Category: Criminal Justice

The speech made by Sydney Silverman, the then Labour MP for Nelson and Colne, in the House of Commons on 21 December 1964.

I beg to move, That the Bill be now read a Second time.

My first word must be one of appreciation and gratitude to the Government for having provided the House and those of us who wish to see a final end of the last remnant of a grotesque barbarity with the opportunity of seeing the end of it at last.

If I may say one personal word, I suppose that I may claim a unique, if modest, distinction in that I believe I am the only private Member whose Private Member’s Bill has been accorded the distinction of a mention in the Queen’s Speech, and I take this as a good omen. This is a Private Member’s Bill. The Government are officially neutral about it. The vote will be, as it has always been with the notable exception of that on the Homicide Act, 1957, a free vote of the House, but I hope that on this occasion we may count on the neutrality of the Government being a benevolent neutrality.

The Title of the Bill states that it is a Bill to abolish the death penalty, but I think it useful to say at the outset of the remarks which I hope to make to the House that the Title goes substantially beyond the amendment to the present law proposed by the Bill. I am not proposing to invite the House, on this occasion, to debate all the pros and cons of the preservation or abolition of the death penalty for murder. That battle—a long, grim, sometimes dreary, sometimes exciting battle—was won in 1957 in the Homicide Act.

We are not concerned today with whether we ought to abolish or preserve the death penalty for murder. That we have already decided. The question before the House today—the only question remaining for Parliament to decide—is whether we shall abolish or retain not the abolition of the death penalty for murder, but the exceptions to that abolition which were made in the Homicide Act, 1957, and since there is scarcely anybody who has a good word to say for these exceptions, the answer to the question which is presently before Parliament ought not to be difficult.

I thought it was worth while to say this at the outset because some newspapers and cognoscenti of public opinion are still talking as though the battle was to run again, as though we were at the beginning of this long and difficult road instead of, as the truth is, virtually at the end of it.

Clause 1 of my Bill says: No person shall suffer death for murder, and a person guilty of murder shall, subject to subsection (4) below”— That deals with children— be sentenced to imprisonment for life. This is very like the Homicide Act, 1957, Section 7 of which reads: No person shall be liable to suffer death for murder in any case not falling within section five or six of this Act. Sections 5 and 6 of that Act deal with the exceptions, and I shall be dealing with them later. For the moment I draw the attention of the House to the fact that Section 7 of the Act, with those exceptions, is the same as Clause 1 of the Bill.

Section 9 of that Act provides that those who are not sentenced to death under that Act shall suffer imprisonment for life. It is important to remember this, because this abolition in principle, subject to the exceptions, of the death penalty for murder did, in fact, abolish the death penalty for murder over about five-sixths of the field. It was done by an official act of policy of the Government of the day.

No one said “You have no mandate to do it.” No one voted against it on the ground that it ran too far ahead of public opinion. Nobody said that there ought to be a referendum or a Gallup poll or any other method of seeing whether the Government of the day were entitled to call upon their supporters in this House and in another place to vote for the abolition of the death penalty for murder.

In this, in my view, they were right. We do not govern ourselves in this country by a referendum. We do not govern ourselves by a Gallup poll. We do not, in matters of life and death, think that it is right to decide what is just or unjust by a spot, unconsidered reaction taken on the street corner or in a club or in a “pub”. Indeed, no part of our criminal law has ever been so determined. A good deal of it has not been enacted by Statute at all. It was the long, slow development of the common law.

Where the law has resulted from Acts of Parliament, from Statute, the Government of the day have taken their responsibility as a Government, knowing that in a Parliamentary democracy it is for Parliament to decide what Parliament thinks right, knowing that in the background there is the public, the electorate, and that we shall all of us have to answer in due course to those who sent us here for what we have done.

For my part, in this business of Parliamentary responsibility in a Parliamentary democracy, in this business of what it is right or wrong for a Member of Parliament to do, especially when he is acting in accordance with his own judgment and his own conscience and not in accordance with directions from a Whip or out of loyalty to a Government, I am content to confine my eloquence to saying “ditto” to Mr. Burke. It was Edmund Burke who stated this position once for and all in his famous letter to the electors of Bristol.

