Before I call the hon. and learned Member for Northampton (Mr. Paget), I would remind the Committee that we are discussing Amendment No. 5 and with it Opposition Amendments Nos. 6, 18 and 19. They are

In page 1, line 5, after "murder", insert:

"except for any murder by shooting or by causing an explosion".

In line 5, after "murder", insert:

"except for any murder done by shooting in the course or furtherance of theft".

In page 2, line 14, at end add:

(5) The following murder shall continue to be capital murder, and shall be liable to the same punishment for murder as heretofore, that is to say any murder that is referred to in section 5 (1) (b) of the Homicide Act 1957 where the accused has previously been convicted of an indictable offence involving violence against the person.

It will also be in order to discuss Amendment No. 27, in page 1, line 5, after "murder", insert:

"except for any murder by shooting of a Sovereign or Head of State committed in the United Kingdom".

but it is not selected for a Division.

May I draw your attention to the fact, Sir Samuel, that there are fewer than 40 members present.

I cannot accept that at this moment.

When we parted on the last occasion I was making the point that the killer was an aberrant in any animal or, indeed, bird, society, and that the ordinary normal man, in just the same way as the normal wolf or jackdaw, requires no deterrent to prevent him killing his kind because it is something which is within his nature. The normal man no more requires a deterrent to murder than he requires a deterrent to buggery. It is just something which the normal man cannot bring himself to do.

I would also say that this incidence of aberration is probably no more common among criminals than among any other part of society. There is, for instance, probably no higher proportion, of homosexuals among criminals than among other people. Probably the same is true regarding killers, although it may also be true that in both cases people who indulge in crime are those with less self-control who may give greater play to their aberrant desires.

But as to the tendency, I suggest that there is no evidence at all that it is more common among criminals than anybody else. In respect of a previous Amendment I was very doubtful whether there would be a majority of retentionist—sother, perhaps, than in the special case of killing a warder—among prison officers. I have no doubt at all, however, that there would be an enormous majority of retentionists among the prison population. All our evidence tells us that.

The ordinary criminal takes the very poorest of view of the "tearaway," the "amateur," who is apt to shoot, and who gives the profession a thoroughly bad name. One finds if one talks to prisoners that their whole attitude is extremely retentionist. I think also—though this may be purely coincidental—that they seem to to have the same characteristics—conservative, superstitious, emotional rather than rational. They are the sort of people who tend to take the strong traditionalist, retentionist view. The real problem we have to consider is not what deters the normal man; he does not require a deterrent. It is what deters the aberrant.

For the ordinary man probably the most effective social deterrent is notoriety. The normal man finds nothing more abhorrent than the parade of a departure from normal standards, whether they be physical or moral, the parade of his abnormality. Notoriety is the most terrible punishment, but not to the aberrant. There is nothing which the killer finds more attractive than his fame and his publicity, a passionate jealousy as to the inch-age which he is getting in the newspapers.

This merely illustrates the difference between what deters the aberrant and what deters the normal man. We had an example quite recently when, after the tragedy of the train derailment in Essex, because of the amount of publicity which it received, there was a bout of attempts to wreck trains all over the country. By making this sort of thing famous and notorious, one makes it attractive to the aberrant.

The question which we are discussing is whether the death penalty is attractive or a deterrent to this aberrant type, the killer within the pack. One starts off with the fact that we do not know that the death penalty is able to deter anybody. The hon. Member for Dorset, North (Sir Richard Glyn) takes the bell-man's argument. "I have said it once, I have said it twice and I have said it thrice," the bellman said, "and so it must be true." In fact, we do not know that the death penalty has ever deterred anybody. I am not denying the possibility that it may have done in a particular case. It is, I suppose, just possible that there is a man who has sufficient control of himself at the point of killing to draw the distinction between the terrible consequence of 10 years in gaol and the possible terrible consequence of hanging, and determines his action at that moment of tremendous emotion—which, of course, killing must be—on that distinction.

I find it difficult to conceive of that individual, but I will concede that he may exist. On the other hand, we know very well that a number of murders have been directly caused by the death penalty, in which the only motive has been the primeval desire to be the victim of the sacrifice. Rhodes was an example, Marjoram was an example, as was the recent case of Terry, when he shot the bank manager after the robbery was completed for no purpose other than to incur the death penalty on the very day on which his two friends, Forsyth and Harris, were hanged for the Hounslow towpath murder.

There was no prospect of escape for this man who desired the fate of his two friends, who desired to be the sacrificial victim. Manuel, in Scotland, I am assured by one of my hon. Friends who was at the trial—though I do not know the case—was another instance of a man who desired execution.

I am not saying that, taken to this extreme, it is common. I do not know whether it is more or less common than the man who draws the extraordinary distinction between the two penalties at the moment he kills. It may be that the two cancel out, but it indicates that the deterrent to the aberrant personality is not the same as the deterrent to the normal personality. Even though this kind of killer—the Rhodes, the Marjoram and the Terry—may be rare, if, by making exceptions, we concentrate this type of killer on particular people, we shall considerably increase the danger to those people. I think that that argument applies rather to murders which do not take place, those of prison officers and policemen, only once in every three or four years, where the addition of this type of murder would greatly increase the number of such murders. Those which we are considering at the moment are the murders which do happen, those in the course of theft and in which firearms are used. To these two cases which we are discussing together, different arguments apply. So far as murders in the course of theft are concerned, there is no evidence that the death penalty is a special deterrent to any greater or less extent than it is to any other murder.

10.45 a.m.

But by taking murder in the course of theft, one excludes many of the most awful and terrible murders, the rape murders, the immensely wicked murders, and includes cases like that of Vickers, those which are substantially accidental murders, cases where a man strikes out in panic. It is the treating of that sort of case as capital when the dreadful cases are not capital which has largely revolted the judges and made them change their minds on this.

It therefore seems to me that the argument against this exception of theft is the argument that we must have a scale of iniquity if we are to go in for extraordinary penalties. One cannot take the kind of case like that of Vickers, which is quite low in the scale of iniquity, and give it special punishment. Far away the most dangerous exception would, of course, be the firearms case, the type of chap who uses a firearm as a dramatisation of his act, making it a tremendously and exceptionally bold thing to do, and makes it so attractive.

I remember those lines at the beginning of one of the sagas:

"These were a company of bold men, but all save one had experienced fear. Thorsen feared God; Thorgut feared the king; Torvorh feared the elements; but Thorgier alone feared nothing, alone had not experienced fear, neither of God, nor the king nor the elements."

The danger is this determination to be the Thorgier of society, the bold man who fears nothing, the man who takes the ultimate risk, the man who puts himself in the position of the ultimate danger. He may turn out to be an arrant coward, but it is the pose, not the reality, which is the danger. To him, this special glamour of the carrying of a firearm is the one likely to increase its use, and particularly by the sort of man, the exhibitionist, from whom killers are drawn, and who uses it.

I would, therefore, say that this is a most dangerous Amendment; that what one needs is the heavy, dull penalty for having a firearm. That is what has been introduced, and that is what will lower the incidence of the use of firearms. I ask the Committee to reject all these Amendments, partly because I believe that in this subject one should not have exceptions at all—it is something that we should abolish—but, in particular, because I believe that, if we are to have exceptions, these seem to me to be very bad ones.

