men and led lives of sacrifice for the rest of their lives. They were genuinely temporarily insane.
Now, with that experience, I have been puzzled to know why there is such wide support for the abolition of the death penalty. I suspect that very largely it is due to two factors which, if cleared up, would greatly diminish the number of supporters of abolition. One is the gruesome tableau of the pronouncing of the death sentence in every case when a prisoner is found guilty of murder. Undoubtedly there are different grades of offence which may either demand the death sentence, as I 623 suggested, or may require a lesser punishment. I cannot understand and never have been able to understand, since the days when I was being attracted to the Bar instead of medicine, why the law should say that the death sentence must be pronounced on all those guilty of murder. It is so dreadful, so cruel, and so unnecessary.
The other factor is the method of killing. I started research work on execution fifty years ago. I did not publish the results, and your Lordships may guess why I did not do so. But the method of killing is disgusting, crude, primitive, clumsy and inefficient. Both the pronouncing of the death sentence and the method of execution should be revised, and I believe that if this or any Government brought in a Bill modifying the sentencing of people found guilty of murder, and modifying, bringing up to date and making scientific the method of terminating a life by execution, it would bring great relief to a large number of people in this country and would remove half the demand for the abolition of capital punishment. From which I hope your Lordships will gather that I strongly believe in the retention of capital punishment for suitable cases but not for all.
§ 5.49 p.m.
§ LORD OAKSEY
My Lords, I regret that I was unable to be here when the noble Viscount, Lord Templewood, was opening this debate, and also when the noble and learned Viscount on the Woolsack was making his speech. I should not have wished to intrude upon the debate again, having spoken on previous occasions, but for the fact that I have for many years been a Judge in the King's Bench Courts and now in the Queen's Bench Courts, and have had the duty of presiding at a number of murder trials. I want to say a few words upon the subject of deterrents and upon one or two other subjects. I am not in the least convinced by statistics that the death penalty is not a deterrent. It may be that some people have enough animal courage or religious belief not to fear death, but I would put it to your Lordships: is there anybody who does not fear death with disgrace? The very case which abolitionists put forward seems to me to prove the deterrent effect of the death penalty. It is their horror of death which makes them aboli- 624 tionists. They say that the infliction of death is such a terrible thing that the penalty must be abolished. That shows the fear that a natural man has of death and, as I say, particularly of death with disgrace.
As to deterrence generally, is imprisonment no deterrent? If imprisonment is a deterrent—and surely it must be admitted that it is—then the greater penalty of death must be a deterrent. Can anyone be persuaded by statistics? Are your Lordships persuaded that imprisonment is no deterrent because people continue to commit crimes and some of them to go to prison time after time? I submit to your Lordships that anyone who looks at the case for abolition and the case for the death penalty must be convinced, as I have been convinced in the course of many murder trials, that the death penalty is a great deterrent. As one noble Lord has already said, it is possibly a more cruel penalty to give a sentence of life imprisonment. It is not realised at the time by the man who has it imposed upon him that it is a more dreadful penalty than death, and therefore it has little deterrent effect; but those who have seen it carried out know that it is a terrible penalty.
I want your Lordships to consider, when thinking of the evidence which is before you on the merits of the death penalty and of the case for abolition, who are the witnesses who speak on one side and on the other. On one side is the almost unanimous opinion of the judges, the legal profession and those engaged in the prison system. Against them are those who rely upon statistics, upon emotion and upon their political views. Which view is more likely to be right? Is it that the judges and the members of the legal profession and of the prison service are more bloodthirsty, more cruel, than those who advocate abolition? Take another sentence which has provoked much controversy, the sentence of flogging. The warders who are in touch with the criminal population, and who presumably know, insist upon the retention of flogging for offences against them. I submit to your Lordships that all the facts point to the view that those who really know the criminal population and who come in touch with the administration of the criminal law, and who therefore might be thought to know more about it, are practically all against abolition. It is those further 625 away from the criminal classes and from the administration of criminal justice who are, to a large extent, in favour of abolition.
I cannot agree with what the noble and learned Viscount, Lord Hailsham, said about possible alterations in the law. I think that the flexibility of the law as it stands is a great virtue. I ask your Lordships to think of what happens in a murder trial. The judge has to sum up and has to lay down to the jury that intention to kill or to do grievous bodily harm must be proved. Sanity, in the view of the law, must be proved—must be presumed almost until insanity is proved. Then, apart from intention, provocation may be proved. In those ways murder is distinguished from manslaughter. The jury have a completely flexible discretion on whether or not they find a man guilty of murder or of the lesser offence of manslaughter. The judges have to apply the principles of the law to the facts of the case. If one reads the summings-up of judges, one sees the care and, in some cases, the skill with which they have applied those principles to the facts. In that way juries are fully apprised of the distinctions which they can make; and they do make them. There is no case my recollection, except possibly one, where I have disagreed with the verdict of murder.
In addition to that, there is the completely flexible discretion of the Home Secretary. In my view, it is far better to retain that discretion than to categorise murders, to put them into little legal compartments, which will always lead to difficulties and argument. The Home Secretary is absolutely free to receive any evidence—not only legal evidence—and to consider any facts whatever in order to decide whether or not he will reprieve. I think that any lawyer who has had experience of the administration of criminal justice in this country will say that it is carried out with absolute fairness and with the greatest tenderness and mercy for those who are accused.
§ 5.59 p.m.
THE LORD BISHOP OF EXETER
My Lords, I shall not take up a great deal of your Lordships' time to explain why I propose to vote for this Bill, though undoubtedly some four or five years ago I should have voted against 626 it. I should have voted against it largely for the reasons given by the most reverend Primate who has spoken before me. It has been traditional in Christian ethics to allow the legitimacy of the taking of life by the community as the most extreme form of punishment at its disposal. That tradition has warrant in Scripture and is supported by reasons which I do not propose to elaborate this afternoon, since the most reverend Primate has done it for me and, in any case, the reasons are probably familiar to your Lordships. I should also have voted against the Bill largely because the retributive element of punishment is not only always properly present but is, indeed, properly predominant. It is for that very reason that care is always taken to ensure that the punishment is in proportion to the crime. If the punishment be over-severe, it is held to be unjust. It is for this reason, also, that the utmost care is taken to ensure that no man is punished except for those actions for which he is reasonably held to be responsible.
It seems to roe that over the years, latterly, there has been a growing uneasiness in the public conscience as to whether the imposition of the death sentence in cases of murder in this country does accurately reflect a proper retribution; that is, a growing uneasiness whether the imposition of the death penalty in certain cases of murder is just. That is so in two directions. The death penalty is the extreme penalty, beyond which there can be none worse. It should therefore be reserved as the most emphatic, dramatic mark of disapprobation, the detestation by the community of particular crimes.
It seems to many people that in this country there are now being committed some crimes which are more dangerous to the well-being of the community, and more detestable, than some murders; and they are crimes for which the criminals are undoubtedly morally responsible—crimes, such as the exploitation of the white slave traffic, the inculcation of drug addition in adolescents, or sustained cruelty towards a child. I think the public conscience regards criminal activities of those kinds as more detestable than some of the murders for which the murderers have been hanged. They have, therefore, a certain unease about the 627 imposition of the death penalty. I am not pleading that the death penalty should be extended to cover these crimes. I am saying only that the fact that the death penalty is not executed in the one case but is executed in the other creates in the public mind a sense of unease and a certain sense that justice is not being done.
Further, there is a public idea that some persons are hanged for murders for which they were not, in fact, wholly responsible, or are hanged for murders which were not, in any ordinary sense of the word, premeditated. It has already been said that the law of murder is sophistical. Certainly I think the common man of the English nation does not now understand the rulings which hold in the law courts. The common man does not understand why it is that in some cases a man is acquitted and in other cases he is not. I speak with the greatest respect before noble and learned Lords who are Judges of Her Majesty's Bench, but it is precisely because the Judiciary is so emphatic that distinctions and degrees of murder cannot be entertained in the law courts that the public mind is uneasy about the imposition of the death penalty. If the murder law could be reformed, and if there could be produced gradations of murder and gradations of penalty, then I believe a great deal of this public unease of which I speak would be removed. But I understand that that course is not possible; and therefore I shall vote for the Bill to abolish the death penalty altogether, so that I may aim to abolish what I conceive to be a grave evil—namely, public uneasiness of conscience.
The second element in punishment is, of course, that it should be reformative. I do not for one moment accept the argument of those in favour of the abolition of capital punishment on the ground that capital punishment, because it is final, cannot be reformative. There have been cases—perhaps a great number—in which the acceptance by the murderer of the justice of the death sentence imposed upon him has effected a reformation of character—and by "reformation" I mean a recognition of the wrongness of his action done, together with a will and desire to make atonement and to reform. Chaplains of prisons have spoken of more than one case where the death penalty has been reformative in that sense. But it is not necessary to impose the death 628 penalty in order to get this reformation. For this reason, also, I shall vote for this Bill, because I cannot believe that it is right to impose the death penalty unless it be necessary or near-necessary. But I shall vote for the Bill under this heading with the greatest caution.
We are told in the Scriptures not to fear those who can kill only the body and that after that there is nothing that they can do; we are warned that it is for God alone to destroy both soul and body in Hell. But it is certainly within the competence of a civilised community, while preserving the body, to destroy the soul in prison. I intend no criticism of the governor, chaplain and officers of Her Majesty's Prison at Princetown when I say that it seems to me to be almost inconceivable that any man can emerge from Dartmoor a better man than he went in. The chaplain tells me that in fact that does from time to time happen. All I can say is that it happens against all the odds.
It seems to me that by imposing long sentences upon murderers we should be running the risk of exposing them to a deep spiritual corruption. Therefore, to me, it is a corollary of the passing of this Bill that urgent reforms in our prison system should immediately be set in hand. It is not an easy problem which the authorities have to solve. I lay no claim to any expert knowledge on penal reform, but it is clear, is it not, that the sentence which is to be imposed on a murderer, if it be not the sentence of death, must be one which is severe. And in the early stages, at least, it must, I believe, hurt; because the sentence must reflect the detestation of the community for the crime which the murderer has committed. The sentence must make plain that the community hates the use of violence against any one of its members. Therefore, the punishment must be severe, and I think that probably it must be very long, because the community has the right to be reasonably sure that an offence which has been committed once will not be committed again. Therefore, the authorities must be given time to make themselves reasonably sure that the man's character is reformed.
Above all, if a man undergoes a really long sentence, the early stages of which are accompanied by severe discipline, then he must at every stage of it be 629 buoyed up with the emotion of hope: either hope for a release, or, if that seems almost too distant to hope for, then a hope that by good conduct, by loyalty and by acceptance of his punishment, he may earn ever-increasing privileges, and, as time goes on, may be entrusted with actual responsibilities and duties. Further, it is of the utmost importance that the plans already in being for an institution for the special treatment of the pathological cases should be pushed forward with all speed.
I will riot weary your Lordships with arguments for or against the deterrent quality of the death sentence. Others far more competent than myself have laid, or will lay, before your Lordships all those arguments. All I would say is this. Until recently I was convinced that the death penalty must be retained because of its uniquely deterrent nature, but I am convinced by the evidence of the Royal Commission that it is not possible to say that the death sentence is uniquely deterrent. If it were, then surely it is an unavoidable conclusion that, wherever the death sentence is removed, the proportion of murders must increase. Of course the death penalty is a deterrent. My contention is that it can no longer be said to be a unique deterrent. Therefore it can no longer be said that it is necessary for the well-being and protection of society.
