New Clause. — (Release on Licence of Those Sentenced for Murder.)

– in the House of Commons at 12:00 am on 25th June 1965.

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(1) The Secretary of State may in accordance with this section release on licence a person serving a term of imprisonment for murder subject to compliance with such conditions, if any, as the Secretary of State may from time to time determine.

(2) The Secretary of State may at any time recall to prison a person released on licence under this section but without prejudice to the power of the Secretary of State to release him again on licence; and where any person is recalled his licence shall cease to have effect and he shall if at large be deemed to be unlawfully at large.

(3) Any licence granted under this section shall become null and void at the time when the full sentence of imprisonment passed upon the person convicted of murder would have expired.

(4) No person convicted of murder shall be released by the Secretary of State on licence under this section unless the Secretary of State has immediately prior to such release referred the questions whether it is desirable and in the public interest to release him and upon what, if any, conditions to the Judicial Review Tribunal in accordance with this Act and has received and considered the opinion of the said Tribunal upon the said questions.

(5) The Secretary of State may refer the said questions to the Judicial Review Tribunal at any time while such person is in custody after sentence or after recall.—[Sir J. Hobson.]

Brought up, and read the First time.

Motion made, and Question put, That the Clause be read a Second time:—

The House divided: Ayes 80, Noes 122.

Division No. 209.]AYES[2.23 p.m
Alison, Michael (Barkston Ash)Cole, NormanHarvie Anderson, Miss
Allason, James (Hemel Hempstead)Costain, A. P.Hill, J. E. B. (S. Norfolk)
Anstruther-Gray, Rt. Hn. Sir W.Cunningham, Sir KnoxHobson, Rt. Hn. Sir John
Astor, JohnCurrie, G. B. H.Hogg, Rt. Hn. Quintin
Baker, W. H. K.Dean, PaulHordern, Peter
Batsford, BrianDeedes, Rt. Hn. W. F.Howard, Hn. G. R. (St. Ives)
Beamish, Col. Sir TuftonDodds-Parker, DouglasHunt, John (Bromley)
Bell, RonaldDrayson, G. B.Irvine, Bryant Godman (Rye)
Bessell, PeterElliot, Capt. Walter (Carshalton)Kirk, Peter
Biffen, JohnEmery, PeterLloyd, Rt. Hn. Selwyn (Wirral)
Bossom, Hn. CliveErrington, Sir EricLongden, Gilbert
Brooke, Rt. Hn. HenryFletcher-Cooke, Charles (Darwon)McLaren, Martin
Buck, AntonyFraser, Ian (Plymouth, Sutton)Mathew, Robert
Bullus, Sir EricGiles, Rear-Admiral MorganMaude, Angus
Campbell, GordonGlover, Sir DouglasMeyer, Sir Anthony
Channon, H. P. G.Goodhart, PhilipMitchell, David
Chataway, ChristopherGoodhew, VictorMore, Jasper
Clark, William (Nottingham, S.)Griffiths, Peter (Smethwick)Munro-Lucas-Tooth, Sir Hugh
Clarke, Brig. Terence (Portsmth, W.)Hall, John (Wycombe)Peel, John
Percival, IanSmith, Dudley (Br'ntf'd & Chiswick)Walder, David (High Peak)
Pickthorn, Rt. Hn. sir KennethStudholme, Sir HenryWard, Dame Irene
Ramsden, Rt. Hn. JamesTaylor, Edward M. (G'gow, Cathcart)Weatherill, Bernard
Rawlinson, Rt. Hn. Sir PeterTaylor, Frank (Moss Side)Whitelaw, William
Redmayne, Rt. Hn. Sir MartinTemple, John M.Williams, Sir Rolf Dudley (Exeter)
Rees-Davies, W. R.Thorneycroft, Rt. Hn. Peter
Renton, Rt. Hn. Sir DavidTurton, Rt. Hn. R. H.TELLERS FOR THE NOES:
Royle, Anthonyvan straubenzee, W. R.Sir C. Taylor and Mr. Dance.
Sharples, RichardVaughan-Morgan, Rt. Hn. Sir John
NOES
Atkinson, NormanHart, Mrs. JudithOwen, Will
Bacon, Miss AliceHenderson, Rt. Hn. ArthurPage, Derek (King's Lynn)
Bagier, Gordon A. T.Hobden, Dennis (Brighton, K'town)Paget, R. T.
Benn, Rt. Hn. Anthony WedgwoodHolman, PercyParker, John
Berkeley, HumphryHooson, H. E.Parkin, B. T.
Blenkinsop, ArthurHorner, JohnPavitt, Laurence
Boston, T. G.Houghton, Rt. Hn. DouglasPrentice, R. E.
Bowden, Rt. Hn. H. W. (Leics S. W.)Howie, W.Probert, Arthur
Bray, Dr. JeremyHughes, Emrys (S. Ayrshire)Rankin, John
Brown, Rt. Hn. George (Belper)Hughes, Hector (Aberdeen, N.)Rees, Merlyn
Brown, Hugh D. (Glasgow, Provan)Irving, Sydney (Dartford)Reynolds, G. W.
Butler, Mrs. Joyce (Wood Green)Jackson, ColinRobinson, Rt. Hn. K.(St. Pancras, N.)
Carmichael, NeilJeger, Mrs.Lena(H'b'n& St.P'cras, S.)Rogers, George (Kensington, N.)
Castle, Rt. Hn. BarbaraJenkins, Hugh (Putney)St. John-Stevas, Norman
Chapman, DonaldJones, Rt. Hn. Sir Elwyn(W. Ham, S.)Shore, Peter (Stepney)
Crossman, Rt. Hn. R. H. S.Kelley, RichardShort, Rt. Hn. E.(N'c'tle-on-Tyne, C.)
Dalyell, TamKerr, Mrs. Anne (R'ter & Chatham)Short, Mrs. Renée(W'hampton,N.E.
Darling, GeorgeKerr, Dr. David (W'worth, Central)Silkin, John (Deptford)
de Freitas, Sir GeoffreyLawson, GeorgeSilkin, S. C. (Camberwell, Dulwich)
Delargy, HughLewis, Arthur (West Ham, N.)Silverman, Julius (Aston)
Dodds, NormanLipton, MarcusSilverman, Sydney (Nelson)
Donnelly, DesmondLubbock, EricSlater, Mrs. H.
Driberg, TomMacDermot, NiallSoskice, Rt. Hn. Sir Frank
English, MichaelMcKay, Mrs. MargaretSteel, David (Roxburgh)
Ennals, DavidMarsh, RichardSwingler, Stephen
Evans, loan (Birmingham, Yardley)Mason, RoySymonds, J. B.
Fitch, Alan (Wigan)Mellish, RobertThomas, George (Cardiff, W.)
Fletcher, Ted (Darlington)Mendelson, J. J.Thorpe, Jeremy
Fletcher, Raymond (Ilkeston)Mikardo, IanTuck, Raphael
Foley, MauriceMillan, BruceUrwin, T. W.
Foot, Sir Dingle (Ipswich)Molloy, WilliamVarley, Eric G.
Foot, Michael (Ebbw Vale)Morris, Alfred (Wythenshawe)Wallace, George
Fraser, Rt. Hn. Tom (Hamilton)Murray, AlbertWarbey, William
Freeson, ReginaldNewens, StanWeitzman, David
Greenwood, Rt. Hn. AnthonyNoel-Baker, Rt. Hn. Philip (Derby,S.)White, Mrs. Eirene
Gregory, ArnoldNorwood, ChristopherWhitlock, William
Grey, CharlesOakes, GordonWilkins, W. A.
Gunter, Rt. Hn. R. J.Ogden, EricYates, Victor (Ladywood)
Hale, LeslieO'Malley, Brian
Hamilton, William (West Fife)Oram, Albert E. (E. Ham, S.)TELLERS FOR THE NOES:
Hamling, William (Woolwich, W.)Orbach, MauriceMr. Crawshaw and Mr. Park.
Harper, JosephOrme, Stanley

