HOMICIDE BULL

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

It seems to me, from the exordium to his argument, that the noble Lord is dealing with Amendment No. 2. Amendment No. 1 in the Marshalled List is the addition of the words," or environmental."

LORD CHORLEY

I am sorry. I am using a Marshalled List which I obtained yesterday from the Printed Paper Office, and on which I made my notes.

THE DEPUTY-CHAIRMAN OF COMMITTEES

I am afraid that I also have the wrong copy. Amendment No. 1 is "page 1, line 22, after 'inherent' insert 'or environmental.'"

LORD CHORLEY

I seem to be in good company. I am sure that, in those circumstances, your Lordships will forgive me. This Amendment is another medical Amendment, in the sense that, as the clause is at present drafted, the only matter which I think the jury are entitled to take into account is arrested or retarded development of the mind or any inherent cause. Those are all matters of the same kind—matters affecting the man as he is born, so to speak.

THE LORD CHANCELLOR

May I interrupt the noble Lord again? I am sorry to be a nuisance, but perhaps it would be convenient if he dealt with the first two Amendments together, as they raise similar facets of the same clause—that is, the addition of the words "disorder of the mind". I think that would be for the convenience of the Committee.

LORD CHORLEY

I am grateful to the noble and learned Viscount. That would certainly suit my case. The psychological doctors who are interested in this matter are equally interested in both of them, and I have no doubt that others of your Lordships have had these matters in mind or had them brought to your attention.

The first of these problems arises from the fact that the draftsman of the Bill seems to have looked at the matter entirely from the point of view of the man's heredity, and that is very important. The noble and learned Viscount, who has had so much more experience of the working of the criminal courts than I have—as I know, having heard him in the old days on circuit—has frequently, both in defending and prosecuting, had to go into the question of heredity, which undoubtedly is very important; and nobody would question the correctness of inserting it in this clause. But the same type of diminished responsibility may be produced by 357 external causes and environmental causes—the way the man has been brought up, particularly his family surroundings as a child. From the point of view of modern psychological medicine, I do not think there can be any doubt that it is found that this type of irresponsible offender is often produced just as frequently, or at any rate in a substantial number of cases, by environment as by the genes, the hereditary outfit with which he starts his life. Therefore, this clause has from the start given considerable cause for thought to the medical world, and particularly to the psychological medical world. I think I am right in saying that opinion is pretty well unanimous that there should be an Amendment here in order to widen the type of case in which the jury will be entitled to find diminished responsibility.

The other Amendment which suggests that the words "or disorder of the mind" should be inserted after "disease," is based on exactly the same sort of argument. This type of mental weakness may be induced, and no doubt in most cases is induced, by actual disease of the mind—the same sort of disease of the mind that has been gone into so often by the courts in connection with the application of the M'Naghten Rules; but it is undoubtedly the view of a large number of psychological, medical practitioners that there may be other cases where the weakness or irresponsibility is brought about by disability not amounting to a disease. It seems, therefore, very important also that the clause should be widened to this extent. I hope that I have made these matters sufficiently clear and that the noble and learned Viscount will be able to accept the Amendments, because I am sure that they are very important. I beg to move.

THE LORD CHANCELLOR

I have considerable sympathy, as the noble Lord will see, with the purpose of his Amendment, but there is a practical difficulty. Therefore, perhaps your Lordships will bear with me if I deal with the matter rather more fully because I regard it as a most important point. I should like the noble Lord, Lord Chorley, to believe 358 that, when I made up my mind that the Scottish doctrine of diminished responsibility could be introduced into English law, I did give the matter grave consideration, both from a point of view of discovering the full force of the Scottish doctrine and also with regard to its implications in our legal system.

May I ask your Lordships to consider how the clause would read if the Amendment were made? The effect would be that the defence of diminished responsibility would apply only where the defendant was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent"— and then the noble Lord would add his words "or environmental"— causes or induced by disease"— and then the actual words that the noble Lord has in his Amendment are "or disorder of the mind"— or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. The purpose of the wards in brackets in Clause 2, whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury is to limit the generality of the words "abnormality of mind" which precede the bracket, and to bring the clause as nearly as may be into line with the Scottish doctrine, having regard to the difference in law and practice in the two countries and the fact (I would ask the noble Lord to remember this, because it is important in introducing the doctrine) that in this context the limiting words which are used in Scotland—" bordering on insanity "—would be difficult to introduce into the clause, as I think the noble Lord would be the first to agree.

In particular, it is desired to ensure—I am sure your Lordships will realise the importance of this—that the man who is merely bad tempered or jealous and has no other indication of mental abnormality cannot successfully plead that his bad temper or jealousy constitute abnormality of mind or environment. The objection to inserting the words "or environmental" after "inherent" is that they may leave an opening for the line of defence to which I have just referred—for example, in the case of the man who, as a result of domestic circumstances, has 359 become unduly irritable or jealous. It may be argued that a person who has developed a mental abnormality as a result of, say, a war experience, ought to be able to take advantage of the new defence. The answer to this appears to be that in such circumstances it would be open to the court to hold that his mental abnormality was induced by disease, even if they did not think it was inherent.

But I want to go further than that because I wish the noble Lord to realise that I have given a great deal of consideration to the point, even if he does not agree with my conclusions. These are my conclusions. I do not think that in practice the courts would feel inhibited from saying that a cause was inherent because it did not date from birth. In other words, I think it is perfectly clear that you can acquire some things in the early stages of life (which are the ones with which the noble Lord must be very familiar because they are the ones which are dealt with in every textbook on psychology) but even in later stages of life they become an inherent power. If the noble Lord will look at the definition of "inherent" in the Oxford English Dictionary, he will find it says: Existing in something as a permanent attribute or quality; an element, especially characteristic or essential element, of something; belonging to the intrinsic nature of that which is spoken of; indwelling, intrinsic, essential. Therefore, I myself have no doubt that it is possible for a person to have an acquired inherent condition.

I do not know if the noble Lord had in mind—I know that he has considered these matters very carefully—that there might be some difficulty with a gross psycopathic personality, or a severe psychological maladjustment caused largely by bad upbringing or by the circumstances of early life. We did consider these cases, and such cases appear to us to be within the clause as it stands, either because there is an arrested or retarded development of mind (which would include an emotional development) or because, in view of what I have just said, there would be an inherent cause within that meaning.

