Clause I. — (Abolition of Death Penalty for Murder.)

Orders of the Day — Murder (Abolition of Death Penalty) Bill – in the House of Commons at 12:00 am on 28th October 1965.

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Lords Amendment: In page 1, line 7, at end insert: () On sentencing any person convicted of murder to imprisonment for life the Court may at the same time declare the period which it recommends to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State orders the release of that person on licence under section 27 of the Prison Act 1952, or section 21 of the Prisons (Scotland) Act 1952.

3.51 p.m.

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

I beg to move, That this House doth agree with the Lords in the said Amendment.

The House will recall that during our own debates, on Second Reading and in Committee and on Report, a good deal of anxiety was expressed in many quarters of the House about the dissociation, as it were, of the judiciary from the actual assessment of how long a convicted murderer sentenced to life imprisonment should remain in prison before being released on licence. In this House no Amendment was proposed which it was felt by the sponsors of the Bill they could accept, and on a Division they were all rejected. Now this Amendment which the Lords have made and I am now suggesting the Commons should agree with does go some way to deal with that anxiety, and in a way which was satisfactory to the Lord Chief Justice and to another place.

I should like to make it clear that the Amendment makes no substantial change in the law. Of course, judges have always had the power to express any relevant opinion about any issue which was before them and at most times have not been remarkable for diffidence in expression of such opinion, and what the present Amendment does is to carry that a little further. It gives a statutory sanction, as it were, to the judges' undoubted power to express such an opinion on conviction. It does not compel a judge to express any opinion, and one would expect that in a great many cases, perhaps most cases, the judge would not be obliged or feel that it would be useful for him to do so; but if in any case, or in all cases, the trial judge felt it would be useful for him to express such an opinion he now has, under this Amendment, a statutory right to do so.

The House would like to consider what would be the effect of his doing so. The effect, as I understand it, is not to fetter the discretion of the Home Secretary in any way. The decision is ultimately the Home Secretary's, and I gather that it is the opinion of both Houses that ultimately the discretion should be the Home Secretary's and nobody else's, but the Home Secretary must, of course—and always has done—take into account all relevant or helpful opinions to help him to make up his mind as to what he should do and when he should do it. Of course, one imagines that the Home Secretary, certainly the present Home Secretary, who has declared himself often enough on this point, would pay the greatest possible attention to any expression of opinion which the trial judge might make on this point, always bearing in mind that it must be an executive act, an administrative act, for which the Home Secretary is responsible to Parliament.

Photo of Mr Mark Carlisle Mr Mark Carlisle , Runcorn

I am not anxious in any way to delay the passage of this Bill because, as I think the hon. Member for Nelson and Colne (Mr. Sydney Silverman) knows, I have, throughout, supported the principle on which this Bill is based, but, having said that, I hope that we are not going to pass this Lords Amendment at this stage without critically examining what it sets out to do.

It has been said that we in this country have a flair for compromise. What I feel is often forgotten is that compromises, like everything else, are sometimes bad and they are sometimes good, and I personally believe that the history of this Bill, if one goes back to 1957, has been dogged by thoroughly bad compromises, and I very much fear that we may be in danger of passing a disappointing compromise this afternoon.

The debate on this matter in the House of Lords was of very short duration, of slightly less than 20 minutes, and it seems to me that there are various questions which are left completely unanswered by this Amendment to which, it is proposed, we should agree. I am very glad the Home Secretary is here, because one would have thought a matter which raises a question of policy, although, of course, this was a Private Member's Bill, the question of what should be the substitute penalty for murder, should be a matter for the Home Secretary. Therefore, I must specifically ask three questions on this Lords Amendment.

The first question I would ask the Home Secretary is one which was raised by my hon. and learned Friend the Member for Southport (Mr. Percival) in Committee on the Bill. As I understand it, on sentencing to life imprisonment a person convicted of murder the court may at the same time declare the period which it recommends he should remain in custody. May I ask the Home Secretary this? Is it proposed that on that matter the accused is entitled to be heard by his counsel before the recommendation is made? Is counsel for the accused going to be able to address the court in mitigation? Because, of course, the point made in Committee here was that at the present moment with automatic sentence no mitigating circumstances are put by defence counsel before sentence is passed by the court, and it seems to me that if this is not going to happen then the judge will have the opportunity to make a recommendation which may have grave effect on the Home Secretary's discretion at a later stage without knowing those facts in mitigation which might have been put before him.

I am sure the Home Secretary is aware that, particularly with the abolition of capital punishment, in murder cases pleas of guilty are not wholly unknown, and I should like to know what the position of the court is to be when making a recommendation.

The second point raises, I believe, a far more fundamental question. I would ask the Home Secretary this question. Is it proposed that there is to be any right of appeal against the length of detention recommended by the judge during which the accused should not be released? I think that I know the answer. I think his answer will be, "No, there is no possible right of appeal".

The Criminal Appeal Act, 1907, lays down when an appeal can be made to the Court of Criminal Appeal and it specifically says that an appeal with reference to sentence can be against any order of the court. Presumably a recommendation made by a judge is not an order of the court and therefore does not allow an appeal on that ground.

4.0 p.m.

Further, one sees that the Act says that the recommendation of the court as to the making of an expulsion order is appealable. I think it is clear, particularly if the Home Secretary bears in mind the recent Commonwealth Immigrants Act, of which Section 8 specifically allows for an appeal against a recommendation for deporation, that, as it stands at the moment, a judge, on trying a murder case, would be entitled, on passing a life sentence, to recommend the Home Secretary that that man should not be released for a considerable number of years, perhaps a very long time, say, 25 years, or something like that, without the man's having any means of appeal against that recommendation of the judge. If this is intended to influence the Home Secretary, in that he is going to take into account the recommendation made by the judge, the accused should have the right of appeal against that recommendation just as he has against any other sentence passed by the court. It seems to me that under this Amendment there is no possible right of appeal. I think that there should be, and I hope that the Home Secretary will look at the matter because, as he is aware, there is no right to appeal against a sentence of life imprisonment for non-capital murder as it is a sentence fixed by law and the courts have stated that they have no power to hear such an appeal.