My last reason for changing my mind and voting for the abolition of the death sentence is that the imposition of the death sentence creates in the community a certain morbid and unhappy excitement which is had for general morals. It is difficult to assess the degree and nature of this morbidity, but I think your Lordships will all agree that it exists. One has only to look at the whole atmosphere which surrounds a murder trial, the whole manner in which murder trials ale reported in the Press, to realise this. I have no criticism of the Press to make. They print only what people like to read; and the fact that the papers print these long accounts of murder trials is in itself evidence of this morbid unhealthy interest of which I speak. The atmosphere is reminiscent of that which presumably obtained among a Roman mob seated in the Coliseum watching the gladiators fight for their lives. Again there is this morbid interest in all the details which the authorities can allow to be published 630 about the last moments which precede the execution and about the execution itself. These things are difficult to assess, but their existence cannot be denied; nor can it be denied, I believe, that they are a bad influence upon society.
The justification of capital punishment is, as I have said, that it is due to a man because of his gross misconduct, and that it marks emphatically the deep detestation in which the community holds his action. Deliberate, violent taking of the life of a fellow-member of society is a detestable act for which, in my judgment, the death penalty would be the entirely just one if it were necessary. But the effect of the death penalty, which is itself the violent taking of life, is, on the whole, to make the violent taking of life seem less detestable and less abhorrent than the community intends that it should appear. In other words, the death penalty as a mark of detestation for murder defeats itself. Instead of inculcating into the community an even deeper reverence for the sanctity of human life, the death penalty actually cheapens human life, and in the mind of an ordinary man depreciates the sanctity of that human life. It is for those reasons that I shall vote for the Bill.
§ 6.15 p.m.
§ LORD CLITHEROE
My Lords, although most of your Lordships will have listened with great attention and respect to the speech we have just heard from the right reverend Prelate, I am bound to say that the last argument which he brought forward was not one which appealed to me. The Report of the Royal Commission sets out that the outstanding defect of the law of murder is that it provides a single punishment for a crime widely varying in culpability; and it is, I suggest to your Lordships, that defect that has caused the death penalty to be so much criticised at de present time. I agree with that criticism, although I listened with the greatest interest and respect to what the noble aid learned Lord, Lord Oaksey, had to say.
I should like to see the law of murder reformed. It is difficult to define categories of cases, and the noble Viscount, Lord Hailsham, and others have discussed that point. There is only one way in which, as I see it, the penalty can be made appropriate to the crime, and that is a way with which the Royal 631 Commission do not agree and a way with which Her Majesty's judges, on the whole, I believe, do not agree. It is that the penalty shall be determined by the judge. He is the man who is in a position to form an opinion—the right opinion, think—of what the penalty should be. Though that may be putting a great additional burden upon judges, it is one which I should like to see placed upon the Judiciary. I myself believe that certain murders are so foul that it is necessary and right that the death penalty should be retained, and I shall therefore vote against this Bill since its object is to do away altogether with the death penalty.
Your Lordships have heard from much greater authorities than I could be on the various objects of punishment. With regard to reform, the right reverend Prelate the Lord Bishop of Exeter has just told us that, in his opinion, at least (I think I do not misinterpret him), penitence is just as likely to be present in the case of a murderer sentenced to the death penalty as in the case of one sentenced to imprisonment for life. With regard to retribution, I agree with the views of the noble and learned Viscount the Lord Chancellor, and the sense in which he approves of retribution and the point that the community must mark its disapprobation of so great an offence.
But much of the discussion this afternoon has turned on the question of deterrence, and I could not agree with what the noble Lord, Lord Pethick-Lawrence, said about this aspect of the problem. I was reminded of some words used in this House not many years ago— I suppose it was in 1948—by the noble and learned Lord, the late Lord Wright, of which I made a note. What he said was this:The sudden ending of human life by the process of law is the most terrifying thing that can be devised.I am bound to say that that is also my judgment, and I believe that, whatever statistics may show, many people are deterred, and will be deterred, from murder if the penalty is death. I have never believed that the voice of the people was necessarily the voice of God, but I do suggest that the voice of the people should be listened to. I believe that if the criminal law is to be respected, it 632 should accord largely with public opinion; and I believe that public opinion is, on balance, considerably against this Bill.
The Bill was passed by the House of Commons, and on Third Reading—although there may have been some special reasons for this; so that I wish your Lordships to attach to it only such importance as you think right—less than a quarter of the honourable Members of another place voted for it. One also hears that some honourable Members who voted exercised their undoubted right to vote in a way contrary to the opinion of those who elected them. From all I have heard in the country, and from what I have read, I believe that the balance of opinion in this country is against this Bill, and I therefore think we should be wise in this House to exercise our power to reject it and to give the country another opportunity for further thought.
Finally, we cannot overlook the view which has been put to us by the Lord Chancellor, representing the view of Her Majesty's Government. Her Majesty's Government, and in particular the Home Secretary, are responsible for law and order in this country. They have to consider the effect which such a Bill would have upon the police, upon the warders, and, indeed, upon various parts of our Colonial Empire. For all those reasons, I believe that we should accept the advice given to us by Her Majesty's Government.
§ 6.22 p.m.
§ THE EARL OF HUNTINGDON
My Lords, at the beginning of the few remarks which I shall make, I should like to say that great stress has been put this afternoon—and perhaps rightly—on the opinions of Her Majesty's Judges. We have listened to a very powerful speech by the noble and learned Lord, Lord Oaksey, and various references have been made by the noble Lord, Lord Conesford, and others to the opinions of the Judges and the respect with which we should treat those opinions. I myself would yield to none in my respect for Her Majesty's Judges. I have the privilege of being a friend of one or two of them, and from what I have seen, from what I know and from what I have heard of their work, I think they are a standing example to the whole world. Their industry, their vast knowledge and their 633 absolute incorruptibility are things of which we can all be proud.
Nevertheless, there is a strange situation which has puzzled me: that when it comes to this question of arguing on the death penalty, and arguing in general about big deterrents such as flogging, or, in the old clays, even torture, we find that throughout history in this country the Judges have been unanimously on the side of capital punishment and on the site of the hardest penalties one could imagine. I should like to substantiate that statement with one or two examples. I will not go too far back, but in 1748 William York, a boy of ten, was sentenced to be hanged for murder. Apparently there were some mitigating circumstances and there was some doubt whether a boy of that age should be hanged. The opinion of all the Judges was unanimously for the hanging of the boy as an example.
In 1786 Lord Loughborough, Lord Chancellor of that time, defended the burning of women at the stake, because, he said, "It made a strong impression on the beholder." Incidentally, it was his opinion that any reform in the criminal law should originate with the Judges or at least be approved by them before being submitted to Parliament. I will not go into the views of Lord Ellenborough which are well known. I think the only measure which he himself entirely framed added ten new offences to those punishable by capital punishment. Your Lordships will no doubt know that in the last century there were at one time about two hundred offences for which men and women could be hanged. Lord Ellen-borough's well known remark when he opposed a Bill brought in to remove the death penalty on people who stole in shops, was:If this passes we shall not know whether we stand on our feet or our heads.He went on to say that if such a Bill was passed the goods would be stripped from the shops and no property would be safe. In 1811 he fought the Bill to remove the death penalty for stealing from shops goods worth more than five shillings. When this was challenged as perhaps being a personal view, he replied:This is not my opinion but it is the opinion of the learned judges with whom I have been in the habit of consulting in the punishment of crime. They are unanimously agreed that the expedients of justice and public security 634 require that there should not be a revision of capital punishment in this part of the criminal law.I could go on quoting for a long time. Lord Eldon was also well known as having blocked all reform to the criminal law for years. There were many cases of children being hanged; for instance, in 1808 a girl was hanged at Lynn. She was only seven years old. In 1831 a boy of nine was publicly hanged at Chelmsford for having set fire to a house; another, aged thirteen, was hanged at Maidstone. Lord Eldon claimed that he had advised His Majesty's Government for twenty-five years and could say without any doubt "that mercy had never been refused in any instance where it ought to have been given." That was the opinion of Lord Eldon. He was most successful in this matter, because the Bill for the abolition of the death penalty for shoplifting was passed by the House of Commons in about eight different years and was always thrown out by the House of Lords on Lord Eldon's advice. In fact, in 1818 he was so eloquent that the Bill was thrown out without a Division. Finally, in 1832 Lord Eldon opposed the abolition of the death penalty for stealing sheep and horses. In 1861, however, in spite of the efforts of the Judges, capital punishment was reduced to the present count of four offences.
I have quoted these remarks rather at length to your Lordships because although, as I said, I would yield to none in my admiration of the judges in their administration of the law, yet when it comes to making the law there seems to be a strange lack of understanding of human nature amongst them. This is curious and has puzzled me. I can offer only two possible solutions why men of such great knowledge and wisdom in these cases should be so terribly prejudiced. I think one reason may be that a Judge has continuously presented to him the worst aspects of human nature. He has terrible crimes expounded before him all the time. I wonder whether, in the course of years, dealing with those crimes, he does not in the end become jaundiced and come to believe that there is no redemption for humanity at all. It would not be surprising if that were his point of view.
My other point is much more difficult. Many of our actions spring not, as we 635 should like to think, from reason, but from emotions, desires and passions which fortunately are usually under control. In a Judge's office, which is a very responsible and a very high office indeed, the greatest moment of power which that office expresses must surely be when a Judge controls the life and death of the man he is judging; when he, by directions to the jury, by his conduct of the trial, by his summing up and finally by his sentencing to death, has a dramatic and terrible power which undoubtedly gives prestige to his office. I am not suggesting for one moment that Judges consciously think of that when they are advising us, but I am wondering whether unconsciously they are not influenced by this, and feel that their office must keep this ultimate sanction of deciding life and death. It is the only way I can explain why the Judges have always been against any mitigation of most savage laws. When they are so wise otherwise it is puzzling that in this they have always been so wrong. Laws have always finally been brought in to abolish the death penalty, but the dire consequences which have always been prophesied by the Judges—such as that if the death penalty were abolished no one's life would be safe, treason would flourish, goods would be seized, and no one's property would be safe in his house—have in no case ever come to pass. Yet we still pay great attention to Her Majesty's Judges whenever they advocate that, whatever happens, we must keep the death penalty.
I should like to finish by quoting an American judge of some years ago who, speaking of judges and their work, said:From any opportunity of observing the influence of punishment upon the classes of men among whom malefactors are most commonly found, the great judges are by their stations and duties placed at a great disadvantage.I wonder whether that is not the answer to this rather puzzling situation. I agree with the noble Viscount who introduced this Bill that we must all think that hanging is a nasty business. It is repugnant to all people. What I should like to urge is that if it is to be retained, the burden of the proof must be on those who support hanging. If they can show that actually the death penalty is the only 636 unique deterrent, that might be convincing; but they cannot. in fact, as has been said again and again to-day, the results of the Royal Commission show that no evidence can be brought to prove that getting rid of the death penalty in any way increases the murder rate or would make any of us less safe in our beds or in the streets every day.
May I quote again the American Judge Wilson, for whom I have a tremendous respect? He said:There are in punishments three qualities which render them fit for the prevention of crime. The first is their moderation, the second is their speediness and the third is their certainty.I am sure that that is the key to the whole question—a sufficient police force and making the murderer realise the certainty of being found and convicted if he has done a murder. That is the real problem in regard to reducing the murder rate. I think it is a question of getting more police, which is most important.
