Clause 1. — (Abolition of "constructive Malice.")

Orders of the Day — Homicide Bill – in the House of Commons at 12:00 am on 27th November 1956.

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4.16 p.m.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

I beg to move, in page 1, line 8, to leave out from "another" to "the" in line 9.

Photo of Mr William Morrison Mr William Morrison , Cirencester and Tewkesbury

I think this Amendment would also go with the next Amendment in the hon. and learned Member's name, in Clause 1, leave out lines 10 to 18 and insert "if the killing be unintentional".

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

The effect of these two Amendments is to provide what I think probably most people erroneously think is already the case—that murder shall in future be intentional killing and that if somebody be killed unintentionally, that shall not be murder. If it were amended in accordance with the two Amendments, the Clause would read as follows: Where a person kills another the killing shall not amount to murder if the killing be unintentional. Murder is an ancient crime. It is a crime of the common law and, as such, it has evolved from the ancient law in which all killing was murder and required compensation and in which intention was irrelevant. A definition was given by Lord Coke, and that definition has remained over all this time. It is as follows: Where a person of sound memory and discretion unlawfully kills any reasonable creature in being and under the King's peace, with malice aforethought either express or implied, the death following within a year and a day … The great difficulty with that definition is that most of the words in it have been held to mean something quite different from what they appear to mean. For instance, a "reasonable creature in being" includes a raving lunatic, a foreigner or an outlaw. "A person of sound memory and discretion" includes, again, a raving lunatic; because even if he succeeds in establishing the somewhat peculiar and unsound definition of insanity in the M'Naghten Rules, he is still considered guilty of murder, though insane. Most difficult of all, "malice aforethought" does not mean premeditation or anything of that sort. Nor does it even mean intention to kill. It means a variety of different intentions to which I will come in a moment.

As to what "express or implied" means, although the courts have constantly quoted this definition in three centuries, I cannot discover that any of the courts has ever discovered what "express or implied" means, or what is the difference between malice aforethought express and malice aforethought implied. Altogether, it is not a wholly satisfactory definition.

Let us try for a moment to see what the Clause does as it is now drafted. What apparently it seeks to say is that Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence. According to both Archbold and Russell on crime, which are the two textbooks generally quoted—and there are various judgments to which I will refer—malice aforethought express or implied includes an intention to kill the person killed, an intention to kill some body else—

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

On a point of order. The hon. and learned Gentleman the Member for Northampton (Mr. Paget) has repeatedly referred to malice "express or implied" which is, in fact, the subject of the third Amendment on the Order Paper. Would it not, therefore, be for the convenience of the Committee, Sir Charles—as the discussion is ranging over that topic already—to discuss all three at the same time?

Photo of Mr William Morrison Mr William Morrison , Cirencester and Tewkesbury

I think so. Perhaps I was a little misled. If it were to suit the convenience of the Committee we could discuss the first three Amendments together and then, when the time comes, have a Division, if necessary, on the Amendment in the name of the hon. Member for Rossendale (Mr. Anthony Greenwood).

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

With great respect, Sir Charles, the point about "express or implied" is quite different. All that I am trying to do at present is to direct attention to the effect which my Amendment would have. To do that, I must first discover what the existing words—including, of course, the words "express or implied"—mean. When one has found out what the effect of those words is, one can decide what the effect of my Amendment is, which is the first alternative. Later we, have to decide what would be the effect of excluding the words "express or implied"—which is a second, and a different, alternative.

Photo of Mr William Morrison Mr William Morrison , Cirencester and Tewkesbury

In that case, that point can be discussed when we come to the later Amendment. I will, therefore, ask the hon. and learned Member not to discuss it now.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

With great respect, I have no intention of discussing it now, Sir Charles. I am merely indicating what, in my very humble opinion, the present law does, and what my Amendment would do, and indicating that it is not entirely easy to find out what the position is.

Perhaps the Committee will allow me to go back to the point at which I was interrupted. As I was saying, this is the law at present, according to Archbold and according to Russell, concerning malice aforethought express or implied. Neither book is able to give a particular definition as to which is express and which is implied, because there is great confusion in the authorities, but, as has been indicated, that will be gone into later.

Malice aforethought involves a variety of different intentions. First, there is the intention to kill the person killed. Then there is the intention to kill someone else. Third, there is intention not to kill but to do some serious injury. Fourth, there is an intention to commit a felony. Originally, an intention to commit a felony was certainly part of malice aforethought; so that if a man meant to steal, and accidently killed, that was murder. Later, the courts have said that it must be a felony which is, of its nature, likely to endanger life. If, therefore, a man intends to commit a felony which is likely to endanger life, that at present is malice aforethought.

Does that cease to be malice aforethought because of this Clause as at present drafted? I do not know. It is very difficult to say that, because malice aforethought is the intention to commit the offence, that is an intention, whether or not the intention is formed … in the course or furtherance of another offence. Subsection (2) would exclude a quite different type of case—where somebody is accidentally killed while an attempt is made to avoid arrest. That was denned by the Lord Chief Justice in his summing up in the trial of Craig and Bentley. The Lord Chief Justice then said: But, gentlemen, there is another and further consideration in this case to which I want to direct your particular attention. Miles, the dead man, was a police officer, and the law of the centuries—in fact, ever since there has been law in this country—has given special protection to police officers while in the execution of their duty, or perhaps it is more accurate to say that in the case of the killing of a peace officer—I use the expression 'peace officer' which is the old expression in English law for the modern police constable; he is in exactly the same position as the old parish constables were before there was any regular police force, and who were the only peace officers in the country—in the case of a peace officer who is killed, the law does not give the accused the same defences as in the case of other persons; it takes one away, and I am going to direct you that this is the law: If a peace officer has arrested, or is endeavouring to arrest (and that includes coming on the scene for the purpose of arresting) a person, and the arrest, if effected, would be lawful, and that person, for the purpose of escaping, or of preventing or hindering the arrest, does a wilful—that is to say, an intentional—act which causes the death of the officer, he is guilty of murder, whether or not he intended to kill or do grievous bodily harm. I venture to suggest that it really is time to get a more modern and a more simple definition of this crime of murder. I suggest that the simplest available definition is that murder is intentional killing; that is to say, it has to be established that there was an intention to kill.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

If my hon. and learned Friend on my right would speak a little louder than my hon. Friends on my left, it would be possible for me to know what we are talking about—and I am really interested.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

I am very sorry. I am saying that really it is time that we got away from this archaic definition of murder and that we had a definition of this great crime that was both intelligible and logical. I submit that the definition is, quite simply, that murder is intentional killing, and that it is not murder if the killing is not intended.

Photo of Sir Raymond Gower Sir Raymond Gower , Barry

I am following the hon. and learned Gentleman with a lot of sympathy, but would he not agree that if his form of words were adopted, it would, in effect, wreck Part II of the Bill, in that if a murder were committed in any of those ancillary ways, such as in furtherance of a theft, or by shooting, and so on, this form of words would be inoperative?

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

No, I do not think so. If we said that murder was intentional killing, then capital murder would be intentional killing—in the course or furtherance of a theft, and so on. The great case both for capital punishment and for a single sentence—that is, a sentence of life imprisonment and not a sentence at the discretion of the judge—is surely the case of deterrence. It does not seem to me that there is much object in providing a great deterrent to prevent somebody from doing something which he does not intend to do. Therefore, as to murder when killing is not intended, the deterrent argument does not seem to be very strong.

4.30 p.m.

Again, if the deterrent argument does not apply, why not let the judge decide in the particular circumstances of the case which sentence is the appropriate one? For manslaughter the maximum sentence is life imprisonment. Therefore if, even though the killing was not intended, the circumstances were very grave, the judge could still give the sentence of life imprisonment, but in other cases he would have a discretion to impose a lesser sentence. Surely, where killing is not intended, manslaughter is more of a reality. To talk of murder where killing is not intended—perhaps not to lawyers but to the ordinary man—offends one's sense of reason and of the meaning of words.

The main case which one could exclude is where the intention is to wound, to do some fairly serious injury. To take an extreme example, if a man were running away and turned round and shot at the legs of his pursuer in order to avoid being caught and accidentally killed the pursuer, that would no longer be murder. But it would, none the less, probably be a manslaughter sufficiently serious for the judge to say that the offender should be sentenced to life imprisonment.

This is a Bill which, according to the Home Secretary, is introduced solely to deal with professional criminals. That is the Government's case for introducing the Bill. If after a smash and grab raid somebody is escaping in a car and fires at the tyres of a pursuing car with the result that the bullet ricochets and kills somebody on the pavement, that would not be murder under the definition that I am proposing. Why should it be murder? It is unintentional killing. It is, of course, a very grave crime, but do we really deter people from doing one thing by making a massive penalty for another? If we want to stop people carrying arms when they commit crimes, let us step up the penalty for carrying arms when crimes are committed—

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

—or abolish arms. Make it more difficult to have arms; provide a penalty for possessing arms. Let us not try to deal with the matter by the back door, by providing a larger penalty for something else, because it will have no effect.

There is one passage in Russell on crime which struck me as very interesting. It is from the Report of a Commission which discussed this problem as long ago as 1832. In 1832 they argued the great futility of imposing a sentence for murder in order to prevent people from doing something which was never intended to be murder at all. This is the passage: The law upon this subject is collected in 1 East's P.C. 295. We state this rule as it is laid down by the authorities; though we are fully sensible of the imperfection of this part of the law of homicide. It is unquestionably necessary that officers of justices should be protected, by exonerating them from criminal responsibility when, in the discharge of their duty, they kill those who resist them; and it is entirely a question of policy whether the offence of killing officers by persons so resisting them should be punishable with death. But we conceive that it ought to be made a substantive crime (as it is in the laws of most other countries), and should not be drawn by presumption and implication into the general class of murder, of which offence it may in fact bear none of the distinguishing characteristics. The policy of the law in endeavouring to secure obedience and prevent resistance to ministers of justice, would, probably, be better effected by making the punishment in case of resistance more severe than it now is, where death does not result from resistance, and relaxing its severity where death does accidentally result. The evil to be prevented is unlawful resistance to legal authority—an object which cannot be fully attained by making punishment to depend on a mere accidental event, and upon that event inflicting a punishment frequently disproportioned to an offence which derives its quality from a mere accident. Justice may thus suffer in two ways. Where death results, the severity of the punishment has a tendency to prevent conviction, whilst in other instances, the punishment may not be sufficient for the purpose of examples. I would say that those words of 120 years ago are still absolutely valid today. Let us confine murder to those cases where somebody intends to kill. If we wish to stop people firing guns to cover their retreat or anything like that, step up the present inadequate penalties for bearing arms for a felonious purpose. If we wish to make that a matter of long imprisonment let us do so, but let us not stretch the crime of murder to cover killing which is unintentional.

Photo of Mr Harford Hyde Mr Harford Hyde , Belfast North

Would the hon. and learned Gentleman, therefore, exclude the intention to commit grievous bodily harm?

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Yes. I would say that if the intention is to commit grievous bodily harm and the jury so hold, then it is not murder because one did not intend to kill. But of course if the grievous bodily harm is of such a nature that a reasonable man would expect it to kill, then the law, the jury and the ordinary man in the street assume that people intend the reasonable probable consequences of their acts.

Therefore, if the grievous bodily harm is of a nature which a reasonable man ought to expect to kill, then it is murder. It is for a jury to decide. A jury can perfectly well decide that. But where the grievous bodily harm is of a nature which the ordinary reasonable man would not expect to kill, and the man in fact did not expect to kill, in my submission that is not murder.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

I have listened with great interest to what the hon. and learned Member for Northampton (Mr. Paget) said in support of his Amendments; and I would begin my reply by saying that the object of the Clause is not to make an alteration of the definition of murder: it is to get rid of the doctrine which we lawyers refer to as constructive malice. That is the sole object of the Clause. A great deal, if I understood him correctly, of the hon. and learned Gentleman's criticism of the existing law was in fact criticism of that doctrine, and so I hope that to that extent he supports the object of the Clause, although I appreciate from his speech that he does not think that the Clause goes far enough. The Clause has that sole objective and. of course, is a Clause intended to apply to all charges of murder, whether they are capital murders or non-capital murders.

I think that the doctrine of constructive malice was well summarised in paragraphs 81 and 94 of the Report of the Royal Commission on Capital Punishment; that is to say: where death was caused in the commission of a felony involving violence or resisting arrest that might be held to constitute murder. That doctrine has been the subject of very considerable criticism over the years from many people and, as I said, the object of this Clause, and its sole object, is to abolish that doctrine.

The hon. and learned Gentleman, in putting forward these two Amendments, has sought to make the Clause read as though killing another person should not be murder if the killing be unintentional. The word that he wishes to have inserted is "unintentional". That word, in my view, is one which is likely to give rise to considerable ambiguity, for merely saying that if the killing be unintentional does not really do more than say that there must be some mens rea for a killing to amount to murder but without giving any indication by the mere use of the word "unintentional" what that mens rea should be. The hon. and learned Gentleman made it quite clear in the course of his speech that he thought that the crime of murder should be confined to the killing of a person with intent to kill. He made that perfectly clear. One criticism which I advance of his Amendment is that it does not achieve that object. It leaves in doubt what the intent necessary to constitute murder should be.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

If the right hon. and learned Gentleman feels that way, of course I would be only too happy, on the Report stage, to accept any Amendment which he might then bring forward, having considered the matter with his draftsmen, to clarify the intention. I think that the words that I have used at least make clear enough what is intended, and that is the object of the Amendment.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

I do not agree with the hon. and learned Gentleman. I do not think that the words in the Amendment support the speech which he made; but, as I said before, he made it quite clear that he desired to restrict the crime of murder to killing where there is an intent to kill. That would be a narrowing of the present definition as applied in the courts, and the real effect of his Amendment would be to exclude from the category of murder killings where it had been proved that there was an intent to do grievous bodily harm or where it was proved that there was knowledge that the act would probably cause death or grievous bodily harm.

4.45 p.m.

Of course, all these matters were considered by the Royal Commission, and it is interesting to note that in paragraph 472 the Royal Commission expressed this view: We believe that few people would dispute the propriety of making the definition of murder wide enough to include cases where death is caused by an act intended to cause serious bodily injury. There the Royal Commission is expressing what I believe is the view of the majority of people that it is proper to have a definition wide enough to include cases where death is caused by an act intended to cause serious bodily injury.

Of course it is right to say that there was some comment by the Royal Commission in that paragraph on the meaning which might be attached to the words "grievous bodily harm." It was said in that paragraph that if any change was made in the wording, such as to say "intended to kill or to endanger life," it did not believe that it would lead to any great difference in the day-to-day administration of the law; and its impression was that in practice today, except in certain cases of killing while committing a felony or resisting arrest, which this Clause would mean would not amount to murder, a person would seldom, if ever, be convicted of murder unless there was evidence that he had wilfully put life in jeopardy.

The hon. and learned Gentleman said that the time had come for a new definition of murder. That too, of course, was considered by the Royal Commission, and it expressed its view in paragraph 483: We find ourselves in agreement with those eminent witnesses who consider that, apart from the question of constructive malice, the existing definition of murder in English law is in substance satisfactory; … Later, it said: None of the alternative definitions proposed can be regarded as satisfactory, and we believe that it is impracticable to frame a definition which would effectively limit the scope of murder and the resulting liability to capital punishment and would not have overriding disadvantages in other respects. The purpose of the Clause is to remedy the ground of criticism to which the Royal Commission referred on the question of constructive malice. That, in my view, is satisfactorily achieved by the Clause, and I am sorry to have to disappoint the hon. and learned Gentleman by telling him that we are unable to accept his Amendments, which seek to convert the Clause into one of a different character and alter in other respects the definition of murder.

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

I think that the difference between my hon. and learned Friend the Member for Northampton (Mr. Paget) and the right hon. and learned Gentleman is one of construction, if I may import that word into the argument on the words "constructive malice". The Attorney-General has based his argument, as I think he will agree, upon the assumption that what the Royal Commission was recommending was the removal from our law of the doctrine of constructive malice as narrowly interpreted in paragraph 81; whereas I would submit for his consideration and that of the Committee that what the Royal Commission was really dealing with was something very much wider than that.

