Clause 3. — (Provocation.)

Orders of the Day — Homicide Bill – in the House of Commons at 12:00 am on 28th November 1956.

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Photo of Mr Anthony Greenwood Mr Anthony Greenwood , Rossendale 12:00 am, 28th November 1956

I beg to move, in page 2, line 15, to leave out "a reasonable man" and insert "him."

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

I think that with this Amendment could be taken the Amendment in page 2, line 19, to leave out "a reasonable man" and insert "him."

Photo of Mr Anthony Greenwood Mr Anthony Greenwood , Rossendale

In paragraph 124 of the Royal Commission Report we find: Provocation can never render an unlawful homicide excusable or justifiable; but if the act by which death is caused is done in the heat of passion caused by provocation, this may reduce the crime from murder to manslaughter. It is not all provocation that suffices to reduce the quality of the crime, but only provocation of such a nature and degree as the law recognises as adequate for that purpose. In the course of the Royal Commission's discussions the Commission had put to it two propositions for amending the law with regard to provocation. The first was that provocation should be extended to cover provocation by words as well as by deeds, and that is included in Clause 3. The other suggestion was that what is called the test of the "reasonable man" should be abandoned. The first suggestion was accepted by the Royal Commission. The second, unfortunately in our view, was not accepted.

8.30 p.m.

The law of provocation is largely based on judicial decisions of the seventeenth century. I understand that the position has been clarified by two modern cases, the case of Mancini against the Director of Public Prosecutions and the case of Holmes against the Director of Public Prosecutions. The effect of those two decisions has been that for the provocation to be regarded as sufficient to reduce a homicide from murder to manslaughter, two requirements must be fulfilled.

In the first place … the provocation must be gross and … such as might cause a reasonable man to lose his self-control and use violence with fatal results. The second requirement is that … the accused must in fact have been deprived of his self-control under the stress of such provocation and must have committed the crime while still so deprived. If I am right, the judge has to decide whether there is sufficient material for a jury to form the view that the accused acted under such provocation, and the jury must take into account four factors. The first factor is the nature of the act; the second, the time between the provocation and the killing; the third, the conduct of the offender during that period; and the fourth, any other circumstances which show the offender's state of mind.

There appear to have been two conflicting tendencies over the past two centuries. On the one hand, the courts have steadily limited the scope of provocation which is recognised as adequate to reduce murder to manslaughter, and have subjected it to more and more strict and narrow tests. On the other hand, the increasing severity of the law has, to some extent, been offset by greater leniency in its application.

That leniency has been shown by judges, by juries and by Home Secretaries. I think that at this stage it would be only fair to say that on the only occasion when I went to the Home Office in order to plead the case of a man who had committed a murder under what I thought was great provocation, I was met by the Permanent Under-Secretary with the greatest courtesy and fairness, and I thought that great humanity was shown in the way in which that case was treated.

The increasing severity of the law was explained by the present Lord Chief Justice in the case of the King v. Semini in 1949. He said that at a time when society was less secure than it is today, and when the carrying of swords was as commonplace as is the carrying of walking-sticks today, the courts took a view which was much more lenient towards provocation than it is today, when we live in a more settled form of society, and when, as he put it: … life and property are guarded by an efficient police force and social habits have changed. Upon that, the Royal Commission commented, in paragraph 135 of its Report, as follows: But the advance of society has also led to an increased concern for the individual prisoner and to a desire, so far as possible, to take account of the characteristics and mental reactions of the individual in applying the law. This has shown itself in the readiness of the courts and of the Executive to give weight to provocation insufficient in law to extenuate murder. The "reasonable man" test to which I referred earlier, appears, according to the Report of the Royal Commission, not to have been applied before the middle of the last century. For a long time, the question whether the provocation was sufficient to reduce the offence to manslaughter was decided by the judge as a matter of law; but, in the last century, the courts established the rule that the question was one for the jury to decide as a matter of fact, and that in doing so, the jury should consider whether the provocation was sufficient to deprive a reasonable man of his self-control. The courts emphasise that … different degrees of mental ability … should not be taken into account.

Though I speak as a layman, I understand that that rule of the last century was confirmed by the Court of Criminal Appeal in the case of the King v. Lesbini in 1914, and in Mancini's case in, I think, 1942. When the Royal Commission considered this matter there appear to have been not many witnesses—and, I think, one should take this into account—who suggested that this "reasonable man" test should be abolished, but those who did so are, I think, entitled to our respect and consideration. One of the bodies which supported that proposition was the Society of Labour Lawyers, led by Mr. Justice Donovan, as he now is. Another person was a former Member of this House, Mr. Basil Nield, who said that, in his view, The jury should be permitted to determine the effect of the provocation on this particular man whom they have seen and may have heard, and whose whole circumstances have probably been described to them. Our contention is that it is quite arbitrary and unfair to take as the test the effect that the provocation would have on a reasonable man. We say that the test ought to be the effect of the provocation upon that man, in those circumstances, and in the light of all the evidence which is available to the court. The Royal Commission itself went so far as to say that there are many people whose race, temperament or mental condition may render them especially susceptible to insults and affronts. It is not without interest to notice that three of the leading cases on his subject involve respectively Semini, Lesbini, and Mancini.

I think it is quite possible that particular classes of subjects in particular parts of the country and in particular conditions might well be extremely sensitive to provocation, and much more sensitive than reasonable people would be in ordinary conditions. I can think of, for example, Her Majesty's Jewish subjects in the East End of London at the time when the Fascists were campaigning against them. I can think of circumstances today in which West Indians, although being perfectly reasonable, might nevertheless be much more likely to be provoked into violent action than would be the case if they were living in normal circumstances and not feeling that there was a good deal of opinion which is, I think, harshly critical of them, at a time when they are living a form of life which to many of them must be very strange.

I hope the Committee will forgive me if I rehearse once again the details of the case which I put on the Second Reading of this Bill. That was a case which affected two Jugoslavs in my own constituency. One of them had fought as a partisan in Jugoslavia during the war, and his father, two brothers and three sisters had been shot by the Germans. The other, the man who was murdered, was said to have been a quisling in Jugoslavia, fighting with the German army.

One day the Jugoslav who had fought with the partisans was crying over the fate of his family, and the Jugoslav who had been a quisling gibed at him and taunted him for what he was doing. The former partisan picked up an axe and killed the former quisling. I do not think that most of us, more or less reasonable men, would have reacted in that way, but that man in those circumstances and with that background should surely have been entitled to the protection of the law because of the gross form of provocation to which he was subjected. Nevertheless, he was hanged on 26th January, 1951.

Another case which must I think occur to all of us is the case of Ruth Ellis. In Ruth Ellis's case some time had elapsed between the basic provocation to which she was subjected and the actual deed of violence to which she resorted. Probably an ordinary responsible person would have cooled down during that time, but in her neurotic condition I imagine that Ruth Ellis's state of mind got worse and worse the longer the interval was, and the greater the provocation seemed to be. When one remembers that Ruth Ellis had not only lost the man she loved but that she had also had to undergo an abortion to remove a child of which her lover had been the father, it is not difficult, I think, to imagine something of the state of mind which she must have been in.

I think it is really monstrous that we should seek to apply to anybody in the position and the condition of Ruth Ellis or the Jugoslav to whom I have referred a test which may be perfectly proper in the case of a reasonable man. It is because my hon. Friends and I feel as we do on this issue that we have moved to delete the words "a reasonable man" and to substitute "him", so that we can treat cases like the Jugoslav and Ruth Ellis with greater humanity in the future than we have done in the past.

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

If I may, I should like to begin by congratulating the hon. Gentleman the Member for Rossendale (Mr. Anthony Greenwood) on the excellent review which he gave on the development of the law in relation to provocation. He gave an excellent summary, referring to the leading cases, and it is not necessary for me to traverse the same ground in replying. The Amendment raises a very serious point, and, if I may say so, without wishing to be critical, I think the question involved is, perhaps, the most serious one which we have had under consideration today.

This Clause is designed to do one thing, namely, to carry out the recommendation of the Royal Commission in relation to provocation by words. As a matter of drafting, it is not a very easy thing to achieve, because the law as it at present stands does not wholly rule out provocation by words, although, as a rule of practice, it can be admitted only in very exceptional circumstances.

The issue raised by this Amendment is as to the standard by which the provocation is to be judged. As I see it, there are three possible standards. The first is the standard suggested in the Amendment, that a jury should be asked to consider the effect that the provocation would in fact have had on the accused. That is what the Amendment proposes, and that is what was considered by the Royal Commission. The second standard is the standard which is now the law, namely, the effect that the provocation would have had on a reasonable man not suffering from any disability.