If I may pass to the other Amendment, the suggested addition of "disorder of the mind", which I also found most interesting, again the objection to the insertion of these words is, in substance, the 360 same as I have said with regard to "environmental". It is that the addition weakens the limiting effect of the words in the bracket. If I may take an example, it may be said that a man in the grip of panic, rage or jealousy, was ipso facto in a state of disorder of the mind, and that the state of disorder was almost, by definition, an abnormality of mind. That is what we do not want to provide as a defence in the Bill. In my view, it would be most dangerous to have it as a defence. As I understand it, from the various judgments of the Scottish Courts that I have read, the Scottish doctrine does not give a defence to the man who can show no evidence of mental abnormality other than his conduct at the time of the killing. Of course, there must be exceptional cases, where at the time of the killing he proclaims or demonstrates this mental abnormality; but to show merely that he acted from panic or jealousy or rage would not be sufficient.

As I have said, the clause was carefully drafted, for the reasons that I have given, and the addition of these further words would, I believe, produce results which go far beyond what the noble Lord, Lord Chorley, has said. I am quite sure that the courts will, as they have dealt with cognate questions, take the definition generally, and that it will produce the result which I have indicated: that of giving the substance of the Scottish doctrine of not providing a defence in panic, rage or jealousy, but that they will meet the points which the noble Lord has mentioned. I should like to tell the noble Lord that when we drafted the Bill we had the advantage of considering the proposals he has put forward to-day, and these are the reasons why we did not incorporate them. May I say just one more word? With what the noble Lord has said, of course I entirely agree. Whether I have convinced him or not, I hope he will appreciate that I am trying to deal with the Amendments on their merits, and after very careful consideration of the points, and I hope that he will not press them.

LORD CHORLEY

I am sorry that I have not been converted by the noble and learned Viscount's arguments. I should have liked to be because it would be so helpful. But I appreciate that the Government have had this problem in mind since the time this Bill was drafted, 361 and I am sure that the careful reply which the noble and learned Viscount has given to my points will be studied by those who are even more interested in this matter than I am myself. We are grateful to him. I should like to say one or two words to explain why I still do not think that he is necessarily right. It may well be that when these cases come before the Court of Criminal Appeal they will take his view of the law—because, after all, he is a much greater expert on it than I am. But there are reasons why they may not take that view. I do not think that here he has given sufficient weight to the word "abnormality." A person who kills just in a rage of jealousy, or something of that kind, would not, I submit, have an abnormal mind. An abnormal mind surely means something rather more permanent than a mere passing fit of jealousy or rage.

Secondly, when the noble and learned Viscount argues that "inherent" has not necessarily anything to do with the constitutional outfit of the man when he is born, that might be so on the basis of the definition in the Oxford dictionary; but as the noble and learned Viscount knows so well, when you find the words "or any" following a number of express words like "arrested or retarded development of mind" I should have thought that that would be taken ejusdem generis with the earlier words, which seem to me to indicate the man's hereditary outfit, so to speak, and not something that he might have acquired as a result of bad upbringing or something of that kind. Therefore, I should have thought it was difficult for the Courts to attach to the word "inherent" the meaning which the noble and learned Lord Chancellor has suggested.

Again, in regard to this matter of disorder of the mind, we appreciate of course that this clause is a great advance over the M'Naghten Rules, and we are grateful to Scotland for having given us this considerable improvement in our own law in relation to this matter. Even the Scottish doctrine, however, is one which developed before the great advances of modern psychological medicine were made, and I should have thought that it would be to the advantage not only of this country but, perhaps, also of Scotland to have a rather mere generous interpretation of this doctrine of the 362 diminished responsibility—an interpretation more in accordance with modern psychological medicine. Possibly the noble and learned Viscount will look at this matter again in the light of what I have just been saying. I certainly do not wish to press this matter further. I beg leave to withdraw the Amendment.

LORD COHEN

I feel considerable sympathy with the observations which have fallen from the noble Lord, Lord Chorley. There is one particular case that I recall and I should like to know how it would be dealt with under this Amendment. The case to which I refer occurred in recent years. If the noble and learned Lord Chancellor can tell me that there would be no risk of a man being released and possibly committing further murders, I shall be happy. I 364 forget whether at the first trial the man was found guilty but insane, or was found fit to plead, convicted and later sent to Broadmoor. However, he escaped from Broadmoor, and murdered another child, again, I think, by strangulation. On that occasion he was tried and found guilty of murder. The then Home Secretary, as everybody expected, did not allow the sentence to be carried out—whether the man is again back at Broad-moor or not, I do not know. But it would be disastrous if there were any risk of such a man, who under this Bill would not be convicted of murder as a capital offence, being let loose again to perform another such crime. It may be that the answer is that in this particular case he would be certified and found insane, and could be locked up in the ordinary way. There might be borderline cases which it seems to me could be dealt with under the Amendment moved by my noble friend Lord Chorley, but which perhaps could not be dealt with satisfactorily under the Bill as it stands.

THE LORD CHANCELLOR

My Lords, I am grateful to the noble Lord, Lord Chorley, for raising this point, and also to my noble and learned friend Lord Cohen for his contribution. If I might just say one word with regard to what Lord Cohen has said, as I think he realised I was the Home Secretary who had to deal with the case which he mentioned. I am always diffident about relying on my memory of any case, as Lord Cohen knows the tricks that time plays. He did say that the man in question was in Broadmoor after the first trial, and that it was from Broadmoor that he escaped. He must, therefore, have been a criminal lunatic, found so in one way or another, as Lord Cohen, I think, assumed. Of course, the difficulty is that in this clause we are not dealing with insanity and with criminal lunatics: we are dealing with the incorporation into English law of the Scottish doctrine of diminished responsibility. Again I speak with diffidence, because I see my noble and learned friend Lord Keith of Avon-holm in your Lordships' House, and he has had infinite experience of the working of that doctrine. But I am informed, and the Royal Commission came to the same state of belief, that in Scotland during the first half of this century there were only two cases in which, after a 365 verdict of culpable homicide, the person subsequently committed a serious crime. That is, I think, a fairly strong piece of evidence over a period of nearly fifty-seven years.

One has to consider the whole field of cases that will come under this doctrine. I am sure Lord Chorley will agree, because have known his essential humanity over a long period of years, that one must consider this as a human matter, as well as a matter of interest to those who are forming their views as to penal treatment as a whole. I would ask Lord Chorley to turn back his mind to the days when we were both on the northern circuit, and to envisage the human material which has to be dealt with. He has read the clause very carefully, as he showed from his speeches on these three Amendments. I think he will agree with me that it must cover a very great variety of cases, cases which fall just short of insanity under the M'Naghten Rules but which clearly come within this doctrine, down to a case which is little more than that which I described in discussing the last Amendment, where the cause is simply a panic, or rage or jealousy. I want to carry Lord Chorley with me here, because I want his help on my own difficulties. There will be cases of the last type where the state of mind that we have tried to describe in the clause did exist—there is no question of a sentimental verdict but a proper verdict on the basis of the clause—although there was a virtual recovery from that state.

