Peter Rawlinson – 1964 Speech on the Abolition of the Death Penalty

The speech made by Peter Rawlinson, the then Conservative MP for Epsom, in the House of Commons on 21 December 1964.

The hon. Member for Nelson and Colne (Mr. Sydney Silverman) in the first half-hour of his speech, referred to the Amendment and to what he said were various ingenious technicalities. He will forgive me, I hope, if I deal solely with the Bill, which, I understand, is the Murder (Abolition of Death Penalty) Bill—a Bill which I oppose.

The hon. Member described capital punishment as a grotesque barbarity. I think that there is no one in the House who would not agree that execution by solemn judicial process is a terrible and awful exercise of the authority of the State and of the people. So, also, terrible and awful is the murder of one person by another. It is the most terrible crime that one person can commit against another. Every rational person, when thinking of this serious problem—every rational person inside the House and throughout the country—will always be moved to consider it with mixed feelings of revulsion, of horror and of compassion. Compassion is not the monopoly of any group of people who hold any particular view in this very serious argument.

This is an argument which crosses the lines of ordinary political controversy and almost of political instinct. It is something which depends on the personal judgment and personal conscience of every Member in the House. It is a matter in which one’s personal experience brings a view, a judgment and eventually a decision which has to be made, and no amount of statistics, of studies and reports affect in most people’s minds their final decision.

Before the Homicide Act, 1957, in the practise of my profession, I was affected gravely on many occasions by the solemn procedure of the death penalty which I knew in those cases would never be carried out. I believed that it was wholly wrong in a case of that kind and an outrageous penalty prescribed for that act which was then murder under the law, but which in my view was not such thing in reality. So if that had been the price of retention, I think that I would have had grave concern. Therefore, I wholeheartedly welcomed the 1956 proposals and the 1957 Act.

There is much misconception about the 1957 Act and the motives and ideas of the people who supported it. At that time and now some of us believed that it was an Act which represented the right way of dealing with the problem of capital punishment. It abolished certain technical matters, such as “constructive malice”, it established a new doctrine, of provocation, and it applied the Scottish law of diminished responsibility. It so limited and confined what had been the crime of murder.

The 1957 Act defined as the crime of capital murder, for which the supreme penalty should apply, murder in the course of theft applying to the gang or robber, and murder by shooting applying to the gangster with a gun, the man who had gone out and acquired a gun or had stolen one, and had bought or stolen the ammunition, who had put the ammunition into the gun, put the gun into his pocket, loaded it and had taken it with him in committing a crime of robbery and then used it.

The Act retained the death penalty for the killing of a policeman or warder, as well as for the double killing. These things exercised the minds of the most moderate people when we debated this subject in 1956 and 1957. It was the fear—a perfectly honourable fear shared by many people, and shared by the Executive at that time—of the effect of abolition and what the result would be on the practices of the professional criminal if there were total abolition. Would there be an increase of violence or an increase in the use of firearms? It was that which exercised our minds.

We wondered in 1956 and 1957 whether this country’s crime and criminal activities would develop as they have done overseas; into the use of gangs and gangsters, armed with guns. Would there be an increased danger to the public and would the police have to be armed? All these questions were in our minds during those debates. It was inevitable that our minds should have been exercised in that way.

Of course it is right for the hon. Member for Nelson and Colne to agree—as he said when replying to an intervention by my hon. Friend the Member for Ilford, North (Mr. Iremonger)—that the 1957 Act adopted what the Royal Commission had stated about the moral heinousness of crime. The Commission said that it could not apply to moral heinousness. One may be able to use that in the exercise of statutory powers where one has power to release, but moral heinousness depends not on any objective characteristic or on a class of offence but on a particular situation, the circumstances of a particular offence and of a particular offender. As my hon. Friend the Member for Ilford, North pointed out, it did not claim to distinguish between different categories of murder on the score of heinousness. That, as I say, no statue can do.

The 1957 Act was produced against the background of the time of a sharp increase in crimes of violence and it set up a frontier, a line, between capital and non-capital murder and it said, in effect, “Cross it at your peril”. It said, “Death where you kill in the course of committing a crime”, and “Death where it affects law and order”.