The third possible standard, which was not, I think, directly considered by the Royal Commission but was put forward by that committee over which my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) presided, was the effect that the provocation would have had on a reasonable man suffering from a disability similar to that of the accused. In that latter category, the instance was given of provocation to a one-legged man by kicking him on the stump of his injured leg, which, of course, would be a form of provocation which would not apply to a man who had not suffered that disability.

At first sight, I must say that the idea of applying the standard either of the application of provocation on the man himself or of provocation on a reasonable man suffering from similar disabilities appears very attractive. However, I think that the Royal Commission was right in finally not recommending any alteration of the present position. The hon. Member for Rossendale cited the case of two Yugoslavs. I cannot pretend to be familiar with the details of that case, but of this I am sure, that, although the jury came to the conclusion that there was not provocation sufficient to reduce the offence to manslaughter, all the circumstances in relation to the offence, in particular the nationality and circumstances of the accused, must have been taken into account before the sentence was carried out.

Let us consider what the effect of adopting this Amendment would be, not in cases like that of the two Yugoslavs, but, for instance, in the case of a man who is very bad tempered—who is known to be of an explosive temper. If he is the accused, the effect of the provocation on him would be likely to be very much greater than the effect of the provocation on a good tempered man. Therefore, if that were the test to be applied, one might have a case of murder reduced to manslaughter if the accused was bad tempered, it still remaining murder if he was good tempered. I put that forward as a very real difficulty about applying that test, which is the test suggested in the Amendment.

8.45 p.m.

I would also like to put forward, because one is considering the tests—that is the question raised by the Amendment and it is important—the alternative suggestion that if one does not take the test of the effect on the accused, no jury could, or would, wholly disregard those circumstances. If, however, one does not take that as the standard, if one takes the standard of the provocation on a reasonable man suffering from a similar disability, one gets into the difficulty of where to draw the line.

It would not be difficult, for instance, for a jury to assess fairly accurately the degree of provocation which would be felt by a man who was kicked on the stump of his leg. It would not, perhaps, be so easy for a jury to assess the degree of provocation suffered by someone suffering from sexual abnormality or incapacity or, perhaps, some facial disfigurement. Is one to stop there? If it were established, for instance, that the accused was suffering from a very high blood pressure, would one have to apply the test of a reasonable man suffering from that disability? There is, therefore, real difficulty in finding a completely satisfactory standard for the application of the principle in relation to provocation.

There are arguments which can be advanced against any standard that is put forward. The hon. Member has criticised the present standard—that is to say, the effect that the provocation would have on a reasonable man. I hope I have satisfied the hon. Member that there are valid criticisms of his Amendment. I hope I have also indicated that there are valid criticisms of the third standard.

It is to be borne in mind in considering the law of provocation that a person with a disability of such a nature and degree as to make him acutely sensitive might be able to show that the provocation upon him had, because of his sensitivity, led to him having at the particular moment a disability amounting to a serious abnormality of mind. I simply draw attention to the fact that that type of case might come within Clause 2, which we have just been discussing.

Our feeling is that we were right—I hope that the Committee will agree—to seek to make the change with regard to provocation that the Royal Commission recommended and that we were also right, having reviewed the matter again, to adopt the conclusion to which the Commission came on the other aspect that was before it: namely, that we should retain the existing test. As the Royal Commission said in paragraph 145: The application of this test does not therefore lead to any eventual miscarriage of justice. At the same time, as we have seen, there are serious objections of principle to its abrogation. In these circumstances we do not feel justified in recommending any change in the existing law. Having considered the matter with great care, because there are many who feel very attracted by an alteration of the present test, the Government have come to the conclusion that we must leave this as it is. I hope, therefore, that the Committee will ultimately agree with that view and at least recognise that we have given serious consideration to this matter.

Photo of Sir George Benson Sir George Benson , Chesterfield

I quite agree with the Attorney-General that this is a very difficult problem. I doubt very much whether the two sides of the Committee will ever see eye to eye upon it, because they are fundamentally divided on the basic problem, that is, of the death penalty.

In effect, the Attorney-General's case is that the only possible criterion is whether a perfectly normal man would be so irritated as to commit murder. I am not sure, if that is to be the criterion, that this Clause gives any additional protection of any kind whatsoever against the death penalty, because I doubt very much whether normal, reasonable men ever do commit murder. Surely every man who becomes so angry, or irritated, or enraged, as to commit murder comes outside the category of the normal man. The fact that he has committed murder excludes him.

Presumably, the Bill is designed to reduce the number of executions. If this Clause gives no protection it really is not worth the paper it is printed on. The arguments put forward by the Attorney-General are really not arguments against our Amendment. They are arguments against any standard. One may just as well leave the Clause out of the Bill.

I would suggest one further thing. I presume that the basic case of the Government for retaining any form of the death penalty is that the death penalty is the unique deterrent. It may be in the case of a reasonable man, but if we insist upon retaining the criterion of the reasonable man, and upon excluding the unreasonable man, we are really in effect saying that the death penalty shall apply not to the people who are likely to be influenced by the deterrent but to the people who will not be deterred by it.

The more one considers the Clause the more one sees that it is self-contradictory, and that it gives nothing. If the Government are not prepared to accept any modification of it they may just as well withdraw the Clause and leave the law as it is at present.

Photo of Mr Harford Hyde Mr Harford Hyde , Belfast North

I have listened to the greater part of our discussion today, and I must say that I agree with my right hon and learned Friend that this is the most important question which has come before the Committee. I also agree with the hon. Member for Chesterfield (Mr. Benson) that it is extremely difficult. It has certainly created very great difficulty in my mind.

The Inns or Court Committee, which made recommendations for the amendment of the law of murder, some of which have been accepted, considered this question, and it gave the illustration of the man with the stump leg whom my right hon. and learned Friend has mentioned, but it did not make any specific recommendations for the abolition of the test of the reasonable man, although it expressed sympathy with it. Similarly the Royal Commission expressed sympathy, too, although it came down on the side of retaining the test.

The hon. Gentleman the Member for Rossendale (Mr. Anthony Greenwood) mentioned the case of the Yugoslavs and of Ruth Ellis, and I should like to mention a third case which focused public attention on this question—the case of Clarence Ward. Ward was a man suffering from acute stomach ulcers, and in that condition, in a frenzy, he killed a baby as a result of completely losing his self-control. He was convicted of murder, sentenced to death, and his appeal was dismissed. There was a very great public outcry, but I am not suggesting that that affected the Home Secretary. Ward was, in fact, reprieved. That was a case where it certainly seemed on the face of it to be very difficult to apply this test and yet to agree that justice is done.

I must say that I am very disturbed in my mind on this point, and I find it extremely difficult not to accept the argument which the hon. Member for Rossendale has put forward with such eloquence and persuasion, but I have also read the remarks which have been quoted of the present learned Recorder of Manchester, Mr. Basil Nield, who was a Member of this Committee. I was swayed by them.

On the other hand, I have looked very carefully at the other evidence given before the Royal Commission, and although it is with very great reluctance, because I think the question is very narrow, I am inclined on balance to be guided by the judgment of the Royal Commission which, after very mature consideration, came to the conclusion that there should not be any change in this branch of the law.

Photo of Mr Frederick Willey Mr Frederick Willey , Sunderland North

Like the hon. Member for Belfast, North (Mr. Hyde), I have real doubts about this. It is quite clear that there is every ground for having doubts. If I may declare my position, it is the reverse of the hon. Gentleman's; on balance, I agree with my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood). I do that with very real hesitation. In the first place, I think that we have to pay serious attention to the Royal Commission. We are accepting one of the recommendations of the Royal Commission, and I think we should regard the whole of the advice given us on provocation and not just take advantage of one recommendation. That means that one has to be very careful before accepting the present Amendment, and I do so with a great deal of hesitation.

The Royal Commission was given an express task to perform, and it performed that task with the greatest deliberation and care. It decided against the proposal made by way of the present Amendment. In spite of what has been said about the contradiction of the reasonable man behaving in an unreasonable way, in fact the courts have relied very much and very successfully upon the concept of the reasonable man, and I think that we have to be careful if we take a subjective view how far we go, because in the first place justice must have a universal element. If it is broken down too much and made too much a matter of decision in each individual case we lose the thread of justice which runs through all these decisions. These are two very grave objections to the present Amendment, but in spite of those objections, which certainly caused me to hesitate a good deal about this, I think there is a lot to be said on its side.

9.0 p.m.