It will be seen that the section which the Royal Commission devotes to the subject of constructive malice covers a great many paragraphs and pages and includes what I should have thought was a very valuable and lucid discussion of the legal principles now applied and the historical background to them.

In essence, what my hon. and learned Friend the Member for Northampton is seeking to do is not so much to introduce into this Bill a new definition of murder, but rather to get back to the definition of murder as it was originally understood in the common law. The common law in its principles would, I think, be accepted by most common lawyers as common sense. In those respects in which it now is patently contrary to common sense, the difference is due not to the inherent principles as the common law originally understood them, but to the incrustation upon those original principles of a long series of judicial interpretations, constructions, modifications, limitations, and embarrassments of all kinds in order to give effect to a pet theory of a particular judge. The result is that the original common sense of the original common law principle which everyone understands has been lost.

This is very clearly brought out in the Report of the Royal Commission. I shall not bother the Committee with quotations or references; were I to do so, I should only delay the Committee unnecessarily. I do, however, hope that all hon. and right hon. Members who will be called upon shortly to give a vote on this will take the trouble to look at what the Royal Commission actually did. After all, it was a very powerful Commission; it sat for four years, considering the matter exhaustively, and it took the Government a great number of years, comparatively, to decide to do anything whatever about it. I hope that people will look at the Report. I will try to summarise the points now

What the Commission makes very clear is that the original common law distinction between unlawful homicide which was murder and unlawful homicide which was not murder lay in the element of malice aforethought. In their ordinary connotation, the words "malice" and "aforethought" are plain enough. "Malice" must include a malicious intention, and "aforethought" must imply something thought of by the man before the act. In other words, the two words are really unintelligible except on the basis of what my hon. and learned Friend wants to put into this Bill, namely, the sense of an intention to kill.

No ordinary man or woman would regard it as right to convict anyone of murder, whatever the penalty, where there was no intention to kill. A great deal has been said in this controversy about public opinion and common sense, but I should have thought that if there were two propositions which would be universally accepted, they would be these: first, that it is a matter of common sense that murder cannot be committed by a man who has no intention of killing; secondly, that that proposition would commend itself to most people and to most juries.

The hon. Gentleman the Member for Belfast, North (Mr. Hyde) intervened in my hon. and learned Friend's speech to ask about the intention to do grievous bodily harm. With all respect, I thought my hon. and learned Friend's answer was correct. What he was saying was that if a man intends to do grievous bodily harm of such a nature that death might easily result, then it is quite right to say that what he intends to do is to kill or to take the risk of killing. I am sure that my hon. and learned Friend would agree with that. If a man deliberately makes up his mind to kill somebody else, or if he deliberately makes up his mind to inflict such harm upon somebody that any rational person would know he was running the risk of killing, then, obviously, that is an intention to kill and the offence is clearly murder. But we have gone a long way from that, and what I suggest that the Royal Commission was really recommending the Government to do was to get back to it.

When one looks at the Clause one must remember that a judge will, if this Bill becomes law, have the duty of making it clear to a jury in circumstances which may still, under the Bill, entail the capital penalty. There will be 12 ordinary, un-instructed, unlearned men and women in a jury box, who will be asked to say whether a killing is murder or not murder in circumstances where, if they answer, "Murder," then, under Clause 5 or Clause 6, they may be saying, "Capital murder and the gallows".

The Clause says: Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence.

The man in the jury box will say he understands what that means in a way; it means that it is not murder if it is done in the course of another offence unless it would be murder without the other offence. But what he wants to know is what would be murder anyway, and the Clause leaves that completely unexamined and unexplained. In other words, it does nothing to assist him in making up his mind whether a thing that is done, perhaps in the course of another offence or perhaps not, is, under the law we are now seeking to pass, an intentional killing or not.

I said that I should not weary the Committee with quotations, and I shall not; but I feel that I must draw attention to one or two passages. In paragraph 74, in pages 26 and 27 of the Report, the Commission quotes Sir James Stephen's "Digest of the Criminal Law". Sir James Stephen defines what "malice aforethought" now means, and I will remind the Committee that, originally, it meant simply and solely premeditation and intention. What did it mean by 1877? We find four things set out, the first of which is: an intention to cause the death of. or grievous bodily harm to, any person, whether such person is the person actually killed or not.

An intention to kill somebody, whoever is killed, makes the offence murder: and so it should be.

Let us turn to the next: Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

I do not pause to explain. I proceed to (c): an intent to commit any felony whatever.

Let us consider how far that goes. If Sir James Stephen was correctly interpreting the law as it was in 1877, subject to any modifications that may have been made by later decisions, any killing which occurs during an act with an intent to commit any felony whatever.

is murder; or, more particularly, although, quite plainly, by definition, there is no intention and no premeditation, the mere fact that it is done with an intent to commit any felony makes it murder by malice aforethought, by connoting malice aforethought. Could the doctrine of constructive malice go further than that?

5.0 p.m.

It is true that Sir James Stephen himself thought that that particular definition went a little too far and he modified it, but his modification does not reduce it very much. We find, at the end of the same paragraph: an intent to commit any felony of such a kind that the actual commission thereof would involve the use or at least the threat of force"— any force— against the person killed.

In other words, we have got so far as saying that a premeditation and intention to kill may occur where, by hypothesis, there was neither premeditation nor any such intention. That is absurd and I think it is offensive to common sense. It is offensive to a natural sense of justice and it would be overwhelmingly rejected by the public if they understood what was being done.

Why do the Government not want to put that right? It is all very well to say that they prefer to deal with the much more limited thing of felony—that is, paragraph 81, to which the Attorney-General referred; but if the Government are still so obstinately determined to resist the whole weight of the evidence against having a death penalty at all, if they are determined to keep it for some offences partly because, in their view, public opinion is not ready for total abolition, at least they ought to be prepared to go so far as public opinion would take them.

Is there any hon. Member of the House, whether learned or not, who really thinks that public opinion would have any hesitation whatever in saying that it did not wish to have people convicted of murder where there was no intention to kill and no premeditation of any kind? That is all that my hon. and learned Friend's Amendment asks the Government to do. There really is not any reason, except pure obscurantism, which would prevent the Government from accepting that Amendment. I do not say that they should accept it necessarily in those words. Obviously, the Government might well look for other means of doing it, other definitions or forms of words; by all means let it be redrafted in such a way as to satisfy the Attorney-General that it really does all that is intended and no more than is intended.

What we are saying to the Government is, "Choose such form of words as you wish, but do not let us go on with this monstrosity of convicting people of murder where it is perfectly clear that there was no intention to kill and no intention to do any grievous bodily harm." The Amendment goes no further than that and very few people would understand it if the Government were to be as obstinate about this as the Attorney-General sounded in his speech.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

My hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) has called attention to the somewhat devious ways by which we have reached this important occasion. No doubt we shall be assured in a moment or two from the Front Bench opposite that the Government planned this from the commencement and that their technique from the start was to allow the Silverman Bill to run its course so as to prepare public opinion for the acceptance of their Bill.

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

With malice aforethought or not?

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I am not quite sure.

Photo of Mr Anthony Greenwood Mr Anthony Greenwood , Rossendale

It is called the Suez technique.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I believe this to be, on the whole, a well-drafted Bill. I do not mean that it is a good Bill in the sense that it is clear to everyone, although many of the Clauses are acceptable to me. I believe it to be a well-drafted Bill in the sense that the Parliamentary draftsman has tried to put in as reasonably simple language as possible a set of confusing and conflicting intentions. The reason for that is clear enough.

Most of the issues in the Bill have to be decided by 12 men in a box, and 12 men in a box ought to be able to have the law explained to them as clearly as it can reasonably be explained. I thought, therefore, that the Clause on the whole was a reasonable attempt to abolish the doctrine of constructive malice. I consider that the proposal of my hon. and learned Friend the Member for Northampton (Mr. Paget) is a little better but I do not think that either his proposal or that of the Government makes the issue as clear, beyond doubt, as it can be made, although I have no better words to suggest. I recognise the difficulty—it is a considerable one indeed—in making the position clear.

If we are leaving to 12 men in a box a fantastic variety of decisions to make, each one of great complexity, involving a good deal of appreciation of human difficulties, each one involving a good deal of psychological knowledge and understanding, and each of them involving the power to accept evidence, why could we not take a chance for once in a Statute to say what we mean? Why not start saying what we mean instead of elaborating these fantastic monuments of obscurantism to create darkness through which the bright and discerning eye of no judge can pierce?

I well remember the history of all this. It arose during the passing of the Workmen's Compensation Act, the result of which was that every word was contested time after time. The contest, of course, was over "in the course of his employment" and not over the meaning of the words, but in relation to the practical application of those words to a vast variety of industries, occupations and extraordinary circumstances. It is perfectly clear that no Parliamentary draftsman could have prepared a Clause to cover whether a man who was walking across a road from the station to his work or was wandering around a slightly more different way to avoid the snow, was doing so as part of his occupation. It was the practical difficulty of making a completely new law to meet eventualities in new circumstances.

If I had been drafting the Clause, I should have done it something like this: The doctrine of constructive malice is hereby abolished. The meaning of the term "constructive malice" is perfectly well known. It has been judicially determined on many occasions. It is true that its application is continually extended, but that need not affect our minds as we approach it. The fact that it has grown to large dimensions is no concern of ours.

All that we are suggesting—and I believe it is the general intention of the Government—is to revert, so far as the Clause is concerned, to the ordinary old law of murder as stated in the past by Coke, to the ordinary old basis of the general rule of malice applying to every crime.

Actus non facit reum nisi mens sit rea. There must be an intention; there must be an act which of itself imports an intention.

Of course, the difficulty of applying that to the doctrine of constructive malice was perhaps never more clear than in cases of abortion. This is one of the real difficulties of constructive malice. That operation was a felony; the old lady with the rusty needle was a menace, and in the course of time she caused the loss of life, and that, under the doctrine of constructive malice, was murder.

In my early days it was the habit to charge such people with murder, but it was never the practice to convict them of murder. I may be wrong, but in the thirty-odd years since I commenced practice I do not recall a single case of a conviction for murder arising out of abortion, although it is clear that the law provides for a conviction.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Would the Clause as drafted exclude the abortion case?

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I am coming to that. My whole reason for developing this argument was to make it relevant to the Clause before proceeding from the exordium to the lucubration and then the comment.

First, one has to consider this. A rather curious history of the matter is that it is one of the ways in which capital punishment has been reduced. It is not a good thing that juries should have to disregard the law and substitute something else because the law is out of date and ridiculous. In the past that was so. Juries found that £100 worth of jewels was worth a few shillings so that the man need not be hanged. It happened time after time.

There really is a doubt about the words in the Clause. Indeed, there is a doubt about the whole intent. Supposing someone commences with the primary intention of relieving some unhappy girl of a child she does not want. At what stage does it become so grave, menacing and risky as to mean that a person has really produced a constructive intent to kill, using the words not in the sense of constructive malice, but in the sense in which they are used in the second paragraph of the Royal Commission's Report, in the sense of whether the reasonable, likely or probable result of this action is death?

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

Yes, to imperil life. There is a very grave danger about this, and it seems to me that it applies to a whole series of cases.

Take the case of Rex v. Stone, the rape case. We are discussing the whole question whether killing during rape should or should not be murder. I do not want to get involved in that argument. I am trying to find out whether this Clause says what it means or means what it says. It will be remembered that in the Stone case the man, in the course of the rape, while the woman was struggling, held his hand to her neck and subjected it to pressure which was either very great or very slight. Obviously, there is no one to testify to that.

It was held that such a case would not be murder. This additional action by itself was, as it were, the dividing line between felony and murder. It was the moment at which there had been an act which could be constructively applied in imputing an intent to kill. What about that under the Clause? I should be very grateful for some assistance on it. The wording as it stands is as follows: Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence. 5.15 p.m.

I am open to correction, and I beg the Committee to believe that I have not the slightest desire in a matter of this importance on which most of us have conscientious feeling to waste time in purely technical arguments or in the delight of rhetorical questions. There are a great many lawyers in this House, but is there any one of them who is sure what would be the decision in Rex v. Stone in those circumstances? I do not mind them saying that Rex v. Stone is good law and that we ought to keep it. But what does the Clause mean?

It would be undesirable to refer to any recent or current cases, but let me take a purely imaginary case of arson. Under the Clause, it is clearly the intention that if I set fire to a building with the intention of claiming the insurance money, and if in the course of that fire someone unhappily loses his or her life that is not murder. When firing the building, I do not intend to kill anyone. I commit a very grave crime for which I shall be duly punished and I am liable to imprisonment for life. But that will not be murder.

At what stage under the Clause does my knowledge that there is someone in the house when I set fire to it make that act an act of murder? Suppose that evidence comes to the authorities that I know that there is someone in the building at the time I set fire to it: if that person loses his life, does that fact make it murder? I think not. I am not sure, but suppose that evidence comes to the authorities that that person is over 80 years of age and cannot move, does that fact make the act one of murder? Suppose that evidence comes that the person is bedridden, that there is no one else in the house at the time to give any help, and that the criminal knew it. Is that murder? It may be right that it should be. I am merely saying that we ought to know what the law is to be under the new proposition. I am bound to say that under the wording of the Clause I find it difficult to know.

The hon. Member for Belfast, North (Mr. Hyde) made an interjection on the question of grievous bodily harm. My hon. and learned Friend the Member for Northampton has drawn my attention to the paragraph in the Royal Commission's Report on that subject which I think is extremely important. I am bound to say that I can well understand people asking why if someone really commits grievous bodily harm and death results, it should not be murder. There must come a point at which it is impossible to apply a line. Therefore, all the cases of which we speak normally as murder can be the subject of a second charge of grievous bodily harm in the indictment. The Royal Commission said: The only issue upon which there is room for serious discussion is the precise degree of injury to which this principle may properly be applied.… There is always a probability that death may result from such an injury, and it is accepted that a man must be presumed to intend, and must be held responsible for. the natural and probable consequences of his action. I do not think that anyone is arguing about that. The Report goes on: The Lord Chief Justice said he would direct a jury to the effect that anyone who inflicts grievous bodily harm must know that he is likely to cause death. Stephen at one time took the same view, but he later expressed the opinion that to substitute' bodily injury known to the offender to be likely to cause death' for' grievous bodily harm' would to some extent narrow the definition. There is no statutory definition of' grievous bodily harm', but it has been held that it need not be permanent or dangerous, but only' such as sensibly to interfere with health or comfort'. We find it difficult to believe that the intentional infliction of such an injury necessarily involves 'wilful exposure of life to peril'; and we are therefore disposed to think that it is too wide a criterion to support a charge of murder. Although' serious bodily injury' should no doubt connote a graver injury than' grievous bodily harm', it would in practice be difficult to draw a clear distinction between these two terms. We should therefore prefer to limit murder to cases where the act by which death is caused is intended to kill or to' endanger life' or is known to be likely to kill or endanger life. But we do not believe that, if this change were made, it would lead to any great difference in the day-to-day administration of the law. Our impression is that in practice the courts have been moving in this direction and that today, except in certain cases of killing while committing a felony or resisting arrest, a person would seldom, if ever, be convicted of murder unless there was evidence that he had wilfully put life in jeopardy. I observed, while reading the last few words, that my hon. Friend the Member for Nelson and Colne was shaking his own able head in some dissent. I agree with him. I do not believe it is true that the courts have been moving in that direction. I think there is some evidence, as I think the hon. Member for Belfast. North will agree, that the police definitions have been widened.

It is incumbent upon the Attorney-General to have a look at the Clause to make sure that it says what it means. II do not think there is any real dispute about this. The Royal Commission was quite clear. It said we should abolish the whole question of constructive malice. My hon. Friend has said it is fair enough, under the old definition, Actus non facit reum nisi mens sit rea. We can imply an intent from a series of acts. We never have to prove the intent by some positive evidence. If I pull out a gun and fire in the direction of somebody, people are entitled to presume that my intent was to kill, unless I can prove a whole set of circumstances to the contrary. There is no question about that. There is no question under any of the definitions of the Clause that killing with intent will still be murder. What the Royal Commission recommended was that this judicial interpretation, which did not really start badly but which has been gradually extended during the centuries and enlarged to include other things, should be abolished. I hope that the Attorney-General will say the same thing, too.