Photo of Sir Harry Hylton-Foster Sir Harry Hylton-Foster , Cities of London and Westminster

In the circumstances, I will not now select for Division new Clauses 3 or 4. The next Amendment to be selected, therefore, is Amendment No. 4 in the name of the right hon. and learned Gentleman the Member for Warwick and Leamington (Sir J. Hobson)

Photo of Sir John Hobson Sir John Hobson , Warwick and Leamington

I beg to move Amendment No. 4, in page 1, line 6, to leave out "guilty" and to insert "convicted".

This is a drafting point with which I can deal shortly. As I understand it, in all the criminal Statutes the sentence is usually made to depend on convictions. As the Bill stands at present I am troubled as to what might happen if a civil court were to find, on an issue of whether a man had been guilty or not, that he had been guilty of murder. This has happened. Section 1 of the Offences against the Person Act, 1861, provided that Whosoever shall be convicted of murder shall suffer death. In most of the Statutes one finds that it is upon conviction of the offence that the sentence is provided. In the Homicide Act, 1957, Section 5(3), it is provided that: … if a person charged with capital murder is convicted thereof he shall be liable to the same punishment for the murder as heretofore". The Children and Young Persons Act, 1933, provided sentence of death should not be passed against a person convicted of an offence who appears to be under 18.

I wondered whether draftsmanship practice had changed recently and I looked at one of the recent Statutes, the Sexual Offences Act, and I found Section 37(3) says … the punishments which may be imposed on conviction on indictment or on summary conviction …". Therefore, it seemed that throughout the whole of the normal statutory provisions about punishment the practice of the courts is that sentence depends upon convictions.

There was a case recently in which a man was acquitted of murder. Years later the counsel who prosecuted him wrote in a newspaper that that man was guilty. He brought an action against that counsel and the newspaper which published the story. The defendants won the action so that the civil court had declared that the man was guilty of murder. The Bill, as I understand it, says that at the moment anyone guilty of murder should suffer a punishment which we have yet to decide. I would not like someone who had lost a civil action in those circumstances to be in peril of a sentence, and for this reason I thought it was as well to clear up the matter or find out why the Bill was in this form.

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

This is a purely verbal drafting Amendment, as the right hon. and learned Gentleman the Member for Warwick and Leamington has said. I recognise there is some force in it and, in support of his argument, I will draw his attention to the fact that the Long Title of the Bill uses the word "convicted" whereas Clause 1 changes it, for some reason I cannot remember, to the word "guilty". Therefore, in the interests of saving time of the House and of semantic purity, I am ready to accept the Amendment.

Amendment agreed to.

Photo of Sir Harry Hylton-Foster Sir Harry Hylton-Foster , Cities of London and Westminster

The next Amendment is Amendment No. 5 which I suggest might be discussed with Amendment No. 7, in page 1, line 7, at end insert: such term as a full Court of Criminal Appeal (including the judge who tried the case) shall in its discretion determine". and the promoter's Amendment, Amendment No. 6, in page 1, line 7, at end insert "life".

Photo of Mr Peter Rawlinson Mr Peter Rawlinson , Epsom

I beg to move Amendment No. 5, in page 1, line 7, to leave out "sentenced to imprisonment for" and insert: liable at the discretion of the Court to imprisonment for life". Having caught the promoter of the Bill in a frame of mind in which he is accepting Amendments so freely and having at least persuaded him to change the word "guilty" to "convicted", I hope that he will feel amenable and prefer the words set out in this Amendment. The House will recollect that at this stage of the Bill Clause 1(1) reads: No person shall suffer death for murder, and a person guilty of murder shall, subject to subsection (4) below, be sentenced to imprisonment for and then comes the hiatus which we debated during the Committee stage. What is to be put in there? What is the sensible and reasonable thing that should be put in there when this Bill will create such a great change in the criminal law, if it ever comes into law? The words to be put in suggested by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson), or alternatively the words suggested by the promoter of the Bill, are words which reveal a great difference in principle. I hope that when the House comes to make a decision on this point right hon. and hon. Gentlemen will reflect on the effect in the change of the law which has been made by the abolition of hanging.

It is the abolition of the unique penalty which some have regarded with horror and which everyone has regarded with the greatest distaste. Some have believed it necessary and some have believed it could be abolished without real damage to society. It was nevertheless a unique penalty, and that penalty, as the Bill comes before us, is to be eradicated from our law. The effect is to bring murder out of the unique category of crime in which it stood and to place it in the ordinary hierarchy of serious crime in the criminal calendar. The killing of another human being has never been considered so unique a crime in itself as to withdraw it from the normal procedure whereby the judge, sitting in the name of the Sovereign and also in the name of society, imposes upon a convicted criminal the sentence of the court. The killing of a human being has never been considered so unique that we should take from the judge the power to administer a proper penalty and punishment. But it was only killing in certain circumstances and in certain conditions which made it into the crime of murder which imposed on the judge the duty to sentence a person to death.

There is a very narrow boundary between the crime of manslaughter for which a person has been convicted for being responsible for killing another but which did not amount to murder and the crime of murder. On one side of that narrow boundary the judges were given the power to sentence and on the other side it was taken away. How narrow that boundary is any member who has had anything to do with the practice of the law will know only too well. A person's words when the death occurred and the provocation arose, whether accepted by the jury or not, may take a killing into the category of manslaughter. A person's condition of mind may determine whether a person charged with murder should be convicted of manslaughter. Many right hon. and hon. Members will know how narrow the boundary is between the two.

It would, however, be very strange if, having abolished this unique penalty, we said that the judges should have withdrawn from them the power to determine the appropriate penalty for the offence. I see no logic or sense in saying that if we abolish capital punishment the judges should not have the power which they have in respect of manslaughter. Why is this argument presented periodically? It has been presented this morning to a certain extent. The historical position of the courts and its relationship to this House has in the past revealed the jealousies between the judiciary and the Legislature. There have been some very historic occasions when this has happened.