Although I am particularly interested in one Amendment, I should like to refer to the matter raised by the hon. and learned Member for Northampton (Mr. Paget). I think that our people are extremely concerned and gravely worried about the increase in the use of firearms in the pursuit of crime, and that there is a very valid reason today why this particular type of offence should, when it results in someone losing his life, continue to carry the death penalty.

I do not know where the hon. and learned Gentleman lives, but I know that he has great knowledge of the country. Anyone who lives in the heart of the country, in a lonely house, knows the fear that sometimes comes on people when there is a knock at their door or a ring at the bell in the middle of the night. I myself, if Parliament does not support the need for this offence to continue to carry the death penalty, will certainly never go to my front door in the heart of the country without a weapon. As I am still able to carry a sporting-gun, there is a risk, if anyone comes to my house in the middle of the night, of a fatal accident. It must be realised that there is considerable fear amongst wide sections of the population that if this offence does not carry the death penalty there will be grave danger of armed attacks on people living in the heart of the countryside.

The Amendment I have tabled—No. 27 on the Notice Paper—provides for the retention of the death penalty

"…for any murder by shooting of a Sovereign or Head of State committed in the United Kingdom."

This, of course, refers to a visitor to these shores. Assassination of this nature has always been viewed with horror by our people, and I suggest that if this offence does not carry the supreme penalty, we may well find that, should it occur within the confines of the United Kingdom, grave difficulties will be caused between ourselves and other states.

I ask the Committee to consider what would have been the feeling between this country and the United States of America today if that dreadful assassination of the late President Kennedy had not taken place in Texas, but in London. We may say that the man who committed that foul murder was deranged—he may well have been—but I think that there would have been grave reflection upon this country if, in such circumstances, the ultimate penalty had not been exacted upon such a miscreant.

I think without any doubt that, as I understand it, the death penalty would be retained for certain offences other than murder, and I should have thought that an assassination of this nature could have been looked upon as a political act that would merit this sort of penalty. I therefore hope that whatever may be the Committee's view about the retention of the death penalty for other forms of shooting, it will be agreed that the man who commits the assassination of a visitor to these shores should certainly suffer the ultimate penalty.

The Amendment moved by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) provides the death penalty for

"…any murder by shooting or by causing an explosion."

That is another fairly obvious exception. It is an offence that should still carry capital punishment. There is something particularly obnoxious about someone who attempts to kill a number of his fellow beings by means of an infernal machine. We have had cases recently of bombs being placed amongst luggage in aircraft, the result being that the aircraft have been destroyed and a number of people have been killed. There was such a case comparatively recently in the United States of America.

This may not involve the perpetrator of the crime in any risk whatsoever. He can put a bomb with a time device in luggage being despatched by aircraft. There is no risk to him at all, but numbers of people may lose their lives as a result, and the effect of such an incident can be very great indeed in these days of large airliners. We may find that men, women and children—distinguished and humble alike—lose their lives, and the ultimate penalty not be exacted from the person concerned.

The person may be a crank, or a man who wishes to commit political assassination—I know that this has some attraction when one considers some of the poli- tical assassinations that could be committed against the party opposite—but I certainly think that anybody who carries out that sort of offence should not be able to look forward to nine or 10 years in prison and then let loose, if the present Home Secretary has his way, to do it again. I hope, therefore, that the death penalty will be retained in regard to these two offences—the letting off of an infernal machine and the murder of a visiting Head of State or Sovereign.

I have never disguised the fact that I am opposed to the abolition of the death penalty. I know that the hon. and learned Member for Northampton—who has now, I am sorry so see, left the Chamber—produced some very specious arguments why the death penalty should be abolished, but I think that it is an effective deterrent; and that the offences I have mentioned are so foul that they certainly call for exceptional treatment.

My hon. Friend the Member for Exeter (Sir Rolf Dudley Williams) has said that he has never disguised the fact that he is in favour of the retention of the death penalty. I have never disguised the fact that I am in favour of its abolition. I was in favour of its abolition in 1956, and have remained so to this day. I have, however, somewhat unwillingly come to the conclusion that in one small respect an exception might be made.

11.0 a.m.

I have tabled an Amendment—No. 18—which is drawn in the narrowest possible terms to except murder, not by shooting, not in the course of theft, but by shooting in the course of theft. It was the narrowest extent that I could devise to meet what I believe to be a very real point. This may seem illogical, and although I do not wish to detain the Committee for very long I would like to put a point to hon. Members, and to put it, in particular, to the sponsors of the Bill and to the right hon. and learned Gentleman the Home Secretary. I do not dissent from a great deal of what was said by the hon. and learned Member for Northampton (Mr. Paget). It was only at the end of his remarks that I thought that he was treading on very dangerous ground and was being singularly unconvincing.

On the whole, I am inclined to agree that it is impossible for anybody to say with certainty that the death penalty is a uniquely effective deterrent to murder. My hon. Friend the Member for Exeter is equally entitled to say that nobody can prove that it is not. I have always believed it to be essential to demonstrate—whether one demonstrates it by statistics, by inner instincts of by whatever other means—that capital punishment is a uniquely effective deterrent to murder if it is to be retained.

It might therefore seem, since I take this view that to put forward Amendment No. 18 is wholly illogical. That in itself does not worry me very much, because there has never been much logic about this throughout the history of the death penalty. The 1957 Act was illogical, as, I think, everybody now recognises. The situation before the 1957 Act could be held to be utterly illogical to the extent that we hanged people who probably would not have committed a second murder while we retained the lives of some really dangerous people who, if they escaped, would almost certainly have committed another murder. As far as I can see, there has never been any logic in this business.

We must draw a strange balance between the public advantage—the public order and the safety of the citizen—and what we as individuals and Christians believe to be right. If the result in any case, as a result of the weighing of advantage, is illogical, then that cannot be helped. We must face that.

Why have I felt it right to draw the very narrow exception contained in Amendment No. 18? I will explain why and also say why I could not find it possible to support the Amendments in the names of some of my hon. Friends to except from abolition all murders by shooting and all murders committed in the course of theft. Some of my hon. Friends may say, "If you want to retain the death penalty for somebody who, in the course of theft, shoots a householder, policeman or bystander who prevents him from escaping, why will you not go a step further and execute the man who coshes someone on the doorstep in the course of theft?"

There is a real and valid distinction here. As we know, there has been a period during which the number of crimes of violence—probably crimes of violence in pursuance of theft—and particularly crimes of physical violence, such as the use of coshes, have been on the increase. However, nobody can persuade me that the criminal who coshes an old lady on the doorstep of her home decides to balance nicely in his mind how hard he should hit her by the thought that if he hits her that bit harder she will die and it will become a capital murder while if he hits her a bit less hard it will merely be assault, for which he will go to prison.

If murder in the pursuit of theft as a capital crime has not deterred many of these crimes of violence in pursuance of theft, then capital punishment is not serving as a deterrent to this form of violence. I have always believed that the deterrent to this form of violence—indeed, the only effective deterrent—is the likelihood of getting caught. If that likelihood is overwhelmingly great, then that deterrent is the most effective.

Nevertheless, we are still left with the factor which, out of all the worries that the Bill and the likelihood of its passing have caused to people, remains a factor in a slightly different position from the other factors. It is the one which has worried the police and a great many others; the likelihood that if the death penalty is abolished without exception there will be a greater incentive to the criminal setting out on a robbery to carry a firearm than would otherwise be the case.