Photo of Mr Charles Fletcher-Cooke Mr Charles Fletcher-Cooke , Darwen

I do not think that the hon. Gentleman the Member for Oldham, West (Mr. Hale) is quite correct when he says that the words "constructive malice" have been the subject of a great deal of judicial interpretation. Judges are very careful about the use of those words. The term is really an invention of the text book writers and dons.

The side-note of the Clause says "Abolition of' constructive malice'." That does not really help us one way or another, because there is no such thing, in so many words, as constructive malice in the law. Moreover, the side-note has no legal effect anyhow.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I am obliged to the hon. Member. He is quite right, and has very properly corrected some careless words of mine. I think I followed them up by saying that we want to revert to the old form, Actus non facit reum nisi mens sit rea, the old definition. "Constructive malice" is really a judicial construction of the term "malice" and would have to be put in the negative, not positive, form.

Photo of Mr Charles Fletcher-Cooke Mr Charles Fletcher-Cooke , Darwen

I would say that it is the dons' construction of a judicial construction of the common law, one farther removed, but I do not really think it is of importance because it is in the side-note. We have to look at what is in the Measure itself.

What we are doing by this subsection, as I understand it, is to try to find out what "malice aforethought" is required for the killing to amount to murder when not done in the course or furtherance of another offence. I find it extremely difficult to grasp that in my own mind. What is that degree of malice aforethought express or implied? The difficulty which I have, and it is a genuine difficulty, which I am sure my right hon. and learned Friend can clear up, is in contemplating the sort of murder that he has in mind which is not done in the course or furtherance of another offence.

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

Does the hon. Gentleman agree with me or not—I genuinely want to know—that it looks very much as if this Clause has been drafted on the assumption that constructive malice can occur only where a killing happens in the course of committing another offence, whereas in fact constructive malice may apply to a wide variety of other things?

Photo of Mr Charles Fletcher-Cooke Mr Charles Fletcher-Cooke , Darwen

That may well be so. I should not like to say "yes" or "no" to the hon. Member. He may well be right.

I find it difficult to isolate the sort of murder that does occur except in the course or furtherance of another offence. I suppose if there is such a murder—and there may be—the malice aforethought required must surely be an intention to kill. It cannot be anything else.

If it be that type of isolated murder, which is pure-blooded murder—if I may use that expression—which does not involve any other crime, the malice aforethought required must be the intention to kill. If that is correct, what does the subsection mean? I do not think its intention is that it is only the intention to kill and no other intention that must be proved both in the case of a murder which is not done in the course or furtherance of another offence and in the case of one that is done in the course or furtherance of another offence, which is precisely what the hon. and learned Gentleman the Member for Northampton (Mr. Paget) wants.

So we have really come to an absurd conclusion, if my argument is correct, because I am quite sure that is not the intention of the Clause. I hear the Attorney-General saying my argument is not correct, and I am perfectly prepared to believe that it is not, but I still do not know where the flaw in it is, and I should like to know.

Photo of Mr Douglas Houghton Mr Douglas Houghton , Sowerby

I am not a lawyer. I believe there are far too many lawyers in this Committee. I am certain that all the lawyers came here with worthy motives, but that to make the law understanded by the people was not one of them. I remark that the Chairman of the Royal Commission on Capital Punishment was Sir Ernest Gowers, who was the author of a best seller supplied free to all civil servants and called "Plain Words." I presume that the Parliamentary draftsmen and others connected with the drafting of the law were not given a copy.

What appeared to me good about the Amendment was that not only did it make the subsection intelligible but it expressed the law as most people think it is; and not only think it is, but probably agree that is how it should be. As I understand the subsection, it means that if one kills a person while one is committing another felony it is not murder unless it can be proved one had as much intent to kill as one would have had had one committed the crime not in the course of committing that felony. In other words, if a person is engaged in burglary and is surprised by the householder and lashes out at him and kills him, it is not murder unless he had as much intent to kill in his mind then as he would have had if he had met his victim in other circumstances when he was not in the course of committing a felony. There is a long rigmarole in the Bill to get that over but probably my explanation is longer still.

5.30 p.m.

The Attorney-General said that this subsection sets out to abolish the doctrine of constructive malice, and that alone, and that the Clause as drafted achieves that purpose, and therefore is good and need not be amended. But my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) pointed out that even if the Clause abolishes successfully the doctrine of constructive malice, it leaves the definition of murder in an untidy state. Since the Bill is designed to amend the law relating to homicide and other matters, it seems to me that there is no reason why we should not do as good a job as we can while we are at it.

The effect of the Amendment seems to me plainly simple. It seems to be in accordance with public belief of what the law is and in accordance with what the public believe to be the right sort of thing. The Amendment achieves all these purposes at the same time. It causes the Clause to say, Where a person kills another, the killing shall not amount to murder if the killing be unintentional. What could be simpler than that? I realise that there has been so much law set out in judgments in particular cases that that is one of the difficulties with our law at the present time.

It is not what one reads in the Act, it is the dicta of learned judges from time to time, and therefore, one can never know what the law is by producing a copy of the Act. One must have volume upon volume of case law in order to find out what learned judges have said at different times about the construction of the Act. I believe that to be a lamentable state of affairs, because all citizens should know the law. Even those of us who may be contemplating a felony should know the law. How can we be deterred from committing a felony if we do not know the law relating to it?

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

It is, of course, an old maxim of the same common law that everybody is presumed to know what it is.

Photo of Mr Douglas Houghton Mr Douglas Houghton , Sowerby

I am glad to be reminded of that. It is all the more necessary if we are required to comprehend the law that we should make a reasonable effort to do so, and at present that is not possible. I hope, therefore, that the Attorney-General will reconsider this matter in the light of the purpose of the Amendment. I can only apologise to the Committee for intervening in the debate and say that since I have had no success in my mission to secure clarity of language in the law relating to Income Tax, I turn my attention to the Homicide Bill.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

The remarks of the hon. Member for Sowerby (Mr. Houghton) about the need to consult a large number of law reports for the purpose of construing a statute are particularly applicable to that branch of the law with which he is especially familiar. The tax law indeed requires that. I think that there is some misconception about what this Bill is intended to do, and what it does. Therefore, I should like to clarify the position a little.

Clause 1 (1) refers to: Where a person kills another, in the course or furtherance of some other offence.. That is one of the categories in which the doctrine of constructive malice normally applies.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

I said "one" and I repeat "one".

Subsection (2) deals with the other recognised categories of cases in which the doctrine of constructive malice is normally thought to apply. It refers to a killing done: in the course or for the purpose of resisting an officer of justice, or of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody … and states that it shall be: treated as a killing in the course or furtherance of an offence. Therefore, all these categories of cases are brought within the scope of subsection (1). That being so, in relation to all those categories where constructive malice applies, the provision is that the killing shall not amount to murder unless done with the same malice aforethought as is required for a killing to amount to murder when not done in the course or furtherance of another offence. That is to say, we are here excluding those constructive malice categories, and the Bill as drafted, in my opinion, does that in an absolutely satisfactory way.

Then the question is asked, "What is meant by the same malice aforethought?" I do not seek to criticise anyone, for this is a very complicated subject, but it has been complicated by reference to Sir James Stephen's "Digest of the Criminal Law" where, in his definition of the meaning of malice aforethought, he includes not only what is ordinarily regarded as constituting malice aforethought but also the categories of constructive malice.

Now, having taken out the constructive malice by this Clause, we are left, if the Clause is carried into the Bill, with cases of malice where the malice is not constructive. I shall be asked, and I shall want to say, what that amounts to. It amounts to the very thing that the hon. Member for Nelson and Colne (Mr. S. Silverman) prayed at the conclusion of his speech that we should do. He said in conclusion, "Do not go on convicting persons of murder where there is no intention to kill and no intention to do grievous bodily harm." In my view, the Clause as drafted will mean that to constitute malice aforethought, which is required now in relation to a murder which is not in the constructive malice categories, it will have to be shown either that there was an intention to cause death or an intention to do grievous bodily harm or that there was knowledge that the act would probably cause death or probably cause grievous bodily harm.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

I should be obliged if the hon. and learned Member would not interrupt. I am trying to deal with the point raised by the hon. Member for Nelson and Colne. I think that I know the point which the hon. and learned Member wishes to raise, and I will come to it in a moment. If it should turn out that I do not know, I will give way.

As I was saying, that is the practical, intended effect of the Clause, and I think that that effect is achieved by the present wording. Some criticism was made of Parliamentary counsel and there was reference to the use of plain language. I assure the hon. Member for Sowerby that the task of drafting the Clause to achieve the desired result is a difficult one and that the closest possible examination has been made to try to secure the correct and desired result. Instead of being criticised, Parliamentary counsel should have great tribute paid to them for the success with which they have accomplished that task.

The difference between the hon. Member for Nelson and Colne and the hon. and learned Member for Northampton (Mr. Paget) appears to me to be this. In moving the Amendment, the hon. and learned Member for Northampton said, "Let us confine it to an intent to kill. Let us leave out cases where there is intent to do grievous bodily harm." I think that the hon. and learned Member varied that a little later on by saying that really that would amount to an intent to kill. But we want it clear, as it is in the ordinary case where we do not have constructive malice categories coming in, that there must be either intent to kill or to do grievous bodily harm or knowledge that death or grievous bodily harm will probably result. That is what this Clause does, and in my submission to the Committee it is satisfactory.

I hope that I have answered the question put by my hon. Friend the Member for Darwen (Mr. Fletcher-Cooke). The hon. Member for Oldham, West (Mr. Hale) asked what would be the position under the Clause in a case such as that of Stone. It is clear what the position would be. There would be no conviction for murder on the facts in a case like that unless it was proved to the satisfaction of the jury that the accused had an intent to do grievous bodily harm or knew that the act he would perform would result in it.

Photo of Mr Charles Royle Mr Charles Royle , Salford West

If what the Attorney-General is claiming for this Clause is that it carries out the same intent, why not accept the simplest wording?

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

This is the simplest wording to carry out that intention. If it were put in the wording suggested by the hon. and learned Member for Northampton, it would be left completely open because the Clause would merely say that it should not be unintentional; that is to say, it must have some intent. If we inserted the words "with intent to kill" we should get this trouble. Take the case of someone shooting with a revolver who, meaning to kill B, kills C. There certainly was never an intention to kill C. If we put in those words the association would be between the two. It would be construed as meaning intent to kill the person killed. Indeed, that was what the hon. and learned Gentleman said in the course of his introductory speech.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

If the right hon. and learned Gentleman will forgive me, I said exactly the opposite. I said that this would include an intention to kill either A or B. There must be an intention to kill. Unless there is, it should not be murder.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

I am sorry if I misunderstood the hon. and learned Gentleman. I will certainly look up the OFFICIAL REPORT to see what he said, but I understood him to say at one stage in his speech" an intention to kill the person killed".

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

Well, we need not argue about it now. At any rate we have it clear between us that all the hon. and learned Gentleman was saying was, an intent to kill. We intend to keep to the present system, namely, the intent to kill or the intent to do grievous bodily harm, which is usually required to be proved in all murder charges that come outside the category where constructive malice applies. As I said first, we are not proposing here to make any other change than to abolish that doctrine, which has been condemned in so many quarters.

After having had this useful debate, I hope that we may now be able to make a little progress.

Photo of Mr Anthony Greenwood Mr Anthony Greenwood , Rossendale

As this is the first occasion, Sir Gordon, upon which you have appeared before the Committee invested with your well-earned, new-found dignity and authority, I should like to offer congratulations to you upon it.

It is clear that the Bill will provide a wonderful opportunity for those of our colleagues who are lawyers. I propose, therefore, in the words of the poet, to intervene only seldom and circumspectly. I am emboldened to do so only because my hon. Friend the Member for Sowerby (Mr. Houghton) broke the ice and took part in the debate from the point of view of a layman.

The Attorney-General has told us several times what is the intention of the Government behind this Clause. All of us are wholly agreed about the desirability of putting an end to the doctrine of constructive malice. The doubt which many of us have, and which has been expressed by hon. and learned Members on both sides of the Committee, who are much better qualified to put it than I am, is whether the Clause does what it is supposed to do.

The question which we really have to decide is not what is the intention of the Government, and whether that is a good intention, but whether the words in the Clause satisfactorily carry out that intention. It may be that they do, but the fact that so many lawyers on both sides of the Committee have expressed their doubt whether that is so, raises at all events some slight doubt in the minds of those of us who are not lawyers.

5.45 p.m.

It is clear from what has taken place this afternoon that if the present wording of the Clause remains as it is, it will certainly not be clear to the public as a whole, and a vast amount of judicial interpretation will be needed. I had hoped very much that, in view of the criticisms made from both sides of the Committee, the Attorney-General would at least promise some reconsideration of the wording of the Clause. As the right hon. and learned Gentleman has not felt able to do that, if my hon. and learned Friend the Member for Northampton (Mr. Paget) feels that he must press this Amendment to a Division, I shall feel inclined to accompany him in the Division Lobby.

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

Before we divide the Committee, it should be pointed out that if the Amendment were adopted the Clause would be quite unintelligible. I know that my hon. and learned Friend is very sincere about this. I know he wants to do what is right, and I think his anxiety is to make clear what he thinks is obscure at present.

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

But what his Amendment will succeed in doing if it is carried is to make obscure what is at present clear. The effect of the Clause, as he proposes it, would be that if the killing be unintentional, then killing shall not amount to murder unless it is intentional. That would be the terminological effect if my hon. and learned Friend's Amendment were substituted for the present wording—in other words, that would completely confuse the question of malice aforethought as it now stands in the Clause.

There is one great difficulty in this matter of the proposed Amendment which has not been considered. The Amendment uses the word "unintentional". May I ask my hon. and learned Friend this question: at what point of time in the transaction is the action to be regarded as unintentional? It may well be that when the original act of killing or of felony begins, the other person who in the course or furtherance of it is eventually killed was not intended to be killed by the killer, but, in the events which happened during the transaction, what was originally not an intention to kill becomes such an intention subsequently and the killing is carried out.

Suppose, by way of illustration, that someone intends to kill a particular individual in a crowd, takes out a revolver in order to shoot that person, who is surrounded by other persons, and in shooting misses him but kills several other people. Would my hon. and learned Friend suggest that it would be right to allow that person to put forward the plea that he did not intend to kill these others? It is at the point of the time when the act of that man is such that he must be taken to have formed malice aforethought, formed an intention in connection with those other people to commit the act of murder, because that act was in the circumstances such that it was inevitable that someone else or some other people would be killed. Therefore, if, in such a case, these words "if the killing be unintentional "are introduced, how are they going to be interpreted as applied to those facts.

Is the jury to be told "When this matter began, the man had no intention to kill. Unfortunately, during the course of the events he took out his revolver in circumstances in which killing was inevitable, but instead of killing A, unfortunately he killed B, B being so near A that it was a result that was inevitable."? To introduce words of the type suggested by the Amendment must be quite wrong and would result in the Clause being unworkable.

The Clause, as it stands, says: Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence.

In other words, its effect is that, by the same token as one has to have malice aforethought where there is an original killing, one has to have the same malice aforethought where there is another killing which takes place during the same transaction. If in the course or furtherance of the original killing, or some other offence, the guilty person at any point brings his act to the deliberate purpose of killing, that is murder within the Clause as it now stands. The Clause says so clearly and properly. In those circumstances, I support the Clause as it stands.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Perhaps I might read the subsection as I suggest it should be amended: Where a person kills another…the killing shall not amount to murder if the killing be unintentional.… Is there anyone except a lunatic or a very learned lawyer who cannot understand those words? I venture to assert, on the assumption that my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) is not promoted to the Bench, that there really is not, and will not be, a judge who is perverse enough not to understand it.