There are one or two other points I should like to mention although I do not want to go into this question of the deterrent. Many speakers have touched on that and, no doubt, many speakers will touch on it again. I should like, however, to draw the attention of your Lordships to the terrible penalty we impose on the prison staff by this public execution—whether it is the governor, the doctor, the chaplain, or the warders, who have to look after this wretched person. We are putting a terrible strain on them. It is, no doubt, one of the factors which makes it difficult to recruit the right type of person as a prison warder.
Next, I should like to agree with the right reverend Prelate that the important thing is to enhance the sanctity of life. If we can build that up, that is our greatest protection and our greatest deterrent. After all, what really makes a murder trial interesting to the public is the fact that a man is fighting for his life; the Press plays it up as much as it can and there is a wave of hysteria. Not only do I feel that that is a very unwholesome emotion but I think also that on some occasions it may be an encouragement to murder. There have been one or two cases where the murderer undoubtedly has seen himself in the limelight and almost a hero. That is possibly one addition to the motives which make for this terrible crime.
637 The greatest possible deterrent is the tabu of public opinion. That is what we have to aim at. May I give your Lordships two examples? When I was in America at the time of the depression, when in Chicago people were robbing and shooting and there was a wave of gangsterism, the one thing that was never touched—I used to go along the streets and see this—was the money of the newspaper sellers. They would put a cap down while they were away at lunch and people would throw in silver half dollars and cents, and this little pile of money was never taken. It always surprised me and I was told that it was an unwritten law that this money should never be touched; and it never was. Another example I can give is that there was no cheating at cards in the last century among certain classes of people. No-one did so because public opinion was against it. I believe that that is what we have to aim at: we have to aim at building up public opinion even more strongly against murder. I do not want this to be the last civilised country in the world to introduce this enlightened measure. Therefore, I support this Bill.
§ 6.38 p.m.
§ LORD MILNER OF LEEDS
My Lords, I have one qualification for speaking in this debate that is possessed by only one other Member of either House; that is that I was a member of the Select Committee which sat in 1929 and 1930 to consider this matter. The other member was a noble Lord who, I think, is not now in the House. I was elected to Parliament in 1929 and was almost immediately appointed on the Select Committee. I had no preconceived notions of any kind. I was a lawyer, I had had some small criminal practice though never, I think, a murder case. I had a perfectly open mind on the question of the abolition of capital punishment.
We sat for some weeks. We heard evidence from this country, from many other countries and from every authority we could think of and, without question, that evidence convinced me, as it convinced the majority of that Committee, that the time had come to abolish capital punishment. It is true that it was a majority recommendation, though that fact had really nothing to do with the merits of the case. There was a difficulty which did not affect the merits but which re 638 sulted in a majority verdict. The consequence was that the Government of that time did not carry the recommendation of the Committee into effect. From that day, I took a much greater interest in the subject than I had previously taken.
My constituency in Leeds, the greater portion of which was inhabited by splendidly honest, worthwhile and responsible people, had a spot in it which was the resort and residence of rogues and vagabonds of every kind. I do not think I need describe it, because it has been described by the late Archbishop of Canterbury, Cosmo Gordon Lang, whose words have appeared in a biography of him. If your Lordships will forgive me I will quote just a few lines from it—perhaps I ought to say that Leeds was his first curacy. He said:I never saw anything worse, or indeed as bad, in East London. A few of my folk were decent artisans and small shopkeepers, more were casual labourers, most were denizens, of common lodging-houses or single rooms let out for the night. I don't think I exaggerate when I say that my first flock contained 2,000 beings whose homes were either rooms let at 6d. a night or a corner in a lodging-house kitchen. I wonder where they till went when these squalid hovels were at last swept away.They were, in fact, swept away some twenty years ago and a magnificent block of fiats, the finest in Europe, now stands on the spot. The Archbishop went on:Some of them, especially the women in the Marsh Lane courts, were worse than beasts, for beasts are not degraded. I seem to see now their unkempt hair, their tattered clothes, their bleared eyes looking out at me with sullen suspicion. Many of them were the lowest class of prostitutes, but indeed, to put it bluntly, the unashamed promiscuousness of living made even the ordinary brothel respectable in comparison.… I often had to interfere … with fierce fights. I found that it was generally possible to separate men, but never women, if they had once had their hands in each other's hair!And so he goes on.
My Lords, that was a terrible portion of my then constituency in Leeds, and after sitting on the Select Committee, I took it upon myself to visit many of those places and to make the acquaintance of many people who lived in them. I had previously represented that part of Leeds on the Leeds City Council, so many of them knew me well, and I discussed with them on many occasions the view of the Select Committee. I ought perhaps to say that their reading consisted almost entirely of the News of the World, and, as my noble friend said, they seemed to 639 glory in the pictures and the descriptions of murders and executions, and so on and so forth. I never heard one of them express a fear of hanging. All they seemed to worry about was whether or not they would be likely to be sent to another dose of "jug." To them, imprisonment seemed to be a much nearer thing, and a much more serious possibility, than hanging. Nor, incidentally, either in that part of my constituency or in the other and much more respectable part, did I ever have a criticism, or indeed a question, on the vote which I gave on the Select Committee for the abolition of hanging—and I fought no less than five general Elections there. Of course, what I have said is not conclusive, but it does instance something of one's experience of what were largely members of the criminal class, and it confirmed me in the conclusion at which I had arrived, after hearing the evidence before the Royal Commission.
It is impossible in a short speech to deal with a hundredth part of the points that have been raised, but I hope that some of your Lordships will feel, with me, that the noble and learned Viscount on the Woolsack really did "protest too much." He made one statement which I think requires some explanation. He said that there was no country where there was abolition where the police are not armed. That is not the question. The question is whether that arming followed the abolition of capital punishment or whether it was the normal custom of the country. Your Lordships may know that in many Continental countries it has always been the custom for the police to carry arms. I do not know whether the noble and learned Viscount can give us any proof that the carrying of arms followed or was consequent upon the abolition of capital punishment in those countries. Certainly I know of no evidence to that effect. If that be so, we can discount that argument.
My Lords, the facts have been set out sufficiently clearly, and I hope that the great majority of your Lordships are satisfied that nowhere in the world has there been an increase in crimes of murder resulting from the abolition of capital punishment. No evidence was given before either the Select Committee or the Royal Commission that imprisonment is not at least as great a deterrent 640 as capital punishment. In the last twenty-five years more than 200 reprieved murderers have lived amongst us, and in our country no reprieved murderer has ever committed a second murder. I agree there was one case, the case of Rowland, mentioned by my noble friend Lord Pethick-Lawrence, but as to that case there is doubt. Certainly no reprieved murderer in our country has ever killed a prison officer, and no country which has abolished capital punishment has found that it has led to an increase in the carrying of firearms by professional criminals, or, indeed, as I have stated, has found it necessary to arm the police as a result of abolition.
I submit to your Lordships, without going into details, that the evidence before the Select Committee and the Royal Commission must be accepted as conclusive. Those statistics, assembled from every quarter of the world, are surely convincing. They show that, regardless of climate, race, nationality, or any other of those considerations, abolition has not led to the consequences imagined, for example, by the noble and learned Viscount on the Woolsack—they simply have not happened. Surely, my Lords, we are therefore entitled to deduce from that fact that they are not likely to happen here. Furthermore, do we need to retain capital punishment as the only deterrent powerful enough to save us from being murdered in larger numbers than is the case at present? I do not believe it. What is the special virtue in hanging which is not equally virtuous—if it be a virtue at all—in imprisonment? In the course of my war experiences I spent a good many months as a prisoner of war, and imprisonment is a powerful punishment. If it be, as is said by the noble and learned Lord, Lord Oaksey, a more cruel punishment possibly than death on the scaffold, then surely that is the punishment which ought to be given for the most serious crime of all, that of murder.
In my submission, the case is proved. Your Lordships must know that for 200 years penalties have been reduced, usually in the face of opposition from official quarters, and in particular from a majority of the judges. Surely the time has now come when this present blot on our so-called civilisation should be removed. I hope that your Lordships' vote to-morrow will help towards that end.
§ 6.50 p.m.
§ LORD KEITH OF AVONHOLM
My Lords, in addressing this House in its legislative capacity for the first time, may I be allowed to intrude into the debate certain aspects of the matter in Scotland? I do not suggest for one moment that the same principles must not be applied in Scotland as in England—it would be wrong if a different principle were applied, and so far as I am aware I do not think that anybody would suggest that hanging should be continued in England, with abolition in Scotland, or vice versa. However, there are two factors, at any rate in Scotland, which go very much to alleviate the number of convictions for murder. These are no doubt known to many of your Lordships. There is, first of all, the doctrine of diminished responsibility. The doctrine of diminished responsibility has this result: that if a jury finds that a man or a woman accused of murder is of sufficient diminished responsibility to reduce that crime, the verdict that they are entitled to return is one of culpable homicide; in other words, in England one of manslaughter. Diminished responsibility is something less than insanity. At the same time, it is something which involves some degree of mental disease or instability, and if the jury finds that that is the condition of the prisoner at the bar, they are entitled to return a verdict of culpable homicide and not one of murder.
The other qualification that applies in Scotland is this. The Macnaghten Rules are not applied in Scotland: at least, they are not applied with anything like the rigour with which they are applied in England. They are not sacrosanct in any way. If the question of insanity comes up, it is determined upon evidence, upon the evidence generally of medical witnesses and psychiatrists, and on that evidence the jury is entitled to bring in a verdict of insanity. These features are not unimportant in this debate. One of the results, of course, is that many fewer people are hanged in Scotland than would be hanged for the same offences in England.
It is, I think, a matter of comment that the fact that there is a greater liability to be hanged in England does not seem to reduce the number of murders when compared with the figures in Scotland. 642 It is a very remarkable thing that in Scotland there were many years when nobody was convicted of murder at all. From 1929 to 1945 there were no executions at all for murder. There were one or two convictions for murder which were reprieved, but there were no executions. From 1936 to 1943—that is, within the period to which I first referred—there were no convictions for murder at all. It is true that three did do the act which might have been murder in a sane person, but they were found insane, and twenty-seven were found unfit to plead on the ground of insanity. The fact remains that from 1936 to 1943 there were in Scotland no convictions for murder, and to some extent that would be due to these two features of the doctrine of diminished responsibility and the fact that insanity was dealt with as a matter of evidence and not upon an application of the Macnaghten Rules.
As I see the question, it is this. Is hanging to be retained for all murders? When I say, "Is hanging to be retained for all murders?", I do not, of course, ignore the fact that there may be reprieves. But, in theory, everybody may be hanged for murder, and is that to be retained as part of the law of this country? The other alternative is: Is hanging to be abolished, with certain possible exceptions? At the moment I say nothing whatever about the exceptions. I am expressing no views upon what exceptions there may be or should be. That is the alternative view: Is hanging to be abolished, with possible exceptions grafted on to the general rule that there should be no hanging for murder?
On the best consideration that I have been able to give to the matter, I am prepared to support the Bill. Might I add that I do not regard this as a legal issue at all? It is a question of penal reform. I do not think the question of whether a man is to be hanged or is not to be hanged is really a legal question at all. It is not a matter for the administration of the law. It may be regarded as a matter of the administration of justice, but it is not a question of the administration of the law. If I may express an opinion upon a matter which has been canvassed to a considerable extent in the debate in this House, I may say that I am not entirely satisfied in my own mind that judges have any better reason, or are more qualified, to decide 643 upon this question than any Member of your Lordships' House. The question is primarily a social question. I have had quite an amount of experience in the trying of murder cases. I have tried some terrible murders, and one cannot avoid the feeling in these cases that hanging is a justifiable penalty. None the less, I think that, as a matter of principle, the question of abolishing hanging is one which must be seriously considered; and, on the best consideration that I can give to the matter, I am prepared to vote for this Bill.