Where one creates a line and frontier, there are bound to be anomalies. This applies to any other crime. Crime can be varied between the commission of the same act, but in a different way. The difference between common assault and manslaughter may depend on the thickness of a skull. In certain sex crimes it depend on the sixteenth birthday of a girl as to what the punishment will be and in other cases, such as drunken driving, it might depend on the capacity of the person to take drink. Of course the law contains anomalies. It always will and the remedy must be in the discretion which is retained as to punishment.

When we were debating the 1957 Act the phrase “The Queen’s peace” was often used. It is an historical almost literary, phrase. It means that the conditions of life for the public should be such—and that the public is entitled to demand that it should be such—that the Executive, acting through Parliament, should provide the Queen’s peace so that people may go about their affairs and upon their business in peace. It can never be absolute. No one suggests that it can be. However, the public is entitled to demand of the Executive and Parliament that provision be made to ensure that all is done reasonably to maintain that peace and reasonably to ensure that people can live and work in those conditions.

Mr. Leo Abse (Pontypool)

Since the right hon. and learned Gentleman is developing his argument in a manner which is too sophisticated for me, will he explain how a rapist or poisoner does not disturb the peace, in the sense he means, as distinct from a robber? That is the point of argument we are considering now.

Sir P. Rawlinson

If the hon. Gentleman will have a little patience I will deal with that point. I do not want to take as long as the hon. Member for Nelson and Colne, although I appreciate that he had the task of moving the Second Reading. I should have thought that the answer would be obvious to the hon. Member for Pontypool (Mr. Abse). He knows it only too well. My argument is that one should use this penalty only where one believes that one can deter. I do not believe that one cannot deter a poisoner or a rapist. There is a duty on the Executive to deter where it can and that is given to the law enforcement officers. It is given to the police. It is a dangerous as well as difficult task.

Much publicity is given to those occasions when the police are criticised. The failure of the police, whenever it occurs, is always heard about. We do not hear so much and so often, both in the House and outside, of the great executions of courage and bravery which the police perform in the carrying out of their duties. It is easy for us, in the safety of Parliament and sitting here, to theorise. We deal in words. They must deal with crime in action.

Upon the Executive rests the real responsibility for law and order. The Executive have made their attitude towards the Bill perfectly clear. As the hon. Member for Nelson and Colne pointed out, the Measure was referred to in the Gracious Speech, and he has that signal distinction, one of many to fall upon him. The Government have provided Parliamentary time for the Bill and doubtless they have provided draftsmen to draft it. Nevertheless, Parliament and the public are entitled to obtain from the Government certain advice and information.

Is there evidence now of an increase of crime by the professional criminal? Is there, in this sense, an increase—or is there evidence of an increase of crime by highly organised gangs? Can they advise positively or can they forecast whether a Bill such as this will, in their view, and in the view of the enforcement machinery, lead to any greater danger to the public? This is the sort of information which I hope we will receive from the Home Secretary.

Mr. Sydney Silverman

I agree that I made an inordinately long speech and that I should not now be interrupting. However, I should like the right hon. and learned Gentleman to tell the House, if he can, whether we should retain the death penalty for such crimes as he is describing on the footing that this would deter people from committing them? Is there, in his opinion, any evidence to show that such crimes for which we have retained the death penalty have reduced in number since 1957?

Sir P. Rawlinson

I think there is such evidence, but I am giving an impression.

Mr. Silverman

Oh.

Sir P. Rawlinson

The hon. Member spoke for well over an hour and he now again intervenes when I am trying to reply to his question. I hope that he will not intervene again. I did not intervene when he was speaking. I can only give an impression. My impression is that there has been an increase in organised crime. I also have the impression that great care is and has been taken by professional criminals to avoid the risk of violence leading to death because of the difference between the penalty which is paid where violence ends in death, which is capital punishment.