I was very surprised to hear, as we often hear from hon. Members opposite, the implied criticism of the judiciary. We have certainly heard it from certain quarters during the proceedings on this Bill. Some Members opposite, not in speeches, but by the noise which they occasionally made, seemed to indicate their view that the judges have no knowledge of penology or criminology and that they are the great experts about these matters and know all about them. Some hon. Members on both sides of the House know a lot about them, but I wonder how many of those whom I have heard making certain interjections have visited prisons or detention centres or have spoken to probation officers, or how much they know about after-care service except what they gleam from a superficial attitude of mind. The practice of some hon. Members opposite of interrupting as soon as mention is made of the knowledge of judges is too prevalent. I do not include my right hon. and hon. Friends who have been taking part in these debates. What may have been said in the past about the judges and their lack of knowledge of penology and criminology certainly should not be said now. Members opposite who make these interventions probably have one-tenth of the knowledge of High Court judges on these matters.

We would weaken at our peril the powers of the judiciary. I know that we in this House think that we are very important. Perhaps we are very important. But there is another side to the society in which we live. It is of the greatest importance that there should be a strong and powerful judiciary and that this House should be seen to support it. Trial by jury is one of the rights of the Englishman. He has not only the right to vote and to have elected representatives in the House of Commons. I should very much hate to see this House, by implication or by action, try to induce any weakening in the strength of the judiciary or of the historic and traditional form of English trial.

2.45 p.m.

I share some of the views of my right hon. Friend the Member for Hampstead (Mr. H. Brooke) about sentencing policy and review and parole boards. I should like to see grow up some sort of organisation to which a man who has been sentenced can make representations. Many right hon. and hon. Members, I am sure, receive letters from prisoners who wish them to make representations to the Home Secretary about their having an organisation to which they can make representations. The courts should have a say in this matter.

I know that it can be said that the Home Secretary, as the head of a great Department of State, has a duty to ensure that that Department carries out its duties efficiently, humanely and with the benefit of the greatest expertise which it can draw from that Department. The Home Secretary will recollect that when Lord Salisbury was Prime Minister and Lord Halsbury was Lord Chancellor it was believed that the Lord Chancellor could join the Home Secretary in, for instance, recommending the exercise of the prerogative of mercy. It may be that the suggestion that the Home Secretary should have this executive power which we have made today should be amended.

While anyone who has served in a Government will have the greatest respect for the great office of State of the Home Office, I cannot understand why there should be utter and complete confidence that its administration is so perfect that we can take the power of sentencing from the normal and traditional body and give it to the Home Secretary. I do not suggest that the Home Office does not perform a most important task and does not do it conscientiously. Whatever may be said, the Home Secretary is an officer of the Government who has a tremendous burden placed on him. I cannot understand why he should cling to the desire to have the power to be able to decide whether a man should serve life imprisonment or how long he should stay in prison.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Camberwell Dulwich

Would the right hon. and learned Gentleman explain how he reconciles the view which he is putting forward with that of one who feels that for these classes of murder the sole penalty should be death?

Photo of Mr Peter Rawlinson Mr Peter Rawlinson , Epsom

I have expressed my view that there should be the unique penalty. Once that is removed from the Statute Book, then I say, "Very well. Murder should fall into line with the ordinary hierarchy of serious crime". I made my position very clear. The hon. and learned Member can read the HANSARD reports in which I have set out my view in respect of those cases in which hanging was the appropriate penalty for murder. I have never said that it was the appropriate penalty in a technical case of murder—for instance, a case of near-infanticide, where a wretched woman kills her child in distressing circumstances. I have never included that sort of crime in my remarks. I have said that the death penalty should be retained for certain types of murder.

So far, the will of the House' is that that shall not be so, and that being the case the sensible thing to do is to ask: what is the alternative? What is the right thing to do? Is it really sensible to provide that judges shall be able to pass sentence in cases where there is evidence of diminished responsibility, or of rude words being spoken before a blow was struck, but that if the offence comes on the other side of the line the judges should not have that power? Are we then to provide that the penalty must be imprisonment for life, with recommendations being made to the Home Office thereafter?

I cannot see the logic of that. Murder must be placed in its proper category. In a case of technical murder why should not the judge be able to say, "You shall be sent to prison for a few months", or even, "You shall be put on probation"? Why is there not enough mercy among hon. Members opposite to make them take the view that this is what should happen? It is no use their saying that in cases of technical murder the judge must award a sentence for life, which can be reviewed immediately afterwards and that, in appropriate cases, this can be followed by release. The judge should be able to say, there and then, at the trial, that the prisoner is not to be sentenced to life imprisonment and taken away to the cells. He should even be able to say, "Although this is a crime of murder, in the circumstances it does not call for imprisonment."

On the other hand, in those cases where the murder is one that horrifies everybody, the judge should be able to award imprisonment for life, in recognition of the condemnation of society, at the time of conviction. If there is any question of the prisoner's state of mind or physical condition changing afterwards, the case can be reviewed, but judges should be able to award definite sentences at the time of conviction.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Is it the view of the right hon. and learned Gentleman that the Home Secretary should have the power to release on licence in the case of a determinate sentence as well as a sentence of life imprisonment?

Photo of Mr Peter Rawlinson Mr Peter Rawlinson , Epsom

I do not think so. I was very attracted by some of the Amendments put down by my hon. Friends, but a point of order was raised just when I was going to put my view on them. First, I am in favour of judges awarding sentences. I am in favour of a review board having the same powers as the Home Secretary now has in respect of indeterminate sentences, and if it were found that this worked well, the system could be extended thereafter to determinate sentences. But I emphasise that in my view the judge is there to award a sentence at the moment when a person is found guilty. I believe that public opinion would be far happier if the Amendment were agreed to, so that a judge was able to award the sentence which, in his view, was appropriate. Mitigating circumstances could then be put before the judge and there would not have to be the automatic imposition of a sentence of imprisonment for life.

I hope that the Amendment will be accepted. Above all, I ask the Home Secretary to consider what disadvantages there may be if the Amendment is not accepted. I wish that he would try to disrobe himself from his office and look at it from a little distance away, so that he could see whether or not it is right for judges to have this power, rather than that we should have the strange anomaly which I suggest would be created if the Amendment were not accepted.

Photo of Mr William Deedes Mr William Deedes , Ashford

On a point of order. Are we now discussing two Amendments or three, Mr. Speaker? I thought that you had indicated that we were discussing Amendments Nos. 5 and 7, but that the House might wish to include Amendment No. 6. It seems to me that there is some difference between that Amendment and the other two. I should like to know what your wishes are.

Photo of Sir Harry Hylton-Foster Sir Harry Hylton-Foster , Cities of London and Westminster

I invited the wishes of the House, and hearing no discordant sound I imagined that the House had accepted the proposition to discuss all three Amendments together. It is not a matter of great importance, in respect of the time factor or anything else, and if the House is not content let us now discuss Amendments Nos. 5 and 7 together and deal with Amendment No. 6 immediately afterwards.

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

The general question of principle raised by all three Amendments was fully and—I should have thought—adequately discussed in Committee. It was only by a mechanical accident that the question was not decided at that time, and that the gap which is now in the Bill was not filled in as the Committee clearly wished it to be. However, that was not done, and we therefore have to decide the question again. I mention that point only to excuse—if it needs excuse—the brevity of what I have to say to the House.