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

That is not argument; that is abuse.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

If anybody likes to add to those words: if the killing be unintentional "unintentional "being the lack of intention to kill, I shall have no objection to the addition, although I do not think the words are necessary.

If we take these words, for which there is an ordinary meaning, what will be the direction to the jury in a case where a man says "I did not intend to kill; I intended only to injure"? The direction to the jury is simply, "A man is presumed to intend the natural and probable consequence of his action. If you think the injury that he intended was such that the natural and probable consequence was death, then he is guilty of murder. But if you think that the injury was such that the natural and probable consequence was not death, then, although he intended to injure, it was not murder.

That would exclude the intention to inflict grievous bodily harm. As was said by the Royal Commission, the interpretation has been that it need not be permanent or dangerous but only such as sensibly to interfere with health or comfort. Where all that one intended to do was sensibly to interfere with comfort, I do not think that ought to be murder, and that is all my Amendment says.

Here I would ask for the Attorney-General's special attention. I believe that my Amendment is relatively simple to understand and a very easy one on which to direct a jury, but I find his proposal very difficult, and I believe that, logically, it means something quite different from what he says. I am not at all certain that, as the hon. Member for Darwen (Mr. Fletcher-Cooke) pointed out, it does not go further, because wounding with intention to cause grievous bodily harm, is. of course, an offence.

Let me just read the subsection substituting that offence for: … or furtherance of some other offence. … We then get: Where a person kills another in the course of wounding with intent to inflict grievous bodily harm the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course of wounding with intent to inflict grievous bodily harm. Where the offence is wounding with intent to inflict grievous bodily harm, that is how the subsection must apply.

If the killing was done not in the course of wounding with intent to inflict grievous bodily harm, what is the malice aforethought required? Surely, it must be "to kill." Therefore, I would say that on the logical interpretation of it the intention to wound and to inflict grievous bodily harm is excluded from being murder by the Clause. It is a highly complicated way to do it.

Why do the Government not accept an addition to the effect that "unintentional" means "without an intention to kill"? This could be done on the Report stage, if the Attorney-General would like that. Why not accept simple words

Division No. 7.]AYES[5.58 p.m.
Agnew, Cmdr. P. G.Brooke, Rt. Hon. HenryDeedes, W. F.
Aitken, W. T.Brooman-White, R. C.Digby, Simon Wingfield
Allan, R. A. (Paddington, s.)Browne, J. Nixon (Craigton)Dodds-Parker, A. D.
Alport, C. J. M.Buchan-Hepburn, Rt. Hon. P. G. T.Donaldson, Cmdr. C. E. McA.
Amery, Julian (Preston, N.)Bullus, Wing Commander E. E.Doughty, C. J. A.
Anstruther-Gray, Major Sir WilliamBurden, F. F. A.Drayson, G. B.
Arbuthnot, JohnButler, Rt. Hn. R. A.(Saffron Walden)du Cann, E. D. L.
Armstrong, C. W.Campbell, Sir DavidDugdale, Rt. Hn. Sir T. (Richmond)
Ashton, H.Carr, RobertDuncan, Capt. J. A. L.
Atkins, H. E.Cary, Sir RobertDuthie, W. S.
Baldock, Lt.-Cmdr. J. M.Channon, H.Eden, J. B. (Bournemouth, West)
Baldwin, A. E.Chichester-Clark, R.Elliot, Rt. Hon. W. E.
Balniel, LordCole, NormanEmmet, Hon. Mrs. Evelyn
Barlow, Sir JohnConant, Maj Sir RogerErrington, Sir Eric
Bell, Philip (Bolton, E.)Cooper-Key, E. M.Farey-Jones, F. W.
Bell, Ronald (Bucks, S.)Cordeaux, Lt.-Col. J. K.Fell, A.
Bidgood, J. C.Corfieid, Capt. F. V.Finlay, Graeme
Biggs-Davison, J. A.Craddock, Beresford (Spelthorne)Fisher, Nigel
Bishop, F. P.Crosthwaite-Eyre, Col. O. E.Fletcher-Cooke, C.
Black, C. W.Crouch, R. F.Fraser, Sir Ian (M'cmbe & Lonsdale)
Body, R. F.Crowder, Sir John (Finchley)Freeth, D. K.
Bossom, Sir AlfredCrowder, Petre (Ruislip—Northwood)Galbraith, Hon. T. G. D.
Boyd-Carpenter, Rt. Hon. J. A.Cunningham, KnoxGeorge, J. C. (Pollok)
Boyle, Sir EdwardCurrie, G. B. H.Gibson-Watt, D.
Braine, B. R.Dance, J. C. G.Godber, J. B.
Braithwaite, Sir Albert (Harrow, W.)Davidson, ViscountessGomme-Duncan, Col. Sir Alan
Bromley Davenport, Lt.-Col. W. H.D'Avigdor-Goldsmid, Sir HenryGower, H. R.

which everyone will clearly understand such as: Where a person kills another, the killing shall not amount to murder if it be unintentional. That seems simple enough. I think it amounts to the same thing as the other words, but it gets us where we want to be very much more easily.

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

The Government say that that is what they want.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

No, they apparently think that they are including that form of constructive malice which consists of an intention to injure but not to kill when, in fact, on their own words, they are not including it.

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

I did not say that I agreed with the Government's interpretation of their Clause. I would say that the Attorney-General, from his lucid explanation, wants the same thing as my hon. and learned Friend and I want, only he does not get it.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

In the circumstances, and hoping that by Report stage the Attorney-General will have reconsidered the point, I must ask the Committee to divide on the Amendment.

Question put, That the words proposed to be left out stand part of the Clause:—

The Committee divided: Ayes 225, Noes 194.

Graham, Sir FergusLindsay, Martin (Solihull)Rees-Davies, W. R.
Grant, W. (Woodside)Linstead, Sir H. N.Remnant, Hon. P.
Grant-Ferris, Wg Cdr. R. (Nantwich)Lloyd, Maj. Sir Guy (Renfrew, E.)Renton, D. L. M.
Green, A.Lloyd-George, Maj. Rt. Hon. G.Ridsdale, J. E.
Gresham Cooke, R.Longden, GilbertRoberts, Sir Peter (Heeley)
Grimston, Sir Robert (Westbury)Lucas, Sir Jocelyn (Portsmouth, S.)Robinson, Sir Roland (Blackpool, S.)
Grosvenor, Lt.-Col. R. G.Lucas-Tooth, Sir HughRodgers, John (Sevenoaks)
Gurden, HaroldMcCallum, Major Sir DuncanRoper, Sir Harold
Hare, Rt. Hon. J. H.Macdonald, Sir PeterRopner, Col. Sir Leonard
Harris, Frederic (Croydon, N.W.)McKibbin, A. J.Russell, R. S.
Harrison, Col. J. H. (Eye)Mackie, J. H. (Galloway)Schofield, Lt.- Col. W.
Harvey, John (Walthamstow, E.)McLaughlin, Mrs. P.Scott-Miller, Cmdr. H.
Harvie-Watt, Sir GeorgeMcLean, Neil (Inverness)Sharples, R. C.
Heald, Rt. Hon. Sir LionelMacLeod, John (Ross & Cromarty)Shepherd, William
Heath, Rt. Hon. E. R. G.Macmillan, Rt. Hn. Harold (Bromley)Simon, J. E. S. (Middlesbrough, W.)
Hesketh, R. F.Macmillan, Maurice (Halifax)Smithers, Peter (Winchester)
Hicks-Beach, Maj. W. W.Macpherson, Niall (Dumfries)Smyth, Brig. Sir John (Norwood)
Hill, Rt. Hon. Charles (Luton)Maddan, MartinSoames, Capt. C.
Hill, Mrs. E. (Wythenshawe)Maitland, Cdr. J. F. W. (Horncastle)Spearman, Sir Alexander
Hill, John (S. Norfolk)Maitland, Hon. Patrick (Lanark)Speir, R. M.
Hinchingbrooke, ViscountManningham-Buller, Rt. Hn. Sir R.Spence, H. R. (Aberdeen, W.)
Hirst, GeoffreyMarkham, Major Sir FrankSpens, R. Hn. Sir P. (Kens'gt'n, S.)
Holland-Martin, C. J.Marshall, DouglasStanley, Capt. Hon. Richard
Hope, Lord JohnMaude, AngusStevens, Geoffrey
Hornby, R. P.Mawby, R. L.Steward, Harold (Stockport, S.)
Hornsby-Smith, Miss M. P.Maydon, Lieut.-Comdr. S. L. C.Stewart, Henderson (Fife, E.)
Horobin, Sir IanMilligan, Rt. Hon. W. R.Storey, S.
Horsbrugh, Rt. Hon. Dame FlorenceMolson, Rt. Hon. HughStuart, Rt. Hon. James (Moray)
Howard, Gerald (Cambridgeshire)Moore, Sir ThomasStudholme, Sir Henry
Howard, Hon. Greville (St. Ives)Morrison, John (Salisbury)Taylor, William (Bradford, N.)
Howard, John (Test)Nabarro, G. D. N.Temple, J. M.
Hughes Hallett, Vice Admiral J.Nairn, D. L. S.Thomas, P. J. M. (Conway)
Hughes-Young, M. H. C.Neave, AireyThompson, Kenneth (Walton)
Hurd, A. R.Nicholls, HarmarThompson, Lt.-Cdr. R. (Croydon, S.)
Hutchison, Sir Ian Clark (E'b'gh, W.)Nicholson, Godfrey (Farnham)Thorneycroft, Rt. Hon. P.
Hyde, MontgomeryNicolson, N. (B'n'm'th, E. amp; Chr'ch)Thornton-Kemsley, C. N.
Hylton-Foster, Sir H. B. H.Nugent, G. R. H.Tilney, John (Wavertree)
Iremonger, T. L.Oakshott, H. D.Turner, H. F. L.
Irvine, Bryant Godman (Rye)O'Neill, Hn. Phelim (Co. Antrim, N.)Turner-Samuels, M.
Jenkins, Robert (Dulwich)Ormsby-Gore, Hon. W. D.Turton, Rt. Hon. R. H.
Jennings, J. C. (Burton)Orr, Capt. L. P. S.Vane, W. M. F.
Johnson, Dr. Donald (Carlisle)Orr-Ewing, Charles Ian (Hendon, N.)Vaughan-Morgan, J. K.
Johnson, Eric (Blackley)Osborne, C.Vickers, Miss J. H.
Jones, Rt. Hon. Aubrey (Hall Green)Page, R. G.Vosper, D. F.
Joynson-Hicks, Hon. Sir LancelotPannell, N. A. (Kirkdale)Wakefield, Edward (Derbyshire, w.)
Kaberry, D.Partridge, E.Wakefield, Sir wavell (St. M'lebone)
Keegan, D.Pickthorn, K. W. M,Wall, Major Patrick
Kimball, M.Pilkington, Capt. R. A.Ward, Hon. George (Worcester)
Kirk, P. M.Pitman, I. J.Waterhouse, Capt. Rt. Hon. C.
Lagden, G. W.Pitt, Miss E. M.Watkinson, Rt. Hon. Harold
Lambert, Hon. G.Pott, H. P.Whitelaw, W. S. I. (Penrith & Border)
Lambton, ViscountPowell, J. EnochWilliams, Paul (Sunderland, S.)
Langford-Holt, J. A.Price, David (Eastleigh)Williams, R. Dudley (Exeter)
Leavey, J. A.Price, Henry (Lewisham, W.)Wilson, Geoffrey (Truro)
Leburn, W. G.Prior-Palmer, Brig. O. L.Wood, Hon. R.
Legge-Bourke, MaJ. E. A. H.Profumo, J. D.Woollam, John Victor
Legh, Hon. Peter (Petersfield)Raikes, Sir Victor
Lennox-Boyd, Rt. Hon. A. T.Rawlinson, PeterTELLERS FOR THE AYES
Lindsay, Hon. James (Devon, N.)Redmayne, M.Mr. Wills and Mr. Bryan.
NOES
Ainsley, J. W.Brown, Thomas (Ince)Dugdale, Rt. Hn. John (W. Brmwch)
Albu, A. H.Burke, W. A.Dye, S.
Allaun, Frank (Salford, E.)Butler, Herbert (Hackney, C.)Edwards, Rt. Hon. John (Brighouse)
Allen, Arthur (Bosworth)Butler, Mrs. Joyce (Wood Green)Edwards, Rt. Hon. Ness (Caerphilly)
Allen, Scholefield (Crewe)Callaghan, L. J.Edwards, Robert (Bilston)
Anderson, FrankChampion, A. J.Edwards, W. j. (Stepney)
Awbery, S. S.Chapman, W. D.Evans, Edward (Lowestoft)
Bacon, Miss AliceChetwynd, G. R.Fernyhough, E.
Baird, J.Clunie, J.Finch, H. J.
Balfour, A.Coldrick, W.Fletcher, Eric
Bellenger Rt. Hon. F. J.Collick, P. H. (Birkenhead)Forman, J. C.
Benn, Hn. Wedgwood (Bristol, S. E.)Collins, V. J. (Shoreditch & Finsbury)Fraser, Thomas (Hamilton)
Benson, G.Corbet, Mrs. FredaGaitskell, Rt. Hon. H, T. N.
Beswick, F.Cove, W. G.Gibson, C. W.
Bevan, Rt. Hon. A. (Ebbw Vale)Craddock, George (Bradford, S.)Gooch, E. G.
Blackburn, F.Cronin, J. D.Gordon Walker, Rt. Hon. P. C
Bottomley, Rt. Hon. A. G.Cullen, Mrs. A.Greenwood, Anthony
Bowden, H. W. (Leicester, S. W.)Daines, P.Grenfell, Rt. Hon. D. R.
Bowles, F. G.Dalton, Rt. Hon. H.Grey, C. F.
Brockway, A. F.de Freitas, GeoffreyGriffiths, David (Rother Valley)
Brown, Rt. Hon. George (Belper)Dodds, N. N.Griffiths, Rt. Hon. James (Llanelly)
Grimond, J.Mallalieu, E. L. (Brigg)Skeffingon, A. M.
Hale, LeslieMarquand, R. Hon. H. A.Slater, Mrs. H. (Stoke, N.)
Hall, Rt. Hn. Glenvil (Colne Valley)Mason, RoySlater, J. (Sedgefield)
Hamilton, W. W.Mellish, R. J.Smith, Ellis (Stoke)
Hannan, W.Messer, Sir F.Snow, J. W.
Harrison, J. (Nottingham, N.)Mikardo, IanSoskice, Rt. Hon. Sir Frank
Hastings, S.Mitchison, G. R.Steele, T.
Hayman, F. H.Monslow, W.Stewart, Michael (Fulham)
Healey, DenisMoyle, A.Stones, W. (Consett)
Henderson, Rt. Hn. A. (Rwly Regis)Mulley, F. W.Strauss, Rt. Hon. George (Vauxhall)
Herbison, Miss M.Neal, Harold (Bolsovar)Stross, Dr. Barnett (Stoke-on-Trent, C.)
Holmes, HoraceNoel-Baker, Francis (Swindon)Summerskill, Rt. Hon. E.
Holt, A. F.Noel-Baker, Rt. Hon. P. (Derby, S.)Sylvester, G. O.
Houghton, DouglasOliver, G. H.Taylor, Bernard (Mansfield)
Howell, Charles (Perry Barr)Orbach, M.Taylor, John (West Lothian)
Howell, Denis (All Saints)Oswald, T.Thornton, E.
Hubbard, T. F.Padley, W. E.Timmons, J.
Hughes, Cledwyn (Anglesey)Paget, R. T.Ungoed-Thomas, Sr Lynn
Hughes, Emrys (S. Ayrshire)Palmer, A. M. F.Usborne, H. C.
Hughes, Hector (Aberdeen, N.)Pannell, Charles (Leeds, W.)Viant, S. P.
Hunter, A. E.Parker, J.Wade, D. W.
Hynd, J. B. (Attercliffe)Parkin, B. T.Warbey, W. N.
Isaacs, Rt. Hon. G. A.Paton, JohnWeitzman, D.
Jay, Rt. Hon. D. P. T.Pearson, A.Wells, Percy (Faversham)
Jeger, Mrs. Lena (Holbn & St. Pncs, S)Peart, T. F.Wheeldon, W. E.
Johnson, James (Rugby)Pentland, N.White, Mrs. Eirene (E. Flint)
Johnston, Douglas (Paisley)Plummer, Sir LeslieWhite, Henry (Derbyshire, N. E.)
Jones, David (The Hartlepools)Popplewell, E.Wigg, George
Jones, Elwyn (W. Ham, S.)Price, J. T. (Westhoughton)Wilkins, W. A.
Kenyon, C.Probert, A. R.Willey, Frederick
Key, Rt. Hon. C. W.Proctor, W. T.Williams, Rev. Llywelyn (Ab'tillery)
King, Dr. H. M.Pryde, D. J.Williams, Ronald (Wigan)
Lawson, G. M.Randall, H. E.Williams, Rt. Hon. T. (Don Valley)
Lee, Frederick (Newton)Rankin, JohnWilliams, W. T. (Barons Court)
Lindgren, G. S.Redhead, E. C.Willis, Eustace (Edinburgh, E.)
Lipton, Lt.-Col. M.Reeves, J.Wilson, Rt. Hon. Harold (Huyton)
Logan, D. G.Rhodes, H.Winterbottom, Richard
Mahon, Dr. J. DicksonRobens, Rt. Hon. A.Woodburn, Rt. Hon. A.
MacColl, J. E.Roberts, Goronwy (Caernarvon)Yates, V. (Ladywood)
McGhee, H. G.Robinson, Kenneth (St. Pancras, N.)Younger, Rt. Hon. K.
McInnes, J.Ross, WilliamZilliacus, K.
McKay, John (Wallsend)Royle, C.
McLeavy, FrankShurmer, P. L. E.TELLERS FOR THE NOES:
MacPherson, Malcolm (Stirling)Silverman, Sydney (Nelson)Mr. Short and Mr. Deer.
Mahon, SimonSimmons, C. J. (Brierley Hill)

Photo of Sir Frank Soskice Sir Frank Soskice , Newport (Monmouthshire/Gwent)

I beg to move, in page 1, line 10, to leave out "(express or implied)".