The noble Lord will realise—he has considered this matter—that these states are brought on by circumstances of many kinds; indeed, that was what he and his friends were envisaging in moving the Amendment we have just dealt with. And if there is a virtual recovery, is it right that the judge, who, after all, has all the facts of the case before him, should not have the right to make up his mind and impose what he thinks is a proper sentence? The noble Lord did me justice; I am not riding away from this on the basis that a judge could impose a sentence of penal servitude for life. He could. In a proper case, the first field of cases that I mentioned as being just short of inanity under the M'Naghten Rules, he might well think it right to do so, and then to leave the matter to the Home Office. But there are other cases where 366 he gets clear prognosis, of other cases where there is a clear explanation into which the medical evidence comes. I think it would be unduly severe on the defendant, and falling into the error of treating the defendant rather as a corpus vile for our theories than as a human being, if we were to take that right away from the judge.

If I may put it shortly, I do not like the idea of introducing an indeterminate sentence when a fixed sentence could be justified. That has been the difficulty which I have seen in the matter, and I think that it is a case in which one can trust the judges to make the sentences suitable to the conditions. We have some help on this point in that, as the noble Lord is aware, it is a doctrine which has been dealt with in this way in Scotland over a considerable period, and I am not aware that there have been complaints on this matter. My main point to the noble Lord (I hope he will acquit me of stalling on the Amendment) and what I am so anxious about is that he shot Id appreciate the strength of what moves me in this matter. That is, that there is no reason why all persons whose responsibility is diminished should be given an indeterminate sentence merely because such a sentence may be necessary for some. That is really the burden of the case.

May I say that my right honourable friend the Home Secretary, as noble Lords are aware, is in Ghana at the moment. After he comes back on Sunday, I will show him what Lord Chorley has said, because, as Lord Chorley may be aware, he is very much interested in this aspect of the Bill—indeed, he dealt with it in his speech on Third Reading in another place, as the noble Lord may have seen. I should like him to read what has been said here on this point, because this was not, so far as I know, discussed fully in another place. Therefore, I think it would be very interesting for Mr. Butler to learn what Lord Chorley has had to say to-day.

I have explained the view which we formed. May I now just deal with one or two points concerning difficulties in the Amendment. The noble Lord will, I am sure, acquit me of any intention of taking these as points upon the principle—I have already tried to deal with that—but the Amendment itself would be defective, because where the accused 367 brings forward evidence both of provocation and of diminished responsibility and the jury return a verdict of manslaughter it will not be clear which provision applied. To make the Amendment effective it would be necessary to provide for a special verdict. I think that Lord Chorley will see—it is fair, I feel, to raise the point—that the Amendment does not state where a person so sentenced should be detained, and it does not make provision for release on licence, which is an essential part of Lord Chorley's scheme. I merely raise this in order to point out the position. I assure the noble Lord that it is not for these technical reasons that I am against him on this matter. It is for the reason I have given.

There is just one further point. Lord Pakenham raised the question of treatment on this basis. Though we have not the advantage of his presence at the moment, it might be useful if I said a word on that matter, because I am sure that Lord Chorley is also interested in the point. Your Lordships will remember that Lord Pakenham asked how people convicted under Clause 2 were going to be handled and he mentioned the East Hubert Institution. When I was Home Secretary I got authority to build the East Hubert Institution. As your Lordships heard, the start has been delayed, but I hope that we shall have it because it is a form of prison to which I myself attach great importance from the penological point of view. Noble Lords will appreciate that the largest class of cases going to the Institution will be those who need full investigation and treatment by psychiatric methods. There will also be prisoners with difficult personalities who might respond to a régime in which the emphasis is medical and psychiatric. And there will, of course, be prisoners amongst those sentenced under Clause 2 who will be suitable for the East Hubert Institution, and some who will not because their mental condition is not one which would respond to the treatment. Of course, if they are found later to be certifiably insane or mentally defective they can be removed to the proper institution outside the prison system.

I hope that what I have said as to the distinction between diminished responsibility and insanity, also concerning the record of what has happened in Scotland, deals with the very important point raised by my noble and learned 368 friend Lord Cohen. On the main point, I hope that while I and the Home Secretary will look carefully at what Lord Chorley has said, he will also consider with his friends the real human difficulty that I find in the matter, and that he will not press the Amendment on this occasion.

LORD CHORLEY

I am grateful to the noble and learned Viscount for his persuasive reply. Sometimes I think he is at his most dangerous when he is most persuasive. I am afraid that he has not altogether convinced me, though I shall ask your Lordships to allow me to withdraw this Amendment because of the technical points which he has made, the force of which I quite appreciate. If the noble and learned Viscount would accept the principle for which I am contending, his draftsmen can put this right—as indeed he indicated. I appreciate, of course, that he has not refused to accept this Amendment on these technical grounds, but because I have unfortunately failed to persuade him. I am disappointed because I feel that this case is really an unanswerable one.

At the same time, I am grateful to the noble and learned Viscount for one or two things, at any rate. One is his having promised to bring this matter once more to the attention of the Home Secretary. I know that I have not persuaded the noble and learned Viscount, and perhaps my chances of persuading the Home Secretary are not very good either, but at any rate I am thankful for that little crumb of mercy. I am to some extent encouraged by the experience in Scotland in regard to this matter, though I am afraid that a longish experience of criminal administration in this country—though nothing like so complete as that of the noble and learned Viscount—has persuaded me that on the whole the English are rather more given to murder than the Scottish people. And I am not altogether satisfied that the experience in Scotland in regard to these released semi-murderers—if one may so describe them—will be paralleled in England.

I understand and fully sympathise with the noble and learned Viscount's dislike of the indeterminate sentence, though it has been used in some of the most go-ahead countries—go-ahead, that is, from the point of view of the administration 369 of criminal law—such as the Scandinavian countries (or certainly some of them) with very great success. Still, in the ordinary way, the indeterminate sentence is a thing which certainly does not appeal to the English. If we were dealing with the ordinary case of manslaughter I would entirely agree with the noble and learned Viscount. It seemed to me that when he was saying that many of these cases would not be particularly difficult ones he was thinking about ordinary cases of manslaughter; but under this clause ex hypothesi he is dealing with cases of abnormality of mind, and those are not ordinary cases of manslaughter at all—at any rate, not the particular group to which this Amendment is addressed. I appreciate the technical point made by the noble and learned Viscount, but the group of cases to which my arguments are addressed are all cases where there is abnormality of mind, and I suggest that that is one type of case where a judge cannot reasonably after a trial—as he has to do—pass sentence for a particular period of years. That cannot safely be done because this is the very type of case where it is not safe to do so.