With the greatest diffidence I suggest that the right hon. and learned Gentleman's Amendment is mechanically impossible. He proposes to leave out the words "sentenced to imprisonment for" and to insert the words: liable at the discretion of the Court to imprisonment for life. This means that if a court chose to exercise its discretion it could sentence a convicted person to imprisonment for life.

If the court did not choose to exercise this discretion it would, under this Amendment, so far as I can see, have no power to sentence him to any imprisonment at all. So what the right hon. and learned Gentleman is recommending to the House, under the guise of giving the court a power to impose a varied, determinate sentence, is merely to take away the mandatory duty to impose a sentence of life imprisonment, and make it discretionary in such a way that, if the discretion is not exercised, the man cannot be sentenced at all. It seems to me that this is really not a very serious proposal to make to the House and that the House ought not to accept it.

There is another serious objection to it. Suppose I were mistaken in that interpretation of his Amendment—though I am afraid that in my innocence I think it is not mistaken—but if that argument were mistaken, there would be another defect in this Amendment.

3.0 p.m.

Photo of Sir John Hobson Sir John Hobson , Warwick and Leamington

Is it not a fact that the Statutes providing for maximum sentence of life imprisonment provide that the person shall be liable to imprisonment for life or liable at the discretion of the court to imprisonment for life? Is not that the usual form of words which is found throughout all our Statutes which provide for what is called the life penalty—for manslaughter, rape, burglary, piracy, and a host of other offences?

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

The right hon. and learned Gentleman is an ex-Attorney General and I do not pretend for a moment to compete with him in knowledge or experience of the law, but in the case of manslaughter the sentence is statutory, and by Statute the court has the power to inflict what sentence it likes, including a sentence of life imprisonment. So that the objection I am making to this Amendment does not apply in cases of manslaughter, or the other cases to which the right hon. and learned Gentleman has referred.

What I miss from this Amendment is any power in the court to inflict any sentence of imprisonment at all, except a sentence of imprisonment for life, which it makes discretionary instead of mandatory. With all respect to the right hon. and learned Gentleman, I think that it is plain nonsense.

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

I shall not continue with this part of the argument now. If I am wrong there will be other opportunities to argue it.

What I want to deal with is what seems to me another objection to this Amendment. If I am wrong in the interpretation I have offered of this Amendment, then the court would have power to inflict a determinate sentence of a very long term in suitable cases. I think the right hon. and learned Gentleman mentioned a possible term of 30 years. It is common ground that long sentences ought to be subject to some kind of review, and, indeed, everybody who voted for new Clause No. 2 is committed to that opinion. In the case of life imprisonment there is a statutory provision for such a review. I concede at once that many people are not satisfied with the machinery for administration of Section 27 of the Prison Act, 1952, but everybody accepts the principle.

Under the right hon. and learned Gentleman's proposal, if there were a sentence of 30 years, Section 27 of the Prison Act, 1952, would not be available, and the Home Secretary would be deprived of any power to review it at all. I am quite sure that the right hon. and learned Gentleman did not intend that. I am sure that he does not support it. I am sure he does not defend it. That, however, is the Amendment he is asking the House to accept, and I am sure the House will not be willing to accept it.

My hon. Friend the Member for Watford (Mr. Raphael Tuck) has another Amendment, No. 7, which is being discussed now, and which I simply cannot follow at all. It seems to me to mean that if a jury convicted a man of murder the judge would have no power to sentence him at all, but the matter is then referred to the Court of Criminal Appeal, and the Court of Criminal Appeal acts as the court of first instance, to determine what the penalty should be. I must say that this is not a proposal which recommends itself to me.

I do not know whether I am in order in saying something now about Amendment No. 6. If I am, I would say a word about it now.

Photo of Sir Harry Hylton-Foster Sir Harry Hylton-Foster , Cities of London and Westminster

The hon. Member is not now, because I retreated from what I thought was the agreed wish of the House. We shall get to Amendment No. 6, if it should not fall on this Amendment being adopted.

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

Then perhaps I can state shortly the argument in favour of it, because it might persuade hon. Members inclined to vote for Amendment No. 5 and Amendment No. 7 to vote against them in order that Amendment No. 6 shall not fall.

It seems to me that the abolitionists and rententionists are rather reversing their positions on this matter. In the days when the death penalty was mandatory on a conviction for murder, abolitionists used to say what the right hon. and learned Gentleman has been saying with great great force and eloquence, namely, that murder is not always the same crime, and that it is wrong to have a mandatory sentence which does not vary, particularly when it is a sentence of death.

The right hon. and learned Gentleman, who has always been opposed to the abolition of the death sentence anyway, is now saying that a mandatory sentence of life imprisonment is wrong, though a mandatory sentence of death used to be right. But the right hon. Gentleman is quite right. Murder is not always the same crime. It is sometimes very grave indeed, and sometimes, though grave, is not so grave as all that, so the sentence ought to be different. But what is true, and what I would advise the House not to depart from, is that murder, whether grave, or not so grave, is a crime unique, a crime in its own category, and a crime which society is bound to condemn by enacting a mandatory sentence for it, whatever happens afterwards in the administration of it.

Not all my views on this subject are widely and universally accepted, but I am sure that that view is, and it has been accepted in every previous amendment which the House has enacted in the law relating to the death penalty. It has never been suggested at any other stage in the whole of our penal history that if we do not execute a man for murder there should be a penalty other than life imprisonment. We did it in 1957. We have done it on every occasion throughout the centuries. When a death sentence has been reprieved, the substitute has always been a sentence of life imprisonment.

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

Is the hon. Gentleman aware that overseas, and throughout the Continental countries, where there has been abolition they have frequently provided for long and determinate sentences?

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

Maybe they have, but I am dealing with our practice, and not with the practice of other countries. We are responsible for our practice, and not for theirs, but it seems to me that the present position adequately deals with all the realities and all the practicalities of the situation. It imposes a life sentence automatically for this unique crime, and it gives the Home Secretary power, if he thinks fit, to deal with those sentences under Section 27 of the 1952 Act.

It is a short Section, and in case all hon. Members are not acquainted with it I shall read it. Subsection (1) says: The Secretary of State may at any time if he thinks fit release on licence a person serving a term of imprisonment for life subject to compliance with such conditions, if any, as the Secretary of State may from time to time determine. This combines the necessity, as we think, of inflicting a life sentence with a power to review it.

Subsection (2) says: The Secretary of State may at any time by order recall to prison a person released on licence under this section, but without prejudice to the power of the Secretary of State to release him on licence again; and where any person is so recalled his licence shall cease to have effect and he shall, if at large, be deemed to be unlawfully at large. Unless the new Clauses had commended themselves to the House, or either of them had done so, Section 27 of the 1952 Act, combined with the mandatory sentence of life imprisonment, would deal with the realities of the situation.

As the House has decisively rejected any interposition of a judicial review, this is the right way to deal with the matter. I hope that the House will so resolve.