First, we must recognise the fact that if we approve the present Clause we are doing something which is against the advice of the courts. We are extending the scope of provocation when it is quite clear that the trend of judicial decision has been against that extension. This means that we are getting two different views of the reasonable man. We are having a statutory reasonable man, we are having a common law reasonable man. This is very germane to the Clause. We are taking a subjective test in so far as we say whether there was provocation at all, and then we decide whether there was provocation within the Clause by referring to the reasonable man. But we, as Parliament, are taking a contrary view of the reasonable man to that taken by the courts.

It would be wrong, for this reason, to accept the concept of the reasonable man for the purpose of the Clause. If Parliament says that it disagrees with the courts and with the view taken over the past years by the courts on provocation, Parliament must decide the circumstances in which provocation should be accepted for the purposes of the Clause. It is unfair to say that, not accepting the view taken by the highest court in the land on this question, we expect this to be decided within the concept of the reasonable man. As we are deciding, as Parliament, contrary to the experienced views of the judiciary, we must put the question before the courts in terms within which they can properly decide it. That is the overriding argument which pursuades me against my first approach towards the Clause.

The second argument is that it is inherent in the step which we are taking in the Clause to abandon the concept of the reasonable man for the purposes of the Clause. No one is arguing that if we consider ours to be a developing and more civilised society, the scope of provocation is not decreasing. I do not think that anyone in the Committee would argue the contrary, but in the Clause we are doing something which is entirely different. We are saying that although we recognise that we are not as uncivilised as we were 100 years ago and are less likely to be provoked, we are extending the scope of provocation to provide for the individual circumstances of a prisoner. We are saying that we will not get justice as we wish it to be administered unless we extend the scope of provocation, not because we think that that in itself is justifiable, but because it is only in that way that we can make allowances for the character and conditions of the individual prisoner.

If that is the case, we might as well be logical and say whether provocation for the purposes of the Clause should be subject to a special test. In extending the scope of provocation we are saying that we must pay regard to the circumstances of the accused person. Having said that, it is illogical to provide a cautionary measure for the extent of provocation by reference to the concept of a reasonable man. I think that the right hon. and learned Member for Chertsey (Sir L. Heald) is with us on this point because I think that we can disregard this third possibility.

It is only a fiction to provide for a subjective test. If we said that we would decide whether a one-legged man was provoked by introducing a fictitious one-legged man, and then we considered whether a reasonable one-legged man would be provoked, the jury would then consider whether the man had in fact been provoked. I do not think we should make this more difficult by introducing a further fiction. The best thing to do is to say that we are driven to the position, purely from the point of view of logic, to accept a subjective test. It is only on that ground that we are now extending the law of provocation, but in practice it will be found that juries will find it impossible to extend this. The only simple course to take, and the only straightforward one to take, is a subjective test.

Therefore, I hope that the Government will think about this again, and will accept the position that it would be better to agree to the real reasons which have led to the extension of the law about provocation and to accept a subjective test.

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

Like my hon. Friend the Member for Sunderland, North (Mr. Willey) I had some difficulty in deciding what was the proper course to take on this Amendment, though unlike him I have a natural inclination to agree with my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood), rather than a natural reluctance.

I was much helped in making up my mind by the clear exposition given by the Attorney-General. If I followed him correctly, he said that there were three possible standards of provocation which we could take; first, that of the "reasonable man," as is suggested in the Clause; secondly, the accused himself, as is suggested in the Amendment; and, thirdly, the reasonable man, subject to a disability the same as or comparable to that from which the accused suffered.

Hearing those three possible standards put forward, I was attracted as a layman to the third, because it seemed to me reasonable to say that if a man has only one leg, and he is kicked on the stump of that leg, that is a peculiar degree of provocation of which we ought to take account, and that therefore the kind of fictional character whom the court ought to summon up in its mind is a reasonable man with one leg.

Photo of Sir Ian Fraser Sir Ian Fraser , Morecambe and Lonsdale

We want a one-legged judge.

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

Very possibly, though I think that that would restrict the opportunity of trying cases of that kind. What about other kinds of disability? Here I must speak as a layman, and perhaps the Solicitor-General or other hon. and learned Members may be able to help me.

Suppose a man has at some time in his previous life been in prison for a disgraceful offence, but that many years have since elapsed. Then, at some much later stage in his life, in addition to other forms of provocation and insult, he is taunted about this disgraceful episode in his private life. In assessing provocation, what is the yardstick of the court? A reasonable man who in his past life has been in prison for a disgraceful offence or a reasonable man who does not suffer from that disability?

In other words, does the word "disability," which in the examples that we have examined so far includes that of having only one leg, include a disability of reputation of that kind? It would certainly include a very wide range. If I followed the argument correctly, the court was not supposed to take into account the fact that the one-legged man had only one leg and was therefore peculiarly subject to a particular form of provocation. Is the court to say also that the man with a disgraceful episode in his past life must not have taken into account the fact that he is peculiarly subject to that particular form of provocation? Is that to be allowed? If not, what is this reasonable man whom we are considering? Is a reasonable man one who has two legs, who does not suffer from any kind of physical disability, has no facial disfiguration, has nothing discreditable in his past life; who, in fact, it would appear, suffers from none of the ills to which human nature is ordinarily heir?

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Suppose that the provocation was to call the gentleman a "nark," which in certain spheres of society is the greatest insult, does he have to be compared with a reasonable "nark" or a reasonable member of society?

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

That is exactly what is worrying me. If one is or has been a "nark," the accusation is very much more provocative than if one has not been a "nark." An accusation that is completely out of character one may be inclined to treat with ridicule rather than with rage. An accusation that has an element of truth in it can be extremely provocative.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Surely, in that event the vital question as to whether it is provocative is whether a man or his friends are in position to be "narked" on. It is a question of the peculiarity of society, and not the peculiarity of one's person.

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

I am having a little difficulty in following my hon. and learned Friend.

I come back to the point which is worrying me. As I understand it, the Clause gives us as our yardstick the reasonable man and not the reasonable man suffering from a disability similar to that from which the accused suffers. I say, therefore, that the reasonable man becomes a more and more unreal figure the more one looks at him. Apparently he is not to have any characteristics whatever except that of being a reasonable man. Really, there is no such person at all.

It seems to me that adhering to the yardstick of the reasonable man can produce very great injustices, because it can mean, in the case of a man who has been provoked by the deliberate and malicious bringing up of some disability either of body or mind or reputation from which he suffers, that the fact that that form of insult is peculiarly provoking to him apparently cannot be put in the scales when his case is being examined.

I found, therefore, that the idea of the purely reasonable man standard was unsatisfactory. If it were at all possible to get into an Act of Parliament the Attorney-General's other possible standard—the reasonable man suffering from a disability the same as, or comparable to, that of the accused—I should find that very attractive indeed; but I must confess that I think it would be a task of very great difficulty to put that idea into words in an Act of Parliament which the courts could satisfactorily interpret. If one tried to do so one would find that the practical difference between that and a purely subjective standard was very little indeed.

I found, therefore, that the wording of the Amendment which has a purely subjective standard was very much nearer to what seemed to me to be the right solution than what we have got in the Clause. For those reasons, after trying to think the matter out without the benefit of legal knowledge, I was driven to the conclusion that our proper course would be to prefer the Amendment to the present wording of the Clause.

9.15 p.m.

Photo of Sir Lionel Heald Sir Lionel Heald , Chertsey

May I apologise to the Committee for being absent when what I understand is described as my "one-legged man" has been discussed. My views and suggestions have apparently been so well put, both by hon. Members opposite and by my right hon. and learned Friend the Attorney-General, that it would be unwise of me to attempt to put them in any better way. However, I should like to say that, although I have been absent, I know the arguments which have been put in favour of the Amendment, and I think it goes very wide indeed. Because it seems to me, looking at the matter from, I hope, quite an objective point of view, that it would let in a very large area indeed.

If we are merely to consider the individual man, I do not see how a judge can then avoid directing a jury to take into account the fact, for example, that a particular man has a very bad temper and did not control himself. To what extent is one to go into that? It seems to me it goes far too far. On the other hand, I think that the hon. Member for Fulham (Mr. M. Stewart) was quite right in saying that the task of defining the extent to which one should consider the disabilities will be a very difficult one indeed. One has to bear in mind that there is a commonsense aspect in this matter. After all, whatever legal directions are given to a jury, it is sitting there and gives the verdict. The members of the jury see the man and can see he is blind or has one leg. I do not say a nod is always as good as a wink in all cases, but one must take into account the fact that members of juries are human beings.