My third question is whether, in practice, the Home Secretary sees this power being used in cases where a court wishes to recommend a long period of detention before which a person should be released, or does he look on it as likely to be used in cases of mercy killing or something of that nature where the court may wish to impose a short period? I cannot help feeling—and I think that this was borne out by what was said by the hon. Member for Nelson and Colne (Mr. Sydney Silverman)—that this Amendment is really nothing more than a meaningless form of words which on one interpretation makes no difference to the present situation, but on another interpretation may make grave changes to the law.

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

I said that it would give statutory authority to what was the position before at common law.

Photo of Mr Mark Carlisle Mr Mark Carlisle , Runcorn

I was aware that that is what the hon. Gentleman said, and it was very nearly what was said by the Minister from the Home Department in another place when he said that the Home Secretary would not consider himself bound by the recommendation. But if the position at the moment is as the Home Secretary repeated on many occasions during the Committee stage, that he already turns to the judge for his view on the facts of a particular murder case—I think the right hon. and learned Gentleman said he would always propose to write to the judge who tried the case if he was still available to be approached—what difference do the words which it is proposed to add make to the present position?

If, on the other hand, the words are to mean anything, and if the Home Secretary is going to consider himself strongly influenced by the recommendation made at the time of the trial, then surely we should have gone the whole way and allowed the sentence to be determinate and allowed a right of appeal from that sentence?

Having attempted, I hope not wholly destructively, to criticise the wording of the Amendment and the effect that it is likely to have in practice, may I say why I think this is a very disappointing compromise. I would have supported what the majority of the Members in another place supported during the Committee stage, namely, the proposal to give the courts power to give a determinate sentence. I would have supported that subject to one proviso, which was attempted to be introduced into this House and which I believe could have been carried in another place and which, if they had not changed their minds on Report, might well have received support in this House, namely, that there should be a determinate sentence with the right of a body, or indeed of the Home Secretary, to review any sentence of over a particular length in murder cases.

I believe that the arguments put forward by the Lord Chief Justice during the Committee Stage of this Bill in another place are irrefutable. It is wholly illogical, when doing away at one stage with a fixed penalty for murder, to replace it with another fixed penalty as the Amendment proposes. I find it difficult to see how one can justify saying that for murder we must have a fixed penalty, if at the same time we give complete power to and have trust in our judges to pass any sentence on a conviction for manslaughter, when the question of whether it is manslaughter or murder may, in the case of provocation, turn on one word, or in the case of diminished responsibility turn literally on a hair's breadth of the evidence to decide whether the man is suffering from diminished responsibility or not.

The Lord Chief Justice in his speech in another place also pointed out that one has the other completely illogical position that if the person's attempt to murder fails, perhaps due to a miracle of medical science, the judge, on a conviction for attempted murder, can carry out a determinate sentence, but if the murder succeeds he is completely fettered in the sentence which he can give.

As I understand it, the arguments which are put against the determinate sentence are twofold. The first one, which concerns me considerably, is that, for a deterrent effect, courts might be tempted to give sentences of extreme length. I believe that the power of the courts to give those sentences is a deterrent power which we should not remove.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

I think that I can anticipate the hon. Member's point of order. We can no longer argue matters which are not before us. The question of the determinate sentence can only be mentioned by the hon. Member in explaining his attitude to this particular Amendment, which he is either for or against.

Photo of Mr Mark Carlisle Mr Mark Carlisle , Runcorn

I apologise, Mr. Speaker. I realise that I veered too far. In my description of this Amendment as a disappointing compromise, may I say that I believe it loses the best features of the determinate sentence, while it retains the worst of them.

Is it not the fact that in this Amendment we are leaving the position that the court can give only the one fixed sentence of a life sentence? During the Third Reading of the Bill in another place the Lord Chief Justice referred to the fact that by removing the death penalty we would be taking away the farce of requiring judges to sentence to death those whom they knew would not be executed. With the greatest respect, it seems to me that the proposed Amendment is replacing one farce by another in that we will still have the position of judges sentencing to life imprisonment people whom they know full well will not spend a long period in prison, and whom they do not wish to see retained in prison for a long time.

One does not wish to lose the principle of the Bill and, as we are at this stage in the Session, I shall not vote against the Amendment, but it is with considerable regret that I find I have to support it because the original Amendment passed in another place was so much better.

It was said by the Home Secretary, and by many others, that the argument in favour of the Amendment is that since the person is sentenced to life imprisonment he can, although released, be recalled at any stage. Does the Home Secretary, and do the supporters of the Amendment, really feel that the power only to release on licence, and the power always to recall, should be retained for someone who has been convicted of a murder of the type of a mercy killing rather than for, say, a person convicted of the most brutal rape? Surely all the arguments in favour of the power to recall which are put forward as arguments for a licence apply with greater force to many woundings, many rapes, and many attempted rapes, than they do to many of the murders committed in circumstances which deserve sympathy. Under the Amendment, the Home Secretary will always have power to recall such people to prison, and the person concerned will know that at any stage of his life he is in danger of being recalled at the discretion of the Home Secretary.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Before we go any further, may I say to colleagues who have been through this Bill with me in many debates that the only matter that we can debate at present is the Amendment before us. I will not allow all the old debates to be brought into the discussion of this Amendment.

