Orders of the Day — Criminal Justice Bill

– in the House of Commons at 12:00 am on 28 November 1947.

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Order read for resuming Adjourned Debate on Question, [27th November]," That the Bill be now read a Second time."—[Mr. Ede.]

Question again proposed.

11.6 a.m.

Photo of Sir Frank Soskice Sir Frank Soskice , Birkenhead East

It had been anticipated, I believe, that the right hon. Member for Horsham (Earl Winterton) was going to speak first today. We are both in somewhat of a personal difficulty, as we both have subsequent speaking engagements, and I thought that we might perhaps ask the indulgence of the House so that, after we have made our contributions, we should not take any further part in the Debate. We hope the House will excuse us in these circumstances.

We had yesterday what, I feel everybody must agree, was a useful and interesting Debate. A Measure of this sort, which is acceptable in principle, I think, to all hon. Members, is difficult for that reason to discuss on Second Reading, and is particularly a Measure which will require more careful scrutiny in its individual Clauses when the Bill goes to the Committee which will subsequently consider it. I have considered how I could most usefully contribute to the Debate, which is now half way through, and I feel that possibly my most useful contribution might be to try to refer to those matters of detail which either have not been covered in this Debate or as to which individual hon. Members who have spoken have expressed apprehension or even disagreement. Approaching the matter upon these lines, it seems to me that I cannot usefully add to what is a matter of general principle, which has already been stated with clarity by my right hon. Friend and has been subsequently expanded in the speeches of hon. Members.

In the forefront of his speech, my right hon. Friend indicated that I would deal with some of the more tiresome technicalities, and he mentioned that they arose out of Clauses 26 and 27. These Clauses at first seem innocuous, and, like so many of these Clauses, more or less unintelligible, but they do, in spite of that, touch on a matter which is of real substance to all members of petty sessional benches and to courts which have to deal in summary fashion with matters that come before them. These Clauses are designed to obviate a rather unexpected result that was produced by a decision in the cases of the King v. Sheridan and the King v. Grant, both of which were decided in 1936.

The matter arose upon cases which, under Section 24 of the Criminal Justice Act, 1925, can be brought by consent of the accused summarily, whereas, otherwise, they would have been triable on indictment. The Section requires that, before making up their minds whether they will deal with the matter summarily, the justices must take into account the character and antecedents of the accused. Before 1936, a practice had grown up which seemed to be required by considerations of justice and fairness, that the justices should first consider the evidence and the matters with which the accused was charged, and when they had made up their minds and announced their decision with regard to that, they would proceed to hear and consider evidence touching the character and antecedents of the accused. It seemed that justice required that because, obviously, it would seem unfair to an accused person when the justices were making up their minds whether he were guilty or not, to know whether he had been previously convicted, or had a criminal record. That practice had grown up, and was considered appropriate in cases of petty sessional courts.

Then came the case of The King v. Sheridan. That practice had been followed, and when the justices had announced their decision to the effect that the accused person was guilty, they proceeded to hear evidence as to his character and antecedents. It then appeared that his character and antecedents were such that the justices thought the case far too serious for them to deal with summarily and that they ought to send it to quarter sessions. But when it got to quarter sessions, the accused person, through counsel, raised a defence that he had been autrefois convict at the court of summary jurisdiction, with the result that the whole thing was quashed, and he got off scot free. That indicated that in future justices would have to consider questions of character before they decided whether an accused person was guilty or not, which had been rejected as unfair to the accused, or in effect they lost this power of remitting to quarter sessions cases which, when the accused's antecedents were investigated, seemed too serious for summary jurisdiction.

The way in which Clause 27 seeks to deal with the position is to take out of Section 24 of the Criminal Justice Act, 1925, the requirement that, before deciding whether they will deal with a case summarily, the justices must consider the character and antecedents of the accused. In the Ninth Schedule an Amendment is made which enables the justices, if they decide to try a case summarily within Section 24 of the 1925 Act, and, having announced their decision, discover when they look into the antecedents of the accused that he is person with a bad character who ought to go to quarter sessions, to send him to quarter sessions. It removes what had heretofore been an anomaly, and helps them to make up their minds whether the accused is guilty or not first, without hearing his past record, and then to hear his record and decide whether he should be dealt with summarily, or should go to quarter sessions. An impediment and difficulty has been found by justices in the past, and its removal will, I hope, have the effect of giving real value to Section 24 of the Criminal Justice Act, 1925, instead of making it a dead letter for some purposes, as it must be at present.

This Section also affects Section 11 of the Summary Jurisdiction Act, 1879, where a juvenile's character has to be taken into account before the justices deal with him summarily. That is removed. It is a majority point of technicality with which the Bill deals, and I hope the House will agree that, technical though it is, it is a contribution to our system of justice.

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

There is a point about Clause 27 about which I wish to question the hon. and learned Gentleman. The committal for sentence of which he has been speaking appears from my reading of the Section to mean that if a person is so committed, although he will therefore render himself liable to a greater sentence than the justices would otherwise have power to inflict, he will none the less be able to dispute his guilt at quarter sessions whereas he might have consented to be dealt with summarily had he known that that was to be the situation. Is that correct?

Photo of Sir Frank Soskice Sir Frank Soskice , Birkenhead East

There is a further amendment in the Ninth Schedule which provides that warning is to be given to him as to the possible consequences of his consent. I hope the House will excuse me from going into the technicalities of that, because it would involve a rather prolonged investigation of what is a rather dry matter, but the substance of the change is as I have indicated.

I wish to pass to other points similar in their nature although, I hope, possibly not quite so dry. The next point I have selected is one which was mentioned in the Debate inferentially by the hon. and learned Member for Exeter (Mr. Maude), when he called for a greater use of written evidence, as distinct, from spoken evidence. In Clause 34 the Bill makes some advance in that direction. This Clause looks unimportant, but is in fact quite important, and makes a great contribution. It enables written evidence to be given on matters related to plans and drawings without the person who made the plan or drawing being before the court, and enables certain matters to be proved by a certificate of a police officer. All hon. Members who have had occasion to appear either as accused persons—and quite a number of us may have done that—or as counsel, solicitors, or justices, in police courts dealing with offences against the Road Traffic Acts will see the object of this Clause. Anyone who goes into a London police court may see 20, 30 or 40 cases of motor car offences, offences against lighting regulations, obstruction, and so on, and in each case it is technically necessary, unless the accused has written a letter admitting his guilt, for a police officer to be present to give merely formal evidence of the accused's ownership or control of the car in question.

The Clause is designed to make it unnecessary for police officers to give that purely formal evidence, which, in criminal proceedings, must, unless made unnecessary by a Clause of this sort, be strictly proved. There may be 20, 30 or 40 of these cases, and a whole array of officers may be present and have to wait all the morning. If they are concerned in a careless or dangerous driving charge, they may have to wait until the afternoon, when the charges are generally taken, but quite often their evidence is only required for formal purposes. In these days, when police forces are replenishing their manpower, and many are under-staffed and have a serious criminal problem with which to deal, it is important as it is always important, that police forces should give their time to what is more serious rather than what is less serious.

The reason for the Clause is that it is not really necessary, if it can be avoided without any injustice to the persons in the case, that a police officer should be required to be present on such an occasion, and the Bill says that that sort of evidence can be provided by the production of the police officer's certificate that a statement was made by him about the matter which has to be proved. The Clause provides the safeguard that the document has to be served upon the accused person not less than seven days before the hearing or trial, and if the accused person should wish to raise any point about the document, he has the right to require that the police officer or other person who has prepared the plan or drawing shall attend for cross examination. We feel that this may be a real contribution to the smooth effective running of our system of criminal justice.

The next point with which I wish to deal is one which perhaps involves something more of principle than the last two points. It arises on Clause 28, which deals with juries. In the interesting and deeply felt speech which he made yesterday, the hon. and learned Member for Exeter pointed out, as is the fact, that the right of peremptory challenge of jurors is scarcely ever exercised. There are two ways in which jurors can be challenged. One is the peremptory challenge, without any cause being given; the other is challenge for cause shown. The second affords to the subject, we think, a great measure of protection, and it is doubtful whether he gets any further protection by his right of mere peremptory challenge.

In cases of high treason the accused can challenge, without cause shown, up to 35 jurors; in cases of other types of treason and felony the accused person has the right to challenge, without cause shown, up to 20 jurors. He can simply say he does not like them and they have to go. In addition to that, he has the right, without any limit of numbers, to challenge jurors on cause shown: that is to say, he or his counsel can raise an objection, which must then be justified before the juror is discharged from the jury. In these circumstances, the question is whether it is desirable to retain the rarely exercised peremptory challenge of jurors. The fact of the existence of that right is that a great many people may be required to attend at courts of assize and other courts who will not be called upon. They go there, and have to sit in the court, doing nothing, being away from their daily avocations, in these days of shortage of manpower, and probably their services will not be required at all. The right is not exercised, and they go away.

The question is whether it is desirable in the interests of the community in these days to retain what is an obsolete right—[HON. MEMBERS: "No."] It is a right which is, in fact, not exercised, except on the rarest occasions. This again is a matter which no doubt may be further considered on the Committee stage. I am merely stating in general terms the case which the Government make for the Clause. It will prevent a number of people, in these days of shortage of manpower, from spending hours in court when their services will almost certainly not be required. That is the justification for the Clause. It also makes an alteration in regard' to those cases in which a juror is challenged upon cause. As the law stands, if cause is alleged for the removal of a juror, it is provided, under Subsection (2), that the judge shall try the issue as to whether cause is shown for the removal of the juror.

Photo of Mr Hector Hughes Mr Hector Hughes , Aberdeen North

My hon. and learned Friend has said that this right of peremptory challenge is an obsolete right—

Photo of Mr Sydney Allen Mr Sydney Allen , Crewe

Would the Solicitor-General not agree that something may be very valuable, although rare, and very often is valuable because it is rare?

Photo of Sir Frank Soskice Sir Frank Soskice , Birkenhead East

I would answer my two hon. and learned Friends by saying that it is obvious from their interventions that this question will be further investigated during the Committee stage. At this point, on the Second Reading, I am doing no more than stating, in general terms, the case for it. It is a right which is rarely exercised and the provisions of this Clause would produce a great saving in manpower. We feel that the right of peremptory challenge does not give any greater protection in any material sense than that which is provided by challenge for cause shown.

I now turn to Clause 33, which deals with the taking of fingerprints. This is another provision in respect of which some apprehension was shown yesterday. Again, I would like to state the case for the Clause, but again, it is a matter which may be discussed at a later stage. The case for it is that at the moment the limitation on the powers of the police in this respect constitutes a serious hindrance, with unfortunate and undesirable results. It is not as though the law provided that only persons who have been convicted of an offence can have their fingerprints taken. That is not the law at present. Under the Penal Servitude Act, 1809, Section 8, there is already power, subject to certain safeguards, to take the fingerprints of a person remanded in custody, although he has not yet been tried or convicted. It is not as though we were making any inroad on the rights of the citizen in any matter of principle. There is that power already.

We are seeking to extend it because it seems that it does not operate with sufficient effectiveness to prevent the following sort of difficulty arising. There may, for example, be an accused person who has been convicted on a number of previous occasions, and who is not remanded in custody. Therefore, his fingerprints cannot be taken. But they were taken on the previous occasions when he was convicted, and in the case upon which he comes before the court again he has left his fingerprints at the place where the offence was committed, so that it is obvious to the police he is the person who did it. They know that he has had his fingerprints taken previously, and they have them in their possession, and if they could only produce those fingerprints they could prove the offence against him. They cannot do that, however, because they will be making it perfectly clear to the jury that he is a person who has already been convicted. Therefore, they cannot obtain the necessary evidence and produce it in court. We feel that to be a completely unnecessary and undesirable obstacle to the administration of justice.

Photo of Sir Frank Soskice Sir Frank Soskice , Birkenhead East

My hon. and learned Friend shakes his head, but it seems to me to be undesirable. If this provision were oppressive and entirely novel, perhaps there might be some reason against it.

Photo of Mr Hector Hughes Mr Hector Hughes , Aberdeen North

I shook my head because I regard this as an infringement of the liberty of the subject.

Photo of Sir Frank Soskice Sir Frank Soskice , Birkenhead East

My hon. and learned Friend has made his point, and no doubt he will make it again. There is no such obstruction in Scotland.

Furthermore, there is this unfortunate characteristic about the present situation. It affords a temptation, which is not yielded to, to police authorities to resist bail because they know that if a person is remanded in custody they can get his fingerprints, whereas if he is not remanded in custody they cannot. Advice has been given on previous occasions by the Secretary of State to chief constables, that it would not be proper to resist bail simply in order to get fingerprints; and bail is not resisted for that reason. However, it is not desirable that the temptation should exist. We seek to remove what we regard as a wholly unjustifiable anomaly, thereby conducing to the good and proper administration of justice in a manner which we think necessary.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester West

The point has been raised about what would happen to these fingerprints in a case where a person was found not guilty of the offence with which he was charged. There appears to be nothing here about the destruction of the fingerprints.

Photo of Sir Frank Soskice Sir Frank Soskice , Birkenhead East

The regulations under the 1891 Act provide that in the event of a person being subsequently discharged his fingerprints should be destroyed. This Bill does not contain a similar provision but, again, that is a matter which hon. Members may desire to discuss further in Committee.

The right hon. Member for North Leeds (Mr. Peake) expressed apprehension upon the basis that persons who attended on summons, for example, for a motorcar offences, might be liable to have their fingerprints taken by force. I can assure him that if he will be good enough to look more closely at the Clause he will see that it applies only to people charged with an offence who have been taken into custody or who have been brought, and it does not apply to persons who attend in response to a summons. Therefore, it would not cover the case to which he referred.

Photo of Mr Osbert Peake Mr Osbert Peake , Leeds North

May I ask the Solicitor-General what is the purpose of the words: … or is brought charged with an offence.

Photo of Sir Frank Soskice Sir Frank Soskice , Birkenhead East

The Clause is designed to deal with the case of a person in respect of whom a warrant for arrest has been issued or the case of a person who is arrested without a warrant. It does not include a person who attends in response to a summons.

A number of hon. Members raised questions about probation orders. I would like to state the Government's case. The point was whether the power which exists under the Probation of Offenders Act to make a probation order without proceeding to conviction should be retained, or whether it should be abandoned as we have abandoned it in Clause 3. The Clause reads: Where a court by or before which a person is convicted … The reason why we have abandoned the power, and the reason which we commend to the House, is that the procedure whereby a person is found guilty of an offence—that is to say, the offence is proved in every sense of the word—but he is not said to be convicted is, as we feel and as the Courts have said, wholly anomalous. A probation order cannot be made under the Act of 1907 unless the offence has been proved. When a person has been brought before a court and the offence charged against him has been proved, it is felt, and it has been said by at least two learned judges in cases to which I can refer, that it is wholly anomalous and unreal to try to pretend—because that is what it is—that that person has not been convicted. He has been convicted. The late Lord Justice Darling spoke in distinctly disparaging terms of that particular part of the Act of 1907. The provision occurs in Section 1. The learned Judge said: The words in Section 1 of the Probation of Offenders Act, 1907, are unscientific, thoroughly illogical, and are merely a concession to the modern passion for calling things what they are not; for finding people guilty and at the same time trying to declare them not guilty. Mr. Justice Avory took what was perhaps a more kindly view of the Section. I refer to the case of Oaten v. Auty decided in 1919. The construction he placed upon the words "without proceeding to conviction" in Section 1 of the Probation of Offenders Act, 1907, was that they provided that the person was convicted but the justices, although they convicted the accused person, did not proceed to record a conviction. He is a convicted person in every sense of the term, and the only thing he can say for himself is, "Well, I am convicted but I have not got it recorded."

That is an anomalous and unreal position. It may be, and I daresay that it is, an advantage for an accused person to be able to say that; but it is a great disadvantage for all persons with whom he must deal. If a person makes an inquiry of an individual whom he proposes to employ, and wants to know whether he has ever been convicted of an offence, and the person says "No" either verbally or in answering an application, it is most misleading to the person who is considering whether he can employ him perhaps in a position of trust. The man has been convicted and yet the law allows him to say that he has not been convicted. We seek to remove what we think is an unjustifiable position. All sorts of subterfuge have been devised to get over that anomalous position. In applications for naturalisation, a person is not asked if he has been convicted of an offence; he is asked if he has had an offence proved against him. The administrative departments have to frame their documents in that way. It is proceeding on what is a wholly unreal view of the position. Therefore, we have abandoned that power because we think commonsense demands it.

I will deal shortly with two other minor points, though they are points of substance. I think that then I will have dealt with most of the points about which hon. Members expressed apprehension yesterday. In Clause 15, an alternative is made with regard to the law relating to the passing of the death sentence. It is an alternative which, unless one looks closely at the wording of the Clause, one may miss. It provides that a person who is under 18 shall not be sentenced to death if it appears to the court that he was under 18 at the date of the commission of the offence, as distinct from at the date of the trial, which is the law as it stands at present. In other words, it assists the person by pushing back to the date of the offence the date by reference to which his age must appear to be 18. I feel that no hon. Member would doubt but that is an improvement. I think it will commend itself to the House.

Finally, I make reference to Clause 24 which, we feel, effects a useful improvement. It enables a person to be remanded on bail without being sent to prison and, nevertheless, in the recognisance into which he is required to enter to require him to submit to a medical examination and, indeed, to reside for a specified time in an institution. As the law stands, if a person is remanded in custody, the necessary facilities are available for him to be medically examined because the prison medical authorities are there; but there is no similar power—although it is done, in a sense almost informally—to make it necessary for him to submit to medical examination when on bail. This Clause enables the court to make it a condition of the recognisance into which he has to enter that he shall submit to medical examination; and not only that, but that he shall reside in an institution for that purpose, other than a prison institution. We think that is an improvement on the law.