Although it is not a scientific way of approaching the matter, I believe it to be true that one would find few cases where there was a case of the kind which has been described. I know that once or twice there has been a hunchback or something of that kind. Although I am not happy about the matter, and I frankly admit it, I would like to see an attempt made to improve the Clause, notwithstanding the rather pessimistic point of view just expressed. I believe that if some wise men sat down and got down to it, they might find the answer. At the same time, I am prepared to accept that those skilled in these matters have gone into them and they cannot find a way of doing it. In the circumstances, much as I regret it, I do not think it is practicable to adopt the alternative which is suggested in the Amendment.

Photo of Mr Edward Mallalieu Mr Edward Mallalieu , Brigg

Like other hon. Gentlemen who have addressed themselves to this matter, I agree that it is an extremely important matter and also one which is by no means without difficulty. I think, I hope with modesty, that perhaps the best way to tackle the matter is to consider what is the doctrine of provocation. I do not mean to go into a lengthy dissertation on the doctrine of provocation; this matter which we are discussing is just as capable of being discussed by people without legal knowledge as those who are supposed to have legal knowledge. It is not a legal question at all.

One can imagine in the far-off days there may well have been a law which said, "Thou shalt not kill." Then it was found, perhaps, that it acted a little harshly in some cases; and the doctrine of provocation would be introduced in order to mitigate the harshness of the general law and to bring the application of that law more nearly towards the circumstances of the individual charged. If we are going to mitigate the law like that, why not do it as completely as we are capable of doing it? In my submission, the law of provocation, as it would be left by this Clause, is very much better than the law would be if there were no doctrine of provocation at all. But it could go very much further than it does, in my submission.

The right hon. and learned Member for Chertsey (Sir L. Heald), as did the Attorney-General, drew attention to the difficulty of trying to make the law completely fair. That, in effect, is what he was saying, and therefore, with reluctance, he came to the conclusion that perhaps it was best to have the more arbitrary test of a reasonable man, than to go into the uncertainties which would follow if one went still further. I submit that that is a confession of failure and a counsel of despair. I think that we should take courage in this matter and decide to try to our utmost ability to fit the law to the circumstances of the particular man who is accused.

How can we do this unless we allow a jury to consider his qualities and his characteristics which, after all, are his circumstances, and see whether or not we can then say whether his responsibility is such as to make him liable to the penalty or the crime he is supposed to have committed. This is a test of responsibility. We cannot test a man's responsibility until we know the apparatus he has in his mind with which to deal with the circumstances with which he is faced.

I submit that the test of how a reasonable man would react to provocation does not work as a fair test, although it is better than no test at all. We ought to go the whole hog and try to relate the responsibility of a man to his particular circumstances. An industrialist does not expect to do things for which he has no plant. The accused's plant is the mental capacity and the physical attributes he actually has. These things must all be taken into account. Questions have been asked about the man with a bad temper and the man with a good temper. The man with a bad temper will be found not guilty of murder when he reacts to provocation and the one with a good temper guilty because he should not have reacted; but that does not strike me as surprising. The man with the bad temper has it as one of his attributes and is more likely to react to provocation than a good tempered man. If we are trying to be fair and to judge his responsibility that should be taken into account.

One can think of many other cases of men who have abnormal minds or are retarded. There is the case of the young man who never got on well at school and is unable to take his place with his contemporaries in ordinary life. He has unfortunate home circumstances. His father is resentful of the boy's retarded-ness while the mother is unduly sympathetic with him on that account. Perhaps the father is an excessive drinker and goes in for attacking the mother for spoiling the young man. Should not all those home circumstances be taken into account in deciding that young man's responsibility for killing his father for attacking his mother for defending him, and for which he is now in the dock?

It is not enough, if we are to introduce any doctrine of provocation at all, to stop half way. We must say, as the Amendment does, that the test should not be how a reasonable man would react, but that the capacities, qualities and characteristics of the man who is being judged, should be taken into account.

Photo of Sir Barnett Stross Sir Barnett Stross , Stoke-on-Trent Central

I support my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) in this Amendment because I feel that the words "a reasonable man" cannot be accepted, unless by "reasonable" we mean "capable of reasoning". If that were meant I would not mind this definition, because we should be referring to a man who has an average, sound mind and is capable of reasoning.

If it is said to mean something on which the learned judge is to direct the jury as to the attributes of the man and say, "Do you think that this reaction was a reasonable one? Is it one that you, as reasonable men and women, would have imitated? Would you have done the same thing?" there would be a misconception of what we have in mind now in this Committee. It is a good thing that a jury will have to make up its mind of the words of the Clause because it will have to decide whether there is evidence and judge it for itself, make up its mind whether the provocation was sufficient to bring about certain effects in the accused.

I agree with my hon. and learned Friend the Member for Brigg (Mr. E. L. Mallalieu) on this point. Surely, if a man is accused of having acted in a specific way, whether his action was reflex or conditioned, he must be tested and judged by what he is, or what he was thought to be, at the time he acted. The whole of the mind, and the whole of the background and environment, so far as we can find out what they are, must be taken into account to see how they have influenced him. Any other attempt to judge in a context of that type is bound to be fraught with confusion, and we shall certainly make mistakes.

I heard the Attorney-General give an illustration by saying, "Well, one man might have an explosive temper". Then he said, "He might have high blood pressure". That interested me. Those two phrases, coming in two separate short speeches by the Attorney-General were significant. I should expect someone with a high blood pressure to be more addicted to and likely to have a bad temper than a man with a normal blood pressure.

What do we do about people who suffer from a toxic goitre? They live their lives very fast, and they feel ill and irritable. Are they to be judged by the test and yardstick of what here is called a reasonable man or woman? What are we to do with a diabetic who is not diagnosed as a diabetic but is suffering from the complaint and whose blood circulates poisons which are selective poisons, making him feel ill and irritable? Surely we are right to find out about him and not to judge him by the artificial standard of what is a reasonable man? Then we should find that his condition was such that he reacted as we can understand he would react and in such a way as we, the judge and jury—being provoked as he had been provoked—might have fallen into that error.

My hon. Friend the Member for Rossendale gave us two or three examples. Five years ago I was asked to go to Broadmoor to see a man who, before he went to Broadmoor, had had an injury which fractured a bone, and it was the fracture of the bone which he suffered that led him to kill a man. He was a miner and, while recovering after having left hospital, he used to stand on his doorstep in the summer and take the air. There was another miner who did not like him and who teased him every day he passed, accusing him of malingering to get money from the State falsely—"swinging the lead". That went on for some time until ultimately the man rushed from the doorstep into the house seized a heavy instrument, a poker, and struck the man who was provoking him. He killed that man and was tried for murder. In that case everyone knew after the evidence had been given that there was provocation, but the man was considered to be guilty but insane. He went to Broadmoor, but a month or two after I had seen him he was back home again.

Another case with which I was very intimately concerned was that of a man accused of killing his wife under great provocation. She tried to stab him. All the medical evidence was that she was a profound hysteric. For no reason anyone would think proper, but actually because he played darts with someone else in a public house where she accompanied him and did not stay with her at the table all the evening, when they got home she took a knife and rushed at him. He turned round and seized the knife and, with the other arm, put a half-nelson on her. I think that hon. Members know that hysteria is a very technical condition and a truly hysterical man or woman can be extremely strong and not feel pain.

This poor woman struggled against his restraining arm, and her neck was dislocated. She fell to the ground, but was not fully paralysed. When her husband knelt down and was disturbed about her she was able to jump up and rush for the knife again. As she ran to stab him once more, there was a full dislocation and pressure on the spinal cord. As she struggled on the ground on the second occasion the spinal cord was finally severed. The charge, therefore, was murder.

In this case there had been provocation. Until I was able to give the evidence—which I gave at much greater length than I have given it tonight—I doubt whether the jury understood, but in the end they certainly did. In that case there was a full acquittal on the grounds of severe provocation. There was no reduction of the charge to manslaughter, although naturally the judge pointed that out, and I thought he was urging the jury to return a verdict of manslaughter but certainly not a verdict of murder. Having heard all the facts and having heard that this man had been provoked many times in a similar way, the jury acquitted him.

I appeal to the Solicitor-General to consider finding other words, if he cannot accept the words in the Amendment. Let men or women be judged by what they are and not by a standard with which they themselves perhaps have no association.

9.30 p.m.

Photo of Mr Peter Crowder Mr Peter Crowder , Ruislip Northwood

I seek to intervene for only a few moments. I think I might possibly be able to assist the Committee in this respect. Let me declare my interest at once; as a member of the Bar, I make my living in crime.

