§ 4.9 p.m.
§ Debate on Second Reading resumed.
§ LORD PARKER OF WADDINGTON
My Lords, I fully appreciate that there are many of your Lordships who wish to take part in this debate and therefore I will be brief. I suppose it is probably true that no one, perforce and not by choice, has seen more of the many types of murder and of the circumstances in which they are committed than the holder of my office. I am sure that my noble and learned friend Lord Goddard would agree. For this simple reason: that nearly every murderer, certainly every capital murderer, appeals to the Court of Criminal Appeal, over which the Lord Chief Justice is the almost constant presider. Therefore, I hope you will bear with me if I express my views—and I am afraid rather strong views—on this proposal for the further abolition of the death penalty.
I may say at once that personally I am in favour of further abolition, and I shall vote for the Second Reading of this Bill. But, at the same time, I shall certainly vote against the Bill finally unless on the Committee stage suitable safeguards are inserted. I am in favour of abolition not, I am afraid, on any moral ground, but merely because of the working of the Homicide Act 1957. I confess, looking back eleven years, that if anybody had then said that I should come out as a 481 full-blooded abolitionist, I should have been surprised. But during that time, and particularly during the last seven years when I have held my present office, I have seen the complete absurdities that are produced, and have been completely disgusted at the result. I will not weary your Lordships with too many of the difficulties, but I will point out one or two.
I suppose that poisoning is the most cold-blooded and deliberate of murders. Yet you do not hang for it. You can poison your wife over a number of months or years, and the most you can get is life imprisonment. But should you marry again, and do it a second time, then you can hang. We all know that the taking of a note or a coin may make all the difference between capital murder and murder. The defence of diminished responsibility has a far and away better chance of succeeding the more brutal the murder; and if it be capital murder then that defence, if it succeeds, will reduce it to manslaughter, and there will be life imprisonment.
I think the complete absurdity is produced by the illustration of the three youths who went out to rob their victim, and, if necessary, to do him grievous bodily harm. One of the youths was killed. He was one month under 18, and could not have been hanged. The second was 23: he had planned the whole robbery, but because he only acted as the look-out man and did not lay a hand on the victim, he could not hang. The third man did, in fact, use some force on the victim, because at one period he pulled him down, and as he was one month over 18 he was liable to the death penalty. I am sure that I have only to mention an illustration of that kind to your Lordships to make you realise how completely disgusted the Judges and the Chief Justice of the day are at the working of the Act. I suppose that Judges, as a body, are looked upon as very reactionary. For my part, I do not think that is true to-day. They sit in court; they see where the shoe pinches; they see where justice does not appear to be done, and when it is not done. I think I can say that all the Judges are quite disgusted at the results produced by the Homicide Act.
If I have taken your Lordships this far with me, what can be done? I suppose there are three alternatives. The first is 482 to seek to amend the Homicide Act 1957. Happily—and I mean happily—I have heard very little suggestion of that. I do not think you can legislate in matters of this sort without producing anomalies. It is surely inherent in trying to divide murders into separate classes that you will get complete absurdities. I venture to think, and indeed hope, that nobody will suggest tinkering with the Homicide Act 1957.
The second alternative, which some, I suppose, would advocate, is to go back to the position before the 1957 Act. I agree that there is something to be said for that suggestion, although personally I do believe that in this world one can ever go back. One must go forward, and the real question is: forward under what conditions and on what terms? But if one did go back, one would certainly, I think, have to consider the whole question of reprieves. I am sure that no one will think that anything I say is intended as a criticism of any Home Secretary in the past: they have all done a wonderful job with the greatest care, and with complete fairness. But I feel certain that each one of them would be the first to say that it was the most unenviable task he had ever had, and I, for one, do not think it is a task which ought to be put on any one being.
Looking to the future, who can say what will move the considerations of the Home Secretary of the day? I do not suggest that it would happen here, but there was a time in New Zealand, before the death penalty was abolished there, when the sentence for murder depended upon which Government was in power when the murder was committed: if it was the one you were hanged; if it was the other you went to prison; and there was just one scat which divided the rival Parties. I feel that one must go forward and adopt the third alternative. New Zealand, I am glad to say, studied our Homicide Act. They spent months trying to devise a draft which would avoid the worst difficulties which we had experienced. They then decided that it was quite impossible, and they firmly abolished the death penalty.
The third alternative is to go forward and to abolish. This is a matter which gives rise to strong feelings, and feelings honestly held on both sides. I suppose the case for the retentionist, as one would 483 expect, has been put as high as it could be put by the noble and learned Viscount, Lord Dilhorne. The retentionists will say: "To-day is not the opportune moment to further abolish the death penalty. Look at the rise in crime, and the rise in serious crime". I fully appreciate that position. At the same time, I think it can be said that no time is really opportune. And one must bear in mind that this curious crime of murder is quite different from other crimes. The volume of crimes rises and falls, but, so far as I know, the number of murders in this country remains extraordinarily constant; and, I would add, compared with other countries, and even those where they have abolished the death penalty, they are on a very small scale.
The other argument put forward is the question of hanging being a unique deterrent. I, for one, am satisfied that in a small number of cases it is a deterrent. It is certainly not in the sexual crimes or crimes resulting from grave emotional disturbance; but I believe that there must be cases—nobody can say how many—where the death penalty has been a deterrent. However, we must face the fact that the potency of that deterrent is gravely weakened if out of 190 murderers some 3 are hanged. Then the whole principle that the greatest deterrent is the certainty of punishment goes by the board. But no doubt deterrent it still remains, to some small extent.
I do not propose to enter into the moral issues. Least of all do I want to compare what has happened in other countries. I always find it very difficult to get any solid argument that can be based on either figures or what has happened in other countries. I would base the case for abolition firmly on the ground that this present Act does not work; that we have got ourselves into a mess, and we must either go back or go forward—and I think we should all go forward. Having said that, may I say most emphatically that I think something more than life imprisonment—life imprisonment as it is now understood—must be introduced as a suitable deterrent? I think there may be two views among the Queen's Bench Judges (although they are nearly always unanimous) on the question of abolition. But I am certain that almost to a man they are behind me when I say that if there is to 484 be abolition, then something must be inserted at the Committee stage which will make life imprisonment more of a deterrent.
It has always been said, of course, that a good law is one that commands the support and the respect of the vast majority of people. I myself am quite satisfied that this Bill in its present naked form does not command the support of the vast majority of people, though I think with suitable Amendments it could be made to do so. The real trouble, of course, is that life imprisonment is now considered, not necessarily by Members of your Lordships' House, but by the public generally, to mean eight, nine, or ten years' imprisonment. There is no doubt, I think, that one can assert with confidence that a sentence of fifteen years or more is looked upon by the public as a far more severe penalty. A very good illustration of that is the reaction to the sentences on the train robbers and, perhaps even more so, the reaction to certain sentences on spies where in fact life imprisonment was not an available sentence. I think that something must be done, either by allowing the Judges to impose as an alternative to life imprisonment a long sentence, or in some other way provide a substituted deterrent.
However, even more vital, what one has to bear in mind in considering this so-called eight, nine or ten year average is that the murderers who are now going to be imprisoned for life, if this Bill stands in that form, will include the really dangerous, callous murderers, robbers who do not hesitate to use firearms, the professional criminal who is fighting a war against society and does not hesitate to kill in the course of his profession. Surely, if eight, nine or ten years is the right sentence in the case of an emotionally disturbed man who may, in particular circumstances never likely to recur again, commit a murder, then surely the dangerous professional criminal deserves far more than that nine years average. So, my Lords, I would say that on the Committee stage something should be done in that respect.
May I just say this? The argument, as I understand it, always advanced for allowing murderers out at eight, nine or ten years, is that that is about the limit of endurance of any person imprisoned. That is what is always said. It is said 485 that if they are kept in for longer than that they rot. Believe me, nobody desires—I certainly do not—to keep prisoners imprisoned under those conditions; and if that is the position, the sooner those conditions are altered the better. They do not exist in other countries. I was only too interested to hear the noble Baroness quote a case from America of a prisoner who had spent 33 years in prison (I think I am right) who helped in the prison, who kept up his self-respect, and who became a good citizen when he emerged. How does that compare with the man who is said to rot after 10 years in prison in this country? It really is unforgivable if, in these days of full employment, it is not possible to put prisoners to work, to enable them to earn good wages, to pay for their own keep, and to support their families. It really is a poor state of affairs.
Finally, I think the public would be happier—indeed, I think they would be content—with further abolition of the death penalty if something could be done, as I suggest it should, at the Committee stage, to make life imprisonment more like "life", but under conditions where people would not rot. Certainly the police must be consulted and considered in this matter. But I have every reason to believe that if the police felt that the real thug, the really dangerous man, was going to be kept imprisoned, not for eight or nine years, but for 20 or 30 years, they would, in turn, be reasonably happy. After all, the many police I have talked to do not altogether like being in a privileged position. Rape an old lady, batter her to death with an axe, and you go to prison. But use a knife on a policeman in a scuffle, and you hang. I think that the police would be reasonably happy if something were done to make "life" more like life.
I have detained your Lordships all too long. I shall certainly vote in favour of the Second Reading, but I reserve the right to vote wholly against the Bill unless suitable safeguards are put in at the Committee stage.
§ 4.28 p.m.
§ LORD AILWYN
My Lords, I find it a great honour to follow my noble and learned friend the Lord Chief Justice. I have always listened to him, as all 486 your Lordships do, with the greatest attention. I am a little sad, nevertheless, having to follow him, because I rise to oppose the Second Reading of this Bill. Somewhere, not long ago, I read this:History, the progress of the human race, is not an exact science; progress is not suspectible of proof like a proposition in Euclid.Your Lordships may think those words to be not entirely inappropriate to the subject of our debate this afternoon. This is no statistical problem, to be weighed logically or arithmetically, to be solved finally, as in Euclid, by a dogmatic Q.E.D. Moreover, it is not a matter fundamentally affecting the fate of individuals. It is essentially a matter governing the well-being, safety and protection of the community.
Having said that, may I, with very great respect, pay a tribute to the passionate sincerity and near-religious fervour of the many abolitionists among noble Lords and noble Ladies opposite? know well the intense dedication and intensity of purpose which they bring to bear in their determination at any cost to bring about this abolition of the death penalty. Nevertheless, my Lords, I believe that to be utterly wrong, and I want to try and tell your Lordships why. I can never get away from the feeling that the noble and learned Lord on the Woolsack, in the days before he came here to adorn your Lordships' House, when, with his co-abolitionists of the National Campaign for the Abolition of Capital Punishment, he was issuing and distributing those propagandist pamphlets and other literature—and, as one would expect, how brilliantly they were written !—had his sights so firmly aligned on the fate of the malefactor and on saving him from the gallows, that he never did adequate justice to the matter of the security of the public at large.
The abolitionists say, "Do not hang the murderer; put him in prison for a term of years, and then release him". The implementation of this procedure inevitably one day gives him the opportunity of repeating his crime. That, baldly and crudely put, is the case of the abolitionists. Should he be given that opportunity? The abolitionists support their case by quoting from endless tables of statistics, from reports from foreign countries, purporting to show that a murderer seldom, if ever, repeats his 487 crime. They refer to quotations from the Bible, very often replying to quotations which have been given by retentionists on their part, insisting that such texts as "an eye for an eye, and a tooth for a tooth" and other like passages of Mosaic Law are obsolete, or misunderstood and are not to be taken seriously. So be it! I wonder, however, whether they pause to consider that the Ten Commandments also stem from the Old Testament. Would any abolitionist be rash enough to testify that they, too, are obsolete and of no account? Of course he would not.
My Lords, I do not pray in aid Holy Writ to support the case for the retentionists, but, just to be inconsistent, I will give one example from the New Testament. This is a well-known passage which I seldom hear quoted and which has always seemed to me to transcend all other Bible passages in this connection, and, moreover, to be incapable of misunderstanding. In three out of the four Gospels it is recorded that Our Lord himself, in pronouncing his detestation of those who offended little children, used the wordsIt were better for him that a millstone were hanged about his neck and that he be cast into the depths of the sea".Will any abolitionist dare to refute such unequivocal words from the lips of the Founder of the Christian religion? The Man without sin, the Man destined to become the victim of the greatest single crime in the history of the world? Remembering that crimes—bestial crimes—against young children are among the most prevalent at the present time, your Lordships may think that that quotation from three separate contemporary witnesses is at least significant, and might be taken as a fairly strong justification of the views of retentionists.
As I have said before in this House, on more than one occasion, in my view a killer should be put to death; that is to say, that any man or woman convicted of murder (and let me say, in parenthesis, that of course the two categories of capital and non-capital murders should be merged forthwith, for the anomalies of this eight-year-old compromise in the Homicide Act are too fantastic to be tolerated any longer); any man or woman found guilty of murder should be hanged.
488 Mercy killings, and outstanding compassionate circumstances, should, of course, be subject to special treatment and consideration. I have never deviated from this opinion. Moreover, I am not only a retentionist; I am an extensionist. Nothing will make me believe that the perpetrators of some of the fiendish crimes of violence that we hear about almost daily should be permitted to continue to consort with the world at large. The unspeakable crimes committed against the old; the abominable iniquities committed against the young; the vile outrages against the weak and the feeble—why should such infamy be allowed to flourish among the normal and peaceable majority of mankind?
Do abolitionists ever stop to consider the number of lives than can be broken and utterly destroyed through the murder of one man? The havoc and misery caused to the victim's family and dependents and close relations and friends? Why should depraved creatures—I will not mention names: like those who were hanged years ago—be kept alive, imprisoned at vast expense to the public purse, spreading corruption with their baleful influence among their close companions in custody, with the opportunity of hatching further diabolical plots against their fellow men? Is this the right way to overcome the crime wave that engulfs the country at the present time? Is it not more sensible to eliminate the forces of evil and pollution that continue to defile the body politic to-day?
I ask abolitionists to shed their mantle of compassion for the criminal and to re-spread that cloak where it is really needed—on the shoulders of the sorrowing families of the victims of violence; on the shoulders of the anxious and frightened parents of young children who are exposed td such dire risks and dangers at the present time; on the shoulders of the elderly and infirm who live in fear of aggression and violence, and sleep uneasily in their beds at night. They should surely be the recipients of the pity and compassion which abolitionists appear so frequently and so generously to extend to the ruthless, relentless, remorseless criminals about whom I have been speaking.
On the subject of deterrents, abolitionists maintain that the existence of capital punishment is no deterrent. They state 489 this with considerable assurance, and they quote statistics to prove their case. I suggest to your Lordships that those statistics prove nothing of the sort. And why? First, because it is not possible for us to know how many murders are prevented, murders which might have been committed if it were not for this threat of the death penalty hanging over the would-be murderer's head. Secondly, while the general incidence of crime increases steadily, the one crime, murder, punishable by death, remains static. Is that not a fairly strong indication of the deterrent value of capital punishment? Thirdly, might it not be even more of a deterrent than it is if it were not for the fact that juries to-day are notoriously unwilling to bring in a verdict of guilty of murder; and even if they do convict, the murderer can almost bank on a reprieve if the death sentence is passed?
But, I do not base my argument by any means solely on the score of the death penalty being a deterrent, deterrent though I firmly believe it to be, but rather on the score of retributive justice and the greatest possible protection for the community at large. In this connection it was interesting to read only yesterday in the Sunday Telegraph these few words:Every criminal sentence must have three purposes—retribution, protection of the public and reform.I commend to your Lordships' attention those priorities.
One final word. The great majority of your Lordships, I take it, believe in an after-life, and that, broadly speaking, in our next existence we shall be given the type of task commensurate with what we have been proved worthy, or unworthy, of in this present mortal life. If indeed life is immortal and our present existence is no more than an anteroom to eternal life, as I believe it to be, then why this horror of death? If death, indeed, is no more than a movement from one room to another, and if in the new room we are able to start again with a clean sheet, is it not at least arguable that the hardened criminal and the assassin, instead of eking out a pretty awful form of existence incarcerated for years in prison, shall be projected into the next world, there to start afresh? There is no cruelty in death, the 490 instantaneous death of execution. Cruelty resides in the barbarities inflicted every day by humans upon each other, by man upon man, and, alas! by man upon the animal world. And I, for one, all through the years, have never doubted what my own decision would be if faced with the choice of passing on to another world or a long, lingering life in captivity. Let there be no mistake: abolitionists who demand imprisonment in place of execution are, in fact, recommending the substitution of a slow death for a quick one.
These are not the vapourings and outpourings of a crusty crotchety old gentleman who has long outlived the Psalmist's alloted span of human life. They are considered opinions which have been maturing over the years. I implore your Lordships to refuse a Second Reading to this Bill. I believe it to be fraught with the gravest danger to the community at large. Your Lordships' House is fully justified in rejecting a Bill for which there was no popular or electoral mandate, in the same way that your Lordships threw out a similar Bill nine years ago. I cannot believe that such an unwise and ill-judged step as the Bill now before your Lordships will ever be taken by the British Parliament and people.
§ 4.44 p.m.
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY of STATE, HOME OFFICE (LORD STONHAM)
My Lords, it may be convenient if I intervene at this stage to give an indication of the view taken by the Government on this Bill. It is a Private Member's Bill. There is no Government Whip, and at all stages when decisions are taken, so far as we are concerned, they will be left to a free vote of the House. But the Government support this Bill.
My own views are sufficiently well known. I think my magnum of compassion is perhaps smaller than that of the noble Lord, Lord Ailwyn; nevertheless, I am an utterly convinced and life-long abolitionist. But to-day, as the only Home Office Minister in your Lordships' House, I shall express the views of my right honourable friend the Home Secretary, the Minister responsible for the police and prison services, and on whom under the present law rests the awful responsibility of deciding whether another human being shall live or die. It is a 491 view based on experience and responsibility to which, I respectfully submit, your Lordships should give full weight.
I shall direct all my remarks to the Question before the House, That this Bill be read a second time: that is, that we endorse the principle that hanging for murder should be abolished. My noble friend Lady Wootton of Abinger, in her cogent and moving speech, has reminded your Lordships that when the Homicide Act was passed eight years ago Parliament, in effect, endorsed the principle that the death penalty for murder should be abolished for all murders except for certain categories dealt with in that Act. My first point is that the principle of abolition is already accepted and has been operated for eight years in all except a tiny minority of murders.
On one thing I believe we are all agreed, abolitionists and retentionists alike: that the taking of a human life is the ultimate crime which can be neither excused nor condoned, and, according to individual circumstances, it must invite the severest punishment. We do not need to decide that killing is bestial and horrible. It is. What we have to decide is whether it should be answered by another killing; whether outrageous crime should be met by an equally outrageous sentence. One hundred and fifty years ago the death penalty could be exacted for more than 220 offences, and throughout the years reformers who wished to abolish killing for these crimes were met by the argument, which we have twice heard stated to-day, on which the noble and learned Viscount, Lord Dilhorne, based his whole case (he informed me just now that he had to leave for a brief period unavoidably), and on which the noble Lord, Lord Ailwyn, based his speech, the one argument that has gone on for 150 years, namely, the unique quality of capital punishment as a deterrent.
My Lords, is this true? In recent years crime in general has unhappily very greatly increased, but the number of murders each year has remained roughly the same. It could be argued, of course, that the existence of the death penalty is the reason why the murder figures have not increased as have those for other crimes, and certainly I at once acknowledge it: the deterrent argument is the main one that abolitionists must answer.
492 The Home Secretary has the prime duty of protecting the public, and, whatever my personal views, if there were evidence that the death penalty was a uniquely effective deterrent, if it could be conclusively demonstrated that it saved innocent lives, I could not in conscience come before you as a Home Office Minister and ask you to abolish it. There is no such evidence, and the evidence we have suggests that the death penalty makes no difference.
The Royal Commission on Capital Punishment, which closely considered this question and the views of the police and others as to the deterrent value of the death penalty on professional criminals, concluded that the statistics afforded no reliable evidence one way or the other. Since then, under the Homicide Act, we have had our first sustained experience in this country of the effect of abolishing the death penalty for non-capital murders. If hanging is a unique deterrent, one would surely expect the proportion of non-capital murders to have risen since the 1957 Act. Why do the retentionists completely ignore the evidence, not only in other countries but in this country, since 1957?
§ LORD DERWENT
My Lords, may I interrupt the noble Lord? Would he go further into that argument? Was not the reason that it was not considered a deterrent in non-capital cases that capital punishment was done away with in those cases?
§ LORD STONHAM
My Lords, if the noble Lord will allow me, of course I shall deal fully with that. I am certainly not going to leave the argument unfinished, because I think the arguments are conclusive, and I hope to demonstrate that fact. But as both the Home Secretary and his predecessor pointed out in the Second Reading debate in another place, the proportions of capital and non-capital murders have remained remarkably constant. In the period from January 1, 1952, to March 20, 1957, when the Homicide Act came into force, the annual average percentage of murders that would have been non-capital if the Act had then been in force was 85.6; the corresponding percentage for the period from March 21, 1957, up to the end of last year is 86.5.
§ LORD STONHAM
As I say, Lord Dilhorne chooses to ignore this fact, and apparently Lord Derwent does, too, because he said quietly, "So what?" The answer is that it undermines the whole argument of the retentionist. That is "so what".