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

I need not say very much because I find myself in complete agreement with what was said by my hon. Friend the Member for Runcorn (Mr. Carlisle). I would have thought that the Amendment had almost nothing to be said for it. The only thing that one can say is that nothing can be said against it. It does nothing but give statutory authority to a position that already exists at common law. It allows judges to open their mouths on topics and in circumstances in which they can and do already open them. Why we should go to all the trouble of putting that into statutory form passes my comprehension.

I concede—because I had an Amendment down to this effect—that if we made it obligatory for a judge to express an opinion there might be something in it, because the public would know his opinion in every case. But under the terms of the Amendment the Home Secretary has no more obligation to take the slightest notice of what a judge says than he would have if we did not pass the Amendment. No question as to whether there should be a mitigation arises, because any question of mitigation should be addressed to the Home Secretary, in whose sole power the real nature of the sentence remains under the Amendment as it stands. As to the question of appeal, again it is otiose, because the appeal should be to the Home Secretary, in whom, again, all power resides.

I could not ask anybody, in conscience, to vote against the Amendment. It does not do any harm, but it does not do the slightest good. In my view it amounts to a certain degree of otiose flummery, which may salve some consciences but which will not make any difference to the operation of the Bill.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

For once I find myself in cordial agreement with the right hon. and learned ex-Attorney-General. I also find myself in considerable agreement with the out-of-order parts of the speech of the hon. Member for Runcorn (Mr. Carlisle). If I may trespass upon the rules of order for one sentence, I would point out that it has always struck me as the height of absurdity that a man should escape an indefinite sentence by establishing diminished responsibility, which is the very case in which I would have thought it was needed. I cannot go any further into that point at this stage.

Here we are providing a statutory right to a judge to do something which he already has a right to do, and in fact does—and which it would probably be desirable for him to do as little as possible. In a very general way, observations made in sentencing would, in the majority of cases, generally be better not made. One's experience at the Bar leads one to the conclusion that those judges who refrain from moralising during sentencing tend to be the judges whom we most respect.

The Home Secretary retains full discretion, and under the Amendment he will hear one representation among other representations, which he will consider in performing his duties under the Prison Act. The only danger—and this is why I dislike the Clause and agree to it only with great reluctance—is that not my right hon. and learned Friend but a weak Home Secretary might be tempted to prefer a worse opinion because it had been made publicly to a better one based on more material later on. It is the opinions later on, when one has had the experience of a man's conduct after prison treatment—after his having been in prison for perhaps ten years—which are the valuable ones, because they are formed on all the facts up to date instead of on some of the facts after an experience of a day or two during the trial.

4.15 p.m.

I very much prefer the suggestion made by my right hon. and learned Friend during an earlier debate, namely, that the judge should be consulted not at the time when he passes sentence but at the time when release is being considered and the judge can be informed of all the new facts, including the man's conduct and behaviour in prison, and what has happened to him there. That is the point at which the judge's opinion becomes relevant. It is not so relevant when it is expressed in the heat and often horror of a trial, and at a moment of very high emotion. It is far better that the matter should be considered coolly in the light of all the facts later on.

I enter a small caveat: I hope that when Home Secretaries consider all the representations, and when they have to exercise their power under the Prison Act, they will give real weight to those representations and not give extra or unreasonable weight to the one covered by the Amendment, simply because it is statutory. Subject only to that, I reluctantly agree to a Clause which can do no good and may conceivably do some harm.

Photo of Mr Richard Glyn Mr Richard Glyn , North Dorset

I do not wish to detain the House for long. I very much agree with a large part of the speech of my hon. Friend the Member for Runcorn (Mr. Carlisle). He and I approach this problem from completely opposite poles, but our views on the Amendment are similar. The hon. Member for Nelson and Colne (Mr. Sydney Silverman) has said that the Amendment would effect nothing. He said that it introduces nothing new. He said that the judges have always had the power to express an opinion on any question which is before them. Strictly, however, as the law stands at present and as it will stand, the question of the length of detention of a person convicted of capital murder is not before a judge. A judge's duty, on conviction for capital murder, has been and will be to pass a predetermined sentence on which he has no discretion whatever.

It is absolutely right that judges, in their wisdom, should at times express opinions. In the past these have been informal opinions, issued, no doubt, after some thought. They have never had any degree of authority other than that of an obiter dicta. The Amendment, which I could not oppose in the sense of voting against it but which I nonetheless feel to be distasteful, will give these opinions statutory authority. This is most unfortunate. The objection to the present position in respect of capital murder has always been to a predetermined fixed sentence. The emotional objection was that the sentence was of capital punishment, but the logical objection was that it was a fixed sentence, and that logical objection will remain in spite of the Amendment.

I think this will be most unfortunate. It is essential that in cases of this nature, the most serious cases that come before the courts, cases of what is now capital murder, justice should not only be done but be seen to be done. It will inevitably seem to everybody concerned, to the press and the public, that the statement which the judge will make as a result of this Amendment will be an important statement likely to have a definite effect on the length of imprisonment of the convicted man. If it does not, it is pointless to make it.

If the statement is to have a definite effect on the length of the sentence to be served, the convicted man should as my right hon. and learned Friend pointed out, have two rights neither of which is given in this Amendment—a right to have a plea in mitigation made on his behalf before the judge's opinion is given, and a right to appeal against the judges opinion afterwards. All the Amendment does is to give extra weight and, indeed, statutory authority to what in the past has been merely an obiter dicta of the judge made at a time when the judge will not have heard all the facts of the case. He will not have heard a plea in mitigation which could and, in my view, should have been put forward on behalf of the convicted person, and what he says will not be subject to any appeal.

If the Amendment is to have any effect, if it is to be regarded in any way by Home Secretaries at present and in the future, I say that it will seem to be a great injustice. I do not say that it will cause injustice, but it will seem to be a great injustice. I for one am very sorry indeed to see the Amendment written into the Bill. I am certain that not enough thought was given to alternative penalties at any state of the Bill. This has been the great weakness of it. Here again we have a position where the rights which a man convicted of attempted murder or any lesser offence would have, of having a plea in mitigation and an appeal, are denied to the man who has been convicted of the most serious offence of all, what is now capital murder. I am very unhappy to see this put into the Bill.