To those who are a little, in my opinion, over-sensitive to what is, I think, quite mistakenly thought to be public opinion—I say this, maybe, a little boldly, but with no intention of giving offence to anybody—I should like hon. Members to imagine what their duty would be if they had the responsibility of deciding, if there were a man whom they knew it would be wrong to kill, if, in respect of that man, there were violent public pressure, nevertheless to kill him. Would it be right for a responsible legislator or member of the Government to kill that man, whom he thought he ought not to kill, because of some popular immediate pressure which might change its mind the next morning? Surely, anyone who did that would be repeating the mistake that Pontius Pilate made 2,000 years ago.

Parliament must take its own responsibility. In exercising that responsibility, we in Parliament must be very conscious that we are responsible to those who send us here and must answer to them for what we do here. This is what we are not merely ready but anxious to do. But that does not mean that we must subordinate our judgment, still less that we must distort our consciences, in order to do something we believe to be wrong because if we do not we might lose a vote or even an election. So I say that the Government of the day were perfectly right to decide, as they did decide, in principle and subject to the exceptions that are left, to abolish the death penalty for murder.

The result, the Homicide Act, 1957, was not easily reached. It had a history which many of us remember. But today, in spite of the fierce and passionate battles on the Death Penalty (Abolition) Bill, 1956, following which the Homicide Act was passed, and although the Act has been law for seven or eight years, there is no one in the House today who is prepared to advise right hon. and hon. Gentlemen to go back to the old law. [HON. MEMBERS: “No.”] I see nothing to that effect on the Order Paper.

Mr. Speaker has said that the Amendment he will call is that in the names of the hon. and gallant Member for Portsmouth, West (Brigadier Clarke) and a number of other hon. Members. That Amendment states: On Second Reading of Murder (Abolition of Death Penalty) Bill, to move, That the Bill be read a second time upon this day six months. That, of course, is the formula for rejection of the Bill. Supposing that the hon. and gallant Gentleman has his way and the Bill is defeated. What will then be the law? Why, Sir, the law then will continue to be what it is now. It will continue to be the law as set out in the Homicide Act, 1957, and the death penalty will still not apply to five out of six murders. That principle will continue to be the law of the land.

Brigadier Terence Clarke (Portsmouth, West)

By gradual process, the hon. Member for Nelson and Colne (Mr. Sydney Silverman) has eliminated hanging to the present state it has reached. I want to stop this where it is today. I would like to have a Private Member’s Bill washing out everything which the hon. Gentleman has done in the past.

Mr. Silverman

I do not quite understand that. The only exception I would take to what the hon. and gallant Gentleman has said is that I really cannot accept his compliment that the law, as his Amendment proposes to leave it, was achieved by me. The law as it stands was not enacted by the hon. Member for Nelson and Colne. It was enacted by a Government of which the hon. and gallant Member was a loyal supporter. He did not oppose it. He did not vote against it. He accepted it.

As for wishing to introduce a Private Member’s Bill to repeal that law, I hope that the hon. and gallant Gentleman will take his opportunity when it comes up, as I took mine when mine came up. I am only wondering why, if he feels so passionately that the Homicide Act, 1957, was wrong, he has been so dilatory in attempting to repeal it. But what we are concerned with today is not what the hon. and gallant Gentleman would like to do on some other occasion, but with what he proposes to do on this occasion—and what he proposes to do now expressly is to leave the law on the death penalty as it was left by the Homicide Act.

But the argument does not stop there. The right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) was Attorney-General in the Government responsible for the Homicide Act, 1957.

Sir John Hobson (Warwick and Leamington)

I was not even in the House at the time the Act was discussed. I entered the House a day or two before it received the Royal Assent.

Mr. Silverman

I apologise to the right hon. and learned Gentleman. He was not Attorney-General then. He was only Attorney-General shortly afterwards.

Sir J. Hobson

No.

Mr. Silverman

Therefore, the right hon. and learned Gentleman has no personal responsibility, since he was not a Member of the House, for the Act. But he has accepted it ever since, just like the hon. and gallant Member for Portsmouth, West.