My Lords, comparisons over a period of twelve years are a reasonable basis for conclusions. The only conclusion we can come to is that abolition of the death penalty has not proved an encouragement to murder. In the circumstances, surely it is for retentionists to prove that the ending by the State of a human life will deter others from committing murder—and we have not heard one syllable of evidence yet to that effect. It has been said that the death penalty should be retained because some sections of the public—and particularly the police and prison officers—feel that it is a deterrent. The Home Secretary is naturally most concerned that police and prison staffs, for whom he has a special responsibility, should not feel that this Bill is removing a real protection, and he certainly pays full regard to their views. He and I have met a deputation from the Police Federation and he also received representatives of the Prison Officers' Association. I need no one to help me bear witness to the dignified restraint with which they presented their case. But while members of both these bodies hold a variety of views on the death penalty, they naturally have a very proper occupational concern about the provisions of this Bill.
If there was any real evidence that it would make their lot more dangerous I would certainly hesitate before recommending your Lordships to support the Motion before the House. But there is none. On the contrary. My noble friend Lady Wootton of Abinger has mentioned an investigation by Professor Sellin. I should like to mention another of his findings. He made a comparison between cities in the United States of America that abolished the death penalty and those that retained it. This revealed that in six abolitionist States during the 35-year period, 1919 to 1954, there were 1.2 fatal attacks on policemen per 100,000 of the population. But in eleven death-penalty States the police were at greater risk because the rate was 1.3. From this it would appear that, if anything, abolition 494 decreases, rather than increases, the risk of fatal assaults on police officers.
I have had a good deal to do with prison officers, both before and since I became a member of the Government, and am convinced that of far greater importance to them than the retention of a barbarous penalty are our plans for the development of their role as social workers, concerned with the rehabilitation of the prisoner, rather than as mere turnkeys. We feel that the alleged possible effects on the prison service of abolishing the death penalty should be weighed against the known consequences of the continuance of all the macabre apparatus of hanging: the rope, the drop and the condemned cell; the sickening, barbarous ritual inside the prison; the morbid groups that gather outside. Surely the aim of our prisons must be to attempt to redeem the life of the offender however heinous his crime.
At the heart of the argument is the belief that there are special categories of murder on which the death penalty has a particularly deterrent impact. But surely the experience of the Homicide Act shows that the introduction of different categories has produced indefensible anomalies offensive to our sense of justice. If your Lordships were in any doubt about that before, I think the remarks of the noble Lord, Lord Parker of Waddington, the Lord Chief Justice—and I quote him as declaring thatJudges are completely disgusted with the working of the 1957 Act"—would dispel that doubt. I do not think we could have any more authentic evidence than that.
The 1957 Parliament, with deterrence dominating its collective mind, preserved capital punishment for categories of murders which struck most directly at the preservation of law and order. With what result? Under that Act, and it is the law with which we shall remain saddled if you reject this Bill, a murder in the course of theft, however unpremeditated, attracts the death penalty, whereas the most callous and premeditated murder for revenge does not—unless, of course, the murderer shoots his victim instead of poisoning him. Whatever views may be held by the public on the death penalty, they do not support distinctions such as this. Again, the public do not understand why murder by shooting—arising, 495 say, from domestic stress or jealousy—is capital, whereas the most revolting sexual murder is not.
I pay full regard to all that is said about the professional criminal and all that has been urged in the light of certain recent events, but on any objective assessment of the evidence the conclusion must be that the deterrent effect of capital punishment is not proved, and that any attempt to retain it would create or perpetuate wholly anomalous and unacceptable distinctions between types of murder.
My noble friend Lady Wootton of Abinger has said that the present law does not result in the hanging only of professional criminals. She mentioned the cases of men whom we have hanged who probably ought not to have been killed, as a means to frighten off those who should. Would any noble Lord, having regard to the hairline divisions between life and death in the 1957 Act, be prepared to say that it was absolutely certain, beyond all reasonable doubt, that those men were guilty not only of killing but also of capital murder?
I remember the case of an old ne'er-do-well who killed another elderly down-and-out living in the same house. He was convicted of capital murder and condemned to death. It was one of those sordid little cases which barely rate a paragraph in the newspapers, but as the man was my constituent I studied the evidence. This led me to believe that he was almost certainly guilty of killing but that it was doubtful whether he was guilty of the stealing which attracted the death sentence. I went to see the Home Secretary of the day who recommended a reprieve. The man immediately wrote to both of us, giving his account of the facts, which confirmed what I had surmised. What had happened was that the man who was killed, the victim, had savagely kicked the killer's cat. These two old men fought and one died. It is in such ways that murders happen and it is in a lottery of haphazard rules, under the present law, that the murderer's life depends.
Those of you who have read Tony Parker's book The Plough Boy will be familiar with the story of Michael Davies. He was one of six youths concerned in an affray in which a boy was killed. Five 496 of them received short terms of imprisonment, but Davies was condemned to death. On two separate occasions they moved him out of the condemned cell to make room for other men to be hanged and. then moved him back again. The door to the execution shed was the first thing he saw when he opened his eyes every morning. That boy spent 92 days in the condemned cell watching that door before he was reprieved. I hope we can agree that torture of that kind shall never again be inflicted in Britain. And there is only one way to make sure. There are others of course who were less fortunate. A few weeks ago I had to inform your Lordships that the Home Secretary could not recommend the grant of a posthumous free pardon to Timothy Evans. The principal witnesses were dead and it was not possible to say with certainty, after so many years, whether Evans was guilty or innocent. Yet a number of responsible people, including the late Lord Birkett, became convinced that, had all the information we now have been available at his trial, Evans would not have been convicted. Yet at the time his guilt appeared as manifest as it could possibly be. It was after he was dead, and we could do nothing, that the inconceivable happened. The only way to be sure it does not happen again is to abolish the death penalty.
This Bill provides that life imprisonment shall be the penalty for murder. It is obvious from the remarks of the noble and learned Lord, Lord Parker of Waddington, that it is necessary for me to say what this will mean in practice. As I pointed out in an intervention in the speech of the noble and learned Viscount, Lord Dilhorne, a life sentence ends only with the death of the offender, because the prisoner remains subject throughout his life to recall to prison by the Home Secretary. Lord Dilhorne appeared to be under the impression that, in terms of years served, nine years is the present average.
§ LORD DERWENT
My Lords, I am sorry to interrupt the noble Lord, but in the absence of the noble and learned Viscount, he must not be misquoted.
§ LORD STONHAM
My Lords, I took down the noble and learned Viscount's words on this. I knew that he would be unavoidably absent, but I shall, of course, need to comment on his speech.
§ LORD STONHAM
I shall look at Hansard to-morrow, but I took down Lord Dilhorne's words, and it must be within the recollection of the House that I am certainly speaking in the sense of his words. It is not the case that nine years is the present average. Nine years is the period served in the past, in an average case, by prisoners who were sentenced to death before the Homicide Act and had their sentences commuted. "Average case" in this context means one in which there were mitigating features, but no compassionate reasons for early release, or, on the other hand, no special circumstances, such as mental instability, requiring longer detention. My right honourable and learned friend has made it clear that, in the absence of mitigating circumstances, the period of detention may well be substantially longer than nine years for persons sentenced under the Homicide Act. Since 1955, 18 prisoners serving life sentences were released after anything between 18 and 20 years, one having been in prison actually 20 years. Allowing for remission, ten years in prison is the equivalent of a 15 years ordinary sentence, and 20 years imprisonment is the equivalent of a 30 years sentence. That is a point which has to be considered when one has regard to the observations of the Lord Chief Justice.
If this Bill becomes law we shall be dealing with a third class of murderers, those whose offence is at present capital and who would until now have been executed. The Home Secretary has explained that some life prisoners may have to be kept in prison for a very long time, perhaps even for the rest of their lives. He has made it clear that he would always regard the protection of the public as the paramount consideration in deciding whether a particular prisoner could safely be released. There is no question about that. He also proposes to follow the practice, which he has already begun, of asking the trial Judge to prepare a memorandum, after he has tried a murderer, setting out any considerations which he thinks should be borne in mind when the times comes, years later, to reconsider the question of the murderer's further detention.
498 Again this has some bearing on the remarks made by the noble and learned Lord, Lord Parker of Waddington, who asked whether the conditions in our prisons to-day are suitable for the detention of murderers for very long periods. There are two points. First, do the prisons provide sufficiently secure conditions in which dangerous and violent men can be detained? As your Lordships will be aware, we are at this moment intensively studying the needs of prison security. But I would remind noble Lords that in the first ten years after this Bill is passed there would be only between thirty and forty additional murderers who would have to be kept in prison—additional to to-days level. The Home Office will be able to provide for the detention of this very small number, either in the special units in existing prisons or in the proposed new establishment at Albany which I mentioned to your Lordships last Wednesday. This is the order of the change based on our experience over the last eight years.
The second question is, can we prevent, so far as possible, the mental or physical deterioration of the prisoner in consequence of long confinement? In 1953 the Royal Commission decided that prison conditions had improved and that the risk of deterioration was not such that we should shrink from contemplating an occasional prisoner serving a term of fifteen or twenty years. Since then there has been further improvement, though still not nearly as much as we should like. There is now a great variety of types of prison regime, and we have tinder consideration all those suggestions which were made by the noble Lord, Lord Parker of Waddington, and others. Last Wednesday my noble Leader gave some indication of our plans for the future. Once again I would remind your Lordships that if you support the Motion that this Bill be read a second time you will be adding to the prison population only the three or four persons a year who might otherwise be condemned to death.
My Lords, it comes down to this. There is no conclusive evidence that the execution of three or four offenders a year has any deterrent effect. If the death penalty is not a deterrent, there cannot possibly be any justification for 499 retaining it. It cannot be justified, as the noble Lord, Lord Ailwyn, asserted, on the principle of a life for a life, unless there is clear evidence that it has some effect in preventing murders. Nothing less than such evidence would justify the State in taking human life, and there is no such evidence. Therefore, there are no valid grounds for opposing the Second Reading of this Bill. I was a Member of another place in 1948 and in 1956 when, on a free vote, it was decided to end capital punishment. On both occasions your Lordships reversed the decision. In 1948 it was argued that the House of Lords was entitled to do so, to allow time for public opinion to consider the issues. Eight years passed—time enough, one would have thought, for such consideration; but again in 1956 precisely the same argument was used. To-day or to-morrow it is in your Lordships' power to reject for a third time a Commons' decision to abolish the death penalty. But surely, after nine more years of public and Parliamentary controversy, you cannot do so on the ground that further delay is necessary to enable the public to consider the matter.
Moreover, there are important differences between the situation in 1956 and that existing to-day. In 1956 the Government strongly advised the House to reject the Bill: to-day the Government support it. In 1956 the majority in another place was narrow; to-day on both Second and Third Readings it was decisive. In 1956 the allegation that this House on some issues could be dominated by the forces of reaction may have been true; to-day it is not. Therefore it is with confidence, both in my official capacity as a member of the Government, and personally from deep conviction, that I ask your Lordships to give this Bill a Second Reading and to do so without a Division. Let us go one better than the Commons for once. Legal killing has been "an unconscionable time adying." It is a horrible, brutal, futile, dirty thing. Let us make an end of it.
§ THE MARQUESS OF SALISBURY
My Lords, I wonder whether I might ask the noble Lord a question. In his closing sentences, as I understand him, both in his official position as a member of the Government and from a feeling of deep personal conviction, he asks the House 500 to give a Second Reading to this Bill. Does that mean that this is the official policy of the Labour Government?
§ LORD STONHAM
My Lords, I made the position perfectly clear. My first sentence was that the Government support this Bill. I have said it twice, and I should have thought that the happenings in another place over the past weeks made it quite clear. I am sorry if the noble Marquess was not here when I began my speech, but I also said that this is a Private Member's Bill and any decisions that are taken on it will be, so far as we are concerned, on a completely free vote.
§ THE MARQUESS OF SALISBURY
My Lords, the noble Lord puts us in some difficulty. He says that this is a Private Member's Bill, which means that it is not the official policy of the Government, and then he says that it is the official policy of the Government.
§ THE LORD PRIVY SEAL (THE EARL OF LONGFORD)
My Lords, perhaps I may make one point here. I was looking up only this morning the debate of 1956, which was also a debate on a Private Member's Bill, and the noble Marquess will recall that he and the noble and learned Earl, Lord Kilmuir, made it perfectly plain that it was a free vote hut that the Government of the day had a particular view.
§ THE MARQUESS OF SALISBURY
My Lords, I only wanted clarification on this point, which I believe to be important.
§ 5.14 p.m.
§ LORD REAY
My Lords, it has been my privilege to attend a considerable number of debates in your Lordships' House, and I have had an opportunity to observe that particular value and welcome which attaches to the speech of a noble Lord who is deeply experienced in his subject. Being myself, however, of an age that has less to claim in the way of experience, I can only offer your Lordships some arguments, derived from factual evidence on an important subject, for your Lordships to accept or reject according to their validity.
It does not seem to me proper for a person who argues the case of abolition of capital punishment from evidence to do so without conceding that he would 501 freely reconsider his conclusions should evidence later be discovered that argued against his case, or if subsequent history were to accumulate examples which reduced the validity of those that had influenced his conclusions. In the meantime, however, the proper procedure in this, as in all cases where change is in question, must be to weigh the disadvantages of the institution that exists against the evidence for the dangers of change. The death sentence is a bad punishment. Various principles have been adduced to justify or recommend it, but none of these principles has begun to prove applicable to penal policy in any of the other respects where they would have equal claim. It has proved impossible to organise punishment according to the principle of retaliation, or we should wound those who wounded; or according to a principle of moral culpability, or we should treat equally those who murder and those who attempt to murder; or according to the atrocity of the crime and its consequences—some sort of principle of heinousness—or we should not over a hundred years ago have ceased to hang the insane.
The infringement of these principles has serious practical consequences, as experience under the 1957 Homicide Act has once again shown. In the 1957 Act, murders were expressly not classified according to culpability or heinousness, with the expected result that some non-capital murders have looked very much more odious than others for which men have been hanged. But judged even by its own rationale, which was to make subject to the death penalty those murders which were most likely to be inimical to public order, it has surely not been satisfactory. There was no question or the death penalty for a man who killed a woman with a knife in 1960, when she had told him to get out of her way in the street, or for the perpetrators of the highly brutal and lawless Munally murder. Yet we have seen others hanged who were by no means professional criminals, and some who committed essentially domestic murders and were hanged for the accident of their choice of weapon.
Difficulties of definition and classification belong to this subject in a way that they do to no other. Partly because a penalty so absolute, so categorically un- 502 related to any other, cannot correspond to real absolutes of guilt; partly because, to protect juries and judges from the responsibility of themselves appointing death as a penalty, it is necessary, as it is in no other important case, to describe the penalty for the crime before the criminal is even known; partly because, as we wish to exclude, wholly or partially, from responsibility for their crime certain insane or mentally ill people, we have the hopeless task of trying to define where the line should be drawn between those who are morally responsible and those who are not. The result is a great arbitrariness, offensive alike to sentiment and to logic, and, I submit, responsible for an exceedingly ragged history of justice in our laws of murder.
There are two additional factors that I should like briefly to mention. The irrevocability of the death sentence, next to its barbarousness, is possibly its most admitted defect. But irrevocability represents more than a presumption that it is right to risk a proportion of innocent men for the sake of the other innocent lives that are expected to be saved—but are never evidently saved—by the existence of this deterrent. It also underwrites that unfortunate belief that our institutions can be infallible, because it creates a need for this belief. It creates, also, a Governmental interest not to pursue the truth in the nastiest of all cases, that in which there is doubt of the guilt of an executed man. And, my Lords, if there have been instances where wholly innocent men have been hanged, how much more often must there have been cases where subsequent evidence should have demanded the modification of the extreme penalty? The other point is the object of reform in punishment, to which the noble Lord, Lord Ailwyn, has already referred. It is a boasted tenet of the Christian religion that no man should be thought to be irredeemable. But each time we execute a man we abandon that ambition to reform, and in so far as we abandon it in each individual case we weaken the determination for it in all cases.
As a punishment, the death penalty stands heavily indicted. But it is no part of my contention that any list of the disadvantages of capital punishment could by itself constitute a sufficient argument for its abolition. Far from it.
503 I repeat that these defects must be weighed against the danger of removing it. Let us look at the evidence for this danger. What is this evidence? If the states of America are grouped carefully into culture areas (and the noble Baroness, Lady Wootton of Abinger, has referred to a study which Professor Sellin has made of the subject), and if comparisons are made within the area between death penalty and abolitionist States, it is found again and again, in group after group, that the trends of rise and decline in the incidence of homicide over the decades are the same from one State to another: between abolitionist Maine and New Hampshire and Vermont; between abolitionist Michigan and Indiana and Ohio; between abolitionist Rhode Island and Massachusetts and Connecticut; between abolitionist Minnesota, abolitionist Wisconsin and Iowa; between abolitionist North Dakota and Nebraska and South the same: a rise in the homicide rate after the First World War, a high rate in the late 1920's, early 1930's, and a steady decline thereafter. Incidentally, the similarity between the rates of Massachusetts and neighbouring abolitionist Rhode Island is amazing: both high at the same figure in the early 1920's, then steeply falling together to less than half their original rate by 1940.
But examine the States in another way. Certain other States had abolition for some years before they restored the death penalty. Iowa is a striking example of the general pattern in these cases. Capital punishment was abolished there in 1872 and reintroduced in 1878. The annual average, by six-year periods, for murder convictions rose after abolition from 2.6 to 8.8; after reintroduction, it rose again to 13.1. But this it typical of those cases. Missouri, Washington, Oregon and Tennessee all abolished capital punishment in the years before the end of the First World War. In all cases the homicide rate rose after abolition and continued to rise after capital punishment was reintroduced. Perhaps these examples are too ancient. Well, then, take the case of Delaware. Delaware was without the death penalty between 1958 504 and 1961. During the three years of abolition there were 20 per cent. fewer murders than there had been during the preceding three years. In 1960, the Attorney-General had said:There is no evidence whatsoever that attacks on the police or prison guards or threats to public safety have increased because of abolishment.But perhaps the United States have too long diverged from the British tradition to provide persuasive examples. In that case, take New Zealand. New Zealand has had an untidy history of abolition and reintroduction, reintroducing for the last time in 1951 and abolishing again in 1961. There has been an absolute consistency in the murder conviction figures, with no detectable influence of these changes in penal law on their numbers at all. If New Zealand is too distant, take Scandinavia. Again, in no Scandinavian country is there the slightest indication in the figures that the murder rate has been affected by the abolition of the death penalty. Take the case of Sweden—and Sweden is a good example, because its policy on alternative punishment is sufficiently liberal for many retentionists to believe that it provides no deterrent at all. The murder rate in Sweden continued to decline steeply after abolition and then levelled out, and has remained constant at what is generally regarded as the irreducible minimum of murders committed by the irresponsible.
But perhaps evidence from this country is required. Well, there is the evidence—and the noble Lord, Lord Stonham, has referred to this—that, despite the classification of murder into capital and non-capital categories, since 1957 the rates for murder as between these categories have remained constant. There is the fact that after the Act was passed the proportion of those who killed for gain rose, although this remained a capital offence, while the proportion of those who committed sexual murders fell, although such murders ceased to be a capital offence. Also, there is the astonishing fact that in the 19th century, in all cases where the death penalty was removed from offences to which it had earlier applied, in the periods thereafter there was a decrease of the committals for those offences.
505 It is said that the police will be endangered by the passage of such a Bill as this, and that criminals will be more likely to arm themselves. In the first place, if this had been true in the past, this would have shown up in the murder rates. If police murders had increased, the number of murders as totally recorded would have increased. But some more specific researches have been made, again in America. Two studies were quite recently conducted, and the noble Lord, Lord Stonham, has referred to one of these. He referred to the fact that they had discovered that, since 1919, the abolitionist States had had slightly fewer municipal policemen killed per head than the death penalty States—1.2 per 100,000 as against 1.3 per 100,000. It was found in the case of all States that there had been a high rate from the early '20's until the mid-'30's, and a lower one thereafter. Of the State Police, 24 States showed a recorded total of 77 killings of policemen, of which only six were made in the six abolitionist States; and of these six abolitionist States, four—and these four States alone—were unable to report a single killing.
But perhaps the most interesting feature of these studies was the expressed opinions of the police themselves on the value of the death penalty. Of the abolitionist State police, those of Rhode Island and Michigan declined to commit themselves to an opinion; those of Maine, Wisconsin and Minnesota all said that they disbelieved in capital punishment as a deterrent; and the Chief of the Maine State Police said:Both the record and the experience in this State would indicate that the lack of a death penalty in no way influences the element of protection to the police in this StateOf the municipal police of 240 United States cities, 90 per cent. from those of death penalty States stated thatthey believed in the additional protection afforded to the police by the existence of the death penaltyFrom the cities in abolitionist States, 75 per cent. said they didnot believe that there was any connection between the death penalty and the use of lethal weapons by criminals".I suggest that this represents, on the one hand, the universal, untested fear of those without experience against, on the other 506 hand, the lessons of the only experience that is relevant.