I entirely agree with the hon. and learned Member for Northampton that once the firearm is in his possession and once the crisis comes the deterrent effect of capital punishment is probably not very great in deciding whether the man should use the firearm. It is the fact that he has the gun that is the crucial point. However, I am afraid that I differ from the hon. and learned Gentleman in the last part of his speech, in which he sought to show that to make murder by shooting in pursuit of theft a capital crime would encourage robbers to carry guns; that the possession of firearms would be glamourised and that robbers would carry more firearms rather than the reverse happening. I find this proposition too difficult to swallow. I am as little moved by that argument as I am by the thought of my hon. Friend the Member for Exeter opening his front door to a startled vicar with a shotgun in his hand.

I firmly believe that there is real alarm, not only about the risk of more criminals taking firearms with them on criminal jobs but the fear that if the carrying of firearms becomes increasingly prevalent there will be agitation for the police to be armed. This is something which we must all, retentionists and abolitionists alike, try to avoid if we can. That is not to say that such a step would be necessary. But I am afraid that enough people would feel sufficiently strongly about the matter to agree, particularly if there had been enough unfortunate cases, to agitate for the police to be armed and, if there had been such unfortunate cases, the police would perhaps not feel disposed, in the interests of the safety of their companions, to disagree with that agitation.

While I concede to the hon. Member for Nelson and Colne (Mr. Sydney Silverman) and the hon. and learned Member for Northampton the danger of making any exceptions at all once a campaign to abolish capital punishment has been started—and, as I have made it clear, I want capital punishment abolished—I believe that acceptance of Amendment No. 18 would, in the long run, make the abolition of capital punishment more likely, more swift and more probable than if it were not included in the Bill. It is necessary to reassure the public and the police in this respect. I equally believe that it would be in the interest of the criminal, for it would make him think twice about whether or not he will take a gun in his pocket when setting out on the commission of a crime.

This, I consider, would act as a deterrent to the carrying of firearms in the course of crime. If it did act as an effective deterrent here we would find the number of convictions and executions for capital murder so few as to make it obvious that capital punishment was finished and on the way out. But I believe that for a transitional period this provision would be valuable. It would enable the country and the police to assess the progress which we are making in the abolition of other forms of murder.

For this reason, illogical as it may seem, and repugnant as it may seem to the abolitionists and, in particular, to the sponsors of the Bill, it would be right to do this, and I very much hope that the Home Secretary will bear this in mind during the further stages of the Bill.

We are discussing three separate arguments, which I can probably put in correct focus in the following way. It is said, in the first place, "You should retain capital punishment when theft is involved"; it is said, in the second place, "You should retain capital punishment in the case in which shooting or the use of explosive material is involved"; and it is said, in the third place, "You should retain capital punishment when you have a combination of these two elements". That, broadly speaking, is the argument which has been addressed to the Committee and was summarised very forcefully in the speech of the hon. Member for Stratfordon-Avon (Mr. Maude).

Is there a case for it? It depends, I think, very largely on the reasons which actuated an individual hon. Member in his general attitude to the Second Reading of the Bill. One either takes the view that there is something barbarous in capital punishment as such, or one does not. If one takes the view that it is barbarous, one can say to oneself, "There are, unfortunately, certain barbarous things which have to be done in the course of our extraordinary transactions in society and we have to accept them". But I feel confident that those hon. Members who support the Amendments will agree that if we start from a position that the infliction of the death sentence in itself is barbarous, that it offends the conscience and that it has a generally brutalising effect on society, and if we start from the position that it is not just a matter of balance but that the scales are weighed heavily against the infliction of the death sentence, then if we wish to make exceptions to the proposal to abolish the death sentence altogether there has to be an extremely strong case made out for the retention of the exceptions.

Can it be said that there is a strong case for any of these three proposed exceptions? Let us look at the history of Parliament and the country on the general question of the death sentence. I suggest that we have tried to do exactly what those hon. Members who support the Amendment have sought to do. We have had the Homicide Act on the Statute Book for several years. When it was originally accepted by Parliament and the country, it was on the basis that it represented the best attempt that we could make to select out of the whole panorama of murderous offences those which, for particular reasons, could be stigmatised as being especially appropriate for the retention of the death sentence.

The second conclusion, which practically everyone who has taken part in the debates would accept, is that the Homicide Act in fact will not work. It will work in the sense that it can be enforced, but it has not satisfied the desire of the public or our individual desire for a rational treatment of the subject, because each of the exceptions can be shown to attract such anomalous consequences that it is difficult to justify the retention of that exception.

When one looks at the type of case which attracts the death sentence under the 1957 Act, in its nature it is bound to produce completely inconsistent and discordant results. A man is liable to the death sentence if he puts his hand in the pocket of the corpse and steals 6d. On the other hand, he is not liable to the death sentence if he commits the most murderous and revolting rape. His purpose may have been utterly inhuman and utterly impossible to reconcile with anything which could remotely seem to accord with at least a glimmer of decent feeling. But under the 1957 Act he is not liable to the death sentence. The mere chance that he sees an object fall out of the pocket of his victim, which he picks up and puts in his own pocket, renders him liable to the death sentence.

11.15 a.m.

The whole attitude of the country has been that that is a quite impossible anomaly to accept. Learned counsel and members of the legal profession in the courts have thought it an impossible position to allow to continue. Outside the courts, in the House and elswehere, people have felt that we cannot accept a statute as being part of our law which produces that effect.

Does not the Home Secretary agree that the case of revolting and disgusting rape and murder which he has described ought to attract the death penalty?

That is just the sort of difficulty with which we were faced when discussing the 1957 Act, and it is precisely the difficulty which we face now.

It is not reasonable to make a case out that merely because we made a mistake in 1957 we ought to go on making mistakes today.

The case would be for not making a mistake in 1957 and equally avoiding making a mistake now.

The difficulty is that if we look at a hundred different murders, in their individual circumstances they differ almost infinitely, and it is impossible to classify them into those which are categorically bad and those which are categorically not so bad. We cannot classify them in any sense which depends on their circumstances.

Does not the Home Secretary agree that as it is wholly illogical and impossible to try to classify them by degree of revoltingness or the heinousness of the crime—many of them could not be deterred as they are committed by people who are deranged—the only way to classify them is by the likelihood of success of the method by which they may be stopped or deterred?

With respect, I do not agree. Whatever form of language one chooses, one runs ultimately into an anomalous result. The House and the country have thought about this for years and have always found themselves up against precisely the same difficulty. It is easy to retail examples. I hesitate to mention individual names, but in this case the individual is no longer alive: Hanratty committed rape and then tried to shoot his unfortunate victim.

Order. We are not discussing rape. We are discussing only shooting and murder in furtherance of theft.

I was about to say that Hanratty then tried to shoot the victim of the rape. If he had stolen 6d. from her he would have been liable to the death penalty under the 1957 Act, but raping her and shooting her did not involve it. I am sorry, I have got that wrong, but I will not go into the anomalous situation because it complicates these matters considerably and there is endless inquisition into individual cases. It is bad practice. I am simply putting to the Committee the general point that we cannot classify different kinds of murder.

We are at the moment considering the death sentence. I know that no one in the Committee would for a second argue that we should retain more barbarous forms of penalty, but suppose we were discussing some of the medieval penalties which were far crueller and more barbarous than this and which we rejected—the thumbscrew, the rack, and so on—because it was revolting to the conscience. Surely we could not say that we should retain it for some particular purpose.