The reason I brought the right hon. and learned Gentleman into this was not so much for the mistake in thinking that he was Attorney-General at the time, but for what he has been doing in recent weeks. He has taken a leading part in the campaign against the Bill in the country. He has written very impressive and weighty letters in the correspondence columns of The Times. I do not accept the figures that he quoted in The Times. I think that they were all wrong. As he has never quoted us what is the authority for at any rate one of the two columns of figures, his argument has not impressed me.

Sir J. Hobson rose——

Mr. Silverman

I will give way in a moment. Suppose the right hon. and learned Gentleman’s figures are right—they may well be for anything I know to the contrary. [HON. MEMBERS: “Oh.”] All I have said is that I would not support them myself and I would not accept them. This does not in any way mean that the figures are necessarily wrong. They may well be right. I am inviting the House, for the sake of argument, to assume that they are.

Sir J. Hobson

We should clear this matter up now. The figures I quoted were the result of Answers from my right hon. Friend the Member for Hampstead (Mr. Brooke), the former Secretary of State for the Home Department, and his successor, the right hon. and learned Member for Newport (Sir F. Soskice). They were published in Hansard.

Mr. Silverman

One of the two columns the right hon. and learned Gentleman embodied in one of his letters consisted of figures for murder. The other was of figures for executions. The one for murder was in the hundreds. There has never been, so far as I know—and I do not claim any infallibility or to know any more about this matter than any other hon. Member—a time in the history of this country when convictions for murder have reached hundreds a year. I had to say that in answer to the right hon. and learned Gentleman’s interruption, but I come back to inviting the House to assume that the right hon. and learned Gentleman has the right figures and has drawn the right inference from them.

Again, that seems to me to be very doubtful. What inference did he draw? He said—and I will willingly give way if I misinterpret him in any way—that non-capital murders, since 1957, have increased and that capital murders have also increased. But, he said, capital murders had increased at a slower rate than non-capital murders. He drew the inference, which could be correct, that, therefore, the removal of the death penalty for non-capital murders had increased the number of non-capital murders. Is that right? Is that what the right hon. and learned Gentleman says?

I hope to have it right, because, if that is so, then I ask why the right hon. and learned Gentleman is not proposing to restore the death penalty for non-capital murders. [HON. MEMBERS: “It is the hon. Member’s Bill.”] I am not talking about Bills now. I am referring to the right hon. and learned Gentleman’s contributions to the public discussion outside the House, when he has said distinctly and repeatedly that he is not proposing to go back to the old law. He would not be in favour of restoring the death penalty for non-capital murders. He would not be in favour of restoring the death penalty for any murder for which, under the present law, it is not inflicted.

If the right hon. and learned Gentleman believes that I am misquoting him, he is here and I am ready to give way. He knows that I am not misquoting him. This is the right hon. and learned Gentleman who has been an Attorney-General and who may be again. How does he invite the House of Commons to believe that we have removed an effective deterrent to non-capital murder but not to restore it? He does not.

I therefore return to the point which I have been making, that there is not before the House today, and is not, any serious proposal to go back on what was done in 1957, to restore the death penalty for all those murders for which it is not now inflicted, that being five-sixths of all of them, that it is not now proposed to reverse what we did in 1957, namely, in principle to abolish the death penalty for murder. It therefore seems clear that the only question with which the House is concerned is whether to abolish the exceptions which the 1957 Act made to that principle.

Sir Harry Legge-Bourke (Isle of Ely)

I know that the hon. Gentleman does not wish to be unfair, but would he not agree that the Long Title of his Bill forbids any Amendment which would have the effect of repealing the Homicide Act, 1957, that the Bill is obviously concerned with abolition and that, therefore, even if we wished, we could not put down an Amendment which would have the effect of restoring the death penalty to non-capital murder?

Mr. Silverman

I concede at once that it would not be possible in Committee to put down an Amendment which was outside the Long Title of the Bill. It is not for me to express any view as to what would or would not be within the Long Title. That is Mr. Speaker’s responsibility or, in Committee, the responsibility of the Chairman. However, there was nothing to prevent anyone inclined to that view from putting down a reasoned Amendment to the Second Reading of the Bill, not merely objecting to the Bill, not merely advising its rejection, but advising its rejection because it would have been better to restore the death penalty abolished in 1957.