My Lords, the argument of those who opposed this Bill in another place, of the noble and learned Viscount, Lord Dilhorne, and of those who throughout the decades have opposed the removal of the death penalty for any and for all offences, has been that its removal will be followed by the commission of crimes by those who were previously deterred by the existence of this unique and awful penalty. Is this conviction a statement of the reason why those who make it are restrained from committing murder? But if this is not the reason why those who express this conviction do not themselves commit murder—if they do not require the death penalty to restrain them—then it is a statement by those who would not commit murder, even if there were not this deterrent, about some people who would. But on what basis do they hypothesise so confidently about people so different from themselves? There must be evidence. But there is none where it might be most expected: there is none in the figures. What is this evidence?
I should like, if your Lordships would bear with me, to ask another question. How is it to be explained that so many capital murders are committed while the death penalty exists? Take the case of the Worthing bank robbery in 1960. There, the murderer certainly was not ignorant of the law, because one hour earlier two of his acquaintances had been hanged. Perhaps he was mentally irresponsible for his action. In that case, he should not have been hanged. But if he was not irresponsible, he was not deterred. There are a hundred such examples. How are they explained? What theory have the retentionists to explain the distinction between those who commit murder, despite the penalty, and those who are deterred from murder by it? Every time it has to be denied that the existence of the death penalty affects the commission of murder, as it has to be in the cases like the one I mentioned of the Worthing bank robbery—and it has to be so denied in face of the fact that the murder rate in death penalty jurisdictions is so often much higher than it is in abolitionist ones; this is true, for example, among the States of America—to that extent it is 507 already admitted that the existence of other factors than the death penalty is responsible for the incidence of murder.
I suggest that these postulates of deterrence made about those who are imagined to need it, by those who patently do not, are, as they have always been proved to be, a fiction. I suggest that the language in which lawyers and legislators still discuss human motivation is disproved and discredited; that the complexities behind human choice and impulse and decision—and our ignorance about them—are quite insufficiently recognised in legislative debate. I suggest that the fact that the death penalty may be imitative in its influence is a fact every bit as valid—and certainly it is as well attested by evidence—as the fact that it may deter. The fact that some mentally-ill people may have been provoked by the death penalty would leave room for the contention that some people may have been deterred; for the murder figures only show the net effect of abolition. I suggest that the truth of these two propositions—on the one hand, that some people may be provoked and, on the other hand, that some people may be deterred—belong to the same order of probability.
My Lords, let us weigh the scales. In the one, all the catalogued deficiencies of an inferior and maleficient punishment; in the other, nothing, precisely nothing—not a scrap of evidence that the death penalty is anything other than totally irrelevant as a determinant of the rate of murder; nothing but an emotional and groundless hypothesis, excusable perhaps in 1820 when there was no evidence, but the parody of an argument to-day. If capital punishment is irrelevant to the incidence of murder, it is irrelevant now—whatever the crime rate; whatever the sincere opinion of the public, the magistrates or the police; whatever the policy is that has already been agree, or not agreed, on the subject of alternative punishment. To preserve it is to preserve an institution objectionable in itself and objectionable in its influence.
Before action is taken to remove what is an irrelevance, the question still arises: Is this an issue on which the opinion of the public is relevant to the decision? To answer this it must be decided: is this a question to which there can be a right 508 and a wrong answer? I suggest that every debate on this issue, every speech in this debate, every argument in every speech, is an implicit proof of the general belief that this is not a matter for personal taste, not a matter for inexplicable personal preference, but one for decision on a comparison of the evidence; in short, that it is believed to be an issue on which there is one of two alternative decisions that is right. This has never been an argument between those who wished to count public preferences and those who insisted that it was a matter for rational decision; it has been a debate between two camps of people who have argued to persuade each other of the superior truth of their respective positions.
In that case, my Lords, perhaps we are to take public opinion as an index of what is right in this matter. But on what is this claim based? If the public is to be presumed to be right on this issue to-day, it is presumed to have been right in Germany in 1958 when there was a poll of 75 per cent. in favour of capital punishment. Is it also to be presumed to have been right in Norway in 1960 when there was a poll of 15 per cent. in favour of capital punishment? Perhaps it will be said that there is a difference between these countries; that capital punishment deters in Germany but not in Norway. But was public opinion also right in Germany in 1952 when only 55 per cent. favoured capital punishment, and again in 1957 when 72 per cent. favoured capital punishment? And in Finland in 1953, when there was a poll of 68 per cent. in favour of capital punishment; and again in Finland in 1960, when there was a poll of 46 per cent.—an actual minority—in favour of capital punishment? There is nothing hearsay about these figures; they are used by M. Ancel, a Justice of the French Supreme Court, in a report he produced in 1952 for the United Nations.
I do not believe that it can be sustained that we should retain capital punishment on the grounds that public opinion is likely to be right. And unless it is argued that the consequences of challenging the preference of the public at this time will themselves be productive of lawlessness or death, then to submit to public preference on the recognition that it is nothing but a preference is to submit to a preference that is 509 either ignorant or barbarous. For among those who cannot plead ignorance of the available data, a vote for retention represents nothing other than a preference—a preference for barbarity over necessity; a preference for the arrogance of immovable personal sentiment over the freedom of reason; a preference for the dangerous conviction that one can fully guard against the possibilities of human error. Such a vote would be one against the humble belief that all human beings and all the institutions they make will always be fallible, and that in this instance the consequences of a system, inevitably grossly imperfect, are grave and continuing injustices for which we are all deeply answerable.
§ 5.36 p.m.
§ LORD SHAWCROSS
My Lords, my own brief attendances in your Lordships' House have been so infrequent that I feel it something of an impertinence on my part to congratulate the noble Lord, Lord Reay, on the very notable speech to which we have listened. He spoke with great sincerity, clarity and cogency; and I am sure it will be the hope of all noble Lords that in future he will make frequent contributions to our discussions.
Those of your Lordships who know me may well expect that I shall speak in support of this Bill, because in the days before the War when I was sometimes concerned with either the prosecution or the defence of persons who were accused on capital charges I made no secret of my belief that capital punishment should be abolished. Indeed, after the War, when I was Attorney General, I was responsible for the first Bill which sought abolition of the penalty altogether. This was subsequently rejected, according to your Lordships' tradition in your Lordships' House, and I had to move the Second Reading of the compromise Bill which we later introduced, very much against my better judgment but in loyalty to the Government of the day to which I belonged, a compromise Bill which, I think, set on foot measures which were really quite intolerable.
All this is a long time ago, and a great many things have happened since then. Crime has greatly increased—the percentage increase each year is really quite frightening—and more skill, more daring 510 and more violence is being displayed in the pursuit of crime. I ask myself, naturally, in approaching this matter whether all this is the result of the system of penalties and legal administration that we have hitherto pursued. In my mind there are two factors which one cannot entirely disregard in this matter. One is, perhaps, causative and the other preventive. On the one hand, there are, I believe, two sections of society (those who have been called "the lilac intelligentsia," coupled with those who find it possible to make good commercial profit out of the business) who are busily engaged in destroying the old standards of honesty and morality and decent behaviour which we ought to be taught when we are young. I hope the noble Baroness, Lady Wootton of Abinger, is right in thinking—I am not sure—that in this age of cynicism and what passes for satire human life is still regarded with the sanctity which used to be attached to it.
On the other hand, more than ever before, we fall over backwards in order to ensure that guilty men are surrounded with every possible protection against being convicted. The judges only recently have strengthened the Judges' Rules so as to discourage the police still more from questioning suspects and trying to get at the truth. If a police officer nowadays so much as asks for a name and address there will be a bleat from some of these self-appointed protectors of civil liberties that he is exceeding his powers. At the same time we maintain a police force which is quite inadequate in size and inadequately equipped with the modern requirements that police forces need if they are to perform their functions efficiently.
I have emphasised those two matters because I want to say to your Lordships that if I thought for a moment that the death penalty was of the slightest value in conducting the war against crime, a war which at present the criminal is steadily winning, then, hateful though I believe the death penalty to be, I should unhesitatingly vote for its retention. On the contrary, I believe it in fact to be a handicap in the war against crime.
Most of the noble Lords who practise at the Bar were, I think, not usually engaged in the criminal courts. Before I trespassed into the more respectable and 511 more remunerative territory of the commercial courts and the tax courts I had a knock-about kind of practice in the course of which I either prosecuted or defended something between one and two score of people who were accused on capital charges; and, of course, I took some interest in cases in which I was not myself professionally engaged. I have thought about it a good deal since and I thought about it a good deal at the time, and I do not recall a single case in which I felt that the death penalty had served any useful purpose. I recall at least one case—I think two—in which I felt that a man had been wrongfully executed; and l recall three cases in which I was convinced that the juries would have convicted—and rightly convicted—if there had not been a death penalty. The fact is, of course, and it is a very understandable fact, that juries are frightened about the death penalty. Knowing that their verdict will be irretrievable and irreversible, they succeed in giving to the accused the benefit of every fanciful doubt which can be raised; and in consequence I believe that in a number of cases persons who otherwise would have been convicted, and rightly so, of murder have, in fact, been acquitted.
This, I know, is a matter on which on both sides of the House strong opinions will be held. Some of us think that the death penalty is a good thing; some of us believe equally sincerely that it is not. I believe that there is not a shred of evidence, nothing that any respectable lawyer would dream of adducing in the lowest courts in the land, to support the view that the death penalty in the past had any deterrent effect on the rate of murder in this country. Apart from the fact that one-third of those who commit murder immediately follow it by committing suicide themselves, broadly speaking murderers are divided into two classes. There are those who commit their crime in a fit of passion, of rage, of irresponsibility, in which they have no regard whatever to the consequences of what they are doing. On the other hand, there are those who commit their crime as a matter of deliberate calculation, indifferent as to what the penalty may be because they are sure that they are going to escape detection. And, my Lords, very often they are right.
512 One must not argue too much from the particular to the general, but I see that my noble and learned friend Lord Kilmuir is present, and I am reminded that the first case in which I defended a murderer was one in which he prosecuted; and that the last case in which he defended a murderer was one in which I prosecuted. I remember the first case very well. My client was a man, I must say, of somewhat demonstrative temper. He had already been flogged severely with the cat and that had not deterred him. His temper remained equally ill-governed when he came out. In order to indicate his disapproval of the view of one of his friends he proceeded to hit him over the head with a bottle, and the man died. That man was not deterred in the least by the fear of capital punishment, any more than he had been deterred from an act of violence by the cat which was the punishment appropriate in those days. He was the type of murderer who committed his crime in a passion, in a rage, regardless of the consequences.
The last case in which I prosecuted and my noble and learned friend defended was the case of the late Mr. Haigh. He was a man in whose case the defence of insanity was raised. I feel quite sure my noble and learned friend will agree that the time of the court would not have been occupied for a moment with such a defence had it not been that the charge was a capital charge. Haigh was as sane as my noble and learned friend and I were sane at that time. Not only was he sane, he was exceedingly ingenious. He invented a technique of committing murders and dissolving the bodies of his victims in sulphuric acid. He was quite convinced that he would not be detected and in nine cases out of ten he was correct. He was a little conceited: he did it again, and then he was caught and was hanged, and no doubt he richly deserved it.
But, my Lords, retribution is not nowadays usually regarded as an appropriate object of our penal system, and I would say to the noble Lord, Lord Ailwyn, to whose speech, I am sure, we all listened with the greatest respect, for he spoke with the utmost sincerity, that, for my part, I should be content—if the Bishops will permit such a curious abberation from modern theology—to be guided by the 513 advice of St. Paul, that vengeance is the Lord's, He will repay. At any rate, for my part I should not care to have to kill a man simply as a matter of retribution, and what I should not care to do myself I do not think it right to ask someone else to do vicariously on my behalf. So I say that I do not believe that, in general, capital punishment operates as a deterrent.
One must, I think, be a little realistic about this subject, and it is, I venture to suggest to your Lordships, utterly unrealistic to suppose that a man who intends to commit a murder, and who is faced with the certainty of detection and conviction, considers first whether the penalty is death or the penalty is going to be a long (I agree that it should be long) and determinate sentence of imprisonment. Once he is faced with the certainty of detection and conviction, he is not going to decide that he will not murder because the penalty is death, or that he will murder although he is going to be sent to prison for 30 years. That is quite an unrealistic view to take, and I believe that the maintenance of the capital penalty in the belief that that is the result is something which discourages juries from convicting, which degrades warders and prison populations and which has a demoralising effect on the public at large.
My Lords, there is one special case about which I must confess that I feel some anxiety and in regard to which I have an open mind. That is the case of the man who has already been convicted for some crime for which he has received a very long sentence, or who has committed a crime for which he is liable to receive a very long sentence. I ask myself whether capital punishment is a deterrent to his shooting or killing his way out, in order to escape arrest or to escape from prison. Is it necessary to retain capital punishment as a protection to warders and police officers against this risk? On this point all I will say is that I shall listen with great interest to what may be said on both sides in regard to this matter during the Committee stage of this Bill. Meanwhile, I shall support its Second Reading.
There remains only one other point to which I wish to refer, and that is the suggestion that there was no mandate for this Bill. The doctrine of mandate is 514 one that is already somewhat discredited, and I think that it applies only to the case where a Bill is introduced as a Government measure. Although the Government are perfectly entitled to advise this House which way it should vote, this is not a Government measure. I agree that it would be totally wrong, in a matter which is one of Party political controversy, to pass through Parliament legislation which does not command the support of the majority of the electorate. It may well be that this Bill does not command the support of the majority of the electorate. As to that, we have some evidence from the Gallup Polls.
But this kind of legislation seems to me to stand in an entirely different category from ordinary political legislation of a Party character. In a matter of this kind, where so much depends on a very careful examination of the facts, an examination which is inevitably impossible for the electorate at large, I think that it is the right of Parliament to examine the facts and, if satisfied on the facts, to give a lead to public opinion. I hope that such a lead will be given by this House in this case. And certainly, if I were here to-morrow—unfortunately, I have to he abroad—should vote, with conviction and with confidence, for the Second Reading of this Bill.
§ 5.53 p.m.
My Lords, I support this Bill, and I believe that most of my noble friends on the Liberal Benches do so, too. I do not propose to follow any of the arguments for or against this Bill. Your Lordships know them all. We have heard them over many years and we shall hear them again to-night, much better expressed than I am likely to do. I want to take, if I may, a rather lighter line—if that is the appropriate word in a debate on hanging. I want to go back to the last time that a Member of your Lordships' House was hanged for murder. I want to take a point on that and make my own feelings known from it.
I notice the noble Earl, Lord Ferrers, sitting in his place. It was the fourth Earl Ferrers who was hanged for murder in 1760—the great, great grandfather's great-uncle of the present Earl. He was tried by your Lordships' House, and the Lord High Steward who presided at the trial and who sentenced him to death 515 was my great grandfather's grandfather, Lord Henley. Sir Robert Henley, as he was until the trial, sat on the Woolsack as a commoner. Incidentally, there is no reason why a commoner should not sit on the Woolsack still, because it is technically outside the House. He sat as Lord Keeper of the Great Seal (in fact, he was the last Lord Keeper), and not as Lord Chancellor. And he would have gone on sitting as a commoner, because George II disliked him so much that he would not make him a Peer. Sir Robert Henley had sat as Whig Member of Parliament for Bath for ten years, though the issue of politics was slightly confused in his case, because it stemmed not so much from his Whiggism as from his friendship with Frederick, Prince of Wales, and later with his son, who later became George III, in opposition to his father, George II. So Sir Robert would have continued to sit on the Woolsack as a commoner until the death of George II (which took place, however, later the same year), had it not been that Lord Ferrers committed murder. I need hardly add that Lord Ferrers was a Tory.
Lord Ferrers, of course, had to be tried by his peers, and there had to be someone to preside over the trial. That person would be the Lord High Steward, and in order that Sir Robert Henley could do this he had to be made a Peer and Lord High Steward. Henley was duly made a Peer. When Lord Henley sentenced Lord Ferrers to death, this is what he said:It is a happiness resulting from your Lordship's birth and the Constitution of this country that your Lordship is now to be tried by your peers in full Parliament. What greater consolation can be suggested to a person in your unhappy circumstances than to be reminded that you are to be tried by a set of judges whose sagacity and penetration no material circumstances in evidence can escape and whose justice nothing can influence or pervert?"—He was referring, of course, to your Lordships' House. I think that I detect a certain conceit here—hubris even, though one has to remember the peculiar tone of the 18th century. Nevertheless, the suggestion really is one of overweening conceit, is it not? It is conceit in the face of what we call God. It is the same conception as the noble Lord, Lord Shawcross, mentioned just now, 516 about "Vengeance is mine, saith the Lord". It is an attempt to take to ourselves something which we ought not to take. It is a suggestion that we are fitted to exact vengeance from someone, our peer or anyone else. Do not forget that hanging is vengeance; it is not a punishment.
Lord Ferrers was so patently "cracked" that nobody to-day would have considered hanging him, of wreaking vengeance upon him. On the day of the execution, the crowds were so great that it took about three hours to take him from the Tower to Tyburn, and it is recorded that he said to the Sheriff, "I suppose it is because they never saw a Lord hanged before". We do not now watch executions. The noble Baroness, Lady Wootton of Abinger, suggested that in certain circumstances, to bring us to our senses, it might be a good thing if we did. But the very fact of an execution produces, even provokes, in many of us an ugly frame of mind. What moves me most of all in wanting to see the end of hanging is not so much the damage it does to the murderer but the damage it does to ourselves. It seems to me that the words of Lord Henley, those very hubristic words about the tribunal at the beginning of the trial, and the remark thrown out by Lord Ferrers on the way to execution, suggest that the exaction of the death penalty is an impiety. I hope that your Lordships will give this Bill a Second Reading.
§ 6.0 p.m.
My Lords, the noble Lord, Lord Henley, has referred, with a certain degree of feeling, to the curious circumstances which surrounded his predecessor's being made a Peer. Most noble Lords have tucked away somewhere inside them a sneaking pride for the reasons why they or their forbears were created Peers. I am sorry that the noble Lord, Lord Henley, should take such pride in the fact that his ancestor was made a Peer for the main if not the sole purpose of sentencing mine to have his life terminated by the very methods we are now discussing. In his description of history the noble Lord omitted one observation that my forbear made. He insisted on the day of his death upon wearing his wedding clothes, not for any romantic reasons that might quickly jump to your Lordships' minds, 517 but simply because he considered that the day of his marriage and the day of his death were the two unhappiest days of his life. Clearly, the noble Lord, Lord Henley, retains such a grievous conscience for the dastardly deeds which the first illustrious forbear of his did that I, for one, bear him no grudge for his support of this Bill.
But I am bound to say at the outset that I am against this Bill, mainly for one reason: I believe that the presence of capital punishment is a deterrent to murder. I do not propose to produce statistics to substantiate this, because, frankly, statistics with regard to deterrence prove nothing: they neither prove that capital punishment is a deterrent nor that it is not; nor do they prove that its removal will result in an increase or a decrease in the rate of murder. All they show is when as a deterrent it has failed, and never when as a deterrent it has succeeded, which, of course, is the one piece of information that we should all like to know. But because statistics are indeterminate in this, it should not be interpreted that the effects of capital punishment are equally of little consequence. It merely means that the effect cannot be determined by statistics, for, in this instance, statistics, while they may be of interest, prove nothing. Therefore, to my mind, it boils down to one's individual judgment; does one believe capital punishment to be a deterrent or not?
I believe that capital punishment is a deterrent, for one good reason. I believe that people are prepared to pay fines for their wrongdoing; I believe that they are prepared to go to prison and undergo sentences for their wrongdoing; but the one thing that people do not like having is anything happening to their person. It is said that one should not take advantage of this fact. But I do not see this. To my mind, the first and important duty of any Government is to ensure a reasonable and adequate level of public safety; and if capital punishment deters, it stands to reason that its removal will result in people being murdered who otherwise would not be. This applies, of course, only if it is a deterrent. If it is not, then the situation is quite different. But I believe the fact that a person may, as they say, "swing for it" has deterred many a criminal from carrying a gun, for fear of using it in 518 the heat of the moment with fatal results.
It has been argued forcibly this afternoon that the present law is full of anomalies, and that it is manifestly unfair that certain murders should be punishable by death, whereas others are not, and, therefore, that we should accept this Bill as putting them all on the same footing. I find this argument difficult to accept. I can understand those in favour of abolition using this argument; and I can understand those who believe it to be no deterrent using this argument. But I fail utterly to understand those who believe that capital punishment is a deterrent using the argument, and at the same time being prepared to sacrifice what they believe to be a deterrent for the sake of legal tidiness.
The noble and learned Lord, the Lord Chief Justice, had some remarks to make upon this. He said that the present system was intolerable, and that there are a number of courses open to us, including the one that we could go back to the pre-1957 situation. But he added that we cannot go back; we must go forward, and, therefore, we must accept the Bill. While I tremble to involve myself in any form of disagreement with such an eminent person as the noble and learned Lord, the Lord Chief Justice, I cannot help wondering whether it does not all depend upon what you mean by "forward". If the acceptance of this Bill might mean an increase in murders—and the noble and learned Lord himself said he was convinced that on occasions capital punishment had deterred—then I consider this to be going backward. It may be forward in the case of penal reform, but it will be backward in the case of public safety. The present law may be full of anomalies; but a person who takes a gun does not before using it stop to consider whether his victim is a particular type of person, or whether he is in the sort of situation that will or will not subject him to a sentence of death. So far as he is concerned, if he murders he may be subjected to capital punishment. That, my Lords, I believe to be a deterrent.