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

I think that the general sense of the House is that, while the Amendment really does not make very much difference to the existing position, it ought on the whole to be accepted.

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

The right hon. Gentleman dissents, but that is the sense of the speeches made so far. My advice to the House is that we certainly should accept the Amendment. I think that it has been rather written down. I believe that its effect is a little more than has been suggested by hon. Members who have spoken. I suppose the position really is that there is nothing to stop a judge making a comment after he has tried a murder case and when he is just about to pronounce sentence. If his only duty and task upon a conviction is to sentence the person convicted to life imprisonment, I can well think that many judges would say to themselves that any comment as to the appropriate period during which the prisoner should remain in prison would be neither within their province nor relevant. I should have thought that many judges, if there were no such provision as is now suggested, would prefer not to make any recommendation or comment whatever.

One has, after all, had the kind of situation that we are now considering in the case of verdicts of juries at inquests. There has been a good deal of controversy about riders, which sometimes give great pain, and it is often thought that it is not the province of a jury at a coroner's hearing to add a rider. I say nothing one way or the other about that, but I can well understand a judge, having heard the jury's verdict, saying to himself, "I have now only one duty left, and that is to impose the penalty which the law prescribes, namely, life imprisonment", and refraining from saying anything more on the basis that what he might say is not relevant to the duty that he then has to discharge and that in those circumstances it would not be appropriate for him to offer his own opinion as to the period of time during which the convicted person should remain in prison.

The Amendment would remove any hesitation of that sort which individual judges might feel. It is now plainly laid down by the Statute that if they feel moved to give expression to an opinion as to the appropriate period during which the convicted person should remain in prison they ought to do so. They are not bound to do so under the terms of the Amendment, but it is made plain by the terms of the Statute that they should not in any sense consider themselves inhibited from expressing such an opinion, as I can well think they might otherwise feel themselves inhibited. The Amendment does that, and I should have thought, with very great respect to hon. Members who have spoken, it is not so devoid of effect as was suggested, for example, by the right hon. and learned Gentleman the former Attorney-General.

That being so, questions were asked as to what the result of the Amendment is, and three specific questions were put to me by the hon. Member for Runcorn (Mr. Carlisle) on the basis that I perhaps have a special responsibility in the matter. I will seek to offer a reply which I think is appropriate.

The first question was whether counsel would be allowed to address the judge before he made a recommendation, I suppose if he indicated that he was minded to do so. My answer would be that that would be entirely a matter for the judge. I can well envisage a situation in which the jury has returned a verdict of guilty and the judge is about to proceed to the discharge of his duties in pronouncing the sentence and in delivering a recommendation. I should have thought that the normal procedure—I am not seeking in any way to fetter the practice or discretion of judges; it would be improper for me to do so: I am envisaging what I think would probably happen—would be that counsel for the convicted person would perhaps invite the judge to indicate whether he was minded to make a recommendation, and, if the judge indicated that he was, ask for permission to address the judge on the sort of recommendation that he should make.

I myself would have thought—again, I am speaking simply of what I imagine would happen—that in these circumstances almost every judge would say, "Yes, I am minded to make a recommendation," and he might go on to add, "I am minded to make a recommendation that this should be rather a longer sentence than might otherwise be thought appropriate." Counsel would no doubt then say, "May I address you on that?", and I should have thought that the ordinary result would be that the Judge would invite counsel to address him and listen carefully to what counsel had to say before he made a recommendation. This is the way I imagine it would work.

This leaves the matter to the judge. This is one of the things he has to decide during the conduct of the trial on which he is engaged. It is his discretion, and it rests on his sense of what is fair, proper and just in the circumstances. We could, I am certain, have the assent of the whole House at once on this and leave it to our judges to arrive at what is a fair decision in a matter of that sort. That is my answer to the first question.

The second question was whether there was any appeal provided against a recommendation. As the House knows, my opinion does not bind the courts, and it would be a matter for the courts to decide whether the effect of the Criminal Appeal Act, 1907, read in conjunction with the Bill which, I imagine, will soon become law, is to provide such an appeal, but the opinion that I would offer to the House is that, quite clearly, there is no such appeal. It depends on Section 3 of the Criminal Appeal Act, 1907. That Section lays down the matters against which a convicted person can appeal, and they are clearly limited in the first place to convictions and in the second place to sentences. A recommendation would fall within neither of these categories, and the opinion I offer is that, plainly, no right of appeal is given under the terms of the Amendment and existing statutory law.

4.30 p.m.

The third question which the hon. Member for Runcorn asked was how I envisaged that this would work. Would the learned judges be likely to make recommendations only in cases where, for example, there had been a mercy killing and where a particularly short period of imprisonment might be thought appropriate? Or would they reserve their recommendations to cases where there was some feature in the proceedings which pointed to the desirability of a very long period of imprisonment? I should have thought that, obviously, this must again be a matter for the discretion of the individual judge.

The way in which I imagine that it would work is that, in many cases, there would be nothing exceptional. Perhaps a case would involve a jealousy killing or something of the sort, for example, and the judge would be minded to make no recommendation because the circumstances and the gravity of the offence were perfectly plain upon the face of the record and could easily be collected from the evidence and the transcript. But there could be other cases in which a judge might see in the accused person some quality, some trait of character or something of the sort, which was not apparent upon the printed page but a matter of impression that he might gather from seeing the accused before him for several days, either in favour of a more mitigated view of the appropriate period of imprisonment or the reverse.