I would not pose as a great expert, but my recollection is that the thumbscrew and the rack were never imposed by law. The way in which they came to be used was that there was no legal way of preventing the Sovereign in what was regarded as urgent cases from using those devices. There was never any law or statute which permitted or did not permit, or regulated the use of the thumbscrew or the rack and so on.

It is always very dangerous to look back to the past in the presence of an eminent historian. No one in this House would dream of saying, as some hon. Members are saying of the death penalty, that there is some sort of offence for which the thumbscrew or the rack should be retained. We would start from the position, which I should have thought the proper position now, of saying that we want to get rid of it because it is a barbarous obscenity. I should have thought that we should start from exactly the same premise in talking about the death penalty.

Some hon. Members do not have the same feeling about it. I can understand them saying, "Let us retain it for individual types of murder if we can classify them on a logical basis", but I should have thought that they would go further and say, "Let us repeal the 1957 Act and go back to the position as it was before that when the death penalty was the proper penalty for every murder." One either thinks the death penalty is a barbarous obscenity or one does not. Some people think that it is a better deterrent than others and say let us retain it, but if one thinks it is barbarous I should have thought it very difficult to say that it should be retained for exceptions unless the strongest possible case can be made for them.

I have tried to indicate some of the anomalies in consequence of retaining it for those exceptions. In the case of shooting, the evidence on page 57 of the document "Murder" which we have looked at on a number of occasions in this Committee, is that shooting is carried out by someone who is mentally unbalanced. Very often it is the kind of domestic tragedy we have considered. To try to retain it for that case would mean retaining it for cases in which a large number of those concerned would be people of an abnormal type who would not normally be amenable to the death sentence.

When we look at this particular proposal we see that it would isolate the person who has shot another person and that is getting closer to the bank robber. My hon. and learned Friend the Member for Northampton (Mr. Paget) mentioned one kind of bank robbery in which the robbery was accompanied by a shooting almost on the same morning as an execution for exactly the same thing. His argument was that the people who do this deviate from the normal type of person and that therefore we cannot predicate that they are deterred by the same sort of considerations which deter the ordinary sort of person. I should have thought he was amply right. That was the conclusion of the Royal Commission when it considered how far it could be said that it was shown by figures and experience in other countries that the death sentence is a deterrent. It is not certain and one cannot draw certain conclusions.

I got the Hanratty case wrong. He was executed because there was a double murder. That was why he was liable to the death sentence, but if he had committed rape and murdered his victim he would not have been. That is relevant to the second Amendment which would apply the death sentence in cases of shooting. I think I am right in saying that that was why he was liable under the 1957 Act. If one looks at these proposals one sees that they are open to precisely the sort of objections which the various exceptions in the 1957 Act are open to. When we return to the task of trying to work out a logical scheme of keeping out of the abolition proposal a particular type of offence we find, as was found by experience after the 1957 Act, that we simply cannot do it on any logical basis. Therefore I hope the Committee will not accept any of these proposals.

I come back to what I regard as the fundamental question which one should ask oneself when one considers these sort of Amendments, which is, Do you think the death penalty is something barbarous in itself? If one does one is 100 miles away—even if one is prepared to overlook the illogicalities of the particular proposals—from being able to reach a conclusion soundly that a case is made for making an exception to the general rule that we in this country will not tolerate a legal process which results in the doing to death deliberately of a human being. We can deal with the matter in other ways just as effectively, and it is brutalising to society that this should be done in its name. It is high time we got rid of it, and I hope that the Committee will reject the Amendment.

The right hon. and learned Gentleman emphasised the question of rape as against theft arid pointed oust that rape is a particularly vile type of crime.

Order. We cannot pursue rape at the moment.

The Home Secretary said that hanging is a barbarous obscenity. I think it only fair to add that he apparently took the view that not everyone would be likely to adopt those particular words in describing hanging.

What I meant to say was that people differ about this; people have different views. I intended to say that this is my view and, I think, the view of those in favour of abolition of the death sentence. The conclusion I was seeking to draw was that if one starts from the fundamental premise and so regards it, as abolitionists, as they are collectively called, do consider it, unless there is a most cogent reason for exception it must go for good, it must go completely and absolutely and not be retained in part.

The Home Secretary was clear. No hon. Member in the Committee had difficulty in understanding what he was saying. I was merely pointing out that he used words to describe hanging as "barbarous obscenity" and he said that they were not the words that everyone would use. I submit that they are highly coloured and emotional words to describe hanging. If he is to adopt language of that kind to describe hanging, perhaps hon. Members will forgive me when I say that some of us would choose language of that kind to describe murder itself from which the punishment flows.

I am sorry to interrupt again. A great many abolitionists would say that the one thing we do not want to do is the very thing that the murderer does. We dislike putting people to death. Therefore, we wish to draw a distinction in our own proceedings from that kind of conduct for which we think that murderers are worthy of the highest possible condemnation.

Of course, I understand that. That is a view with which I sympathise. The Home Secretary went on to say that if there are to be exceptions to the abolition of capital punishment those exceptions must be proved, and they would be exceptions only in the strongest possible cases. I suggest that one of the exceptions that falls clearly within this category which the Home Secretary has defined is murder in the course or furtherance of theft. Most of us in the Committee, after the experience we have had of trying to persuade the Committee to accept a number of Amendments, all of which have been rejected, are not over-optimistic about the Committee's accepting this Amendment. Like all the other Amendments which have been rejected, this Amendment illuminates in stark outline the grave weakness of the Bill which seeks to abolish capital punishment, namely, its failure to replace with any other adequate punishment the punishment that it hopes to abolish.

Order. We shall be discussing that later.

I do not want to go outside the boundaries of the debate. I had intended to return within them immediately, and I shall do so now by saying that the arguments which have been adduced in support of the Amendments which have been rejected, and indeed the argument which has been advanced in support of the Amendments which the Committee is now considering, all derive their vigour from the absence of any alternative and satisfactory penalty to the death penalty which the Bill seeks to abolish.

The hon. and learned Member for Northampton (Mr. Paget) told us that, in his view, the person who commits murder is not a normal person. With that view most of us would agree. What surprised me—and I hope that it surprised most hon. Members—is that the hon. and learned Gentleman did not go beyond that and say what I would have thought is obvious, that not only are people who commit murder in the ordinary way not normal people, but that those who break into houses and steal are, in the vast majority of cases, not normal people.

Does the hon. and learned Gentleman want to hang them all?

I am arguing, I hope not without effect, for the view that, where there is a possibility for the law to put between the householder and the housebreaker a protection, which I firmly believe the death penalty is, it is wholly irresponsible to remove that shield and protection without attempting to put something effective in its place.

May I refer, as my right hon. Friend the Member for Ashford (Mr. Deedes) referred at the last sitting of the Committee, to the Home Office Research Unit Report, "Murder". This Report shows in paragraph 73 that most cases of capital murder are committed by persons with criminal records and that most of the convictions which those who commit capital murder have had recorded against them have been for larceny and breaking and entering houses.

This seems by itself at least to flash the red danger signal to anyone who is considering removing the death penalty without putting in its place what we submit is necessary as an adequate punishment. There is no more frequent crime than housebreaking. Any night, and indeed any day, but particularly any night, one of us in our homes may be awakened by noises coming from downstairs, or from the next room, or, it may be, in the room where we are sleeping. At this moment of time we can be reasonably certain that the person who has come into our home, in order presumably to steal from us, will be a person between the ages of roundabout 17 to 25.