I have endeavoured to run briefly through a number of points which seemed to me to call for comment, either because they were discussed by hon. Members in the Debate yesterday, or because attention was not called to them in the Debate. I hope that my remarks will assist to a better understanding of the Bill. I commend these alterations in the Clauses to which I made reference as a distinct improvement.

Photo of Mr David Renton Mr David Renton , Huntingdonshire

May I draw the hon. and learned Gentleman's attention to a point that was raised yesterday, not only by me but by other hon. Members? It is that of the position of victims of crime. Could the hon. and learned Gentleman say whether it is the Government's intention to improve the chances of victims of crime getting some redress from the criminal court, instead of always having to go to the civil courts at great trouble and expense?

Photo of Sir Frank Soskice Sir Frank Soskice , Birkenhead East

The hon. Gentleman's speech was listened to with interest, as all his contributions are, but I did not touch on that point because it seemed to me to involve a general principle beyond the contribution I was endeavouring to make to the House. I can at the moment usefully add nothing to what I have said.

11.43 a.m.

Photo of Viscount  Turnour Viscount Turnour , Horsham

It is with some trepidation that I enter the Debate which, though admirably conducted, has been, hitherto, purely of a legal character—of which I make no complaint; but I recall with interest an observation once made by the late Lord Balfour with that understatement for which he was famous: It must always be remembered that the law may be regarded as being of as much interest to the layman as it is to the lawyer. It is rather in that spirit that I approach this Bill. Let me say to my hon. Friends behind me and to hon. Gentlemen opposite that I hope they will not ask me any legal questions, because I have been in a court of law only twice in my life, once to hear the late Horatio Bottomley cross-examine a witness, and once when an action was brought against me in my official capacity as a Minister by a certain lady, when I had the honour of being defended by the father of my hon. Friend the Member for Oxford (Mr. Hogg), who was then the Attorney-General. The lady in question made a speech of some 10 hours in length. When she had finished she was asked by the judges if she had any witnesses to call, and she said she had not; and I am glad to say that the jury immediately dismissed the case. So my legal knowledge is not extensive.

I should like to commence, as one who had the honour of being for a short time an assistant Minister at the Home Office by paying a tribute to that Department—although it is somewhat unusual to do so—for the manner in which it is staffed. I think it is—if I may use what is a general term elsewhere—the finest Ministry of the Interior in the world. I also think it would be not inappropriate to pay a tribute to the administrative—not the political—capacity of the present occupant of the most important office of Home Secretary; and also to his predecessor. I think the country has benefited very much by their admirable administration.

My right hon. Friend the Member for North Leeds (Mr. Osbert Peake) mentioned in the course of his speech yesterday his views, which are also mine, on the question of capital punishment. I do not propose to refer to them today, because I think that we shall have a full opportunity of discussing this matter under the procedure which was suggested yesterday. I will only mention, as a matter of some melancholy interest, that the gentleman of the euphonious name of Desfourneaux, the French executioner, has today decided to come out on strike on the grounds that the pay for the job is insufficient. I mention that as a matter of interest to hon. Members opposite who wish to compare our judicial system with that in existence on the Continent.

I would suggest that, in any reformation in the system of dealing with crime our aim should be—to use the well known words of the Preface to the Prayer Book of the Church of England—to find the mean between the two extremes, of too much ease in giving and too much stiffness in refusing. I think that there are two rocks which we should avoid in a matter of this kind. On the one side, there is the advocacy of the view, which is certainly not common in this House today, but was common in its predecessors of 50 or 100 years ago, that only the most drastic punishment will prevent crime; a view which is obviously not true, as the Home Secretary very clearly brought out in his speech yesterday. Savage punishments do not prevent crime.

On the other side at the opposite extreme is the fantastic view which is held by certain individuals and societies in this country, to this effect, "Do not blame the poor man or woman who commits a crime. He or she is the victim of heredity or environment or of society. Pat him on the back, tell him not to be naughty again, and then he never will be." I think that that is an equally fantastic view, and that the obvious desideratum is to find a system of criminal justice and punishment which merges two entirely different constituents—the reformation, in the true sense of the term, of the criminal's character, with the equally important principle of the protection of law-abiding society, through a sufficiently adequate and drastic system of penalty as a deterrent to wrong. I would suggest that it is far harder to do that than the theorists or sentimentalists on either side frequently suggest.

I think that, in the main, this Bill does carry out this principle, which I would commend to all sides of the House, because no party question arises here. The Bill, I think, does take that course, as did what I would call its putative parent, the Act of 1939. As I had some responsibility in a minor Ministerial office for that Act, I should like to pay a tribute to a noble Lord in another place, Lord Templewood, who brought it forward, and also to Members of another place and of this House who are still in public life, and who have done a great deal for the improvement of criminal justice in the past, including the Leader of the Opposition, who, when he was Home Secretary, brought in some most valuable Measures. I was glad that the Home Secretary, in his speech yesterday, referred to the proceedings of the Committee on that Bill. He will remember, as I do, those long sittings. He agrees, as I know from his speech of yesterday, that the long hours we spent on the Bill were by no means infructuous because they lead to meticulous examination of important details in a non-party manner. Indeed, it was one of the most valuable Committees of this House that I, in my long experience, have ever sat upon or known.

One is always allowed considerable latitude on the Second Reading of a Bill to deal with subjects which are analogous to those of the Bill though not specifically dealt with in the Bill, and so I should like to say one word on the subject of prisons. During the time that I was at the Home Office, when we were preparing for the original Act, I visited a very large number of prisons in this country. I should like to say a word or two about the results of my experience. One of the difficulties was that some of the prisons were out-of-date buildings. I was immensely impressed, as every Minister who has been at the Home Office has been, as I am sure the Home Secretary will agree, with the success of the Wakefield experiment. I hope that it will be possible to extend this system. I would also pay tribute to the fine character of the prison services, the warder services, and all the services from the governors downwards. We have a magnificent prison service in this country, which deserves every encouragement and support. I should, perhaps, be going outside the latitude of a Second Reading Debate if I went into this matter too fully, but, in a sentence, I am not wholly convinced that the pay and conditions of that service are what they should be. I think that the pay should be higher. My hon. Friend the Member for Rugby (Mr. W. J. Brown) will remember that he and I have had some private conversations on this point, and that I am in accord with him on this subject. I have found almost all the governors of the prisons I have visited keenly interested in welfare and the provision of jobs for prisoners after they are released.

Everyone who is an enthusiastic supporter of the Prisoners' Aid Society finds it very satisfactory to know that a large proportion of ex-prisoners find employment through the aid of that Society. The general treatment of prisoners is humane. I hope that everyone will be on his guard against the lurid accounts by ex-convicts on their experiences which sometimes appear in the Sunday newspapers. In most cases these articles do not represent the truth. As I say, I think that the system is very humane, and I know of no country where the treatment is better than it is here.

I am sorry—and here I speak more in my personal capacity than as a represen- tative of this party, because I do not know what are my hon. Friends' views—that the opportunity has not been taken to consider the question of payment to jurors in certain cases. It seems very hard indeed that these men and women of every class of life, who have to earn their living, should have to do these duties for long hours without any sort of payment.—[HON. MEMBERS: "Hear, hear."]—I am grateful for those assenting cheers, because I feel very strongly about this.

I am sorry, too, that it has not been possible to amend the criminal code in certain other respects. I would draw attention to two gross anomalies. One is the very inadequate penalties for cruelty to children. The sentences which can be imposed for cruelty and indecent assault on children are much too low. The other is that the penalty for unnatural vice between male persons is too high. Only comparatively recently, I understand, has that been a crime under English law. I think that the present penalty was largely introduced as a result of the obstructions on another Bill by Mr. Henry Labouchere. I understand that there is no penalty for lesbianism.

There is also the ridiculous and fantastic state of our law in regard to betting. What absolute nonsense it is that a bet can be sent by post, and yet it is an offence if a man goes to another man in the street to place a bet, and at a time when the police are desperately busy in dealing with more serious crimes. In what other country is there such a fantastic state of the law? I am not making an attack on any party when I say that this House has always disliked dealing with certain things which are not vote catching, but which may well lose votes; and that is the reason why the law is what it is in this respect today.

I wish to refer to another matter, which I strongly opposed some years ago when the original Children Act came before the House. There was a provision that no children should be taken into a public house or bar, and I said at the time, amid the jeers of the Liberal Party, that the only result would be that we should see poor little shivering children standing outside public houses. There were shouts of "Nonsense," but that is exactly what has happened. In no other capital in the world do you see children standing outside public houses on a winter's night.

Photo of Mr Samuel Silverman Mr Samuel Silverman , Nelson and Colne

Would not the right hon. Gentleman agree that, instead of allowing children to be taken into public houses, the better course would be to transform public houses into decent places where anyone could go?

Photo of Viscount  Turnour Viscount Turnour , Horsham

I hope it will not be embarrassing to the hon. Member if I say that I could not agree with him more.

We shall never be able to deal adequately with crime until we have sufficient police in both the metropolitan and provincial areas, and we shall not have more police until we improve their conditions in certain respects, one of which is the provision of housing. My hon. Friends and I are glad that the Solicitor-General gave an explanation of Clause 33, although, of course, we shall have something to say on this subject when we come to the Committee stage. It is only fair to say that one of the obvious reasons for the increase in crime today is the vast, stupendous, elephantine phalanx of Orders in Council and the like, which make almost everything except breathing an offence. If there are more laws and regulations than 10 years ago, there are bound to be more people breaking the law. It is not entirely a sufficient reply to say that-these offences are of a civil nature, because many of the breaches of these regulations are a criminal offence.

The Home Secretary, in an otherwise admirable speech, did not say whether or not there is relatively a greater increase of crime after this war than the last. My recollection is that in 1919, 1920 and 1921 there were far more crimes of violence than today. Perhaps the Under-Secretary will give us facts and figures when he replies to the Debate, because I think they would be interesting. I should have thought that there was the same tendency, but I do not know what the relative figures are—

Photo of Mr James Ede Mr James Ede , South Shields

One of the reasons why I did not deal with that was that in between the wars the basis of statistics was altered. Further, I had a long speech to make, and if I had had to go into a lot of statistical refinements it would have made my speech much longer without making it clearer.

Photo of Viscount  Turnour Viscount Turnour , Horsham

I was not making a complaint about the omission; I was making it a point of interest to which the Under-Secretary can perhaps reply later.

As other Members have said, I would like to emphasise that we have the most humane penal and prison system in the world. We can be proud of it, and this Bill will further improve it. We can also be proud of one other thing: it is a tribute to this House, as an institution, that, in the midst of world disturbances, the economic crisis at home, and fierce party controversy in most fields of political endeavour, we can calmly and reasonably put aside all prejudices to discuss a big Measure of prison reform. That is a tribute to this House, and thus it is that our system of democracy has once again justified itself.

12.2 p.m.

Photo of Sir George Benson Sir George Benson , Chesterfield

I would like to say, first, how glad I am that the noble Lord, the Member for Horsham (Earl Winterton) has raised the question of homosexuality. There is nothing more completely out of consonance with modern views on this matter than the way in which it is treated by our penal system. Sooner or later we shall have to overhaul the whole attitude of the law with regard to all sexual offences.

This Bill can be summed up in one sentence: It regulates the power of the courts to pass sentences; and it gives the Home Secretary power to establish institutions. It gives a very large blank cheque to the Home Office. It is astonishing that during this Debate no one has yet asked what is the detention centre to be, what is the remand centre to be? No one has inquired as to what corrective training is to be given. Members on both side have spent a considerable amount of time on niggling matters, such as the taking of fingerprints, but nobody has taken the trouble to inquire what a four-year sentence of corrective training is likely to mean. In this matter, there has been an astonishing lack of proportion. The value of this Bill will rest not in names—whether these places are called detention centres or remand centres—but what type of institution is to be set up by the Home Office, and what happens therein.

This is a question in which the House has shown very little interest for many years. I think I am correct in saying that the Prisons Vote has only once been put down for discussion on a Supply Day during the last 20 years. Yet the condition of our penal institutions, affects a very large number of our population. I do not know whether the House realises that at any given time there are 250,000 people in the country who have been to prison. There is approximately the same number of people who, during their lifetimes, will go to prison, so that about 500,000 people have been, or will be, affected by our penal institutions.

The House ought to pay more attention to and inform itself better of what happens. It is obvious from the Debate that Members are entirely ignorant of the very important revolution, a silent revolution, that has taken place in our penal institutions. It commenced 50 years ago, with the Report of the Gladstone Committee. Members may know that that famous report stated that prison treatment should have, as its primary and concurrent aims, deterrence and reformation. My right hon. Friend the Home Secretary, the right hon. Member for North Leeds (Mr. Peake), the noble Lord the Member for Horsham, and that voice from the dim and dusty past, the hon. and gallant Member for Petersfield (Sir G. Jeffreys) all paid tribute to this double purpose of our penal system. This duality was in very direct contrast to the views of the 19th century. Then, definitely and clearly, it was held that the penal system had one aim, and one aim alone—deterrence. No bones were made about it; time and again it was stated; by Archbishop Whatley for the Church and the bishops that reform would have no part whatever in our penal system. The judges, in 1847, put the matter most succinctly. They said that: reform and imprisonment were a contradiction in terms, and utterly irreconcilable. The 19th century pursued to the limit their one solitary aim of deterrence, both in the institutions they built, and which we have inherited, and in the penal conditions themselves.

Since the Report of the Gladstone Committee the Prison Commissioners—and I speak of them as an institution, and not as individuals—have wrestled to achieve this duality of aim. But finally they have come to the conclusion that the views of the 19th century were absolutely right, and that the views of their Gladstone Committee were absolutely wrong. They have obviously come to the conclusion that there cannot be duality of aim in any penal system if it is to work. Warned by the experience of the 19th century, that to make the aim deterrence defeats its own purpose—because as the Gladstone Committee pointed out, the effect of the concentration on deterrence did defeat its own aim, and merely had the effect of turning the casual offender into a habitual criminal—and by their own experience of the impossibility of the dual aim, the Prison Commissioners have for some years now completely abandoned the idea of deterrence, and concentrated simply and solely upon reform.

If any Member doubts what I say I suggest that he do as I have done—go through Wandsworth, Pentonville, Manchester and Armley Gaols, where he will notice the dull, heavy, sullen, lethargy of these institutions. Then let him go to Wakefield Prison camp, or to the Layhill long-term camp, and see the entirely different conditions and atmosphere. It is staggering to go through these camps. On going to Wakefield one is met with friendliness—I do not mean from the officials—from the prisoners. There is a friendly and courteous, "Good morning," or "Good afternoon," as the case may be; the whole conditions, the whole circumstances are different. It is obvious that in designing these camps the Prison Commissioners have not given five minutes thought to the question of deterrence.

If we are to judge the purposes of the prisons we must judge them not by what they have inherited from the evil past, but by what they have themselves created. I do not want anyone to think that I am suggesting that Wakefield or Layhill are not deterrent institutions They are. But they are institutions aimed primarily at reformation. Any reform is an extremely distasteful process. It is a very strenuous process. If being reformed was pleasant, I am quite sure hon. Members would have far better characters than they have. Being reformed is not nice when, in addition, it is connected with loss of liberty, disassociation from friends, relatives and family, and as it inevitably means discipline, it is quite adequate for any deterrence required. I think a point which the Prison Commissioners have grasped is that we can aim at reform, and if the reformation is effected that, in itself, is a deterrent process. One does not need to worry about it; it is inherent in the process. If, on the other hand, we aim at deterrence, we thereby destroy any possibility of reform.

The English Prison Commissioners are not the only penal body who have made that discovery. May I quote from the statement of the Swedish Penal Code Commissioners, who have just completely revised the Swedish penal code, and who are the authors of the Act which came into operation last year? This is their statement: The loss of liberty … need not be accentuated by repressive means to be deterrent.… Neither can it be assumed that the general preventive effect of imprisonment becomes great or small depending on greater or less severity in the execution of this punishment.… The function of the prison officer in modern penal treatment is to serve society by an effort to put the prisoner on his feet and not to become a representative for the revengeful sentiments of the least enlightened members of society. I am not sure that the noble Lord was entirely correct when he said that we have the best penal system in the world. I hope that may be so in 10 years time, but, as he himself said, we are still hampered by those great white elephants the prison buildings that we inherited from the 19th century.

On the question of deterrence and reform may I make one further point? There is one institution in our penal system which, from its very inception, not merely aimed at reform but definitely repudiated the idea of punishment—and that was the Borstal system. From its inception the Borstal system made known officially that it did not aim at punishment but at reform.

Photo of Mr William Brown Mr William Brown , Rugby

It has not been successful.

Photo of Sir George Benson Sir George Benson , Chesterfield

The hon. Member for Rugby (Mr. W. J. Brown) is falling into the same error as that made by the hon. and gallant Member for Petersfield when, in a contemptuous remark about Borstal, he said that three boys out of 10 returned. He regarded that as failure. May I ask hon. Members who regard that as failure to turn to Appendix 10 of the Report of the Prison Commissioners, and there they will find the effect of the prison system upon an analogous group of the population—boys between 16 and 21—in prison for the first time, who had previous proved offences. If they will do so, they will see how marvellously successful Borstal is. We have to wait a certain time to see whether a boy does or does not return. The earliest figures given are those for 1930. If we take a group of boys taken into prison for the first time between 1930 and 1935—if we take a later date we come into the aftermath of the war, which upsets the figures—we find that not three out of 10, but nearly seven out of 10 return. In other words, Borstal, which aims at reform and which repudiates punishment, is twice as successful as imprisonment for youngsters between 16 and 21. We have tried deterrence, we have tried mixing deterrence and reform, and it is only when we concentrate on reform that we shall get results.