I would have thought that it was in that sort of case that a learned judge would think that he should make a recommendation. There might be some act, some piece of evidence, the significance of which was not particularly apparent or might not be apparent to someone reading the case years afterwards. It might particularly strike the judge in either direction. Surely, in such a case, the judge might think it appropriate to make a recommendation.

The right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) used language which I would not accept and I do not think that he would wish to insist upon it. He said that the Home Secretary need not take the slightest notice of what a learned judge says. Certainly, the Home Secretary's decision is by no means bound by what the judge says. I agree entirely with what was said by my hon. and learned Friend the Member for Northampton (Mr. Paget). A major consideration, as we have frequently argued, must be the reaction of the prisoner in prison—what his situation, condition and character is eight, ten or fifteen years after the offence. That is the principal consideration—or will be in almost every case. That is the thing to which the Home Secretary will principally have to have regard.

I would think a Home Secretary gravely deficient in the respect we all owe, and ought to owe, to the judges if he were to take no notice of what the judges said. So long as I hold this office, it will not apply to me. I would, of course, give the most careful consideration to what a judge said, especially bearing in mind that he probably would not make a recommendation unless he felt impelled to do so by some feature of the case which struck him forcibly. I would certainly take that into account but it would be only one of the circumstances in weighing up what I thought was the gravity of the offence and the appropriate period of imprisonment. I must emphasise again that far the most important consideration after a long period in prisonment would be the condition, character and reaction of the individual to his confinement. But everything would be taken into account and I certainly would not dismiss lightly what any judge said. In these circumstances I hope that the House will think it right to accept the Amendment.

Photo of Mr Peter Thorneycroft Mr Peter Thorneycroft , Monmouth

The right hon. and learned Gentleman the Home Secretary has put the case, as far as it can be put, as fairly and sensibly as he can, but I do not think that he has the sense of the House in this matter. I think that the sense of the House is that this is a poor Amendment which does not add anything to the Bill; indeed, as the hon. and learned Member for Northampton (Mr. Paget) said, it does no good and may conceivably do some harm. The only argument in favour of it—and this is the sense of the House—is that, whatever one's view on the general principle of capital punishment, it would not be proper to lose the Bill now over some muddle concerning a Lords Amendment.

This is one of those compromises which when one listens to the arguments seem remarkably unhappy. Everyone is rather expressing the hope that the Home Secretary will not pay too much attention to an expession of opinion by a judge at the trial, when there may be no plea of mitigation and certainly no question of an appeal. This is the situation we have reached. We have to be guided by the right hon. and learned Gentleman's advice and, however we voted in our earlier proceedings of the Bill, none of us would want to lose it by sending it backwards and forwards to the House of Lords.

If the right hon. and learned Gentleman assures us that we shall lose the Bill if we send it back to the Lords, it will be better to accept the Amendment; but are we really such prisoners of time in this matter? No one will take advantage of the situation. Quite a lot of Bills are going backwards and forwards in the next few days. The Amendment has not a friend in the House except for the Home Secretary.

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

I do not want the House to think that I am wildly enthusiastic about the Amendment. The consideration I put before the House was that it would serve a moderate and limited purpose of utility and no more.

Photo of Mr Peter Thorneycroft Mr Peter Thorneycroft , Monmouth

Even the right hon. and learned Gentleman is now retreating a little. He may even fall in with the majority. I think that the majority view in the House is that this is a bad Amendment. It is a pity to put a bad Amendment into any Bill. I voted in a contrary sense to the hon. and learned Member for Northampton on the Bill, but I would not want to lose it on a point of this kind. After all, it concerns a great issue of a quite separate character from this Amendment. But if we are assured that the Bill will be lost if we reject the Amendment, I would not press the argument. If the right hon. and learned Gentleman does not give us that assurance, then it would be better to take the view that the Amendment will advantage no one nor improve the Bill, nor the law nor anything else, and send it back.

Photo of Mr William Deedes Mr William Deedes , Ashford

Perhaps I might put a question about which I feel very much in the dark. How will the Amendment work in practice, first, in respect of the courts and, secondly and more important, in respect of his own office? It is fair to recall what the right hon. and learned Gentleman said earlier about how he himself sees the course of events. First, he said that he would always consult the trial judge if he were still available. Later, he said that he would require the trial judge to leave a note of his opinion in matters on which this Amendment touches. What difference will this Amendment make between what was to have been a private communication by the judge to the Home Secretary and what may be, if the judge so wishes, a public declaration in court? I understand that the advice which the right hon. and learned Gentleman makes clear he desires to have will be the private communication.

Where I am still in the dark is about the precise difference between the private communication to the Home Secretary and the public declaration in court on occasions. What merit lies in a public declaration when the Home Secretary will in any case be adequately informed of the judge's view? Again, what action the Home Secretary may take upon that declaration in court or private communication from the judge must, of course, remain private in both cases. He will not indicate either the time of release or the reasons for the release, whether before or later than the court expects. Therefore, by this Amendment we are to have a public declaration by the court of a recommended sentence, but we shall have a private termination of that sentence by the Home Secretary without anyone being the wiser.

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

Obviously, it would be wrong to anticipate the next Amendment, but the right hon. Gentleman will not have overlooked the fact that this public declaration, which is to be made at the moment of sentencing, falls to be considered by the Home Secretary only years after it is made.

Photo of Mr William Deedes Mr William Deedes , Ashford

Yes, that may be so. What I am trying to establish is precisely what significance it has over and above the private communication which I would have thought on occasion might have been very much more revealing and comprehensive than what the learned judge would be prepared to say in court. What is the precise significance in the difference between one and the other? If the House adds the weight of the Amendment to the Bill, how does the Home Secretary see the distinction working in practice?