May I point out that there is a reasoned Amendment which is not being called and which, like the unreasoned Amendment which has been selected, does not call for any repeal of the 1957 Act? That reasoned Amendment says: That this House declines to give a Second Reading to a Bill”— the next words should be noted— which, while removing the deterrent of the 1957 Act to certain types of killer who might reasonably be supposed to be deterred from killing by the prospect of being hanged … It does not apply to all types of killer. It makes a distinction between those who might be deterred and those who might not and it assumes that the exceptions introduced in the Homicide Act were the exceptions of those who might be deterred, whereas all the others could not reasonably be expected to be deterred.

In other words, it concedes that there is no deterrent, no unique deterrent, no exclusively effective, deterrent, in the death penalty to most murders, but claims that there is a uniquely deterrent effect is respect of some murders.

I concede that that is the argument with which I have to deal and I propose to deal with it as shortly as I can very soon. All I am concerned to establish now, and all I have been concerned to establish so far, is that nobody thinks that substantially there is any other question to be decided.

I now come to the subject of these exceptions and whether to retain them. I am sorry to be a little longer than I had intended, but this is the crux of the matter and I am sure that the House will have a little patience with me while I examine it. This question has a history which goes back a long way. It is 100 years, almost to the day, since a Royal Commission appointed by the House first made an attempt to distinguish between murders which ought to be capital and murders which ought not to be. In 1864, that Royal Commission was appointed. It was in favour of abolishing the death penalty altogether, but it recommended, because it thought that public opinion was not ready for that, precisely the suggestion that murders should be categorised so that some should be capital and some not.

I confess that to all penal reformers this has always been a very attractive idea. If only we could have found a just and rational way of distinguishing between murders which could rightly and justly and rationally be regarded as capital and murders which could not, we would have seen an end to this controversy many years ago. Many attempts have been made over those 100 years and I will not weary the House by detailing or recounting any of them.

However, the exceptions introduced into the Homicide Act, 1957, were not intended to distinguish between the more and the less heinous crimes. If they were intended to do any such thing, they lamentably failed any such objective. No one could think that the exceptions in the 1957 Act were the worst murders. Those who accept the position of the 1957 Act accept that the murderers of children shall not be hanged. Those who accept the 1957 Act accept that cold, calculated, premeditated murders shall not be capital.

Those who accept the 1957 Act accept that foul sexual crimes shall not be capital. Those who accept the 1957 Act accept that if a man waylays his enemy around a dark corner of a back street and stabs him in the back with a knife, that shall not be capital murder, whereas if he waits for him with a revolver and shoots him in the front, that is capital murder.

Anyone who tried to justify the exceptions in the 1957 Act on the ground that it was a successful attempt to distinguish between the gravest kinds of murder and crimes which were not so grave would have an impossible task. Let the House remember that Ruth Ellis would still have committed a capital crime under the Homicide Act because she used a revolver instead of a knife.

We know what the exceptions in the 1957 Act are, but we know something else about them. Every single one of them had been defeated by the House of Commons by a substantial majority on a free vote. There is not one of the exceptions included in the 1957 Act that was not proposed in Committee or on Report during the passage through the House of Commons of the Death Penalty (Abolition) Bill of 1956.

Perhaps I might add a word to the modest distinction which I claimed for myself at the opening of my speech, because on the Death Penalty (Abolition) Bill I suppose that I was the only back bencher who led a coalition of both sides of the House against the Government of the day and won at every stage. It was only when we reached the House of Lords that we were rejected and the right hon. Gentleman who was then Home Secretary or Leader of the House found himself in an inescapable dilemma. He had promised the House of Commons that if it decided to abolish the death penalty on a free vote, the Government would accept its decision. Having done that, he proceeded to give exactly the same pledge to another place, well knowing that the other place was most likely, as indeed it did, to come to the opposite conclusion.