12.18 p.m.

Photo of Mr Basil Nield Mr Basil Nield , City of Chester

We are grateful to the hon. Member for Chesterfield (Mr. Benson) for his contribution to this Debate, dealing in particular, and with great sincerity, with the conditions in our prisons and similar establishments. He should, however, be assured that that is a matter which concerns many hon. Members and is one which, I have no doubt, will be dealt with in detail on the Committee stage of the Bill. Several hon. Members have expressed the view which I venture to express, that there is still in a large part of the world a very genuine admiration and respect for our system of the administration of justice. It follows that any proposals to amend or improve that system merit the most careful and anxious consideration. This Bill, which renews in large measure the proposals of 1938, raises a large number of important issues, and each of them must receive close scrutiny in Committee.

As it seems to me, the First and Second Parts of the Bill deal broadly with, first of all, the type of sentence to be imposed on those convicted of criminal offences, and, secondly, with the conditions under which those sentences are to be served. Before I address myself to the two matters of substance to which I wish to draw the attention of the House, I would say a word, in passing, about both those two wide issues. In Part I of the Bill, there is probably no doubt that the point around which most public controversy will centre is the abolition of corporal punishment. I do not doubt that abolition will be achieved, but I think that it is rather necessary to bear in mind one or two points about it. The hon. Member for Chesterfield spoke at length upon the subject of the deterrent element. I would say, from my experience of practising in the criminal courts during the last 20 years, that I am quite satisfied that corporal punishment is a very real deterrent. I have known hardened criminals face with composure a possible sentence of years of penal servitude, but they have quailed at the thought of the cat o' nine tails. It seems also right to say that we know such a sentence is rarely imposed and only in respect of the most ferocious crimes, normally in these days for robbery with violence.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

The hon. and learned Gentleman has said he has seen people quail at the prospect of getting the cat o' nine tails. Were there not always people who committed the offences that involved the giving of the cat o' nine tails and that did not stop them?

Photo of Mr Basil Nield Mr Basil Nield , City of Chester

It must be apparent to the hon. and learned Gentleman that there must be a first time, but I was dealing with the hardened criminal. There must be a first time when corporal punishment is ordered. My point is—and I do not think he can deny it—that there is a section of the criminal class which would be deterred from the more violent methods of crime by the prospect of this form of punishment. I was about to say something in regard to corporal punishment which I feel I must say, and that is in relation to juvenile delinquency. Whether it is right to take away the power to order the birching of a young person seems to me to be considerably in question. Such a quick and speedy method of showing him that he must not do it again seems to me to be not inappropriate.

I want to pass from there to the second part of the Bill and to follow closely upon what the hon. Member for Chesterfield (Mr. Benson) has said. Several hon. Members have called attention, as I would respectfully do myself, to a letter from Lord Justice Wrottesley in "The Times" of yesterday, and I feel that there will be general agreement with the two points made there. We must seek to improve the buildings in which these convicts are to be incarcerated, but this of course, because of our present economic situation, cannot come about very quickly. We must also aim at the provision of useful and productive work. The learned Lord Justice pointed out that during the war persons in prison were permitted to do munitions work and so on, and that that was beneficial no one can doubt.

The two principal matters to which I want to draw attention are, firstly, the law of homicide and particularly murder and the penalty for it; and, secondly, a matter which has not yet been enlarged upon, namely, the position of offenders afflicted by mental disorder. On the first of these points it cannot be questioned that any consideration of any proposal to amend the law relating to murder and the death penalty must be viewed in the light of two facts which cannot be challenged. The first is that at the present time there is a great increase in crime and in serious crime; the second is that while the objects of a sentence may be punitive and reformative the most important is that they shall be deterrent. By that I mean, and I have found sometimes a confusion arising, not a question of deterring a person convicted from repeating his wrong, but of deterring others from emulating it. From that aspect, it is a most important object of the sentence.

There is probably truth in the saying that a large section of our community are naturally law-abiding, but I do not think that the time has yet been reached when the position is that the presence of a policeman does not prevent crime. I would further agree with what the noble Lord the Member for Horsham (Earl Winterton) has said that when one finds a great increase in the number of newly created offences and when regulations create such offences almost daily we are still further from that position, indeed, there are some who regard it almost as astute or even laudable to evade these regulations in certain directions. Those are two matters which form the background of any consideration at the moment of any reform in regard to the law of murder and the penalty for that office.

Many hon. Members will remember that the definition of "murder" so often quoted in these days was given by Lord Coke when he defined it in this way: Where a person of sound memory and discretion unlawfully killeth any reasonable creature in being and under the King's peace with malice aforethought expressed or implied— For that crime of murder we know that the law recognises but one penalty, the grim irrevocable penalty of death. For myself I join with those who say that they hate and detest judicial hanging. Whether it is right either to suspend the operation of that sentence or to do away with it I fear is quite another question, and, prima facie, I do not think that the time has arrived, but I await the arguments which no doubt will be presented.

I should like if I may to mention two experiences of my own in passing. I have heard some say, in arguing that the death penalty should be abolished, that many criminals would prefer to die rather than face a period of life imprisonment. That I believe to be profoundly untrue. I recall well nearly 20 years ago the case of a man who insisted on pleading guilty to a murder charge. The judge and others of us engaged in the case implored him not to do so. He said he wanted to die, but later on he appealed against the conviction because he had come to the moment when he changed his mind. I believe that any normal man clings on to the last hope of life no matter what the circumstances are. There is within recent months an example of a man who has been convicted of murder for the second time. He was reprieved on the first occasion and years later he repeated that offence.

Photo of Mr Moss Turner-Samuels Mr Moss Turner-Samuels , Gloucester

Was he not only sentenced once?

Photo of Sir George Benson Sir George Benson , Chesterfield

Was he reprieved or was he found insane at the time of the first murder?

Photo of Mr Basil Nield Mr Basil Nield , City of Chester

The position is well within my knowledge, for I appeared for the Crown. He was originally convicted of murder and recommended to mercy. The Home Secretary reprieved him. He spent a number of years in prison and was released to the Army. Shortly after coming out of the Army he committed the second murder.

Photo of Mr Moss Turner-Samuels Mr Moss Turner-Samuels , Gloucester

Is it not a fact that that is the only case in which a murderer has been reprieved and has committed a further murder?

Photo of Mr Basil Nield Mr Basil Nield , City of Chester

The hon. and learned Gentleman no doubt knows the answer. I do not, but it is the only case of which I know and I was quoting it from my experience.

Photo of Mr Sydney Allen Mr Sydney Allen , Crewe

Is the hon. and learned Member referring to the case of Rowland?

Photo of Mr Basil Nield Mr Basil Nield , City of Chester

Yes. The proposal which I support is that most careful consideration should be given to the suggestion of a gradation of murder, dividing this crime into degrees. In the crime of murder an essential ingredient is malice aforethought. That has been decided to mean not necessarily long premeditation, but merely the intention to kill.

I would ask the House to consider whether it is right to provide the same dire penalty for two sets of circumstances such as these: on the one hand, a man who wickedly and deliberately, over a long period, poisons his faithful wife; on the other hand, a man who, in a momentary flame of passion, strikes down his enemy. There is surely a wide difference between the gravity of these two offences. I would also add that I question—indeed I deny—the righteousness of convicting of murder the survivor of a suicide pact. I further doubt very much whether it is right in all cases to convict of murder where homicide is committed in the course of a felony. It is the law that if, in the course of a felony, a person is killed, that is murder. In the case, for example, of a smash-and-grab raid, in which thieves break the window of a shop, steal jewellery from it and make off in a car, they run over and kill a pedestrian, without having intended him any harm. In law, that is murder. My submission is that the intention to kill was wholly absent, and I do not think it is right to convict for murder.

It is immensely difficult to put into effect the proposal for the division of homicide into degrees. Some say that the matter should be left to the discretion of the judge who tries the case. My own view is that it is infinitely better to seek to draft definitions of the various degrees so that problems may be determined by the jury. Do not let us adopt a policy of despair. If we think that it is just to grade homicide we must devise means to make it practicable.

I want now to turn to the position of persons who are of unsound mind, and to deal particularly with the criminal responsibility of those who suffer from mental affliction. The root of a criminal offence is what we lawyers call "mens rea" the intention and the will to do wrong, but if that is absent or clouded by reason of mental affliction, the responsibility of the offender cannot be the same as in the case of a normal person. The law on the subject is very strict. Unless a man can bring himself within the requirements laid down in the Macnaughton Rules and can show that he has a disease of the mind which produces the necessary defect of reason, there is no mitigation of responsibility. There is a possibility of injustice there. There may exist a state of mind short of insanity as now defined which diminishes responsibility to some extent. It has been decided that a plea of uncontrollable impulse is no defence, but surely if a man's will owing to mental unbalance is such that he cannot in truth control his impulses, that must have some serious effect upon his responsibility.

It might be well to define the condition of mental affliction short of insanity which should reduce responsibility. I suggest that the criminal law should recognise a state of mind so often found at inquests upon suicide that the balance of the mind was disturbed. I would ask the right hon. Gentleman and the Law Officers to consider the two points which I have put forward, namely, the grading of homicide and the whole field of mental affliction in relation to criminal responsibility. I do so because I believe that the suggestion I have made are consistent with a great principle—namely that there is a quality which is an integral part of our system of justice, and that is the warm and human quality of mercy.

Photo of Mr David Renton Mr David Renton , Huntingdonshire

On a point of Order. Are we to assume from the presence of the Minister of Labour and the Minister of Agriculture on the Front Bench that we are now to be directed towards humane killing?

Photo of Mr Thomas Williams Mr Thomas Williams , Don Valley

The hon. Member is probably aware that the Home Secretary had to leave the House on other business. It is possible also on odd occasions that an Under-Secretary of State might want a cup of tea.

12.38 p.m.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

The subject upon which I wish to say something is the death penalty. I would say at once that my hon. Friends and I do not wish to impede the progress of the Bill during the Committee stage, and that we will leave the matter to the Report stage, but we thought that there should be at least one speech at this stage dealing with this subject in a certain amount of detail.

This is the simplest and most primitive form of penalty. We do not have to worry about whether the penalty reforms or brutalises the offender. We do not hang a man to do him good, nor to do his victim good. They are past assistance. Why do we use this penalty? Is it from a primitive idea of making the punishment fit, not the criminal but the crime, an idea of retribution, the ancient idea of an eye for an eye, a tooth for a tooth, a death for a death? That is contrary to our religion and to our judicial system. We do not maim a man because he has maimed others, or burn his house because he has committed arson, or steal from a thief. Why then should we kill a killer? It is indeed strange to correct one killing by making another, but that is what we do. Do we do it because we are afraid that public indignation will make the people take the law into their own hands? Is it necessary to have this extreme penalty in order to prevent lynching? That is an argument which has been advanced, but it is nonsense if anybody believes that in a country in which Sir Oswald Mosely can go safe, a mere murderer need fear mob violence.

There is really only one question on this: Does the death penalty mean that there will be fewer murders: does it prevent murders? This can only be a matter of speculation. Nobody can say with certainty that but for the death penalty Jones would have murdered Brown. We cannot find certain cases. Judging by trends and experience is the only way in which we can see whether the death penalty has acted as a deterrent. There always seems to be in the way of those who say that the rope is necessary as a deterrent the awkward difficulty that very nearly half our murderers immediately commit suicide. It hardly looks as if they were deterred by the prospect of death. Murder is particularly a crime committed in circumstances of great emotion.

We must look to experience and to the circumstances of other crimes. One hundred years ago there were over 200 capital offences in this country, and it was always said—and the judges were always on the side of the hangman—that the sentence had to be retained. When another place was discussing the question of removing the death penalty for the offence of stealing 5s. in a dwelling house, the Lord Chief Justice at that time, Lord Ellenborough, said that he had consulted his fellow judges and they were unanimous in resisting this legislation. He used these words: This law your Lordships must know, upon the security of which and the application of which stands the security of every poor cottager who goes out to his daily labours. Repeal this law and see the contrast. No man can trust himself for an hour out of doors without the most alarming apprehensions that on his return every vestige of his property will be swept off by the hardened robber. Would you, then my Lords, take away the only security the honest and the industrious, the rich as well as the poor, have against the outrages of vice and the licentiousness of dishonesty. That was the Lord Chief Justice speaking in 1832 not only on his own behalf, but on behalf of all the judges he had consulted. In spite of him, the law was altered. In spite of him, we stopped hanging people for stealing from dwelling houses, and stealing from dwelling houses did not increase, but decreased and went on decreasing.

Precisely the same thing has happened with all these other capital punishments. There have always been the same sort of terms as were used yesterday by the hon. Lady the Member for Hemel Hempstead (Viscountess Davidson). Her speech would have been entirely appropriate to Lord Ellenborough's. Always in those same terms has reaction pleaded for the retention of this sentence, and on every occasion it has been proved wrong. Why should it be different in the case of murder? A great many countries, both in Europe and on the American Continent, have abolished the death penalty. Some have reimposed it generally for reasons quite unconnected with the homicide rate. What we can say from a careful examination of the statistics—I have ex- amined them very carefully—is that, generally speaking, where the death penalty has been removed the homicide rate has fallen. Generally speaking—in fact, without exception—where the death penalty has been reimposed the homicide rate has not been checked but has increased. That is the statistical situation.

Photo of Mr David Renton Mr David Renton , Huntingdonshire

The hon. and learned Gentleman the Member for Northampton (Mr. Paget) interrupted me yesterday on this very point. It would be most valuable for the information of hon. Members if he could give the details of the four countries he mentioned.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

I will deal with that in a moment. I do not want to argue, post hoc, propter hoc, and say that the homicide rate has fallen because the death penalty was abolished or that it has increased because the death penalty was reimposed. All I say is that there is no evidence at all either that the removal of the death penalty causes more murders or that its reimposition causes fewer murders. The death penalty does not seem in practice to be a more effective deterrent than prison.

I found it extremely difficult to follow the Home Secretary's argument yesterday. He said that he was in favour of abolishing the death penalty in 1938 because then there were only 97 murders and that he is in favour of retaining it in 1947 because there were 138 murders. The death penalty either prevents murders or it does not, and all the evidence is that it does not, but why in the world should one retain the death penalty now as against 1938 because manifestly at the present time it has failed to prevent more murders than it did in 1938? That seems to be utterly and completely contrary to any logic. The Home Secretary says that the reasons are that there are more crimes of violence and more armed criminals today. Of course, there are. We have spent six years teaching people to use arms and violence, and, incidentally, we have spent those six years teaching those people not to fear death.

Photo of Captain Arthur Marsden Captain Arthur Marsden , Chertsey

The hon. and learned Gentleman is referring to ex-Service men as being the chief criminals in these cases. He is very fond of figures. Can he give figures as to how many genuine ex-Service men are involved in these crimes of violence?

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

I have not got the comparative figures but it invariably happens after a war that we get these outbreaks of violence. I do not say that it is confined to ex-Service men. We always get these outbreaks of violence after a war and we have one now, but the question is: Does the death penalty make criminals less inclined to use arms? One can only look at the evidence to see if it is a deterrent, and prevents the criminal from using arms. The whole evidence is against it. It has not done so. We have got the death penalty, and more criminals are using arms at the moment. That is the argument of my right hon. Friend.

Secondly, in the countries which have abolished the death penalty, witness after witness—there was one called from every such country before the Commission appointed by this House which considered this matter—said there had been no addition to the crimes of armed violence after the abolition, no greater tendency in prisoners to carry arms. I think that what is a good deal more significant is the experience of countries which have re-imposed the death penalty, because that has had no effect at all in reducing the quantity of armed crime or affected the habits of the criminals. The best example is France. In France the imposition or cessation of the death penalty depended upon various Presidents. There are two occasions when it goes off, and two where it goes on, and it does not affect the homicide graph, or the armed criminal graph, at all. One cannot tell when it is on or off.

Again, we have the interesting example of Belgium, where the death penalty is taken off, and France, where it is on—next door, separated by a frontier. The Belgian criminal does not carry arms, any more than the criminal in this country—it is the exception. But the French criminal does. In spite of the death penalty he goes on carrying arms, in France. He does not go over the border and carry arms in Belgium. Italy is another example, and Germany. Fascist States re-imposed this penalty. Mississippi is ah American example. When it is re-imposed there is no check at all in the increase of the rate of homicide. Capital punishment States cover San Francisco, Chicago, New York, and areas where you find a form of gang warfare. Therefore, I say there is no evidence at all that capital punishment, in practice, has been a greater deterrent than ordinary imprisonment. I am also going to say that there is a great deal of evidence that capital punishment does cause murders. The first type of case in which that may be seen is the morbid type—well known to psychologists and prison doctors—which actually is attracted by the prospect of execution. I think many of us know of this type. Whenever there is a famous murder, a series of people come and confess to that murder. They want to be tried, and, presumably, executed for it.

Then there are a number who do not stop there, but who do commit murders, just for the excitement of being a murderer. I will take a single example—I could produce a number—that of Albert Marjoram. He was a man who was in prison when Sidney Fox was in the condemned cell for having murdered his mother. It had been a somewhat famous trial. Among Marjoram's jobs was the cleaning out of Fox's death cell. It became obvious that Marjoram was extremely jealous of Fox. He told various people in the prison that he was going to make a more celebrated murderer than Fox. When he came out of prison he tried to murder a policeman, and was unsuccessful. Having failed to murder the policeman he met a girl on Dartford Heath, whom he had never seen before, and he murdered her. He was duly tried for that murder, convicted and executed at Wandsworth. On his way to the execution he made the jokes with the hangman which he had probably been rehearsing in imagination for years.