§ 6.57 p.m.
§ LORD MILVERTON
My Lords, as the first speaker after the noble Lord who has just made his maiden speech in this House, it is my pleasant privilege to convey to him the congratulations which I am sure that we should all wish to convey for a speech whose quality was remarkable, even on an afternoon such as this, when so many speeches of high quality have been made. I am sure that we all wish that he will come here frequently, and that we shall have the privilege of listening to him again.
My intervention in this debate will be brief and, I hope, to the point. After listening to, if I may say so with the greatest respect, the magnificent speech of the noble and learned Viscount the Lord Chancellor, and the brilliant intervention of Lord Hailsham, it would seem that there is little else for the ordinary person to say. However, in spite of certain reflections upon the value of public opinion if it does not agree with the person who happens to be speaking —reflections which have been made this afternoon from a very unexpected quarter of the House—I should like to suggest that this is precisely an occasion when the ordinary citizen ought to be heard, and I wish to speak in that capacity now.
The ordinary citizen is deeply interested and concerned in this question and is somewhat 'bewildered because his support has been confidently claimed by both sides. He sees also both sides accusing the other side of being prompted in their views on this subject by purely emotional, or by largely emotional, considerations. I have read with the greatest care the mass of literature with which the supporters of this Bill have loaded 644 the daily post—I do not mean supporters in this House, of course, but those outside who support the principle of this Bill. And I am now speaking, I hope, as one of the units of public opinion, which must, after all, be of major importance in this matter—that is, in relation to my knowledge of the operation of such things in this country.
If the House will pardon a personal reference, may I emphasise that I do not speak with any academic or sentimental irresponsibility this afternoon, since I have, many years ago in my official capacity, been a witness of hangings. Also, for a period of eighteen years, it fell to my official lot to decide whether or not the Prerogative of mercy should be exercised in particular cases which came up. I have signed more death warrants than I care to remember. So I ask your Lordships to take it as a serious expression of opinion, based, as the noble Lord, Lord Pethick-L'awrence, said he would like to have any opinion worth having based, upon the facts of personal experience.
It is my experience throughout the world in the outer territories for which we are responsible that the death penalty emphatically is a great deterrent. I have, of course, been associated with the Administration, which is deeply concerned in the maintenance of law and order and respect for law. I can only say that, as the result of all my experience. I have not the slightest doubt about the value of the death penalty as a deterrent in those territories; nor, since my return to this country, have I seen any particular reason to believe that human nature here is so utterly different—so very much more enlightened it may be—as to make that principle inapplicable here. I am a convinced and sincere opponent of this Bill. I ask your Lordships to reject it on Second Reading and not be misled into giving it a Second Reading on the plea that it could be amended in Committee. I think enough has been said this afternoon to make it clear that it is a simple principle upon which we are voting, and for those who think as I do there can be only one decision, which is to vote against the Second Reading.
In dealing with murder, surely one must aim at satisfying justice as well as exercising mercy. It is, after all, the most heinous crime of all, and as such it surely 645 demands special punishment laid down in the law. I am not in the least impressed by references to days of long ago when capital punishment was a possible penalty for what we regard as minor crimes today. It seems to me quite irrelevant to this debate. We are now discussing the point that murder is regarded in any civilised community as the most: heinous crime of all. Therefore, it needs a special punishment to he prescribed by the law. The death penalty is a terrible and fearful thing; but it is meant to be, because the social conscience of the community rightly regards murder with such special horror. Inevitably, one cannot estimate the success of the existence of the penalty as a deterrent; we can only number its failure by the murders that take place. But when we have deducted from these failures the cases of insanity or overwhelming provocation, it seems to me that the smallness of the number left strengthens the view that the prescription of the death penalty in the law is an effective deterrent.
I have not personally come across that public unease which was described to us a short time ago by the right reverend Prelate, the Lord Bishop of Exeter. I would have said that there is a great deal of public unease about the prevalence of murder, and that a great deal of public unease has been caused by the discussions on this question and by the very emotional approach which so often has been made in the public Press. But the right reverend Prelate, if he will forgive my saying so, left me in complete confusion of mind as to what it was he wanted. If he did not want to extend the penalty for murder and certain other crimes, which he very rightly condemned, it seems to me rather illogical to suggest that because there are some other things which he and the public conscience, perhaps, condemn as the meanest of crimes, we should therefore abolish the death penalty for murder, which the right reverend Prelate apparently regarded in many cases as a relatively unimportant crime. It does not seem to me that the sequence of thought there is a very convincing one.
The good of society, the good of the State, demands exceptional treatment for the wanton taking of human life, and any weakening of this attitude cannot, I submit, safely take place in advance of public opinion. In so far as there is any reliable evidence at all about public 646 opinion, various Gallup Polls and so forth taken a few years ago indicate that the balance is heavily against the abolition of the death penalty; and this House surely cannot be charged at any time in this matter with flouting the will of the country when such will has never been ascertained. Indeed, as has been mentioned, the Bill was passed in another place by a majority which represented rather more than a quarter of the elected representatives of the people, which, in itself, surely shows that in that House it was regarded as a matter of personal conscience. The free vote was given, presumably, on that understanding. Therefore, a rejection of the Bill by this House has nothing whatever to do with flouting the will of the people.
With respect, it seems to me unreasonable, as well as unhealthy, to exalt a pity for the offender over sympathy for the victim. The State insists that positive action in cases of this kind must be taken by the law and not by the individual. The sanctity of human life surely cannot be invoked to protect those who have just violated it. Both in war and in peace, the State must sanction the taking of human life to preserve the structure of its own society from destruction. Even if this Bill were passed, the unsavoury Press publicity over murders would surely still continue and probably would high-light the total inadequacy of a sentence of imprisonment in dealing with such crimes. I feel sceptical, too, from my experience, about the remedial influence of long terms of imprisonment.
In conclusion, and as a corollary to what I have just said, may I add that, however negligible may be the harm anticipated by abolishing the death penalty in this enlightened community, and however little it may be expected to bring the law into disrepute and to increase the danger to the public and to its servants, the police and the prison staffs, I do not think that the result in less highly developed countries would be at all happy. Inevitably the example of this country will carry the greatest influence throughout the colonial territories. They have been apt, very naturally, to follow our example in legislation of this major kind. An application of the principle of this Bill in many such countries might well lead at the least to a recrudescence of personal and family vendettas and 647 would certainly tempt the outraged individual or the outraged family to supply the punishment which the law denied. My Lords, I oppose this Bill.
§ 7.11 p.m.
§ LORD SHERWOOD
My Lords, I have one or two points to put to your Lordships. They are divided into two parts. I cannot imagine politically why we have this Bill before us now; why it is not a Government Bill; why it has been put up by a Private Member and why we have to vote for a Private Member's Bill to go through with a pistol at our heads. We have heard arguments for and against hanging, but the political side has not been clearly put. No doubt Mr. Silverman and the noble Marquess who leads the House have been in close collusion to see how they can get the Bill through, because I cannot discover, from all the debates in another place, how the Bill ever got here.
The Parliament Act was passed because it was thought that a Party such as ours, or the Party of noble Lords who sit on the Benches on our left, might pass a Bill which, because there is in this House a Conservative majority of something like 500, might be thrown out without a word, although it had been passed by another place. But suddenly we find the Bill passed, with a Tory Party Administration under a great Prime Minister, and with a seventy majority in power. They can do anything they like, bring any Bill they like to this House. Why, therefore, does it have to "slink in" in this back door way? Is it that the Government have no courage? Is it that they are not united? Certainly it is not one of the matters for which the Parliament Act was forced through, in face of great difficulty.
I agree that it is quite easy for the House of Cecil to use almost any measures to get what it wants, and it may be the reform of the House of Lords. Let us be careful of that. When I listened to the noble and learned Viscount the Lord Chancellor he was almost convinced in every word he said. And if his views had been put in the Cabinet and the Government, to which he belongs, they obviously broke with him because they could not put it forward. He now brings the Bill forward and puts his case—and I say it fairly to him—with even more strength than I think he put it in the Cabinet. He was very bold; he did not 648 pull" his view, that we should vote against this Bill. He did not agree this was a Bill which should have been put before the House, and he said so with all the immense authority that comes from the Woolsack and from the Benches of the Law Lords, and from all the people who are supposed to advise on changes in the law and in the Royal Prerogative.
All that is set aside, and now we have a small Private Member's Bill, passed, I presume—it must have been—by a majority of Labour Members. But I notice that they did put it to a free vote. When I was a Member of another place I used to see another Member there, now with us as Viscount Margesson, wrestling with the conscience of Tory Members of Parliament—and he wrestled well: he nearly got us into war. The statement that they voted on their conscience on this matter is really one of the most absurd things that has ever been "put across." The Government, with a majority like they have, on a matter on which the Lord Chancellor has put his case, on which Lord Oaksey has put his case and Lord Keith of Avonholm has put his, have still not put their case. Why is that? Have they not the courage to do it? Here we need an answer from the Leader of the House. The case for this Bill is, to my mind, a strong case. I myself, and I say it clearly, am going to vote for the Bill, because it has come to us from the other place and I presume that it is a Bill to which we must give a Second Reading.
I also, my Lords, have taken a little trouble in asking other people what their views are. There is a certain amount—as was brilliantly put by the right reverend Prelate the Lord Bishop of Exeter—of disquiet in the country about what is the major crime to-day. There is this enormous penalty for a crime which, in many cases, is not so great, while other crimes that are very, very serious do not carry this immense penalty. When one asks about the problem, even if one gets a direct answer—which is not often: and I admit that some are for and some are against—there is a feeling that other things are bigger than this. And I do not feel that, because twelve or fifteen people are strangled in the prisons of this country to-day, any one of your Lordships rests safer in his bed. Since the death penalty has not been carried 649 out, I believe that something like twenty or thirty people have been reprieved. Yet the number of murders has not gone up. We are in no more danger.
I am not certain on this question of the deterrent. No one can be certain what constitutes a deterrent, I admit. But certainly the death penalty has not worked as a deterrent in the murders that have occurred. There it is. Everybody knows that if he commits a murder he may be hanged for it. Yet murders continue, and always in the same class as they were—of a rather sordid type where deterrents probably could not work. I thought that the noble and learned Lord, Lord Keith of Avonholm, in his maiden speech, made a strong point in saying that this was not a question of law but a question of social justice. The law decides whether a man has committed the crime of murder, but we, not the judges, decide what the punishment should be. We are the people to decide whether hanging is or is not a deterrent. Therefore I say: do not lend your ear too much to the judges who say, with all their great knowledge, that if you take away this deterrent, we shall have murder rampant. I do not believe it, any more than we do under the law as it is to-day, under which we find 50 per cent. of murderers being reprieved.