My hon. and learned Friend has indicated that the rejection of this Amendment, or at any rate the discussion of the Amendment, should be a red danger signal to those who want to remove the death penalty. Would he not agree that the rejection of the Amendment would be a green signal for those engaged in the commission of crimes? Would my hon. and learned Friend address himself to the question of the rejection of the Amendment providing a possible incentive to murder?

I am grateful to my hon. Friend. This is a point I want to develop. I had intended to come to it, because I think that it is perhaps as important as, if not more important than, the point I am trying to develop at the moment. I am saying that the housebreaker who comes into our house will probably be between 17 and 25. That may or may not be important. It may or may not be a comfort to the householder. But one thing is also certain at the moment. The chances are—indeed, the overwhelming chances are—that the person who has broken into our house will not be carrying a weapon of any kind. Certainly he will not be armed with a pistol. He will be a man who will be unlikely to make a fatal attack on a householder if he is challenged.

If the Bill goes through and abolishes the death penalty without replacing that death penalty with any adequate and substantial punishment, what is to happen to the householder who has to get up in the middle of the night to investigate a disturbance in his house by someone who has broken in? Will he then have the security of knowing, as he has at the moment, that the overwhelming chances are that the invader is unarmed? Or will he have the new fear that, because the person who has come into his house no longer has any fear of the ultimate penalty—the death penalty—that person might take the chance of bringing in with him a pistol and using that pistol if the householder stands between him and his liberty?

If these seem to be fanciful, irresponsible, arguments, something brought up as an illustration of what might happen in a remote contingency, may I bring to the attention of the Committee the Report of the Royal Commission on Capital Punishment 1949–53 and ask hon. Members to consider for a few moments that well-repeated paragraph—paragraph 61—where the evidence of police officers and others who might be regarded as being well-qualified to speak on this aspect of the value of the death penalty is set out? I do not want to weary the Committee by reading the whole of the paragraph—it is fairly lengthy—but I hope I shall he forgiven if I draw to the Committee's attention, because of its relevance to these Amendments, the first part of paragraph 61.

The Committee reported:

"Of more importance was the evidence of the representatives of the police and prison service. From them we received virtually unanimous evidence, in both England and Scotland, to the effect that they were convinced of the uniquely deterrent value of capital punishment in its effects on professional criminals."

Let it be said at once that these Amendments which we are now considering relate to the acts of professional criminals. These are the people whose activities we fear. Here in the Royal Commission's Report one has a reference to the unanimous conviction of people who might well be supposed to know better than most others that the death penalty had a uniquely deterrent effect on professional criminals.

The Report went on to say:

"On these the fear of the death penalty may not only have the direct effect of deterring them from using lethal violence to accomplish their purpose, or to avoid detection by silencing the victim of their crime, or to resist arrest. It may also have the indirect effect of deterring them from carrying a weapon lest the temptation to use it in a tight corner should prove irresistible."

This is the very situation that we are considering now. This is one of the basic reasons why we argue that we cannot with safety abolish the death penalty for crimes of this kind unless we put in place of the death penalty some other punishment which we can regard as being a substantial, satisfactory and wholly adequate alternative.

To got a right view of what was the real opinion of the Royal Commission, has not one in the first place got to read the very tentative expression of opinion later in that paragraph, namely:

"It seems to us inherently probable that, if capital punishment has any unique value as a deterrent, it is here that its effect would be chiefly felt and here that its value to the community would be greatest."?

One should read that in the light of the Commission's final conclusion in paragraph 68, which I do not want to read at length, but it is a paragraph in which the Commission makes clear that its overall view is that it is impossible to draw any safe conclusion as to the value of the death penalty as a deterrent.

I quite agree. I had not finished with paragraph 61. It is only fair that one should consider the whole picture. The Report goes on to say:

"Moreover we received no evidence that the abolition of capital punishment in other countries had in fact led to the consequences apprehended by our witnesses in this country; though it is fair to add that any comparison between Great Britain and most of these countries, with the exception of Belgium, is vitiated by the differences in social and industrial conditions and in density of population."

Finally the paragraph says:

"For the professional criminal imprisonment is a normal professional risk, of which the idea is familiar, if not the experience, and which for him carries no stigma. It is natural to suppose that for such people (except the rare gangster, who constantly risks his life in affrays with the police and other gangs) the death penalty comes into an entirely different category from other forms of punishment."

11.45 a.m.

It is perfectly true that this Report does not come to a conclusion—and this could be argued both ways—that the death penalty is decisive as a deterrent. Indeed, the hon. and learned Member for Northampton (Mr. Paget) said this morning that he did not know whether the death penalty deters anyone. It may well be that that expresses a view that is held by many people in the country at large and in this Committee in particular. The hon. and learned Member went on to say "I am not denying that it is possible"—in other words, that it might deter.

If by these Amendments—and I am particularly interested in Amendment No. 5 which seeks to retain the death penalty for murder done in the course or the furtherance of theft—we could hope to save the life of one householder—and I hope this will be the view of the whole Committee—could anyone deny the value of the Amendment or the essential character of the Amendment as part of the Bill? To say that if we accepted the Amendment some poor burglar who shoots a householder will have to suffer the supreme penalty and that is something that this Committee cannot tolerate, does not seem to me in any way to counterbalance the view that an innocent householder is worthy of the best protection that the law can afford.

rose—

I will give way to the hon. and learned Gentleman in a moment. I should just like to finish this part of my argument.

I submit that one of the best protections that the law can afford the householder, unless the Bill is going to be altered fundamentally to provide a proper alternative to captial punishment, is to adopt this Amendment.

Mr. Bessell.

I had merely resumed my seat, Dr. King, to give way to the hon. and learned Member for Northampton who indicated that he wished to intervene.

I will not deprive the hon. and learned Member for Billericay (Mr. Gardner) of his right to continue, but apparently the hon. and learned Member for Northampton (Mr. Paget) has decided not to intervene.

I shall not detain the Committee for more than a few moments.

I think it only right to draw attention to a case which was heard at Leeds Assizes recently. I have no doubt that the Home Secretary will recollect the circumstances of the case. I do not want to mention names, but he will, no doubt, recognise the case. It concerned a garage attendant who was murdered by a number of people who beat him up, put his head in some water and drowned him, and then robbed him in the course of murder. Of course, it was capital murder. One of those who took part in this murder afterwards spoke to the police to the effect "Well, of course, since the Bill"—that is this Bill—"has come before the House of Commons we are more likely to take a chance." That is a view which was expressed by someone who was charged with murder, a professional criminal.

The expert evidence that was given before the Royal Commission, although it certainly did not enable the Royal Commission to come to a firm conclusion one way or the other, added to the evidence of the kind which I have just indicated, cannot leave us other than grossly uneasy about the prospect of exposing the citizen and the householder in particular to the perils which may well arise—we all appreciate the danger—if the death penalty is abolished for murder done in the course or furtherance of theft.

The very fact that there is a danger should be sufficient in my submission to persuade the Committee to not only consider seriously Amendment No. 5 and the other Amendments which go with it but to adopt that Amendment, because we shall be at our peril as a Committee and as a House of Commons if we neglect the opportunity which we have now of giving the best protection we can to innocent people who otherwise might be put in fatal danger.

There can be arguments for supporting a great many of the Amendments. I have made no secret of the fact that I am anxious to see the abolition of capital punishment as quickly as may be possible. I have said this previously in this Committee. Nevertheless, I have felt and I still feel that there are one or two exceptions which should be considered and which I believe the Committee would still be wise to accept. In particular, Amendment No. 18, in the name of the hon. Member for Stratford-on-Avon (Mr. Maude), must appeal to everyone who takes a rational view of this subject.