After all, we have had argued against the whole spirit which is behind this reform of the law the fact that the community must be protected against these murderers; and it is rather ironic for those of us who have been in this particular movement for the abolition of capital punishment and have been combating this argument to have it turned upon us in this way and to be told that here the safety of the community is not to be regarded, and that at is not very serious because in Scotland over a substantial period of years there have been only two or three such cases where a man who has been released has again taken violent action. It is disconcerting to have that argument pushed back upon us, for if there is one type of case where surely the safety and interest of the community are to be respected as paramount it is the case where a man is of abnormal mentality.

If I were a judge I should be very loth to do what a judge has to do and do immediately—for he cannot wait for months to see how the man is getting on; he has to pass sentence there and then, or at least with an interval of only a day 370 or so at the Court of Assize at which the man has been tried and the verdict of the jury has been given. The judge is therefore bound to be in the position of having to make a "hit or miss" assessment of a situation which, in my contention, ought to be the subject matter of careful investigation lasting over months and possibly years by the skilled prison doctor who is accustomed to dealing with cases of this kind. After all, it is almost as much a medical and psychological matter as a matter for the administration of the criminal law. I am not, therefore, convinced by the argument of the noble and learned Viscount, persuasively as he put it.

Finally, I should like to refer to the case which the noble and learned Lord, Lord Cohen, in my view very pertinently, brought back to the attention of the House—the case of Straffen. If he were brought under this Bill when it becomes law, undoubtedly his legal adviser would advise him not to plead the M'Naghten Rules but to rely on diminished responsibility under Section 2 of this Act. In those circumstances the burden of proof upon him would simply be to satisfy the jury that it was a case of diminished responsibility and he would be entitled to a verdict of manslaughter; and at the end of sonic particular period of time for which he was sentenced by the judge he would be entitled to his release. In those circumstances it would not be a question of his having to climb over the wall at Broadmoor; he would be turned out, to the danger of the public, despite the doctors at Broadmoor knowing, when he was released from the prison gates, that there was a very good chance of his committing another murder. If we look at the Straffen case in the context of this Bill I suggest that it proves the need to have the Amendment which I am asking your Lordships to put, through this Bill, on the Statute Book as part of the criminal law of England.

I am very sorry that the noble and learned Viscount cannot accept this Amendment. I do not propose to ask your Lordships to divide on it this afternoon but I retain the right to put it down at a later stage, and perhaps in the light of further consideration by the noble and learned Viscount and the Home Secretary 371 we can look at it again. I beg leave to withdraw my Amendment.

THE LORD CHANCELLOR

I think that the noble Lord, Lord Chorley, will agree that this is well-trodden ground. As he pointed out, the Amendments would have the effect of substituting the standard of control of the accused for that of the reasonable man in deciding whether the degree of provocation was adequate to justify a verdict of manslaughter. This matter has been fully debated before. I do not know that many of us would go so far as the noble Lord, Lord Silkin, who was afraid that nobody would satisfy the test because he could not imagine that any reasonable man could commit a murder as the result of provocation. I do not think that many 373 of us would agree with this optimistic view of human nature, even in its reasonable characteristics. If I may bring this to the human level, the sort of point that was discussed in another place when this matter was debated was that of a man with one leg who receives excruciating pain, the sort of pain not known to a normal man, from a kick on the stump of his leg. I do not think that that presents a really difficult problem, but when one shades into many different cases, and applies the subjective test suggested by the noble Lord, Lord Chorley, I think one then gets into a quicksand of different and always more difficult problems in which, in practice, the subjective test is very difficult to apply.

May I give your Lordships some examples? The defendant may be impotent and may have killed when provoked by taunts of his impotence. Or the effect of the provocation may depend on past history, as in the case that was quoted where the men concerned were on different sides in the war, and the taunts were based on that fact. In the first case that I quoted, because it has been quoted so often, I think that it would be fairly easy for a jury to assess the effect of being kicked on the stump of a leg; but in the other cases I think that it would be extremely difficult for a jury to put themselves into the circumstances of the defendant arid apply the subjective test. I think we should find an uncertainty, which is one of the worst difficulties which can be present in the criminal law.

To go back to the point the noble Lord has been discussing with such interest to me, where we have a certain abnormality of mind, whether it satisfies the clause or not, I think that it is wrong to ask the jury to apply this test. I come to another case which I did not quote earlier, because it smacks of the debating point and I do not like to answer serious questions in that vein—I refer to the case of the man who is exceptionally ill-tempered and lacking in control. Naturally, this ease was considered when drafting the Bill, and I have tried to reconsider the matter in the light of the points that have been brought up, and f cannot believe that it is right that every man should be a law for himself. I think it right, as the clause says, that we should adhere to the principle 374 that the law should be based on a generally accepted standard of conduct, applicable to all alike.

The noble Lord, Lord Chorley, with the frankness one would expect from him, said that the test of a reasonable man is one of the great contributions that English jurisprudence has made to the world in a number of fields. He and I are familiar with the alternative definitions. A reasonable man sounds legalistic in form. In the 19th century it was translated as "the man on the Clapham omnibus." In the 20th century, the American jury has put it in the form of "the man who borrows your lawnmower"—though they do not say whether he returns it or not. But it is intended to represent the ordinary, prudent, decent citizen. And I believe that the more often we can accept that as the test—and it is one that has already been applied on innumerable occasions—in new and varying circumstances, the more useful it will become. The noble Lord will remember that although the Royal Commission expressed sympathy with those who wanted the test of a reasonable man abolished, they rejected the proposal on the ground that any departure from the fundamental rule that the criminal law should be based on a generally accepted standard of conduct, applicable to all citizens alike, might introduce a dangerous latitude into the law; and that a minor abnormality of mind which will make a man more easily provoked, or violent in his response to provocation, ought not to alter his liability to conviction for murder, though it might justify mitigation of the sentence. They also considered that that was a matter which might be considered by the Home Secretary in advising on the Prerogative of mercy. For all these reasons, in which I am supported by the views of the Royal Commission, I must ask your Lordships to reject this Amendment.

LORD CHORLEY

I had less hope in regard to this Amendment than to the previous one. I am afraid that the noble and learned Viscount has not convinced me. What, in effect, he has in mind is that a man born with a particularly excitable disposition, unless he can conform to the ordinary standards of his fellow-citizens who were not born with such a disposition—which ex hypothesi he obviously cannot—is to be convicted 375 of murder, though he was so provoked that he struck down his taunting opponent. That seems to me to be a thoroughly unfair situation. No doubt, in most cases, it would be met in practice, as the noble and learned Viscount said, by the exercise by the Home Secretary of the Prerogative of mercy. It has always seemed to me that it is not good enough for the law to be in such a state that it can be said, "This will be all right in practice, because the Home Secretary will look after it." It has not always been so: there have been Home Secretaries who have taken a rather stiff view about this type of case although I think that, on the whole, Home Secretaries, both those well into the past and recent ones, have dealt with this type of case in a humane way. Therefore, I do not feel quite so upset by the reply of the noble and learned Viscount as I did on the earlier Amendment. I beg leave to withdraw the Amendment.