Photo of Mr William Deedes Mr William Deedes , Ashford

I am a little surprised that the hon. Member for Nelson and Colne should accuse some of us of shifting our ground. I thought from the latter part of his remarks, when he dilated on the uniqueness of murder, that he was uttering sentiments to which even those of us who have been in these proceedings from the start would find new as coming from him. I do not want to pursue that point but to share the logic of my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) on what we are trying to do by this Amendment.

One of the criticisms of the old law was its illogicality. If we pass the Bill as it stands we shall perpetuate that. One of the criticisms always levelled against the old law was on its inflexibility and rigidity with its insistence that regardless of the offence on the judge should be imposed the task of going through a macabre routine. It is true that the routine in every case will now have lost some of its macabre content, but it will remain a routine.

I listened to everything that the hon. Member said, but I still cannot follow on what particular consideration he suggests the court should not have discretion. What discretion is left when we say that in these particular instances it should not have discretion? With the going of the unique penalty it seems that there is nothing left which is unique.

There seems to be a much more serious point, which the hon. Member did not touch upon. What force will the life sentence have as a deterrent if it is to be given indiscriminately? The hon. Member addressed himself to this Amendment in the sense that some of us might be seeking to give the court discretion to impose a higher sentence, a longer term of years than life imprisonment is generally held to convey. That is not in my mind. I wish to give the court discretion on occasion to give a low sentence, or something less than a life sentence.

Where is the majesty left in the law in respect of this particular sentence if the life sentence is to be given on every occasion regardless of the circumstances? Where is the deterrent if a great number understand that after a life sentence is imposed the convicted person may be released within a very few months? This seems exactly contrary to what we are trying to do.

We have here inflexibility, and the very criticisms levelled against the old automatic punishment by failure to provide the deterrent which we should provide. This was precisely what many of us feared at the beginning of discussions on the Bill when those of us who are retentionists could see clearly that when the main issue was lost nothing adequate would be put in its place. That is why I strongly support this Amendment.

3.15 p.m.

Photo of Mr Emlyn Hooson Mr Emlyn Hooson , Montgomeryshire

I entirely disagree with the speech of the right hon. Member for Ashford (Mr. Deedes). I should have thought that flexibility is allowed for in this arrangement because the Home Secretary has the right to review sentences. I should have thought that if this were left to the judges they have not the right materials on which to act, or not in all cases. The right hon. Gentleman looks surprised. I have had experience of prosecuting and defending in many cases. In certain circumstances, all the evidence that ought to come out and which ought to be known on sentencing is not available to a judge.

Take, for example, the case where defence counsel is faced with this alternative. Either he puts forward the defence of provocation or of diminished responsibility, or both. He may decide for tactical reasons, or because of express instructions from his client, only to put forward one of them. The man, never- theless, is found guilty and the judge passes sentence on the information that has been made available to him. It may be that the facts which would give rise to the other defence, which is discarded for tactical reasons or on express instructions, are very pertinent on the question of how long the sentence should be.

Such information becomes available to the Home Secretary, in practice, very often through medical reports. In the old days, medical reports available at trial included what the prisoner had said to the prison doctor. Very often the prisoner had made statements when he was having medical tests. He may have had quite a lot of alcohol to drink in order to have an electroencephalogram to test his mental state, and while he had had this drink he may have said things to the prison doctor which were very pertinent to his state of mind and his reasons and motive for the murder. These things are no longer included in medical reports, but they must become available at a later stage to the Home Secretary when he is considering how long a life sentence should be.

Photo of Mr William Deedes Mr William Deedes , Ashford

Is not that so in the case of other serious crimes?

Photo of Mr Emlyn Hooson Mr Emlyn Hooson , Montgomeryshire

I would be entirely in favour of the type of reform suggested this morning by the right hon. Member for Hampstead (Mr. Brooke), namely, that there should be at some stage of our development a type of parole board to reconsider long-term sentences in the light of other information. However, at present, this is the best practical solution. It has worked very well.

Those who support the Amendment seek a kind of circumventing of the Home Secretary's right to review these sentences. All those who have had practical experience of this would agree that they have appeared in cases where they have thought that the life sentence should be very short and also that they have appeared in cases where they have thought that the life sentence should be very long. The matter is best determined by the Home Secretary in an informal way by what is essentially an administrative process. The law of murder, because murder is a unique crime, is in many ways, because of our development, in a unique position today. It is the forerunner of reforms which we need and it is the right of the Home Secretary to review sentences of this kind.

I would be against leaving to the discretion of the judges whether there should be a life sentence. It should be mandatory. It should be within the discretion of the Home Secretary to review it in the way that he does at present.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Camberwell Dulwich

I want to say a few words in support of what has been said by the hon. and learned Member for Montgomery (Mr. Hooson). First, the procedure for life imprisonment seems to me to be precisely that form of experiment in the indeterminate sentence which was referred to earlier in the debate and which will be of great value. Secondly, viewing the matter in that way, I am unable to understand what has changed since the Homicide Act, 1957, which we have been told withdrew from the category of capital murder seven-eights of all murders committed. If it is right today that there should be a variable sentence at the discretion of the court, it was even more right then, because what is being done now is to withdraw only one-eighth of all murders, and those the most heinous murders; in other words, those murders which are less likely to command a comparatively low sentence.

Photo of Mr Peter Rawlinson Mr Peter Rawlinson , Epsom

Does the hon. and learned Gentleman join with some of his hon. Friends in believing in law reform or not?

Photo of Hon. Sam Silkin Hon. Sam Silkin , Camberwell Dulwich

What I ask is—and I hope that someone will answer the question—what has changed since 1957 to make what was then wrong right today? That is a question which has not been answered by the right hon. and learned Gentleman. If we are to have an answer to that question I shall certainly listen to it. As things stand today, we are concerned with a very small number of what are regarded as particularly heinous murders and, therefore, the very murders that are unlikely to command the very low sentences which have been referred to by the right hon. Member for Ashford (Mr. Deedes).

Photo of Sir John Hobson Sir John Hobson , Warwick and Leamington

What has changed is that in 1957 the great controversy of principle was whether, for the first time, there should be an inroad into capital punishment for murder. There was very little looking forward to see what the result would be. What we are doing now is to decide whether all capital punishment should be abolished, and now for the first time we are devoting our minds, with the experience of the intervening eight years, to what the new situation would be.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Camberwell Dulwich

Further to that, there has been appointed the Royal Commission which considers this matter in a far wider context. If it is to consider it in a far wider context I shall be delighted to see what the answer is, but in the context of murder alone the fact remains that nothing has changed since 1957 which would justify this change in the law.

We have to have regard to public opinion. The right hon. and learned Gentleman advanced public opinion as a ground for supporting his Amendment. The fact is that the public would be much more likely to support the changes that we are making in the Bill as a whole if the categorical sentence of life imprisonment were retained for all murders as it now is for seven-eighths of murders. What we do in the future when there has been a general review of the penal system is an entirely different matter.

For those reasons, I oppose the Amendment.