Photo of Mr Raphael Tuck Mr Raphael Tuck , Watford

I must declare myself in general agreement with the opinions which have been expressed by the hon. Member for Runcorn (Mr. Carlisle), the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) and my hon. and learned Friend the Member for Northampton (Mr. Paget). My right hon. and learned Friend the Home Secretary has given his idea of what will happen if counsel asks a judge whether he is minded to indicate his ideal of a minimum sentence. If the judge says, "Yes", counsel will ask whether he may address the judge. However, it must be emphasised that the judge may or may not consent to counsel's addressing him and that counsel does not have the right to address him. That right he should have. He has the right to address the judge if the crime happens to be aggravated robbery with violence. When it is perhaps a woman who has killed her child in an agony of mind because the child is an imbecile, counsel does not have that right. I shall probably have the whole House on my head in saying that I would like counsel for the defence and counsel for the prosecution in every case to have the right to address the court on sentence, as is done in some foreign countries. However, that is by the way.

The Home Secretary has said that he would always pay attention and never not take notice of what the judge said. My right hon. and learned Friend has always been a model of sweet reasonableness, but he will not always be the Home Secretary, and the Home Secretary in office at the time might not be a model of sweet reasonableness. He might be a perfect hog—spelt with one "g".

In the circumstances, as we want to get the Bill through and may therefore be allowing through Amendments of which we do not entirely approve, once the Bill has been passed, will my right hon. and learned Friend consider introducing at some time in the not too distant future a Law Reform Murder (Abolition of Death Penalty) Amendment Bill?

4.45 p.m.

Photo of Mr Henry Brooke Mr Henry Brooke , Hampstead

The hon. Member for Nelson and Colne (Mr. Sydney Silverman) knows that I am a supporter of the Bill and I would be as reluctant as he to see it fall, but I cannot support his Motion that the House should agree with the Lords in this Amendment. The Amendment has been profoundly criticised from all quarters of the House. I think that everyone was impressed by the speech of my hon. Friend the Member for Runcorn (Mr. Carlisle). One is left with the impression that the Amendment has no friends in the House, although the Home Secretary did his loyal best to persuade us to accept it.

There is no great evidence that it has many friends in another place. It is perfectly obvious from a reading of the proceedings there that the Amendment was not the initial idea of any noble Lord, but a compromise which was found acceptable after the other place, against the advice of the Government, had carried an Amendment which embodied the Lord Chief Justice's original views.

In the light of this further consideration, I cannot see that anybody here or in another place can seriously argue either that the Bill will be improved by the addition of these words, or that the Bill should be allowed to fall because these words are not kept in it. The additional sub-paragraph will make very little practical difference, and what difference there is will be to the bad rather than to the good.

My right hon. Friend the Member for Ashford (Mr. Deedes) asked what merit there would be in this suggested procedure. I cannot tell him what merit there will be, but I can tell him what difference it will make. It will make the practical difference that when a man in prison has completed the minimum term of years which the trial judge declared at his trial, there will be tremendous pressure by all the prisoner's friends on the Home Secretary to release him at that date. Indeed, the term of years declared by the judge, believing himself to be declaring a minimum, will be in danger of having the effect of becoming a maximum. Although I am sure that Home Secretaries will be strong enough to resist pressure of that kind if they think that it is ill-judged, it will add one more great and unnecessary difficulty to what is already a very difficult task which Home Secretaries have to perform in deciding what is the right date at which a prisoner sentenced to life imprisonment should be released on licence.

In all the circumstances, I hope that the House will decide that these words do not improve the Bill, and that we can go forward and disagree with the Lords without serious fear that that will jeopardise the fate of the Bill in this Session.

Photo of Mr Christopher Woodhouse Mr Christopher Woodhouse , Oxford

I will not take up the time of the House, because all of the arguments which I wished to advance against the Amendment have already been put by other hon. Members, beginning with the hon. Member who sponsored the Amendment. I have one question to put to the Home Secretary which follows directly on the point made by my right hon. Friend the Member for Hampstead (Mr. Brooke), the former Home Secretary.

It is my understanding that a Minister is liable to be questioned in the House on any matters about which a statutory duty is laid upon him. It therefore appears that one of the effects of the Amendment would be that in future the Home Secretary might be exposed to questions which he had never had to answer before in exactly the circumstances which my right hon. Friend envisaged, or in the converse circumstances, or in any circumstances in which the Home Secretary departed by even a few weeks or months from- the recommendation of the trial judge. I would be glad if the Home Secretary would tell the House whether that is his understanding of the matter. If it is, is not this a serious and somewhat sinister innovation?

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

The Home Secretary has always been open to question about his recommendation of the exercise of the Royal Prerogative of Mercy in abbreviating a sentence or in relation to the exercise of his discretion under Section 27. It has always been recognised that there was an exception to that principle when the death sentence was involved. That was obviously justifiable as an exception, without our having to argue the obvious grounds for it. I do not think that the insertion of this provision about a recommendation would expose the Home Secretary to any greater liability to questioning. But if it does, then why not? I do not think that it does the Home Secretary any harm. I do not say that he enjoys it, but it does not do him any harm to be questioned.

The right hon. Gentleman the Member for Hampstead (Mr. Brooke) felt that the House should not accept this Amendment. He put forward the argument that one would get a kind of pressure group on the Home Secretary, saying that he must not exceed the amount of the recommended period, or that he must let the prisoner out in advance. I thought that he supplied his own answer to that argument. It would be a weak-minded Home Secretary who could not resist pressures of that sort. He has to make up his mind. This is described only as a recommendation, no more. It is simply a record of the views which the judge may have taken, many years before. The Home Secretary has to make up his mind, and whilst there is always pressure by relatives and others asking for the release of persons in custody—I am sure that the right hon. Gentleman had many such representations—other factors have to be considered. During the year that I have held the office, I have had representations from people saying that their friends, relatives, or their husband have been in prison for X years, and is it not time they were released.