LORD GORELL

I should like to make the suggestion to the noble and learned Viscount that it would make the English much clearer if in all cases where "the other" is used (as at page 2, line 22) the words "that other" were substituted. I offer that for the consideration of the noble and learned Viscount, and, if he approves, I can move it formally, or perhaps he can adopt it.

THE LORD CHANCELLOR

I am grateful, first of all, to my noble friend Lord Raglan for putting down these Amendments; secondly, to the noble Lord, Lord Chorley, for moving them; and thirdly, to my noble friend Lord Gorell for his suggestion. I hope my noble friend Lord Gorell will give me a little time to consider his suggestion, because, although I have done a great deal of grammatical research. I have not quite covered that point. I had only one general reflection when I saw these fifteen Amendments, and it was that I wondered what the first Duke of Wellington would have said if Lord Raglan's famous ancestor, Lord FitzRoy Somerset, had made a similar set of proposals in regard to the correction of the Duke's despatches. I think it would have been a matter of great interest to your Lordships.

There are a number of points and, if your Lordships will bear with me for a 377 little time, I hope to show that we have a considerable amount of authority for what we have done both in literature and in Statute. The first point that is raised by the Amendments is the use of what is called the "fused participle." For example, if we take the first Amendment (Clause 4, page 2, line 22) it would alter the wording so that it would refer to a person being a party to the other's killing himself or being killed by a third person", instead of a party to the other killing himself…. In other words, my noble friend Lord Raglan prefers construction with a noun in the genative followed by a gerund to the construction referred to by the nickname" the fused participle. "Perhaps your Lordships will allow me to quote from a far greater authority than I shall ever be—namely, Sir Ernest Gowers. In The Complete Plain Words, Sir Ernest deals with the state of the battle on this contention. He says, at page 158, on this construction: This is not in itself a matter of any great interest or importance. But it is notable as having been the cause of a battle of the giants, Fowler and Jesperson. Fowler condemned the 'fused participle' as a construction 'criminally indefensible' that is 'rapidly corrupting modern English style.' Jesperson defended it against both these charges. Those best competent to judge seem to have awarded Jesperson a win on points. If that is the view of Sir Ernest Gowers, then I do not think your Lordships should blame the draftsman of the Bill for following the points win at this stage.

On this point, even my noble friend Lord Raglan gets into difficulties, because in his Amendment to Clause 6 he wishes to get rid of the "fused participle," but the clause at this point says: …no rule of practice shall prevent the minders being charged in the same indictment or…prevent them being tried together. I think the noble Lord, Lord Chorley, would agree on consideration that after the word "prevent" that is the correct grammatical construction. Again, if referred to higher authoirty, the noble Lord will find that the Oxford English Dictionary gives examples from 1689 onwards after the word "prevent," including a letter of King George III. So that again we have precedent for this.

378 The second point raised by the Amendments is the use of "under the circumstances," in place of which my noble friend Lord Raglan would prefer "in the circumstances." On the ground of pedantry, my noble friend again appears to be on the wrong side. The Oxford English Dictionary, under the word "circumstances," says: Mere situation is expressed by 'in the circumstances,' action effected is performed 'under the circumstances'. And although that was written some sixty years ago, it is quoted with approval by Fowler. And Fowler also says: The objection to 'under the circumstances,' and insistence that 'in the circumstances' is the only right form because what is round us is not over us, is puerile…. 'Under the circumstances' is neither illogical nor a recent invention, and is far more often heard than, 'in the circumstances'. I quote that only to show the ancestry. If I can come down to a more practical point which the noble Lord, Lord Chorley, mentioned, the Bill uses the same language as certain existing sections which it is important to attract—namely, Section 98 of the Army Act, 1955, and Section 98 of the Air Force Act, 1955, which give power to convict of an offence committed under circumstances involving a less degree of punishment than the actual charge, and also the Courts Martial (Appeals) Act, 1951, Section 6 (3).

The third point dealt with by the Amendments—the one in the First Schedule, page 8, line 10 and others—raise the question whether a plural verb should be used where the subject is a collective noun. In all these cases the Bill uses a plural verb where the subject is the court and where the court would consist of more than one judge. I again suggest that that is a perfectly ordinary practice "in these circumstances"—I hope I show my great breadth of mind that I am prepared to agree with the noble Lords who take that view; but that, of course, was a matter of location and not of effect. But, again, this is the wording of the Criminal Appeal Act, and of the Criminal Appeal (Scotland) Act, so the noble Lord, Lord Chorley, will see that it is important that we should follow it.

There was also the question whether it is, "the jury whom" or, "the jury which". There is a profound passage concerning this in that analytical work 379 by the late Mr. Dodgson known as Alice's Aventures in Wonderland. Your Lordships will remember the passage towards the end of the book in which Alice is very proud to remember that she refers to them as "jurors". There, again, both styles are correct. One can look at the jury as the persons composing it, or as a composite body of the persons.

The only other matters that are dealt with are whether one puts "or not" after "whether", which I think is permissible, and the question of "as to". I could deal with that matter at great length, but I think it is enough for me to say that this use certainly started with Wyclif, and the noble Lord, Lord Chorley, who I am sure knows his sermons so well, will remember the passage from Wyclif: He shal be lyoun as to violence: as a lyoun in his couche as to trecherie From that time you get a number of other examples, coming down to the Statutes of the present day. The affection in which the noble Lord, Lord Raglan, is held by your Lordships in all parts of the House makes it desirable that he should in part be satisfied for the immense labour which he has undertaken in thinking out and putting down these Amendments. I ask your Lordships to accept my apology for detaining you for so long, and I ask the noble Lord, Lord Chorley, in a spirit of less troubled mind than he has had in the other cases, not to press these Amendments to-day.

LORD REA

Might I ask the noble and learned Viscount whether he would consider introducing amending legislation for the Army Act, the Air Force Act, the Courts Martial Appeals Act, the Criminal Appeal Act and the Criminal Appeal (Scotland) Act, to make them grammatical?

THE LORD CHANCELLOR

I am very tempted to make the answer that my noble friend Lord Hewart made in answer to a question, when he said, "The answer is in the plural." The plural in this case is negative.