My object in moving the Amendment is really to ask the Attorney-General to have another look at the language of this subsection. Many of the arguments which I want to use have already been used by my hon. Friends on the last Amendments and I shall not repeat them.

My hon. Friends have questioned whether the subsection will work at all. I should like to have the Attorney-General's views upon this aspect of the matter. The subsection provides that where a person kills another in the course of committing some other offence, the same malice aforethought shall be requisite as is required for a killing done not in the course of committing another offence. I would ask the right hon. and learned Gentleman whether he can think of a killing which can ever be committed when it is not in the course of furtherance of another offence.

I will explain what I mean. If I take a dagger and stick it into somebody, am I not, by the very act of sticking it into somebody, committing another offence, namely, that of causing grievous bodily injury? Am I not at least committing the offence of an assault? The Attorney-General may be able to give me some examples, but I very much doubt whether a person can ever kill another without, at the same time, committing a number of offences upon him. The murderer would assault the other person, cause him grievous bodily injury, and probably do damage to property. He would threaten him, and do all sorts of things while killing him.

If I am right, it seems to me that the Clause is completely nugatory. It is designed to envisage the case of a killing which is done not in the course of the commission of another offence, but I submit that there just cannot be any such killing. Any killing is always done in the course of the commission of some other offence. An obvious offence in each case is that of causing grievous bodily harm.

If that is so, the Clause simply will not work. Much as we desire to achieve the object which the right hon. and learned Gentleman has in mind, I would ask him to consider whether, in the language which he and his advisers have adopted, he has got anywhere near achieving it. It will be impossible to envisage the kind of malice aforethought which is requisite when the killing is a killing independently, per se, and in no sense allied to the commission of some other offence, because it always is. Unless I am wholly mistaken, therefore, it seems to me that the Clause will not work in any case. Unless there is a simple and easy answer to what I have been putting to him—which, I am bound to say, is very likely—the Clause will not work.

I submit that the words which the Amendment seeks to delete simply add ambiguity. Implied malice is generally regarded as including constructive malice. The term "implied malice" is sometimes used in the text books as covering constructive malice. Therefore, the Clause posits malice aforethought, whether expressed or implied, and, therefore, includes constructive malice, which needs to be present in the case of a killing not accompanying the commission of some other offence.

I submit that there cannot be any such killing, and if I am right it is sufficient for the killing to amount to murder if there is constructive malice, which there will be if it is an offence committed in the course of inflicting grievous bodily injury. For those reasons, I would ask the Attorney-General, if he feels that there may be a flaw in the words of the Clause, to say that he will give the matter further consideration.

If he does so, I hope that he will also give some thought to the points raised by my hon. and learned Friend the Member for Northamtpon (Mr. Paget) and my other hon. Friends who, between them, in various forms, have suggested what, on analysis, is possibly a much simpler formula, in an endeavour to achieve the object of abolishing constructive malice. My hon. Friend the Member for Oldham, West (Mr. Hale) possibly suggested the simplest solution of all, namely, that the words "that the doctrine of constructive malice is abolished" should be inserted.

I hope that the right hon. and learned Gentleman will give that point further consideration. I hope that the Clause will work, and that I have omitted to discern a simple answer to the point which I have raised. I put it to the Attorney-General that when he is dealing with the offence of murder, the characteristics of which every citizen should be able to appreciate, he may feel it desirable to use some formula which is less reminiscent of a Finance Act than the one that he has used. I hope that he will not think that I am seeking to criticise Parliamentary draftsmen. I know how difficult their task is, but with their great expertise in these matters I think that they may be able to devise a formula which is more intelligible to ordinary persons who are considering whether or not they should commit a murder, and which will tell them what the consequences will be if they do.

6.15 p.m.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

In the course of moving the Amendment the right hon. and learned Member for Newport (Sir F. Soskice) referred to the debate which we had on the last Amendment, and asked me to make certain observations in connection with it. I assume that I should not be in order in reopening a past debate, despite what the right hon. and learned Gentleman said.

If you will permit me, Sir Gordon, I should like to add my congratulations to those which have already been extended to you on you attaining your new office.

The right hon. and learned Gentleman suggested that if the words "express or implied "were left out it would add clarity to the subsection. I think that the converse is the case, and that we want those words in to show that malice afore thought covers both kinds—express and implied. Some question may be raised—

Photo of Mr John Paton Mr John Paton , Norwich North

What is the difference between the two?

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

If the hon. Member will wait he will see. I was just going to say that a question may be raised as to the difference between the two. The terms "express malice" and "implied malice" are used in two differing senses, one by text book writers, very frequently, and in a loose way, and the other by the courts. Express malice, in its proper sense, covers premeditation; the implication that murder was intended—such as by lying in wait.

Implied malice covers cases where no malice is expressed or openly indicated, but where there is a sudden killing without provocation. That is the sense in which that expression was used by Lord Sankey in the case of Woolmington, with which the right hon. and learned Gentleman will be familiar. Lord Sankey said: When dealing with a murder case the Crown must prove (a) death as a result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as a result of a voluntary act of the accused which is (i) intentional and (ii) provoked. It can also be used loosely—I believe that it is a loose use of the term—to cover an intent to inflict grievous bodily harm. Some people refer to that as a case of implied malice because there was no intention to kill, but I do not think that that is the correct use.

The only point of having those words in the Clause is to make it quite clear that both kinds of malice are included by the expression "malice aforethought," and I think that the omission of those words would leave that in doubt.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Surely the right hon. and learned Gentleman has misunderstood the passage which he quoted from Lord Sankey's observations. Lord Sankey was not distinguishing between malice expressed and implied; he was distinguishing between the proof of malice by circumstantial evidence and by direct evidence. That is quite a different conception.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

The hon. and learned Gentleman and I will not get much further forward if we argue about what Lord Sankey meant by the words he used. I believe that his words show quite clearly what he regarded as implied malice. If the hon. and learned Gentleman does not agree with me we must leave it at that.

The next point with which I want to deal is not raised by the Amendment, but the right hon. and learned Gentleman asked me to deal with it, and I think we dealt with it a little in our discussion on the last Amendment. It refers to the use of the words at the end of subsection (1): … done in the course or furtherance of another offence. He posed the question: was not every murder done in the course of furtherance of another offence? I am not sure that that is strictly accurate, but I would agree with the right hon. and learned Gentleman that when a person commits a murder, he probably commits, at the same time, a whole number of other offences. I think that that is common ground between us. The short answer to the right hon. and learned Gentleman is that the reference in line 12 of subsection (1) is a reference back to the malice aforethought. The same malice aforethought is required for a killing to amount to murder when it is not done in one of the cases to which the doctrine of constructive malice applies.

As the right hon. and learned Gentleman knows, that doctrine does not apply to the killing in the course or furtherance of some other offence. I think that the best way of expressing it. The effect of it is that we eliminate those cases in determining whether the malice aforethought is present which is required in an ordinary case which would not come within the constructive malice doctrine. I think that the language is effective for its purpose. It is not a case of the Clause envisaging a killing not in the course of another offence. What the Clause is saying is that you must have the same malice aforethought in these cases where constructive malice may possibly mean that you have a lesser degree of malice, as in the case where no question of constructive malice could in the past possibly arise.

I am not giving any undertaking to alter the wording. Indeed, it might not be possible to improve on it. But one always gives consideration to anything said in the course of debates during the Committee stage of a Bill. I can assure the right hon. and learned Gentleman—I know he will take it from me—that the wording of this particular provision has been the subject of close and careful consideration, with a view to achieving the object which hon. Members on both sides of the Committee hold, although some hon. Members want the object extended beyond the purpose of Clause 1.

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

It is, of course, some indication of the extreme complexity of these matters that a Clause which the Attorney-General recommended to the Committee when we were discussing the last Amendments, precisely on the ground of the simplicity and clarity of its draftsmanship, should, nevertheless, be capable of being described by my right hon. and learned Friend the Member for Newport (Sir F. Soskice) as producing a ludicrous result.

It seems to me a very great pity when, at long last, the House of Commons is directing its attention to removing from our law the anomalies in the definition of murder, which everyone knows to have been present for so long, that we should have a Clause which is capable of so much construction in more senses than one, and producing such confusion in the minds of the ordinary people; not so much those who may be deciding whether they will or will not commit this crime, but those unfortunate citizens who may one day find themselves in a jury box and be called upon to decide whether a crime has been committed.

I wish to explain my own difficulties. I have no claim, and I make no claim. to be expert in these matters in any way—one does one's best. But my right hon. and learned Friend has raised two points on the construction of the language, and the Attorney-General has attempted to reply to them. I must say that I could not understand—I am quite sure that it is my fault and not his—his answer on either point.

Let us take, first, the parenthesis which my right hon. and learned Friend wishes to leave out. The Attorney-General devoted a substantial part of his argument to explaining to us the difference between express malice and implied malice. With respect to him, it is not that distinction which causes the difficulty; it is not that distinction which will give difficulty to a juryman who is called on to decide whether the man in the dock is guilty or not guilty. What the juryman will be much more concerned with is just what my right hon. and learned Friend said, that if we are to imply malice, then from what is the implication to arise? In other words, what exactly is the difference between implied malice and constructive malice? Is there a difference between the two? If so, what is it?

As I understand constructive malice, it is this. We start, as we all explained to one another in the last debate, from the notion that no killing could be murder unless there was, in the mind of the killer, malice. That was plain enough, until the courts and the judges and the lawyers got busy on it. They sought to say, of course, that where the malice is clear, there is no difficulty, but they thought that malice ought to be implied from certain circumstances where it was not clear, where it was not expressed; and I submit that constructive malice never meant anything more than this. It meant malice that was not clear, malice that was not expressed, but malice which ought, in fairness, to be implied from the surrounding circumstances. If constructive malice is malice to be implied from some surrounding circumstances, how do we distinguish it from implied malice which must equally be malice which is implied from surrounding circumstances?

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

If the hon. Gentleman will allow me, perhaps I can help him. If he will look at paragraph 81 of the Report of the Royal Commission, he will see that there it points out that if we have this doctrine of constructive malice, for instance, where death is caused—I will quote from the last two lines in page 30 of the Report: Although the exact effect of these decisions may be uncertain, they seem to justify the conclusion that, where death is caused in the commission of a felony involving violence, a lesser degree of violence may justify a verdict of murder than would be necessary in other circumstances, so that (as it is put by the Editor of the most recent edition of Stephen's Digest) 'the fact that the prisoner was engaged on a felony increases the risk for him that upon death accidentally resulting from his felonious enterprise he will be held guilty of murder'. So where we get the doctrine of constructive malice applying, although it may be implied from the facts, the degree of malice may well be less than in the ordinary case where that doctrine does not apply.

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

I am obliged to the right hon. and learned Gentleman. I had not altogether overlooked the point, but I am grateful to him for reminding me of it. That direction and his explanation of it is undoubtedly a very lucid explanation of one kind of constructive malice. I say with diffidence and with respect—I said it in the previous debate and I repeat it now because I still think it to be true—that I think the fallacy on which possibly the draftsmen or the Government have constructed this whole Clause is that they have thought from the beginning that paragraph 81 was an exhaustive definition of constructive malice. Quite plainly it is not, and, plainly, the Royal Commission never thought that it was.

6.30 p.m.

I agree that there is no difficulty in defining the rather vague border between implied malice on the one hand and constructive malice on the other hand in the precise circumstances contemplated by paragraph 81, but from the point of view of my right hon. and learned Friend there is a great deal more than that in it. There are a great many cases of constructive malice where another offence is not involved. I should have thought that it would be very much better and simpler on this one point to leave the parenthesis out and to leave the prosecution to prove malice in any way they could to the satisfaction of the jury. There is no need at all to have the parenthesis.

I come to the point made by my right hon. and learned Friend, the Attorney-General's answer to which seemed to take the matter no further. The Attorney-General began by conceding the whole matter. My right hon. and learned Friend's case was based on the proposition that every murder involved the commission of other offences, and that it was, in practice, impossible to commit a murder at all without committing, at the same time, a variety of other offences; so that murder was always committed in the course or furtherance of some other offence. The Attorney-General conceded that and then, in my very respectful submission to him, missed the whole point of his concession. He said, "That refers back to the beginning of the Clause." No doubt it does. Let us refer back to the beginning of the Clause and see how it looks. It says: Where a person kills another in the course or furtherance of some other offence. It is common ground now between my right hon. and learned Friend and the Attorney-General that that is every murder that ever is or ever could be. What is exactly meant by those words? The Clause goes on: The killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a kiling to amount to murder"— which never happens. That is the situation in which the Attorney-General finds himself in defending a Clause which he recommends to the Committee for its clarity and simplicity.

Where are we getting to? I should have thought that the Clause as it stands, so far from effecting the purpose which the Government say they want and which is the purpose which we all want, achieves precisely nothing whatever, because it is not capable of having any intelligible meaning attached to it. This seems clear from the concession which the Attorney-General has made. In these circumstances one would expect the Attorney-General to be a little more forthcoming. I concede that he said, "We always look at everything that is said, but I am not giving any pledge", but by his own concession the Clause is completely meaningless. He has said so.

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

No doubt the right hon. and learned Gentleman did not say it in words, but he constructively said so.

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

I do not think that there was any malice aforethought. That is always the difficulty when we are dealing with implied and constructive malice. I acquit the Attorney-General of any malice aforethought, but, constructively, he has said that this thing is agreed. He has said that no murder is capable of being committed except in the commission of some other offence.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

The hon. Gentleman is completely misquoting me. I never said that it was impossible to commit a murder except in the course or furtherance of another offence. I said that he who commits a murder probably commits, at the same time, other offences. There is a great deal of distinction between committing other offences at the same time and committing murder in the course or furtherance of some other offence.