I can assure the Committee that the Clause as worded will not worry me in the least. If any alteration were to be made, what could be done would be to add the words a reasonable man having regard to all the circumstances. If we inserted those words it would broaden the definition, but in my view, whether we insert those words or not, it will not make the slightest difference; because it is well worth remembering that however closely we define the law in this Committee, juries do not try criminal cases, least of all murder cases, with their eyes shut. The jury would see the defendant and they would hear about this disability or any special circumstances which there were in the case. No judge would dream of not telling the jury to take those circumstances into account.

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

But is it not a fact that it has been laid down in the Court of Criminal Appeal, whose decisions naturally have been followed by trial judges in numerous instances, that they must do the exact opposite to what the hon. Member says—that they must warn the jury in their summing up that the jury must not pay attention to any abnormal limitations in the accused but must judge his conduct not in regard to those individual disabilities but in accordance with the standard of what they think a reasonable man might have done?

Photo of Mr Peter Crowder Mr Peter Crowder , Ruislip Northwood

I agree with the hon. Member in many ways, but I think that his remarks apply to a different type of case. Where we have the words "a reasonable man" as set out in the Clause, the words "having regard to the circumstances of the case" are almost bound to follow, even though they are not there in fact. Personally I would see no objection to their being put into the Clause, but equally—and I sit down now because we have been engaged for much too long on this matter—I see, as a criminal lawyer, absolutely no danger if they are excluded.

Photo of Sir Leslie Plummer Sir Leslie Plummer , Deptford

I hope the hon. Member for Ruislip-Northwood (Mr. F. P. Crowder) will not be angry with me for rising to speak, but I do not think we have spent enough time on the Clause. It is a matter of importance. I congratulate him on saying that it does not matter what we do in the Committee, since juries will decide anyway. That seems an admirable argument for having no law at all. That might be of benefit to a great number of people.

It is important that the Amendment moved by my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) should be accepted, for a reason which I will give. Some years ago I witnessed the trial of a man charged with murder. He was the mate of a barge. He was coming up the Thames in his boat with his skipper. Just before they moored, the mate went downstairs and changed out of his bargee's clothes into a blue serge suit and a nice knotted handkerchief. When asked by the skipper why he was doing so he said that it was because he wanted to leave the barge as soon as it was moored, in order to meet his girl. Thereupon the skipper made some remarks about the virtue and constancy of the young lady which most men do not make about other chaps' girls. So incensed was the mate at these remarks that he beat up the skipper to such an extent that the skipper died.

The mate was tried for murder. During the summing up it was made clear that a reasonable man ought to judge whether, in fact, a bargee would be incensed by the language habitually used by another bargee—and, ergo, by himself—if it was used about his girl. The jury was asked to believe that it was quite impossible for the mate of a barge—being a bargee himself—to be upset by the language of another bargee. What I was convinced of was that the gentlemen of the jury had never heard, or, if they had heard, had not understood, the language that the skipper used about the mate's girl. They came from entirely different social sphere. Perhaps they only used or understood such language either in their subconscious or in the night clubs, but they certainly would not associate themselves with that sort of language.

This man was found guilty and was eventually executed. It seemed to me that what nobody bothered to find out was whether there was, in fact, one expression used, whether a nuance was used or some jibe uttered which would upset the bargee very much indeed, although coming from another bargee. No one put himself in the position of asking whether there was provocation in the words used by the captain to the mate and, if so, whether it was reasonable for the fellow to take umbrage at that sort of language. If this Amendment were accepted then, in a similar case to that, the jury would have to decide whether it was reasonable that that particular man should have been so upset by those remarks about his girl.

I have had a great deal of experience of and have had to pay great attention to libel actions against the newspapers for which I have worked. I was cursed by this man, the reasonable man, who could always be relied upon, as it were, to give a different verdict in much the same sort of case in each successive court. This legal fiction, enjoyed so much by the lawyers, does a great deal of damage, and in murder trials that damage could be completely offset if the Amendment were accepted.

Photo of Mr Charles Simmons Mr Charles Simmons , Brierley Hill

I address the House, for a moment, as a reasonable one-legged man. I have been listening to myself being talked about on the Front Benches until my ears have burned, and I have felt that I should speak in defence of the one-legged man. I have been provoked. The Attorney-General said that the jury would know that the accused had only one leg, but he would not tell them that unless he knew that I had only one leg.

I would point out that all one-legged men are not of the same temperament. The same one-legged man may be a different sort of man one day compared with another. On some days the stump does not "jump" so much. Sometimes one does not feel so much pain. Of course, a one-legged man can be provoked in the same way as one can provoke a man with only one eye or one arm. I remember on one occasion standing on the fringe of a public meeting during an election campaign in which I was a candidate, and I heard myself referred to as only half a man. I was provoked and the meeting ended in uproar. If I had been nearer to the speaker and had had a chopper in my hand, I might have been charged with murder.

In the early days of a man's disability his disability is more acute, and he is more sensitive to references to his disability. But, of course, as time goes on, one matures and gets used to it and one is not so easily provoked by such references. Of course, a one-legged man, like anybody else, is bad tempered in spasms, but I maintain that a one-legged man is not easily provoked because he is one-legged but because of the moods or feelings caused or aggravated by his disability.

Therefore, I say: do not class all one-legged men as being easily provoked. Some of us, after years of self-discipline, are patient, long suffering and reasonable, despite having only one leg to stand on.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

The Attorney-General, the right hon. and learned Member for Chertsey (Sir L. Heald), the hon. Member for Ruislip-Northwood (Mr. F. P. Crowder) and, indeed, the Royal Commission—everybody who has supported the Clause as it now stands—seems to support it upon the somewhat peculiar ground that juries can be relied on to do nothing of the sort. It is a somewhat peculiar reason for supporting a Clause.

It is said "You say that a jury has got to judge upon the yardstick of the reasonable man, but the accused is in front of them and they are going to judge on the accused." If that is so, why not accept the Amendment? Why have a Clause which can be justified only because it will not work, instead of having a Clause that will work?

One of the Attorney-General's arguments which I found extremely difficult to follow was that if the jury had to decide not upon the yardstick of the man they saw in front of them but upon the yardstick of another reasonable man whom they had to imagine, their task would be too difficult. I am bound to say that I should have thought that it would be rendered far more difficult if they had to imagine the reasonable man in these circumstances, because there I would find myself in entire agreement with my hon. Friend the Member for Chesterfield (Mr. Benson) in saying that one thing which we could all agree upon about the reasonable man is that the reasonable man does not commit murder. Committing murder is a most unreasonable thing to do. Can one say for one moment that any reasonable man is going to be provoked to unjustifiable killing? It must be remembered that if somebody comes for me with a gun so that my life is in danger, and I kill him, that is justifiable homicide. What we are considering is unlawful killing, and I suggest that that is exactly what the reasonable man is not provoked to do.

9.45 p.m.

What one has to consider is the particular man in the circumstances. I do not deny for a moment that that is in fact what the jury does consider; but what is to prevent us telling the jury to do what in fact they will do? We all agree that this Clause would be quite meaningless unless they did it. What we are considering and what we are mitigating is action done when control has been lost as against action taken with calm deliberation. We say that if a man takes action with calm deliberation, that is worse than if he does it when he has lost control.

The point is, has he lost control of himself? That was the point of the last Clause which we discussed. There, we dealt with the man who had diminished responsibility because of abnormality of mind. Why did we not say in that Clause: Where a person kills … he shall not be convicted of murder if he was suffering from such abnormality of mind … as substantially impaired a reasonable man's mental responsibility "? In the Clause we in fact say "his responsibility". I do not think it makes sense unless we do. We have to consider an abnormality which impairs his responsibility by removing his self-control.

It is exactly the same problem when we have to deal with provocation. What we are looking for is the provocation which removes this man's self-control. The Clause says: Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked … to lose his self-control.… If he loses his self-control, does it really matter whether a reasonable man, who, ex hypothesi, retains his self-control or he would not be a reasonable man, would have lost it? It really does make nonsense of it.

Since the Report of the Royal Commission has been called in question here, in support of the Government, it is of some importance to hear what actually was said. The Royal Commission considered this matter, and referred to what had been said by Mr. Basil Nield, Mr. Justice Donovan and the Society of Labour Lawyers. The matter is summarised in Mr. Nield's words: The jury should be permitted to determine the effect of the provocation on this particular man whom they have seen and may have heard and whose whole circumstances have probably been described to them. That, of course, is what we are saying now. The Report goes on in paragraph 142: This proposal was strongly opposed by the judges who gave evidence before us, including the Lord Chief Justice and the Lord Justice General. Lord Cooper observed that if the existing rule was changed, 'there might be circumstances in which a bad-tempered man would be acquitted and a good-tempered man would be hanged, which, of course, is neither law nor sense'. At present, it may not be law, but it surely is sense. If a man has a hot temper and provocation comes to him which makes him lose his self-control, and then, having lost his self-control, he kills, the offence is much less heinous than would be the offence of a man with a good temper, whose temper is in control, but who kills deliberately. Indeed, on the Clause as it is drafted that is still so, for whatever the provocation may be, and whether it affects a reasonable man or not, it has got to make this man lose his self-control.