LORD CHORLEY

I am sure your Lordships are all indebted to the noble Lord, Lord Raglan, for having evoked from the noble and learned Viscount such a delightful and charming reply on all these points. He did not deal with Amendments Nos. 23 and 24 to which I referred, and where the noble Lord, 380 Lord Raglan, thinks that the words "for any purpose" are not quite in the right part of the sentence. But I imagine that the noble and learned Viscount, having won a victory on almost all parts of the line, is not anxious to retreat there either. Therefore, I shall take it that he regards the draftsman as having put the words, "for any purpose" in the right part of the sentence. In the circumstances, I ask leave to withdraw this particular Amendment and not to move the other Amendments standing in the name of the noble Lord, Lord Raglan, when we come to them.

THE LORD CHANCELLOR

My noble friend Lord Conesford, asked, in the course of his most interesting speech, for an explanation of this clause—I think that is what he meant by saying that it had not hitherto been explained. I gladly deal with that point, and I would ask the Committee to look at the clause. Subsection (2) says If, in the case of any murder falling within the foregoing subsection, two or more persons are guilty of the murder, it shall be capital murder in the case of any of them who by his own act"— then, in the first category— caused the death of…"— second category— inflicted…grievous bodily harm on"— third category— attempted to inflict grievous bodily harm on"— and the fourth category— himself used force on that person". Undoubtedly, that deals with the position where one of the persons indicted did not do the actual killing, so long as he 385 inflicted or attempted to inflict grievous bodily harm or used force. It would cover, for example, as I am sure my noble friend appreciates, the case of someone who held someone down while another person struck the fatal blow or fired the fatal shot. It is important that that should be made clear; the subsection deals with the case that a person does not get off murder if he has the worse aim of the two, if one of the bullets causes the death and the other misses, so long as he has made the attempt.

The point that my noble friend has made is that we ought to have retained the law as to accessories in its pristine form. I do not think that on consideration he would agree with the pristine form because of the difficulty in which one is placed. I do not know what is my noble friend's view of the law of accessories, but I should have thought that the correct law could not go beyond the position in the Sissinghurst House case, where the prosecution were able to show agreement and conspiracy and confederation to use all force, even up to causing death, in order to carry out the nefarious scheme. I do not know whether my noble friend agrees with that or not. When one tries to translate that into practical legislation, as my noble friend has seen in many attempts, suggestions have been made to deal with it in order to avoid the difficulty of the intentions and the agreements in an arbitrary way, by saying that the law should apply to those who carried guns, to those who carried arms, to those who carried offensive weapons and so on. Everyone has recognised that the case of the accomplice, where he is keeping watch for the arrival of the police, and may or may not know what the other party to the criminal action is going to do, is a matter of great difficulty; and the question of proving what was the intent, whether there was any intent on his part, to cause murder or grievous bodily harm, presents immense difficulties which have been commented on again and again. That is the background: that we have a difficult problem in that way.

As my noble friend has said, we have dealt with part of that problem with, I think, universal agreement, by getting rid of the doctrine of constructive malice. But we have had to consider how the second part of the problem will be dealt 386 with. Here we had to face the fact that the point of view is widely held by many people of undoubted experience and integrity of mind that a person who does not himself take an active part in the killing should not be liable to the death penalty. That that view is widely held is, as I have said, undoubted and has been shown. There is a widespread dislike of constructive malice, and we have had to try and find a method of meeting it and at the same time preserving the ability to the prosecution to carry out its work and not make it too difficult for the prosecution so to do.

I said on the Second Reading of this Bill that this was a Bill which took into account the different points of view that had been expressed in your Lordships' House, in another place and in all parts of the country, over a long and embittered controversy. My Lords, that is so. We have had this controversy going on for a period of eighteen months. I said quite frankly in putting this Bill before your Lordships that it had to be a matter of compromise between different views, because, as my noble friend the Leader of the House had said, and as I had said too, when you have had controversy, when you have had different views sincerely held, then it is important that we should try to come together and take a middle course which is reasonable and will not have an adverse effect on our primary task.

No one can deny that this is one of the aspects of the law of murder on which opinion is most strongly divided, and we have tried in these circumstances to deal with anyone who has had a share, whether successful or not, or who has inflicted or has attempted to inflict, bodily harm, or who has used force. We have on the other hand accepted the viewpoint that there are a great number of people who believe that a person who has not taken a forceful share should not be hanged. Of course he will be convicted of murder and sentenced to penal servitude for life—he will be dealt with in that way.

I ask your Lordships, and I ask my noble friend, this question. I have known my noble friend for a long number of years; I know how strongly he feels on matters which he deems matters of principle, and I should be the last to disturb that attitude of mind. But when one 387 has seen not only a country, but Parties, families, and associations of all sorts, torn asunder by differences on this point, differences honestly held, with the greatest force and integrity, either way, then I ask your Lordships frankly to accept a compromise not as weakness but as something which does redound for the general strength, stability and friendliness of the State. It is in that view that I appeal to my noble friend, although he thinks we have gone too far in our exceptions, not to press his point, but to give us a chance of getting the solution into operation and seeing whether we cannot, on this basic principle of the Government's duty for the preservation of law and order, as the Government see it, at any rate for some years take this controversy from among our midst.

VISCOUNT SAMUEL

I thought the noble Lord, Lord Conesford, made out a very strong case, and I should like to ask the noble and learned Lord Chancellor if he would tell me how this clause, as it stands, would apply in one or two particular instances. I remember that not long ago there was a very shocking murder case of a man who had held a high position, I think, in Australia and who had contracted an enmity against another which obsessed him so much that he compassed a murder of that other. I did not think this matter would come up, or I should have refreshed my memory about the details, but so far as I recollect the story was as follows.

This individual had hired, or persuaded, a person to aid and abet him; and they had kidnapped this enemy, had taken him out of London to a deserted place and there put him to death. I am not sure whether the instigator of the crime was actually present or not; but, assuming even that he was not present at the actual murder, would he now be exempted from a capital charge? Would anybody who paid an assassin to murder for political reasons any individual be regarded as less guilty than the man who actually fired the shot? Take the Guy Fawkes plot. If those concerned had been successful, and the King and Parliament had been blown up, would the conspirators who had hatched the plot be exempted from a capital charge and only the individual, Guy Fawkes or other, 388 who had fired the gunpowder be convicted? In any such case the more guilty party would have the lighter sentence, and it seems to me, in view of all that the noble Lord, Lord Conesford, has said about the views of the Royal Commission, the Commissioner of Police and the Public Prosecutor, that on merits the noble Lord's Amendment is desirable.