It must appeal first and foremost because it is not the view of an extremist who desires to retain capital punishment for all forms of murder. It must appeal, secondly, because although the Bill is entitled Murder (Abolition of Death Penalty) Bill" nevertheless it does not totally abolish capital punishment in this country. We still retain capital punishment for crimes of treason. Consequently, if we are prepared to accept that there is an exception it is surely reasonable for us to accept that there may be other exceptions also.

In the case of murder committed in furtherance of the crime of theft we are dealing with a man who sets out with a cold-blooded intention to acquire other people's property on his behalf. In doing it, if he feels that he is in danger of being apprehended he will not hesitate to shoot the person who either prevents his committing his crime successfully or seeks to apprehend him after he has committed the crime. We are not dealing with the case of a man who is acting upon a lunatic impulse or with the case of a man who sets out to commit a crime without any intention of murder. We are dealing here with a man who is quite willing and prepared to murder his victim if there is no other way of avoiding apprehension and punishment.

But only by shooting.

Yes, but I do not see that there is any conflict here. If a man is going out to commit a crime, to rob a bank or a household, the normal weapon used is a firearm and we shall be discussing later in the House the Firearms Bill which has been introduced by the Government to extend restrictions on the possession and use of firearms.

Will not the only effect of the Amendment be to persuade criminals of that kind to take a dagger instead of a revolver?

I have only the greatest of respect for the hon. Member's opinions but I do not think that that is a logical answer to the arguments which I am putting before the Committee. The man who comes out with a dagger or a bludgeon will not be able to use that quickly and effectively in the same way as he can use a revolver. If he is in a position where he is being attacked by a number of police officers or private individuals he can use the revolver quickly and effectively and in all probability may succeed in stopping an attack upon him without even using the weapon, whereas the man who has a dagger will be able to use it on only one assailant and probably will not have the opportunity of doing that.

Suppose that he does. The hon. Member knows perfectly well that there are a number of cases of murders of policemen by stabbing. What the hon. Member seeks to do is to say that if a man in the course of theft, perhaps seeking to escape or in some other way, kills by shooting he is to be hanged but if he does exactly the same thing for exactly the same purpose with some other weapon he is not to be hanged. Is there any sense in such a proposition?

rose—

Order. If the hon. Member wants to catch my eye he must attempt to do so. We cannot have an intervention upon an intervention.

In reply to the hon. Member for Nelson and Colne (Mr. Sydney Silverman), I can appreciate the logic of his argument that it seems strange that we should seek to retain capital punishment for a man who carries a weapon and shoots a policeman and at the same time abolish it in the case of a man who stabs or uses some other weapon to commit a murder. But the fact remains that it is the view of Her Majesty's Government that the increase in crime today can be curbed to some extent by restricting the possession of firearms, and this I call in aid in my argument as evidence of the need to include this Amendment.

I believe that not only are the Government completely right in this but that public opinion is entirely behind them, because there is real anxiety about the number of crimes of violence which involve the use of firearms. The number of these crimes is on the increase. I cannot think that this is the time to remove something which may well be a deterrent against crime of that sort. It is true to say that the House of Commons has responsibility for public safety, but we also have responsibility for the peace of mind of the public at large. I believe that there is an anxiety, founded very largely upon fact, that if the death penalty is abolished completely and if we do it now and in total there will be a further increase in the type of crime which involves the use of firearms.

We have already had a long discussion on the responsibility which we have for the safety of police officers and I realise that I cannot disgress this morning by enlarging upon that. At the same time, the terms of this Amendment would provide the protection for which the police have asked, if not in full then at least in a very large measure. This is another reason why I believe that in exercising our responsibility for public safety we must bear in mind not only the safety of the police but also of those people who, acting on their own initiative and often with great courage, are prepared to attempt to prevent a theft being committed and are prepared to go unarmed into the battle against the felon and in so doing risk their lives.

12 noon.

If we do not accept Amendment No. 18 and the Bill goes through in its present form, the effect will be to discourage many people who might otherwise be willing to risk their own safety in apprehending a criminal. They will feel, perhaps quite reasonably, that the man they are seeking to prevent from committing a crime may well be armed and will have no fear about using his weapon against them. One cannot expect people to have the same degree of responsibility or sense of public duty if they feel that the one deterrent which they believe, rightly or wrongly, is effective has been totally and irrevocably removed.

Does not it matter whether rightly or wrongly?

Not in this case, I suggest, because, while it is the task of the House of Commons to do everything it can to advance the understanding of the general public about matters of this kind, it is our task also to educate people and to take them along, so to speak, step by step. One of the most distressing features of the whole of this debate is that we receive either the total abolitionist point of view or the total retentionist point of view, and we do not get a fair balance in these matters. This is one of the reasons why the speech made this morning by the hon. Member for Stratford-on-Avon appealed to me so much. If I may say so, it presented a very balanced approach to this whole subject.

Why should we be in such a hurry over the total abolition of capital punishment, with the single exception of retaining it for crimes of treason? Why is it not possible for us to follow public opinion, to allay public anxiety and to accede to the requests which have been made unofficially by the police and, for example, by prison officers? Why have we to take things at such a rate? There is no doubt that, ultimately, capital punishment will be totally abolished. It may well be that the sooner that day comes the better. But the fact remains that, at present, public opinion is not educated to the belief that this is the time to do it. In my view, it is lamentable that Her Majesty's Government have chosen to introduce this Bill—

Order. I have been waiting for the hon. Gentleman to get back to the Amendment.

I apologise, Dr. King. I realise that I was overstepping the point.

The hon. Gentleman supported the Second Reading.

Yes, I voted for the Second Reading, but to vote for the Second Reading is not to vote finally for the Bill. I hope that certain Amendments will be carried, and I still cannot see—

Order. The hon. Gentleman must take note of what the Chair says. He must address himself to the Amendment.

I beg your pardon, Dr. King. I have got myself very far from it, but, in mitigation, may I say that I was interrupted by the hon. Member for Nelson and Colne and I was seeking to reply to his comments.

If we accept the Amendment and retain capital punishment in the case of a murder done by shooting in the course of or furtherance of theft, we shall go a very long way to meet the anxiety which is felt by a very wide section of the public, an anxiety which, however unrealistic it may appear to the total abolitionist, is none the less very real to those who entertain it and for whom we have a definite measure of responsibility. The fact that some of us do not believe that this is necessarily an effective deterrent does not alter the fact that the vast majority of people believe that it is a deterrent in the case covered by Amendment No. 18. For that reason, if for no other, we have a duty to accept the Amendment. I sincerely hope that

rose in his place and claimed to move, That the Question be now put.

On a point of order. May I respectfully ask you, Dr. King, to give me the opportunity to move Amendment No. 18, so that the Committee may have a Division on it? This Amendment received some support in the debate and I think that it is generally agreed that it is quite different from and much narrower than the two on which we have just divided. For example, it is the only one which I wish to support.

I understand the hon. Gentleman's difficulty. If he had raised this matter when the Committee decided at the beginning of the debate to accept my suggestion about which Amendments should be divided upon, I might have had the opportunity of considering it. I am afraid that I cannot do so now.