Therefore, the right hon. Gentleman found himself pledged to the House of Commons to abolish the death penalty and pledged to the House of Lords to retain it. As he could not possibly fulfil both pledges, what he did was, reasonably enough—no one can blame him for it—to attempt a compromise, and the exceptions in the Homicide Act, 1957, were never offered to the House, never offered to Parliament on their merits as penal reform or as criminal law. They were offered to the House of Commons as a political compromise to get the Government of the day out of a serious and awkward dilemma.

I remind the House that all those exceptions had been rejected one by one, every one of them, when Members of the House of Commons—and I remind the House that it was a House of Commons with a Tory majority—were left to their individual judgment. When they were asked to obey their personal consciences, they had voted against every one of the exceptions introduced in the Homicide Act. It is true that they humbly and tamely accepted them at a later stage, but they accepted them for quite respectable reasons. I do not complain of any of them.

The Government had put the Whips on and the question then was not whether the exceptions were right or wrong in principle. The question was whether hon. Members would support the Government of which they were supporters, which they wished to support, which they did not wish to embarrass and certainly which they did not wish to defeat. They accepted it on the authority of the Government, the Government taking responsibility for it and they taking only responsibility for not dissenting from the Government view. Their own individual conscientious judgment had already been exercised against it.

An equally, or even more, curious thing happened in another place, because the Homicide Act, 1957, abolishing in principle the death penalty for murder, was accepted by another place. There were no objections to it at all, although it had just defeated the very same proposition without exceptions a month or two before.

That is part of the history. There is another part of it. In 1948, I moved a Clause to the Criminal Justice Bill, a consolidating Measure——

Mr. Iremonger

I do not want to disturb the train of the hon. Member’s argument, but if he is now leaving the part of his argument which deals with the 1957 Act, may I ask whether he feels it right to do justice to those who supported the 1957 Act in this House by recalling the argument that the Government put forward? It was not that the Government purported to draw a line between those kinds of murder which were most heinous and those which were less heinous. They attempted to differentiate between types of murder as to the degree to which they contributed to the disturbance of public order. If I remember correctly, that was what influenced me and many of my hon. Friends to support my right hon. Friend in his Bill.

Mr. Silverman

That is very largely true. It is entirely true with one exception, which I shall take half a minute to deal with presently. I did not want to extend the length of my speech by dealing with all the exceptions separately. The argument about deterability was part of the argument in the Committee stage of the Death Penalty (Abolition) Bill and it had been rejected on their own conscientious judgment by a majority of Members of the House of Commons at that stage.

The exception is the question of second murders, because nobody, surely, has ever thought that if a man was not deterred by the death penalty from committing the first murder, he would be deterred from committing, not having been found out so far, a second one. In the case of second murders, the idea was not deterability, but that this was a much graver crime and should be punished.

As to the other point, the hon. Member is perfectly right. All I am saying is that this was accepted by the House of Commons on the authority of the Government and against hon. Members’ own private conscientious judgment.

In 1948, when I moved a Clause to suspend the death penalty for five years, it was rejected in another place because, it was said, it was too far in advance of public opinion. If it were done, it could only be done with exceptions, so the other place threw it out. Acting under that inspiration and incitement, my right hon. Friends in the Government of that day proposed a Clause to meet the objections in another place in order to provide exceptions. The exceptions included one or two others, but they also included all those in the Homicide Act, 1957.

When we sent that back to another place, it was rejected also for the perfectly justifiable ground, which I am inviting the House of Commons today to say is still true, that it was unworkable, that it was irrational, that it was unjust and that public conscience would not stand for it and Parliament had no right to enact it. Therefore, the exceptions were rejected then by both Houses.

Sir Alexander Spearman (Scarborough and Whitby)

The hon. Member says that hanging is not a deterrent. He has said in the past that hanging is not a deterrent and, presumably, he bases his Bill upon that. I should like to know whether he will consider, at a later stage, a new Clause incorporating a trial period. If, indeed, hanging is not a deterrent, that would do his cause no harm but it would give some assurance to those, rightly or wrongly, who still have doubts about whether it is a deterrent.

Mr. Silverman

I have never said that hanging was not a deterrent.