The Lord Chancellor had another answer to it; an answer which he regarded as the more cogent and conclusive. He did not say so in words, but what he implied was: irrespective of merits, and whatever the House may think about the propriety of this clause and this Amendment, do not pursue the matter, because this Bill, which has been the result of so much controversy, is avowedly a compromise, and the strongest opponents have agreed with the advocates of the Bill to allow it to go through without further discussion. But does the noble and learned Viscount really ask your Lordships to refrain from making any Amendment which they may think to be justified, by reason and argument and authority, merely because this is a Bill which has passed through that process of generation? Surely that is showing very little respect to your Lordships' House. I do not think for a moment that that can be accepted. Let us argue these matters on their merits, and let us discuss them; but if we come to a clear and conscientious opinion that an Amendment is necessary, we really cannot agree with the Government when they say that we should drop all such discussion and refrain from making any Amendment at all. If that is so, I think it would be quite proper for any one of us to move that this debate be now adjourned and that the House refrain from being put to the futile labour of considering and debating any Amendment upon this Bill.

THE LORD CHANCELLOR

The noble Viscount, I am sure quite unconsciously, has entirely misrepresented my argument. My argument was not that no Amendment should be made. My argument was this: that on certain points, and this is one of them, there are bound to be differences of opinion strongly held by people to whom I at once concede complete integrity of mind, because I am never one who is able to impute a lack of sincerity to other 389 people simply because I disagree with their views. I accept entire sincerity on all sides, but I do say that here is a point on which honest and sincere people may take different views.

Let me take the noble Viscount's example of the Guy Fawkes plot. Where is he going to draw the line as to the people he would have desired to be hanged, drawn and quartered at that time? Take the noble Lords in whose house the plot was hatched—I am sure the noble Viscount would say that they should have been hanged, drawn and quartered. But what about the Yorkshire squires? They were on the fringe of the conspiracy. What about the tenants and the lackeys who carried the messages from Yorkshire to Northamptonshire, and then to London? They knew what they were doing, though the influence on them was, of course, a very different matter. All these things would have come into the question of treason at that time. The law as it existed would have made no difference between them until the matter of clemency had come into operation.

What I am saying to-day is that this is a difficult point. I do not think the noble Viscount, Lord Samuel, followed me in the difference of the cases I was taking. If one takes the case of the min who keeps watch, knowing that his fellow is going to rob, he may or may not know what is going to happen or is likely to happen. He may not have the slightest idea that his fellow will be disturbed. On the other hand, there might be a quite clear agreement that if anyone interrupted, that person was to be knocked on the head or killed. This is the kind of problem that has to be solved. I am sure that it could be done. If my noble friend Lord Conesford and I were shut up for a month, with the right to have a clause of 100 lines, I believe that we could find a clause which would get nearer to justice; but it would be an extremely difficult clause to work.

In framing this Bill we have therefore had to take a clear and comprehensive middle line. As the noble Viscount has himself said, one of the most desirable qualities of the criminal law is that it should be clearly understood; and, drawing the line at the person who has used or attempted to use any force at all, we 390 have said: "Do not take into account the person who has not used force." But that does not mean that he gets off. It means merely that he escapes being hanged. As I have said, the question of the moral culpability, going down the scale, of persons taking different parts in an agreement or conspiracy is one of the most difficult things for anyone to assess—and I have had to consider it. I am saying here that we have taken a middle view, and I am asking those of your Lordships who think that we have drawn the line too far to consider this not only as a problem that stands by itself but as a problem which has to be settled as a whole.

That is not treating your Lordships' House with disrespect. It is asking the House to carry on with the work which it began. It is one of these oddities which give to political life that fragrance of uncertainty which is so high a quality that it was at the instance of the noble Viscount and of the most reverend Primate that my noble friend the Leader of the House and I set our hands to the task of trying to find a middle course. Now, such is politics, when I come and ask your Lordships, even if you are not entirely with me, to accept that as a middle course, it is from the noble Viscount who inspired this course of action that one receives the most pungent and astringent criticism. All my life, in the course of a long friendship with the noble Viscount, which now goes back some forty years, I have had the greatest admiration for him, but I do ask him on this occasion to draw the distinction which I have made; and I ask him also to carry al with the work which this House has done, at his inspiration, in this field.

VISCOUNT SAMUEL

Tae noble and learned Viscount has made a pathetic and personal appeal, and has discussed wide questions of policy; but, carried away by his own argument, he has omitted to answer my question. My question simply related to the meaning of this clause and what would be its effect. It was this. The clause says: it shall be capital murder in the case of any of them who by his own act"— I ask you to note those words— cause the death of and so on. The question my mind is what is meant by the words: by his own act caused the death of… 391 I took the specific case of what was called, I believe, the chalk quarry murder. In that case, a man hatched a plot against his enemy and (whether he himself was present or not, but assuming for the moment that he was not) employed an assassin to take his enemy to an out-of-the-way place and put him to death. Did that man, by his own act, cause the death of his victim? Or was it only the actual assassin? I should say that undoubtedly any court reading the whole of this subsection would say that, taking the matters in causa materiae, or taking all the various categories which the noble and learned Viscount has described, that man was not causing death by his own act. Yet he was the real assassin. Is that not so? It is therefore no answer to say, "Oh well, once you go away from the person who causes death by the use of some weapon, or by strangling with a cord, though that person is to be hanged nobody else concerned is to be hanged", and that a line cannot be drawn. If that is so, then this Bill is even more imperfect than I thought it was.

I would beg the noble and learned Viscount to consider those words again and to tell us what they really mean. Does a person cause the death of another if he promotes that person's death and employs someone else to kill him, whether or not he is present at the time, or does he not? We ought to have an answer to that question, and the argument that this is a compromise Bill, and that people of various views on the whole subject have come together, and that all kinds of difficulties must arise, and that we really ought not to be too particular but should accept the Bill as it stands, cannot be accepted by the House.

THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF SALISBURY)

I did not intend to intervene in this debate—indeed, I cannot put the case for Her Majesty's Government nearly so well as it has already been put by my noble and learned friend the Lord Chancellor. I look at the matter in this way. There must be some point where the line is drawn, and I believe that a perfectly fair point is: who is the person who actually deals the blow? The noble Viscount, Lord Samuel, may not accept that, but to most of us who believe in 392 the retention of some form of capital punishment the object of the whole of this Bill is to create a deterrent. The noble Viscount may take the case of a rich unscrupulous person who bribes a poor unscrupulous person to commit a murder for him. That is the sort of case which he put forward. It may be said that both of them are guilty—the man who bribes and the man who is bribed. But if the man who is bribed were not there to be bribed the murder would not be committed. Someone has to be found who will be bribed and who will commit murder. It is against that man that the deterrent under the Government's Bill is applied. It seems to me to be a perfectly fair basis.