On 7th December, 1964, I put down to the Secretary of State for the Home Department a Question for Written Answer, because of my belief—it is only a personal impression and it may be wrong—that there is this increasing possibility of gang warfare and the use of firearms. I asked whether the right hon. and learned Gentleman would introduce legislation to provide that any one found in unlawful possession of a firearm should receive a sentence of not less than five years’ imprisonment, irrespective of any offence they might have committed. My reason for asking the Question is that the unlawful possession of a firearm is an offence that a person has to go to some trouble to commit. The right hon. and learned Gentleman replied that he was not convinced there were sufficient grounds for taking the exceptional step of fixing a minimum penalty.

I wonder whether he consulted his right hon. and noble Friend the Lord Chancellor, because I am sure that he will appreciate that my suggestion is certainly not a novel one. It was first suggested by the present Lord Chancellor himself in a letter to The Times on 15th July, 1959. His suggestion was an amnesty for all those who took their firearms to a police station. He also suggested then the introduction of legislation imposing a minimum penalty of five years’ imprisonment on those who were found in unlawful possession of firearms.

If the situation was difficult in 1959, for that is what the Lord Chancellor then believed, what is the position today? I may be wrong, and I hope that the Home Secretary may be able to reassure the House, but I get the impression that there is this increase in organised gangs perhaps arising from matters we discussed in this House in the last Parliament, when new laws were enacted about gambling and clubs and prostitution. I expressed fears, and I believe that the hon. and learned Member for Northampton (Mr. Paget) expressed fears, during the debate on the Wolfenden proposals as to prostitution which led to the Street Offences Act.

Has the driving of prostitution underground into the clubs led to the greater organisation of protection rackets? Have the police got evidence—and I have the impression that they may have—of gangs being organised in this particular field? There is the fear, and it is an honest fear that I express to the House, that enactment of this Bill at this time would do much to promote the situation that is growing up within the country at this time.

Public anxiety over crime must be clear to every hon. Member—it is certainly clear to every member of the public. Public opinion has been expressed, and it is public opinion on a matter on which the public have the particular right, have they not, to express a view? We certainly have the duty to pay more attention to it in this respect than, perhaps, in regard to any other single matter.

That public anxiety has been expressed in the most recent sentencing policy of the courts. We have the actual facts of the mail robbery—just to answer the question posed by the hon. Member for Nelson and Colne. I remember that just after that operation I was in the United States on a visit to the United States Attorney-General, Mr. Robert Kennedy, and I got the impression in that country of a somewhat rueful admiration for that organised gang. They commented on how skilfully the operation had been worked out, and what little violence was used—although, in that regard, people forget what happened to the guard, and the effect it has had upon him, although the operation was meant to be one with little or no violence.

Those robbers might, because they were so careful not to use violence, or to have used as little violence as possible, have expected a sentence of 14 years’ imprisonment; had the violence involved a death, they would have expected capital punishment. They got sentences of—what was it?—25 or 30 years. Because of such sentences, the Home Secretary has no power to intervene, except in particular circumstances, where he can release them temporarily because of ill health, for instance. Otherwise, he does not have the statutory power to intervene in that case.

Those men will have to serve their sentences, except for a one-third reduction for good behaviour, so that any of them with a 30-year sentence will have to serve some 20 years. If the price to be paid for using as little violence as was used then is to be greater than that for using violence involving the risk of death, where is the deterrent for such men as these? Suppose courts were permitted by this Bill to impose a minimum, would it ever be more than an effective 20 years? So we come to the situation in which the price of a live witness to a prisoner’s identity may be the same as that for a dead one.

These are professional criminals. They weigh up the circumstances and the risks involved. They balance risk against risk, and the booty against the penalty. The prisoner whom one sees in prison is very different from the thug he was before imprisonment. I am sure that most hon. Members will appreciate that there exists a serious assault upon our society. The present situation is that in the next 12 months from now 20,000 people will have suffered some violence of some kind and degree. This is the situation which we now face.

Would the alternative presented by this Bill be really a life sentence? The Home Secretary possesses powers under Section 57 of the Criminal Justice Act, 1948, to release on licence where a person has been sentenced to life imprisonment. That is a statutory power which is exercised by the Home Secretary. That means that the Home Secretary and his advisers have to carry out a determination as to how much of a life sentence a man shall serve. If this Bill becomes law, does the right hon. and learned Gentleman propose to retain that power? Or does he propose to abandon that statutory power and replace it with some form of parole board, as has been suggested?