So that the effect of the Clause is that the bad-tempered man will be excused to this extent, because he loses his self-control, and the good tempered man will not be excused because he does not. That argument, therefore, which is quoted by the Royal Commission and which, indeed, was quoted by the Attorney-General today, is quite an invalid one and is wrong, even on the Clause as drafted in the Bill.

The Commission then went on to state its sympathy for the alternative and said: Nevertheless we feel sympathy with the view which prompted the proposal that provocation should be judged by the standard of the accused. The objections of the Judges take no account of that fundamental difference between the law of murder and the law applicable to all other crimes which lies at the root of our inquiry and to which Lord Simon drew attention in the concluding words of his judgment in the Holmes case. In the case of other crimes the court can and does take account of extenuating circumstances in assessing the sentence; in the case of murder alone the sentence is fixed and automatic. Provocation is in essence only an extenuating circumstance, which in the case of lesser crimes, as Lord Simon pointed out, does not alter the nature of the offence, but is allowed for in the sentence. The rule of law that provocation may, within narrow bounds, reduce murder to manslaughter, represents an attempt by the courts to reconcile the preservation of the fixed penalty for murder with a limited concession to natural human weakness, but it suffers from the common defects of a compromise. The jury might fairly be required to apply the test of the 'reasonable man' in assessing provocation if the Judge were afterwards free to exercise his ordinary discretion and to consider whether the peculiar temperament or mentality of the accused justified mitigation of sentence. It is less easy to defend the application of the test in murder cases where the Judge has no such discretion. Surely, that is unanswerable. Indeed, when the Royal Commission sought to answer it, the Commission itself seemed to go straight into a fallacy: We have indeed no doubt that if the criterion of the 'reasonable man' was strictly applied by the courts and the sentence of death was carried out in cases where it was so applied, it would be too harsh in its operation. That is what the Commission did; it rejected the test. It produced unanswerable arguments why it should not apply, but then said, "None the less, let us leave it because we can rely upon juries to pay no attention to it." It is an odd and strange way of doing it and I cannot see the sense of it.

Surely, provocation is of its very essence something personal to the person provoked. For instance, to call a man an informer might, to some people, simply indicate somebody who does the duty which we all owe to society and to the police to inform them when we know crime has been committed. In another rank of society, it is the most bitter of conceivable insults. It depends on one's society, who one is and whether one's friends are people in immediate fear of being "narked" on. It is of its essence personal. It is personal to one's surroundings. The insult to a man's wife will depend in considerable measure on whether he likes her or not. All these things are matters of an utterly personal nature, and of one's relation to them. To proceed to import the reasonable man, who, by very definition, I should think, does not commit murder at all, in order to test sentiments which are relevant only because of their precise personal application does seem to me to be the greatest nonsense in the world.

We are doing it only because of the conservatism of the judges. The Royal Commission said that what the judges want is nonsense, but that as we can rely on juries to regard it as nonsense we had better keep it. If it did not appeal to the Royal Commission, I do not see why it should appeal to us. So I urge the Committee to make this Amendment.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I cannot allow this occasion to pass without paying a very humble but very sincere tribute to the hon. Gentleman the Member for Ruislip-North-wood (Mr. F. P. Crowder), who made the sort of speech I hoped to hear in this Committee, a speech of great courage, a speech which I welcome as a breath of fresh air. To him I can say that his little oration shone like a candle like a good deed in a naughty world.

What he said was, "Let us be frank about this. It does not really matter what we 'bung' into the Bill because juries will not take any notice of it, and it does not matter what we leave out because juries will 'bung' it in." How true it is, and how important it is we should realise it, that even arguments of sanity depend for their force upon their being accepted by public opinion. In the eleven years I have been a Member of Parliament, Parliament has spent half its time imposing taxes no one wants to pay and passing laws making crimes of things I have been doing for years. The hon. Gentleman clarified the position for us and induces us to pursue this matter with him on a more appropriate occasion to its logical conclusion and to draw certain reasonable deductions therefrom.

On the other hand, I found myself out of sympathy with my hon. Friend the Member for Deptford (Sir L. Plummer) when, making a singularly able oration, he—

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I am sorry, but I do not follow. However, I am sure it was an extremely important observation.

My hon. Friend spoke under the impression that a reasonable man in a libel case was the same sort of man as a reasonable man in a murder case. Every murder case makes it abundantly clear that that is not so. The reasonable man in a libel case has been described—I think it was by Lord M'Naghten—as the man on the Clapham bus. Yes, indeed. That is the familiar and legal definition. It may not sound like the sort of thing lawyers say, but it is the sort of thing lawyers say when they are talking sense. The man on the Clapham bus, the sort of man who takes part in a football pool every week, and who possibly possesses a mistress, is the reasonable man. That is not a true definition in murder cases. Of course it is not.

The reasonable man in a murder case is the man who goes to church three times on Sundays, who catches the eight o'clock train to work every morning, who goes to bed early every night, who has never voted Labour. He is the man of complete respectability, completely free from vices.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I should not think so. If he did he would vote in the minority.

That is the test. This man is a figment of the imagination. He does not exist. He really does not. He is the sort of man Lord Woolton finds one of for the platform at Llandudno.

My hon. and learned Friend the Member for Northampton (Mr. Paget) considered the whole question of provocation, and he said in a cheerfully casual way that the degree of affront one considers to have been done to one's wife depends on whether and how much one loves her. That is not fantastic. It is true. Every time I advise people in libel actions I have to tell them there is no such thing as libel.

10.0 p.m.

Words can be the most innocent words under the sun when applied to one man and very damaging when applied to another. If I said that the Archbishop of Canterbury knew nothing of mathematics it would not be damaging to the Archbishop of Canterbury; but if a week before he had resigned the Archbishopric and accepted a professorship of mathematics at Cambridge University I might have committed a libel. Words can provoke one man which do not provoke another.

The simplest and clearest test is that of race. In the old days there were classic cases in which Indians lost caste. The classic sort of case of libel is that in which someone could say things which imputed loss of caste to an Indian, but which would not affect a European. They might be the most savage and damaging things in the world to a man of colour. If I used contemptuous and contemptible words which could be offensive to a man of colour they would not be offensive to the average Member of this House, because if one accuses a man of something which is manifestly untrue it does not hurt him; but if one accuses him of something which very often is true it may be seriously damaging. The law has very wisely said that. We really have not the right to hold over a man blackmail threats all his life because of some peccadillo of his youth or because of something for which he has paid the penalty.

Last night I had a nightmare myself and woke up perturbed because I found myself in a fantastic argument in which I was alleging a breach of contractual obligation on someone who appeared to me to be a comparative stranger, and what he said to me was, "I thought I had made that perfectly clear." Those words would not be annoying to anyone else, but having heard them so often here, I found them infuriating. In my dream I said that this was a matter of contract and a matter of gravity and a chap across the bar said "I thought that my right hon. Friend had explained that fully last week." I found myself furious, screaming, with a weapon in my hand. I am normally a man who does not get angry at all and does not get exacerbated.

There is a classic example which the Attorney-General will remember. It was said, I remember not by whom, but in the 1830s, of a certain distinguished gentleman that if he only knew a little law he would know something of everything. Nothing could be less damaging to the ordinary man. If I said that to the noble Lord the Member for Dorset, South (Viscount Hinchingbrooke), he would regard it as not an unreasonable compliment, if I said it in a certain tone of voice, but it was said or Lord Brougham as Lord Chancellor. It was said maliciously, and Lord Brougham was an excitable man who might well have been provoked. Whether in modern political circumstances it would provoke the Chancellor to impute that he knew nothing of the law, I do not know.

To be serious, the real test is: what is likely to be the reaction of this little man? What is the picture before the jury of the circumstances which are being resented. We all know—let us accept it—that there are certain lives which are sometimes cruel and sometimes joyous, Life in the Army is often good fun for the chap who can take a joke and be convivial and accept the difficulties and the joys of Army life, but in almost every unit there is the quiet little man, the introspective little man, who cannot do it, and to him that life is hell.