We now come to another group of Amendments. With Amendment No. 9, in page 1, line 7, leave out "sentenced" and insert:

"liable at the discretion of the court",

we shall take Amendments Nos. 10 and 11, in line 7, leave out "sentenced to imprisonment for life" and insert:

"imprisoned for such period as the court may direct and shall not be released by the Secretary of State pursuant to the provisions contained in the Prisons Act 1952 before the expiration of such period except with the leave of the court"

and in line 7, leave out "life" and insert:

"a period of not less than 25 years unless a court in its discretion orders otherwise"

on which I shall be willing to consider a Division and Amendment No. 13, in line 7, at end insert:

(2) On sentencing any person on a charge of murder to imprisonment for life the court shall 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.

on which I shall be willing to consider a Division, and Amendments Nos. 15 and 16, in line 14, leave out "life" and insert:

"such period as the court shall direct".

and in line 23, leave out "life" and insert:

"such period as the court shall direct"

We shall be taking Amendment No. 17 separately. That is, in line 7, at end insert:

"Such a sentence shall be of indefinite duration subject only to the exercise of the prerogative of mercy".

I beg to move, in page 1, line 7, to leave out "sentenced" and to insert:

"liable at the discretion of the court".

This group of Amendments brings us to a very different aspect of the Bill, for we have now completed discussion of all the Amendments which were selected and which might have retained the death penalty in respect of particular offences. We have now reached a stage in the Bill at which for no murder is there to be a capital offence, and the question of the alternative and how it is to be dealt with now arises.

The purpose of the Amendment is to see that responsibility for fixing the real sentence which a murderer serves shall rest with the judges and not with Ministers, in other words, that it shall be part of the duty of the courts and not part of the duty of the Executive and civil servants advising the Home Secretary to decide what is the real sentence which a convicted murderer shall serve.

Amendment No. 9 is in the same form as many other provisions which create a life penalty for serious crime and it gives the court the right to decide whether, in fact, it will pass a life sentence or some determinate sentence of any number of years which is stated in the judgment of the court.

By the Bill as it stands, on conviction of a murderer the courts will have to pass a nominal sentence of life imprisonment, but we all know perfectly well that that is a mere pronouncement of a formula and that the reality of the situation will be that the Executive will then take charge of the question of how long an individual convicted murderer shall spend in prison.

This is not only for the murderers who, up to now, have committed capital murder, but all those categories of murder which, since 1957, have not been capital. I have always conceded and recognised that every crime has a great variety of ways in which it can be committed and murder is probably the one which can have the greatest number of extremes. There are cases when a Home Secretary has released, either within a year or possibly less, certain persons convicted of murder where the circumstances have been of great pity, where the crime has been done probably to prevent the suffering of a dearly loved relative, and where any ordinary person would say that it was not a criminal act and that the convicted man did not need to suffer punishment. We are, therefore, looking at the whole range of murders, from those which no ordinary citizen would think required very much punishment to the most grave and heinous offences, some of which we have been discussing during our previous sittings.

Of course, the power of the Home Secretary to deal in reality with the length of time which a convicted murderer shall serve in prison arises from Section 27(1) of the Prison Act, 1952, which gives him the power to release a person sentenced to life imprisonment on licence and subject to such conditions as the Home Secretary may impose. That power has existed for a considerable time. I have traced it back to the Penal Servitude Act, 1892, and I have no doubt that the Home Secretary will know and be able to inform the Committee how long this power has existed.

However, before 1957 it could have been very seldom used, because for ordinary crimes other than murder very few people were sentenced to life imprisonment and before the 1957 Act one was left only with the category of persons who were reprieved murderers. They were obviously people to whom special considerations applied, otherwise they would not have been reprieved.

Therefore, until 1957, the question of how long those serving life imprisonment should stay in prison and whether it was right that the Home Secretary, under control or unadvised by the judiciary, should decide that matter never arose. Since 1957 it has attracted very little attention, but there is no doubt that the advent of the Bill and the consideration of the consequences of it have focused very considerable attention on the problem of whether it is right that no murder will in future be capital and whether it is right that each sentence which each convicted man serves should be decided by the Home Secretary and not by the judges in the ordinary way with all the other crimes, serious and not serious.

I am not attacking the present Home Secretary either in the way in which he has exercised the power up to now, or in the way in which he has pronounced that he intends to exercise it in future. I am not attacking the last four Home Secretaries. I am not casting aspersions against any person who may hold the office of Home Secretary on the next four occasions. All that I am saying is that it is not right that the Home Secretary should take this decision and that the choice of the correct sentence on a conviction for murder should remain, as with all other criminal cases, in the hands of the judges.

The reasons why I say that the judges should decide the proper sentence in each case can be shortly summarised. First, this is a matter which fundamentally touches the liberty of the subject, and in all topics which touch the liberty of the subject we have always stood on the ground that the judiciary should bear the ultimate responsibility for deciding how long a person should stay in prison. There are one or two exceptions. A borstal sentence is one. But apart from the case of those sentenced to life imprisonment, which up to now has attracted little attention, for all ordinary crimes, serious and not serious, the decision as to how long the citizen should remain in the custody of the State on a conviction by the court has been the responsibility of the court.

We have always regarded it, I think rightly, as one of the bulwarks of a democracy and a free society that this responsibility should remain with the judiciary. I can see almost no reasons—and I hope that I can deal with the only argument which I can see—as to why this responsibility should not continue to remain with the judiciary as it does in every other type of case.

The great disadvantage of the liberty of individul citizens being decided ex post facto by the Home Secretary—and I do not refer to the present Home Secretary—is that he exercises a secret equity. No doubt the rules under which he decides when a person shall be released become formalised. No doubt an attempt is made to apply a rule of thumb. No doubt every effort is made to do this as fairly as possible. But the fact remains that he does it in secret. He does it without having the advantage of hearing argument either on behalf of the prisoner or on behalf of the State, with the judiciary holding the balance between the two.

The Home Secretary does it in circumstances in which the public cannot know what principles he is applying and need not necessarily know when he has decided to change those principles, to make an exception to them, to extend them or to alter them. This is a form of secret administration of justice affecting citizens very deeply which is objectionable, and it is a second reason why I urge the Committee that it is right that the judiciary should pronounce sentence in cases of murder as in other cases.

I am bound to say that there may be very many instances when the judiciary will be more lenient than the Home Secretary can be. There are many cases in which the judges are able to take a far more lenient view of the circumstances and a far more merciful course than a person who is subject to political pressure, who has to administer equity according to departmental traditions and who may find that he is unable to release a prisoner in under three or four years whereas a judge may have given him six months or less. There may be cases where the judiciary takes a more serious view. But, on balance, it is not possible to predicate one way or another that Home Secretaries in future are more likely to be more lenient than judges. If there is really no basis for estimating which will be more lenient, I would again prefer the judiciary to have the responsibility.

12.45 p.m.

There is another point which arises when the Home Secretary deals with the liberty of individual citizens which we have already discussed. There is in all sentencing a conflict between deterrence and penology. We cannot escape from the fact that part of the purpose of criminal punishment by the State is not to deal with the citizen who finds himself in the clutches of the law but to deter others from committing crime. The judiciary is experienced in holding the incredibly difficult balance which anyone who has ever sentenced a man must endeavour to hold. On the one hand, if one seems too tender towards the convicted man one appears to condone the crime. On the other hand, if one seems to be too severe in punishing the crime, one seems to forget that one is dealing with another human being whose future and family are affected.