That is a type of murderer that one does come across. I do not say there would not be the Marjoram type of murderer—and, remember, most of our murderers are insane, they are bound to be—even if there was no death penalty. The attraction is the heinousness of the crime, in the same way as witchcraft had an attraction in the old days. But the death penalty adds to that morbid picture. It adds to the publicity. It is all publicity between the conviction and the execution. To the Marjoram type—and they are not at all uncommon—the death penalty, so far from acting as a deterrent, is an added attraction to the crime.

There is another type with which I wish to deal, and that is the gangster. It is not experienced very much here at the moment, but the death penalty is of the greatest value to gang leaders. A man who has written his name in blood is not in a position to go back on his associates, to abandon them or betray them. His fellow gangsters know, and he knows, that the law will be the instrument of their vengeance if he abandons them. In a revolution the most spectacular atrocities are normally committed, because leaders want to commit their followers beyond hope of forgiveness. It is precisely because we are at this moment faced with a lawless situation—the postwar situation—precisely because we have this gangster danger at the moment, that we ought to abolish the death penalty here and now. We cannot afford to create bodies of men who must hang together lest they hang separately. I would point out that wherever gangsterism is a really dangerous menace, there is found the death penalty in operation—Chicago, New York, San Francisco, Paris. The death penalty is not the only reason, but it is a contributory reason. It is part of the cement that holds the gang together.

I will mention just one other instance, a recent and famous one. It is the case of a man who committed a murder simply because he preferred the prospect of life incarceration to the prospect of death—the case of Heath. He first murdered Mrs. Gardner. I think there is very little doubt that that killing was accidental. He was a sadist. He tied the woman up and beat her unconscious, and she suffocated in a pillow. He then found that he had a corpse on his hands and no chance of escape. All the police were looking for him and he took a perfectly innocent and decent girl—Miss Marshall—and he murdered her with inconceivable savagery. There was nothing sexual about it, there was no semen or anything of that sort found. All that was found was that he had created every possible clue to bring that murder home to himself. He had taken her property, and had pawned it at local shops, leaving addresses which could be traced. I have not the slightest doubt in my own mind that Miss Marshall was murdered by him expressly for the purpose to which he put her murder, to establish a plea of insanity. Had it not been for the death penalty, I believe that Miss Marshall would have been living today.

I am not saying that that is not an exceptional case, and I know of no other case in which a murder has been committed in order to establish a plea of insanity, but, and this is the curious thing, so far from acting as a deterrent, a famous crime always excites imitators. Within the next few years, I believe that we shall be likely to get people who will be imitating Heath and who will commit murder to establish a plea of insanity. It always happens. Somebody sets a fashion in these matters. That is what great criminals do. All I can say here is that there is really no evidence at all that the death penalty stops murders, but that there is a great deal of evidence that it creates them. So far, I have been dealing with this matter upon the utilitarian basis, but I believe there is something more profound than the utilitarian.

I am not among those who interpret the Commandment "Thou shall not kill" as meaning that you shall not resist evil, with all the force, using violence, if necessary, which you can command. I believe that the pacifist concept is contrary to the whole scheme of nature, which evolves through struggle, but, surely, it is a different matter when your victim is pinioned and helpless? To kill him then, ritualistically and ceremoniously in the coldest of cold blood, is to invade the prerogative of God. It is, after all, only God who can be certain in these matters, only God who can ever be certain of the difference between guilt and innocence. We are not gods, our judges and jurors are not gods; they can only judge by the evidence and they cannot know for certain this difference between guilt and innocence.

Adolf Beck was twice convicted upon the clearest evidence. No judge or jury, no Court of Appeal, could have done otherwise than convict him upon the evidence that was before them. Yet, upon the evidence upon which he would certainly have been hanged had his crime been capital, he was completely innocent. Habron was convicted of the murder of a policemen upon the clearest evidence. The marks on his boots fitted the marks on the body of the dead policeman. No judge or jury could have done other than convict him, and he would certainly have been hanged except for his extreme youth. Years later, Charles Peace confessed to that murder, of which Habron was clearly innocent.

Two men and a woman were hanged at Camden in Gloucestershire for the murder of a. rent collector. Two years later, that rent collector returned hale and hearty. The hon. Member for Oldham (Mr. Hale) and myself, some ten years ago, collaborated in writing a book which was not published—indeed, I do not believe we ever finished it—dealing with 12 innocent people who had been hanged in this country. I do not say that all these 12 cases were not controversial. They included, for instance, Mrs. Thompson, but I believe, equally, that these 12 cases were not exhaustive. In the case of Beck, the case of Habron, and in the case at Camden, new circumstances turned up, something new which happened to prove that the conviction had been wrong. How do we know that, in many other cases, something new might not have turned up? All we do know is that we have hanged many men who, just like the people of Camden, just like Habron, protested their innocence to the end. All that we can say is that subsequent events have not turned up to establish their innocence. I say that it is this very uncertainty, apart from anything else, which puts the judgment of death beyond the wit of man. It is a case in which only God can judge—God, who gave life to the condemned man—only He should have the right to take it away.

One country that abolished the death penalty, and then restored it was Italy. According to the Italian Minister of Justice, who gave evidence before the Commission, the reason for the restoration had nothing to do with the homicide rate. What the Italian Minister of Justice said was that the change was in keeping with the Fascist conception of the State and the individual. He said that the doctrine of the individual being the end and society being the means was now replaced by the diametrically opposite Fascist conception, according to which the individual was only an infinitesimal and transitory element in the social organisation, and must, therefore, subordinate his own interests and his very existence to the organism of the State.

There, in my submission, in these crude terms, the Fascist Minister of Justice expressed the real case for the retention of the death penalty. Judicial execution is the ultimate subjugation of the individual to the State. Let the dictators have their gallows and their axes, their firing squads and their lethal chambers. We, the citizens of a free democracy, do not have to shelter ourselves under the shadow of the gallows tree.

1.9 p.m.

Photo of Sir Allan Noble Sir Allan Noble , Chelsea

In my few remarks, I do not propose to deal with the death penalty, to which the hon. and learned Member for Northampton (Mr. Paget) has obviously given a great deal of thought, and I make no apology for not dealing with it, for, as he himself said, there will be ample opportunity to discuss it later, both on the Committee and Report stages of this Bill. Also, I will not vie with the hon. and learned Member in the "thrillers" and stories of crime which he told so well and with so much feeling. In any case, it is with no little trepidation that I myself enter into this field, but I hope that I may be allowed to say a few words and make one or two points on the administrative, as opposed to the legal side.

This Bill deals, on the one hand, with the powers to be given or taken away from the courts, and, on the other, with the treatment of persons once they have been convicted, and it is on this side of this Bill that I should like to say a few words. May I first call attention to the powers which are given in the Bill in this connection? Clause 43, Subsection (1) states: The Secretary of State may make rules for the regulation and management of prisons, remand centres, detention centres and Borstal institutions respectively, and for the classification, treatment, discipline and control of persons required to be detained therein. The first point I would make in that connection is the great importance of segregation of prisoners. I was very glad to hear in the Home Secretary's speech yesterday two sentences, which I think go very much to the heart of the problem. The first was when he said: it was our duty … to send prisoners out into the world better men than they were when they came into prison. and the other was— One of the things we must endeavour to make easy for people on benches is the ability to fit each particular offender into the appropriate scheme of things."—[OFFICIAL RETORT, 27th November, 1947; Vol. 444, cols. 2136–40.] It is very easy in these days of shortages, shortage of buildings, shortage of labour, and in prisons, shortage of qualified personnel, to say a great deal, but be able to do very little. However, I think we should go as far as we can on the question of segregation of prisoners. Take, for one small example, boys who escape from Borstal. Does one not rather expect a boy who has been sent to Borstal to try to escape? I think it is a very natural offence, and is not really a very serious one. But, what happens to these boys when they have been caught? They are probably sent for a period, while awaiting trial, to one of our main prisons where, on the surface, they are segregated, but they are dressed as prisoners, appear in public as prisoners, and see prisoners of all types around them. There should be a special place for these boys for this period.

I also think these boys should be segregated among themselves. There must be boys of whom certain facts are known, of their criminal background, or whatever it may be. Boys of very different sorts should be kept apart. Prisoners themselves are segregated into many categories, but I think one of the most important is not named as such. It is the category of those who have never experienced what one might call social discipline. It is such discipline for a boy or man which in many cases is required and, as the Bill points out, it is not necessarily punishment. On the one hand, in Clause 19 we have corrective and preventive treatment. I hope very great consideration will be given to the other side to which I have referred—those who, if put in the right company and given the right treatment, may and should become responsible citizens. It is quite wrong that a first offender, convicted for such an offence as debt or breaking the licensing laws, should be made to consort with habitual criminals. It should be only necessary for this sort of prisoner to be held awaiting trial, or at any time, in our main prisons for a night at the most, if that.

My second point is on the question of the remission of sentences. I wish to ask the Home Secretary whether our present system is fair either to the prisoners or to the community in general. So far as I am aware—and I hope I may be corrected if I am wrong—any prisoner in a certain category may obtain a remission of his sentence up to one-third, and in granting this remission no distinction is made between one prisoner and another. It must be known that certain crimes committed after leaving prison were planned by men while they were in prison. Yet such men, by good work and good conduct, which in the Services is often referred to as "undetected crime," will get the same remission as the man who behaves quite normally in prison but without intent to go back to crime when he was released. All the facts of the case should be taken into account in these cases, in the same way as they will be taken into account for release on licence. There must be a great deal of background of the prisoner which is known, and the governor must know a great deal about the man by then. I suggest that it would be much fairer to all concerned if that were done.

I wish to draw attention to the need for adequate numbers of staff, especially in these days, and for men of the right type to be appointed. I hope there will never be any lowering of the standards; it should be quite clear that a prison officer should be one who is never likely to appear before a court himself. I have the greatest admiration for the prison officer; a very great deal depends upon him, and he has a most difficult job, and it is only by maintaining adequate numbers of the right type that we shall be able to maintain the good results of the past.

That brings me to a minor point, on which I feel rather strongly—visits to prisoners by their families which, I understand, can only be improved if there are increases in staff. I was horrified when I visited a prison recently to see women with their children talking to their men folk through a grille. If a man is entitled to, and deserving of a visit from his family, I suggest that it should be done properly. Let the man wear ordinary clothes, and do not let his children—who probably, because they cannot be left at home, have to come with their mother—see him suffering degradation. It cannot do them any good, and I have a feeling that it may do them great harm.

On the question of payment to prisoners for the work they do, I feel we are doing this on the cheap. It should be a worthwhile payment, as in the case of prisoners of war working on the land. I understand the object of payment is to give the prisoners something to rattle in their pockets, or to spend on tobacco at the canteen. It is a little difficult to rattle a sum of between 4½d. and 1s. 3d. a week, and no doubt the system leads to black marketing, and trafficking between prisoners. Why should they not be paid a proper wage, of which a proportion should go to their dependants, instead of dependants having to get public assistance, which they do not like? Why should the men not be paid a proper wage, and the money go automatically to dependants? The man would then feel that by working harder he was doing something for his family. The remainder should go to the State, in order to pay for his upkeep while in prison, and some should be set aside to be given to him when he leaves prison. It would make it much easier for him to get work if he could buy his own tools when he came out of prison and it would give him something on which to live while looking for work. Its absence is I believe, the reason why he often resorts to crime again.

I fully realise that what I have suggested merely means a change round of the funds as they are used at the moment. I have not the figures, but I do not think such a change would be a great loss to the Treasury. It would make a great difference to the man and his family, and also to the finished articles which are produced by the prisoners in the prison workshops. That brings me to a letter in the "The Times" yesterday by Lord Justice Wrottesley which has already been referred to by my hon. and learned Friend the Member for Chester (Mr. Nield). This letter suggested that more use should be made of prison labour, especially in relation to our production drive, and suggested that more up-to-date machinery, etc., should be used. No doubt the Home Secretary will give consideration to that letter, and I was pleased to hear him say yesterday, in an intervention, that he had encountered no embarrassment from the trade unions in this matter.

May I ask in conclusion whether consideration has been given, or is to be given, to the revision of maximum sen- tences? I have been dipping into a little book which is no doubt familiar to all hon. and learned Members in this House. I find that the maximum sentence for assault with intent to commit a felony is two years. On the other hand, for maliciously damaging an oak tree growing in a park or pleasure ground, garden, orchard, etc., the maximum sentence is five years, and similarly: Whosoever shall unlawfully and maliciously cut or otherwise destroy any hop-bind growing on poles in any plantation of hops … shall be liable … for any term not exceeding 14 years. That may be quite clear to the initiated, but as I sit down I would like to ask the Under-Secretary whether any revision of these anomalies is being considered?

1.23 p.m.

Photo of Mrs Freda Corbet Mrs Freda Corbet , Camberwell North West

I would like to follow the remark of the hon. and gallant Member for Chelsea (Commander Noble) about the smallness of the offence of escaping from Borstal. I wish to extend that observation to the girls, in particular, who, being care and protection cases, get themselves into approved schools, having committed no offence, then, by the process of frequent absconsions, get to Borstal, and then abscond from Borstal, finally finishing in prison. This is a serious matter, which should be most carefully considered. I am sure that the care and protection provisions of the Children and Young Persons Act, 1933, were not intended to put young girls into prison. I think they were intended to protect them against themselves, and it is the desire of everybody concerned—the probation officers and the courts—to see that these girls are brought to a responsible way of life.

Having put them under supervision, and then having sent them to a hostel, quite often provided by religious bodies, and, therefore not always the kind to attract such girls, we then send them to approved schools from which they run away. We should make some amendment of the Children and Young Persons Act which could be included in the Ninth Schedule of this Bill whereby, unless the original reason for their committal to an approved school has been an offence, such girls cannot be sent to Borstal. That is an important matter for us to remember.

I would like to congratulate the hon. and gallant Member for Chelsea on all the points he has mentioned. It is symbolic of the attitude of society today towards these unfortunate people who commit offences, and who, I would remind the House, are found out. The idea of reformation and rehabilitation, the knowledge that humane treatment procures these results, is permeating the whole of society, and is, of course, ordering the efforts of the Home Office itself. We must congratulate ourselves on the fact that gradually, slowly it is true, we are attaining the kind of treatment by means of which we shall manage to reclaim these people. I would here urge that there is no time in life when it is too late, that however old a person may be, there may be hope. I hope that together with the provisions for corrective and preventive detention, every effort will be made towards reform and rehabilitation.

I have not had much contact with prisons, but a year or two ago I had the opportunity of trying to help a young man, aged about 23, who was in prison. I knew of some of his rather vicious habits that were undermining his health. I wrote to the prison governor, and received a letter back from the chaplain, saying that it was wrong to write to the prison governor. I did not understand why that should have happened. It seemed that the efforts of a well intentioned person to help a prisoner were not welcomed. That is unfortunate. It was clear, from the account given, not only by the youth, but by a friend of his, who was a first offender, in prison for a technical offence, that humanity was not the strongest point in that particular prison, particularly in regard to sick persons, who, so far as I can recall the facts, were obliged, however ill they were, to get up at five o'clock in the morning to report to the doctor.

I do not propose to talk about the death penalty, but I warmly welcome the provision in Clause 15. I would ask the Home Office to consider whether, if the death penalty is not suspended, as I hope it will be, provision might at least be made for the raising to 21 of the age at which the death penalty can be inflicted. It has given me a great deal of pain, in recent cases, to see youngsters of just over 18 years of age being executed. I warmly welcome the provision for the date of the committal of the offence to be the relevant date. I wonder whether that might not be extended to the offences committed by youngsters under 17 years of age. It has often been most troublesome in the juvenile courts, because a youngster with whom one is dealing is approaching the age of 17 at which age, of course, he escapes from the jurisdiction of the juvenile courts. If the date of the committal of the offence were the relevant date it would be of great value to the justices.

I hope that the Home Secretary will not proceed with Clause 3, and will continue to give magistrates juvenile courts and probation officers the advantage of not having to proceed to conviction. There has been some talk about a judge saying that we are trying to pretend that things are not what they are, but I think that when we try to pretend that things are not what they are, we often find that things become what we are trying to pretend they are. In this connection I agree with the hon. and learned Member for Carmarthen (Mr. Hopkin Morris), who has had some experience in these matters, that the time has come when consideration ought to be given to the raising of the age of criminal responsibility. He spoke of raising it to the age of 14. I am not sure whether that is the appropriate age, but I am certain that it should be raised to an age higher than eight, which is the age today. No youngster under 10 ought to be found guilty of a crime or ought to have anything recorded against his character. It is open to argument that no child under 14 should have to run the risk of incurring a grievous stain upon his character.

The hon. Member for York (Mr. Corlett) spoke about approved schools. I appreciate that they are very valuable institutions. In fact, the London County Council has one, and middle class parents sometimes write to ask what they should do in order to get their girls into that very finely run school. In spite of that, the juvenile courts try to avoid sending children to approved schools. I speak with experience as a magistrate. We cudgel our brains and do everything that we can to avoid such a course. We have found recently that the Education Act gives us a magnificent chance as there is a provision whereby education authorities must make arrangements for dealing with maladjusted children. The difficulty is that, so far, education. authorities have not got the provision for maladjusted children. The courts are very anxious that the education authorities should provide facilities and are always badgering them to do so. They do positively prefer to have them ascertained as maladjusted under the Education Act so that they may send them to boarding schools, hostels and foster homes, thus avoiding any of the stigma that inevitably attaches to approved schools.