Since we last debated this matter in 1957 I have frequently tried to put my views to the test, and have tried to see whether I could accept the views of those who are in favour of this Bill—because 519 no one likes the idea of hanging. I think that there is much to be said for the so-called Christian and moral outlook that is often put forward by those who favour the Bill. But, equally, let me add that the Christian and moral aspect is not confined to only one side of the argument. Each time I have carried out this test I have reverted to my previous view, because I consider the death penalty to be a deterrent. If one were to know—and I do not mean think or believe, but actually know—that the removal of the death penalty would have no effect upon the potential criminal, then I think I should vote for the Bill. But I just do not believe this to be the case, and I, for one, certainly should not be prepared to take this risk at a time when crimes of violence in which firearms are used have risen greatly. In England and Wales they rose between 1963 and 1964 from 578 to 731; and in a three-months' period, again between 1963 and 1964, in the Metropolitan Police District of London, crimes of violence in which firearms were used rose from 10 to 52.
I hope that your Lordships will have no hesitation in not only debating this Bill quite frankly, but also voting upon it; and I hope your Lordships will vote strongly and firmly against the Bill on account of its being against the public interest and being produced at a time which is totally inappropriate, in view of the increasing numbers of crimes of violence in which firearms are used.
§ 6.10 p.m.
§ VISCOUNT NORWICH
My Lords, for eleven years I have been plucking up the courage to address your Lordships' House; but the natural trepidation which anyone must feel on rising to make his maiden speech is for me slightly offset this afternoon by my pleasure in being able to participate in a debate so vitally important to all of us as this one. For I believe that this debate cannot fail to bring us one step closer to the day when we shall be able to expunge from the English Statute Book for all time what I believe to be its darkest and most shameful stain.
These are strong words, but I use them advisedly. I abhor the whole concept of the death penalty, first of all because I believe it is morally unjustifiable ever to 520 take in cold blood, unnecessarily, the life of a fellow human being. I can conceive of nothing more totally at variance with Christian morality, which is as I understand it, based on the proposition that no man is beyond redemption. I cannot therefore understand how the retention of the gallows can be reconciled with the Christian conscience.
This same line or argument can be continued on a more practical level. It seems to me that there can be no good punishment which does not contain within itself at least some element of correction. This, by its very definition, the death penalty can never do; it is simply an admission of defeat, of hopelessness and despair. combined also with a vindictiveness and spirit of retribution which, I think we must all agree, bears absolutely no connection or relationship with the standards of justice as we understand them to-day.
But, say those who wish it to be retained, it is nevertheless a vital deterrent. We have discussed this question of deterrence at considerable length this afternoon, and I think we are still up against the same old question: Just whom does it deter? Since the Homicide Act 1957 was passed, one might have expected that anyone wishing to commit or contemplating committing a murder in the future would plan to do so by non-capital methods. If this were the case, one would assume that the incidence of capital murders would fall. It has not done so. A comparison of the murder figures for the past three years and those of a similar period of three years immediately preceding the passing of the 1957 Act—figures which were made public last week in another place—shows that the number of capital murders for those two periods was almost identical. There was no fall-off in their number. Therefore, I deduce, there can have been no deterrence. This same lesson, as we have heard, was brought out even more clearly by the Report of the Gowers Committee when they examined the available figures in nearly all the principal countries of Western Europe, in the Commonwealth and in a great many individual States of the United States of America, and could find not one single set of figures which indicated either that the homicide rate had risen after the abolition of the death penalty, or that it had fallen after the 521 death penalty was reintroduced. So much, then, for deterrence.
My other objection to the system lies in its practical application. It has, I understand, long been held that the responsibility of deciding whether or not a given man was to suffer sentence of death was more than should be inflicted on any individual judge. For this reason, the law took the decision for him. This meant in practice that anyone found guilty of a capital offence could expect one sentence, and one sentence only, the death sentence. This is, I think, a perfect case of making the punishment fit the crime instead of making it fit the criminal—always, I feel, a serious mistake, and never more so than in the case of murderers because, as the noble Baroness, Lady Wootton of Abinger, explained to us earlier, although murder itself may be the blackest crime in the book, murderers are not normally by any means the blackest people.
The Gowers Committee estimated that less than 20 per cent. of the total number of murders were committed by professional criminals. Murders deliberately undertaken for the sake of financial gain are extremely rare. Love, hate, jealousy, envy, pity, these are the sort of emotions which are far more likely to impel one man to take the life of another. They are simple emotions, primary emotions, human emotions, which we can all understand; and though I am not suggesting for a moment that they would in any case excuse the crime, or even in any degree mitigate its gravity, at least they enable us, on occasions, to feel very real pity for the prisoners in the dock, many of whom could never conceivably be recidivists; whose crime, committed on the spur of the moment, would never be repeated; and who constitute no greater threat to society than, I think, any Member of your Lordships' House.
If, however, we are going to abolish the death penalty, there comes the question of what must be put in its place. Here I find myself, to my great surprise, in agreement with the noble and learned Viscount, Lord Dilhorne, who said earlier on that he also believed that it was a great mistake for the death penalty to be necessarily replaced in the Bill which your Lordships have at present before you, by life imprisonment. It seems to me that, once the shadow of death has 522 been averted, there is no longer any cause to withhold from Her Majesty's Judges their normal right to decide for themselves the length of sentence which they consider appropriate, according to the evidence before them. I should, therefore, like to sec this Bill amended in that respect, to restore to them that right, and to give them very wide latitude and discretion as to the length of sentence which they consider suitable—a length of sentence which should certainly go as far as imprisonment for life. And I entirely agree that, in this particular case, imprisonment for life should, if necessary, mean exactly what it says.
I do not want to speak for too long. Far be it from me to he accused of doing a "Maiden Egremont", if I may be permitted the expression, but before sitting down there is one more point I should like to make which concerns the argument which we have heard this afternoon that abolition is splendid, that it should be adopted, but at the same time the death penalty should be retained in one or two special cases, in particular those of the murder of police and prison officers in the pursuance of their duties. I have an immense admiration and respect for police and prison officers, and I well understand the dangers that they occasionally have to face, and the courage with which they meet those dangers. At the same time, I hope. I shall not be thought irresponsible or callous if I say that there are other jobs in this country just as dangerous, if not more so. I think we should frankly ask or demand these police and prison officers—and if necessary pay them extra danger money for doing so—to accept these new risks which are, after all, part and parcel of the life of many of their colleagues in Broadmoor and the criminal lunatic asylums, and also of the life of many of their European counterparts.
Because, my Lords, in legislation of this kind no half measures are possible. Either we assume that hanging is good and effective as a punishment, in which case we should keep it, or else we believe that it is bad and ineffective, in which case it must go. I believe, for the reasons which I have tried to explain this afternoon, that it is bad, that it is ineffective, that it is inflexible, and that it is immoral. Therefore, I hope the majority of 523 your Lordships will agree with me that it is a blot which has for too long defaced our reputation for justice and humanity; and that, by means of the present Bill, we shall be able to wipe it out, as it deserves to be wiped out, for ever.
§ 6.21 p.m.
THE LORD BISHOP OF CHICHESTER
My Lords, it is a great pleasure to be the first to congratulate the noble Viscount, Lord Norwich, on his maiden speech. He has addressed us on a subject of immense importance with great clarity and reason; he has apparently done it without notes and he has not faltered at all in the presentation of his case, which I am glad to say is a case with which I personally sympathise greatly. Therefore I will only say how much we welcome his coming into this debate and, although it sounds almost too obvious to say, we hope we shall not wait another eleven years before he resumes his share in our discussions.
The noble Baroness who introduced this debate said, and it has been revealed in the course of the debate, that we should in fact spend a great deal of our time considering the question of deterrents. I have listened to all that has been said to-day and I have read, as your Lordships have, the debate in another place and much argument before, both here and elsewhere; and, in all fairness, although I rise to support the Second Reading with all my heart, I must say there is a limit to the degree in which one can prove a case either way in terms of deterrence. There is always the danger that either side will claim too much. It is really remarkable to me that in this long and careful survey of the Royal Commission, who listened to a great deal of evidence, and adduced a great weight of statistics, they come out with a guarded and rather negative support of abolition in terms of deterrence. They recognise, as has been said before, that it is only possible to estimate those who have not been deterred and not those who have been deterred; therefore, to some extent, this is an argument to which there is no end.
I think we should agree with the writers of the Report that to the ordinary man who reflects upon it at all the threat of 524 losing his life in punishment for the sin of murder is one that is likely to come with greater force, at least as he reflects upon it, than any other penalty. On the other hand, we must recognise that those claims which are made outlining the dangers that would ensue to our society, or any other, on the removal of this penalty, are apt to be over-coloured, and I must adhere myself to the kind of summary which this Report gives and of which I will quote only one sentence:The general conclusion which we have reached is that there is no clear evidence in any of the figures that we have examined that the abolition of capital punishment has led to an increase in the homicide rate or that its re-introduction has led to a fall.That, I submit, is as far as we ought to attempt to go, and we ought to recognise that counter views can be held with great sincerity and with some appeal to the facts. But this means that we shall have to make our decision, when we do make it, upon this even balance of arguments. I believe there will never come a time. even if we waited to the Greek Kalends, when we should have better evidence one way or the other.
The argument was made that we should not repeal or amend the present Homicide Act until we have had further opportunities of seeing its effect. I think that holds no water at all. We shall never reach the stage when it will be seen from the statistics clearly, one way or the other, whether hanging is a real and unique deterrent or not, and I hope, in the light of this, that we shall make our decision now rather than attempt to defer it to some later date.
It has been recognised, although not much raised in this debate, that part of the deterrent is not the penalty itself. There is not only the fear of being found out but also the general attitude of society to the crime; and perhaps the greater weight of capital punishment lies in the fact that society has stated its abhorrence of the crime rather than in the actual penalty itself. The element of retribution in punishment has been perhaps rather too easily set aside. It is quite commonly said that at least to-day, whatever we thought in the past, we recognise that punishment was primarily a deterrent or a reformatory, and that the element of retribution was out of date. I cannot agree. It is out of date, of course, if by "retribution" we mean an act of 525 vengeance on the part of society against the individual, or a suggestion that the individual is being asked to atone for his crimes by a particular penalty. I hope the noble Lord, Lord Ailwyn, who is not here at the moment, will not continue to interpret that passage of the scriptures in terms of this kind of retribution.
On the other hand, there is the true element of retribution in which society declares its mind about certain conduct. The noble and learned Lord, Lord Denning, who is here this afternoon, is quoted in the Report as saying that punishment for grave crimes should reflect adequately the revulsion felt by the great majority of citizens for them. I warmly accept that. The law is concerned with more than keeping order; it is there in all its majesty to uphold the rights of individual men to life and their own mutual obligations to one another, and those who would dismiss this act of society in repudiating certain conduct forcibly on the ground that it has no place nowadays in punishment are, I believe, over-simplifying the issue. Indeed, reformation of the criminal is something inseparably connected with the proper act of retribution. Reformation must mean, in part, bringing home to the individual his moral responsibility for his actions and their consequences, and part of this process must be in pressing upon him the abhorrence, the repudiation, of society of the act which he has committed.
In the case of murder we want this repudiation to be as clear, strong, and impressive as it can be, but for that very reason I would share the opinion of those who say that society can repudiate the taking of life far better, and can declare its conviction of the importance and sanctity of life far more effectively, if it refuses to claim a life for a life and does not exact the death of the culprit to match the death of his victim. We may speak about "paying the ultimate penalty", but no murderer can really pay for another person's death by his own and, as it were, wipe the slate clean in the process. The taking of life is irrevocable. It cannot he put right; it cannot he atoned for. Whatever the feelings of the family or friends of the victim may be—and I have no doubt there is a strong temptation, which any of us so involved would share, of vindictiveness 526 or a desire to "pay out" the perpetrator—the life that has been taken cannot be recalled, and no action taken upon the criminal will affect that. The life has gone, the place will remain empty, and there can be no question of "paying him out" in that sense, or that he is paying off his debt. Society has in all its force to make clear that this is the abhorrent nature of murder because it is irrevocable, whatever happens to the offender. But I believe it will do so, and I repeat this, far more effectively not by taking life in return but by dealing with the criminal, at whatever great cost and the responsibility on society itself may he, in other ways.
Society at present, I believe, under the present Act, is not declaring its mind very clearly in matters of murder. One of the obvious reasons for wishing to amend the present Homicide Act, in terms of the Bill whose Second Reading we are debating now, is surely this extremely dubious anomalous situation in which we tried to divide murder in two different categories. I know this has been based purely on a desire to add our full deterrent to certain types of murder, and it is not intended to be a judgment in terms of heinousness on one type of crime rather than another. Never-the less, I believe that in the public mind that is the effect. They see a murder as a murder and they see one murder dealt with in a different way from another; and without going into the anomalous distinctions that occur, this is something that both perplexes the public, strikes them as quite unjust, and adds nothing to the credit of the law.
There must no doubt be anomalies in any law that fixes a different scale of penalties for different actions. There is always bound to be a situation in which one short step which is in itself a minimal and comparatively light step topples you over, as it were, into a different class or crime and imposes an additional penalty which seems out of proportion to that extra step that has been taken. You will always get that. But this ought not to happen, surely, when it is an issue of life and death, when that distinction which is made between one kind of crime and another involves in one case life imprisonment and in the other case hanging. And if were were to continue with the law as it is, I believe that 527 either it would become increasingly unpopular, it would fester in the mind of the community, or judges and juries would increasingly find it difficult to impose. We might find inevitably that penalties for capital murders were more and more approximating, as it were, to those assigned to non-capital murders. It may be some would prefer that the penalty should fade out in that kind of way, as it seems to be doing. But I suggest that is not the best way of honouring the dignity of the law, to have a penalty which in the end you do not wish to impose and will find every possible excuse for not imposing. I suggest it would be better for us to grasp the nettle and say we wish to abolish in all categories the penalty of hanging for murder.
It has been said that in this debate Parliament is a good deal ahead of public opinion, and I am sure that is to a large extent true. I do not think we need be surprised at that. Public opinion has not been so constantly engaged in this question as Parliament has over a good number of years; it has not thought very much about it. The general public does not study the statistics, it does not see in fact how many murders have not, over the course even of the last half century, been visited with the ultimate penalty of death. It is a surprising fact that in the first half century before we considered this possible change, up to 1950, on an average only one in twelve murders was punished by death in England, and only one in twenty-five in Scotland. That does not take into account the suicides which might have involved capital penalty if they had not been successful. But it does suggest that all along for a long time now we have been seeking, edging our way towards, a recognition that we should like to dispose of this penalty if we can. We have had evidence cited to-day that judges and juries themselves feel uncomfortable about the present situation. The public may not yet be aware of this.
But it is certainly not our business to wait for public opinion in such an important issue. The Churches have made their own pronouncements through their assemblies on this. They would not dream of saying they represent all Christian opinion or that there has been any Gallup Poll among the Churches on this.
528 In the Convocations they have said as representatives what they thought right; and I take it that this is the business of this House also; and in the end I believe we shall be seen in a far more creditable light and far more Christian light if, instead of waiting for positive evidence, which will never occur, on grounds of principle and of utility we grasp the nettle at this time and make our decision, as indeed I hope we shall do to-morrow afternoon.
§ 6.38 p.m.
§ LORD CHORLEY
My Lords, it seemed to me that on this occasion I would wish to testify rather than to argue. The right reverend Prelate, who puts us right on theological points, will perhaps correct me if I am using a theological term wrongly. It is certainly a word used in some debates. And this has really become a matter of faith with very many of us, although we do buttress it tremendously with arguments and we feel that the arguments are overwhelming. As the noble Lord, Lord Henley, said, these arguments have been going on for a very long time. Every intelligible argument has been used at least a hundred times, and a very large number of unintelligible arguments have been used almost as often. I think at this stage that every Member of your Lordships' House who has decided to come to this debate must already pretty well have formed an opinion about these matters. I do not flatter myself that I am an advocate skilful enough to persuade your Lordships to change your views. But I did feel that I wished (if I may use the word "testify" again) to testify in this debate, because for a very long time I have been very closely bound up with the movement for the abolition of capital punishment, and I felt I should not like this debate to go by without taking some part in it.
I also wish to say a few words of a rather more detailed character about the history of this movement over these last years. It has been referred to by the noble Baroness who moved this Motion, and also to some extent by my noble friend Lord Stonham. I do think it suggests that it would be an act of wisdom on the part of this House to give this Bill a Second Reading, and I think the wisdom of this can be demonstrated in the history of this business over the 529 last years. The noble and learned Viscount, Lord Dilhorne, rather rapped over the knuckles the Member of another place who was responsible for this Bill, for in effect warning the House to pass his Bill. Constitutionally, I suppose there is no doubt that we are entitled to reject this Bill. But I think we are tending towards a situation in which we should exercise our constitutional rights with great care and with wisdom; and I suggest that in a case like this, where a Bill has come to us from another place with the support of an overwhelming majority of members of both Parties, it would be most unwise on our part to throw it out.
In regard to the first side of this matter it has been my conviction for nearly forty years that capital punishment is an evil thing, a relic of the time of barbarism, and that it is high time, as the noble Viscount, Lord Norwich, said, in a most moving maiden speech, it was abolished. I remember well the occasion when this matter was first brought to my notice, some forty years ago at Lancaster Assizes, when a man, who was not a bad murderer, as murderers go, and who—although he had the advantage of being defended by the noble and learned Earl, Lord Kilmuir, in a most eloquent speech, which I remember almost as if he had delivered it yesterday—was convicted by the jury. The point of this episode is that on my way out of the court at Lancaster I happened to see this wretched man being removed. A crowd had assembled from all over town, and I was rather struck by the kind of wave of animal passion of those people who had met there, in effect to gloat over a man who was being led out to be executed. I felt that tremendously, and it made me think about this whole problem of capital punishment.
Not long after that I began to take a close interest in it, and for some years I had the honour to be President of the Society for the Abolition of Capital Punishment, which has now been merged in the Howard League, that great criminal law reform society. Among its earlier Presidents that abolition society had a great lawyer, Lord Buckmaster. He was a keen propounder of this view, and one whom I should like to remember on this occasion when I hope that 530 this Bill is to go through. The society also had as a crusader and prophet in this regard the late Roy Calvert. I think that we ought to remember him also in this matter, because when the history of all this business is written he will figure largely as one of the great men who took part in it. I think Calvert turned this movement to a large extent into something in the nature of a crusade, in which the noble and learned Lord now on the Woolsack has been a most eminent crusader. I think that we crusaders are now getting close to Jordan. We see Jerusalem across the Jordan of your Lordships' House. I hope that to-morrow evening we shall decide to cross the river. To come to Jordan we have had to struggle for a long time in the wilderness, and it would be folly not to recognise that we have been pushed off and defeated on several occasions in the not-too-distant past by the votes in your Lordships' House.
I think it would be useful to look at the history just a little more in detail. When the Bill which later became the Criminal Justice Act, 1948, came to this House it contained, as has been pointed out this afternoon, a clause abolishing capital punishment. That clause was not passed when the Bill reached its Committee stage. The late Lord Llewellyn—"J. J."—whose memory dwells in the affection of all who knew him, moved to strike out the clause, and it was stricken out. I had the honour to wind up that debate, at the request of the then noble and learned Viscount, Lord Jowitt, who voted with me. But in spite of—or perhaps because of—my argument, those of us who went into the Division Lobby on the abolitionist side were small in number, only some 28, whilst our opposition numbered 180. It is possible that at that stage, as Lord Stonham suggested, there was an argument, not altogether specious, for taking this view, in that the majority in the Commons had been a quite small one (I think about only 20), and that the number of abstentions had been large, and to show that there was a case for arguing that on second thoughts that particular Bill should be thrown out.
This episode led to the appointment of the Royal Commission which has so often been referred to this afternoon. That was a most important step in the history of this business, because their Report was 531 one of those outstanding State documents which has, in my view, done a tremendous amount to build up public opinion in regard to this matter. And I think that, ever since the Gowers Report came out, informed opinion has been steadily moving towards the abolitionist point of view. In effect, Gowers came down against capital punishment, and it was a noteworthy fact that the chairman, Sir Ernest Gowers, whom one might almost describe as a "hard-boiled civil servant", and who had gone into this investigation, on the whole, on the side of retaining capital punishment, came out of it with his mind made up the other way. I believe that this fact certainly influenced informed opinion in the country, and I should say that informed opinion has now become abolitionist.