I am not going into the "sob-stuff" of the matter, but I should like to say a word about the evil effects of the newspapers, especially the Sunday newspapers, which the right reverend Prelate the Lord Bishop of Exeter mentioned. We all know that the newspaper Lords do not publish anything unless it is what the public wants; unless it sells their papers and brings in advertisements. They are publishing these stories because the public want stories of murder. They want to know about the last days of a murderess or a murderer. That is all the Press does; it is not a wicked Press at all. Although I am a Liberal and believe in moderacy in every way, I think that certain things which the public want they must not have. They are like little children. It should be forbidden, like going to Tyburn, which at one time had a greater audience than even Wimbledon to-day. Here is a chance for us to do something. I do not believe that the public Press would publish all these details, if it were not because of the 650 terrifying effect. I shall certainly vote for the Second Reading of this Bill in the hope that it will be carried into effect.
§ 7.24 p.m.
My Lords, I do not propose to follow the noble Lord, Lord Sherwood, in the path into which he has so charmingly led me. I think that I have heard every speech in support of the Bill, and one thing common to most of them, and accepted by all its supporters, if I may judge from the applause with which the sentiments were welcomed, is the statement that if this Bill goes through, the state of our prisons and the nature of our penal code will need a radical overhaul. The fate of this Second Reading has to he decided tomorrow, and so far as I know there are no propositions put forward from any quarter which will lead to a rapid improvement in our prisons or an alteration in our penal law —and there are certainly no propositions that are widely agreed. Therefore it seems to me to be rather rash, and certainly to be putting the cart before the hourse, to say that we should pass this Bill now and then we must have wide reforms, unspecified and certainly unagreed. If this Bill, or something like it, is to go through, these things should have been done first.
I enjoyed very much the debate between the noble and learned Viscount on the Woolsack and the noble Lord, Lord Pethick-Lawrence, on this question of statistics. I am sorry that the noble Lord is not in his place, because he is a great mathematician, and I was hoping for some assent from him to what I am going to say on this matter. It has always seemed to me that numbers of murders in any civilised country—I almost added, semi-civilised country—are far too small in proportion to the population to be proper subjects for statistical analysis, and if investigations were to be continued over a period sufficient to give reliable data, the whole effect would be masked by the social trends that must take place during that period. For that reason, this argument from statistics leaves me quite cold.
Your Lordships will remember that the noble Lord finished by saying that "facts" were what we wanted on this matter. I am only a Back Bencher and I cannot be expected, like one who has been a Minister, to call out volumes of 651 figures and facts. But I can give one fact. My noble friends Lord Greenhill and Lord Mathers may remember a burglary and murder which occurred in Glasgow, I think, about four years ago. Three young men were engaged in it, and before they started out one of the three asked the others to wait because he wished to go back for his pistol. They tried to persuade him not to go back, because, they said, if he used it, it would be murder. But the young man said, "Not a bit of it; they will never hang me." He was only nineteen years old. He took the pistol with him and, in the event, murdered the householder. It is difficult to find evidence of a negative, but that case provides evidence that the death penalty is likely to prevent murder. It was brought out in court that if that young man had been sure that he would have been hanged, he would not have taken the pistol and the murder would not have been committed.
When I came into the House to-day, I was prepared to ask your Lordships to vote for the Second Reading of this Bill, upon grounds very similar to those put forward by the noble Lord, Lord Rea. It seemed to me that when we have a Bill coming to us from another place, especially one that has not been amended during the whole of its passage, it is certainly a courtesy and probably a very proper thing to be willing to give it a Second Reading. I am the more reinforced in my opinion because I saw in The Times to-day, and it was also implicit in the Starred Question of the noble Viscount. Lord Alexander of Hillsborough, at the commencement of this debate, that to give a Bill a Second Reading in your Lordships' House is tantamount to accepting the principle of the Bill. I do not think that that proposition can be held to-day at all. That was perfectly true in 1900, but the passage of the first Parliament Act has entirely altered that situation. As your Lordships know, an overwhelming majority of your Lordships disagreed with the Town and Country Planning Bill and the Steel Bill which were introduced by the Socialist Government into your Lordships' House; but none the less we gave the Bills a Second Reading. I do not think it makes any difference that this is a Private Member's Bill coming from the other place; I do not think we are 652 committed in any way, even should we decide to give this Bill a Second Reading. At the same time, I am waiting—at present, my mind is in a state of doubt about this—until I hear what the noble Marquess the Leader of the House has to say to-morrow.
It is Her Majesty's Government who have put us into this position—and I am not going to repeat what the noble Lord, Lord Sherwood, said because it is quite true. The Government undertook, with the mandate of the people, to decide all major questions facing them; and if there is any force in what the noble and learned Viscount on the Woolsack said this afternoon, surely this is one such question. There is one point that I should like to emphasise: that the noble Marquess not only is the Leader of the Government in this House but is also, as Leader of the House, peculiarly charged with everything that concerns it. I quite see that if we do not accord a Second Reading to this Bill, this battle may be fought out on another ground elsewhere. Therefore, the noble Marquess will perhaps forgive me if I remind him of the duty that was laid upon the Leader of another House of Lords many hundreds of years ago, that it is his duty to visere ne respublica damnum capiat.
§ 7.32 p.m.
§ LORD CHATFIELD
My Lords, it is my great disadvantage that I was unable to be present earlier this afternoon to hear the opening speeches in the debate by the noble Viscount. Lord Templewood, and the noble and learned Viscount the Lord Chancellor. I particularly regret that I did not hear my old friend Lord Temple-wood, because since he and I worked together some years ago I have always respected his lofty views on human nature. I really have no justification for speaking at all: I am one of the most aged men in your Lordships' House, and only a sailor. But as I have decided that I must vote against this Bill, I think it right that land I think those like me who have no great quality of decision on such a matter as this—should endeavour to justify my doing so.
I not only have a great respect for the Mover of the Second Reading, but I also have respect for those who support him. As has been said more than once to-day, this is a question on which each individual must make up his own mind; and 653 if we make up our minds for or against this Bill, according to our lights, then surely we can respect each other's views. One of the unfortunate things about this matter has been the tremendous amount of propaganda that I—and I daresay most of your Lordships—have received in favour of this Bill, which has exploited, to the utmost extent, all the pros of the Bill but has largely ignored the cons. I do not think that such propaganda is a good example of what should be done on an occasion such as this, when Parliament is investigating a difficult problem. If feel that this drastic Bill to abolish capital punishment does not clearly commend itself to public opinion, as has been so clearly stated.
Public opinion is supposed to be represented in another place, but I feel that insufficient conviction has come to us behind this Bill from the other Chamber for such a drastic step to be taken. The lack of large majorities and the abstentions have already been referred to. I feel that the child—as Punch would call it—lying on the table is only a delicate infant; and somehow or other I do not think there is any clear national will behind this proposed alteration of the law.
That does not mean, however, that there are not many people who disapprove of the present methods of carrying out the law. If the murderer is to be killed, then surely one of the benefits of civilisation, as it is called to-day, is that he can be killed silently and painlessly. I feel that that is one of the weaknesses in the law as it stands at present: that the method of killing the murderer is much worse than it need be. It is not so had as cutting off his head, as was done in the time of Henry VIII, or of torturing him to death. But why need he be hanged? That seems to me a weak point, and I think there are many people in this country who will not support this Bill to abolish hanging entirely but who feel some doubt about the way the murderer is dealt with when it has been decided to kill him. Then, on the question of degrees of murder, I should hope that one day a modified Bill may be brought in which will make things as we should all like to have them. But that is not the issue to-day. We have to consider this Private Member's Bill. Whether we think the Bill would be good or disastrous is a matter of individual 654 opinion and experience; we each have to make up our own minds. It is no good looking to other nations to guide us. The British people have never done that. We have our own peculiar way of solving our own problems, and I do not like the argument that other countries have proved that the abolition of capital punishment has made no difference. That is not the way to look at the problem. We must solve our own problems in our own way.
The right reverend Prelate the Lord Bishop of Exeter referred to the spiritual side of this question; and he talked very eloquently on the sanctity of human life. We must not forget that the teaching about the sanctity of human life comes from the Bible—in fact he said it did. But the teaching of the sanctity of human life was to prevent murder, and not to give sanctity of life to the person who committed murder. There is nothing in the Bible which says that. I was brought up in a religious home, and I learned a lot about the Bible. I even got a prize for religious knowledge in the "Britannia," which was generally supposed to be a sign of bad character— the son of a parson or something like that. But you have only to refer to the book of Genesis where you will see that God said to Noah:Whoso sheddeth man's blood, by man shall his blood be shed.And our Lord, just before His Crucifixion, said to St. Peter:Put up your sword, for all those who take the sword shall perish by the sword.That is the biblical teaching as I know it (I am sorry that we have not one of the ecclesiastics here), and that thought has always influenced me.
Now if it is right that, as the Bill expresses an opinion, we should alter the law because it no longer accords with the needs or the true interests of a civilised society, then we must alter a great deal more than the rules about murder. Is it proposed that the Ten Commandments which are set out in the early part of the Old Testament should also be ignored as God's instruction about not killing, and about punishing men for killing in the same way that they treated their victim? Are we to say that those Ten Commandments can also be ignored and altered in the same way by an Act of Parliament? Are we to say that the 655 Mosaic Law of: "Thou shalt do no murder; thou shalt not steal; thou shalt net commit adultery or swear falsely against your neighbour, or covet your neighbour's house, wife or money," should be done away with as obsolete and not in accordance with modern civilisation, whatever that may be, when we drop bombs and kill thousands of people without the slightest hesitation?
I feel that it is not right to look at the sanctity of human life from any other point than both that of the murderer and his victim. I cannot convince myself that we are right to support this Bill for that reason, good as its intentions are. But on this House has been thrust a responsibility for which we did not ask, and which, with our wisdom and expert knowledge, we can solve. I have no doubt that we shall stand up without any hesitation for what we think, and shall tell the country that we cannot support this Bill.
§ 7.45 p.m.
§ LORD AILWYN
My Lords, I am sure my noble and gallant friend Lord Chatfield will forgive me if I do not follow him in his extremely interesting and feeling speech. Having given this matter all the thought of which I am capable, and having browsed over the various Reports of all the debates, the Royal Commissions, and so on, and having listened to most of the speeches in your Lordships' House to-day, I am quite clear where I stand in this matter, and it can be stated in a few words. Perhaps I should say that one feels a certain diffidence in entering into a debate of this sort as an undistinguished Back Bencher, without any of the experience possessed by so many of your Lordships who have spoken to-day—Bishops, Judges and so on.
I should like to see, not the abolition of capital punishment, and not merely its retention, but the Prerogative for mercy, used sparingly. I believe, rightly or wrongly, that there have been too many reprieves just lately. One execution for every twelve convictions by a jury are remarkable figures. Furthermore, I should like to see the Common Law of England altered in order to make such iniquities as rape, criminal assault, revolting cruelty to children, brutal and savage attacks on the aged and defenceless, punishable by death. I feel strongly 656 that perpetrators of such horrors, if convicted, should have no further place in this world, and, if sane, they should be hanged.
As regards the actual method of carrying out the death penalty, I rather agree with my noble friend that hanging may not be the best and cleanest way of doing it. I would not know that, for I have never had to witness a hanging, but I am quite sure in my own mind that these people should be done away with. The safety and well-being of the community is infinitely more important than the life of an individual who has been proved guilty of such crimes. That is my view. No doubt I shall be called reactionary, and told that I am out of touch with the present trend of public opinion and with the general climate of public sentiment. What is this sentiment? Is it perhaps largely sentimentality about the legal taking of a man's life? Are we not in need—perhaps in rather sore need—of a little more realism, and possibly a little less hysteria in this world in which we are living to-day? There is no cruelty or brutality or savagery in the act of death as meted out by the law. I saw it described the other day as a barbaric and degrading form of punishment. I beg leave to say that it is nothing of the sort. Nor is it an act of vengeance. It is, surely, a solemn act of justice and retribution.