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

I have not intervened in any of these debates on the death penalty, either on this occasion or on other occasions during the 14 years that I have been in this House, because I have been troubled and doubtful about this difficult subject. One of my objections to the death penalty was its automatic nature. I have always been convinced that the death penalty would have been much more tolerable and supportable if it had not been automatic and if the judge had been given a discretion, or perhaps if a panel of perhaps three judges, rather on the lines suggested by the hon. Member for Watford (Mr. Raphael Tuck) in a different connection, had had that duty. In fact, it would perhaps be too great a burden to have put upon a single judge, to give him a discretion as to whether the death sentence should be imposed or not. But that day seems to be past.

What I cannot understand is why I should now be expected to swallow in the form of an automatic life sentence something that I regarded as so objectionable then. Automatic sentences are always objectionable, and usually wrong. What is the reason for an automatic sentence? It is because one does not trust the tribunal to give as much of a sentence as one would like. Where a minimum penalty is prescribed in a statute it is because Parliament, for some reason or other, does not trust the tribunal to be as harsh as it wishes it to be. That is originally why death was a mandatory penalty for murder.

Do we really say nowadays that we cannot trust the judges to give the right term of imprisonment when the death penalty is abolished? This seems to me to be a wrong view to go out from this House. It seems to me that for murder, as for anything else, now that there is no question of the death penalty, judges can perfectly well grade their punishments as they grade them for other serious crimes.

The reasoning of the hon. Member for Nelson and Colne (Mr. Sydney Silverman) seems inadequate. He says, "They can always be released". He says that we can give them the maximum and then release them when we feel it right to do so. Irrespective of the quality of their crime at the time when the crime was committed, irrespective of the degree of provocation, irrespective of anything else, one nevertheless slaps on the maximum and then, from bounty, from Grace, one subsequently reduces it.

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

The hon. and learned Gentleman realises, I am sure, that the great difficulty—and this has been advanced by retentionists against the whole principle of abolishing the death penalty—is that when a man has committed murder he may commit murder again. In order to determine that question—and the question of release on licence must depend on that other question—there are two factors, not one, to be borne in mind.

One is certainly the nature of the original crime, which the trial judge is perfectly capable of assessing. But the other and much more important factor is what happens to the man in the course of the years, which is something that the trial judge, not being omniscient, can never know. That is why, surely, it is safer to sentence a man to life imprisonment knowing that if he ever satisfies the conditions on which he could be released, the Home Secretary has power to release him. It is very difficult to see what is wrong with that position.

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

The trouble with that argument is that it proves too much. It proves that one should give a life or an indeterminate sentence for all serious crimes of violence whether they result in death or not. It is the argument for the indeterminate sentence so ably advanced by the hon. and learned Member for Montgomery (Mr. Hooson), but it is one that is not before us now, nor is it likely to be before us for a very long time. We have to deal with the structure of sentencing by the criminal courts as it is today, and as it is likely to be for many years ahead. I say that this Amendment fits into that pattern far more logically—and, I think, far more humanely—than an attempt to start indeterminate sentencing now.

It is right that a judge should give a life sentence if he thought that there was any danger of the man committing a second murder. I have no doubt that he would do so, and that public opinion would demand it. Judges are sensitive to public opinion in these matters, but public opinion works both ways. One of the great reasons advanced by the hon. Member for Nelson and Colne over the years for promoting his Bill is that public opinion would not stand the sight of the black-capped judge condemning to death a woman whom everyone knew would be reprieved. Why should public opinion now stand to see a man or a woman condemned to a sentence of life imprisonment that the public know perfectly well he or she will not serve?

If the hon. Gentleman asks, "Why did you not say that in 1957?" the answer is that we were wrong then and are right now, and why can we not have the manhood to admit it? I am quite sure that in the present structure of sentencing this Amendment is correct. I remember from my own experience many occasions on which it was quite clear that a sentence of one or two years would have been imposed for some actions which were charged as murders.

I know perfectly well that it is virtually impossible for the Home Secretary to let people out under four or five years at the minimum, because there are political consequences in exercising the power of mercy which would not arise with a judge, and which would not put him under any pressure. There are men and women in prison today who, if this discretionary sentencing power had been with the courts, would not be in prison now, because they would have had a sentence of one, two or three years.

As a result of either a capital sentence in the old days which has been commuted by the prerogative of mercy or as a result of the 1957 Act, these wretched men and women have to stay in prison far longer than I believe they should. For that reason, I think that of all the debates I have listened to on the Bill—I have listened to a great many, although I have not taken part in them—I feel strongest about this, because I am sure that this proposal is on the side of humanity and public opinion and that without it the Bill will be a bigger blot than it is already.

Photo of Mr Raphael Tuck Mr Raphael Tuck , Watford

I want briefly to comment on the new Clause which stands in my name and my reason for having put it forward. First, I associate myself with the remarks of the right hon. and learned Member for Epsom (Sir P. Rawlinson) and the hon. and learned Member for Southport (Mr. Percival), although I add one correction: when I said that I did not think that the judges had much knowledge of criminology as far as their reviewing powers were concerned years later, that did not mean that I do not believe that they are the proper authority for sentencing men convicted of murder. They sentence men for rape or, for fraud or for manslaughter. Why should they not sentence men for the extreme crime of all? Why should they be "rubber stamped"? Why should an unfortunate woman who has murdered her imbecile child be put in prison for life and have to stay in agony until the Home Secretary releases her?

The hon. and learned Member for Darwen (Mr. Fletcher-Cooke) mentioned the judge's recommendation. I agree with him. The reason I put down the new Clause is that, while there is a provision for appeal to the Court of Criminal Appeal if the sentence is too heavy, there is no provision for the Court of Criminal Appeal to be approached if the sentence is too light. It may be that a judge in his compassion sentences to too light a sentence a man who is likely to commit murder again.

As I said on Second Reading, I am concerned with the security of the people, and I feel that it would be far safer to give a full Court of Criminal Appeal the power to sentence, so that too light a sentence would not be passed. If there were provision for appeal to the Court of Criminal Appeal on the ground of too light a sentence, I should agree with the terms of the Amendment. As it is, I feel that the Court of Criminal Appeal in its wisdom would preserve the security of our people by passing a heavy enough sentence on murderers who might be likely to murder again.

3.30 p.m.

Photo of Mr Victor Goodhew Mr Victor Goodhew , St Albans

It is a great pleasure to hear speeches made by two members of the Government apart from the Sponsor of the Bill and to hear them not giving in to the muttered threats of the hon. and learned Member for Northampton (Mr. Paget), who seems so anxious to keep them quiet. It would have been better had we had a free vote on this very important matter instead of having a Whip imposed, with everybody being pestered for pairs in the last few days—especially those who voted against the Bill on Second Reading. It is sad when a matter of this importance to the public has been introduced into the House in such a thoroughly underhanded manner and dealt with in an underhanded manner right the way through its various stages.