Not only do they do that, but they endeavour to discover the child's mental attitude so that if possible he can be sent to a school for the educationally subnormal. If he is delicate, they will see whether he can be ascertained as such and whether the education authority will, with the consent of the parents, take him into a suitable school. My experience shows that if a child must be removed from home, enlightened courts are trying to get him sent to a boarding school of one description or another. The Education Act allows education authorities to provide boarding schools. It is undoubted that the vast majority of the children who go to approved schools are ordinary, normal children Who fit into boarding school life quite easily. They are children who ought not to be sent to schools where they run any risk of incurring any stigma upon their character. We ought to have a thoroughly impartial inquiry to decide the proper method of dealing with these children within the educational system.

Approved schools are run under the aegis of the Home Office. I would like to see them under the aegis of the Ministry of Education. I hope that whatever may happen in the near future under another Act will not result in the approved schools being taken too far away from the education authorities. I hope that there will be an attempt to integrate the whole of the services for the children, bringing the provisions of the Education Act, which are so valuable, together with the existing provisions for children who get into trouble. What we hope to do under the Education Act, in regard to maladjusted children, is to avoid bringing many of these children before the courts at all.

Hon. Members will be interested to realise that in London we have a system of what we call divisional case conferences. Children who are troublesome at home or school are brought before the conferences. Medical experts, teachers and parents attend, and it is possible to determine at an early age before the child gets into the courts, what sort of treatment is necessary. The conferences decide whether child guidance, a period away from home at a boarding school, or hostel, or with foster parents, is the best treatment. We hope that treating children at an early age will be the way to prevent them appearing before courts.

Recently, there have been brought to public notice a number of cases of mothers being guilty of neglecting their children. In at least one case it has been suggested that the best way in which to deal with such a mother was not to send her to prison but to see that she had a period of training so that she would know how to look after her children. It is evident from our experience that all mothers do not know automatically how to look after children. Some children are easy and amenable and almost anyone can look after them. Others, as I know from personal experience, are far more difficult. Far from it being the case that any mother could look after them, I would say it would be only the very highly skilled person or mother who could look after this type of child. But there are some mothers who cannot look after any children. That is the type of mother to whom I am referring.

I think that this Bill gives to the Home Office sufficient power to provide the necessary money to set up training centres for mothers of that description. It is a pity that the Home Office should be precluded, if it is, from providing the whole of the funds necessary. It would appear at the moment that the Home Office cannot provide any funds, because not very long ago a voluntary body was asking for funds in order to set up such a home. It would be regrettable if opportunity were not taken now for the Home Office to provide all the funds necessary for the setting up of homes which would allow us to deal with the trouble at the very root.

Girls are not usually difficult. In fact, it was with some diffidence that I rose to speak today, realising what a purely male question this is. The ones that are difficult are not, as a rule, criminals. They are not usually guilty of an offence against the law; they are merely in danger of running themselves into moral trouble. That is the type of girl who can be included in care and protection cases. They are girls who very much object to getting into the hands of the law. They do not like policewomen a bit—although I expect they will like them a little now that they have very attractive hats, which make the policewomen attractive, as they themselves can be. It is, however, interesting to note how much the girls resent the fact that, because they happen to be just 17, these things should happen to them, whereas were they a month or so older they would be at liberty to do as they like. During the war when numbers of these girls came before the courts, they often produced identity cards showing them to be over the age which made them subject to these courts. They object to the fact that someone should come into their private lives, even though they know that that is for their own good. They are difficult for that reason, but they are not thoroughly bad.

I think that one of the possible methods of treating them is through the provision of attractive hostels. There is a lack of hostels in any case. What I am asking now is that the State itself should have the necessary power to provide such hostels, and not merely give funds to voluntary organisations to provide them. There is a great deal of room for experimentation in the provision of attractively run hostels which will serve to keep the girls happy and contented, free as to their movements, allowing them to go out to work, and subjecting the girls only to the good influences of refined and understanding persons of the kind with whom we should staff the hostels.

There are so many things that can be said on this Bill. It is very good, indeed, to find that it is not a party issue, but a matter in which we are all concerned to get the best we can for the children and, indeed, for the adults—for anyone who may be unfortunate enough to come under any of its provisions. This is not an easy problem. I do not think environment counts for everything, although I think it may account for 75 per cent. of the difficulties. The percentage may be lower than that. It may be only 50 per cent. We do not know. But we are en route to removing these environmental causes of the difficulties. What I am sure we are going to be left with are the other and deeper causes of criminality—character, heredity, those things which are very difficult to remove.

I know this because I have had experience with children. I remember one child who, at a very early age, showed deeply criminal characteristics. He did not know what it was to tell the truth. He did not know what it was to keep his hands off other people's property. He kept his foster parents worried to death from the fear that at any moment a policeman would be knocking at their door. He went through almost every phase of criminality as he passed from childhood into young manhood; he went into the Army, became a prisoner of war, and suffered very badly, indeed. Finally he became an ordinary, good citizen. I think that that was probably due to the fact that the people who loved him never lost patience with him all the time he was with them. Whatever he did to them—and they were grievous things—they were prepared to forgive him, and they were prepared to show him the way to a better life, and to encourage him in it. That is what the probation officers do, who encourage the courts to put children on probation again and again; because they know that criminal characteristics cannot be eradicated at once, and that it will take a period of training to achieve ultimate reform. That is the attitude we are bound to take, not because we are unduly sentimental, but because we are entirely practical, and because we want to see these people, of whatever age and at whatever stage in life they may be, brought up and becoming the good citizens that they can be.

What we ought to make sure we do in the case' of the children is to get the utter and complete co-operation of the parents, especially in those cases—that residue of cases, that small number—of children who have, undoubtedly, a kind of ingrained difficulty. We ought to get full co-operation from the parents, and to seek from them frank revelations of the children's characters at the earliest possible stage. Then we ought to concentrate upon the study of the mind and the personal behaviour of each of those children—child guidance clinics and other institutions of the kind are concentrating upon this—hoping always, of course, that we shall arrive at a time when these clinics will be able to help us very substantially with the very difficult problem we have in the cases of these children. I do not think that, at this moment, they do help us too substantially. Unless, however, we give them encouragement to proceed with the study of human behaviour there will not be anybody available to help us with this residue of very difficult cases of which I have been talking. Thus I hope that everybody associated with this work will see that this very important study is given every possible encouragement.

1.47 p.m.

Photo of Sir Norman Hulbert Sir Norman Hulbert , Stockport

I propose very briefly to address myself to three of the aspects of this Bill. Before doing so, I would say that I am sure that all of us concur with what has fallen from my right hon. Friend the noble Lord the Member for Horsham (Earl Winterton) and also from the hon. Lady the Member for North-West Camberwell (Mrs. Corbet) in regard to the point they have made that this Bill has the support of hon. Members of all parties and, I believe, hon. Members of no party. It is a most remarkable tribute to this House of Commons that, in this period of crisis in our country, we can devote two days of Parliamentary time endeavouring to better the lot of those less fortunate than ourselves.

I should first like to refer to prison administration, the buildings and the staff. Fairly recently, through the courtesy of the Secretary of State, I visited one of the largest—I believe, the largest—of His Majesty's prisons. While I agree with the noble Lord that our prison system and administration of justice are the envy of the whole world, I think we have to admit that in many aspects there is a great deal of work to be done. In this particular prison, which has a population of some 2,000, there are all sorts of men. There are the convicts; there are the men who have been sent to penal servitude; youths awaiting Borstal treatment; and, most terrible of all, there are children of 14 and 15. The physical conditions of that prison are such that it is impossible to segregate these classes. The Governor, the most humane of men, and his prison staff who, I am sure, are today of a better and higher calibre and possessed of more human understanding than the men who have been in these rather unfortunate jobs in the past, are powerless because of the circumstances by which they are surrounded.

I was told that segregation was difficult or impossible, because they have no bricks or mortar to build walls to keep these boys away from the hardened criminals. The Government would be doing noble work, if they diverted some of the material and labour from building partition walls in Government offices to this work. I was appalled to see the difficulties confronting officers and staff in regard to exercise. It is still the practice in prisons for parties to exercise by walking round and round a concrete yard. I have seen boys of 14 walking round in a circle for an hour at a time. I inquired why they could not have a football or cricket bat, and I received the incredible answer, which I have passed on to the Secretary of State, that some prison officer was afraid that some one might fall down and break his leg.

My next point concerns prison libraries. I did not have a chance to look at the books, but I found that when a youth went for a book, he was not asked what sort of book he wanted, but merely filed up to the window or cage and was told "This is the book you have to read."

Photo of Mr Cyril Osborne Mr Cyril Osborne , Louth Borough

That is not true of all prisons.

Photo of Sir Norman Hulbert Sir Norman Hulbert , Stockport

I am delighted to hear it. I hope that when the prison administration is revised, attention will be given to these points. We have all praised the Borstal system, although some criticisms have been made in regard to it. The Borstal system has, I think, paid handsome dividends, and so has the system of approved schools. The Home Office have a scheme for training prison officers, but there is no training for Borstal officers as far as I know. There is no system of training for teachers who are to go into approved schools. I think that such training is most desirable, and I hope that the Home Office will consider introducing it. Approved schools are, to some extent, in an anomalous position. Boys and girls can be sent to approved schools if they have been convicted or if they come from bad homes and are in need of care and protection. Naturally, it is not possible to segregate these two classes, but the effect on the future life of a boy who has been to an approved school in these circumstances ought to receive the attention of the Home Office.

As the Secretary of State knows, I am interested in a certain approved school where we have boys who have not been convicted. They find that when they go into the world, the fact that they have been in this kind of school is a black mark against them. I know of the case of a boy whose conduct had been exemplary in the school. He joined one of the branches of the Army, and his commanding officer recommended him for a commission. When he went before the selection board, he was asked where he was educated. He told the truth, and he was turned down. A boy from another school who went before another selection board told a lie, saying that he was educated somewhere else, and he was accepted.

I wish to say a word on the probation system. At present, when a person is put on probation, no conviction is recorded against him, but, under Clause 7 (1), a person who is put on probation in future will be convicted. I know that there is a subsequent Clause which provides that in a way the conviction can be wiped out. The mere fact that a person put on probation has a conviction recorded against him will discourage him to work well during his probation period. I am glad that a subsequent provision permits the court to order a person who is put on probation to pay restitution. A great many people inside approved schools and Borstal institutions seem to have little or no idea that it is wrong to take the property of someone else. We had a boy who behaved extremely well when he came to the school, but stole the padre's cigarettes. The headmaster told this boy of about 15 years of age that his punishment was to save up his pocket money until he could buy the padre another packet of 20 cigarettes "Lor' luv a duck," the boy said. "What a place I have come to, having to pay for what I pinch. What would my mother say?" That is an interesting commentary on the attitude of some of these children.

I hope that the Home Office will give every support to the voluntary organisations which devote a lot of time and money to training probation officers. In the first stages of the downfall of a boy or girl, the probation officer becomes his first friend. It is a probation officer who should step into the breach and save that person from slithering further down the ladder. The probation training board at the Home Office are doing good work, and I should like to see the attractions and conditions of that service made better known to get the right type of men and women for this work. I should also like to see more attention given to the aftercare of children who come out of approved schools or Borstal institutions, and of convicted persons.

As the House knows, there is the National Association of Prisoners' Aid Societies, but when a discharged person goes to see them, they are so short of cash that he may receive only £1 or even less. What good is 20s. in these times? It only increases his bitterness, and makes him say to himself, "I can get a bit more than this, without any chance of being caught." I believe that the offering of £1 or a few shillings to one of these men is an encouragement to him to revert to his criminal practices. Once a man has served his sentence, once he has expiated his crime, and is released, he should receive the maximum help and support, not only from official, but from unofficial sources. I hope that the voluntary organisations which are doing such good work will receive continued support.

2.1 p.m.

Photo of Mr Hector Hughes Mr Hector Hughes , Aberdeen North

This Bill has been offered a great deal of praise, and a little criticism. I would like to offer a little of each, and, at the outset, say that I regard the Measure as a really constructive effort to improve criminal justice. It is bold, imaginative, and humanitarian, and contrasts strikingly with some of the earlier efforts and ideas in criminal justice. Some of those were very wrong. As recently as 1936, we find so distinguished a judge as Lord Chief Justice Hewart saying, in answer to those who favoured the abolition of the death penalty: "Que messieurs les assassins commencent." What does that mean? It implies that the criminal should take the initiative in determining what is the right conduct for the community. That is an astonishing doctrine. It is wrong because it is clearly realised today that, in criminal matters, the community should take the initiative. The initiative should remain with, and be more strongly exercised by. the community, through the Government.

I am glad that in this Bill the Government have acted on that principle, with credit to themselves and particular credit to my right hon. Friend the Secretary of State for the Home Department, who occupies that Office today. This Bill is inspired by modern ideas, and notwithstanding what was said by my hon. Friend the Member for Chesterfield (Mr. Benson) I am very glad that it combines the idea of the deterrence of potential criminals with the idea of reformation of offenders. It attempts to make the punishment fit the criminal, rather than the crime; the old fashioned, out of date, idea of retribution is wholly excluded from it. The Bill is based on the modern view of I' hygiene prevéntive school that moral regeneration should be the primary aim of prison discipline, and that hope should always be a more powerful agent than fear. It applies itself more to the character of the criminal than to the character of the crime, and because of that we strongly commend it.

The Bill seeks to achieve these aims by a kind of graduation process for young offenders and old lags alike, for it takes the view that there is hope of reform and restoration to good citizenship. The scheme, while it does not quite envisage the seven ages of man, at least envisages three ages of crime. It seeks to keep the young offender out of prison, lest his character might become worse tainted. For older offenders, it abolishes the bad distinction between hard labour, penal servitude, and imprisonment, and gives the Home Office a free hand for reformative treatment: third, for persistent offenders, the old lags, it revives the law and provides two grades of punishment—one for the very bad type, and the other for the type that is not so bad, and concerning whom there is more opportunity for hope.

All this tends in the right direction, but there are other matters which I would have liked to have seen included in the Bill, and some which I would have liked to have seen dealt with differently. I am sorry that in the Bill there is no recognition of two degrees in murder. I was very glad to see, in "The Times" today, a distinguished colleague of mine, who has great experience of criminal matters, taking the view that I am right in this, and even suggesting that there ought to be at least three degrees in murder. There should be no difficulty about this; it is done under the Indian penal code, which is the best of its kind which the world has ever seen, and it is done in the United States. In both of those places it works satisfactorily, and has ensured even-handed justice. I will mention two examples of the kind of thing I have in mind. One is the case of deliberate murder by the man who marries, insures his wife's life, poisons her and collects the insurance money. Then he marries again, insures his wife again, poisons her again, and again collects the insurance money. We all remember the case of George Joseph Smith, who drowned a succession of wives in baths and collected insurance money in respect of their deaths.

On the other hand, we have the case of a father whose child is perhaps an imbecile, or who is suffering from an incurable disease. That father kills the child in order to terminate its pain and put it out of its agony. Undoubtedly, that is murder. Both those cases are murder in the eyes of the law, but, morally, they are very different. They are in different degrees of depravity, but both are treated as murder and the judge is obliged to sentence to death each of the accused persons found guilty of those offences. There are different degrees of stealing—larceny by trick, embezzlement, and robbery with violence—and I cannot see why in law we should not recognise different degrees in murder, as we do in other fields of crime. I am not saying anything about the penalty; that would be a matter to be considered separately.

There is another matter which, I am sorry to say, is not dealt with explicitly in the Bill. I am sorry that there are no really constructive provisions for the employment of prisoners. The Home Secretary spoke of the hard work in prisons, but the hardness of the work is not enough. The work should be constructive. I believe that it is along these lines that the real salvation of the denizens of our prisons will be found. They must be given interesting work, in which they can take a pride. This will assist them to restore the self-respect which has been taken away by the commission of their crime, trial, and sentence. This great labour potential should be used in the national interest. Our prisons should be made self-supporting. I was glad to see that Lord Justice Wrottesley, in another letter in "The Times," taking that line. May I quote a few words of that letter, which have not yet been quoted in this Debate: During the war, prisoners were given the chance of making various munitions of war, and were proud of doing something to help their country. It is impossible to over-estimate the hold which this gives those in authority over criminals, or its effect on their redemption. Later, Lord Justice Wrottesley says: What possible excuse can there be for these men to be twiddling their thumbs in locked up cells when they could be, producing what the consumer needs, or what the tradesman needs to carry on his trade? Another matter that I am sorry has not been dealt with in the Bill is the archaic procedure and language of our courts. This should be changed. Forms of indictment and forms of arraignment should be simplified so that accused will know the nature of the charge against them and be able intelligently to follow the procedure. The melodramatic black cap should be abolished. It is, in my submission, a ghoulish survival, and the gruesome ritual of sentence should be modernised. The Home Secretary spoke of legal jargon. Listen to the form of sentence of death which has been approved by the judges: The sentence of the Court upon you is that you be taken from this place to a lawful prison and thence to a place of execution and that you be there hanged by the neck until you are dead and that your body be afterwards buried within the precincts of the prison in which you have been confined before your execution. And may the Lord have mercy on your soul. In my submission that is a revolting survival. It is unworthy of a civilised country, an outrage on human decency and on good taste. In short, it is a characteristic of the bad old times and the bad old spirit which should be altered today.

One last matter to which I wish to refer is the sentence. The sentence is the whole object of the trial. The object of the trial is to determine guilty or not guilty, and the sentence which will be inflicted on the accused person. Sentence is one of the most important and difficult elements in any trial. The sentence to be inflicted is a matter which must be carefully considered. It alters the residue of the criminal's life. It affects his dependants. It is an example to others. Sentence in murder cases is too terrible and too exacting a task to be dis- charged by one judge alone. It should be discharged by a judge with assistance. I suggest the assistance of a doctor and a psychologist and to enable them—the trio—adequately to discharge their duties, the doctor and the psychologist should sit through the trial with the judge. At the end of the trial, they should, in unhurried consultation, assist him in determining the nature and the duration of the sentence.