Nor have I any reason to suppose that the measure before the House commands the support of the majority of the people of this country. Rather does it appear—though it is extremely difficult for a private individual to assess a matter like this —that in fact the reverse is the case. I believe the proposal to be fundamentally unwise, and that it would play into the hands of those elements determined to undermine the forces of law and order. It is urged by some of those who support abolition that the chief deterrent for the potential murderer is not severity of punishment, but the certainty of detection and subsequent conviction. It may be so; but detection has to be effected by the police, and to-day, as we know, the police force is something like 10,000 under strength. Do the supporters of this Bill contend that the making good of that shortage is likely to be facilitated by the removal of one outstanding safeguard from the police point of view? The question has only to 657 be posed to receive an immediate negative answer.
Another contention of the supporters of abolition of capital punishment is that murder is frequently—in fact, generally—unpremeditated, and as such the murderer should not receive the death sentence. Suppose that while I am on my feet my noble friend the Chief Whip—he does not seem to be here at the moment —or my noble friend the Deputy Chief Whip turns round and gives me a bleak look, and I pay no attention but continue to address your Lordships. Then my noble friend turns round again and gives me an ugly, nasty look—and I still refuse to be intimidated. Then he turns round a third time and mutters in a loud stage whisper, "Sit down". I, finally, exasperated and furious, lose my temper, seize my amplifier and from my position of advantage hat him on the head with such force and precision that I kill him stone dead. Unpremeditated, my Lords—completely unpremeditated. What would your Lordships do about it? Would you say, "Treat him kindly. He did not mean it. Do not hang him"? Of course you would say nothing of the sort. Except for sorrow and remorse at having killed a very good friend of mine, I should walk to the scaffold, somewhat reluctantly no doubt, but knowing that I had richly deserved what was coming to me.
I have the greatest possible respect for, and sympathy with, those who genuinely and sincerely support this measure. I nevertheless believe that they have got their values wrong and that their perspective is out of adjustment. It is more important, in my view, to protect the old and feeble, the young and defenceless, than to keep murderers and men of such calibre alive. It is of paramount importance to sustain the police in their terribly difficult, arduous and frequently dangerous work. I am unalterably opposed to the abolition of the death penalty and, for the reasons I have given, whatever may be the plea of political expediency, I could in no circumstance give my vote for the Second Reading of the Bill.
§ 7.52 p.m.
My Lords, it is with a certain degree of reticence that I rise to address your Lordships this evening after having heard from many eminent Members of your Lordships' House, but I do so because I have very strong feelings on 658 this subject. I regret that I can offer no legal qualifications, nor indeed any real qualifications at all, for speaking on this topic. My only qualification, rather obscure, is that of having a forbear whose life was terminated by the methods which your Lordships are now discussing. He had the peculiar distinction of being tried in front of your Lordships' predecessors, and I believe that he conducted his own case with such ability that he defeated his own plea. He was trying to plead insanity and he said, "My Lords, I am insane". My Lords, am quite sure that after you have heard what I have to say, you will agree that I reflect that particular facet of his character most admirably; but I trust that that will be the only idiosyncrasy of my forbear which I shall portray.
One of the most important questions in this discussion is one which has been mentioned on many occasions to-day: is hanging a deterrent to murder or is it not? The noble Lord, Lord Pethick-Lawrence, has said that unless we can prove that hanging is a deterrent to murder, we should not have it. I disagree entirely and utterly with that argument. I would put it the reverse way round. Unless we can prove that hanging is no deterrent whatever, we should not do away with it—and by "prove" I mean prove beyond any doubt. Those whose tendencies lean towards the abolition of capital punishment will produce, as they have produced this evening, facts and figures of other countries. They will say, "In such-and-such a country, where hanging has been abolished, the murder rate has not risen; therefore hanging is no deterrent." That is no proof; that is purely surmise. How do they know that if hanging had been retained the murder rate would not have gone down? How can they compare two countries whose whole social outlook, whose inherent mentality and whose standard of upbringing and standard of livelihood are completely different? They cannot compare them.
There is a great conflict of opinion over whether or not hanging is a deterrent to murder. Without doubt, the general consensus of opinion in this country is that hanging is the greatest deterrent to murder that we have, and that is supported by the old criminals themselves, who say that they would not carry a weapon because they might be found in a situation in which they might accidentally 659 use it, kill someone, and then hang for murder. That is an indisputable fact which they themselves openly and frankly admit—and that must surely mean that to some extent and in some degree hanging is a deterrent. Even those who insist that hanging is no deterrent whatever are unable to prove it. If they cannot prove that hanging is no deterrent, then surely they must admit that it may be a deterrent; and if hanging is a deterrent, it means that if we abolish it, more people will be murdered than if we keep it. That means that if hanging is a deterrent, there are people walking around to-day the continuation of whose lives depends solely, utterly and entirely on the retention of the death penalty. I humbly suggest that should one person more be murdered were hanging abolished than would be murdered were hanging retained, your Lordships should not consider this Bill, for it will become nothing other than the legal death warrant of innocent people; and if your Lordships pass it, you will be the signatories—your Lordships, both Temporal and Spiritual.
I believe that every noble Lord, every honourable Member of another place and every serious-minded person in the country will admit that what may happen to the murder rate if we abolish the death penalty is a matter of speculation. Will it go up, will it go down or will it stay the same? As some people put it, "Let us abolish it and see what happens." But who are we to dice with the lives of innocent people? I humbly suggest that it is surely our duty in this House to legislate for the safety, welfare and happiness of the 53 million people in this island rather than to lavish undue emotion and sentimentality on 150 or so people who each year commit the most heinous, bloody and brutal crimes.
Two of the arguments put forward for the abolition of hanging are that we may hang an innocent man and that there is belief in the sanctity of human life. Human nature being as it is, there is always the possibility that an innocent person may die who ought, in fact, to live. But which is the more likely to occur? Are we more likely to hang an innocent man, a man who has nevertheless been convicted of murder, after having been given the best advocates in the country to prove his innocence and having been judged in front of his own 660 countrymen; and, if found guilty, whose case will come before the Home Secretary with the view to being granted a reprieve? Here let me remind your Lordships that in the last fifty years in England and Wales out of every twelve people who have been sentenced to death, in the end only one has been hanged. Are we more likely to find an unjust death by that method, or are we more likely to find that some innocent person becomes the victim of a foul and filthy murder, possibly preceded by rape or robbery, just because the greatest deterrent to murder is no longer there? I would humbly suggest to your Lordships that there is far greater likelihood of injustice being done without the death penalty than with it.
I should like to give your Lordships a true example. In about 1935 there was a case which came up for judgment before the learned Judge, Sir Cyril Atkinson. The man concerned was a man of great stature. He entered a railway carriage which had no corridor. The carriage had one other occupant, a lady of about thirty. When the train started, this man proceeded to rape the lady; he then robbed her; he then bound and gagged her. At the next station he got out. The lady being bound and gagged was unable to give the alarm. When the train had gone two or three stations further, she loosed her gags and managed to give the alarm. She gave the police a description of the man who had done this and told them at which station he had got out. The station was duly contacted and the staff remembered seeing this man leave the train. He was eventually caught and found to be a criminal with a very bad record. He was brought before Sir Cyril Atkinson and charged with rape and robbery with violence. For that, he got a flogging and ten years' penal servitude.
Suppose that the death penalty had not existed: what would that man have lost if he had murdered that woman? She was the only person who knew that he had committed the deed and where he got off. If, in fact, he had murdered this woman, nobody would have known who had committed the deed; nobody would have known at what station he had alighted. He would have had every chance of getting away. If he was caught, what then? The sentence for rape and the sentence for robbery with violence can both command a life term of imprisonment, the same sentence as that 661 which murder would command. Therefore he had every chance of escaping, if he had done this deed, and the dice would have been weighted in his favour. He would have had nothing to lose. I suggest to your Lordships that there is an example, for all we know, of a person whose life may have been saved and who may still this day be alive simply and solely because the death penalty existed.
I do not wish to keep your Lordships longer, because there are many other people who wish to speak and who arc far more able, knowledgeable and capable than I am. I realise that I am a most junior and insignificant Member of your Lordships' House, without even the characteristic wisdom engendered by age; but, with all the power of word that I am able to command, I most humbly and respectfully beg all your Lordships to throw this lethal Bill out of your Lordships' House. It is dangerous, it is callous and the public just do not want it.
§ 8.5 p.m.
My Lords, I should like briefly to add to those arguments that have already been given in favour of this Bill. If in so doing I disagree most heartily with the noble Earl who has just sat down, and also with the noble and learned Viscount the Lord Chancellor, in his absence, I am sure they will forgive me. I should like to look at two or three different types of murder and see what the position really is. First of all, let us look at the calculated murder, the murder of a man or woman which has been decided on a long time beforehand and, in nearly every case, is done for gain. The noble Lord, Lord Webb-Johnson, in a very amusing speech, gave us two very serious examples of this kind of murder.
First of all, of course, such murders are fewer than others, but their object is gain. The murder is worked out definitely and carefully to get something out of it—perhaps it is a wife trying to murder her husband for his money. The whole point with such murders is to get clean away with it. If the murderer is caught, he or she loses the whole point of that murder: the deterrent is the fear of being arrested, the fear of being proved guilty. The deterrent is neither life imprisonment nor hanging, because, whichever of those the murderer gets, he or she has lost the whole point of the crime. So that it does not matter which 662 deterrent is put forward; it cannot make any difference to the problem of that kind of murder.
People say that it is much more frightening to think of the hanging of a person than of life imprisonment. I am not sure that I agree with that view. Your Lordships are no more likely to commit a murder than I am, so we do not know what people like that really feel. But we can remember what it was like in the war to be ready to face death at any moment. We did not have to be in the front line; we could be in London, sitting in our homes: a bomb might drop on us at any time. I am quite certain that I was not in a minority in feeling that, although it was the last thing in the world that I wanted to happen to me, I was much more frightened of being maimed for life and of being useless to myself and to the community, perhaps for forty or fifty years. It is not exactly the same thing, but it is as near as an honest individual can get. I think that, if I committed a crime such as murder, I should be infinitely more frightened of having to stay for the rest of my life behind bars than I should be of being killed immediately. That is only a matter of opinion, but one opinion in this way is just as good as another. One cannot argue that the deterrent of life imprisonment is any less than the deterrent of hanging, or the other way round.
Reference has been made to the danger of abolishing hanging since an innocent person might then be killed because the man or woman in question was not frightened of life imprisonment. That works both ways. If an innocent man is hanged, your Lordships and I, and the Members of another place, are jointly responsible for that roan's murder. It has been suggested on very good authority that, at least in one case in our lifetime, that has happened. It is just as important to realise that danger as it is to say that hanging is the only way of preventing other people from being killed.
There is another and far larger group of people who commit murders—I refer to the people who ire slightly mentally deranged but are not sufficiently mad to be held "guilty but insane." We ought to be grateful to the Observer for giving us a list of all the cases of murder in a 663 certain five-year period, but it was horrifying to see how many of those convicted had some kind of mental defect. The noble Lord, Lord Webb-Johnson, said that he had two friends in Broad-moor. Although he did not say so, I understood from his speech that these people were murderers. He said that they had been mad, but that after three or four years they had completely recovered and were ordinary members of the community once more. My Lords, if that can be done to the completely mad, surely medical science can also do it to those who are slightly mad but are not mad enough to be called "guilty but insane." If that is so, then all these people who are now being hanged should have the chance of becoming reasonable citizens by being put under medical care. I am not suggesting for one moment that they would all be all right, but some of them would. Again the argument is given to you: by hanging these people you take away from them their chance, and they can never become ordinary citizens once more. Again, the suggestion is that you are killing a man who could become a reasonable and straightforward citizen.