Naturally one reads representations of this sort, but it is the plain duty of the Home Secretary to make up his mind about them, and not allow himself to be improperly influenced. That is the complete answer to what the right hon. Gentleman said. Of course there will be pressures, and there always have been pressures.

Photo of Mr Henry Brooke Mr Henry Brooke , Hampstead

There is a new factor here.

Mr. Deputy Speaker:

Order. The right hon. Gentleman must ask the leave of the House if he wishes to speak again.

Photo of Mr Henry Brooke Mr Henry Brooke , Hampstead

With the leave of the House, I should like to put this to the Home Secretary. There will be, if these words are embodied in the Bill, a new factor, and that is that people most interested in a particular man's case will have been given reason to think in their own minds that he is likely to be released at about a certain date. It may be a wrong interpretation by them upon the judge's words, but the fact that the judge has said that a man should stay in prison for at least 10 years will be taken by those who are concerned with his case as an indication that, in the judge's view, he should be let out after 10 years. That misinterpretation, which will be quite unavoidable, will further complicate what is already a very hard task for the Home Secretary.

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

I hope that I was right in treating that as an intervention, and not a new speech on the termination of my own speech, because there were certain other questions asked by the right hon. Gentleman the Member for Ashford (Mr. Deedes) which I have not yet answered and I have not yet finished what I wanted to say.

There is a new element here. The learned judge is invited in a sense, to make a recommendation. In the course of this debate we have said that there is a kind of convention that a murderer, under existing practice, is let out after nine years. In fact there is no such convention. There is nothing of the sort, but I should have thought that a number of people think that there is. They think that a person who has been in prison for nine years is almost entitled to be let out and I am sure that must have been the experience of the right hon. Gentleman the Member for Hampstead. That situation is already present in that context. But I think that any Home Secretary—and I do not say that I am a particularly resplendent example—any Home Secretary worth the office for five minutes must be able to make up his mind whether he agrees with the judge's recommendation, as he has to make up his mind whether he thinks that nine years is an appropriate period against a general context of public expectation that a man will be let out after nine years. It is up to to him. That is what he is there for.

It may make it very difficult for him, but he has to face it and so I say respectfully to the right hon. Gentleman that I do not think that should be a factor which should weigh in the balance. It is a new situation in a sense when, as has been pointed out by those who feel that this Amendment has no effect, a judge can make a recommendation now, although, as I sought to argue, a number of judges might feel inhibited from so doing. It is not, however, such a new situation as all that. It may produce the result in the coming years that, whereas without this provision some judges may think it right to make a recommendation, with this Amendment rather more judges might think it right to make a recommendation. That is the only difference the Amendment makes, and that is a difference which, to repeat the language I used to the right hon. Gentleman, produces a result of some limited utility. I do not think it is of very great utility, but certainly it is of limited utility, and as the present holder of this office, I certainly would always value an expression of opinion.

No one is infallible, and everyone can derive help from an expression of opinion, particularly by the learned judges who have tried a case, although the preponderating consideration is the situation 8, 9, 10 or 15 years after the trial has taken place. That is the thing which must influence the Home Secretary's mind. The right hon. Gentleman the Member for Ashford asked what is going to be the position with regard to the private intimations which now, as a matter of practice, are received. I should have thought that one difference was one which can be said to militate in favour of this change. As it is, the learned judge very kindly, if he thinks it appropriate, sends me an intimation of any special views which he has formed. The result of this Amendment will be that when he has formed such an impression, it will be given in open court. It will have been the subject of argument by counsel, so that I would at least have the advantage of knowing that I had the learned judge's view and that the recommendation will be made after counsel's arguments have been heard. Counsel will have said, "Do not make a recommendation here, or if you do make a recommendation, make it one for a comparatively brief period." So there will be a balance of considerations.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

That is not a real position. Counsel has been briefed that the man did not do it at all. That is what the fight has been about, and then at the last moment, because there is a possibility that the judge may make a recommendation, it is said that there should be mitigation. There is no opportunity to examine the thing and look at all the factors and get a brief on it.

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

On a point of order. I hesitate to interrupt, but I am wondering how far it might be in order to continue this very interesting, but rather academic speculation, as to what a Home Secretary is likely to do. The only question before the House is whether the House is prepared to accept the Amendment of another place or not.

Mr. Deputy Speaker:

It seems to me that it is entirely relevant to the Amendment.

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

May I conclude by saying that there will be the advantage that one will get a balanced consideration, from counsel on the one side, and the judge on the other. With very great respect, I do not agree with my hon. and learned Friend the Member for Northampton (Mr. Paget). The jury will already have rendered its verdict. The man will have been found guilty, and when counsel addresses the judge, the considerations which he will put before him in inviting a recommendation, for a shortish period, will be any considerations that seem to point to some ameliorating situations in the nature of the offence, or the character of the convicted person.

5.0 p.m.

The right hon. Gentleman asked if we would lose this Bill if we did not agree to this Amendment. I do not know what the reaction to a refusal by this House to accept the Amendment might be in another place. I cannot prophesy. What I do know, however, and what I think the whole House knows, is that this Amendment is the result of a great deal of heart searching. There has been a great deal of anxiety about various aspect of the Bill in this House and in another place. It would be a great pity, when the Amendment does not make all that difference—[HON. MEMBERS: "Oh."] It makes some difference and I should have thought that, so far as it goes, it was not without use. The Amendment is the result of thinking in another place. This is the decision which the other House has taken. If we do not accept it, I do not know whether the other place will accept it.

I would say to the right hon. Gentleman, "Let us accept the Amendment". Putting the worst face on it, it does not do any harm. I think that it does some good. [Interruption.] The right hon. Gentleman does not feel kindly about my argument. But if we do not accept it and it goes back to another place, their Lordships may refuse to agree with us. Who knows what the Bill's future will then be? I greatly hope that the House will say that, while we have reservations about the Amendment we feel able to accept it, and that is certainly the advice which I offer.