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

I am even more grateful to the Attorney-General this time than I was last time. I hope he recognises that I am making a genuine and sincere attempt to get him to clarify what I believe to be unintelligible.

The Attorney-General is saying now that there is a difference, a conflict, between, on the one hand, committing murder in the course or furtherance of some other offence and, on the other hand, committing murder not in the course of or furtherance of some other offence but while committing other offences at the same time.

Is that what this Clause is intended to mean? Is the juryman, who is to be called upon to determine whether the man in the dock is guilty or not of murder, to have to decide, in addition to all the other burdens imposed upon him by the Clause, whether the other offences which are committed at the same time are offences in the course or furtherance of which the murder was committed or whether they were only simultaneous offences which have nothing to do with the murder? That is put forward as a further clarification of the law.

The Attorney-General's case was a little better before his intervention than it is now. Then he was merely saying that no murder could be committed unless other offences were committed at the same time. I thought he was accepting the perfectly simple proposition of my right hon. and learned Friend, that in that case the murder must be committed in the course or furtherance.

Let me take the example he gave to my right hon. and learned Friend. The Attorney-General invited the Committee to say that if a man takes out a knife and stabs a man with whom he is in combat the assault committed is not an offence in the course or furtherance of which he murders him if the blow goes deep enough to kill him, and that it is merely a simultaneous offence which happened to be committed at the same time. Really, it is complete nonsense.

Let me make an appeal to the Attorney-General. I know that it is his wish to give the Committee the right advice on the Bill, so far as he can. He said in the course of the last debate that both sides of the Committee wanted the same thing and he did me the honour to quote sentences out of my previous speech in which I said—I translate it from his quotation—that he agreed with me that no one wanted anyone to be convicted of murder unless he either intended to kill or intended to inflict on someone such grievous bodily harm as any sensible person would know might imperil his life. The Attorney-General said that that was the common object on both sides.

If that is the common object intended to be effected by the Clause, I ask him this in all seriousness: does the Attorney-General think that the Clause does that simply and clearly, so that a jury can understand it, and that it does nothing else? If he agrees that even the extremely skilful and conscientious draftsman who drew up the Clause might, understandably, have been mistaken, is it possible, or beyond the resources of the draftsman's ingenuity, or beyond the reasonable resources of the English language, to formulate a Clause which would prove that simple thing in a simple, intelligible way?

Lawyers very often exaggerate the difficulties of stating a thing so that laymen can understand it. The matter is neither so complicated as they think it is nor are people's understandings so limited as they think they are. It is quite possible, surely, to find a form of words which would embody in an understandable way the proposition for which we are all contending and which the Attorney-General says is common ground, that no one shall be convicted of murder without intention as previously explained and defined.

Will not the Attorney-General now take this thing back and reconsider it? The Government are too hasty about this matter altogether. There is no urgency about these technical draftings. There is no reason why matters of this kind should be considered on the Floor of the House. They are matters properly to be examined by a Standing Committee of hon. Members who hear all the arguments before they vote. These are not questions to be decided by an influx of hon. Members from the Smoking Room, the Dining Room, or elsewhere, who have not heard a single word of the argument, but come in, cheerfully obeying the Whips' command, and vote on matters in which consciences are so deeply engaged.

If the Government insist on dealing with this matter in this haphazard, hasty and irresponsible way, will they not now—the Clause having been demonstrated to them as ludicrous—take it back and reconsider it?

Photo of Mr William Williams Mr William Williams , Manchester Openshaw

As a layman, I have hesitated to try to interrupt right hon. and hon. Gentlemen, but it seems to me that we are going a little wide of the Amendment. It would be very difficult for the Chair to accept a repetition of any of this argument on the Question, "That the Clause stand part of the Bill."

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

I do not find myself in entire agreement with my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) when he says that it ought to be possible to redraft this Clause. I do not think so. I agree with the Home Secretary. He advised the House that the decision it had to take was between abolition and retention and that any compromise of this sort to provide a system of new definitions and degrees of murder was quite impracticable. I think that the right hon. and gallant Gentleman was quite right then, but he has produced a Bill which is quite impracticable.

I certainly understood the Attorney- General to agree with my right hon. and learned Friend the Member for Newport (Sir F. Soskice) that no murder could be committed save either in the course of another offence—

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

The hon. and learned Member says that he understood me to say that. I am sure that when he looks at HANSARD he will see that I said nothing of the sort.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

If the right hon. and learned Gentleman will wait a moment—I accept that—he will see that I said I understood him to say that. I then heard him say that that was not so. His second observation surprised me much more than his first. I will ask him this very simple question. Can he tell the Committee of a murder which would be no offence if the person had not died? If there is not an answer to that, surely every murderer is necessarily convicted in the course of committing the offence which would have been committed if the victim had not died. Does it not follow that there cannot be a murder which is not committed in the course of some other offence?

6.45 p.m.

Let us see how this reads if that be logical. The Clause says: Where a person kills another in the course … I leave out "or furtherance" because I do not need that— of some other offence. For that let us read, "all killings", because that is what it means. It would then be that in the case of all killings the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance. … It means that any killing shall not amount to murder unles it is done with the same intention as would amount to murder if there were not a killing. It does not seem to make very good sense.

The next point with which I want to deal is the difference between "express and implied". My hon. Friend the Member for Norwich, North (Mr. J. Paton) interrupted the Attorney-General, who ticked him off—if I may use those words—saying that he was just going to tell my hon. Friend about that. I was on my toes with anticipation to hear the answer, but we never got it. What the Attorney-General told us was something quite different. He came to the famous judgment of Lord Sankey, in the Woolmington case.

I should like to have the attention of the Attorney-General, because I wish to point out to him where I think he quite misunderstood the law. Woolmington was charged with murder because he had shot a girl. Everyone agreed that he had shot the girl. Woolmington said that he had done it by accident. The judge—if I remember aright it was Mr. Justice Rigby Swift—directed the jury that where there was a killing the presumption was that that killing was murder and it was for the accused to prove that it was not murder but accident.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

He said that the onus was on him.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

The appeal was solely on the question of where the onus lay. If there was malice it was the directest malice in the world, intention to kill. The issue before the jury was: did Woolmington mean to kill, or was it an accident? Lord Sankey, in the course of his judgment, said that malice can either be proved directly by direct evidence, or can be implied from circumstances, which is by circumstantial evidence.

The question whether the malice itself was express or implied never arose. If there were malice in the Woolmington case it was a direct malice of intention to kill, otherwise there was none. So the Attorney-General, in drawing this distinction, fell into the error of failing to distinguish between express and implied as a part of the definition of malice and express and implied as part of the evidence to prove it.

I would venture to say that the difference between express and implied—the words come from the very ancient definition in Coke—is simply that express malice is the intention to kill and "implied", used here, is a word which, since then, has somewhat changed its meaning. If we were to express the meaning which was intended then we would use the word "deemed".

Implied malice, as used by Coke, meant this: malice which does not really exist, but is deemed to exist. It means a case in which there was not an intention to kill but an intention to kill is deemed because there was another intention. As far as my research goes, it leads me to that construction, although I agree that going through the authorities it is very difficult to find just what difference Coke had in mind when he included those words. It has never been made clear, as far as I know. I have read most of the judgments and I have tried to do some research into this question, but it has never been clearly defined. Nevertheless, I think that, going back to that time, "implied" was used as we should use "deemed".

If this is right, what does it mean? It means with the same malice aforethought, either being an intention to kill, or not being an intention to kill but being one of the other intentions which are deemed to be an intention to kill, which, in fact, includes everything which has ever been held to be murder; because even if one had not an intention to kill, it was brought into the category of murder because another intention was deemed.

If that be the right interpretation, the inclusion of these two words simply makes the Clause contradict itself. I say that, meaningless as the Clause is in any case, it is certainly worse with these words than without them; and I therefore hope that we shall drop them.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

A somewhat strange thing happened in the course of the previous discussion which, as you were right in saying, Mr. Williams, necessarily dealt to some extent with the same point. In the course of my speech I casually asked why we should not put the Clause in simple language and why we should not simply say "we abolish the doctrine of constructive malice."

At once the hon. Member for Darwen (Mr. Fletcher-Cooke), with singular clarity, pointed out my error. He said that I could not do this because the doctrine of constructive malice has been built on the foundation of implied malice. He said that every lawyer has a clear idea of what it means and that every lawyer knows that there is a point of demarcation which has been embodied on this foundation of implied malice; and that we could not therefore, by definition. drop the top storey. Instead, we have to put the thing the other way about, so we revert to the Coke definition—the definition that there must be malice express, or that malice can be implied from a very limited set of circumstances.

I at once got up and acknowledged the justice of that. I put on a penitent air and I pleaded, in mitigation, that it was the first offence I had committed and the first time that it had happened during my eleven years in the House.

What has happened? These casual observations of mine, made, I admit, without sufficient forethought and sufficient consideration, have completely converted the Attorney-General. [Laughter.] Yes, that is so. What has the right hon. and learned Gentleman said? He has said, "There is no difficulty about knowing what is implied malice. It is quite a different thing from constructive malice. No one would be under any misapprehension about that. Any juryman, from Dulwich, Bermondsey, or the Old Bailey, in the morning, will find that a matter which he can simply comprehend and a matter quite simple to apply. There is no need to alter the Clause at all".

It therefore becomes important that we should consider this matter. We have all put different points of view, although they come to the same thing. I have often thought that ordinary implied malice has a meaning neither more nor less than this: that malice is a legal term which does not necessarily import hostility or venom or personal antagonism, but it imports a state of mind which can be called a guilty state of mind. It means that if I kill somebody by a deliberate act it is necessary to show that it was done deliberately; and that if it was done deliberately there was malice.

Then we come to the circumstance in which there is no need to presume malice at all, there is no evidence on which we can presume malice. It may be that I have killed somebody I did not know, but if I have killed him in circumstances which are such that the irresistible implication is that I meant to do a killing, and a guilty killing—

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

—of somebody—then it is unimportant to say "You meant to kill your uncle and you actually exterminated your aunt".

On that basis there has been built up a wholly different doctrine that, anyhow, if I commit a felony, if I am doing something really criminal, and if, in doing that something really criminal, one of the natural or probable or reasonably possible results of the act would be a killing, I may be guilty of murder.

Where are we going from here? I do not wish to repeat the arguments. I have not the slightest desire to delay the Committee in any way or to waste any time in rhetorical argument. My hon. Friend the Member for Sowerby (Mr. Houghton) made some observations, but I do not think it in the least necessary for a lawyer to apologise for taking part in making law. Nor do I honestly believe that five or six years of study and thirty years' practical experience as a lawyer is a disqualification for membership of a law-making assembly. Whether there are too many lawyers in the House, I do not know. When I look around I see some of my colleagues whom I regard as reasonably expendable, but I do not regard myself as expendable. I think that it is necessary to have lawyers in the House. It might also be necessary to have trade union secretaries, but it would be out of order to pursue that and to seek to establish the basis of qualification for membership. We may raise that on the Bill dealing with disqualification of Members.

We are dealing here with a difficult point, but it is important that if we pass the Bill it should mean something, and it is eminently desirable that it should mean what was intended.

My hon. and learned Friend the Member for Northampton (Mr. Paget) said, following my right hon. and learned Friend the Member for Newport (Sir F. Soskice), that it was virtually impossible to have a felonious intention which is not in the course of some other offence. A simple example is that time after time the wretched man is arrested for some other offence, charged with it and brought before the court; and then his victim dies and there is added to the indictment for all the other offences an indictment for murder. Of course that is the issue tried, because we always try the most serious offence. It becomes the main charge. But he may have been under charge or even committed for trial on another offence.

No doubt my hon. and learned Friend the Member for Northampton will recall the famous case at Birmingham—was it Nodder?—of a man who was tried before Mr. Justice Swift. The circumstances did not reflect very much credit on Birmingham or the administration of justice. He was sentenced to seven years' imprisonment for the abduction of a girl. She had disappeared and her body had not been found. Then, while he was imprisoned, he either made voluntary statements or was tempted to make statements which provided some evidence to be followed up. The body was discovered, he was convicted of murder and he was hanged after all that. Was that a murder committed in the course of some other offence?

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

My hon. Friend will remember the case of Thomas, who was convicted for wounding with intent to murder and sentenced to seven years' imprisonment. Eleven months afterwards his victim died and he was brought from prison, retried and convicted of murder.

7.0 p.m.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I am obliged. I had overlooked that. I think that Podmore and the garage case is another example.

This is too serious a question to be dismissed as the Attorney-General attempted to dismiss it. The right hon. and learned Gentleman has said very little more in answer to the very careful examination put to him than "Leave it to me."

We have heard it said by many concerned in this matter that they are grateful for the fact that, although they have failed to avoid the inevitable, they have at least done their utmost to frustrate the incurable. The learned Attorney-General has made the even more unlikely claim that he alone can comprehend the unintelligible. We had the situation once before, over the Town and Country Planning Act, but if the interpretation of a Measure rests in one single bosom—and in one single, perishable bosom—it really will not help the courts to administer justice and juries to return verdicts according to the law.

In those circumstances, I press the learned Attorney-General to look at this with the seriousness which, I know, he normally does apply to such matters, and not merely to dismiss the arguments as irrelevant merely because he has not been able, offhand, fully to comprehend them. If, tomorrow, he will read fully the OFFICIAL REPORT of the debate, and consider the points which we have made, he will find that there really is matter for consideration.

Photo of Mr Edward Mallalieu Mr Edward Mallalieu , Brigg

After having spent a certain amount of time studying the Clause in private, and having listened to some hours of debate, there is only one point in this Clause upon which I feel in any way clear; that is, that there appears to be a general intention on the part of hon. Members on both sides of the Committee, and certainly in the mind of the Government, to abolish the doctrine of constructive malice. If we did not know that from the Explanatory Memorandum and from the Clause heading, we know it from the right hon. and learned Gentleman the Attorney-General.

As I understand it, this doctrine of constructive malice is the imputing of the intention to kill to someone with regard to whom that intention cannot otherwise be proved. The doctrine of constructive malice is the imputing of the intention to kill in certain circumstances. The point which I wish to raise is one which can be put very briefly. I feel sure that the learned Attorney-General will consider it, and with some effect, before we reach the Report stage.

What are the main circumstances in which this intention is imputed? They are, surely, that the killing was done … in the course or furtherance of another offence. My submission on the law is that it is precisely in these cases where the killing is done … in the course or furtherance of another offence that the law does impute this intention to kill which could not otherwise be proved. This is the very fact from which the law implies or deems that there was an intention to kill.

The intention of the Government appears to be carried out in the first two lines of Clause 1 (1), and then the last three lines of the subsection take away all that has been done. Therefore, although this subsection intends to abolish the doctrine of constructive malice, it simply does nothing of the sort, because of the use of the technical expression … malice aforethought (express or implied) … instead of some words showing that there was intention to kill—about which there has already been argument.

Therefore, my submission is that the introduction of this technical expression … malice aforethought (express or implied) … in the last three lines of the subsection, takes away all that is given in the first two lines of the subsection, and that, so far from having abolished the doctrine of constructive malice, nothing whatever has been achieved. If the Attorney-General really intends, as I am sure he does, to abolish this doctrine, I sincerely hope that he will, between now and the Report stage, consider that the effect of the introduction of that technical expression in the last three lines of the subsection is to render completely nugatory the effect of the first two lines.