My Lords, I remember very well, when I was a young man sitting on the Steps of the Throne and listening to my father presenting a Bill to legalise euthanasia. Quite rightly, I suppose, that Bill was immediately thrown out. But what your Lordships did then was to take the case of a man or woman who was suffering agonies, and who could not possibly be saved by any medical care, and refuse him or her the chance of dying and so avoiding, perhaps, months, or even years, of absolute agony. Your Lordships would not accept the responsibility of letting those people be killed. Yet, if you turn down this Bill, you will be, on your own responsibility, executing a great number of people whom medical science might be able to help and who, if they are hanged, will never have that chance.
There was one argument given by those in favour of keeping hanging, first of all by the Lord Chancellor and then by another noble Lord, who said that the homicidal rate in this country was far lower than in any other country. I think we should be most grateful for that. But is that really an excuse not to try to do better? Is it really 664 an excuse not to say "We can be much better"? We may be the best, but let us be very much better than we are now. I think that that is the way we should look at a problem like this. Finally, we have heard so often of the tremendous danger that there is supposed to be if we do not hang a murderer and he escapes from prison. First of all, if he escapes from prison, it is not the fault of the law but of the administration in the prison. It was the fault of the administration in Broadmoor in one case when that happened. But we should not argue against the abolition of hanging simply because the administration of a certain prison goes wrong. To you and me, and to the country in general, there is much less danger, much less risk from a murderer escaping—particularly a murderer who is likely to commit a further murder—than there is every day of our lives when we may be run over by a dangerous driver, who may never get any punishment at all. My Lords, I earnestly beg of you seriously to consider this problem and to vote in favour of this Bill.
§ 8.13 p.m.
§ LORD DOWDING
My Lords, I do not wish to occupy your Lordships' time by recapitulating the arguments for and against capital punishment which you have heard this afternoon and this evening. I wish to deal briefly with an aspect of the question which has received scant attention. Like most of your Lordships, I suppose, I have been deluged during the past week with books and pamphlets dealing with the subject now under debate. But I have been struck by the fact that in all those books and pamphlets there was no mention of any serious attempt to deal with what I may call the esoteric aspect of the question. The supporters of capital punishment rather assume that when you have caught your murderer and hanged him you have finished with the business. But that is not so. There remain outstanding three points. The first point is, what happens to the murderer after he has been executed? The second point is, to what extent, if at all, can he influence the lives of those still incarnate on earth? And the third point is, what is the spiritual effect on those people whom we pay to do our killings for us?
To deal with the first point, I would 665 say that murderers vary from habitual criminals to those who have never before broken the law. But they all have this in common: that after their execution they find themselves still consciously alive —in many cases they do not even know that they are what we call dead. Very often the reaction is "Aha! They thought that they could kill me, but they could not." Some of these people are filled with blind, savage rage and hatred at the way in which they have been bundled out of life, and their one desire is to cause as much damage and suffering as they can amongst those still on earth.
This brings me to the second point. In the five years' survey to which reference has already been made, out of eighty-five convicted people who were hanged, sixteen, or roughly 20 per cent., committed their murders—I quote from the Report of the Royal Commission:…in some sudden excess of frenzy where the murderer had previously no evil animus towards his victims.That, I think, is a most important point, because I know for a fact that discarnate spirits do on occasion enter into the auras of living persons, displace their minds temporarily, and control their bodies. This process is generally called "obsession" —as a matter of fact, "possession" would be a more accurate term. Noble Lords will recall the story of Dr. Jekyll and Mr. Hyde. Doctors speak of schizophrenia, a split personality. In many instances it is a case not of a split personality, but of two personalities alternatively taking control of the mind and the body. I have had some personal experience of dealing with these cases of obsession, freeing the victim by ejecting the obsessing entity and persuading the latter not to repeat his offence. Of course, I have no proof at all. I do not know any more about the circumstances than was given in the description of those eighty-five cases; but I feel personally quite convinced that some, at least, of those sixteen cases were due to this type of compulsive obsession. So it is, perhaps, not an untenable hypothesis to suppose that, in fact, the hanging of murderers may increase rather than diminish the number of murders over a stated period.
Finally, there is the effect on the executioner. That, I think, has not been dealt with to-day, so far as I have heard. At any rate, it is not at all realised in this 666 world. Executioners perhaps think that they do a public service by ridding the world of criminals, a task which others are too squeamish to perform. Eventually they will realise their responsibility. So, speaking from the esoteric point of view, the hanging of murderers retards the progress of the murderer after death; it places innocent people in danger of a compulsive obsession, and it puts an unrealised load of responsibility on the shoulders of the executioner. For these reasons, and also on general principles, I support this Bill.
§ 8.23 p.m.
§ LORD RUSSELL OF LIVERPOOL
My Lords, there are few occasions in this country which are so serious that the metaphor of cricket is out of place. Although I intend to be as brief as possible. I should like to warn your Lordships that, although I may not hit any boundaries or even make any runs, and although all the strokes have already been played very much better than I myself could play them, my stay at the wicket may be a little more prolonged than is either customary or seemly in respect of one who comes in so late in the batting order. I am against retention of the death penalty for murder of any kind or any degree. Nevertheless, I should not have thought it necessary to intervene in this debate but for one reason. I think it is generally thought that the balance of public opinion is against this Bill, against the abolition of the death penalty. I am prepared to concede that provided that for the words "public opinion" are substituted the words "public feeling", because I think that that better describes the position regarding this matter.
I have found, in talking to people on the subject, as no doubt many of your Lordships have, that many of those who have strong feelings about the retention of the death penalty have not been aware of the arguments against retention, and that when they have been apprised of them they are not inclined to be so dogmatic about their views. It is because I think that there is this fairly strong public feeling against the abolition of the death penalty that I hope your Lordships, even at this late hour, will hear with me for a few moments while I give you some of my reasons for supporting the Bill and, at the same time, for hoping that, perhaps for the same reasons, many of your Lordships will do so too. It is argued 667 that if we throw out this Bill we shall be flouting the will of Parliament, and that if we give it a Second Reading we shall be defying the wishes of the public. I hope that your Lordships will not give much consideration to either of those arguments and that you will approach this Bill individually and personally. If you think it is a good Bill, support it; if you think it is a bad Bill, refuse to give it a Second Reading.
A few years ago I happened to hold an appointment which brought me very much in touch not only with murder trials but with the execution of death sentences. During the war it was my job to advise successive commanders-in-chief abroad in respect of many murder trials. Not only had I to advise whether the conviction was a proper one, but I realised that it was principally on my advice that the commander-in-chief had to make the decision whether the punishment should be carried into effect or not. While I held that appointment, perhaps quite naturally, I never stopped to think about whether the death penalty itself was right. It was my duty—that is what I had to do —to see that the conviction was a proper one and, if there were extenuating circumstances, to recommend to the commander-in-chief that the sentence should not be carried out. I am therefore, like a number of other people, a comparatively recent convert to the view which I now hold and which I am putting to your Lordships.
As your Lordships know, three or four Home Secretaries, since they ceased to be responsible to Parliament for the Home Office, have changed their views on this subject. I think that one of the most striking examples of people who have changed their mind is Sir Ernest Gowers, who was the Chairman of the Royal Commission and who has also changed his views; yet it would be difficult to find anyone, I am sure your Lordships would agree, who is a more level-headed thinker than Sir Ernest Gowers. And yet one read last Saturday in the Daily Telegraph that all those who are in favour of abolition are inebriated by the heady wine of sentimentality. My Lords, whatever else you may think of that tasty morsel of journalese, I am sure you will agree that as an accurate statement of fact it could not be wider of the mark. I have looked in the dictionary to find out what the 668 writer of that leading article meant. I understand that what he was trying to say was that those of us who favour abolition have a tendency to be swayed by sentiment rather than by reason. Nevertheless, I share the views of Sir Ernest Cowers that, so far from the sentimental approach leading into the abolitionist camp and the rational approach leading into the retentionist camp, it is the other way about.
Considering this matter of how I should vote on the Bill, I start from the point touched on by the Home Secretary in another place—and I will quote his words [OFFICIAL REPORT, Commons, Vol. 548 (No. 98), col. 2551]:First, let me say emphatically that I believe capital punishment to he justified only if it is likely to reduce the amount of murder. If there is reason to think that without it there might be more murder, then I think that it should be retained;I think it is now generally acknowledged that that is an agreed starting point. I do not agree with the Home Secretary, or with the noble Viscount, Lord Hailsham, who has spoken so well this afternoon, that it is for those who are in favour of abolition to show that the change in the law would be beneficial. I take the view that the onus of establishing that hanging is a unique deterrent lies fairly and squarely upon those who seek to retain it. Those who would seek to retain hanging cannot discharge that burden of proof. I think that, whatever else has emerged from this debate, that has emerged as a fact; and it was the most reverend Primate, making his maiden speech in your Lordships' House, who said that the most that could be said about that "proof" was that it was a "hunch."
There is another reason why I wish to support this Bill. This point has not been mentioned as much as I had expected, but a number of noble Lords have brought it forward. It is not possible to say with any certainty that no innocent person has been executed after conviction for murder. In the last ten years there have been two cases regarding which I think it is impossible to say that the court would have convicted those two men had the court at the trial been in possession of evidence which came to light only after they had been executed. I need not go into the details of those cases, because your Lordships know them very well: they are the cases of Rowland and Evans. On February 16 this year in another place, 669 during a debate on the capital punishment Motion, both the Home Secretary and the Lord Privy Seal dealt with this point very emphatically. They both affirmed that no innocent man had been hanged within living memory. I do not think that it is possible to be so dogmatic about it. I believe that no jury would have convicted Evans had they known at the time of the trial that the bodies of the other women whom Christie had strangled were lying buried in that yard in Rillington Place.
Some of your Lordships at least must have served in the war in Italy. If you did you will remember the traffic notices put up by the American forces: "Death is so permanent". I do not believe that that notice deterred anyone from dangerous driving, any more than I believe that the death penalty is a unique deterrent to would-be murderers. Nevertheless there is no doubt that those words express a profound truth. Death is very permanent, and I would urge your Lordships that so long as it is not merely possible but reasonably probable that an innocent man may be wrongly convicted and executed then the death penalty should not continue.
We are always asked: "If you abolish the death penalty what is a satisfactory alternative?" I cannot at this late hour go into that matter very thoroughly. If the death penalty is not a unique deterrent, the punishment of imprisonment for life is the proper punishment. It remains to be settled how that is to be administered. I am personally quite prepared to leave that to the Home Secretary. There may be some cases—a few cases—where imprisonment for life may be really for life; it will not be possible to let the convicted person out. I think those who are in favour of abolition must be prepared to face up to that fact. But in the majority of cases, the time in which a person would be imprisoned would not be until the end of life. Each case should be dealt with on its merits, paramount attention being given to the public safety.