This is a matter for the decision of the House. We have to decide whether we can and whether we should abandon this deterrent for something that is nebulous and uncertain, and can never carry the effectiveness of a sentence of capital punishment——

Mr. Emlyn Hooson (Montgomery)

I am sure that the right hon. and learned Gentleman is expressing a genuine fear, and a fear that is widely felt, but would he not agree that the same fear has been expressed by members—and distinguished members—of our mutual profession ever since 1800, when the abolition of capital punishment for various offences was imposed? And does not experience show that in every case the fear has proved to be unfounded?

Sir P. Rawlinson

I share some of the hon. and learned Gentleman’s commentary to the extent that I would agree that the crime of murder, as I said at the start of my remarks, seems to have been far too wide. It was certainly wrong to have the death penalty for certain killing offences. I do not believe, and I know that I disagree here with some of my hon. Friends, that we can by capital punishment deter the family murder, the crime of passion. I do not believe we can deter the poisoner or the sexually perverted, but I do believe that we can deter the professional criminal who acquires a pistol and goes out to rob, as an occupation, weighing risk against risk.

I hope that the Solicitor-General will forgive me for not giving him notice that I intended to refer to what he said in his speech in his constituency. I shall refer to only three points which he made. He said that he had been influenced on the question of men being wrongly convicted for possession of offensive weapons, by the evidence in the Mars-Jones Report and also in the Evans case. This question is not related to that of the gun and the gangster. My argument is addressed to the case of the robber and the public crime in the course of robbery. The right hon. and learned Gentleman said that juries did not, and would not, convict in such cases. I would agree if he were referring to the period prior to 1957. I have seen that myself because then a death penalty could be imposed in the case of a mother or child. It seemed totally improper and completely outrageous to be imposed for such a crime although technically it was then murder.

Since 1957 I think that general experience is different from that. I have recently known juries bring in a verdict of manslaughter on the grounds of diminished responsibility, because that was what the evidence drove them to, but they would rather have brought in a verdict in those circumstances of murder. He said that the 1957 Act can never be effective, but I say that it is effective because it has retained the deterrent in this particular field. Another of the evils of capital punishment is said to be a morbid interest in murder trials.

Mrs. Anne Kerr (Rochester and Chatham)

Hear, hear.

Sir P. Rawlinson

The hon. Lady says, “Hear, hear,” but it is not capital punishment which creates the morbid interest. It is not the punishment which attracts a great deal of attention or a great deal of morbid interest. It is the circumstances of any case if they are such as to arouse public interest because, say, of the sex nature or the personality involved. That is what brings these weird, strange people—I could not agree more—to a trial. All trials are trials for life.

All murder trials, whatever the punishment would be, are concerned with death and with life.

Many other hon. and right hon. Members wish to speak in this debate, so I shall cut short my comments. But I believe that we are witnessing an increase in professional crime and that there is an extension of operations by organised gangs. I fear that the removal of capital punishment from this field of crime would introduce a risk of greater violence, the wider use of guns and greater danger to the public. I am not prepared to brush aside the opinions of those principally engaged in fighting crime on the ipse dixit—I say this with the greatest respect—of humane, sincere and compassionate men as I believe the abolitionists to be. I believe that there is a great distinction between the execution of a murderer and the killing by a man, in murder, for a victim dies unsuspecting and innocent on his lawful ordinary occasions. The murderer dies after he has deliberately with knowledge of the penalty for his deliberate act, committed the crime of murder.

If there is a balance of choice between those lives, I certainly come down on the side of the life of the victim. I am not prepared to take the risk which I believe exists. Hon. Members may seriously disagree and of course I accept the seriousness of their argument, but I cannot take the risk, as I believe it is a risk, with the lives of innocent citizens, nor can I ignore the opinion of police officers. Terrible and ugly as we recognise the punishment to be, I believe there is a right and a duty on the State to say, “For this deliberate act you will lose your life.” I believe that such warning can and does deter certain men who should be deterred in this day and age. I for one will vote against this Bill.