It can happen very often in a unit. He is the man at whom every little coarse joke is directed each night, with more and more effect. This is no figment of the imagination. Everyone here knows of hundreds of cases of this kind of thing which he can quote. This is the quiet man, the man who has been sorely tried and who cannot stand it any longer, and not being used to the ordinary forms of combat and self-defence and not being equipped for it, he picks up a weapon and usually does something which may prove to be serious. The whole history of that provocation is cumulative provocation, not easily proved. And then, in the bare light of a cold court, before a judge in robes, this is examined and the man says, "Well, sir, he called me a bastard " and the judge says, "What of it? I would not get provoked. I happen to know my parents were married and that I am legitimate".

Seriously, it is not difficult to conjure up that picture of a repressed man, a man with mental difficulty, a man who cannot talk freely and cannot pass it off and say, "Come off it and let us have a game together". Surely, that must be the test. We conjure up a picture of the reasonable man being tried for the offence in the barrack room, but one is trying the repressed and miserable soldier, and the test cannot be applied to what the serjeant-major would have done in those circumstances. Let us not forget that in those circumstances the sergeant-major is the reasonable man. He is moderately respectable and successful, and on the whole he is the epitome of respectability in the Forces.

The proposed change in the Bill is really an important and good change, and I am sure that all of us welcome it. The restrictions upon provocation have been archaic restrictions, applied over the years. There is the fantastic theory of the man who finds his wife committing adultery. It could not be his mistress, however much he loved his mistress, because we are a God-fearing country, and it could not be word of mouth, because one has to walk in and see the thing happening to get the necessary shock to one's system. This has been an archaic and depressing sort of theory without any decent human emotion. It has been a judge-made, a case-made doctrine over the years. I congratulate sincerely the Attorney-General on introducing the Clause. It is a courageous and good thing to do.

I know that we are dealing in this Measure now with perhaps only half-a-dozen cases a year, perhaps not so many, but as I said when we discussed the previous Clause, I believe that we are starting something which will be extended. I do not criticise the limited ambit of the reform. In reforming the law, we have to go slowly. I accept that we cannot look a long way ahead and make revolutionary changes, because the risk is too great. Our judicial system is one which we all respect. I take occasion, of course, to point out what I think of its limitations here and there, but fundamentally I think that it is marvellous and the administration is one for which we have a firm regard, with all its defects.

Therefore, I should not like to have p, a revolutionary amendment. I cannot think of a better way of introducing matters of this kind than to introduce them in the limited sphere of a serious case where the doctrine will be seriously applied. Let us see how it works. I am sure that it will work and that it will be extended a great deal to the criminal law as applied to all sorts of violence. And so it should, just as in the previous case the test of limited responsibility may well apply to every serious crime.

That is the position, and therefore I suggest that it is important for us to try to start right. I believe that this Amendment is one of the greatest possible importance. It may be that juries will get round this. Possibly they will, but it is not really an argument that can be put to a House of Commons that claims to be rather ritualistic and rather bourgeois and, for the moment, we are exponents of the doctrine of law. As such, it is hardly permissible for us to argue that whatever law we make will be ignored.

If we do not argue that, we must decide that whatever law we make is reasonably understood. On those grounds, I suggest that to say now that we will make a new law about provocation, to say that whether it be Lock Ah Tam, the inscrutable and respectable Chinaman who was hanged in the North, or a Tony Mancini, or whether it be the quiet and rather unassuming Dr. Crippen, or whether it be the extrovert or the introvert, the black man or the white, we will apply as a test a sculptured figure cut out of our own imaginations, cut to a figure of respectability and reputability, and of a dullness which makes it almost impossible that he will make the sort of responses in any circumstances that you or I, Sir Gordon, would make, would be a tragedy.

I think it is wrong, and I therefore plead with the Attorney-General to say that after all this is not a major Amendment but that it is an eminently sensible Amendment. So why not say that the test we will apply to the prisoner at the Bar is the only test we can ever apply to him, namely, what was the likely reaction of the prisoner at me stances in which he was placed?

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

The difference between the law as the Government propose it and the law as it would be if the Amendment of my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) were carried is the difference between applying an objective and a subjective test. The difference would not be important in this matter, as in so many other matters we have considered, except for the Government's rather curious reaction to the Report of the Royal Commission.

If the Government had been content to accept all the recommendations in that Report, it would not matter really whether we applied in this matter an objective or a subjective test, because the Report included the recommendation that after a verdict of guilty the jury could consider in every case whether there were extenuating circumstances sufficient to reduce the penalty. The Government have rejected that, however, and so we have to decided this question on the basis that it does make a practical difference although, if all the recommendations of the Royal Commission had been accepted, it would not have made a practical difference.

10.15 p.m.

All progress in penal reform has been the progress from the objective to the subjective standard. The late W. S. Gilbert thought that it was a sublime object to try to make the punishment fit the crime. No penologist believes that. The true aim is not to make the penalty fit the crime but to make the penalty fit the criminal, which is a totally different matter. In many parts of the Bill that is what we are doing. In the previous Clause we were in fact endeavouring to make the penalty fit the criminal where the criminal was a person who by reason of some mental disability ought not reasonably to be held fully accountable, legally responsible.

All that is suggested is that when we are making a very sensible Amendment to allow words to be considered equally with other circumstances when we are considering whether there was sufficient provocation or not, then we shall address that, as we did in the previous case, not to some objective standard, because we have abandoned the objective standard, but make it applicable to the circumstances of the particular case and the circumstances of the particular criminal.

The reasons for preferring that to the Government's view have been sufficiently discussed in the last hour, and I have certainly no intention of repeating them. I rise only to say to the right hon. and learned Gentleman that having listened, as most of us have done—not quite all, but most of us—to the reasons which

have induced the Government not to accept this view, we are not satisfied with those reasons and we would advise hon. and right hon. Gentlemen on this side of the Committee to test the question in the Division Lobby.

Question put, That the words "a reasonable man" stand part of the Clause:—

The Committee divided: Ayes 191, Noes 144.