Sir A. Spearman

An effective deterrent.

Mr. Silverman

That is the difference. The only point about deterrents, and, I think, the only rational ground on which a death penalty could ever be defended, is that there are fewer murders if we have the death penalty than if we do not have the death penalty. That is the criterion and test. What I have denied, and what I have not denied alone, is that the death penalty is a deterrent to murder in any sense that is more effective than other existing or imaginable deterrents. The Royal Commission has established that proposition beyond further controversy to the satisfaction of all those who wish to know the truth.

The hon. Gentleman asks about a trial period. This is where I began 16 years ago. We have had already seven or eight years’ experience of the deterrent effect of the exceptions in the 1957 Act. Another five years will not alter the picture one way or the other. I think that this controversy has gone on long enough. The arguments both ways are clear, and I think that everybody knows what they are. I think that everybody has made up his mind about where the balance between the two arguments lies. I do not believe that any useful purpose would be served by prolonging the debate, or by keeping the matter in issue, for another five years with the prospect of having to do it all over again five years’ hence.

If it should turn out that this is all wrong, and if the abolition of this remnant of the death penalty proves to be a mistake, we do not need a five years’ Clause in the Bill to put it right. Parliament will remain sovereign. It will be able to repeal whatever we do. There is no need to keep the pot boiling, to keep the argument going, when it has been reduced to such a small, narrow limit and has had so much of a trial period.

Sir Richard Glyn (Dorset, North)

Would the hon. Gentleman help me about the question of deterrence? The Bill abolishes capital punishment for the offence of murder, whether it be heard and determined in an ordinary criminal court or by court-martial under Section 70 of the Army Act. But under the same section of the Army Act and equivalent sections of the Air Force and Naval Discipline Acts the death penalty can be passed for treason; and for mutiny under Section 31 of the Army Act; and for other specified acts under Section 24(1) of the Army Act.

As I understand, the death penalty will remain for treason, mutiny and these other acts if the Bill becomes law. If the hon. Gentleman has left capital punishment for these numerous Service offences as a deterrent, will he say why he does not think it should be left as a deterrent for murder?

Mr. Silverman

Like, I think, all abolitionists and, though I am not so certain about this, the overwhelming majority of the House of Commons, I am in favour of abolishing the death penalty for any crime, whether it be treason, cowardice, desertion, sabotage in a dockyard, piracy, or anything else, because I do not believe—and this is the gravamen of the whole argument—That we have any right to pursue and carry out this callous, brutal, coldhearted ritual unless we are satisfied that a useful social purpose is thereby attained. I do not believe that it is attained.

The hon. Member for Dorset, North (Sir Richard Glyn) may well ask why abolition of the death penalty for these offences is not included in the Bill. He must remember that the arguments about treason are very different from the arguments about murder. In peace time, we have not carried out the death penalty on anybody for any crime other than murder for 100 years. Even in war time, or just after war time for offences committed in war, we have executed only three people in the last 100 years. It would have been very bad tactics on our part if we had complicated the simple issue of being for or against the death penalty for murder by introducing a complicated argument for or against the abolition of the death penalty for other crimes when it has not been inflicted for 100 years and is virtually obsolete. We shall take a further opportunity some day of bringing that part of the law into line with the rest of our civilised law, but I do not think that we can do it on this occasion.

Sir Richard Glyn

Has the hon. Gentleman the figures for executions for mutiny?

Mr. Silverman

I hope that the figures which I have quoted are right; but I am not quoting them on my own responsibility. They have been supplied to me by the Home Office for the purpose of meeting such an objection as the hon. Gentleman has made. I therefore hope that he will accept them and will regard them as a sufficient answer to his question.

In summing up this question of trying to find a remedy, all I need do is to invite attention to the Royal Commission’s Report. I recommend those who have not read it, and those who have forgotten it and still have doubts about this subject, to re-read the Report of the Royal Commission which examined the whole question and where all the arguments are to be found. It is very lucid and authoritative and is a massive argument against the death penalty.