This view is most strongly borne out by the next Parliamentary episode, which was the passing of a Resolution, early in 1955, calling for legislation either to abolish or to suspend the death sentence. That was carried into effect quickly, because a Private Members' Bill, which has more than once been referred to to-day, was passed, this time in a Conservative Parliament, by a rather larger majority than the majority which had voted on the previous occasion—a majority of not far short of 50. In my recollection, the Government in another place did not take a strong view; but undoubtedly, when the Bill came here, the noble and learned Earl, who was then on the Woolsack, expressed the opinion of the Government most strongly. In effect, he said to your Lordships, "The Government want you to throw out this Bill". Private Member's Bill, as it may have been, and whether the Whips were on or not, that remark was the equivalent, I should have thought, of a three-line Whip. In those circumstances, it was not perhaps altogether surprising that the Bill was thrown out. But the interesting thing about that occasion was the fact that the number in your Lordships' House who were prepared to vote in favour of abolition had gone up to something over 100. That, I think, was a remarkable achievement. Moreover, it had induced the Government to say that they themselves would bring in a Bill which would to a large extent abolish capital punish 532 ment in respect of murder—a Bill which they did in fact bring in and pass, and a Bill which has been riddled with criticism by almost every speaker this afternoon who has referred to it.
I do not want to add to that criticism, but I ask your Lordships to notice that that Bill abolished capital punishment over a very wide range of murder cases, in fact the great majority of them. Up to that stage it had always been argued that capital punishment was just as much a deterrent in respect of that type of murder as in respect of any other, but after the Bill had become law and had been in operation for a number of years it was discovered that the murder rate had not increased at all. In 1963—the last year for which figures are available—there were 142 murders as against an average in the late 'fifties of 141. It is true that there is a slight difference in the way in which the figures are drawn up, but that is more than cancelled out by the fact that the population has increased largely since that time. So if there is anything which has been proved by the Act of 1957, it is that in respect of the largest number of murder cases capital punishment is not a deterrent at all.
That brings us to the Bill which is before your Lordships' House this afternoon. I have already pointed out that it was passed in another place by a majority of two-to-one, which is a fact that every noble Peer in this House ought to have in mind. While it is obvious from the attitude taken by the Conservative Government in 1957 that the Cabinet as a whole must have been strongly opposed to the passing of the Private Member's Bill, if your Lordships will examine the Division lists in the House of Commons only a week or two ago when the vote was taken you will see that the majority of those who had been Cabinet Ministers in the previous Administration and who voted in that Division voted in fact for the repeal of capital punishment. So far as I can see, there are only two or three of them who are now to be found on the retentionist side.
I suggest that that is a very significant point indeed. It shows that the leaders of Conservative opinion as well as the leaders of Labour opinion—and, of course, the great mass of the Labour 533 Party has been behind this movement for quite a long time—are all in favour of abolishing the last remnants of capital punishment. It seems to me that the Conservative Opposition in this House would be well advised to bear that particular point in mind and to-morrow, when the time comes for us to go into the Division Lobby—and I understand from the speech of the noble and learned Viscount, Lord Dilhorne, that he intends to force a Division—Conservative Peers should accept the wise counsel that we should all go into the "Aye" Division Lobby and sweep this last remnant of barbarism out of our criminal law system.
§ 6.55 p.m.
§ LORD ST. HELENS
My Lords, I have neither legal training nor expertise in the law; therefore, I propose to deal with this Bill in broader outline. I shall at the same time be brief. I very well remember some ten years ago in another place, as indeed do many of your Lordships, the occasions when two Bills of this nature were debated, and, of course, they were debated again in your Lordships' House. I detect at the moment a very great difference in the climate of opinion in which these debates are taking place now as opposed to the position ten years ago. Ten years ago, I should say, from my own observation, opinion in Parliament was somewhat rigid on the subject of capital punishment. To-day, ten years later, opinion in Parliament is very much more flexible than it was then.
I was very much impressed the other day, talking to two of my friends from another place, when they told me that they had been profoundly influenced by the speech which was made on Second Reading by Mr. Henry Brooke, who had been Home Secretary. So influenced had they been that they were in fact going to change the manner in which they had originally intended to vote. Speaking from my own experience, I did not see that flexibility of mind ten years ago. But whereas there has come a great change and flexibility among Members of both Houses of Parliament, I do not believe that this change of opinion is reflected throughout the country as a whole. Indeed, I think the country as a whole has changed its opinion very little from the opinion which it held ten years ago.
534 We are told by many of your Lordships this afternoon that we should not consider public opinion in the country and that we should lead the country. But it seems to me that whenever it appears that your Lordships are threatening the Government with a vote against something for which the Government have a mandate, a howl goes up that the Lords are voting against public opinion and must not do so. I do not believe you can have your cake and eat it. I venture to stick to the advice that has been given so frequently throughout the short time I have been in this House, and I personally am going to follow public opinion.
§ THE EARL OF LONGFORD
My Lords, may I, with many apologies, interrupt the noble Lord? Of course, one difference from some of the cases the noble Lord mentioned is that if the House of Lords supported this Bill they would. in fact, be acting in line with the House of Commons.
§ LORD ST. HELENS
I am not going to pursue that line of argument at the moment. I myself am not in support of this Bill.
Reverting to the 1957 Act, I would point out that there were two basic principles which underlay the Act and which are contained in it. The first principle is that society has no right to take a man's life as an act of retribution, as an act of punishment—indeed, this was mentioned by the noble Earl earlier on. The second principle is that society has not only the right but the obligation to protect itself. I believe that one sees those two principles outlined in the current Act. The killer whose venom is directed against a single, isolated individual receives a punishment less than death. On the other hand, the death penalty is reserved for the killer who has shown himself to be an enemy of society either by killing more than once, by killing in armed robbery, or by putting a bomb in an aeroplane in order to kill one single victim and in fact killing many more besides. These are the people for whom the death penalty is reserved as a protection for society itself. I firmly believe—I will not develop this argument, for it has already been fully developed—that the death penalty for that type of person, a person who is brutal and generally a coward, is a genuine deterrent.
535 Under the Bill we are now discussing these clear distinctions against the individual killer in the name of society are removed, and society is no longer protected against the wanton killer. That is why I shall vote against the Bill. In this Bill, the phrase "imprisonment for life" is meaningless, and it gives no guarantee to society that the sentence of the court will in fact be carried out on the criminal. I believe, too, that we are rather apt to overlook the fear of violence which clouds so many people's lives in this country. One saw this very much as a Member of Parliament, particularly in London. In my constituency was the prison of Wandsworth, which has been so much in the news lately, and whenever there was an escape—and there have been several escapes—the residents in the district were genuinely terrified at night. There were frequent crimes of violence in the district, generally committed by young people, and many of them ended in death.
There is a large number of people living in the towns who are genuinely terrified of these crimes of violence—old people, elderly spinsters living alone, or perhaps an old couple or a single person living above the shop which they run in the daytime. One of the things which struck me so much, was how seldom people of this nature go out. One would visit them as a Member of Parliament, and in course of conversation they would say, "We do not go out very much" and one might well find that "not going out very much" meant only going out for an hour or so once a week to do the shopping. Those are the people who believe themselves to be protected by the death penalty which exists at this moment.
I agree with my noble and learned friend Lord Dilhorne, who said earlier on that this is not the time, when crimes of violence are on the increase, to remove the death penalty. For myself, I do not believe that we are justified in depriving society of what it believes to be a measure of protection against crimes of violence. It is for that reason that I shall vote against the Bill.
§ 7.3 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
My Lords, I hope that your Lordships will decide to give this Bill a Second Reading. The issue which is raised though most markedly limited as com 536 pared to the issue which existed when the Homicide Bill of 1957 was under consideration, is nevertheless one that calls for fresh decision. I do not myself take the view that it can never be the duty of the State, or that it can never be within the right of the State, to take a life, but I do submit that a heavy burden of proof must be discharged before we should feel persuaded that there is a stern and solemn need for action so final and irrevocable. We can put out the light of life: we cannot light it again.
Whatever view your Lordships may hold in regard to retribution as such, I hope you will reject the idea that the death penalty is to be endorsed as a measure of retribution. Our abhorrence and condemnation of taking life is not well expressed if we must adopt that which we condemn. If this be so, then any warrant for even the most limited retention of the death penalty can be found only if it is shown that by its retention the lives of innocent persons are to be saved. Surely it is right for us to think of potential innocent victims of future dastardly acts. Endeavouring to make my approach in that way, I am not convinced that it is necessary to retain the death penalty in murder cases, for I am not persuaded that, as a deterrent, it is effective.
It is now some years since I had the anxious and most unenviable responsibility of presiding at a murder trial, as I did on occasion. It was some years before 1957. But I would remind your Lordships that, both before that year and to some extent since, those persons whom Her Majesty's Judges have seen in the dock are persons who have not been deterred by the existence of the death penalty. This, I think, shows either that the circumstances had been such that the accused never gave a thought as to what would happen to him—murders in passion or murders in sexual excitement are, perhaps, illustrations—or that he had not been deterred because he was convinced that he was clever enough not to be found out. The poisoner is an illustration of that sort of attitude. I can hardly imagine a worse or more horrible type of murder than that effected by the poisoner—cold, calculated, deliberate, scheming, cunning, merciless, relentless. Yet to-day that is not capital murder. We have already been reminded 537 that to kill by stabbing with a dagger or with a knife may not be capital murder, but to kill by shooting is. My Lords, which of us can be happy with such a state of the law?
Of murder cases, I understand that the overwhelming preponderance to-day are non-capital cases. From the passing of the 1957 Act to the end of 1963, I understand that about six cases out of seven have been non-capital, and one out of seven capital; and on a survey of the cases between 1952 and 1957 it has been estimated that had the Act of 1957 been in existence the proportions would little have differed. So your Lordships are, in effect, dealing with the fate of but a very few persons, and considering the possible fate of but a very few potential victims. In a debate on road safety, your Lordships are concerned with the lives of vast numbers of people. Yet I am sure we must agree that the present question has a moral content somewhat special to itself.
In reaching the view that I have expressed I have not neglected to pay heed to the contention which I think it would be idle not to recognise as having weight, that the hardened professional criminal, about to embark upon some crime such as theft or robbery, might be deterred from carrying a gun if there were a death penalty but would not otherwise be so deterred. We cannot be sure about these things, but the man who is wicked enough to plan and be prepared to take life proceeds on the basis that he will be clever enough not to be caught. If his thinking ever proceeded on the basis that he might be caught, I am not persuaded that the thought of a sentence of life imprisonment, with all that that could involve, would not constitute an effective deterrent.
I would just add this comment: that it is very often in those cases where guns have been used, and where events have moved swiftly and unexpectedly, that there may be some uncertainties as to the facts. Her Majesty's Judges, who preside at and guide the course of trials, are imbued by their training and by the tradition of which they are inheritors with a passionate desire to avoid all risks of error. In spite of their vigilance, might there not, even though only on some rare occasion, be some risk of a wrong conclusion? My Lords, we should wish 538 to banish even that small risk, but we must accept it if the arguments for the retention of the death penalty are compelling. It is because I do not think they are that I propose to vote for this Bill.
§ 7.13 p.m.
§ LORD DERWENT
My Lords, may I start by saying that I am absolutely opposed to this Bill—and I repeat the words "to this Bill". I think it is incomplete; I think that, because it is incomplete, it may have disastrous effects; and I believe it is incapable of adequate amendment. I hope, during my remarks, to deal with some of the points that have been raised, and particularly with the speech of the noble and learned Lord the Lord Chief Justice, with whom I largely agree. I would remind your Lordships that it was only last Wednesday that we were discussing the increase of serious crime and that it was agreed on all sides of the House, including the Government Benches, that this increase in serious crime was causing great anxiety and fear amongst the public—and that has already been mentioned by my noble friend Lord St. Helens.
I know the right reverend Prelate and the noble Lord, Lord Shawcross, have said that we ought to lead the public in these matters. That may well be true; but should the public not be consulted? And have they been consulted? The answer to that is, "No". There is nothing in the Labour Party manifesto about this. It is far too hot a potato, and unpopular; and we know that this Bill may well be unpopular in the country. The public as such—and they may be behind-hand in their thinking—do not want it. But it was rather odd that the public were given no right of expressing an opinion at the Election—because there was nothing in the manifesto and it was avoided in the present Government's speeches, although only a week or two after that it appeared in the Queen's Speech. So it was evidently something the Government did not particularly want discussed at Election time. My argument this evening is this—and I hope to call the noble and learned Lord the Lord Chief Justice in support of it: that this should have been a Government Bill, and that unless it is a Government Bill it will never answer the questions which we have all been posing this afternoon. Because 539 I do not think any Private Member has sufficient knowledge of the whole picture.
There has been a good deal of talk about whether capital punishment is a deterrent or not, and various statistics have been quoted, both to-day and on previous occasions. I do not think they are worth much. I shall have a further word to say about statistics; but there is something which might be a pointer as to whether or not capital punishment is a deterrent. Your Lordships have recently passed through this House the Firearms Bill. I am well aware that the law on firearms needed some revision, but this Bill was introduced into the other place in something of a panic—or perhaps I will be kinder and say in a very great hurry. There was such a great hurry that it had to be largely rewritten in the other place. By the time it came to your Lordships' House, it was more or less in order.
My Lords, why the hurry? It was because, in fact, there had been an increase, a rather sudden increase, in the use of firearms, and particularly against police officers—a police officer killed, others wounded and several shot at. There was a bit of an outcry in the country, and this Bill was introduced in a hurry. I venture to suggest that this sudden burst of shooting at policemen and others was due to the fact that the criminal knew perfectly well that he was probably going to get a long sentence, and knew perfectly well that, if he shot a policeman, he was not going to hang while this Bill was before Parliament. I suggest (and I think there is reason to suppose that I am right) that this was one of the reasons why they had to bring this Bill forward in such a hurry—the deterrent had gone. So much for that.
May I say one word—and I hope a will be the last word, though I doubt it—about statistics? The abolitionists are always quoting statistics. On the whole, they have kept away from them as much as they can to-day, except for the noble Baroness who introduced this Bill and, I seem to remember, the noble Lord, Lord Stonham—and I know the noble and learned Lord on the Woolsack quoted them on a previous occasion. They keep on bringing up these particular statistics, such as they are. They first of all quote a series of countries in Europe, 540 usually Scandinavia; but they are all countries quite different from ours. In not one single European country of those mentioned to-day—I am coming to the United States in a minute; I am talking about European countries now—have they a city such as London, Glasgow, Birmingham, Liverpool, or large industrial cities of that kind. They are not that type of country, and so the comparison is useless. I dare say we shall still have the comparisons made, but I hope we shall not.
Then we come to this question of the United States, where it is said that, in certain States, homicide has not increased when they have done away with capital punishment. It is difficult to get the right statistics—and it may be that the noble and learned Lord on the Woolsack, when he comes to speak, will have them—but I am informed that what has increased is the number of deaths when men have been resisting arrest. In those States you shoot it out with the police. We do not want to see that. I would ask those people who quote these statistics whether they really want to see the homicide rate as great in this country as it is in the United States. The fact remains that there is only one statistic—
THE LORD CHANCELLOR
My Lords, will the noble Lord allow me to interrupt him? Does he mean in those States which have abolished capital punishment or in those which have kept it? Because it has already been pointed out that the homicide rate is higher in those States where they have capital punishment.
§ LORD DERWENT
Higher in one year, but not over a period. I think I am right in that, but the noble and learned Lord will correct me if I am wrong. He will probably correct me if I am right, too. But the only statistic worth having is one we cannot get, and that is why I say I hope we shall hear no more about statistics. That is the number of those who have not committed murder because there was capital punishment.
It has been suggested at different times that if this Bill is passed there is really no great added danger to police and prison officers. I would ask this question of those who take that view: Are there any promoters of this Bill or any 541 who support it who really think that, if this Bill becomes law, they themselves will suffer any additional risk? They know they will not. Nor shall I. But they apparently are prepared to put at risk those who work closest to dangerous criminals and who believe they will be put at risk. I agree with the police officers and prison officers who believe so. If any of us here find ourselves in a danger zone where somebody is using a pistol, a knife or a crowbar we have the option of getting out of the danger zone if we can. Neither the police nor prison officers have that option; their job is to get closer to the danger and to deal with it. Before we put those men to added risk we should think carefully. The remarkable thing is that they do go into the danger areas; whereas you and I, if we so choose, do our best to avoid it.
My real opposition to this Bill is that it answers no questions. The noble and learned Lord the Lord Chief Justice said it was essential, if capital punishment were to be abolished, that we should have something definite to put in its place. I hope I am not misquoting him; I believe that was the gist of his remarks. Many people believe that, if capital punishment is abolished, the judges should decide the sentence to be passed. This Bill, in effect, is going to impose for murder a maximum sentence of life imprisonment. You can get that for rape. The judges are perfectly capable of deciding what is a proper sentence in a case of rape, and if capital punishment is abolished, they are perfectly capable of deciding what sentences should be awarded.
Another question following upon the abolition of capital punishment is that of the mechanism of reprieve. As my noble friend Lord Dilhorne asked: would this apply also in the case of long sentences? It is not right that it should be left in these circumstances in the hands of a Minister. It was, of course, left in the hands of a Minister because it was capital punishment. In my view, as soon as you cease to have capital punishment, the punishment for murder will become the same as punishment for any other crime. I agree with the Lord Chief Jusetice on that matter.
But this Bill does nothing to answer the question of sentencing or reprieve. If it is passed in its present form, the Bill 542 will leave a very serious gap in our fight against crime. Of that I am certain. The proper thing to do with this Bill is to withdraw it, and for the Government to have the "guts"—if I may use that expression in your Lordships' House—to introduce a proper Bill and, if they want to do away with capital punishment, to include in that Bill all the other reforms in regard to sentencing, and so on, which I am well aware they wish to make. If they would present a comprehensive Bill of that kind, I think there would be very little opposition now.
I believe that this present Bill is quite disastrous. The Lord Chief Justice spoke about amending it. I do not quite see how he is going to get the Amendments that he referred to into this Bill at all. I would remind the House that some of the things that he suggested were tried in another place, and the other place refused to have anything to do with them, partly because they could not make up their minds which Amendments they wanted. What is the good of giving this Bill a Second Reading and, later, of putting in Amendments which we know the other place does not at the moment like, and on which we have no Government view? I beg your Lordships to see my arguments on this point. There ought to be a comprehensive Government Bill. The proper way to deal with this Bill is to take it out on Second Reading and not to try to amend it.
§ 7.26 p.m.
§ LORD FRANCIS-WILLIAMS
My Lords, as your Lordships have listened to so many speeches I do not wish to take up much time at this hour. It seems to me that the issue before us is quite plain and simple. I am sure that none of us will be led away by the red herrings of the noble Lord, Lord Derwent, that the present Bill should be rejected in order that the Government may introduce another Bill at a later stage.
§ LORD FRANCIS-WILLIAMS
Proper or improper, who is to decide? I am certain, from listening to the arguments of those who are against this Bill. that it is inconceivable that any Bill, of any kind, which ended hanging would be regarded by them as a proper one. This Bill is a simple and clear one, aiming to 543 achieve what I believe to be a laudable objective; and though it is a Private Member's Bill, it has, as we have been told, the support of the Government.
The simple issue before us seems to be this. Are we to conduct our affairs in grave matters—and the issue of life and death is surely one of the gravest—in the light of reason and the weighing of such evidence as is available or by emotion and didactic opinion? I have listened carefully to the majority of these speeches during this debate, and it seems to me that all the evidence has been on one side and all the didactic opinion on the other. The evidence is not, of course, final and absolute—such evidence never can be so. But I find it odd to note the contempt that is thrown by the opponents of this Bill on the statistics when we are considering the abolition of the death penalty, in contrast to the general approval of the need for more statistical research and more knowledge of this kind when we are considering great economic questions. I do not believe that we can say that statistics, when available, are a reasonable guide in some of our affairs but cease to be acceptable as a guide as soon as our emotions enter into the matter.
Statistics in existence in other countries in Europe, in the U.S.A. and in this country since the passing of the 1957 Act, have all indicated, in the words of the noble Lord, Lord Shawcross, that there is not one scrap of evidence to show that execution is a deterrent to murder. If we are to govern our affairs at all by the light of reason—and how else can we hope to reach a civilised way of life?—we must surely take account of the evidence that is there, seek to weigh it and to decide. The noble Viscount, Lord Dilhorne, does not accept this evidence. He thinks that hanging is a deterrent. My Lords, what Lord Dilhorne thinks is not evidence. It is often fascinating, and sometimes very revealing; but it is not evidence. The whole weight of the evidence, national and international, such as exists is on the one side. Of course, as I said, it is not final and conclusive; but it is only by weighing, considering and bringing our intellects to bear on such evidence as is available even when it cannot be 544 (as by the nature of the evidence it rarely can be) 100 per cent. absolute. It is only by a readiness so to do that we can move and govern our affairs as reasonable men. The whole weight of reason in this matter lies on the side of those in favour of this Bill.
My Lords, there are issues beyond those of strict reason: the effect, I submit, of capital punishment on the whole quality and texture of our lives and our civilisation. All my life I have been a newspaperman, concerned inevitably, because of the interest that is aroused when publicised executions are afoot, with the emotions, and often the hysteria, which surround such affairs. The emotions as they are evidenced by the letters that flow into newspaper offices on such occasions are not pleasant emotions. When I think of this great problem my mind goes back to a day when, as a very young newspaper reporter, I had been sent by my paper to a prison in Shepton Mallet, in Somerset, where a prisoner was being executed. It was a famous case because, as it happened, he was the son of a notorious character who had been an M.P. before the First World War; had then been found to be a German spy; had disappeared and then announced that he had retired to a monastery somewhere on the borders of Tibet. When his son was arrested and found guilty of murder with theft (which, although the distinction between capital and other murders did not then exist, would still be subject to capital punishment), cabled messages came that the father was hurrying home to see his son before the execution. It was therefore one of those occasions which arouse all the appetites of a large section of the British public which are roused by such affairs.