Another argument which is raised is that if the death penalty is abolished there will be a great increase in the number of criminals who will shoot their way out when they are about to be arrested for committing some serious crime. That may be a matter for argument. I should like to make this suggestion. I think it is 670 high time that the regulations regarding the possession of firearms were overhauled. I cannot see any adequate reason for allowing anyone outside the police force and the Services to carry arms in any circumstances whatever, and I think that if the penalty for offences under Section 1 of the Prevention of Crimes Act, 1953, were a serious penalty instead of the rather small penalty of two years' imprisonment it would be a great discouragement to the use or the carrying of arms in those circumstances.
Before I sit down I want to say one other thing—something which the noble and learned Lord, Lord Oaksey, said prompts me to say and I think that at least two other noble Lords have mentioned it since. I hope it will not be taken amiss by the Judicial Members of this House. In 1948, during the debate in this House on the Criminal Justice Bill, particularly on Clause 1, which, as your Lordships remember, proposed to suspend the death penalty, a number of Judges, Judicial Members of this House, came here and told your Lordships that the death penalty was a greater deterrent than any other form of punishment, and they warned your Lordships that its suspension would lead to an increase in the rate of murder. 'This House naturally listens with great attention to what its Judicial Members say on any legal matter. I would not suggest that your Lordships should do otherwise. What I do say is this—and I think that other speakers have made this point: that whether the death penalty is a unique deterrent that cannot safely be abolished is not a legal matter at all. It is not, in ray submission, a legal matter; it is something about which the Judicial Members know no more than those of your Lordships who are laymen.
I would not ask your Lordships to accept my ipse dixit for such a statement. If you will allow me, I will quote from the Report of the Select Committee on Criminal Laws, 1819, on this subject. The fact that the Committee said this one hundred years ago does not make it any less wise. The Committee said:Highly as the Committee esteem and respect the Judges, it is not from them that the most accurate and satisfactory evidence of the effect of the penal law may reasonably be expected. They only see the exterior of criminal proceedings after they are brought into a Court of Justice. Of the cases which never appear there, and of the causes which 671 prevent their appearance, they can know nothing. From any opportunity of observing the influence of punishment upon those classes of men among whom malefactors are most commonly found, the Judges are by their stations and duties placed at a great distance.I would ask your Lordships to consider that passage very carefully, and if you agree with it, as I do, I hope that you will regard anything which Judicial Members have said, or may say to-morrow, as to the death penalty being a unique deterrent, as merely an expression of opinion, to which, of course, you will pay due attention. You should not attach undue weight to it or regard it as an ex cathedra pronouncement that is infallible and not to be questioned. By the end of the debate, I hope that your Lordships will have come to the conclusion that a rational, rather than an emotional, approach to this serious question leads in one direction only, the direction of abolition. I hope you will also come to the conclusion that it is not the heady wine of sentimentality of which the abolitionists have drunk their fill, but the sobering draught of reason. My Lords, I urge you to give this Bill a Second Reading.
§ 8.41 p.m.
§ LORD TWEEDSMUIR
My Lords, rising after rather more than thirty speakers have spoken, I am sure the House would not wish me to attempt to repeat or recapitulate their arguments. I will only briefly put three points of my own, on which earlier speakers have touched. Before I come to them, the noble Lord who has just sat down has used the words "sentimentality" and "emotion". Speakers on both sides today have charged their opponents with sentimentality, which is going rather a long way. Put it this way: in a debate such as this, the heart has a certain place in the debate, as well as the head. But this debate has fined itself down to a clear-cut simplicity, of whether we retain the death penalty or whether we abolish it. Every one of us here speaks, as he must, from his own experience and his own analysis of his experience.
So far as I can make out, from listening to to-day's debate, and having followed the debates in another place, and having read the publicity and propaganda surrounding them, the abolitionists' case, in the main, stems from three particular 672 points. There are those who think that hanging is uncivilised, in the sense that it is unchristian. There are those who think that hanging is unnecessary, in the sense that it is ineffective in its object, and that the death penalty is not a unique deterrent. And, last of all, there are those who think that the death penalty is now unwanted, and a large proportion of the country are claimed to have changed their minds.
Let me take the first point first, the matter of hanging being uncivilised. If a Parliament of this country came to the clear conclusion that it was an uncivilised, unchristian act to hang a man, not only would hanging have to cease in this country on the instant; it would have to cease among the 60 million human beings in the British Colonial Empire. If it is unchristian in England, it is unchristian in Africa. To say that it might be slowly abolished there is merely to beg the question. If you take that point of view you must be consistent; and consistency demands also having conscientious objections about going on the field of battle. One or two, or three, of those countries which abolished the death penalty far back in the last century made an exception in the case of their own war criminals. If you take that view, it must be a completely unyielding view. The Society of Friends are entirely consistent. They are conscientious objectors. They objected to the hanging of the Nuremberg criminals, and I have no doubt that other Members of your Lordships' House, besides myself, have received their leaflet. I cannot forbear to quote one passage where they say:Our concern, therefore, is for all victims of violence, not only the murderer but also those who suffer by his act.I should not have put it quite like that; I should have put it the other way round. Perhaps I am influenced by the fact that some years ago I was in the Government Service in East Africa, and I probably saw more murdered men than any Member of your Lordships' House; therefore I tend to think of them first.
The noble Lords, Lord Malvern and Lord Milverton have drawn attention to what would happen if we were suddenly to scrap the death penalty in the colonial territories. What might not be too bad in this highly civilised country would be a vastly different thing in 673 countries just emerging from the Stone Age. When we went to these countries we found that justice took the form of the blood feud, and we replaced that with our own machinery of impartial justice; and if ever that machinery of ours shows signs of breaking down, the blood feud will come back again. I fear that, when the African police, or whoever it may be, apprehended a murderer, and the only punishment was imprisonment, too often you would see against the case "shot while resisting arrest" or "shot while attempting to escape". Then you would have undermining of the omnicompetence of justice, a parallel justice set above the courts.
The second proposition is that hanging is ineffective of its purpose. Considering my thesis of the Colonies just a little further, if we abolish capital punishment in this country, on the ground that it will not deter murderers, it would still possibly be logical to retain it for some little time in certain colonial territories, where the circumstances could be shown to be vastly different. But, my Lords, murders in Britain are committed by an undeterrable few, the neurotic, the paranoiac, the schizophrene—people who do not reason. We have in this country a distressingly large criminal class, and they reason very carefully. There have been a great many comparisons made in to-day's debate, between this country and other countries, as to why they have abolished their death penalty long ago and do not appear to have suffered any great hardship, or have recently abolished it with no apparent sign of rise in the murder rate. Let me give your Lordships this proposition. Most of those countries are not comparable with Britain at all. This is a country with vast cities. We are at the moment in the biggest city on earth. Let me give you another proposition. Compare this city we are now in with New York, which has just about the same population. It has a very mixed population, I admit, but so have we in London, and it is becoming more mixed. There were ten times as many murders in New York last year as there were in the city of London.
Deterrence can be only one thing; or really it is two: it is composed of the certainty of conviction coupled with the severity of the penalty. If you have certainty of conviction and a penalty that is 674 not severe, that will not deter. If you have a drastically severe penalty and a corrupt or inefficient police force which cannot enforce it, that again will not deter. It is the coupling of those two together that deters. As has been pointed out by my noble friend Lord Conesford to-day, it is no accident that we have the lowest murder rate of any major nation; and the reason, in this parable of two cities, for the difference between us and New York is that there the large criminal class carry firearms in the pursuit of their criminal profession. In London they do not; and in London the certainty of conviction is much greater, owing to the unique relations that exist in this country between the police and the public. Therefore, when a man is tempted to murder, or tempted to carry a pistol when he goes out on burglary, for him the gallows is not a remote possibility. It is a near-certainty if he kills. That is the deterrent.
But let me put this to your Lordship's. There is not the slightest doubt that if we abolish the death penalty a distressingly large number of the criminal classes will take to arms. I wonder how many of your Lordships realise the power of the pistol. I have seer it turn snivelling cowards into great roaring bravoes, holding a pistol in their hands, and knowing that they hold sirs men's lives there. Look at that nauseating thing, the armed bully who swaggers around with this power, the power of the pistol. If you are a professional criminal, just imagine taking a revolver on a burglary. It is only of use in one aspect or a burglary, and that is making the get-away. If you got down a fire-escape and found a policeman waiting below, you see the one man on earth who can identify you. If this Bill goes through, you are faced with either a good many years for burglary, if you are caught—and because you have plainly committed many other burglaries, which will almost certainly be brought home, you will get a good long jail sentence—or an indeterminate sentence if you murder as well. There in front of you is the one man who can identify you, You have a gun. Do you hesitate?
My Lords, I hesitate to interrupt the noble Lord, but he is speaking with so much confidence that I am sure I shall not disturb him at all if I interrupt. He says that he is certain that if capital punishment is abolished the criminal class will become 675 armed. Has he bothered to study the details which can be discovered in the various Appendices of the Royal Commission's Report, or is he just brushing that aside and relying on his own superior intuition?
§ LORD TWEEDSMUIR
My Lords, I do not brush that aside, but I have given the example of New York, which is probably the closest possible comparison we can get, and there the criminal classes are armed, and that certainty of conviction is not there, because they have not that police and public relationship. If the criminal classes are armed, recruiting for the police force is going to fall. When the police say that they do not want to be armed, what I am sure they mean is that they hope a state of affairs will never come about that will necessitate their carrying arms. They know only too well that the old relationship of police and public will go.
My last point is this. It has been submitted to-day that the country has changed its mind. I think that there is some slight movement of opinion, but I would not put it further than that. In my short experience of politics it seems to me that the interest of the people in the doings of Parliament rises and falls in cycles. In 1948, for reasons which I cannot analyse, it was high, and now, I think, it is rather low. Whereas in 1948, when hanging was debated on the Criminal Justice Bill, every Member of Parliament felt it very heavily in his postbag, now I think that most Members of Parliament would tell you they got many fewer letters. The noble Lord, Lord Rea, spoke as if he saw abolition as part of a continuous process, going back, I suppose, to the abolition of hanging, drawing and quartering, which was a monstrous and barbarous thing. Gradually, hanging for theft was abolished, and now it may be argued that hanging for murder should be abolished too. But I think that hanging for the theft of property and hanging for taking a man's life are very different things. Long before hanging for the theft of property was abolished juries were 676 going to tremendous lengths not to enforce the law. In one famous case, of which I shall not quote the exact details, of a thief who stole a chest containing a large sum of money in gold sovereigns, the judge ruled that its value was only 1s. 3d., or whatever the sum was, in order to keep it outside the ambit of the death penalty. Those days are over. But I do not think that we can equate those two things, the death penalty for the theft of property and the death penalty for murder.
A group of publicists, who have a perfect right to do so, have spent tremendous energy on giving the public the idea that Britain has changed its mind on this subject. I do not agree that they are right. This Bill has gone through another place directed by an honourable Member, whom I choose to regard as the ablest debater and ablest Parliamentary tactician in another place. It does him immense credit. There have been certain murmurings in certain quarters of the Press about what your Lordships should or should not do. This is a matter for every single one of us as individuals, and anything that may be claimed for a free vote in another place and its results, can equally be claimed for a free vote in your Lordships' House and for its results. I think I have been overlong, but I trust that the sum total of the votes passed by your Lordships' individual consciences will show a majority for retention.
§ 8.56 p.m.
§ LORD TEVIOT
My Lords, on behalf of my noble friend Lord Merthyr, I beg to move that the debate be now adjourned.
§ Moved, That the debate be now adjourned.—(Lord Teviot.)
§ On Question, Motion agreed to, and debate adjourned accordingly.