I join with the right hon. Member for Horsham (Earl Winterton) in his observations with regard to the payment of jurors. Jurors discharge a very responsible and very necessary task, and it is right that they should not suffer any personal or pecuniary loss in discharging it. Therefore, it is clear that they should be compensated or paid for their services. Clause 33 is a highly dangerous and objectionable one. It is that which enables the fingerprints of persons charged to be taken—not persons found guilty. Persons charged may afterwards be found not guilty. This, I suggest, is an infringement of personal freedom. It is drawing a distinction between classes of citizens. Any citizen unfortunate enough to be charged and found not guilty has his fingerprints forcibly taken and preserved in the police archives. It makes him evidence against himself. It opens the door to fraud and blackmail, and creates an artificial distinction between innocent citizens.

Clause 28 is the Clause which takes away the accused person's preemptory right of challenge. That is an ancient right enjoyed by prisoners for a very long time. In our courts, an accused person is deemed innocent until he is proved guilty. Why should an innocent person not have the right to challenge his jurors preemptorily? Why should he be confined to the right to challenge a juror only on showing cause. He may not be able to prove cause. Take the example of a Jew who may be charged with some offence. He may see some man coming to the book. He knows well that he is a Fascist. He may not be able to prove it. He may know that the Fascist on the jury may not give him a fair, true or just verdict. Is it right that he should be obliged to show cause which he cannot prove? I submit that this Clause is an invasion of the right of the citizen and should not be passed. These are some suggestions which I venture to offer. It is an excellent Bill, and I welcome it. I hope that it will pass, and I hope that, in its passage through Committee, it will be improved in the respects which I have suggested.

2.17 p.m.

Photo of Mr Cyril Osborne Mr Cyril Osborne , Louth Borough

My only reason and justification for intervening in this Debate is that for a number of years I was a prison visitor. An hon. Friend of mine who has just left this House complained in his speech that men in prison could not get the books they required; they had to get them through a grille, and they had no choice. That was not my experience. In the prison I visited, the librarian was the most humane part of the whole organisation. The men were given a free choice of the books they wanted. In many prisons there are very good libraries, thanks, largely, to the voluntary societies who support them.

There are two things in the Bill which I especially welcome. One deals with young offenders. It says in the Memorandum: One of the main objects of the Bill is to provide for the abolition of imprisonment as a method of treatment for young offenders convicted of such offences. … My experience was that we should never send anyone to prison for the first time if we could avoid it, especially young persons. The threat of prison should be kept over them and not exercised. With regard to Borstal training, I think that it has been one of the best developments in this sphere which we have seen in this country for the last half-century.

I would like to associate myself with the very fine tribute which the Home Secretary paid to my old friend, Sir Alexander Paterson. I knew him personally for many years. The class of people with whom we are dealing today little know what they owe to him. This Bill is a true memorial to his work. Nothing would have rejoiced his heart so much as the Clause dealing with young offenders and Borstal. As an undergraduate at Oxford from 1902 to 1906, he went to the Bermondsey Mission and became interested in a boys' club and in prison work. It was my right hon. Friend the Member for Woodford (Mr. Churchill) who gave him his first prison job in 1910, when he was Home Secretary. That was that Alexander Paterson should interview ex-convicts and try to get them resettled in life. In his subsequent work, he became chairman of the organisation called Toc H, and interested many of its members in prison work. I learned from that, that no matter what the regulations may be, it is the spirit behind them that counts.

I want to appeal to the Parliamentary Secretary that whatever changes are made, voluntary societies shall not be cut out. I think the work of the voluntary societies should be left in and men and women of goodwill encouraged to go into the prisons and Borstal institutions and continue their work especially amongst the young offenders to try to help them while they are in prison or in Borstal, as well as help in their resettlement afterwards. If that could be done this will be the greatest contribution which the Bill will produce.

2.20 p.m.

Photo of Mr William Brown Mr William Brown , Rugby

I have undertaken to limit my remarks to 10 minutes and 10 minutes it will be. I should like to begin by associating myself with the tribute paid by the hon. Member for Louth (Mr. Osborne) to the consistent and magnificent work of Sir Alexander Paterson for the prison work of this country. On the Bill itself there are many merits which I should like to discuss if time were available. As one who moved, in the 1929–31 Parliament the Motion for the abolition of corporal punishment which lead to the setting up of the inquiry which subsequently recommended a five-year period of trial suspension, I should like to have dealt with that. I should like to have dealt with the argument whether Borstal schools are as bad or only half as bad as prison itself. I should like to have dealt with the character of the prison buildings, about which the present Leader of the House once declared they ought to be dynamited and blown up.

There are many aspects I should like to discuss, such as whether we ought not to refrain from adding to the penalties imposed by the magistrates penalties imposed by ourselves. For example, when a magistrate sentences a man to prison during the prison sentence he may be deprived of tobacco, and nearly all the trouble about trafficking in prison derives from tobacco. I am not sure whether we ought not to reverse the order, and, starting with the maximum of privileges, reduce them if prisoners do not behave, instead of starting with the minimum and gradually increasing them.

I am going to concentrate for the remaining eight minutes of my time on what I regard as the extremely vital aspect of this matter, and that is the prison staffs. I do not know whether the House is aware of it, but we are in very grave danger of seeing a breakdown in the prison service, because of the wholly inadequate size of the prison service. They were inadequate before the war and three things have combined to make the inadequacy greater—first, the prison hours would sooner or later have to be put on a reasonable basis; second, we were extending very rapidly the periods of association which prisoners have had; and, thirdly, the prison population is growing, and the number of hours out of solitary confinement is greater than it used to be, which is a good thing. The system has been kept going on the basis of two tolerations, one the toleration of the prison staff and the other the toleration of the prisoners. If anything happened to break down either of these tolerations the prison system of this country would break down in a few hours. If it breaks down anywhere it will break down everywhere, because there are no surplus staffs which can be sent to any particular centre where trouble may break out.

I wish the Home Secretary had been here at this moment. I am not criticising him for his absence because we all know he has other matters to attend to, and I understand he will be back. I told him, however, I wanted to make this point today. We have to do two things about the service. We have to improve the attracting power and the conditions of the job. It is a bad job anyway. We can never make it an attractive job in the sense that many jobs are attractive, but we can make it financially tolerable. George Bernard Shaw was quite right when he ejaculated on one occasion, "Don't expect the prison officer to have a heart. His pay will not allow it." That is a typical Shavian remark, but there is a great deal of truth in what he said.

We have to reorganise the service. Under a decision of the Manpower Committee a short while ago all advertisements for the service were suspended. Only now are they being resumed, and there ought to be a decision at a Ministerial level, not on Civil Service level, as to the priority which recruitment to this Service ought to have in the general scheme. It is not getting priority, and I should like to ask the Home Secretary to take the matter up with the Minister of Labour and see whether much more effective use could not be made of the labour machine to attract men into the prison service. If we do not do that things will go from bad to worse. We find that a lot of recruits do not stay longer because of the shortage of staffs and the difficulties of the job.

The staffs never can depend on getting their right hours off duty or their regular evening, and they cannot make any social engagements beforehand with the assurance that they will be able to keep them. The more exiguous the staff becomes the greater the difficulties become, with the result that the staff becomes more exiguous still. We have got to come to grips with this problem, because there is grave danger of the whole machine breaking down. I have only occupied six of my eight minutes, and I will pass on the benefit of the two remaining minutes to the hon. Member who succeeds me. I give my blessing to the Bill and congratulate the Home Secretary and the Government on it, and I am sure they will have general goodwill.

2.28 p.m.

Photo of Mr Terence Donovan Mr Terence Donovan , Leicester East

Although I should like to say a lot about this Bill I have to be as short as the hon. Member for Rugby (Mr. W. J. Brown), and I hope I shall be as much to the point as he was. In the circumstances, I propose to confine my remarks to one or two practical points which seem to emerge from the Bill. Under Clause 16 magistrates in future will not be able to send a child of 17 to prison, but magistrates at quarter sessions or judges at assize will be able to do so. The reason for that no doubt is that the offences will be more serious. I hope, however, that before this Bill gets on to the Statute Book the matter can be reviewed and that 17 may be the minimum age in all cases, because there is something revolting in my mind about sending a child of 15 to prison.

Clause 33 deals with fingerprints. I agree with what has been said on that subject, but I should like to put one other aspect of the matter which seems to me to be important. If magistrates are sitting on a bench, and the police inspector applies for an order to take the fingerprints of some person whether in custody or not, the magistrates will say to themselves, "There is more in this than meets the eye," so that the defendant, even when he is on summons, is bound to be prejudiced. If it is necessary to retain this I suggest that when an order has to be made to magistrates the same magistrates should not try the case.

Clause 45 deals with flogging in prison. I am against corporal punishment, but I see the argument in favour of retaining it for mutiny in prison or gross violence on warders. I should like to make this suggestion, that at the inquiry which precedes the order for flogging, and which has to be held by the Visiting Committee, the person who may be flogged shall have the right of being there and also of being represented legally if he wants it. Those are matters which are in the Bill. I now come to four matters which are not in the Bill.

I support the suggestion made by the hon. and learned Member for Crewe (Mr. Scholefield Allen) that some means should be found for continuing the national insurance contributions of persons in gaol. Otherwise we inflict upon them an additional and unmerited punishment. I hope that some arrangement will be found to make it compulsory in the Bill for prison authorities to release women who are pregnant for the period of their confinement, so that the stigma of a prison birth shall not be visited upon the innocent child.

As to juries, sitting at quarter sessions, I have often been oppressed by the amount of inconvenience and hardship inflicted upon them. They have to be there day after day hearing case after case for a week, or ten days or more. One cannot release them. They have come to me with very excellent reasons, some because they were not attending to their businesses which were suffering in consequence and others because they were losing their pay. I have had to say, "I am sorry, but I cannot let you go." If I had let one go, the whole jury would have disappeared, as their excuses were all as good as each other. We ought to pay jurors. I appreciate the argument that there should be some public service rendered free, but when we are prepared to apply that principle to everyone else in the court, from the judge downwards, I will begin to pay attention to it. Jurors have to discharge responsibilities which are at least as heavy as those of anybody else.

As to witnesses, I understand that an inquiry is on foot and that an order may be made to pay them more. I would draw the attention of the Under-Secretary of State to the fact that if the Treasury allow witnesses to be paid more for their expenses, there will be a commotion if nothing is done about the payment of jurors. As to the death penalty, I do not want to say any more than that on the evidence—I am no sentimentalist on this matter—we ought to give the proposal for abolition a trial. I would like to make it clear that I would not agree to offences like treachery in wartime not being visited with the death penalty. It may be illogical to oppose the death penalty on humanitarian and other grounds, and yet to agree with it for particular cases; but, nevertheless, I would not agree that an enemy spy in wartime should merely be sent to prison for life.

Like my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) I congratulate the Government on bringing in this Bill at this time. When we see that in the midst of our economic difficulties we can take two days to discuss, and eventually shall effect, a great humanitarian reform of this character, then we see a great democracy at work; and there need be no surprise that in these circumstances the majority of progressive-minded people in this country continue to support the present Government.

2.34 p.m.

Dr. Barnett Stress:

I will try to follow the example of other hon. Members, and be brief. The Home Secretary has warned us that most of the discussion would range around the death penalty and flogging; but when he said that he showed us his own mind, which was that the provisions relating to young offenders were perhaps the most important part of the Bill. I have often heard it said, usually from the opposite side of the House, that it is no use mopping up and that we should turn off the tap. It is certainly true in this instance. It we desire to cut down the number of habitual criminals, let us turn off the tap as quickly as possible by seeing that young offenders are treated in such a way that they never appear before a court again.

I feel very strongly about one aspect of this matter and I hope that the Under-Secretary will give me his attention. The hon. and learned Member for Carmarthen (Mr. Hopkin Morris) told the House yesterday about the young folk who needed only care and attention, being sent to approved schools although they were completely innocent. They have done no wrong, and if any wrong has been perpetrated it is by society, which has wronged them. In the approved schools they have to mix with children who have committed some offence. The hon. and learned Member did not take his case far enough. We know that a number of these young people run away from these approved schools.

In answer to a series of questions by me, the Home Secretary has given me information on the basis of which I have worked out the following analysis. In the five years from 1942 to 1946, 1,033 young people ran away from approved schools, and as a result were sent to Borstal. In the same period the average intake of Borstal was 2,000. The percentage at any time of those who had run away from approved schools was 10 per cent. A number of those who run away become hungry and cold, and they commit some kind of offence such as stealing bread, or breaking in somewhere on their way home. Therefore, they have no possibility of avoiding Borstal. They are sent there because they have committed a criminal offence. They represent 4 per cent. of the Borstal population. Then there are 6 per cent. who are sent to Borstal because the approved school from which they absconded will not take them back. I am sure the Home Secretary will remember a typical instance because it was brought to his notice. A girl was refused re-entry into the approved school from which she had run away because the gardener there said she had been impertinent to him, and that he would leave if she came back. The matron must have regarded the gardener as of more importance than the girl, and refused readmission, so the girl was sent to Borstal.

Another example is that of a child who ran away from an approved school on more than one occasion. He did so three or four times and his father took him back on each occasion. Some time ago, the boy ran away for the last time. None of us have heard of him since and the police have not been able to trace him. On no account should these young people be sent to Borstal unless they have been convicted of an offence. We have a right to ask that this point should be taken note of. It has already been pointed out earlier in the Debate that a simple Amendment of the Ninth Schedule could give us a better situation in this respect.

The flogging and the killing of criminals, by society, are so similar that I cannot understand how anyone can agree with the abolition of flogging and still wish to see the death penalty retained. I will not present any arguments on that point, but will content myself with urging the House to protect society from the morbidity which is associated with the desire to retain either flogging or the death penalty. I would remind the House of what Smollett said in "Roderick Random." It shows that times apparently do not change very easily. Smollett makes his author character Melopoyn say, when he is discussing the earning of money by the use of the pen, "I have earned many a good meal by an atrocity; robbery has often profited me a great deal—but murder has never failed me." That is a reference to sadism, which we should beware of allowing to develop any further. Lastly, on a lighter note, may I remind the House that there was a time in this country, some 150 years ago when we had a bad reputation with our friends abroad for these acts and morbidities. Walpole once told the story of a friend of his, a noted libertine who was particularly addicted to watching and assisting in executions. This man, a mutual friend of Holland and Walpole, insisted on visiting Holland on his death bed out of sheer morbid curiosity. When he had gone, Holland turned to his man servant and said, "If my friend comes again—" his name was Selwyn—"let him in. If I am alive I shall be glad to see him, and if I am dead he will be glad to see me." There is a serious point in what I have said, and I sincerely hope that if the Parliamentary Secretary has listened to the first part of what I had to say, he will not have to take any action about the second.

2.41 p.m.

Photo of Mr Derick Heathcoat-Amory Mr Derick Heathcoat-Amory , Tiverton

Many of us on this side of the House regard the Home Secretary, with the important exception of his political views, as a very wise and humane man. I must say that to a layman the Measure which he presented to the House yesterday seems to be wise and on the right lines and one which will clear away some of the relics of a bygone age which still obtain in our penal system and which are quite inappropriate to the times in which we live. We should all agree that the most disturbing feature about society today—more disturbing even than the increase of crimes of violence—is the increase in petty dishonesty. It would not be fair to expect to find a solution to that in this Bill. That must be sought elsewhere in the realms of family life and education.

As regards crimes of violence, the public must of course be protected against the criminal and therefore deterrence must always be the most important aim. What, however, is wholly good is that throughout this Bill there runs an emphasis on the reformation of the young offender— The brand to be plucked from the burning. That must be the right end from which to tackle the problem and I should like to support what has been said by one or two hon. Members including my noble Friend the Member for Horsham (Earl Winterton) as to the Wakefield experiment. All of us hope that that experiment will go further. Sometimes those who oppose any change do so on the grounds that severity is necessary when dealing with the tough young offender. It is important that we should not confuse severity with the retention of methods which are antiquated and ineffective.

Young offenders should always be dealt with firmly and sometimes severely. I contend that sometimes sentences are not sufficiently thorough and heavy. We should see, however, that those sentences which are imposed are sentences which are likely to be effective. Surely it is wrong human influences that get young folk into trouble, and therefore it must be right human influences which get them back again to a reasonable way of life. I support what was said yesterday by the hon. Lady the Member for Hemel Hempstead (Viscountess Davidson) that so much of the success of these new homes will depend upon the quality of the people who run them. We cannot attach too much importance to that.

I was glad that the hon. Member for Chesterfield (Mr. Benson) came out in support of Borstal. I speak as a layman when I say that on the evidence it seems that Borstal is achieving a rather astonishing measure of success. More than half the young people who go there do not relapse into trouble. In order to get our perspective right we must remember that any system involving trust must entail some failures and there are bound to be some who will not make the grade demanded. As to the approved schools, the point has already been made that it must be wrong to mix in those schools children convicted perhaps for nothing very serious but convicted, with children sent there because they merely need care and protection. The case for the abolition of corporal punishment for adults has I am sure been proved, though I am not entirely happy about its complete abolition for young people. I should have thought there was a case for retaining that power to be used, as it is at present, pretty sparingly. There are some cases where birching for young people is perhaps the best and most effective solution.