Photo of Sir Frank Soskice Sir Frank Soskice , Newport (Monmouthshire/Gwent)

We have listened to the answer given by the right hon. and learned Gentleman to the points which we have raised. We think that we have pointed out the defects in the subsection. We are as anxious as he that the subsection should work, and should work as it is intended to do. His arguments have not really met our objections, and as he has not been able to say positively that

Division No. 8.]AYES[7.6 p.m.
Agnew, Cmdr. P. G.Finlay, GraemeLloyd-George, Maj. Rt. Hon. G.
Aitken, W. T.Fisher, NigelLongden, Gilbert
Allan, R. A. (Paddington, S.)Fletcher-Cooke, C.Lucas, Sir Jocelyn (Portsmouth, S.)
Alport, C. J. M.Fraser, Sir Ian (M'cmbe & Lonsdale)Lucas-Tooth, Sir Hugh
Amery, Julian (Preston, N.)Galbraith, Hon. T. G. D.McCallum, Major Sir Duncan
Amory, Rt. Hn. Heathcooat (Tiverton)George J. C. (Pollok)Macdonald, Sir Peter
Anstruther-Gray, Major Sir WilliamGibson-Watt, D.McKibbin, A. J.
Arbuthnot, JohnGodber, J. B.Mackie, J. H. (Galloway)
Armstrong, C. W.Gomme-Duncan, Col. Sir AlanMcLaughlin, Mrs. P.
Ashton, H.Gower, H. R.McLean, Neil (Inverness)
Atkins, H. E.Graham, Sir FergusMacmillan, Maurice (Halifax)
Baldock, Lt.-Comdr. J. M.Grant, W. (Woodside)Macpherson, Niall (Dumfries)
Baldwin, A. E.Grant-Ferris, Wg Cdr. R. (Nantwich)Maddan, Martin
Balniel, LordGreen, A.Maitland, Cdr. J. F. W. (Horncastle)
Barber, AnthonyGresham Cooke, R.Maitland, Hon. Patrick (Lanark)
Barlow, Sir JohnGrimston, Sir Robert (Westbury)Manningham-Buller, Rt. Hn. Sir R.
Bell, Philip (Bolton, E.)Grosvenor, Lt.-Col. R. G.Markham, Major Sir Frank
Bell, Ronald (Bucks, S.)Gurden, HaroldMarples, A. E.
Bidgood, J. C.Harris, Frederic (Croydon, N. W.)Marshall, Douglas
Biggs-Davison, J. A.Harvey, John (Walthamstow, E.)Maude, Angus
Bishop, F. P.Harvie-Watt, sir GeorgeMawby, R. L.
Bossom, Sir AlfredHeald, Rt. Hon. Sir LionelMaydon, Lt.-Comdr. S. L. C.
Boyd-Carpenter, Rt. Hon. J. A.Heath, Rt. Hon. E. R. G.Milligan, Rt. Hon. W. R.
Boyle, Sir EdwardHesketh, R. F.Molson, Rt. Hon. Hugh
Braine, B. R.Hicks-Beach, Maj. W. W.Monckton, Rt. Hon. Sir Walter
Braithwaite, Sir Albert (Harrow, W.)Hill, Rt. Hon. Charles (Luton)Morrison, John (Salisbury)
Brooke, Rt. Hon. HenryHill, Mrs. E. (Wythenshawe)Nabarro, G. D. N.
Brooman-White, R. C.Hill, John (S. Norfolk)Nairn, D. L. S.
Browne, J. Nixon (Craigton)Hinchingbrooke, ViscountNeave, Airey
Bryan, P.Hirst, GeoffreyNicholls, Harmar
Buchan-Hepburn, Rt. Hon. P. G. T.Holland-Martin, C. J.Nicholson, Godfrey (Farnham)
Bullus, Wing Commander E. E.Hornby, R. P.Nicolson, N. (B'n'm'th, E. & Chr'ch)
Burden, F. F. A.Hornsby-Smith, Miss M. P.Nugent, G. R. H.
Campbell, Sir DavidHorobin, Sir IanOakshott, H. D.
Carr, RobertHorsbrugh, Rt. Hon. Dame FlorenceO'Neill, Hn. Phelim (Co. Antrim, N.)
Cary, Sir RobertHoward, Gerald (Cambridgeshire)Ormsby-Gore, Hon. W. D.
Channon, H.Howard, Hon. Greville (St. Ives)Orr, Capt. L. P. S.
Chichester-Clark, R.Howard, John (Test)
Hughes, Hallett Vice-Admiral J.Osborne, C.
Cole, NormanHughes-Young, M. H. C.Page, R. G.
Conant, Maj. Sir RogerHurd A. R.Pannell, N. A. (Kirkdale)
Cordeaux, Lt.-Col. J. K.Hutchison, Sir Ian Clark (E'b'gh, W.)Partridge, E.
Corfield, Capt. F. V.Hyde, MontgomeryPickthorn, K. W. M.
Craddock, Beresford (Spelthorne)Hylton-Foster, Sir H. B. H.Pilkington, Capt. R. A.
Crosthwaite-Eyre, Col. O. E.Iremonger, T. L.Pitman, I. J.
Crouch R. F.Irvine, Bryant Godman (Rye)Pitt, Miss E. M.
Crowder, Sir John (Finchley)Jenkins, Robert (Dulwich)Pott, H. P.
Crowder, Petre (Ruislip—Northwood)Jennings, J. C. (Burton)Powell, J. Enoch
Cunningham, KnoxJohnson Dr. Donald (Carlisle)Price, David (Eastleigh)
Currie, G. B. H.Johnson, Eric (Blackley)Price, Henry (Lewisham, W.)
Dance, J. C. G.Jones, Rt. Hon. Aubrey (Hall Green)Prior-Palmer, Brig. O. L.
Davidson, ViscountessJoynson-Hicks, Hon. Sir LancelotRaikes, Sir Victor
D'Avigdor-Goldsmid, Sir HenryKaberry, D.Redmayne, M.
Deedes, W. F.Keegan, D.Rees-Davies, W. R.
Dodds-Parker, A. D.Kimball, M,Remnant, Hon. P.
Donaldson, Cmdr. C. E. McA.Kirk, P. M.Renton, D. L. M.
Doughty, C. J. A.Lagden, G. W.Ridsdale, J. E.
Drayson, G. B.Lambert, Hon. G.Roberts, Sir Peter (Heeley)
du Cann, E. D. L.Lambton, ViscountRobinson, Sir Roland (Blackpool, S.)
Dugdale, Rt. Hn. Sir T. (Richmond)Langford-Holt, J. A.Rodgers, John (Sevenoaks)
Duncan, Capt. J. A. L.Leavey, J. A.Roper, Sir Harold
Duthie, W. S.Leburn, W. G.Ropner, Col. Sir Leonard
Eden, J. B. (Bournemouth, West)Legge-Bourke, Maj. E. A. H.Russell, R. S.
Elliot, Rt. Hon. W. E.Legh, Hon. Peter (Petersfield)Schofield, Lt.- Col. W.
Emmet, Hon. Mrs. EvelynLindsay, Hon. James (Devon, N.)Sharples, R. C.
Errington, Sir EricLinstead, Sir H. N.Shepherd, William
Fell, A.Lloyd, Maj. Sir Guy (Renfrew, E.)Smithers, Peter (Winchester)

he will take this back and look at it again, I hope that may hon Friends on this side of the House will register their dissatisfaction with his answer by going into the Division Lobby.

Question put That the words "(express or implied)"stand part of the Clause:—

The Committee divided: Ayes 232, Noes, 176.

Soames Capt. C.Thomas, P. J. M. (Conway)Waterhouse, Capt. Rt. Hen. C.
Spearman, Sir AlexanderThompson, Lt.-Cdr. R. (Croydon, S.)Watkinson, Rt. Hon. Harold
Speir, R. M.Thornton-Kemsley, C. N.Whitelaw, W. S. I. (Penrith & Border)
Spence, H. R. (Aberdeen, w.)Tilney, John (Wavertree)Williams, Paul (Sunderland, S.)
Stanley, Capt. Hon. RichardTurner, H. F. L.Williams, R. Dudley (Exeter)
Stevens, GeoffreyTurton, Rt. Hon. R. H.Wills, G. (Bridgwater)
Steward, Harold (Stockport, S.)Vane, W. M. F.Wilson, Geoffrey (Truro)
Stewart, Henderson, (Fife, E.)Vaughan-Morgan, J. K.Wood, Hon. R.
Storey, S.Vickers, Miss J. H.Woollam, John Victor
Stuart, Rt. Hon. James (Moray)Wakefield, Sir Wavell (St. M'lebone)
Studholme, Sir HenryWall, Major PatrickTELLERS FOR THE AYES:
Temple, J. M.Ward, Hon. George (Worcester)Colonel J. H. Harrison and
Mr. E. Wakefield.
NOES
Ainsley, J. W.Harrison, J. (Nottingham, N.)Pentland, N.
Albu, A. H.Hastings, S.Plummer, Sir Leslie
Allaun, Frank (Salford, E.)Hayman, F. H.Popplewell, E.
Allen, Arthur (Bosworth)Healey, DenisPrice, Philips (Gloucestershire, W.)
Allen, Scholefield (Crewe)Henderson, Rt. Hn. A. (Rwly Regis)Probert, A. R.
Anderson, FrankHerbison, Miss M.Proctor, W. T.
Awbery, S. S.Holt, A. F.Pryde, D. J.
Bacon, Miss AliceHoughton, DouglasRandall, H. E.
Benson, G.Howell, Charles (Perry Barr)Rankin, John
Beswick, F.Howell, Denis (All Saints)Redhead, E. C.
Bevan, Rt. Hon. A. (Ebbw Vale)Hubbard, T. F.Reeves, J.
Blackburn, F.Hughes, Emrys (S. Ayrshire)Robens, Rt. Hon. A.
Bottomley, Rt. Hon. A. G.Hughes, Hector (Aberdeen, N.)Roberts, Goronwy (Caernarvon)
Bowden, H. W. (Leicester, S. W.)Hunter, A. E.Robinson, Kenneth (St. Pancras, N.)
Bowles, F. G.Hynd, J. B. (Attercliffe)Ross, William
Brockway, A. F.Isaacs, Rt. Hon. G. A.Royle, C.
Brown, Rt. Hon. George (Belper)Janner, B.Short, E. W.
Brown, Thomas (Ince)Jay, Rt. Hon. D. P. T.Silverman, Sydney (Nelson)
Burke, W. A.Jeger, Mrs. Lena (Holbn & St. Pncs, S.)Simmons, C. J. (Brierley Hill)
Butler, Mrs. Joyce (Wood Green)Johnson, James (Rugby)Skeffington, A. M.
Callaghan, L. J.Johnston, Douglas (Paisley)Slater, Mrs. H. (Stoke, N.)
Champion, A. J.Jones, David (The Hartlepools)Slater, J. (Sedgefield)
Chapman, W. D.Jones, Jack (Rotherham)Smith, Ellis (Stoke, S.)
Chetwynd, G. R.Kenyon, C.Soskice, Rt. Hon. Sir Frank
Clunie, J.Key, Rt. Hon. C. W.Sparks, J. A.
Coldrick, W.King, Dr. H. M.Steele, T.
Collick, P. H. (Birkenhead)Lawson, G. M.Stewart Michael (Fulham)
Collins V. J. (Shoreditch & Finsbury)Ledger, R. J.Stones, W. (Consett)
Corbet, Mrs. FredaLee, Frederick (Newton)Strauss, Rt. Hon. George (Vauxhall)
Craddock, George (Bradlord, S.)Lee, Miss Jennie (Cannock)Stross, Dr. Barnett (Stoke-on-Trent, C.)
Cronin, J. D.Lindgren, G. S.Summerskill, Rt. Hon. E.
Cullen, Mrs. A.Mabon, Dr. J. DicksonSylvester, G. O.
Daines, P.McGhee, H. G.Taylor, Bernard (Mansfield)
Dalton, Rt. Hon. H.McInnes, J.Taylor, John (West Lothian)
Davies, Stephen (Merthyr)McKay, John (Wallsend)Thornton, E.
Deer, G.McLeavy, FrankUngoed-Thomas, Sir Lynn
Dodds, N. N.MacPherson, Malcolm (Stirling)Viant, S. P.
Dye, S.Mahon. SimonWade, D. W.
Edwards, Rt. Hon. John (Brighouse)Mallalieu, E. L. (Brigg)Warbey, W. N.
Edwards, Rt. Hon. Ness (Caerphilly)Marquand, Rt. Hon. M. A.Weitzman, D.
Evans, Edward (Lowestoft)Mason, RoyWells, Percy (Faversham)
Fernyhough, E.Mellish, R. J.Wheeldon, W. E.
Finch, H. J.Mikardo, IanWhite, Mrs. Eirene (E. Flint)
Fletcher, EricMitchison, G. R.White, Henry (Derbyshire, N. E.)
Forman, J. C.Monslow, W.Wilkins, W. A.
Fraser, Thomas (Hamilton)Moyle, A.Willey, Frederick
Gaitskell, Rt. Hon. H. T. N.Neal, Harold (Bolsover)Williams, Rev. Llywelyn (Ab'tillery)
Gibson, C. W.Noel-Baker, Rt. Hon. P. (Derby, S.)Williams, Ronald (Wigan)
Gooch, E. G.Oliver, G. H.Williams, Rt. Hon. T. (Don Valley)
Gordon Walker, Rt. Hon. P. C.Orbach, M.Williams, W. T. (Barons Court)
Greenwood, AnthonyOswald, T.Willis, Eustace (Edinburgh, E.)
Grenfell, Rt. Hon. D. R.Padley, W. E.Winterbottom Richard
Grey, C. F.Paget, R. T.Woodburn, Rt. Hon. A.
Griffiths, David (Rother Valley)Palmer, A. M. F.Yates, Y. (Ladywood)
Griffiths, Rt. Hon. James (Llanelly)Pannell, Charles (Leeds, W.)Younger, Rt. Hon. K.
Grimond, J.Parker, J.Zilliacus, K.
Hale, LeslieParkin, B. T.
Hall, Rt. Hn. Glenvil (Colne Valley)Paton, JohnTELLERS FOR THE NOES:
Hamilton, W. W.Pearson, A.Mr. Holmes and Mr. J. T. Price.
Hannan, W.Peart, T. F.

Motion made, and Question proposed,

That the Clause stand part of the Bill.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

I was hoping that at this point we should have from the Attorney-General an explanation of what he now thinks this Clause means, in the light of the arguments and of the thought which he must have been applying to the Clause. Various views have been expressed as to its possible meaning—perhaps that is not unique among lawyers—but many seem to agree, including the hon. Member for Darwen (Mr. Fletcher-Cooke), that it is meaningless. However, that apparently did not stop the hon. Member for Darwen from voting. None the less, we are hoping to receive from the Attorney-General some explanation of why he now commends this Clause to us.

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

I do not intend to delay the Committee for very long because, as you were good enough to point out in the debate on the last Amendment, Mr. Williams, some of the things which it would have been appropriate to say on the Question "That the Clause stand part of the Bill" have already been said.

Nevertheless, I hope I may be forgiven if I ask the Attorney-General to afford us some further and better answer than he has so far vouchsafed to us in reply to the doubts cast on the drafting of this Clause or its efficacy for its avowed purpose, or any purpose. In the course of doing so, may I call the attention of the right hon. and learned Gentleman to one rather signficant fact that has nothing to do with the drafting of the Clause.

We have been debating Clause I for rather more than three hours, and I have no intention of saying anything about any of the Amendments which have been considered. But has it escaped the attention of the right hon. and learned Gentleman that so far, in more than three hours of debate, no Member except himself has said a single word in defence of the Clause as drafted? His own explanations, though no doubt offered in all good faith and with complete sincerity, have patently not satisfied his critics. My right hon. and learned Friend the Member for Newport (Sir F. Soskice) said what he thought was the construction of the Clause and what the consequences would be. We thought that the Attorney-General agreed. There was a good deal of further debate in which it became apparent that he did not agree at all. But he did not tell us at the end what the answer was to the points that had been put to him.

What is the answer? Is there one? In a matter of this kind, when a number of Members, whose qualifications to express an opinion on such a point are surely beyond dispute, have all combined to tell him that his Clause is either utterly unintelligible or perfectly meaningless, is it really good enough to offer no explanation at all in reply to those arguments?; added to the point which I have already made, that so far there is absolutely nobody in the Committee who takes the view which he has expressed except the Attorney-General himself, so far as we know, by any vocal demonstration of agreement. Of course we know that he did carry his point, and throughout our subsequent discussions the Government will carry a great many points on this part of the Bill and on Part II.