On the question of finding degrees or categories of murder, all that I need do is to read paragraph 534: Our examination of the law and procedure of other countries lends no support to the view that the objections to degrees of murder, which we discussed above, are only theoretical and academic and may be disproved by the practical experience of those countries where such a system is in force. We began our inquiry with the determination to make every effort to see whether we could succeed where so many have failed, and discover some effective method of classifying murders so as to confine the death penalty to the more heinous. Where degrees of murder have been introduced, they have undoubtedly resulted in limiting the application of capital punishment and for this reason they have commended themselves to public opinion, but in our view their advantages are far outweighed by the theoretical and practical objections which we have described. We conclude with regret that the object of our quest is chimerical and that it must be abandoned. It is true that the Royal Commission was talking about classifying murders according to whether they were bad or not so bad. But the same argument must inevitably apply to any other way of distinguishing between them unless the figures lead to any different conclusion.

Mr. Edward Gardner (Billericay)

The hon. Gentleman has just said that the Royal Commission’s Report on Capital Punishment is an argument in favour of abolition. Is he not aware that the Royal Commission was precluded expressly by its terms of reference, given by the Labour Government, from considering the question that the House today is debating?

Mr. Silverman

Of course I am aware of that. I assumed that every Member of the House was so aware of it that it did not need me to say it. The hon. and learned Gentleman knows this subject very well. It is a great mistake to offer cheap debating points about it. He knows that they are nothing more, because he knows perfectly well that the Royal Commission said in so many words that it could not find any way of ameliorating or modifying the death penalty, and that if Parliament wanted to do anything about the death penalty it was faced with the stark alternatives of retaining the death penalty as it was, or abolishing it altogether. The hon. and learned Gentleman knows that very well and I think that he might have remembered it before prolonging my speech more than I have, unfortunately, had to do.

There is one point with which I feel I ought to deal, and that is the question of the alternative. Of course, this question was equally relevant in 1957. Nobody raised it. There cannot be any question of having a different alternative in the case of the exceptions from the alternative which we enact when the death penalty is abolished over most of the field.

I think that it is necessary to indicate to the House what the present position is. Nobody is ever released from a life sentence. It is true that the Home Secretary, from time to time, at different times and in different cases, lets a man out, but when he does so he lets him out on licence. The licence can be ended; the man can be recalled to prison, and sometimes he is.

It is sometimes said, “But the average is too short”. But nobody serves an average. If one man is sentenced to life imprisonment and serves 20 years, and another is sentenced for a mercy killing and is let out in two years, the average of the two is 11 years. But that makes no difference to either of them. One serves his 20 years and the other serves his two. The Royal Commission collected all the figures between 1900 and 1949—the figures for half a century—and it found that the largest group were released after 15 years, that the next largest group were released after 10 years. A number of other periods were listed, some of them one year, one as high as 22 years. Thereafter, hon. Members of the House should not be misled by averages.

I quote again from the Royal Commission’s conclusions about what are the criteria to be considered when the question under review is whether the man should be released or not. My quotation is from paragraph 657 of the Report. I hope that hon. Members will look at it, if they have not got it now, between now and Committee stage—if we ever get a Committee stage. These conclusions are on Section 2 of the Report. The Report says: Our conclusions, then, on this part of our terms of reference are that persons not mentally abnormal who would otherwise have been liable to suffer capital punishment could suitably be detained in the conditions now found in long-term prisons in England and Scotland, though we think that these admit of some improvements; that the principles now followed by the Secretaries of State in determining the actual length of detention in each case are in general appropriate for the purposes of punishment, deterrence and the protection of the public, without undue risk of causing moral and physical deterioration in the prisoner; and that if, in exceptional cases an exceptionally long period of detention is called for, the additional risk of such consequences ought not to be held to rule it out. The proposal is being made that that system should be altered and that the length of actual detention, even though a nominal life sentence is inflicted, should be determined by the trial judge at the time of trial and should be part of the sentence.

Mr. Norman Cole (Bedfordshire, South) rose——

Mr. Silverman

I am trying to deal with the proposal. If, when I have set it out, the hon. Member would still like to ask anything about it, I would be happy to give way. Perhaps I had better state the point first.