I remember how, in that little market town of Shepton Mallet, when the sister and brother and other relatives of the dead man arrived, they were followed round the streets by crowds, fascinated in one of the most unpleasant kind of ways which I ever wish to see. I remember the crowd outside the prison on the morning of the execution, and the tremor of excitement and hysteria that travelled through that crowd as, just a few minutes before 8 o'clock, a countrywoman arrived with a large basket on her arm 545 and went up to the door. When somebody stopped her, she said, "I have got my work to do. I am taking in the hangman's breakfast. An execution always makes him hungry".
I remember, as we stood there waiting, suddenly seeing a horde of small children run in front of the prison and disappear down a side street. I followed them to see what they were doing. They were standing against a wall of the prison, each with an ear pressed to the wall. I said, "What are you doing?" The oldest of them said, "You come and listen. If you put your ear just here, you can hear the drop". I thought, what an education in humane civilisation we were giving to those children! Let there be no doubt that the whole paraphernalia of an execution, the public mood that it engenders, is one that diminishes the moral and civilised virtues of our community.
My Lords, I believe that in this matter the issue is plain. Reason and humanity both point the one way; emotion and prejudice point the other. I have too much regard for this House to believe that it will choose the latter course.
§ 7.35 p.m.
§ LORD LAYTON
My Lords, this is the third time in my comparatively short membership of this House that I have spoken on this subject. I was brought up as an abolitionist, and when I found myself in the Editor's chair at the News Chronicle between the wars, I inherited also quite a lot of good radical Liberalism. The News Chronicle, so long as I had anything to do with it, was definitely abolitionist. I was momentarily checked in my appreciation of the situation as it developed in 1948 when I heard that the Royal Commission which was about to be set up was very straitened by its terms of reference; and there were, I suppose, two or three weeks in which a certain amount of back-chat took place between the two Houses of Parliament.
I was slightly doubtful about the outcome, but I need not have worried, because the Chairman of the Royal Commission, Sir Ernest Gowers, spent three years hard at work, hearing evidence from all quarters. And after the Commission had reported he must have gone to his study and spent the next three or four years in writing the background history 546 in simple terms—and he was a great expert in Government literature: his Plain Words is one of the best books one could give to a young civil servant. In writing his book on capital punishment, A Life for a Life, he definitely but steadily changed his mind. And this is how he expressed what happened to him:Before serving on the Royal Commission I. like most other people, had given no great thought to this problem. If I had been asked for my opinion, I should probably have said that I was in favour of the death penalty (and disposed to regard abolitionists as people whose hearts were bigger than their heads). Four years of close study of the subject gradually dispelled that feeling. 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 tar from the sentimental approach leading into their camp and the rational one into that of the supporters, it was the other way about.The Chairman of that Commission must have had a most intimate knowledge of the people directly involved on all sides of our prison system and of the individuals concerned. What he says seems to me to prove that the more one knows of this whole topic, the more certainly one becomes an abolitionist.
As an ex-professional statistician, I was prepared to take some part in discussing the statistics, but I am not going to say anything more about them, except that I have never seen any figures or graphs which have changed their direction whether the death penalty has been put on or taken off. I have never seen any definite change brought about by anything that we might do in that regard. I say that because the interesting speeches on statistics that we have had have, I think, killed stone dead the thought that there is a unique deterrent. If there is one, it is certainly not the death penalty. There are no Bishops in the House at the moment, and therefore I will not comment on the emotional argument, which is one of the two halves of the question. But I am a little surprised that there has been no reference to the mistakes that are made in sentencing men to the death penalty. The more mistakes that are made, the more certain it is that public opinion will change and become more and more worried about the attitude towards abolition.
My noble friend Lord Byers, also an ex-newspaper man, is intensely interested in trying to get a pardon for Evans. I 547 remember the time when I had the News Chronicle staff alerted (as we use to say) about what seemed to me a miscarriage of justice in the case of Oscar Slater. Two of our men were commissioned to unravel this problem, and I am glad to say that after they had made their case Slater was pardoned and was given a licence which put on record that there had been a miscarriage of justice. It did not say that he had been a victim of mistaken identity, but that is exactly what happened to him. He received very unsual treatment, because he was given special permission in an Act of Parliament to take his case before the Appeal Court in Scotland, which was his home country. The Treasury gave him an ex gratia payment of compensation of £6,000 for the eighteen years that he served in gaol when, at the end of that period, he was unanimously given a verdict by the court that he was not guilty. At such a time, when there is a crop of these stories, public opinion changes readily. I agree with the noble Lord, Lord Chorley, in thinking that there has been, underneath the ups and downs of moving opinion, an opinion moving in favour of the abolitionists' case.
Finally, we cannot leave this alone. If and when the death penalty is abolished, that will be a good start. But there must be an education of public opinion; and I believe that constant education going on quietly is the way to do it. We should all, whatever we may be busy with in life, never forget that a new generation is growing up, and it will be a generation built around the ideas they get from their elders. This is one of the subjects on which we can help.
§ 7.52 p.m.
§ LORD ARCHIBALD
My Lords, practically everything that I had intended to say this evening has already been said, some things more than once, and I will not weary your Lordships with vain repetition. I first became concerned with this subject many years ago. We have heard in this debate to-day from those who have acted as prosecutors and those who have acted as defenders in murder trials, and also from one noble and learned Lord, at least, who has acted as a judge. I cannot claim to have their knowledge, but as a young man I had an experience which I shall never forget.
548 Although I was young, I was a senior magistrate of the City of Glasgow, and it fell to me to go to Barlinie Prison in Glasgow with the Town Clerk of Glasgow to tell a man who had been condemned for murder (and I use the term "condemned for murder" rather than a "murderer", because in my opinion there was a doubt) that his appeal for a reprieve had been refused. Believe me, my Lords, that was a very painful experience, and it was one which has left a mark on my mind ever since. I was grateful at the time only that I was a senior magistrate, because the most junior magistrate had the more painful experience that he had to be present at an execution. I have seen my colleagues come back white, shaken and completely wrecked by the experience of witnessing an execution. I believe that if more of us had to undergo that painful experience, more of us would be in favour of this Bill.
I was particularly interested in the speech of the noble Lord, Lord Derwent, who wanted statistics and facts. In referring to these, I thought he was less than fair to the notable maiden speech by the noble Lord, Lord Reay, who provided probably more facts and statistics than any other speaker in this debate. Just to brush that aside, as the noble Lord, Lord Derwent, did, was. I think, quite inexcusable.
That brings me to the only point that I want to make to your Lordships. In recent debates in this House on other matters we have heard a great deal of argument as to where the onus of proof should lie. I feel strongly that on the issue which is now before us the onus of proof should lie on the retentionists, and not on the abolitionists. All through history the retentionists have been wrong. The retentionists on this issue are the spiritual—I hope that none of them are the lineal—descendants of those who argued that we must retain child labour in the mines and the factories; who defended hanging, drawing and Quartering; and who defended capital punishment for what we now regard as minor offences. They were wrong, and have been proved to be wrong by the experience of history, on every great moral, social and political issue which has been before the country. Therefore, I say that the onus of proof is 549 on the retentionists, placed on them inescapably by the extent to which their spiritual predecessors have been proved by experience to have been wrong all through history. I hope that the House will pass this Bill by an overwhelming majority.
My Lords, before the noble Lord sits down, I should like to tell him that during the first part of the speech of the noble Lord, Lord Reay, when the statistics were given, my noble friend Lord Derwent was not present. I was here, but I am afraid I was not quick enough to get them down.
§ 7.59 p.m.
§ LORD BROWN
My Lords, first of all, I should like to pay tribute to the speech of the noble Viscount, Lord Norwich. I think it was one of the best maiden speeches that has been made in this House for a long time, and I want to put my opinion on record.
I want, in three minutes, to try to put this issue into the broadest possible context that I can devise, and I will do it very quickly. It seems to me that the progress of Western civilisation, looked at over a rather long time, is marked by a series of trends, and one is the trend in penal reform. The direction of this trend has been to reduce penalties for crime of all kinds. I think we all recognise this. This trend has been very marked over the last 100 years. Yet this same 100 years has also been characterised for a rapidly growing degree of respect by one individual for another throughout Western society. I know it is fashionable, particularly as we all grow older, to put on rose-tinted spectacles and look back to the past, to worship the past and denigrate the present. But if we are objective, we all know that, by and large, we live in a better society to-day, in terms of human decency, one to another, than ever before. In short, along with progressive penalty reduction, the lives of ordinary people have become less brutish and more humane.
There is an intimate connection between these two things. Resistance to penalty reduction seems to be endemic in certain parts of society, and it seems nearly always to be connected with fear of the consequences. I do not think that anxiety is a sufficient reason for rejecting this Bill. With respect to the noble and learned Viscount, Lord Dilhorne, and 550 those who think as he does, his resistance to this Bill is largely based, so far as I can see, on unwillingness to take risks. He indicated that he might at some time in the future be prepared to become an abolitionist. I infer from this that he awaits the results of the bolder initiatives shown by other societies, and that, when they have taken the risks for him, he will move in and be prepared to take similar risks.
I have not much use for that attitude towards social reform. Nobody denies the possibility that there may be some risk, but when the Government of the day took their decision on Suez—and I shall never forgive them for it—they put at risk more lives than the abolition of hanging will put at risk in 200 years. We are always taking risks with lives, and it is the emphasis on this very mild risk which seems to me to be something of a false argument. In any case, if we are to talk of this very mild degree of risk-taking, we must also talk of the gains. It is so easy, in a matter of this sort, to take the narrow view and to forget that penal reform is part of the total reform of society towards a kinder and better way of life.
So long as the State claims the right deliberately to end life, people comprising that State will have a tendency to regard life more cheaply, and in the long run it is the general attitude to life by members of society which will determine the number of murders which take place. I have some sympathy with the noble and learned Lord, Lord Parker of Waddington, in feeling that, somehow, we might try to eradicate the notion that the price of a life is ten years' imprisonment. I do not know whether it can be done, but I support the main provisions of this Bill, because it is part of a historic trend to a better way of life. In recent years we in this country have failed in a large number of directions to behave like a dynamic, reforming, risk-taking society. I will not enumerate the areas over which we have failed. I say, let us now join with other nations, who have led us in this matter, in helping to give a humane lead to the rest of the world by giving this Bill a Second Reading.
§ 8.4 p.m.
§ LORD DENHAM
My Lords, I am glad that in discussing this Bill your Lordships have concentrated on only two 551 questions, because I think those are the only two that are relevant. First: is the death penalty a unique deterrent? And, secondly, if it is, are we justified in using it? I would describe myself as a limited retentionist. I believe that under certain conditions the death penalty provides a deterrent that no other acceptable sentence can provide. I also believe that the death penalty should be retained, if possible limiting it to those cases where it is a unique deterrent and using the prerogative of mercy wherever possible. I will try to give my reasons.
In the first place, like many of my noble friends, I do not believe it is possible to prove the deterrent value of the death penalty one way or the other by quoting past statistics, either from this country or from abroad. The incidence of murder is mathematically too small. But certain noble Lords have based their case for believing that the death penalty is not a unique deterrent, and accordingly for supporting this Bill, on statistics. These noble Lords have included the noble Baroness, Lady Wootton of Abinger, the noble Lord, Lord Stonham, the noble Lord, Lord Reay, the noble Viscount, Lord Norwich, the noble Lord, Lord Francis-Williams, the noble Lord, Lord Layton, and the noble Lord, Lord Archibald. But if statistics are valid when they appear to support one argument, they must be equally valid if they are shown subsequently to support the other. I would ask all these noble Lords to make up their minds and to let us know now, should this Bill be passed and should the numbers of what are now capital murders rise, how great a rise will persuade them to vote against the Bill when it comes up for review in five years' time. Perhaps noble Lords who have yet to speak will declare this during the course of their remarks.
If statistics are of no value, then the solution must be arrived at by reasoning. Life imprisonment, as it is now implied, means, in most cases, nine or ten years, as has been said. Where a potential murder is the only crime involved, this must be a tremendous deterrent. It is difficult to look beyond the next ten years. You might well have only a few years to live by that time, or you might be dead already. Your capacity for enjoying life, even life enriched by what 552 ever advantages you hoped to achieve by murder, will be much diminished. The choice is plain: if you do not murder you will go free; if you do murder you will stand the chance of spending the rest of your foreseeable life in prison. But if the murder is to be committed during the course of some other crime to avoid detection, to escape arrest, or even to escape from prison, the picture is very different. You have already incurred the probability of going to prison, if caught, for a certain time. There is all the difference in the world between the prospect of ten years' imprisonment to a free man, and ten years to a man who has already earned, say, three years. Here the choice is different. If you do not murder, you will almost certainly go to prison. If you do murder, you may get a longer sentence, or you may get away with it. The nearer a man's probable sentence is to ten years, the less effective as a deterrent will life imprisonment be; and if you are likely to get ten years in any case you would have all to gain and nothing to lose by murdering to escape.
What other deterrent is there to a man who has already incurred close to the maximum term of imprisonment that a humane law is likely to inflict? Would a certain twenty years be a deterrent to a man who is already doing, or likely to do, ten years? I do not think so. Here I disagree with my noble and learned friend, Lord Dilhorne. As I have said, it is difficult to look beyond the next ten years. After that, time does not mean much. The prospect of spending the next ten years in prison is so appalling that twenty years, when looked at from this end. could not be much worse. Here the death penalty can be the only further deterrent.
If this Bill should get a Second Reading, I would not support an Amendment to stipulate a sentence of longer than ten years on deterrent grounds. The noble Lord, Lord Francis-Williams, who is no longer here, said that there is all the evidence on one side and all the emotion on the other; that the retentionists have no conclusive evidence at all. I do not think that any conclusive evidence has been given, or can be given, by the abolitionists, and I must disagree with the noble Lord, Lord Archibald, because I maintain that the onus of proof is on those who wish to change the status quo.
553 One thing I should like to know, in talking of the death penalty, is this. Why is a graphic appeal for the life of a murderer said to be reason and humanity, whereas, an equally graphic appeal for the life of the victim is said to be emotion and prejudice? It is the duty of the law to protect the innocent by providing deterrents to crime. Where life imprisonment is an adequate deterrent, all well and good. But when what is at present meant by life imprisonment is no deterrent, something further must be provided. A longer term of imprisonment is, in my opinion, useless as a deterrent, and more inhumane than the death penalty. In certain cases, the death penalty is indispensable.
Noble Lords have talked about the anomalies in the 1957 Act. My Lords, I cannot understand the concern certain people have shown over these anomalies. If, as we seem generally to agree in this House, the death penalty can be defended only as a deterrent and not as punishment or revenge, surely it follows that if it is a vital deterrent in certain cases only and not in others, it should be retained for the one and not for the other. May I remind your Lordships that none of the murders we are discussing has yet been committed. We can throw out this Bill and bring back the death penalty but there need never be another hanging, and indeed I hope there will not be.
Abolitionists are apt to dismiss all arguments in favour of retention as not worthy of consideration. Those in favour of keeping the death penalty are described as reactionary, emotional, hysterical, retrogressive and bloodthirsty—especially if they happen to be Members of your Lordships' House. If I may quote an extract from an article written by Bernard Levin in the Daily Mail when this Bill first came out in the other place, he said:The abolition of the death penalty will not I fear, mean the end of illogical thinking by those who are about to be deprived of their toy neck-breaker.Surprise, for instance, is being expressed because this Bill to abolish execution for murder does not substitute imprisonment for the rest of the murderer's life, and attempts are apparently to be made to amend the Bill in this way when it is before the House of Commons or, more probably, the Lords, where you could easily command a majority for a Bill proposing hanging for seven-year-old 554 sweet-stealers, were it not for the fact that most of their Lordships are unaware that such penalties have ever been abolished.Mr. Levin is an amusing columnist, whether his subject of the moment be serious or flippant, but this is typical of the attitude of many abolitionists. There are certainly strong arguments in favour of retention. Personally, I think that they outweigh the equally strongly held arguments in favour of abolition. Others may take an opposite view, but to refuse to consider the arguments on the other side, or even to admit that there are any, is to cast doubt on the validity of one's own conclusions.
I have twice voted against abolition Bills in your Lordships' House. Each time I reached my decision after careful consideration of arguments on each side. Both Bills were refused a Second Reading. Whenever, since then, a murderer has been hanged I have felt that a share of the responsibility was mine. I have had heart-searchings as to whether I had voted in the right way. Each time I have come to the conclusion that I was right to vote in that way. I am still of that opinion. If this Bill is passed, whenever any murder is committed, each of your Lordships who vote for it will have to ask himself the question, "If I had voted against the Bill, would this have happened?" Those of your Lordships who are not prepared to face up to this responsibility should not vote in favour of this Bill.
§ 8.15 p.m.
§ LORD HAIRE OF WHITEABBEY
My Lords, I rise to support this Bill. All my life I have been an abolitionist and in all the many elections I have fought in another place I have always answered the question, "Are you in favour of capital punishment?" with a firm, "No." In my votes in the other place I have gone on record against capital punishment. And yet, my Lords, to-day in this House I am listening to a debate on capital punishment for the first time. I am prepared to keep an open mind, and, like the noble Lord, Lord Denham, may I say that there appears to be a fixation in this debate to-day. Many noble Lords have come here and pronounced firmly, as I have just done, that they are on one side or the other. This fixation has revealed that most of the noble Lords opposite are for retention and most of the noble Lords 555 on this side of the House are for abolition. I hope that when we come to the end of the day, when we come to count the voices at the end of the debate, there will still be, as I intend to be, "open minders" on this subject who will count the arguments as they have heard them in your Lordships' House. That is the only way we can debate this great issue, and arrive at a "free" decision.
It is now almost six hours since this debate was introduced in a remarkable speech by the noble Baroness, Lady Wootton of Abinger. That, in itself, was history, because it was the first time that a woman was introducing a Bill in your Lordships' House for the abolition of capital punishment. I hope that more history may be made in this House tomorrow when we come to vote. I say that with some hope that the "wind of change", which appears to be blowing through your Lordships' House in recent weeks or months, may in fact blow still more strongly to-morrow. This debate has been throbbing backwards and forwards across this House, not for six hours but for 150 years, and always your Lordships in this House showed yourselves, by a majority, to be unprogressive when it came to the question, "Do you wish to abolish capital punishment?". I am hopeful that the progress that has been shown on another tricky subject in recent weeks may he an indication of what will happen to-morrow.
In the House of Commons before the 1820s the Bills on capital punishment were thrown out. When, later, they passed the Commons and came to your Lordships' House, they suffered a like fate. My Lords, the escutcheons of many of us are thick with blood on this question. I do not propose to join in the legal arguments, the legal niceties which have been the subject of so much debate today. Rather I want to content myself with a brief reference to the historical arguments and, later, the international argument.
On the question of the historical argument, we start off, just over 150 years ago, in our grandfathers' or great-grandfathers' time, with 200 crimes in this country which were punishable by capital punishment: the stealing of a sheep, the cutting down of a tree, the 556 stealing of 5s. worth of goods from a shop. Yet the punishment for all of those crimes was gradually reduced until by 1867 we were left with only to-day's present capital crimes. The great pioneer of this reform was one called Sir Charles Romilly, who between 1808 and 1818 fought hard to get reform through the House of Commons and who died in 1818 with only one reform Act to his credit—namely, that to abolish the death sentence for picking pockets. The noble Lord, Lord Derwent who is an expert on statistics, might tell us whether there were more or fewer pickpockets after that Act was passed in your Lordships' House.
Always the argument was that capital punishment is the great deterrent, and that its abolition would lead to an increase in that particular crime. Our forefathers in this House became slowly more progressive as the century wore on. Public executions were abolished only in our fathers' day, in the year 1868, because the Royal Commission of that time proved that they only added to the incidence of crime by this exhibition of sadism. The judges then, if not the judges now, were proved by the Royal Commission to be absolutely and hopelessly wrong on the question of the deterrent value of capital punishment.
I cannot let this opportunity pass without saying that I noticed to-day that certain judges speaking in this House, notably the noble and learned Lord, Lord Parker of Waddington, introduced a refreshing note of change in their learned Lordships' thinking. I cannot help noting that in fact he said during the course of the debate to-day that there was almost unanimous opinion amongst their Lordships that it was impossible to work the Homicide Act 1957. This, to me, is a refreshing change on the part of our legal Lords. As though to summarise the 19th century, the Commissioners of Criminal Law in 1886 in their Report stated as follows:It is not proved that the repeal of capital punishment in any particular class of offenders leads to an increase of offences.I am one of those who reads the Reports of Royal Commissions with great care, because I believe that when several years have been spent by persons selected for their expertise on this subject their conclusions must he regarded highly. So 557 what you might call the historical arguments of the 19th century, the hysterical arguments in favour of retention, were over, at the end of the century, except for the capital crimes we have to-day. And the lesson of the 19th century was simply this: that brutal punishment accustoms people to brutality, violence begets violence. Capital punishment is a barbaric form of punishment in any country which calls iself civilised, a form of State sadism which breeds sadism.