I am glad that wider opportunities are to be given for advice and treatment in the case of mental and suspected mental trouble. I have heard it said that of all misdemeanours those involving sexual misconduct are the most difficult to deal with and the least responsive to remedial treatment. Obviously there is here much further ground to be explored. I hope that this Bill will give more scope for the treatment of those very difficult cases dispassionately and as a separate problem calling for treatment rather different perhaps from that which is commonly given today. As to the internal organisation of prisons I have, up to date, fortunately no first-hand experience. The House was diverted by the nostalgic accounts of the hon. Member for West Fife (Mr. Gallacher) yesterday of happy days in the distant past, but I wondered whether he was quite up to date and whether if he returned he would not find rather surprising changes in the old place. I went over a prison the other day and my experience in respect of the library there was a little different from that of my hon. and gallant Friend the Member for Stockport (Wing-Commander Hulbert). There was a good library and prisoners had access to a wide choice of books.

I would emphasise with all the force at my command the point made by my right hon. Friend the Member for North Leeds (Mr. Peake) on this question of productive work. Idleness must be wrong, and productive work of the right kind must be right as a treatment. Picking oakum is no longer done but apparently the demand from the Postmaster-General for mail bags is not up to the capacity. I do not know whether the President of the Board of Trade can work out something for his export drive, but the fact remains that at present mail bags are having to be sewn by hand to fill up time though in some cases machines may be standing by. That must be bad. Today the Government is the user of a tremendously wide range of goods. The great thing about this work is that it should be useful, that it should seem useful to the men doing it, and that it should be something in which they can take a pride as well as requiring effort. Much can surely be done to extend the scope of this work. I was very glad to hear what the right hon. Gentleman said, that the trade unions are being helpful. That was what I had already heard.

I should like to make it clear that in any suggestions I have made about comfort and amenities I am not so much concerned with the comfort of the prisoners as that the sentence should be effective. I heard the other day of a man who pinched something in order to be sent back to prison at the beginning of the football season because he had already put in two successful seasons as the centre forward of the prison football team.

My last point is on the question of capital punishment. I am disappointed that the right hon. Gentleman has not seen fit to give a lead to the country by including something in the Bill about it. In this matter, of course, I am not in favour of mitigating the severity of the punishment for taking away the life of a fellow human being. It obviously demands penalties of a most drastic and severe kind. Here the dominating aim must be to deter. The question of reformation in this case must clearly be a secondary consideration. I personally feel that proof is entirely lacking at present that the death penalty is the most effective remedy. Until that proof is forthcoming I shall feel on the present evidence there is overwhelmingly a case for abolishing the death penalty for an experimental period. I hope that in a later stage this anomaly in a Bill, which otherwise is a good, useful and attractive Measure, will be corrected.

I am sure that all hon. Members, of whatever party, will hope that this Bill will open a new era of opportunity to all those people who are labouring in the very difficult and responsible field of administration of our public justice, a field of endeavour in which we hope that this country will continue in the future to set an example to the world.

2.51 p.m.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester West

I have been desirous to saying quite a lot about what is in the Bill and very much about what is not but should be in the Bill. I would like to place considerable emphasis on the point that many young innocent people are sent to approved schools who are merely in need of care and attention and in consequence of that ultimately find themselves in prison. That is an extremely serious matter, and I think that all the emphasis possible should be placed on removing that evil. My hon. Friend the Member for Tiverton (Mr. Amory) gave rather a varied set of points of view in the course of his speech. I agreed with many things he said, but on the other hand, I could not see the consistency of some of his remark as related to the others. For example, he dealt rather flippantly with what I thought was a very strong appeal made by the hon. Member for West Fife (Mr. Gallacher) for the removal of the terrible punishment of solitary confinement with bread and water only for sustenance being given to men in prisons. It is extremely shocking, but it still prevails. The hon. Member himself has shown how shocking it is by referring to the fact that it is essential to give people work while they are in prison, to occupy their minds, and that they should not be confined in a similar manner—

Mr. Amory:

I am not sure that I have made myself clear on the point I wished to make, which was that if the hon. Member for West Fife (Mr. Gallacher) visited a prison at the present time he would have found grounds to change his opinion. There have been changes in the past 15 or 20 years which have had the effect of making life inside a prison much better and more humane.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester West

But there still exists solitary confinement and this bread and water diet which is a really terrible thing and ought to be abolished without delay. It seems to me that the suggestion that the present prison buildings should be dynamited is perfectly in order. The environment in which most prisoners are serving their sentences is such that it is not conductive to good results being attained and it places the prisoners in a position which is likely to give them severe anxiety for the rest of their lives and prevent many of them from leading useful lives in the future. The idea of permitting any remand home or detention home within prison walls is entirely out of keeping with the spirit of this Bill. This Bill is an excellent Measure, and when the hon. Member for Tiverton said he appreciated the Home Secretary for himself and not for his politics he overlooked the important factor, that the Bill is in keeping with the politics of the Home Secretary.

In the course of all our great volume of legislation for essential purposes and in the grave and anxious times during which we have to deal with the problems of the crisis, the fact that the Government have seen fit to introduce this Measure is not merely a question of chance but is part and parcel of the plan which the Labour Party proposes to put into effect in remedying the social difficulties confronting the people of our country. While this Bill did not owe its original idea to the Government the timing of its introduction is considered necessary in order to make the picture complete of the changing of the general social circumstances of the people, thus enabling the nation as a whole to live on the basis of a family life where even those who have transgressed against the law are taken into consideration in the same way as the lowliest and poorest member of the community. I hope, therefore, that the hon. Member for Tiverton will appreciate this Bill in its proper light in so far as the political views of the Home Secretary are concerned, in addition, of course, to its favourable commendation by the whole House.

This Bill illustrates the important necessity of codifying the criminal law and having a proper consolidation of the provisions dealing with crime administration of that system. Out of curiosity a few days ago, I referred to Stones Justices' Manual on this point and in respect of one matter alone the terms of indictable offences, this is what Stone said: The powers and duties of justices of the peace with respect to persons charged with indictable offences are regulated and defined by the Indictable Offences Act, 1848, amended in some particulars by the Criminal Law Amendment Act, 1867, the Criminal Justice Administration Act, 1914, and the Criminal Justice Act, 1925. The procedure in Courts of Summary Jurisdiction is regulated by the Summary Jurisdiction Act, 1848, the Summary Jurisdiction Act, 1879, the Summary Jurisdiction Act, 1884, and the Summary Jurisdiction Act, 1889, as amended by the Criminal Justice Administration Act, 1914, the Criminal Justice Act, 1925, the Service of Process (Justices) Act, 1933, the Money Payments (Justices Procedure) Act, 1935, and the Summary Procedure (Domestic Proceedings) Act, 1937. I appeal to my right hon. Friend to take steps to deal with this matter as speedily as possible. That he has had in view the idea that people should understand what the criminal provisions mean is obvious from some of the Clauses of this Bill; for example he wants to do away with the necessity of entering into recognisances in certain cases because people do not understand them. The courts should explain, in quite simple language, what is meant by any sentence imposed when convicting a person, in language which the persons concerned can understand. There are many instances, of course, in cases of criminal proceedings in the courts, where that very necessary provision should be put into immediate practice.

While I am dealing with that subject, I would like to say that the idea of departing from the present system, under which a person placed on probation is not held to have been convicted, is a retrogressive step. I think it is very important that in such cases a conviction should not be recorded against him. If that person sins again he will be sentenced, but it is necessary to show that there is no conviction against an individual who is prepared to reform and does not commit any further offence during the probationary period. If a person has reformed, why should society hold against him the fact that, at some time or other, he was placed on probation? Why should we not give him a real chance? It has been mentioned in the course of the Debate that it was not fair to an employer that a conviction should not be recorded, and that, if he applied for a job, perhaps many years after he had been before the juvenile courts, it should still be held against him that he had been convicted, even if he had only been bound over. Of course, that is nonsense. The whole purpose of probation is to try to prevent that kind of permanent stain and to give the person a chance.

I also feel that a mistake has been made in the Bill with regard to some of the provisions relating to the position and duties of probation officers. It may seem trivial to talk about the necessity of the names of probation officers appearing on probation orders, but, in my view, it is very important that a personal contact should be established between the individual concerned and a particular probation officer. It is a contact which should be continued as long as possible during the probation. If we make any person who may be in that particular district or be available at any time, the responsible person, instead of naming a probation officer who is to deal with the case of the person bound over, to make contact with his family, and so get right to the root of the whole case, I think that would be taking a step which is not advisable.

This question of inquiring into character and antecedents couples up with another very important matter in our present outlook on crime. It couples up with the very important consideration of inquiring into the mental state of an individual who has committed an offence or crime. We are at present governed by rules established in 1843—the McNaghten rules—in relation to the question as to whether a person is to be considered as guilty or not. These rules were laid down some 100 years ago and our judges today find themselves bound, in spite of all the developments that have taken place in medical knowledge and medical science, to the necessity of observing rules which, in the opinion of most people concerned, are absolutely antiquated. Quite recently I read a very interesting book written by a journalist named Edward Robinson, in which he compiled a list of cases which showed clearly, taking murder cases alone, that that rule was completely out of date, and ought not to be adhered to in practice today.

The case, which I am going to quote, will show the House how important it is to consider the question of a verdict "guilty but insane"—a phrase which in itself is ridiculous, as a person, if insane, is obviously irresponsible; The case was quoted by Roy Calvert, then Secretary of the National Council for the Abolition of the Death Penalty, who said: Case 'A' is that of a man, 37 years of age, who was sentenced to death by Mr. Justice Darling at the Central Criminal Court on 27th May, 1919, for the murder of a family of four at Forest Gate. The accused had a bad criminal record and the murders were of a brutal character. The prosecution alleged the motive to be robbery, and the defence was insanity. The prisoner had sustained head injuries in the War. Three mental specialists were called for the defence. Sir Robert Armstrong Jones said he was irresponsible and insane, a congenitally unstable person suffering from aural hallucinations. Dr. Stoddart said he was suffering from mental deficiency and epileptic insanity. Dr. Norman said he was of defective intelligence and, from his family history, lacking in self-control. Dr. Hickson, Medical Officer of Brixton Prison, called by the prosecution, said he did not consider him insane now or at the time of the crime. He was of a low type of intelligence, but not within the Mental Deficiency Act. On an appeal heard a month later, Dr. Hyslop, formerly Senior Physician of Bethlem Hospital called for the appellant, said he was suffering from homicidal mania when he did the murders, was insane now, had hallucinations, and was in a state of epilepsy. Dr Dyer, Chief Medical Inspector of Prisons, produced prisoner's previous prison records mentioning epileptic fits and delusions. The then Lord Chief Justice in his judgment said there was evidence of attacks of epilepsy, but to establish that was only one step: it must be shown that the man was suffering from an epileptic seizure at the time when he had committed the murders. That had not been proved. The appeal was dismissed, and the man was executed. One case like that is sufficient to illustrate the point I am trying to make. This state of affairs must be altered; how can it be? In my opinion it can be altered by having a proper record taken of an accused man's past, of his antecedents, and by getting probation officers to find the details necessary to consider the case properly instead of what is done today in the prisons, putting the man under observation by a medical officer, who may not have any knowledge of investigating mental deficiency, and no training in that direction at all, and by prison officers, some of whom imagine that every one who comes to them for observation is merely trying to "swing the lead." That is practically what it amounts to. A proper inquiry should be made before the man is brought to court and independent medical evidence should be brought to the court at the time when the man is tried, and the court should make its decision as to his sanity on this.

I hope when the Home Secretary deals further with this Bill he will try to introduce something which will enable the bad features to be removed from our methods of dealing with accused persons so that we can at least respect the scientific enlightened views of medical men who have specialised knowledge and that we shall not stick to the old out-fashioned ideas in regard to this very important matter of mental diseases.

3.11 p.m.

Photo of Mrs Caroline Ganley Mrs Caroline Ganley , Battersea South

I do not wish to follow the remarks of my hon. Friend the Member for West Leicester (Mr. Janner), except in regard to prison buildings. One has only to go into a prison to feel that it is certainly a deterrent to all sorts of feelings which anyone might be enjoying, and how depressing it must be to the people who have to stay inside it. The question has been raised about staff in prison buildings and approved schools. In that connection I wish to make a strong appeal to the Home Secretary for consideration of the work that is now done under the educational authorities. My hon. Friend the Member for North-West Camberwell (Mrs. Corbet) has raised this question, and has praised the work.

I would also like to see how much the work of the education authorities today can be used if I can so describe it, with the work of the whole administration of criminal justice and prevention in relation to young people coming before the court, as they have to do at the present time. We are at present in process of extending educational advantages, and I would urge that the provision of schools for maladjusted children should be used for those who are brought before the courts merely because they are in need of care and protection. This kind of education should be considered much more in the light of preventive organisation rather than in the light of a deterrent or a corrective.

On the question of flogging, one hon. Member has said that he considered that flogging could quite usefully be done away in our prisons but he was not so sure about that in relation to children—the power of courts to administer birching. Perhaps I might quote an experience of my own. It happened in the days when stipendiary magistrates were sitting at children's courts as chairmen. Two children, aged 11 and seven, were brought before a court, and the chairman at that time said that flogging was the only thing. The other members of the bench were not prepared to agree with him in this particular case. On further inquiry being made, the special officer said, in answer to the chairman, "You ordered flogging here two months ago." This brought from the stipendiary the comment, "God bless my soul! I never heard of such a thing." He had insisted that flogging was most efficacious. In this case the children were not before the court on any heinous offence; it was not a terrible one in my opinion. The further investigation revealed that the homes from which they had come, and the conditions under which they were living, were such that much more investigation was needed. Protection was necessary for the further development of those children.

I warmly welcome the suggestion that the societies which are to be associated with the work—the probation officers and the teachers in approved schools—shall get better training. We should have a more helpful situation among the people associated with men coming out of prison. Men leaving prison should have help to rehabilitate themselves. We are considering rehabilitation in many instances, and this is another case where it is essential that the organisation should be such that children leaving remand homes or approved schools, and older people leaving prisons, shall have the opportunity of rehabilitation so that they may once again have an opportunity of proving their capacity to behave as ordinary citizens.

3.16 p.m.

Photo of Mr Wilfred Vernon Mr Wilfred Vernon , Camberwell Dulwich

I have been utterly astonished that throughout this Debate no one has said one word about the provision of research into the early causes of crime and methods for dealing with those conditions. The hon. Member for Nelson and Colne (Mr. S. Silverman) pointed out that there were two ways of dealing with crime. He said that society may protect itself by terror, or society may protect itself by reforming the criminals. There is a third way in which society may protect itself, and that is by studying the causes responsible for a person first taking to criminal practices and the methods which may be adopted for dealing with those causes. The first method really belongs to the past, although it has been supported by hon. Members today. The second method, that of reforming the criminal, is that to which the Bill is mostly directed. But, from the most depressing information given by the Home Secretary yesterday, it appears that this is a losing battle. We are creating criminals faster than we are curing them.

The figures for juvenile crime are most striking in this respect. The 1939 figures for larceny show that 62 per cent. of the convictions concerned people under 21, and 28 per cent. concerned people above 21. Larceny was about ten times more prevalent among the young than the old. This is extremely disquieting. I looked very carefully through the Bill to see whether there was any provision for research into the beginnings of crime, but I failed to find it. In that respect, this Measure is a long way behind certain other Bills. The National Health Service Act, 1946, contains a direction for expenditure for grants for research in Section 16 (1 and 2). In the Education Act of 1944 there is also provision for expenditure on research in Sections 82 and 100 (1 b). There is no such provision in this Bill.

One may ask whether there is not plenty of information in existence on this subject. A friend of mine had careful research made into almost all of the important works on juvenile delinquency in the last 10 years. He found that there are about a dozen different causes for juvenile crime, but among the writers there is no complete agreement. In fact, there is divergence, and, in many cases, flat contradiction. There are signs of the direction in which such researches should begin A child shows signs of being against society long before he becomes a criminal. This state of mind, this antagonism to the outside world, is something which may be detected in the early years. With research, the cause of that state of mind could be detected also. I would have liked to develop this line further, but no time is available. I commend to the Home Secretary this important proposal that research should be developed in this direction. It seems to be the only hopeful way of getting society to a healthy state.

3.20 p.m.

Photo of Mr Robert Grimston Mr Robert Grimston , Westbury

We are now drawing to the conclusion of a very interesting Debate, and one which, in many respects, is exceptional. We are discussing here the Second Reading of a Bill which is broadly supported by all sides of the House, and yet it gives rise to controversy. This controversy cuts across party, and we are to have a free vote upon the most controversial part of the Bill. The original Bill was introduced by a Secretary of State of one political party, and this Bill is now being introduced by another Secretary of State of an opposing political party. The present Secretary of State served upon the Committee which considered the original Bill, but has since changed his mind upon the most controversial point which then arose. I think the House will agree that we have here a set of ingredients which—applying a seasonal metaphor—when they have received the final stir of our Parliamentary processes should, I think, produce a very good Act of Parliament.

Before I proceed with the very few remarks I am going to make—because I wish to give the Under-Secretary of State plenty of time to wind up—I must explain that I am not an expert in any degree and that I approach the problems of this Bill from a purely lay point of view. In moving the Second Reading yesterday the Home Secretary divided the Bill roughly into four sections. I myself think that the first two sections are, really, the most important, for they are the ones whose provisions seek to prevent the formation of the habitual criminal by success in reforming the young offender. I believe that that is by far the most important aspect of the Bill. It is particularly important today, because we live in the aftermath of the war; and, as is the case following every war, we unhappily see in postwar conditions a large increase in crime, and particularly, amongst juvenile offenders. So that any steps which are now to be taken to try to catch and reform these juvenile offenders are more necessary at a time like this, perhaps, that at any other.