Division No. 11.]AYES[10.17 p.m.
Agnew, Cmdr. P. G.Hall, John (Wycombe)Nabarro, G. D. N.
Aitken, W. T.Harrison, A. B. C. (Maldon)Nairn, D. L. S.
Alport, C. J. M.Harrison, Col. J. H. (Eye)Neave, Airey
Anstruther-Gray, Major Sir WilliamHeald, Rt. Hon. Sir LionelNicholls, Harmar
Arbuthnot, JohnHeath, Rt. Hon. E. R. G.Nicolson, N. (B'n'm'th, E. & Chr'ch)
Armstrong, C. W.Hesketh, R. F.Nugent, G. R. H.
Astor, Hon. J. J.Hill, John (S. Norfolk)Oakshott, H. D.
Atkins, H. E.Hinchingbrooke, ViscountO'Neill, Hn. Phellm (Co. Antrim, N.)
Baldock, Lt.-Cmdr. J. M.Holland-Martin, C. J.Osborne, C.
Baldwin, A. E.Hope, Lord JohnPage, R. G.
Balniel, LordHornby, R. P.Pannell, N. A. (Kirkdale)
Barlow, Sir JohnHornsby-Smith, Miss M. P.Partridge, E.
Barter, JohnHorsbrugh, Rt. Hon. Dame FlorencePeyton, J. W. W.
Bell, Philip (Bolton, E.)Howard, Gerald (Cambridgeshire)Pickthorn, K. W. M.
Bidgood, J. C.Howard, Hon. Greville (St. Ives)Pitman, I. J.
Biggs-Davison, J. A.Hughes Hallett, Vice-Admiral J.Pitt, Miss E. M.
Bishop, F. P.Hurd, A. R.Pott, H. P.
Body, R. F.Hutchison Sir Ian Clark (E'b'gh, w.)Powell, J. Enoch
Bossom, Sir AlfredHyde, MontgomeryPrice, David (Eastleigh)
Boyd-Carpenter, Rt. Hon. J. A.Hylton-Foster, Sir H. B. H.Raikes, Sir Victor
Brooke, Rt. Hon. HenryIrvine, Bryant Godman (Rye)Redmayne, M.
Brooman-White, R. C.Jenkins, Robert (Dulwich)Renton, D. L. M.
Browne, J. Nixon (Craigton)Jennings, J. C. (Burton)Ridsdale, J. E.
Bryan, P.Johnson, Dr. Donald (Carlisle)Robinson, Sir Roland (Blackpool, S.)
Buchan-Hepburn, Rt. Hon. P. G. T.Johnson, Eric (Blackley)Rodgers, John (Sevenoaks)
Bullus, Wing Commander E. E.Joseph, Sir KeithRoper, Sir Harold
Campbell, Sir DavidJoynson-Hicks, Hon. Sir Lancelot
Conant, Maj. Sir RogerKaberry, D.Schofield, Lt.-Col. W.
Cordeaux, Lt.-Col. J. K.Keegan, D.Scott-Miller, Cmdr. R.
Corfield, Capt. F. V.Kerby, Capt. H. B.Sharples, R. C.
Craddock, Beresford (Spelthorne)Kershaw, J. A.Shepherd, William
Crosthwaite-Eyre, Col. O. E.Kimball, M.Simon, J. E. S. (Middlesbrough, W.)
Crouch, R. F.Kirk, P. M.Smithers, Peter (Winchester)
Crowder, Petre (Ruislip — Northwood)Lambert, Hon. G.Steward, Harold (Stockport, S.)
Cunningham, KnoxLancaster, Col. C. G.Steward, Sir William (Woolwich, W.)
Currie, G. B. H.Langford-Holt, J. A.Stewart, Henderson (Fife, E.)
Dance, J. C. G.Leavey, J. A.Storey, S.
Davidson, ViscountessLeburn, W. G.Stuart, Rt. Hon. James (Moray)
D'Avigdor-Goldsmid, Sir HenryLegge-Bourke, Maj. E. A. H.Studholme, Sir Henry
Deedes, W. F.Legh, Hon. Peter (Petersfield)Sumner, W. D. M. (Orpington)
Donaldson, Cmdr. C. E. McA.Lindsay, Hon. James (Devon, N.)Taylor, William (Bradford, N.)
du Cann, E. D. L.Lindsay, Martin (Solihull)Temple, J. M.
Dugdale, Rt. Hn. Sir T. (Richmond)Linstead, Sir H. N.Thomas, Leslie (Canterbury)
Duncan, Capt. J. A. L.Lloyd, Maj. Sir Guy (Renfrew, E.)Thompson, Kenneth (Walton)
Eden, J. B. (Bournemouth, West)Lloyd-George, Maj. Rt. Hon. G.Thornton-Kemsley, C. N.
Elliot, Rt. Hon. W. E.Lucas, Sir Jocelyn (Portsmouth, S.)Tiley, A. (Bradford, W.)
Errington, Sir EricLucas-Tooth, Sir HughTilney, John (Wavertree)
Farey-Jones, F. W.Macdonald, Sir PeterTurner, H. F. L.
Finlay, GraemeMcKibbin, A. J.Turton, Rt. Hon. R. H.
Fisher, NigelMackie, J. H. (Galloway)Vane, W. M. F.
Fletcher-Cooke, C.McLaughlin, Mrs. P.Vaughan-Morgan, J. K.
Fraser, Sir Ian (M'cmbe & Lonsdale)McLean, Neil (Inverness)Vickers, Miss J. H.
Freeth, D. K.MacLeod, John (Ross & Cromarty)Vosper, D. F.
Galbraith, Hon. T. G. D.Macmillan, Maurice (Halifax)Wakefield, Sir Wavell (St. M'lebone)
George, J. C. (Pollok)Macpherson, Niall (Dumfries)Wall, Major Patrick
Godber, J. B.Maddan, MartinWard, Hon. George (Worcester)
Gomme-Duncan, Col. Sir AlanMaitland, Hon. Patrick (Lanark)Whitelaw, W. S. I. (Penrith & Border)
Gower, H. R.Manningham-Buller, Rt. Hn. Sir. R.Williams, Paul (Sunderland, S.)
Graham, Sir FergusMarkham, Major Sir FrankWilliams, R- Dudley (Exeter)
Grant, W. (Woodside)Marples, A. E.Wills, G. (Bridgwater)
Grant-Ferris, Wg Cdr R. (Nantwich)Marshall, DouglasWilson, Geoffrey (Truro)
Green, A.Mawby, R. L.Woollam, John Victor
Gresham Cooke, R.Maydon, Lt.-Comdr, S. L. C.
Grosvenor, Lt.-Col. R. G.Milligan, Rt. Hon. W. R.TELLERS FOR THE AYES:
Gurden, HaroldMorrison, John (Salisbury)Mr. Richard Thompson and
Mr. Hughes-Young.
NOES
Ainsley, J. W.Hughes, Emrys (S. Ayrshire)Proctor, W. T.
Allaun, Frank (Salford, E.)Hughes, Hector (Aberdeen, N.)Pryde, D. J.
Awbery, S. S.Hunter, A. E.Randall, H. E.
Bence, C. R. (Dunbartonshire, E.)Hynd, J. B. (Attercliffe)Rankin, John
Benson, G.Irving, S. (Dartford)Roberts, Goronwy (Caernarvon)
Bevan, Rt. Hon. A. (Ebbw Vale)Jay, Rt. Hon. D. P. T.Robinson, Kenneth (St. Pancras, N.)
Blackburn, F.Jeger, Mrs. Lena (Holbn & St. Pncs, S.)Ross, William
Bowden, H. W. (Leicester, S. W.)Jenkins, Roy (Stechford)Royle, C.
Bowles, F. G.Johnson, James (Rugby)Short, E. W.
Braddock, Mrs. ElizabethJones, David (The Hartlepools)Silverman, Sydney (Nelson)
Brockway, A. F.Jones, Jack (Rotherham)Simmons, C. J. (Brierley Hill)
Burke, W. A.Kenyon, C.Skeffington, A. M.
Butler, Herbert (Hackney, C.)King, Dr. H. M.Slater, Mrs. H. (Stoke, N.)
Champion, A. J.Lawson, G. M.Slater, J. (Sedgefield)
Chetwynd, G. R.Lee, Frederick (Newton)Soskice, Rt. Hon. Sir Frank
Coldrick, W.Lee, Miss Jennie (Cannock)Steele, T.
Collick, P. H. (Birkenhead)Lever, Harold (Cheetham)Stewart, Michael (Fulham)
Corbet, Mrs. FredaLindgren, G. S.Stones, W. (Consett)
Craddock, George (Bradford, S)Mabon, Dr. J. DicksonStross, Dr. Barnett (Stoke-on-Trent, C.)
Cullen, Mrs. A.MacColl, J. E.SummerskiII, Rt. Hon. E.
Dalton, Rt. Hon. H.McGhee, H. G.Sylvester, G. O.
Deer, G.McInnes, J.Taylor, Bernard (Mansfield)
do Freitas, GeoffreyMcKay, John (Wallsend)Thomson, George (Dundee, E.)
Delargy, H. J.MacPherson, Malcolm (Stirling)Thornton, E.
Dodds, N. N.Mahon, SimonTimmons, J.
Donnelly, D. L.Mallalieu, E. L. (Brigg)Ungoed-Thomas, Sir Lynn
Dye, S.Mann, Mrs JeanUsborne, H. C.
Evans, Albert (Islington, S. W.)Mason, RoyWade, D. W.
Ferrnyhough, E.Mikardo, IanWarbey, W. N.
Finch, H. J.Mitchison, G. R.Watkins, T. E.
Forman, J. C.Monslow, W.West, D. G.
Fraser, Thomas (Hamilton)Morris, Percy (Swansea, W.)Wheeldon, W. E.
Greenwood, AnthonyMoyle, A.White, Mrs. Eirene (E. Flint)
Grey, C. F.Neal, Harold (Bolsover)White, Henry (Derbyshire, N. E.)
Griffiths, William (Exchange)Noel-Baker, Francis (Swindon)Wigg, George
Grimond, J.Oliver, G. H.Willey, Frederick
Hale, LeslieOswald, T.Williams, David (Neath)
Hall, Rt. Hn. Glenvil (Colne Valley)Owen, W. J.Williams, Rev. Llywelyn (Ab'tillery)
Hannan, W.Paget, R. T.Williams, Rt. Hon. T. (Don Valley)
Harrison, J. (Nottingham, N.)Paling, Rt. Hon. W. (Dearne Valley)Willis, Eustace (Edinburgh, E.)
Hastings, S.Palmer, A. M. F.Winterbottom, Richard
Hayman, F. H.Pargiter, G. A.Woodburn, Rt. Hon. A.
Henderson, Rt. Hon. A. (Rwly Regis)Parker, J.Woof, R. E.
Herbison, Miss M.Pearson, A.Yates, V. (Ladywood)
Holmes, HoracePeart, T. F.Younger, Rt. Hon. K.
Houghton, DouglasPentland, N.Zilliacus, K.
Howell, Charles (Perry Barr)Plummer, Sir Leslie
Howell, Denis (All Saints)Popplewell, E.TELLERS FOR THE NOES:
Hughes, Cledwyn (Anglesey)Probert, A. R.Mr. Wilkins and Mr. J. T. Price.

Clause ordered to stand part of the Bill.