Photo of Mr William Williams Mr William Williams , Manchester Openshaw

I was very much obliged to the hon. Member when he said that he would not be spending too much time on the Motion "That the Clause stand part of the Bill". I hope that he has not forgotten that promise, because I think that he is going a little wider than he intended to do.

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

I am not proposing to discuss any of the matters which I am referring to. I am only saying, in support of my argument, that the Attorney-General ought really to give to the Committee a much better explanation than he has so far given. What I am saying to him is that he must not rely too much in rebuttal of my point, that no one spoke on his side of the Committee, on the fact that a majority voted on his side. I am pointing out to him that that is a phenomenon which will occur time after time.

Photo of Mr Philip Bell Mr Philip Bell , Bolton East

I am sure that the hon. Gentleman will remember Dr. Johnson's saying: I have found you an argument; but I am not obliged to find you an understanding.

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

I am very grateful to the hon. and learned Member, because I am sure he is perfectly right. We have found the Attorney-General argument after argument. It is perfectly true that if he gave us an answer and we did not accept the answer he might be entitled to say that that was our fault and not his, but he is not entitled to say that if he gives us no answer at all. What I am complaining of is that he has given us no answer at all. The first intervention by any of his supporters to support him has been that by the hon. and learned Gentleman himself, and only to that extent; and I am not at all sure how much of the argument he has heard, but I expect not very much.

I go back to the point that I was making that the Attorney-General must not rely, in rebuttal of my point that nobody—not even the hon. and learned Gentleman, in spite of his intervention—has had a single word to say in support of the Government's interpretation, on the fact that people voted for him, because the people who voted for him have not heard a single word of the argument and many of them voted in quite a different sense on something like the same point when left to their conscience and judgment, as they ought to have been left on this occasion.

We are attempting today to do a serious job, and it ought to be done in a serious and responsible way. If it has been said to the right hon. and learned Gentleman, not with malice aforethought but out of a genuine attempt to understand his speech and to understand the Clause, that at the end of the argument we do not understand it, that we believe that the Clause cannot be made intelligible or be made to mean anything whatever, then I say that before the Committee permits the Clause to stand part of the Bill the right hon. and learned Gentleman ought either to be able to tell us what it means, to assure us that it does mean what we all want to achieve, or, if he cannot be quite sure at this time on either point that he will, if without a Division we let the Clause stand part of the Bill, seriously consider between now and another stage whether it is really right to treat this serious matter in this frivolous way.

Photo of Mr Edward Mallalieu Mr Edward Mallalieu , Brigg

We have heard a great many arguments, which I will not go over again, about the meaning or absence of meaning of this Clause. I wonder whether, before we leave the Clause, the Attorney-General would answer this question. Does he admit that the Clause at least purports, regardless of what we think of it, to except certain killings from the law of murder, and that it does so on the grounds that there is in regard to them no express malice or implied malice? If he does, will he go further and agree that there is no point in such a Clause at all because the very essence of manslaughter already is that it is unlawful killing without any malice, express or implied. If I am right, then this Clause is mere surplusage in what it purports to say, and I would be grateful if the Attorney-General would address his mind to that question when he replies.

Here is a Clause purporting to except certain killings from the category of murder on the ground—and it must be on that ground, having regard to the last three lines of subsection (1) which begin with the word "unless"—that there is no malice expressed or implied. There is no need to except a killing from murder on that ground because it is already excepted and dealt with as manslaughter.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I hope that the Attorney-General will take the opportunity afforded him a few minutes ago, when my right hon. and learned Friend the Member for Newport (Sir F. Soskice) put one or two points to him in moving the Amendment which the Attorney-General complained that he was debarred from replying to because they might not be in order. They cannot be out of order on this discussion and it may be that the Attorney-General, in considering my point, may still find an opportunity to reply to them.

I want to express a modest dubiety about subsection (2), which has not been discussed at all, and which, I think, ought not to pass entirely without discussion. It is, of course, quite true that this is, in a sense, a complementary Clause. It does not make anything new; it creates an exception from the new proposals that have been made. Subsection (2) is intended to provide merely that when we impose the necessity for considering the same malice as would be implied from the killing taking place in connection with another offence or in furtherance of another offence, we exclude from that the killing which takes place in resisting an officer of justice.

That seems not unreasonable. On the face of it, it is not a Clause which makes a killing of a police officer a capital murder. It merely retains the ordinary murder verdict where the killing took place in the course of resisting an officer of justice. But an examination of the Clause, I think, does indicate that it has introduced one or two new curiosities and difficulties.

First, the Act does not contain, nor does the Interpretation Act, any definition of an officer of justice. It may be said that, to an extent, the words have already been judicially interpreted, because there has been a long series of cases where this doctrine has been applied. The doctrine was stated seventy or eighty years ago. What is an officer of justice? Mr. Justice Stephen, in his Digest of the Criminal Law, said that the expression "officer of justice" included every person who had the legal right to do any of the acts mentioned whether he was an officer or a private person. That is a very wide definition.

If one couples that with the somewhat dubious words "lawful arrest" and "legal custody", one then begins to find that the provision embraces a very wide range of possibilities. It appears from this that an officer of justice may be a police officer, or a private person who is trying to make an arrest on sight of a felony, as private persons are entitled to do. But, then, who else may it be? Is a county court bailiff an officer of justice? Is someone acting under a county court warrant to execute a distress warrant an officer of justice?

7.30 p.m.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

As my hon. Friend says, is a process server an officer of justice?

Will the words apply to someone acting in the course of levying a distraint for rent, for example? There is a whole series of possibilities under the various Acts, because, in some cases, the landlord himself may levy the distraint and often does. Is he, Drest in a little brief authority". an officer of justice?

Next what of the words "legal custody"? Is it any custody by any court of any jurisdiction? Is a ward in Chancery included? A ward in Chancery is not, of course, in custody, but is the ward when kept in the care of the court? Is a mental defective, or someone detained for his care and protection, in legal custody? All such people are, surely, in legal custody.

The Report of the Royal Commission, paragraph 79, says: Although it was the accepted doctrine of the older authorities, such as Hale"— not an ancestor, I may say— … Foster and East, that anyone who caused death in resisting an officer of justice was guilty of murder, some more modern writers have doubted whether this rule was not too severely stated and stricter than was justified by any of the reported decisions or judicial dicta. Whatever may have been the position a century ago, the rule has undoubtedly been limited as a result of more recent judicial decisions … The Report quotes the Porter case and the Appleby case, the latter, of course, being a fairly recent one. … but the law as laid down in these cases cannot be said to be entirely clear. It was held that in cases of resistance to an officer of justice' a much less degree of violence' may justify a verdict of murder than in other circumstances, but that nevertheless the violence must be' real violence', amounting to more than mere refusal to submit to arrest and more than clear obstruction of the officer in the execution of his duty. The meaning of' violence' has not been defined, but it has been suggested that it connotes an intentional attack as opposed to merely pulling in order to break clear. The new Clause goes a lot further than that. It refers to a killing done in the course or for the purpose of resisting an officer of justice. or of resisting or avoiding or preventing a lawful arrest. What is a killing done for the purpose of preventing a lawful arrest? Does it apply to the case of a man running in the street, followed by a police constable, who in the course of his running, kills someone by the use of a certain measure of violence in pushing a person to one side?

Photo of Mr William Rees-Davies Mr William Rees-Davies , Isle of Thanet

Take the ordinary case, where a robbery has been done. The two parties are making their getaway, and one man covers the other. The police officers come up. The man is clearly preventing a lawful arrest by murdering a police officer or one of the persons concerned.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

Yes, but, of course, the hon. Gentleman's mind does run to the over-dramatic. Take the case of the ordinary simple sort of man, as I am—the case of an ordinary "bloke" who is trying to avoid being "pinched." It may be that he has not turned up to answer a summons for riding a bicycle without a light, and the whole Tory bench has issued a warrant. It is a case of lawful arrest. The whole point of this provision turns on lawful arrest; there are no other words.

Clearly, lawful arrest can include arrest by a county court bailiff under a judgment summons because someone has not paid "two bob" a week to the chap he agreed to buy his clothes from on the "Kathleen Mavourneen" a year or two ago. That, of course, is lawful arrest. There can be no argument about it. Those words are, surely, reasonably intelligible. Suppose I do not want to be arrested, and suppose that I start to run, with a police constable after me. What is the degree of violence in pushing away a civilian which would be accepted within the ambit of this subsection?

This Clause is clearly well intended and well meant; I think it could be extremely useful, if it can be reduced to terms which indicate its meaning with clarity. It might be an extremely useful provision, and one which I would welcome. I do not desire to say one word which would be critical of the intention of the Government. I believe that their intentions are honourable. I do not remember saying that before in the whole time I have been in the House of Commons.

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

I am not sure that my hon. Friend is right this time.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

At any rate, I am not here to condemn what the Clause appears to mean to those who take up another view of its intentions.

However, it really is not good enough for the Attorney-General to say we must turn to some paragraph or other and see what the Royal Commission says so that we may know what this Clause means. It will not do to say that this Clause means what the Royal Commission intended by what it said in paragraph 73, and that, really, is as far as the Committee has got in more than three hours of debate today. [Interruption.] That is quite right. I would willingly give way in order to hear an explanation. I always regard myself as the most humble and unassuming and kindly of men.

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

Except the hon. Gentleman the Member for the Isle of Thanet (Mr. Rees-Davies).

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

Yes, except the hon. Gentleman the Member for the Isle of Thanet (Mr. Rees-Davies). No one ever annoys me by attacking anyone else. It is only when people disagree with me that I get annoyed.

Something ought to be done about this. The Attorney-General has his opportunity now. He may have said that it would be out of order to deal with the point some time ago, but it would clearly be very much out of order if he did not give us his explanation now, because this is the last chance we have of knowing what the Clause means before we are called upon to accept or reject it. I therefore venture to offer the right hon. and learned Gentleman the opportunity now of explaining to the Committee just what is intended by this Clause and just what he now thinks it means after listening to the criticisms of the Clause which have been made in some detail.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

I have listened to a great deal of debate on this Clause. We had a debate on the first two Amendments, and a debate on the third Amendment covering a lot of the ground covered already on the first two Amendments. We have now had debate on the Question, "That the Clause stand part of the Bill". I am making no complaint, but I sought to explain what the Clause did in the debate on the first two Amendments, and I sought again to explain it in the debate on the third Amendment. I really cannot add to the explanation I then gave.

What I can say to the hon. Gentleman the Member for Oldham, West (Mr. Hale) is that none of the criticisms which have been put forward on his side of the House has in any way shaken my belief and conviction that this Clause achieves the result intended, namely, the abolition of the doctrine of constructive malice. I know that the hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) says that I have given no explanation. I quite understand that he does not accept the one I have given. Indeed, when I rose last time to say something to the right hon. Gentleman the Member for Newport (Sir F. Soskice), the hon. Member for Nelson and Colne misquoted me immediately thereafter. I make no complaint of that. The obvious purpose of this provision is, as the Clause heading says, to abolish "constructive malice".

I have dealt, I think, with every point raised during the debate, including the last point raised in the course of the last Amendment by the right hon. and learned Member for Newport. It is true, and I will say it again—I hope that the hon. Member for Nelson and Colne will appreciate it this time—that when a person is committing a murder, he may, and does usually, at the same time commit a number of other offences; but the fact that that has happened does not mean that the murder is committed in the course or furtherance of those other offences. A person may commit an assault in the course of committing a murder, but he is not likely to commit a murder for the furtherance of an assault.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

May I ask the Attorney-General this question? If I hit somebody on the head with an axe, is that an offence whether he dies or whether he does not? If he does die, the offence would be murder. Is not the murder "in the course" of the offence of hitting with the axe? It may not be in furtherance, but it must always be "in the course … of". That seems perfectly clear.

Photo of Mr Michael Maitland Stewart Mr Michael Maitland Stewart , Fulham

There was one comment in the speech of my hon. Friend the Member for Oldham, West (Mr. Hale) that caused me to look carefully at the wording of the Clause. I was very worried by his statement that subsection (1) laid down the general policy and that subsection (2) made an exception to that rule. Looking more diligently at the Clause, however, an anxiety has come into my mind. Perhaps the Attorney-General can resolve it.

Subsection (1) classifies killings for this purpose into two groups: killings done in the course or furtherance of another offence and killings not so done. I may describe them briefly as killings in furtherance and killings not in furtherance. The subsection then says that both those two types of killing are to be treated in the same manner in respect of the amount of malice that has to be proved. I take it that I am right in supposing that the purpose of subsection (1) is to say that whether it is a killing in furtherance or a killing not in furtherance, they are both the same so far as concerns the amount of malice which has to be proved. That I take to be the purpose and effect of subsection (1).

If that is so, what is the purpose or effect of subsection (2)? It states that certain types of killing are to be regarded as killings in furtherance. Suppose, however, that they were not so regarded. From the point of view of subsection (1), what would be the difference? If killing in resisting arrest is, as subsection (2) makes it, a killing in furtherance, one has to prove about it the same amount of malice as would have to be proved if it were a killing not in furtherance. If subsection (2) were not there and killing in resisting arrest were therefore regarded as a killing not in furtherance, the amount of malice that would have to be proved about it would still be exactly the same.

To repeat the point, the effect of subsection (1) is to make killings in furtherance and killings not in furtherance exactly the same in regard to the amount of malice which has to be proved. If that is so, surely it does not matter for the purposes of subsection (1) whether any particular killing is regarded as a killing in furtherance or a killing not in furtherance.

Subsection (2) states expressly: For the purposes of the foregoing subsection, a killing … done in resistance of arrest shall be regarded as a killing in … furtherance"; but for the purposes of subsection (1), it makes no difference whether a killing is regarded as a killing in furtherance or a killing not in furtherance. What, therefore, would be the difference in effect of the Clause if subsection (2) were not included? It seems to me an important question and one to which we ought to have an answer before we proceed to vote on the Clause.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

Had the hon. Member been here earlier, he would have heard me explain what subsection (2) does.

Photo of Mr Michael Maitland Stewart Mr Michael Maitland Stewart , Fulham

I am quite well aware of what subsection (2) does. It tells us that a killing in resistance of arrest, and so on, is to be regarded as a killing in furtherance. Granted that it does that, what I am asking, and what the right hon. and learned Gentleman has at no time dealt with, is what follows from that in view of what subsection (1) says. What difference would there be if subsection (2) were not there?

7.45 p.m.

Photo of Sir Frank Soskice Sir Frank Soskice , Newport (Monmouthshire/Gwent)

I am rather disappointed at the Attorney-General's attitude. I assure him that he will not encourage my hon. Friends on this side of the Committee to give an easy passage to the Bill if he is niggardly in refusing to explain points which are courteously put to him.

I feel sure that my hon. Friends are in two minds, in view of the Attorney-General's attitude, about the attitude that they should adopt. Speaking for myself, this would be my advice to my hon. Friends. We have not, as we have made clear, felt altogether reassured by the Attorney-General's answers on a number of the anxieties which we have voiced. We cordially approve of the purpose of the Clause as expounded to us by the Attorney-General. What we feel anxious about is that owing to possible defects in its composition—may I have the Attorney-General's attention? Considerable powers of intellect are required both to talk and to listen, and I hope that the right hon. and learned Gentleman will make sure that he is listening.

I was slating our anxiety on this side of the Committee. Approving, as we do, the purposes of the Clause and anxious, as we are, that it should be fully implemented by the wording and text of the Clause, we have indicated the uncertainties that we feel. We still feel those uncertainties and we still hope that the Attorney-General, between now and the Report stage, will give further consideration to those points. It would be a great disaster if, because of inadequate drafting or imperfection in the language which is used, the whole thing became, as we fear that it might become, a disappointment to all of us.

Having voiced those doubts and pressed them upon the Government, we feel that the right course—at least, this is the advice which I give to my hon. Friends—would be not to challenge a Division on the Question, "That the Clause stand part of the Bill". But if we do not challenge a Division, I reassert and emphasise to the Attorney-General that he should give serious consideration to the many points which have been urged upon him and to which he has given no adequate reply.

Question put and agreed to.

Clause ordered to stand part of the Bill.