I hope that it may be possible for the Home Secretary to have command of the material and the manpower which will be necessary to put these reforms through. The manpower question was particularly referred to by the hon. Gentleman the Member for Rugby (Mr. W. J. Brown). The position of the materials has been referred to by others. I think there is a case here where priorities should be carefully considered in the interests of the young people of the future.

I want to make one or two remarks about the subject, which, perhaps, is foremost in our minds in the consideration of this Bill, and that is the death penalty. What I have to say here, I should like to make clear, I say for myself; I am speaking for myself and nobody else. I am attracted by the idea which is put forward in the Instruction standing in the name of the hon. and learned Member for North Aberdeen (Mr. Hector Hughes).

[That it be an instruction to the Committee to which the Bill may be committed that they have power to make provision in the Bill for dividing the crime of murder into two degrees, namely, murder in the first degree and murder in the second degree, and for consequential differentiation in the penalties which may be imposed for each degree.]

The idea is to have two degrees of murder. There may be many difficulties, but I do believe that that is a proposal which really does want looking at. As I see it, at the present moment the Home Secretary is really in the position, through the power that he has to advise the Crown to give reprieves, of the one who can decide upon degrees of murder. I cannot help wondering whether that is the proper position. There are cases in the courts where all the morbid ritual of passing sentence of death is gone through, when all the time it is known that there will be a reprieve by the Home Secretary. I hope that a better procedure can be devised. I do not suppose that there is any deterrent in the case of a man who commits a murder in the heat and anger of the moment, but in other cases, by the removal of the death penalty, we make the consequences of carrying a gun less risky; and the biggest risk a criminal can take is to risk his life. Therefore, I cannot believe that we would not be lessening the deterrent to murder, and we must think very carefully before we do that.

It is very interesting to note that when my right hon. Friend Lord Templewood held the office of Home Secretary, he took the view that he could not take the risk of removing the death penalty for an experimental period, whereas the right hon. Gentleman, the present holder of that office, took a contrary view. Today, when Lord Templewood is in a position of more freedom and less responsibility, and the right hon. Gentleman is in a position of more responsibility and less freedom, they have each changed their views. It shows that the views which people seriously hold are altered when they are face-to-face with responsibility, and that is an aspect we should not overlook.

Many of the points which have been raised have been Committee points. I shall have some points to raise when we come to Committee stage, particularly a point which the National Police Court Mission are anxious about in connection with the Tenth Schedule. In conclusion, I join with others in welcoming this Bill, and hope that when it becomes an Act, the Home Secretary will be able to take steps to see that its provisions are not delayed by present shortages.

3.29 p.m.

Photo of Mr Kenneth Younger Mr Kenneth Younger , Grimsby

It is with very real humility that I rise to reply to this Debate, following the long stream of speeches made from the personal knowledge of Members, whether as magistrates, criminal lawyers, or experts in child care. I should like to thank Members for the constructive tone of their speeches, and to assure them that my right hon. Friend will seriously study the numerous points of view which have been put forward. It is clear that in the time available I cannot attempt to deal with all the matters which have been raised. I hope the House, therefore, will think it right if, while dealing so far as I can with some of the more important issues which were not touched upon by the Solicitor-General this morning, I pass over a good many of the detailed matters, and attempt to put the Bill as a whole into some perspective once more.

This Bill is not a consolidating Measure. The noble Lord the Member for Horsham (Earl Winterton), and several others, complained about things which are not in the Bill, and certain Members called attention to the need for consolidation of the whole of the criminal law. I would not dissent from that: I would only ask the House to note that many speakers have congratulated my right hon. Friend the Home Secretary on being able to bring in this already very large Bill at the present time. I would also ask the House to realise that the things which might have been put into a complete consolidating Bill, covering the whole of the criminal law, are so numerous that such a Bill could not be considered a practical proposition at present.

The scope of this Bill, as it is presented, does not attempt to create new offences, and does not abolish offences. It merely introduces certain minor changes in the procedure of trial before conviction. What it essentially deals with, in a fairly comprehensive way, is the treatment of people who are found guilty in one way or another. It is true that in a few cases the Bill proposes to mitigate sentences. That applies particularly to the proposal to abolish corporal punishment inflicted by the courts, and it would also apply to capital punishment were that to be introduced at a later stage. These two matters, inevitably, from their dramatic nature and human interest, tend to attract the limelight, but I would ask the House to put them into what I consider to be their proper perspective in relation to the rest of the Bill.

If we look at the figures for 1945, we find that only 49 people, including adults, youthful offenders, and offenders in prison, were actually subjected to corporal punishment. In the same year, there were only 64 people put on trial for murder. If we contrast those figures with the thousands, unfortunately almost tens of thousands, of people whose lives may be either made or broken by what happens to them under the other provisions of the Bill—people who come before the courts for some reason, who are faced with the possibility either of some kind of corrective treatment or prison—we realise that from the point of view of the nation as a whole, and without wishing to minimise the importance of the two rather more sensational aspects of the matter, it is the pedestrian and even technical parts of the Bill which are the more important Measure. The Bill as a whole is not concerned primarily to provide milder penalties; it is rather concerned to permit the widest possible variety of types of treatment. It is concerned to provide that this treatment shall be decided upon in the most intelligent manner, so that we may reform the prisoner according to the circumstances of his case. It is this, rather than any question of hardness or softness towards offenders, which is the main motive behind this Bill.

In this respect, it is merely a normal development of previous Acts over a long period. It is an important principle in relation to all offenders not yet regarded as incorrigible—and I am glad to think that very few are so regarded. It is especially important in the case of youthful offenders who, unfortunately, form so large a proportion of the persons who come before our Courts. Both the youthful offenders and the adults offend for a wide variety of motives. Their treatment must be decided on by reference to their character, their social background and circumstances, and not merely by reference to the crimes for which they are convicted. The key to this new treatment of so many different types of offenders must be to ensure that as much as possible is known about the individual before he is sentenced to some form of treatment, which may prove to be a turning point in his life for better or for worse.

In the Bill, there are two main ways in which it is sought to ensure that as much as possible shall always be known about an individual before a decision is taken. The first method is to attempt to provide and develop alternatives to the prison sentence. I think that we can all agree that whatever we may do about prisons, the first prison sentence is always likely to remain something of a milestone in any offender's life. The longer we can put off the time of a first prison sentence, the better.

For youthful offenders, there has been for some time past a considerable range of alternatives. There is the probation system, with its probation homes and probation hostels. There is also the Borstal system, now some 40 years old, and, despite what has been said about it by some hon. Members, I think one certainly could not call it a failure. We differ in our view as to the extent to which it has been a success, but that it has been to some extent a success, I think no one can deny. May I touch on one small point. It was suggested that no youthful offender should be sentenced to Borstal unless he had at least one previous conviction. I think that such a provision would be out of keeping with the spirit of this Bill. I do not think the Court should be limited by any such consideration. We cannot judge the suitability of any person for a particular form of treatment by following some rule of thumb method as to whether or not he has had a conviction. Alteration of the conditions under which a Borstal sen- tence can be imposed has been made in this Bill to make them more elastic and not less elastic. There are, in addition, for young offenders certain new alternatives provided. There are the detention centres and remand centres, which are provided in the hope that we can keep out of prison people who either require examination or, for some reason, cannot be allowed to be free pending trial, and who, at that stage, should not become acquainted with prison.

Several hon. Members have made interesting speeches upon another aspect of the treatment of the young, that is to say, the approved schools. They have spoken particularly about children, and, in some cases, about very young children. That part of this subject of criminal justice is really on the fringe of this Bill, and I do not want to say much about it. I think, however, that it is fair to say that the conclusion to be drawn from the speeches of the right hon. and learned Member for Carmarthen (Mr. Hopkin Morris), the hon. Member for York (Mr. Corlett) and the hon. Member for North-West Camber-well (Mrs. Corbet) was that they all emphasised the need for great variety in the treatment of young offenders. They ail protested against any suggestion that delinquent children should be lumped together and treated as units. That is an ideal, and I agree that if we can provide further institutions of a more varied kind and develop a system of foster parents we would like to do so. I do not think that my right hon. Friend would deny the principle behind the suggestion, but what can be done at present is limited by practical possibilities.

The hon. and learned Member for Carmarthen was somewhat critical of certain parts of this Bill. I feel he made too logical a distinction between those children who come under observation because they are in need of care and protection and those who are brought before the courts for other reasons. I believe it is very often precisely the same reason which brings both those types of children, and the question is not whether they happen to be caught doing some perhaps relatively trivial offence, which is really a matter of chance, but whether for both of them educational rather than deterrent treatment would be more effective. I think the hon. and learned Gentleman came rather near—although I am sure he did not intend to—to suggesting that children who were guilty of offences and had gone into these schools through the courts are to be regarded as part of the criminal classes and children merely in need of care and protection should not be associated with them. I leave that with him to reflect upon. I have read his speech carefully this morning, and I still think he came near to such a suggestion.

In talking of the remand centres mentioned under Clause 63, he spoke of the dangers involved in sending some children to these centres. He quoted from the clause itself, but he did not quote one particular sentence which showed that a child would not be sent to a remand centre unless the court— is satisfied that facilities for such an inquiry"— that is an inquiry into the physical or mental condition of the child— cannot conveniently be provided in a place of safety in which he could otherwise be ordered to be detained. If one is faced with the alternative of either having no examination of the medical and physical condition or sending a child to a remand centre for that examination, the objections are rather less than those indicated by the hon. and learned Gentleman.

I want to say a word about the probation system, which is, of course, applicable to both young offenders and others. This Bill in several of its Clauses seeks to develop the system, but not to make any startling innovations. It is hoped that more officers will be available and that greater control of persons under probation will be given to probation officers. There has been criticism of the change whereby no particular officer will be named in the Probation Order, and it was suggested that in some way that would lead to losing the personal contact. I can assure the House that is certainly not the intention. It is a recommendation of the Departmental Committee on Social Services which reported in March, 1946, where it was pointed out that we may want to change a probation officer.

It may turn out after a few weeks that a particular probation officer is not the most suitable person to deal with a particular person, and it is much more convenient that it should be possible to change the order without going to court. Moreover, one must take into account the amount of work undertaken by these particular officers. An officer dealing with court cases may have so many on his hands that he cannot properly undertake another no matter how suitable he may be. That is a thing the courts are not in a position to judge, and I suggest that the case committees and the principal probation officers are really best placed to deal with that point.

I have talked so far of alternatives to prison. The other method whereby this Bill seeks to ensure that everything possible should be known about the offenders consists of greatly improved facilities provided for inquiry before an offender be dealt with. I need not run through all the Clauses. There is provision for inquiry before anybody under 21 is sentenced to imprisonment and before a Borstal sentence is inflicted. A remand for that purpose may be ordered if necessary. Courts of summary jurisdiction are now given power to adjourn in order to inquire about an offender after conviction, and before sentence. There is also the provision, to which I have referred, for inquiry, on remand, into physical and mental condition. I would say that where it is practicable to do so it may be made a condition that inquiry or medical supervision shall take place outside any institution and that it need not necessarily be in a remand centre.

As the hon. Member for Hemel Hempstead (Viscountess Davidson) said yesterday, the effectiveness of all this depends upon whether or not we can carry it out. The new institutions which we propose, and the development of the old institutions, mean further trained staff. In many cases they will mean either new buildings or the taking over and adapting of existing buildings. The hon. Lady was particularly worried about the provision of skilled medical personnel to deal with the medical inquiries. The House will appreciate that the remand centres and detention centres will both have to come into existence gradually. I have no doubt that one of the limiting factors, unfortunately, will be the provision of suitable staff. My right hon. Friend will certainly not overlook the need for providing that staff.

Strictly medical personnel will form a part of the provision under the National Health Service. How difficult it will be to provide enough skilled medical officers, psychiatrists and psychologists, none of us here can say, but I think it was going a little far for the hon. Lady to imply, as it seemed, that there ought to be power in the Bill for courts to instruct the Minister of Health to make provision for this purpose. That would mean, in cases of overall shortage, giving priority over probably equally deserving, non-offending members of the public.

Finally, there is the question of after-sentence treatment. There, the Bill again attempts to provide a maximum amount of elasticity and a maximum of discretion to those who are actually in touch with the offenders, as apart from the court. The courts used at one time to say into which division offenders should be put, but classification is now to be left to those who have infinitely greater possibilities of estimating what the offender is like. There is another provision, which I do not think has been mentioned in the Debate, and which tends in the same direction. It is the provision in Clause 49 enabling the Secretary of State to transfer a particular case from Borstal to prison, if that should, unfortunately, be found necessary, or to transfer them in the reverse direction if, after a short period of observation, such a change is thought to be most helpful.

I turn to the conditions in the prisons. I am sure we all enjoyed the reminiscent speech of the hon. Member for West Fife (Mr. Gallacher) yesterday evening. With much of what he said one could not help being in sympathy I would like to remove possible misconceptions and to pay a tribute to the officers of the prison service. My hon. Friend the Member for Chesterfield (Mr. Benson) referred to the 50-year silent revolution which has taken place in prison conditions. Certainly the officers of the prison service deserve a great deal of credit for that revolution, because much of the initiative has come from them.

The hon. Member for West Fife spoke about the question of the silent cells and drew a very lurid picture of the conditions of solitary confinement in which he said so many prisoners suffered. I want to make it clear that what he called the silent cell is no more than a cell with a double door to which a prisoner might be sent, not at all as a penalty, but merely if he was so violent or was making such a constant noise that he was disturbing the whole of the prison. Once inside the double doors the cell is like any other cell. I emphasise that it is for that purpose only that a prisoner would be sent there and not as a penalty. Nor is it true that solitary confinement is a prominent feature of our prison system or has been for many years. The maximum that can be imposed of cellular confinement, which is usually in the normal cell, is three days by the governor or 14 days by the visiting committee, with the one exception of 28 days for gross personal violence to a warder or mutiny, that is to say, for the offences which could otherwise at the present time be punishable by flogging.

Great interest has been shown in the work in prisons and attention has been drawn to the letter of Lord Justice Wrottesley. The question of competition between prison labour and outside labour or other interests has often been difficult. At the present moment a wide range of useful and constructive activities is carried on, including clothing, agriculture, repairs to prison buildings, and even the provision of new buildings. Further proposals are at present under consideration for widening this, and it may be that in the new conditions of shortage of labour and the new spirit which we hope will permeate both sides of industry as a result of that, it may prove possible to improve the conditions, which are already not too bad. I would not like the House to go away thinking that large numbers of prisoners are not occupied or are idle, but undoubtedly there is not always sufficient work for them. I do not think I need say anything about corporal punishment because much has been said already. I must say that it is my impression, which I hope may be borne out at a later stage of our discussions, that the resistance to the proposals for abolition which was manifested when the previous Bill was before this House, has very much diminished in the meantime.

In opening this Debate my right hon. Friend the Secretary of State called attention to the gravity of the situation which is disclosed by our current crime statistics. This is, we hope, a postwar phenomenon not perhaps altogether surprising from some points of view. The noble Lord the Member for Horsham (Earl Winterton) asked whether the rise in crime was worse after 1918. My right hon. Friend said that, unfortunately, no strictly comparable statistics are available. So far as I have been able to ascertain, the position is that crimes of violence against the person did not rise after 1918 but that crimes involving some violence against property, such as house breaking, rose very steeply. Nevertheless, it is true to say that the overall rise in indictable offences was not as striking as it is today.

In view of the widespread anxiety which there is about the current criminal position I would like to repeat that in the view of the Government this Bill in no way reduces the protection which is offered to the public by the criminal law. It is merely one more of many steps taken over some hundred years to fight crime more and more by reformation and less and less by blind suppression and to apply our ever-increasing stock of knowledge—social, medical and psychological—to the problem of the depraved, the mischievous, the weak and, in some cases, the merely unfortunate who come within the scope of our criminal law.

It can be claimed for this Bill that it is in the truest sense of that much abused word, a progressive Measure. It registers progress that has already been made in the science of treating offenders, and it also inaugurates new methods, not wholly experimental but solidly based on the experience of the past and upon the devoted work of hundreds of men and women in the prison service, the Borstal service, among the probation officers, in the law, and in all forms of social and voluntary organisations. It is not, of course, and cannot be, the final word in this ever changing human problem, but I submit it is a worthy successor to the long chain of increasingly constructive Measures which have served through a succession of generations to keep criminal justice abreast of the most enlightened thoughts and sentiments of the age.

Photo of Mr Samuel Silverman Mr Samuel Silverman , Nelson and Colne

May I ask one question? When my right hon. Friend the Home Secretary suggested yesterday the leaving of the discussion of capital punishment until the Report stage, I asked whether any assurance could be given about the time that would be available if that suggestion were accepted. Can my right hon. Friend now give any information on that point?

Photo of Mr James Ede Mr James Ede , South Shields

I have consulted my right hon. Friend the Leader of the House on this point, and we think that the suggestion made by the hon. Member for Nelson and Colne (Mr. S. Silverman), that a minimum of half a day, with a possible extension when we see how the Debate is going, appears to be a very reasonable suggestion. We shall endeavour to afford such an opportunity when we get to the Report stage. May I express the hope that we shall be able to avoid a discussion at the Committee stage if that is acceded to?

Photo of Sub-Lieutenant Herschel Austin Sub-Lieutenant Herschel Austin , Stretford

May I ask my right hon. Friend a question? He has made reference to the need for an increased number of probation officers. Is he aware that the present scale of salaries for probation officers, particularly for those under 30, is pitifully inadequate? For instance, a man under 23 will get only something like £5 18s. a week. Will he look into that matter?

Photo of Mr James Ede Mr James Ede , South Shields

Mr. Ede indicated assent.

Question put, and agreed to.

Bill accordingly read a Second time, and committed to a Standing Committee.