Photo of Mr Peter Thorneycroft Mr Peter Thorneycroft , Monmouth

By leave of the House, I should like to speak again. The Home Secretary said that the Amendment does not do much harm. I do not think that that is a very good way of commending to the House of Commons an Amendment on a serious and important Bill. There is a limit to the amount of intellectual sludge which should be introduced into legislation. It is clear that both sides of the House think that this is a pretty miserable Amendment which probably will do some harm and certainly will not do any good. In these circumstances, there is only one point left, and that is whether we shall lose the Bill if we send the matter back to the House of Lords. If that were likely to happen, I think that we should accept the Amendment. It would frustrate the will of Parliament if we did anything else.

But I do not believe that that is the position. The Amendment would go back to another place. If their Lordships sent it back to us again and we were up against it for time, my advice would be that we should accept it. But we are not in that position. There is the opportunity for good sense to prevail. The discussion will be read and known in all the appropriate quarters. If the hon. Member for Nelson and Colne (Mr. Sydney Silverman) would withdraw his proposal, I think that this Amendment could go back to the other place. We shall not lose the Bill as a result of that, and I do not think that anybody would wish to take advantage of the situation; it would be entirely wrong to do so. I make my position public about that. There is plenty of time this Session for the other place to consider the situation again, and then we can consider the matter when it comes back here. But I believe that we shall see no more of the Amendment if it is negatived.

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

I listened with great interest and some alarm to the second speech of the right hon. Member for Monmouth (Mr. Thorneycroft). I understood him to say in his first speech that it would be better not to oppose the Amendment. He is now saying that perhaps it would be tolerable to reject it because it would then go back to the other place and then return here.

Everybody who has spoken has said—and I quote the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson), the former Attorney-General—that this Amendment was introduced in the Lords partially to meet objections raised to the Bill, not by its sponsors but by its opponents, and that it did no particular good and no particular harm. I think that that is the opinion of practically everybody who has spoken. It would be a great mistake and a great pity to waste the time of either House any further on a question which nobody believes is of vital importance, which nobody believes changes the law in the slightest degree and which nobody believes has any great effect one way or the other. To have the matter bandied about between the two Houses in the last two or three days of a Session seems to me, with all respect to everybody, a totally absurd proposition.

Photo of Sir Ian Percival Sir Ian Percival , Southport

I cannot let go uncontroverted the proposition that this is a matter of no importance. It is a matter of importance, and there is one aspect which I regard as important to which reference has not been made.

There are only two honourable courses in a matter like this; the Amendment must either be agreed to in the spirit in which it was proposed and with the intention of giving to it the effect which was intended when it was introduced in another place, or it must be rejected. It may be as well for this House to remind itself that when the Lord Chief Justice introduced the Amendment, in place of a much stronger Amendment, he said, indicating the purpose of the Amendment: … it preserves the right, for which I have been striving so long, of the trial judge to mark the gravity of the offence, the revulsion of public feeling, in a proper case by giving what appears to be a very long sentence, which it is hoped will deter others and afford some protection to the police, in particular".[OFFICIAL REPORT, House of Lords, 5th August, 1965; Vol. 269, c. 419.] Those tonight who say that we should agree with this are not saying that we should agree with it because it does any of those things. They are saying that we should agree with it because it does nothing. That does not seem to me a proper course for this House to take.

If effect is to be given to the Amendment in the spirit in which it was proposed by the Lord Chief Justice and apparently accepted by the Lord Chan cellor, we must say that it is to be regarded as an important provision—the reason why a public declaration is to be made by the judge instead of a private recommendation is that very special significance is to be given to that in future by Home Secretaries. How can the declaration possibly stand as a mark of the revulsion of society, as a deterrent, or as any protection for the police or anybody else if it goes out from this House that this Amendment does not mean anything, does not make any difference and does not alter the Home Secretary's position in any way?

If it is to be a declaration of importance, the other questions to which I referred in Committee in another context, and to which my hon. Friend the Member for Runcorn (Mr. Carlisle) referred this afternoon, are of much more importance than has been accepted by some in this debate, because if the judge's declaration is to be regarded as important both by the public and the Home Secretary it is vital that the accused person, through his counsel or by himself if he is not represented—and it is unthinkable that in a murder case he would not be represented—shall have the right, under a laid down procedure, to make his plea in mitigation and to get together all the information necessary for him to make that plea. If the judge's recommendation is to be regarded as of importance, as it must be if the Amendment is to fulfil the purpose for which is was introduced in another place, then, like the recommendation for deportation, it must be subject to the right of appeal.

All these matters are brushed aside by those who say here today that we should agree with the Amendment. What does the argument for agreeing with the Amendment amount to? It amounts to saying, "Let us ignore the purpose for which the Lord Chief Justice introduced the Amendment in place of another Amendment which had a much more positive effect. Let us ignore the fact that it was accepted by both sides in another place on the basis on which it was advanced by the Lord Chief Justice, and, for convenience, let us let it go because it does not make any difference".

I suggest that that is not a proper or honourable course for the House to take. The right course can be taken without any fear of the Bill being lost, and I echo the sentiments of my right hon. and hon. Friends who have just said that. Many of us have opposed the Bill in principle as hard as we could, but that is now finished. No one has any desire to engage now in any steps which would mean the losing of the Bill. However, I agree with my right hon. and hon. Friends,—and no one has been able to say to the contrary—that this can be put right without any danger of losing the Bill. And I do ask the House to reconsider whether it can be right to accept the Amendment in an entirely different spirit from that in which it was proposed and accepted in the other place, to accept it with what seems to me the ultimate hypocrisy, the intention of so to work it as to give it no meaning or effect at all.

Question put and agreed to.