The proposal is that the judge at trial shall be given authority to fix the minimum period of detention appropriate to the particular criminal whom he is sentencing. I invite the House to consider that that would be to disregard one of the two essential criteria. One undoubtedly is the gravity of the offence. I have no doubt that the judges are a better tribunal, though not perfect, than any other conceivable tribunal of what length of detention is appropriate, having regard to the character of the crime which they have been trying.

I do not doubt that for a moment. But although judges may be the best, though not an infallible, tribunal to judge that, they do not claim for themselves any divine omniscience about the future, and in determining in a life sentence when a man may be appropriately and safely released it may be important to know what he was like when he was sentenced; it must be at least equally important to know what he has become. This, I will say, is true, not merely of life sentences, but of all inordinately long sentences.

The argument about averages has been a little distorted by comparison with a number of very long sentences passed for the first time in our history in the last three or four years. This is not the place, nor perhaps am I the person, to express any view about the appropriateness or propriety of 30 years for non-fatal robbery, still less to express a view about whether it was right or wrong to lump three maximum sentences together in order to make a maximum statutory sentence of 14 years into a period of 42 years.

All I am inviting the House of Commons to remember at the moment is that these are exceptional crimes and exceptional sentences. They afford no useful or helpful guide to normal periods of imprisonment or to the normal penalties of our criminal law. If, indeed, the State were to insist at any time, for any purpose, on inflicting the gravest penalty in its power on criminals in respect of crimes which it declares not to be the gravest crime, then it inevitably places itself in a very great difficulty when it comes to determine what is appropriate for the gravest crime.

All I am saying is that in this question of how long a life prisoner should be detained we must consider three elements: one, the gravity of the offence; two, the safety of the public; and, three, the danger of destroying by degrees over long, long years a life which we have refrained from destroying at the beginning. All these factors have to be taken into consideration, and the Home Secretary has the right, has the duty, has the responsibility and has the means, if we keep the life sentence, of taking them all into consideration.

I am not saying that the responsibility need necessarily be left solely with him. I imagine that most Home Secretaries would welcome the advice and the assistance of a parole board. I am sure that if we had a parole board it would have a judicial element as well as a number of other elements. But what we must not sacrifice is the Home Secretary’s discretion, the prerogative of mercy to be applied according to his discretion, according to the rights and wrongs of particular cases at particular times. I hope that the House of Commons will accept that view. In any case, it is clearly not an argument which affects the giving or refusing of a Second Reading of the Bill. It is a Committee point, and I expect that many hon. Members will wish to raise it in Committee when it can be considered in much greater detail than it can be considered here.

I have finished but for one closing remark which I should like to make. It may be said, it may be in many people’s minds, what does it matter? This question of the death penalty, be it right or wrong, is reduced to a very small compass. In 1964 we executed only two people, and those two were executed for one and the same murder. Last year, I think, it was also two. The year before it was either two or three—I am not quite sure which. It is a very small matter, and I can well understand Members on either side of the House saying, “In the face of all our anxieties and preoccupations, what can it matter whether we execute or do not execute two wretched murderers every year?”.

For my part, I think that it matters. Men and women in my generation have lived through two world wars. They may have cost between them about 80 million human lives. When I was a very young man, in my boyhood in the earlier years of the twentieth century we regarded the twentieth century as synonymous with the ultimate achievement of civilisation, and when we wanted to say that a thing was wrong we said that it was not worthy of the twentieth century.

Sir Winston Churchill once described this twentieth century, which we began with so much hope, as “this terrible twentieth century”. We have seen in it not merely those two wars, this destruction, this bloodshed. We have seen whole cities of non-combatant men, women and children wiped out without notice at one blow. We have seen a nation collecting from the ends of the earth 6 million human beings not for any military purpose, but for annihilation on grounds of race or creed.

We are living today in a world under the threat of human extinction. We may be beginning to make our way out of it. But who knows? It is impossible to argue that the execution or non-execution of two people in England every year can make a very great contribution to the improvement of a dark and menacing world. But in this darkness and gloom into which the twentieth century civilisation has so far led us, we can at least light this small candle and see how far its tiny beams can penetrate the gloom.