Therefore, every judge who sentences anybody must hold the balance between the needs of deterrence, between the needs of the State to protect itself against crimes being committed, and the human desire to assist the criminal even though he may be a wicked man. This is a field in which the judiciary is particularly experienced. Any Home Secretary, to a great extent, is concerned with the individual who is in his custody and power. He receives his advice from warders, prison officers and doctors concerned with the individual who is living in custody and under the charge of the Home Secretary. It is plain to me, if I may respectfully say, that the present Home Secretary places very great weight—and, I should have said, in many instances too much weight—on the situation of the prisoner in his approach to this problem, because, as Home Secretary, his principal concern is with penology and with the cure and reformation of prisoners.

There are, and must be, cases in which the overriding consideration has to be that of deterrence. I think that in the 1920s Lord Hewart, when he was Lord Chief Justice, went to the Old Bailey. Because the offence of blackmail was rife, he passed some swingeing sentences on blackmailers, and blackmail in the East End of London was reduced considerably. We all remember that the former Lord Chief Justice, Lord Goddard, during 1945 to 1946, passed heavy sentences of three years' imprisonment on people who stole£3 from the Post Office through their Post Office Savings Book. That was an offence which was becoming rife, and because it became known quickly that heavy sentences would be passed for it that offence stopped almost dead.

But, before it stopped, many charming and innocent old women, and many delightful people with good characters whom it was quite unnecessary, from their individual point of view, to retain in prison for three years, and who probably would never have committed another crime even if they had been fined, had to undergo severe sentences. It was for the public benefit that they should do so, however harsh it may have been on them.

Perhaps a notable example were the sentences passed at the Old Bailey for the Notting Hill riots. Sentences of five years' imprisonment did an enormous amount within the community to mark the serious view which the judiciary took of race riots and of actions of assault against coloured members of the community. It had a riveting effect in the Commonwealth, where people thought that the law of England was—and they were glad of it—protecting those who were being attacked because of their colour.

We all remember that soon after those sentences were passed there were petitions from the families, friends and relations of the five youths who were suffering the sentence. No doubt, from the penological point of view and from the personal and individual viewpoint, quite a short time in prison for each of those individuals would have been sufficient to deal with their individual case. I am, however, sure that the Home Secretary of the day was right in firmly saying that the heavy sentences which had been passed on those individuals from the public point of view should stand.

Therefore, there is always a conflict between the balance of enforcing the law and preventing others from committing further crimes and the need to deal sensibly and kindly and in a reforming manner with those who have committed offences. This is a balance which the judiciary is better able to support and sustain than a person who has the actual responsibility for administering the prisons and dealing with the reformation and treatment of offenders and who, while indirectly concerned with the maintenance of law and order, does not have the same or a similar responsibility as the judiciary has.

Thirdly, we have to remember that if the Home Secretary is the person who becomes responsible for determining the actual sentences passed upon convicted murderers, he and the Government are subject and answerable to the House of Commons and the other place, and Parliament can question the exercise of his discretion.

I have never thought of the House of Commons or the other place as a satisfactory body for determining sentences. I do not think that a body such as ours, whatever its merits may be, is in a position to declare whether a sentence is too long, too short or right, or to criticise the Home Secretary for the way in which he exercised his discretion. This is an additional argument because the judiciary is independent. It can be criticised later, but its members can only be removed—it is unlikely that they would be—for making an error in the length of the sentence. It is much better that we should not get into a field hereafter in which it may well happen that successive Home Secretaries are constantly asked why they released certain convicted murderers, what were the circumstances that allowed them to release them so early or why they had released a certain convicted murderer or whether it was not time that they did so. We can see that pressures of that sort from this House or from another place might well arise. They would be highly undesirable and we should regret it if that were to come about.

Fourthly, if we are not careful we shall create a disequilibrium between the sentences for murder and the sentences which are passed by the courts. There has been a notable example recently with the sentences passed by the courts upon the train robbers. It would be extremely absurd if the judiciary could do no more than pass a nominal sentence of life on any murderer and if the Home Secretary released him on terms which made it appear very unequal and unsatisfactory that people who had not committed murder were being kept in prison for a much longer time. The only way in which the length of sentences of both murderers and those who commit other grave crimes and of those who commit less serious although nevertheless grave crimes can be co-ordinated and be prevented from getting into a state of disequilibrium is if the judiciary itself remains responsible for all sentences.

As I have said, the only difference that is proposed under the Bill between murder and other offences is that in the case of murder the court must pass a nominal sentence and the Home Secretary decides how long shall be served, whereas in all other cases the court decides what is fit and fair and the proper sentence. Murder can vary as much as other offences in its seriousness, in its circumstances, the way in which it is committed and the circumstances of the convicted murderer. All these factors should, as with other offences, be balanced by the judiciary.

As far as I can see, the only argument to the contrary in favour of the Home Secretary exercising this power affecting the liberties of convicted persons is that the court cannot know how the prisoner will develop. At the time it passes sentence, which presumably, in many cases of murder, is expected to be a very long one, the court cannot know what is likely to be the development in the accused person and whether, if a determinate sentence was passed, it would be safe to release the convicted murderer at the end of that sentence.

There could be circumstances in which the court took a lenient view and passed a sentence of five or less years on a convicted murderer and the Home Secretary, at the end of that period, came to the conclusion that it was unsafe to release the prisoner. This is equally true with persons who commit many other offences. Burglars, rapists, sexual offenders and a host of other people are a danger in a different way. Those who drive carelessly or who kill by dangerous driving are just as devastating in the result of their actions as a murderer. They may be equally dangerous and yet it is never suggested that those who in one way or another have taken life, who are guilty not of murder but of some other criminal offence, should have the length of their sentence determined by the Home Secretary because it may be unsafe to release them at the end of the period.

If that really is the view of the Committee, I have put down an alternative Amendment which endeavours to deal with this point. I refer to Amendment No. 13, in page 1, line 7, at end insert:

(2) On sentencing any person on a charge of murder to imprisonment for life the court shall 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.

When I first began to consider this problem, perhaps with the pride of parenthood, I preferred Amendment No. 13 to Amendment No. 9, but on consideration and further thought of the implications of the problem I now much prefer Amendment 9 and I regard Amendment 13 only as a second best

The purpose of Amendment 13 is that while the Home Secretary remains ultimately responsible for the release under Section 27 of a convicted murderer under the Prison Act, 1952, the judge at the trial who has heard the case would publicly declare at that time what sentence he recommended to the Home Secretary as the minimum period which, in his view, the crime merited and should carry. In drafting the Amendment, it seemed to me that the advantage of this was that the public generally would know the view of the judiciary.

We all know that at present, after the conviction of a murderer, the judge writes privately to the Home Secretary. Neither the public nor the House of Commons has any idea what recommendation he makes. If, however, in pronouncing sentence the judge were to say, "I regard this as a not very serious case", or, "I think it a very serious case indeed", or, "This is the most serious case of murder I have ever had before me and I certainly think that the minimum period to be served is X number of years", the public generally would know how gravely the judiciary regarded the offence. They would also know when the man might be expected to be released.

If the prisoner were released earlier by the Home Secretary, the Home Secretary would then have to explain, no doubt, to the House of Commons or to the public generally why he had disagreed with the recommendation of the judge. If, equally, he were to keep the man in prison for much longer than the judge recommended, he would again be in a position in which he would have to explain publicly why he disagreed from the view of the judiciary.

It was—