The noble Viscount quoted the case of the Gunpowder Plot. In a case of that kind clearly there were degrees of guilt among all those who knew of the Guy Fawkes plot. Some had greater guilt than others. But if the gunpowder had exploded one man would have exploded the gunpowder. It is against that man that the Government Bill is directed. It is, I agree, in the nature of a compromise between those who would like to hang a great many more people than are hanged now and those who would like to hang nobody at all—and all those are represented in this House to-day. At any rate, that is the definite point: you put your deterrent against the man who definitely uses the weapon, or whatever it may be, to procure the death of someone else. It seems to me a perfectly logical place at which to draw the line and that is where the Government draw it.

LORD CHORLEY

I wish to say a word or two about this matter. I should like to have the noble and learned Viscount's answer to this question. I did not feel that his reply was altogether satisfactory. I think that perhaps he was a little emotionally aroused by Lord Samuel and that his answer was not quite so clear as it would have been if given when he was not so emotionally aroused. I am not, myself, interested in trying to bring more people within the net of capital murder, but I am very much concerned with the law in relation to this matter, and it is, after all, of great importance that it should not be brought into disrepute with the general public. As this matter stands Lord Conesford has made a very powerful case, and the noble 393 and learned Viscount, the Lord Chancellor, in answering, seemed to me probably to be confusing constructive malice with the law on aiding and abetting, which, as he knows—and I am sure he will agree when he thinks it over quietly—are two quite different things. The law about aiding and abetting is not easy, but juries have had to apply it, and on the whole have applied it with reasonable success, for a very long time.

I should not have thought that it was beyond the wit of draftsmen to keep these two matters apart from each other. I think the illustration based on the Gunpowder Plot is a little fanciful in the 20th century. Perhaps I can put a modern case, and if the noble and learned Viscount can answer it to my satisfaction it will go a long way towards convincing me that this matter is all right. This is the sort of thing that can, I believe, arise in practice. Let us suppose that two men take part in burgling a house. One, the older of the two, is a real felon, the other a youngish and not very experienced criminal. They get into the house and they hear a noise. The older man—the ringleader so to speak—presses his revolver into the hand of his companion and says: "Wait here, and if that fellow comes round the corner, you shoot him while I am getting the stuff out of the safe at the other end of the room". In the circumstances, if the householder should come round the corner, the young man would quite probably shoot him dead.

To any ordinary mind, the really responsible person is the older criminal who has brought that murder about. If this sort of case is to go to the general public as a case where the older and really wicked man escapes the capital charge and the other man is sentenced to death, the law in this matter cannot but be brought into contempt. It may be that the noble and learned Viscount will say that the other man is, in fact, guilty of shooting because he has put the revolver into the hand of his companion, and because he was there at the time the shooting occurred. In aiding and abetting, undoubtedly that would be so. He would be the principal under the present law, and clearly would be guilty of murder—and not constructive murder, because constructive murder is something quite different from that case. 394 That is the sort of case with which Lord Conesford, I think, is concerned, and certainly with which I am concerned in relation to the feeling of the general public on this matter.

THE EARL OF SWINTON

May I put in a word to reinforce what Lord Chorley has said in reply to what the noble Marquess the Leader of the House has said? The noble Marquess has told us what in these compromises it is sought to do. As we accept the necessity for the deterrent, we therefore wish to make the offence capital murder. By doing so we apply a deterrent. And in answering the noble Viscount, Lord Samuel, he referred to the case of the chalk quarry murder. That was the case of the rich man who bribed another man to kill. But the deterrent, it is true, may not have applied to the millionaire. The deterrent did apply to the gentleman whom he employed, because he was going to hang if he got caught.

Then take the case of the two men of whom Lord Chorley has spoken—the hardened middle-aged criminal and the younger man. Let us consider the case—for alas! such cases happen, as we know—not merely of a young man who does the shooting but of a boy who is too young to be hanged. Both the hardened criminal and the boy know that if it is the boy who shoots, no one is going to be hanged. What happens in that case? It is Lord Chorley's case, but with the junior partner too young to hang. In that case there certainly is no deterrent upon the boy, because he knows he is not going to hang as he is too young. And there is certainly no deterrent upon the hardened criminal who uses the boy as his agent to fire the shot, because he knows that he will rot be hanged and the boy certainly will not be hanged.

I cannot, for the life of me, see how the argument of the Leader of the House applies in that case. I think it is terribly difficult there to appreciate the attempt the Government have made. On the other hand, I must say that I share the view of the noble Viscount, Lord Samuel, and the noble Lord, Lord Conesford, as to the idea that because the Government have tried to arrive at a compromise which they believe on the whole will meet the views of a great many people that exonerates us in this House from taking 395 our own view and exonerates us in our own individual consciences; because if ever there was a Bill in which the matter of personal conscience arises, it is a Bill like this. There may be an appeal to compromise, but we must, if possible, be convinced that what we are doing is right.

EARL ATTLEE

I was not really quite convinced by the argument of the noble Marquess the Leader of the House with regard to the case of the man who is bribed to do a murder. The noble Marquess says that the line has to be drawn somewhere and that if there is no man ready to do the murder, the murder would not take place. It is equally clear in the case of a man who is hired to do a murder that if there was not a man ready and willing to pay money to have the murder committed, the murder would not take place. I think that in the mind of the general public the man who hires another to commit a murder is probably even more guilty than the man who strikes the blow. Therefore I do not quite see the logic of that line of argument.

THE LORD CHANCELLOR

I am sorry if I did not give a clear explanation when I spoke earlier. I can assure the noble Lord, Lord Chorley, that I am not emotionally disturbed in the sense in which we were discussing emotional disturbance under an earlier clause of the Bill.

LORD CHORLEY

In so far as I am a jury, I acquit the noble and learned Viscount.

THE LORD CHANCELLOR

Would your Lordships do me the honour of looking again at the subsection? It reads: If, in the case of any murder falling within the foregoing subsection, two or more persons are guilty of the murder, it shall be capital murder in the case of any of them… Again, if I may I would give my four categories, first, who by his own act caused the death— secondly, inflicted grievous bodily harm on the person murdered. thirdly, attempted to inflict grievous bodily harm on the person murdered 396 and fourthly, who himself used force on that person in the course or furtherance of an attack on him; These are the limits. They go farther than the person who has actually caused death by shooting a man dead or by putting a knife into a vital part. It is enough if anyone else has done any bodily harm or has tried to do any bodily harm or used force (and I call attention to these words) in the course of furtherance of an attack". I apologise to the noble Viscount, Lord Samuel, for not having dealt with the specific case he mentioned—I am afraid that his second case, the Gunpowder Plot, was so attractive that it misled me from the first. The Australian in question, who had inspired the murder, would