One of the most impressive things, I think, in the last few years on this question of capital punishment has been the fact that two former Home Secretaries, the noble Lord, Lord Chuter-Ede, who is our collegue in this House to-day, and Mr. Henry Brooke, the immediate past Home Secretary, have changed their minds and from being retentionists they have, in the light of experience, become abolitionists. This is surely remarkable. And is it not remarkable that our present Home Secretary is also an abolitionist? These are the men who come most closely to the question and the background of capital punishment in their Ministerial job, and I believe that we should pay attention to the fact that they have changed their minds. They, more than any other, can bear witness to the changing spirit of our age.
I will not detain your Lordships much longer on the question of the international arguments, but T would say that if fourteen of our neighbours in Western Europe have abolished capital punishment this surely is of some guidance to your Lordships. It may be very well for the noble Lord, Lord Derwent, to brush aside the fact that some of these countries are mere Scandinavian countries, easy for him to brush aside the fact that in certain of these Western European countries there are no big towns like Birmingham or Glasgow. But he forgot to mention that Western Germany is one of those countries which have abolished capital punishment, and in fact Western Germany has its Dusseldorf, Essen, Cologne' and other cities which bear comparison with those in this country he mentioned.
§ LORD DERWENT
My Lords, I said that the countries that had been mentioned were not similar to ours. Western Germany, I think, was not mentioned.
§ LORD HAIRE OF WHITEABBEY
If the noble Lord shows such knowledge of these subjects and made such a sweeping statement, he must know that Western Germany is one of those countries which have in fact abolished the death penalty. In case he does not know, may I tell him that the countries concerned are the Scandinavian countries, the Benelux countries, Western Germany, and Italy, our ex-enemies, and others in Europe and the world. May I tell him also that the reforming zeal in this country in the middle sixties of the last century was in fact continued to its logical conclusion in Belgium and Holland and, even before that, in little Luxembourg.
Surely it is interesting to look at Great Britain from the foreigners' angle. This country of ours is regarded by a foreigner as a great citadel of liberty and a great centre of civilisation. If we were Europeans, should we not think this country retrogressive to have retained capital punishment for so long as we have done? It might be that if we lived in France or Spain we should think otherwise since they still retain capital punishment. But I think no other European country would be justified in regarding Great Britain with its capital punishment as being that centre of justice, that centre of freedom, which we are so often credited with.
The Royal Commission of 1949–1953, so recently as ten or twelve years ago, studied the international example, studied the statistics, called foreign witnesses, went themselves to foreign countries including the United States of America, and after four years of intense investigation confirmed that we can abolish capital punishment without increasing the dangers. We take pride in this British civilisation of ours. Are we, the British, more brutal by nature so that we need capital punishment? Let us complete the reform begun in the Homicide Act, 1957; let us follow the lead of the Commons in a free vote which they registered only a week ago by two to one in favour of abolishing the death penalty. Let us accept this Bill and put ourselves on trial for the next five years, but let us hope that we shall never turn back.
§ 8.27 p.m.
§ LORD WINDLESHAM
My Lords, it is late for a debate in your Lordships' 559 House, particularly since the debate will be continuing to-morrow. I want to say just two things. One of these is fairly new, and I think ought to be considered in the course of the debate. The second is not new, but it is something that I want to take this opportunity of saying. The point that is not new deals with the justification of the death penalty. I would start with the unexceptionable proposition that the deliberate taking of life, killing, is undesirable. This is so, whether the killing is by an individual or by the State, whether it is authorized or unauthorised. In civilised societies there must be overwhelming justifications before killing is authorised, whether it is killing of infants, or the killing of old people, the killing of the incurably sick or of criminals; and arguments in favour of the authorised killing of all these four categories have been advanced at different times throughout history.
The justifications for killing criminals who offend against society come down to two categories. There is the justification that society must be protected, the argument of public order; and there is the justification that the person and property must be protected, which is the argument of individual rights. Each of these justifications, in the end, depends on a deterrent. The alternative of retribution, in the sense of vengeance, one of the two interpretations used in the Royal Commission Report, is not often now put forward in responsible discussion, and the reformation of the offender hardly applies when talking about capital punishment.
So the question that matters, in considering this subject, is this: Is there overwhelming evidence to support the deterrent effect of the death penalty in protecting society as a whole or individual rights within society? The conclusion—and I think this has been said already—of the Royal Commission in 1953 was that there was no convincing statistical evidence to support the proposition that capital punishment had an overwhelmingly deterrent effect. I refer those of your Lordships who are doubtful about this to paragraphs 65 to 68, and especially paragraphs 67 and 68, on page 24 of the Report of the Royal Commission.
Statistics which have become available since 1953 have been quoted on both 560 sides of the argument, although not widely, in the debate this afternoon. Inferences have been drawn both ways from these statistics, and inferences have been challenged, but nothing I have seen has emerged to invalidate the Royal Commission's conclusion on this central point of whether or not there is convincing statistical evidence to support the proposition that capital punishment has an overwhelmingly deterrent effect. Therefore I must conclude that, in the absence of overwhelming evidence—and I stress these words deliberately—there is no case, or no case that I feel can be established by argument or by general reasoning, for the continued authorisation of the execution of murderers. As I say, this is not at all a new argument; it is something which several of your Lordships have put already. But I think it is a point of view which people who hold it should take this opportunity to express.
The second point concerns public opinion. The Gallup Poll, which is one of the indicators that exists of public opinion, has been quoted several times and I think needs looking at much more carefully. The Poll published in the Daily Telegraph on January 22 of this year suggested that, of those questioned, three to one were in favour of hanging; and, further, that a good number of those who were questioned thought of it not so much as a deterrent but in terms of retribution. The sort of phrase that was used in answers to questions was, "It gives the murderer what he deserves". As many as 33 per cent. of those questioned came up with what could be called a retributive view of capital punishment. But in spite of this the House of Commons, normally a body sensitive to public opinion, has by a decisive majority, on a non-Party vote, accepted the Bill; and the Government, while not themselves introducing the Bill, have found time for it in both Houses—indeed they gave it the almost unique distinction of a place in the gracious Speech. This situation illustrates the two different types of public opinion. There is informed opinion, which is often capable of starting things, and there is popular opinion which has the power of stopping things, which acts as a veto. Since public opinion in this sense is not a democratic affair of one man, one vote, the quality of opinion will give it more 561 influence than the numbers holding that opinion.
In this country informed opinion does have an extraordinarily influential role because of the centralised nature of the political system. Interest groups and lobbies can, as they have here, initiate proposals for legislative change, and where the initiative lies within a Government Department informed public opinion, and groups which are representative of special interests in society, are likely to be consulted and have their opinions taken. When legislative change is being considered this process takes place within the general limitations of popular opinion. But popular opinion, I repeat to your Lordships, is a negative factor—it can prevent excesses but it is incapable of generating pressure for change.
Opinion polls are important here. They are not proposals for action, they do not act as channels of communication, they are indicators of what the public is willing to accept. In the judgment of Government, in the judgment of a large majority of Members of Parliament, and in the judgment of much informed opinion at the moment, the climate is changing and is becoming more favourable towards abolition of the death penalty than in the past. So the question that matters, when looking at public opinion as a whole, in the popular sense, is not whether the public is anxious to see a change, because I think the public is never anxious to see a legislative change, but whether it is willing to accept a change once it is made.
So I have looked rather more carefully at the Gallup Poll, and in particular at the findings of a Gallup Poll in 1956. This was a poll taken in July after the free vote in another place which favoured the abolition of the death penalty. There were two sets of figures. They are quite simple, but I think they are important to the structure of the argument. Two questions were asked, and it is vital to look at the questions which are asked in an opinion poll. The first was: Do you approve or disapprove of the decision to abolish hanging? In reply 28 per cent. said they approved; 61 per cent. said they disapproved and 11 per cent. did not know. So it is possible to say that the majority was against abolition.
562 But if we look at the second question which was put to those who disapproved—the 61 per cent.—they were then asked: Now that the House of Commons has decided that hanging should be abolished, do you still feel the same as before, or are you willing that abolition should be given a trial? Those who phrased the question were a little premature in that assumption. Those who were outright in their opposition were 40 per cent; 17 per cent. said, "Give it a trial", and 4 per cent. were undecided, making the total of 61 per cent. Therefore, if your Lordships look at these two questions together, when faced with the fact that the House of Commons had voted in favour of abolition, and the people who were questioned assumed that meant the law was going to be changed although in fact that was an incorrect assumption, the majority of the public opinion, that is 45 per cent., was willing to accept this decision. Thus 45 per cent. said they were willing to accept the change, while 40 per cent. were still opposed. In this sense opinion polls should be examined to see what they can reveal.
§ LORD DERWENT
My Lords, I was only doing mental arithmetic, but I think my noble friend has got his mathematics wrong. He is taking percentages of two different figures and adding them together.
§ LORD WINDLESHAM
No. You will find that the answers to the second question total only 61 per cent. They are subtotals of 61 per cent. We are still on a 100 per cent. base.
§ LORD STONHAM
My Lords, is the noble Lord aware that this is not the first time that his noble friend, Lord Derwent has got his figures wrong in this debate?
§ LORD WINDLESHAM
My Lords, I would not seek to draw a misleading argument out of this. It is just that most people quote only the first figure, and I think that if one looks at the second question it is more interesting because the point can be made that it 563 is acceptability that matters, rather than the positive desire for change. Having said that, I do not believe that legislation should be geared to opinion in this way. But I do think that this information—and there is not much information available—about the actual state of public opinion is relevant to your Lordships' debate.
For these two reasons I believe, as your Lordships probably have gathered by now, that this Bill should be given a Second Reading. The final removal of the death penalty in those cases where it still applies would not only rationalise the law, but would be a step forward towards a more just and a more lawful society, in which sanctions and deterrents of all kinds are less necessary than they are to-day.
§ 8.40 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, I believe it has been agreed that I may speak at this juncture instead of my noble friend Lord Grimston of Westbury. This will have the added advantage that your Lordships will not be burdened with me to-morrow. I speak—and I address this remark particularly to the noble Baroness, Lady Wootton of Abinger, opposite—as one who is at the present moment a genuine waverer upon my decision to-morrow. I hope that, if I ask a few questions of the noble Lady and perhaps the noble Lord, Lord Stonham, on the Front Bench, they may be able to help me and that I may be able to reverse the decision that I have tentatively reached at the moment. During the winter, when this Bill was receiving a Second Reading in another place, I sat in your Lordships' Gallery there with the noble and learned Lord, the Lord Chancellor. I told the Lord Chancellor at the time that I thought that, in principle, I was in favour of the Bill. Indeed, I still declare myself to be in favour of the abolition of the death penalty, if that is possible, and if an adequate alternative is provided in its place.
We are dealing with the Bill as it has been sent up to us from another place, and are dealing with it in the light of the debates that have taken place there. Although I started with the assumption that I would support the Bill, I am afraid that I had a nasty 564 shock when I read the speeches made by the right honourable and learned gentleman the Home Secretary. I was looking for the policy of the Home Office in regard to an adequate alternative to the death sentence. I was not so interested in the cases of emotional murder, the crime passionelle, or whatever it may be, which obviously needs special treatment, but I was particularly interested in the alternative sentence which was to be available with the professionally hardened criminal.
On the Second Reading of the Bill in another place, the Home Secretary said this—I hope that I may be forgiven for this quotation, but I do not think it has been made before:It may well be—I do not say that it will always be—that in cases hereafter, if there were no commutation because of mitigating circumstances, the death penalty having gone, whether it would seem proper, having regard to the nature of the crime and the character of the individual, that his sentence should be longer than nine years. I would be very reluctant to make it much longer"—I leave out a few words—because, generally speaking, experience shows that nine years, ten years, or thereabouts is the maximum period of confinement that normal human beings can undergo without their personality decaying, their will going and their becoming progressively less able to re-enter society and to look after themselves and become useful citizens."—[OFFICIAL REPORT, Commons, Vol. 704 (No. 38), col. 929, December 21, 1964.]That is the position. At a later stage (I think it was on Third Reading), the right honourable gentleman returned to the subject. He said:As I have said on previous occasions, the nine years, experience shows, is round about the time when one may begin to get symptoms to show that the person in prison is beginning to break down, Therefore in practice a number of persons have been released after nine years in prison."—[OFFICIAL REPORT, Commons, Vol. 716 (No. 152), col. 388, July 13, 1965.]Those are the quotations. I take them to be the sort of policy that is adopted by the Home Office in these cases. I agree, of course, that the dangerous person, the one who is mentally unstable, will be kept in longer. But, as I understand it, it is the current view of the Home Office that a person who is, apart from his murderous activities, normal will begin to break down in that sort of period in prison. At any rate, I have those two statements from the Home 565 Office to support what I have said. This concerns the hardened, dangerous criminal.
We are often told that the public must help to catch criminals; that the police have not enough manpower to do it themselves, and that we must all "have a go". I sometimes wonder whether I myself should have the courage to do it. But this is what we are exhorted to do. If, as is undoubtedly the case, the main deterrent to all crime (I am not at the moment speaking of murder) is the certainty of conviction, then clearly the public have a great role to play in this. At present, as is perfectly obvious from recent events, not only is crime a very paying proposition, but it is exercised by cunning, skilful men, with careful planning, with profits of the crime tax-free, and there is therefore a great incentive to some people to go in for it. Those are the people whom the police and the public have to try to catch, or to deter before they enter upon their crime.
Then one has the case of Mr. Biggs, who escaped from Wandsworth Prison. In his case we were told that a message was issued from Scotland Yard that members of the public should not attempt to catch him, or his confederates, because they were likely to be armed. As it appears to me, one has the deterrent for all crime, the certainty of conviction, in which the public and police co-operate. The moment you have a criminal with a gun, or with the threat of a gun, half that element in the force that is to catch the criminal is immediately put off by the authorities themselves, for their own safety; and the police alone are left to deal with the offender—like the young man on the run who was cornered in the basement in South Kensington, when, mercifully, it was only the police dog that was shot; or the lunatic who ran loose on the Cumberland Fells and eventually shot himself in the railway station. It is the police alone who have to deal with that sort of case.
To return to murder itself, again the Home Secretary said that the chief deterrent to murder was the certainty of conviction. I have no doubt that this is a very important element. But this is where the two particular concepts about which we are talking do not seem to me to tie up. When one has a 566 criminal loose, somebody escaping from a prison, somebody attempting to resist arrest, or somebody of that nature engaged in dangerous crime, for which he is liable to a very long penalty if caught, and if he is armed with a gun, I do not think the ordinary member of the public would be prepared, or ought, to face him. What is his position? In many cases a hardened, professional criminal is going to get a sentence, if caught, of, say, twelve or fifteen years. Allowing for the one-third remission mentioned by Lord Stonham earlier this afternoon, it means that he might well be in prison for ten years.
If he is a normal and intelligent man—apart from these other activities—he is probably the person who is likely most quickly to break down under a very strict prison regime, when he is perhaps allowed only a few hours out of his cell because he is a maximum security risk. He is allowed to do only the more boring jobs; his exercise is limited; he is frequently inspected in his cell, day and night, and undergoes the most severe, rigours of prison routine. It is this man whom we are attempting to deter by the certainty of conviction. What is he to do if he thinks that he may be arrested or recognised by somebody—perhaps a police officer or a member of the public—who comes across him in the course of either his crime or his escape, or whatever it may be?
If the Home Secretary is in fact going to adopt the line that he suggested in another place, that he will be most unwilling to keep somebody sentenced to a life sentence in prison for more than nine, ten or twelve years, what has that man in the way of incentive not to shoot the person he meets? If he is caught, he will be put in prison for something like that period, in any event. If he shoots the only witness to his activity, he may escape altogether; but even if he did not escape he would no doubt, through the intelligence service of his confederates, have discovered that this is the likely policy that may be adopted towards him by the Home Office. This is one of the questions to which I should be very interested to know the answer.
§ LORD STONHAM
My Lords, the noble Viscount has asked a number of questions. I refrained from interrupting him before, because I wanted to listen 567 to his whole argument. But at least he will agree that if, in the case which he has just put forward, there is the death penalty—and this is proved in America and in figures I have already quoted this afternoon—there is even more likelihood that the criminal will shoot the only witness than if there is no death penalty.
I do not want to make another speech, but may I just answer other questions which the noble Viscount asked? He said that he was looking for an adequate alternative to the death penalty. The only alternative that I know to death is life. He quoted my right honourable and learned friend in some of his speeches. Obviously, he did not hear all that I, at least, had to say on this subject.
§ LORD STONHAM
The first principle of my right honourable and learned friend is that a man will not be released if he is regarded as a menace to the public. That is the first duty of any Home Secretary. Therefore, the short answer to the noble Viscount is that in these unfortunate circumstances the man will be kept in prison so long as it is necessary to protect the public. But at Albany and elsewhere we shall provide special facilities for these men, so that they will not rot, as the noble and learned Lord, the Lord Chief Justice, said, in the way that has been the case in the past.
VISCOUNT COLVILLE OF CULROSS
My Lords, I am very much obliged to the noble Lord, because he has, in fact, anticipated the next point I wanted to make. It seemed to me that those who were sponsoring the Bill had to deal with the sort of circumstances which I have mentioned. I am very glad that the noble Lord, Lord Stonham, intervened at that point, and I think what he said clarifies the matter very considerably. I am bound to say, however, that I do not think that this is the general impression which has been left in the mind of the public, and it is very unfortunate if that is so. If the noble Lord—and it is obviously his responsibility in the Home Office to deal with this—is really prepared to take this line, it may make the whole difference; but I do not think it is possible to approach the matter on any other lines.
568 There is far too much said in debates of this nature upon the well-being of the prisoner himself, and far too little upon the protection of the society into which he will eventually again emerge, as I understand it after, in some cases, a comparatively short period of imprisonment. Therefore, I believe that the Bill—and I am talking about the Bill to which we are invited to give a Second Reading, and not about anything which may be done by the Home Office—approaches this matter rather from the wrong end. It is perfectly all right to say that people can be kept in prison for as long as is necessary for the protection of the public; but there are two problems.
In the first place—and I do not want to be flippant about this—it does not seem to me easy to keep people in prison. I am not referring to the recent events at Wandsworth. There happens to be a brand-new maximum security prison near where I live, in East Anglia, and at least one prisoner has got out of the maximum security part of that since it was built in the last four years. Another eight, I think, have escaped in circumstances which are less blameworthy, when they were out in a position of trust during the last six months of their imprisonment. But one, at any rate, has got out of the maximum security part when he was meant to be under maximum security.
There are other cases which we know about very well. There is power, and has been since 1948 as I understand it, to provide special accommodation for prisoners serving, for instance, very long terms of imprisonment. I do not know whether the new prison in the Isle of Wight is going to provide for this sort of thing—perhaps it is—but it seems to me that it ought to be firmly established that there will be accommodation available to keep people in prison for as long as necessary in the public interest, and not in their own, so that they do not deteriorate in the way that has been mentioned by the Home Secretary in another place, before we can begin to say that any adequate alternative is being provided in this Bill.
I go a little further than that. I entirely appreciate that prison accommodation cannot be provided for in this Bill, but I think something else can be done which is not in the Bill and has been resisted 569 throughout in another place. Either, in the event that no accommodation is available, you should put in some special protection for the police officer or the prison officer as the case may be against the person who tries to arrest or tries to prevent an escape; or, alternatively, you should set up some body or some system of the type which was suggested by the noble and learned Lord, the Lord Chief Justice, this afternoon, which will not leave these matters entirely to the discretion of the Home Secretary. I say this in no way derogatorily of the Home Office. I believe that they have expert advice, second to none; I believe that they take extreme care in the decisions made as to when people are to be released; but at the back of my mind I have the words of the Home Secretary and his reluctance, and, whatever the noble Lord, Lord Stonham, may say, I am still a little suspicious that there may be occasions when the deterioration of the prisoner becomes a bit more important than it ought to be in the very humane minds of the people in the Home Office.
This can be cured by a variety of methods, and these are to be discussed on the Committee stage of this Bill, if we get to it. It could be that the judge should be allowed to give a determinate sentence in certain cases. It could be that the Home Office should call in an outside panel, possibly consisting of Judges of the Court of Criminal Appeal and others, to help them when it comes to a decision about whether or not to release a man. Many schemes could no doubt be provided. But the difficulty is that we are asked to give a Second Reading to the Bill, the sponsors of which in another place have flatly, blankly and resolutely refused to consider any such thing whatever. Copious Amendments were put down in another place to deal with this matter. They were all rejected, mostly on a Division, and so far as I know there has been no suggestion this afternoon that any further consideration whatever will be given to this matter. That is the situation which I am in.