We have to find a substitute for the deterrent of the death penalty which, in the minds of some of us on this side of the House, has deterred many people from committing murders which they might otherwise might have committed. It is astonishing to me that the value of the death penalty as a deterrent has been written off by the Home Office, as if it were non-existent. This is the same Government who are advising people not to smoke for fear of getting lung cancer, who are urging us to keep death off the roads and is warning people to take care when they are driving. I would have expected them to accept that the loss of life is something which people wish to avoid. However, this is a matter which applies now, and we have to find a substitute for the deterrent. I will leave that there, Mr. Deputy-Speaker; I notice that you are becoming restless. [Interruption.] I hear "Tut-tutting" from the other side of the House. Hon. Members must not be so sensitive.

If we are now to find a substitute for the death sentence, we must not only be satisfied that we are doing what my right hon. and hon. Friends have been trying to do, which is to ensure that there is no inhumanity in the treatment of prisoners. We also have to be certain that there is a deterrent so that people involved in crimes of violence feel that it is not worth going so far as to kill the person upon whom they come in the course of their crime.

The difficulty in which I find myself is that, while I wish to associate myself with views expressed on this matter on the other side of the House, I still ask myself how it can be possible to accept the status quo which is desired by the sponsor of the Bill when the status quo has in recent experience resulted in murderers serving a much shorter sentence than persons who have merely been committing other violent crimes.

This is the crux of the matter. If we accept a position in which in the end a criminal might just as well kill the policeman or anyone else who may apprehend him and we encourage him to do that to avoid capture, we have failed to maintain law and order. I want to see a system in the Bill whereby a person contemplating murder, generally speaking—particularly violent murder—knows that if he commits it he will serve a longer sentence than if he were merely to commit his other crime.

That is why I see great sense in the Amendment moved by my right hon. and learned Friend. He is saying that the sentence should be decided by the court. What is wrong with the status quo which the sponsor of the Bill would like to see maintained is that on one side one has the Executive exercising its discretion in releasing murderers on licence, and on the other side one has the courts sentencing people for other crimes to a fixed term of imprisonment. It seems to me that the obvious answer is that if all sentences were left to the courts as suggested in the Amendment, the courts would see to it that murder, generally speaking, carried a higher penalty than the lesser crimes and we should retain this relative deterrent which is the crux of the Bill.

I will mention a case about which I heard a year or two ago. A youth went out to rob a warehouse. He was interrupted by an elderly nightwatchman whom he coshed and made insensible. Having done so, he hesitated for a moment and then decided, being under 21 and knowing that he could not hang at that time even, that, rather than risk the man coming to and discovering him in his crime, he would deal with him completely. So he opened the gates of a lift shaft and pushed the man down the shaft, and the man died.

The youth's defending counsel, talking to him afterwards, said "You do not want to be branded as a murderer, do you? Surely that is something that you would prefer to avoid. I think that we might get away with a charge of manslaughter if you pleaded guilty to it on the basis that there was a scuffle during which the man fell down the lift shaft." The youth replied at once "No. If I go for manslaughter I shall end up with a much longer term of imprisonment, for if I get a life sentence for murder I shall be out in nine or 10 years' time."

What is wrong with the present system is that there is a general acceptance of the fact that, because the Executive deals with these cases instead of the courts, in the end the murderer stands a good chance of getting a shorter sentence than a person who is convicted of other crimes of lesser seriousness. Therefore, I warmly support the Amendment and hope that the Home will pass it.

Photo of Mr Peter Thorneycroft Mr Peter Thorneycroft , Monmouth

I hope that we shall not conclude the debate on these important Amendments without having the Home Secretary's views. I have felt throughout these discussions that perhaps the most important and responsible task we have is to consider the question of the alternative to the death penalty in cases of murder.

The hon. Member for Nelson and Colne (Mr. Sydney Silverman) made one of the most remarkable interventions I have heard from him during the proceedings on the Bill. It was very odd of him to say that abolitionists and retentionists were changing places in view of the fact that he went on to make a passionate plea that murder was a unique crime which needed a unique and mandatory sentence.

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

I do not know whether the argument comes oddly from me or not, but it is one that I have advanced from the beginning of this controversy many years ago and which I have put on every suitable occasion when I have taken part in any of these debates.

Photo of Mr Peter Thorneycroft Mr Peter Thorneycroft , Monmouth

I am not attempting to deride the hon. Gentleman. I was about to say that it is not a bad thing that, at this stage of the Bill, all of us should try to approach the matter in the new situation which is emerging. It is the right and proper responsibility of the House of Commons so to do. The fact that an hon. Member has argued the retentionist case, for example, is no reason why he should not now address his mind seriously and anew to what we are to do if the death sentence is abolished. That is what we all should do, and not in some predetermined way.

The hon. Member for Watford (Mr. Raphael Tuck), whether one agrees in detail with his Amendment No. 7 or not, is obviously arguing that we have to look afresh at what sentences should be imposed and who should be responsible for imposing them. The judiciary is having rather a rough ride in our deliberations today. The public has a remarkable and well founded faith in Her Majesty's judges and in their capacity and wisdom to impose the right sentences.

Her Majesty's judges are not men who are anxious only to deter. They are not ignorant of the principles of penology. They have spent a great deal of their lives studying with the greatest care the question of criminal reform and of how to deal with criminals. Increasingly, these matters are debated in any kind of forum, as those who have had any association with the work will know. They are matters in which Her Majesty's judges take an immense interest.

I deplore the attitude of mind which attempts to treat this subject as though we in the House of Commons or those in the Home Office have a monopoly of knowledge of how to deal with matters of this character. That is not my view. Nor is it the view of the public. The public will be increasingly concerned if we tend to shut out the judges from their proper responsibility in matters of this kind.

3.45 p.m.

There is always an argument against having a determinate sentence. Oddly enough, it was kicked out of the hon. Member for Nelson and Colne, if I may put it that way, only very late, in an intervention in the course of the speech of my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke).

Photo of Mr Peter Thorneycroft Mr Peter Thorneycroft , Monmouth

Let me say what it was. We have plenty of time. Let me finish what I was saying and then I shall give way to the hon. Gentleman, as I always do.

There is an argument, which emerged only late in our discussions. Murder is a serious crime and at some point after any sentence has been given the Home Secretary of the day will have a very difficult decision, whether he consults the judges or how he does it, as to whether he can, with safety to the public, release a prisoner. This is a grave decision and the argument for the indeterminate sentence—and it is not an argument which I dismiss at all lightly, and I say that with clarity to the Home Secretary and my hon. Friends—and against extending the power of the judges to impose determinate sentences is that when a determinate sentence runs out, the Home Secretary's power runs out with it, so that the Home Secretary is no longer able to say that in the interests of the public it might be safer to keep a man in custody.

That is the only substantial argument against these Amendments which I have heard. That is why I particularly ask the Home Secretary to intervene in these discussions, because I would like the case to be deployed and developed seriously, not only so that we in the House can hear and understand, but so that the public can.

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

I intervene only to say that the right hon. Gentleman is mistaken when he says that I made this argument, the seriousness of which he accepts, in an intervention just now. If he would pay me the compliment of re-reading my speech of Second Reading, and heaven forbid that he should, he will find that I set out this argument, perhaps at inordinate length, at that time.