I am prepared to support the abolition, but I am not prepared to support it unless I am absolutely certain—100 per cent. cast-iron certain—that a proper alternative will be provided to the death penalty, 570 a penalty which will deter the people who I am quite certain will not be deterred by a maximum of nine or ten years in prison, as an average. This matter can be put right in Committee, but unless assurances are given—I think chiefly by the noble Baroness, Lady Wootton of Abinger, because, after all, it is her Bill, no doubt backed up by the noble Lord, Lord Stonham—that we shall be allowed to discuss and, I hope, to carry into the Bill some sort of scheme on the lines that would have satisfied the noble and learned Lord, the Lord Chief Justice, and unless I am convinced by the final speech of the noble and learned Lord, the Lord Chancellor, who is very important in this matter—
§ BARONESS WOOTTON OF ABINGER
My Lords, the noble Viscount knows very well that he will be able to move any Amendment that he wishes on Committee stage. But he must not ascribe to the sponsors of this Bill any responsibility for the attitude they will take.
VISCOUNT COLVILLE OF CULROSS
My Lords, I am obliged to the noble Baroness. This makes my fears even more well founded than I thought. But unless I am satisfied that these alternatives will be provided, then I am left in the position that the death penalty is going to be abolished for the cases of which I am really afraid, and that no adequate alternative is going to be provided in this Bill. In that case it is a matter of principle, and I shall have no alternative but to vote against it. I hope, however, that I may be able to have my fears allayed at a later stage by the speeches of noble Lords and Baronesses opposite, in which case I will support them in the Division Lobby.
§ 9.0 p.m.
§ LORD AUCKLAND
My Lords, during the seven-and-a-half years I have been a Member of your Lordships' House I have addressed this House on a number of occasions, but I have never had such a difficult task as the one I have to-night, and other noble Lords may well find themselves in this position. Whatever we may think of this Bill, it is a very important Bill indeed. To my mind, it is slightly like an uncooked omelette—the ingredients seem to be right, but the putting together has certain shortcomings. The noble Baroness who moved the 571 Second Reading did so with her customary charm and ability. I hope that the questions which my noble friend Lord Colville of Culross put forward in his excellent speech will receive very serious consideration, not only here but in another place when the Bill is returned, as it clearly will be, with a number of Amendments, if it receives its Second Reading—as, frankly, I hope it will.
It has been said that there are constitutional difficulties facing this Bill if it is passed, but, since I am not a lawyer, I will not go into them. I will accept that there may be. But we are discussing the Bill on its face value, and the issue before the House to-night, and more so to-morrow, is whether the death penalty is to be abolished. If the Bill passes through all its stages in both Houses, it does not preclude another Government, some years hence, from bringing in another Bill to restore the death penalty should this be needed. But one thing seems to me to be quite certain, and that is that the 1957 Act has been proved to be totally inadequate for the purpose for which it was drafted. Examples have been given. If you strangle, poison or stab another person but do not steal anything, that is all right; you go to prison for nine years plus. But if you steal 6d. from your victim's pocket, you are liable to the death penalty.
A good deal has been made of the fact that the death penalty is a deterrent. I should like to believe that it is. During the months that this Bill has been passing through another place I have been approached by a number of friends and acquaintances of mine, of all Parties, and almost all have said, "When this Bill comes to your House, you must see that it is thrown out". My answers have been non-committal, because I always approach any Bill—or I try to—in an objective manner, and this Bill will be no exception. Some of your Lordships may recall that in, I think, 1928, there was a particularly horrible murder of a policeman, Police Constable Gutteridge, who was shot down by two men whom he was trying to arrest from a stolen car. They wounded him and then, as he was lying on the ground, they shot him through his eyes. These men were executed. There was the famous case in 1935 of Dr. Ruxton—a hitherto blame 572 less man, so far as I know, who killed his wife in particularly foul circumstances. There was another particularly nasty case in 1938 at Nottingham, of a man called Frederick Nodder who enticed a small child to the river bank, strangled her and threw her into the river. He, too, paid the supreme penalty.
§ LORD STONHAM
My Lords, may I interrupt the noble Lord? In neither the case of Dr. Ruxton nor in the case of the man who foully murdered the child at Nottingham would the murderer have been hanged under the 1957 Act. They are not capital crimes. I thought it right to make that clear.
§ LORD AUCKLAND
That is just the case I was trying to make: that the fact that the death penalty was in force at that time was really no deterrent.
§ LORD AUCKLAND
Some ten years ago a young man who was at school with me in the West Country killed both his parents in Cornwall and threw them over a cliff. He, too, was executed for a particularly nasty murder. My Lords, in those days the death penalty was in force for any type of murder. Yet did that deter him? I have instanced these cases, although, admittedly, to-day we have different circumstances. There is more money about, and easy money can be got by youngsters.
It can be said that the Act of 1957 may deter a youngster from carrying fire-arms because if he shoots somebody he can go to the scaffold, assuming he is over 18. But your Lordships may also recall the case of Ruth Ellis, who killed a man in cold blood in a crime passionel type of murder. When she was executed there was a great public outcry; yet this was surely a particularly nasty, premeditated murder, even though it was done in a fit of jealousy. She obviously had not been worked up. So I do not think that the conviction that the death penalty is such a deterrent really holds water. I should like to think about it.
As I said earlier, I am not wholly satisfied with this Bill. I feel, as other noble Lords have done, that a Bill of this kind should have had Government blessing and the Government should have sponsored it. But at the same time, 573 I think the honourable Member for Nelson and Colne is to be congratulated on his courage in moving this Bill, even though some, like myself, do not agree with many aspects of it. At least, it is doing something to obviate the present chaotic conditions. One may ask what is to be done. My noble friend Lord Colville at Culross mentioned the new prison at Albany. I would follow him in his observations. The Sunday Telegraph last week had an article about a new prison for hardened criminals, including murderers, at Stuttgart, in Germany, which has every modern device. But they have had no escapes, because the prison is sufficiently equipped, wired and so on to prevent this and they have sufficient staff. I think this is important in regard to these new prisons such as Albany—and I hope there will be others.
I should like an assurance from the Home Office that top priority will be given to these matters, for it will be most important, if this Bill becomes law, that the staff should be specially picked men, who should perhaps be paid extra money. If possible, they should work in shifts rather like lighthouse keepers. Of course, there are difficulties here; but it would mean that we should get a really first-class type of prison officer to look after these hardened cases. It is important, at least in the initial stages, that when these murderers are sent to prison they are put into no doubt as to the severity of their crime and are not softly treated.
I am not altogether convinced that the present Home Secretary is entirely wrong in his arbitrary sentences. Great advances are being made in psychiatry and other forms of treatment, and I think it may be possible within nine or twelve years to reform quite a number of these murderers. I do not refer to men like Neville Heath, who committed two particularly foul murders. Was he barred by the deterrent of the gallows? His last words on going to the scaffold were, "All right, boys. Let's get going!" This was symptomatic, perhaps, of some Western film. Of course it may be that Heath was not entirely sane. Naturally, I should not be in a position to judge that. The Home Secretary at the time obviously went into this question thoroughly.
I think too that the noble and learned Lord, Lord Morris of Borth-y-Gest, made a particularly valuable contribution to 574 this debate from the point of view of his experience in trying these cases. It is all very well for the public to scream for the return of capital punishment; but if there is a borderline case and somebody goes to the gallows (as in the case of Timothy Evans, on whose case I will make no more comment because it is the subject of a Parliamentary Question) they turn the other cheek and make a different form of outcry. I am certainly not a confirmed abolitionist; it may be, if it is proved that there is a real increase in particularly violent murders, that, whichever Government are in power, they will have to revise their views. In the meantime, I think that it would be a great pity if in a modern society we could not give this Bill at least a trial. I believe that a former Home Secretary, with his moratorium Amendment, probably had something. I do not know whether it is workable in law. There may well be foreign conventions and so on which would make difficulties, but it seems to me that something of this kind is needed.
If this Bill becomes law, it is vital that we should have maximum security prisons and suitable staffs to run them. I believe that the police and the public can be adequately protected, and that capital punishment can be abolished at least for a trial period, provided that these conditions are applied. I hope the sponsors of the Bill, when it goes back to the Commons, if it is given a Second Reading here, will consider these matters very seriously, because there are many people in this country, of all Parties, who would wish that. Meanwhile, my inclination is to support the Second Reading of this Bill.
§ 9.15 p.m.
§ LORD BROCKWAY
My Lords, I am the twenty-fourth speaker in this debate, and I hope I would take the view that if I had not something new to say I should withdraw my name from the list. I venture to think that before I conclude I shall convince the Members of this House that I have had a rather different experience from theirs, and from that experience have learned something which is applicable to this Bill.
I regret very much that the noble Viscount, Lord Colville of Culross, is not present in the Chamber. I am always impressed by his speeches. Indeed, I 575 regard the noble Viscount as the one solitary argument which I know in favour of the hereditary principle. I should like to have said to him, had he been present, that surely he must give his vote on the principle of the death penalty. I had very great sympathy with his argument that we must be careful about the alternative to the death penalty. I have been a prisoner, and I have been Secretary of the Prison System Inquiry Committee, and I place very great emphasis not only on the betterment of the individual prisoner but of society itself in the treatment given to prisoners, particularly to long-term prisoners.
I am quite sure that if Parliament decides to abolish the death penalty, it will not be long before we shall have to face the question which the noble Viscount, Lord Colville of Culross, and, indeed, the noble Lord, Lord Auckland, raised, of the treatment which would be most effective to protect society against those who have been guilty of murder. I urge both the noble Lords who spoke before me that their decision to-morrow should be on the principle of the death penalty, and, if Parliament decides to abolish the death penalty, I hope that their voices will be raised, with many other voices, for such changes in the prison system as will give security to society against those who are a danger to it.
My Lords, I wish first to give an example which has not yet been given of the very great question which must be in all our minds when we consider the death penalty: that is, the terrible issue of whether a mistake may be made when someone is condemned to death. I was delighted to hear the speech of the noble Lord, Lord Layton. I am old enough to remember the Oscar Slater case, to which he referred. Oscar Slater was condemned for the murder of a girl called, I think, Ada Gilchrist. He was not hanged. He was sentenced to life imprisonment. He served eighteen years, and after those eighteen years it was proved that he was innocent. It might have been proved that he was innocent after he had been hanged, but that would not have been much advantage to him, though it might have been some consolation to those who were dear to him.
576 We have had the case of Timothy Evans mentioned frequently and I shall not refer to that further. I am going to refer to a case which has had no mention to-night, because I investigated it in great detail. It is the case of the A.6 murder, in which James Hanratty was condemned to death. In another place, on Friday, August 2, 1963. I asked for an inquiry into that case, because my close examination of all the evidence led me to the view that there was grave doubt that James Hanratty was guilty of that murder. In the debate which took place there were two speakers from the Conservative side, one of whom afterwards became a Minister, and two speakers from the Labour side, in addition to myself, both of whom have since become Ministers. All, except the Home Secretary, who replied to the debate, took the view that I put a case which demanded an inquiry as to whether Hanratty was ever guilty of that murder. I will not pursue that now, but there have been legal reasons why, during the last two years, I have not pressed again for an inquiry. To-night I say only that I shall resume that pressure as soon as the opportunity occurs.
That is the first new factor which I have introduced into the debate. The second new factor is this. I suppose that I am the only Member of this House who has been a prisoner in British gaols when men have been sentenced to death. I have been locked in my cell at 8 o'clock in the morning, waiting for the bell to toll, which indicated that a man had been hanged. I have passed through that experience three times, and it was only a few hours before Roger Casement was executed that I was released from Pentonville Prison.
My noble friend Lord Francis-Williams, as a newspaperman (and I sympathise with what he says, because I am also a newspaperman) described the ghoulish effect on public opinion of murder trials and executions. I ask your Lordships to think for a moment: if there is that ghoulish effect on the general public, what must be the effect on the population within a prison? They are so near a man who is to be executed. From the exercise yard one sees the gallows and scaffold. One passes the death chamber in which the man is kept during the days before the execution.
577 One meets the prisoners who have been given the task of cleaning the gallows before the execution takes place. In those conditions, an epidemic, an infection of sadism of the most appalling and bestial kind passes through the prison population. I was there immediately before the execution of Roger Casement. In the workshop was a prisoner who was making a book of bets as to whether Roger Casement would be executed or not; the prison coinage was a thumbful of tobacco. Those men in prison are regarded as the lowest in our community, the most subject to bestial response in an atmosphere around them. If one is thinking of society, there is nothing which could be more lowering to the mental or moral attitude of people in prison than a man being executed a few yards away.
I have been sympathetic towards the attitude of the members of the Prison Officers' Federation. I did great propaganda in forming that Federation when I was in prison. I understand the danger they feel, that if the death penalty is removed, in their circumstances prisoners may violently attack them, and perhaps kill them. But when the Prison Officers' Federation take that view, they are not reflecting the view of many officers who are personally involved in the executions which take place. I have spoken to them: the two warders who have nearly to carry the man to the scaffold before he is executed; the two warders who live night and day with the man in his cell before the morning of execution.
I was in the hospital of Liverpool Prison on my bed in a cell. To my surprise, after the last meal, the key turned in the lock of my door and the chief warder entered. He sat on the side of my bed and said: "You don't mind my coming to talk to you, Brock-way?" I said: "No". He said: "I have got to talk to someone. For three weeks I have been in charge of a man here who has committed murder. He has committed it; he acknowledges it. But he has told me his whole story. He has so revealed his mind and soul to me that I feel he is my son. I know him, and to-morrow morning I have to go to his execution. I have got to undo the buttons on his shirt after he is dead so that the doctor can sound whether his heart has ceased. And I am doing it to someone who is now my son." 578 I conclude by asking every noble Lord here: have you the right to vote tomorrow in favour of the retention of the death penalty, when I do not believe one of you would be prepared to act in that way at an execution—carrying the man to the scaffold, undoing his shirt, listening to his heart? What we are not ready to do ourselves we have no right to ask anyone to do on our behalf.
My Lords, the noble Lord has had vast experience, I can see. He would not be in this Chamber now if he had not reformed his outlook on life.
§ 9.32 p.m.
§ LORD RAGLAN
My Lords, when a week ago I made my maiden speech in your Lordships' House, there was a debacle. This time I hope I have got myself in better order. Nevertheless, I give the assurance that I shall not be long. I think your Lordships, individually and collectively, must be the kindest and most courteous legislative assembly in the world, and if it were for that reason alone I should consider it a privilege to belong to your Lordships' House. I myself have received nothing but kindness and courtesy here, and I should like to say that I am grateful for it and responsive to it.
My main reasons for supporting this Bill are not just that the 1957 Homicide Act is illogical. Many of our laws seem at times to be illogical to me, but, of course, times and opinions change, and our laws reflect the state of mind of society at the time that they were passed. The 1957 Act, though a compromise, in my opinion has been an invaluable half-way house while the mind of the public was being prepared by reformers to accept total abolition. The arguments about abolition in which I have taken part, and of which we have heard much to-day, start round the question of whether the death penalty is a deterrent. So one asks someone who thinks it may be a deterrent whether five years without it is not worth at least a try. Then come more doubts. They say that it is a just retribution. They 579 ask: "Are not people of this sort better done away with anyway?"
I have some sympathy with the noble Viscount, Lord Colville of Culross, but the sympathies of my heart and my head are with the noble Lord, Lord Brockway. My answer to this Bill is that it is a matter of principle, and, surely, we should never in any circumstances encourage the use of violence in our behaviour. We should discourage it how we can, and we should consider how this policy of increasingly peaceful coexistence has benefited us as the years of civilisation have progressed. There is an instance I can take here in your Lordships' House. The Table dividing the noble Lords on the two Front Benches is, I have been told, two sword-lengths wide, so that, if provoked, one angry and dexterous noble Lord cannot run another through. This may be a legend but it is an indicative one. Nowadays, thank goodness!, your Lordships settle your arguments without bloodshed. It is not thought good form to draw a weapon on anybody, or even to wear one except in costume.
We have abolished the rack and the wheel and the cutting out of tongues, and, as we have heard from the noble Baroness, Lady Wootton of Abinger, shoplifters are no longer hanged; they are not even transported for life. Mental violence such as brain washing is deplored. In short, my Lords, we have become more civilised, more humane, more gentle in our attitude to our fellow creatures, and I think all your Lordships must agree that society is the better for it. These changes in deportment have, I believe, always come about by imitation of the leaders of society, whoever they may be considered to be at the time, for we copy whatever behaviour we are encouraged to think admirable. The death penalty and the elaborate ritual which goes with it is brutal and violent, and therefore I believe it sets a bad example and not a good one.
§ 9.38 p.m.
§ LORD WELLS-PESTELL
My Lords, in view of the lateness of the hour and the fact that most of the ground has been more than adequately covered I do not propose to keep your Lordships more than a minute or two. For me, the question of whether or not we should abolish 580 the death penalty is a very simple one. It is not for me a test of whether the death penalty is a deterrent or not, but whether it is right for society to impose an irrevocable sentence. That may be over-simplifying the matter but for me it is the test. I am not persuaded that the processes of law are infallible. I think there is an abundant amount of evidence to show that in this century more than one innocent person has been hanged, and because of that possibility—because of that actuality—I feel that society ought not to impose a sentence that it cannot reconsider if the occasion arises.
It is on an occasion of this kind that my mind goes back to a situation towards the end of 1953, when a young police officer in Buckinghamshire was savagely attacked and assaulted by three men. In the process of time three men were apprehended and charged, and early in the next year, in January, 1954, those three men were sentenced to 10 years', 7 years' and 4 years' imprisonment respectively, it being only by the mercy of Providence that the police officer did not die but recovered from that savage attack. In the course of time the Home Secretary was informed that these three men were not guilty of the offence for which they had been sent to prison, and the Home Secretary of that time, with commendable speed, caused an inquiry to be held. It was found that the three men convicted of that savage assault were in fact innocent. All I want to do is to remind your Lord-ships that a police officer was involved. If that police officer had died, one, if not all, of those three men would have been hanged.
It is because situations of that kind have arisen and do arise that, for me, the test is the very simple one: that society must not impose an irrevocable sentence; and, for that reason, if for no other, I would not only support the Second Reading of this Bill but would ask your Lordships, in the light of knowledge, in the light of what has happened in the past, to give it your support as well.
§ 9.40 p.m.
§ THE MARQUESS OF HERTFORD
My Lords, I rather doubt now whether it is possible to produce any further arguments in favour of the abolition of the 581 death penalty. However, I have an un-easy feeling that many of your Lord-ships remain convinced that it is necessary to retain this unique and awful deterrent if only because it is the only punishment that is as unique and as awful as the crime of murder itself.
My own conviction that the death penalty should be completely abolished stems from the simple fact that I do not believe that either an individual or a State has any right to take the life of a man or a woman even if that man or woman is a murderer. My conviction is supported by the massive weight of evidence which shows that this "unique deterrent" is no such thing, for its removal in other countries has made no difference. Unless you actually believe that the British are more brutal and more inclined to commit murder than those of any other nation, and that they are more likely to be restrained from murder by the fear of hanging than others, to talk of the necessity of this deterrent is, with all due respect, nonsense. I sincerely hope that your Lord-ships will give a Second Reading to this wise, excellent and long-awaited measure of reform.
§ 9.42 p.m.
§ LORD REDESDALE
My Lords, I rise as one of the younger Members of your Lordships' House to support this Bill. I feel that it is morally wrong to take life as retribution. Public opinion is said to be in favour of the retention of hanging as a deterrent. If this really is the case, I suggest the motive is revenge rather more than deterrence. I am sure, in fact, that public opinion is really in favour of abolition and cannot in 1965 allow cold-blooded licensed killing to remain in our legal system. I do not believe that hanging is a significant deterrent. There are some murders, like the one cited by the learned Queen's Counsel Mr. Emlyn Hooson in another place, of the man he represented who said, "She deserved to die and I want to hang for it". In that case, hanging was not a deterrent but almost an incentive.
The psychological context is most important, especially when it comes to 582 young people. The majority of murders are committed, in fact, by young people. In 1963, 62 per cent. of murders were committed by people under 30. The reason for this, I believe, is fairly simple in that to younger people life is less precious than it is to their elders. The greater the risk, the greater the thrill and enjoyment; the "chicken dare" has produced a number of tragic deaths. Thus the death penalty can be seen to be an exciting challenge that is there to be cheated. Therefore, I submit that for the young the idea of growing old in prison is a more sobering thought than the notoriety and glamour of execution. This is borne out by what the noble Lord, Lord Haire of Whiteabbey, said of public executions in the nineteenth century. Consequently, I hope your Lordships will to-morrow show that you wish the death penalty to be removed from our penal code.
§ 9.45 p.m.
§ VISCOUNT LONG
My Lords, I have listened to many speeches and I wish to ask one question—namely, which of your Lordships can really say that you have the confidence of the public of this country? I am quite confident that 75 to 80 per cent. of the public of this country, the men and women in the street, are dead against this Bill becoming law. Not one of your Lordships has mentioned this fact this afternoon. The noble and learned Lord the Lord Chief Justice, said that 70 per cent. of the public of this country will agree to a 30 years' life sentence. Does he know—?
§ VISCOUNT LONG
My Lords, I wanted to say this, because I was a magistrate for forty years, and I know a little about this. I can assure your Lordships that if you pass this Bill you will not have the confidence of the public of this country.
My Lords, on behalf of my noble friend Lord Molson, I beg to move that this debate be adjourned until eleven o'clock to-morrow morning.
§ Moved accordingly, and, on Question, Motion agreed to.