Photo of Mr Peter Thorneycroft Mr Peter Thorneycroft , Monmouth

At whatever inordinate length the hon. Gentleman set out the argument on another occasion, in a debate directed to this specific issue on the Report stage of the Bill it is fair to point out that we had to wait a long time before we got round to the only relevant point in it. The hon. Gentleman must not be too sensitive. I am not seeking to make too much of it, but I am simply agreeing that it is an important matter. Of course, I will listen to what the Home Secretary has to say, as I am sure the whole House will, because this is a grave and important issue.

I say in advance—because we cannot go on talking to one another for ever and one speech at a time is sufficient—that my difficulty about that argument is the same as that found by my hon. and learned Friend the Member for Darwen. It seems to prove too much. If that type of argument is to be adopted for murder, it probably ought to be accepted in many other cases, too, certainly in all cases of violence. There is also increasingly the difficulty that there will clearly be exceptions. I do not want to state them, because the difficulty about stating exceptions in advance is that one tends to be caught in the position of apparently saying that certain types of murder do not matter. All types of murder matter. It is always a very grave offence, even in the most extenuating circumstances.

Nevertheless, all of us who have had any experience of these matters have known of cases and have seen cases in court when it has been perfectly obvious that something far less than the maximum penalty will be exacted. This was true in the days when the death penalty had to be imposed—and it will be true in these circumstances—when a judge was compelled to declare, with all the solemnity of a great court of justice, a sentence which he knew perfectly well to be utterly meaningless and which would never be put into operation.

That is something which tends to degrade the law and it is wrong to have to do it. If we were wrong to maintain it before, we are right to change it now. The House ought not to suffer any embarrassment about occasionally changing its mind. We would have never have any progress unless we were prepared to look afresh at certain matters.

Finally, one is impressed by the fact that the dividing line between murder, for which the sentence is left vague without any proposal to insert a life sentence and which would get an indeterminate sentence, and manslaughter, which may get a determinate sentence, is appallingly narrow. One thinks of the ordinary argument which takes place in so many of these cases which is often an argument about provocation and about precisely what words were said and about the sort of emotional atmosphere in which the act took place.

If it can be shown that the provocation was sufficient then it slips over into the area of manslaughter and a determinate sentence should be imposed. But if the provocation was insufficient and the case, on any ordinary terms is more serious and goes into murder, then the indeterminate sentence is imposed. which may in many cases mean a lesser time in gaol. It is often regarded as such.

Photo of Mr Julian Ridsdale Mr Julian Ridsdale , Harwich

There is the other point which my right hon. Friend the Member for Monmouth (Mr. Thorneycroft) has not yet made which goes with it, that there is the complete suspense forever of the person who has not received a determinate sentence. It is complementary to the other factor.

Photo of Mr Peter Thorneycroft Mr Peter Thorneycroft , Monmouth

I accept that.

In these circumstances, I ask that the Home Secretary should think carefully and give us his considered opinion on this matter. I am assuming for the purposes of this argument that the death penalty is abolished. This is the purpose for which we are proceeding. We have got beyond that point and I think it is a rather good thing that we have. These are matters which are not of the same moral issue as whether a person is hanged or not.

These matters concern the interests and the protection of the public, and the right treatment of prisoners. They are of very great importance on their own. They are central to the responsibilities of the Home Office and before we vote upon this I would like to have the Home Secretary's considered views, so that we may come to a wise and correct decision.

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

I can put my own view quite shortly, because it has already been anticipated by my hon. Friend the Member for Nelson and Colne (Mr. Sydney Silverman). First, I have been privileged to know the judges for nearly 40 years and I have the highest conceivable regard for them. Secondly, murder is still the most terrible crime in the calendar. Life sentence is appropriate for it and those who have been sentenced to life should be treated with mercy. Who should decide what mercy requires? It seems to me it is better that the Home Secretary should do that rather than the trial court. What are the grounds upon which mercy might be extended?

A man might have killed his wife and it may be difficult for the court to be fully informed of the years of distressing domestic strife which may have provoked him almost beyond endurance. He may commit a murder in the course of theft, or robbery, or something of the sort. His claim for mercy may be that he has had a distressing upbringing as a youth, and that he has been unbalanced and unused to taking decisions ever since. It is better, I think, for that to be assessed by a Home Secretary who has before him the fullest account, which he can quietly supplement as much as he wants and from whichever source he chooses, as to the man's upbringing. He can go into private distresses which it is difficult to explore fully in the atmosphere of the trial court.

It seems to me, in those circumstances, that if one is trying to evaluate the crime and to evaluate those circumstances which should incline the scales of mercy in favour of the prisoner, then it is better that it should be done when everything is before the officer of the Government, the Home Secretary, or whoever is the person to exercise the discretion, than that it should be done when the prisoner is sentenced and when, in the very nature of things, it is almost impossible for the court to be as fully informed as can a Home Secretary who one, two, three or four or five years later, when the prisoner's dilemma is passed. The Home Secretary can be told about his reaction to detention, and his reaction to his fellow prisoners, to the prison officers and to the whole atmosphere of incarceration. All these can be actively and fully assessed.

As I have said, murder is the most terrible crime. The deliberate taking of life should be visited by the most severe punishment which the law permits. Then comes the time for mercy, and the person who decides as to the degree of mercy which should be extended to an individual person should be the Home Secretary, with the full means of knowledge which he has at his disposal.

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

I do not think that the Home Secretary has appreciated to the full the point which my right hon. Friend the Member for Monmouth (Mr. Thorneycroft) made. Hanging is a completely determinate sentence. For years past, prior to 1957, there was built up the situation that instead of the internative of life imprisonment one was detained during His Majesty's pleasure. The sentence of being detained in this way arose from the then state of the law. In 1957, we altered the law of provocation, abolished the doctrine of constructive malice and made a a number of changes in the law. But in theory, at least, we had the determinate sentence of hanging, the alternative being detained during Her Majesty's pleasure, which was usually applied in cases in which a person was suffering from some mental abnormality.

My right hon. Friend pointed out quite distinctly that the dividing line between manslaughter and murder is very narrow. Let me give one example. I was closely concerned with the recommendation for the introduction into this country of the Scottish doctrine of the law of diminished responsibility. As we well know, this dividing line is very narrow between a case in which a person is guilty of manslaughter but has diminished responsibility and a case in which a man is guilty of murder.

How can it be contended that a person who is found guilty of murder shall never know how long his sentence will be? The whole penal doctrine of this country is that the accused shall know what his state will be and for how long he will have to suffer that fate. Being detained during Her Majesty's pleasure is contrary to all the accepted precedents of our penal law. I see no reason why we should seek to distinguish between manslaughter and murder in this way. I therefore come down firmly on the side of a determinate sentence. That sentence must clearly be on the long side.

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

Mr. Sydney Silverman rose in his place and claimed to move, That the Question be now put; but Mr. SPEAKER withheld his assert and declined then to put that Question.

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

It seems quite clear that if we continue with the determinate sentence, it should provide for a long sentence, which may well be 20 or 30 years—

It being Four o'clock, the debate stood adjourned.

Debate to be resumed upon Monday next.