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Mr. Lawrence : My right hon. Friend spoke very well.

Mr. Baker : I thank my hon. and learned Friend--he was very good, too.


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The effect of the new clause would be that juries would continue to decide whether a defendant would be convicted of murder. Death would be the mandatory sentence for defendants of 18 or over, but, as soon as practical after a sentence of death, there should be a special sitting of the Court of Appeal to consider whether the circumstances of the offence or of the offender would justify the substitution of a sentence of life imprisonment for the sentence of death.

This is an important idea, which I have no doubt will be the focus of today's debate. It makes a proposal which the House has not considered before. My hon. and learned Friend proposes that there should be no distinction between different types of murder at trial. Neither the jury nor the trial judge should be asked to differentiate between different types of murder or to decide between different penalties. The House will recall that the Homicide Act 1957 was found to be most unsatisfactory because it sought in practice to do exactly that--to draw distinctions between different types of murder. Such distinctions run into difficult problems in logic or in practice. It is extremely difficult to distinguish between different categories of murder. That has been the greatest weakness of the case of those who have wanted the restoration of capital punishment since 1965. The degree of heinousness of a crime can be considered only in the unique circumstances of each offence. There are difficulties in trying to categorise according to the status of the victim, the weapon used or the relationship of the offender to the victim. Many would say that it is just as heinous of someone to poison his wife or mistress over a long period as it is to shoot someone in the furtherance of crime--I notice my hon. and learned Friend nodding at that. However, he recognises that there is in practice a wide variation in the culpability of offenders and in the seriousness of different murders.

We may think of examples--the murder of a child in gruesome circumstances, or multiple murders--and contrast them with someone who kills after suffering years of violence and abuse from another member of the family, or with someone else who feels it right to put an end to the life of a much loved relative who is suffering acute pain in terminal illness. Society recognises that there are differences and that not all these cases would permit a sentence of death. The position of juries, given mandatory death sentences for all charges of murder, might change. Faced with such mandatory sentences, we would or could experience a marked reluctance on their part to convict the accused

Mr. John Morris (Aberavon) : Would.

Mr. Baker : Perhaps, but there is an area of doubt. There would also be an increased demand for the level of proof brought by the prosecution to be utterly convincing.

The new clause also raises the question whether a majority verdict would be appropriate for the death sentence. We could well end up not only with more acquittals but with fewer murderers being brought to trial. I am sure that my hon. and learned Friend the Member for Burton will deal with that point if he catches the Chair's eye. Secondly, the new clause would place on the Court of Appeal the onerous responsibility of deciding whether the death sentence should stand. The responsibility would be placed not on the single judge but on the Court of Appeal.


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This is such a major change that I thought it right to consult the Lord Chief Justice, as one of my predecessors had done in a previous debate. He told me that he continues to take the view that a death sentence should be imposed not by the judges, whether at the trial or on appeal, but by Parliament. He has also authorised me to point out that, under this arrangement, the Court of Appeal would not have heard the evidence or seen the defendant or the witnesses, and would accordingly usually being a worse position than the trial judge to make the decision that the new clause would require. The House will want to weigh the advice of the Lord Chief Justice carefully. This process would also add a further stage in the appeal process, because another court could still be asked to consider whether the verdict itself was sound. Presumably there would also be an appeal from the sentence decision of the Court of Appeal. In the 19th century, the gap between trial and execution could be very short, in some cases as short as a week. In 1950, the average period between sentence and execution in England and Wales was about five weeks. In some cases where there was an appeal, it rose to more than six weeks.

5 pm

But this, of course, is nothing like as long as the time in the United States, where condemned persons spend, on average, nearly eight years awaiting execution or reprieve. Even if we avoided delays of that length, there is no doubt that all opportunities for appeal and delay would be exploited. They might include attempts to get the issue considered by the European Court of Human Rights. During that period, media interest in the convicted prisoner, his family and friends would increase, and the family and friends of the victim might well be drawn into that. The public's attention would more and more focus on the fate and demeanour of the murderer and less and less on the poor victim. One can well imagine the field day that the media would have in such a situation, and I have little doubt that much of it would be in favour of the murderer rather than the victim.

The Committee will wish to consider very carefully the possibility of a miscarriage of justice. Any criminal justice system makes mistakes. We must try to minimise the risk of error, but all experience in this country and abroad shows that mistakes can happen. The Committee will not expect me to comment on particular cases. I say only that it is very hard for someone to serve years in prison on the basis of a conviction that is subsequently found to be unsafe. Release from imprisonment and financial compensation cannot really make amends for the lost years, but even those are better than a posthumous free pardon.

I recognise that murderers care nothing about the innocence of their victims, but one must not compare the responsibility of the state as the deliberate instrument of justice with the

evil-intentioned actions of criminals. Those who favour the reintroduction of capital punishment must address this issue. The possibility of an innocent person being hanged by mistake canot be dismissed with a shrug. If the concept of British justice is to mean anything, we must retain the possibility of rectifying a mistaken verdict. Capital punishment denies that redress. There is no appeal from the grave.

Each of us has to make up his or her own mind on this issue. There will, of course, be a free vote on each new


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clause. I do not take it for granted that every hon. Member has set and unchangeable views on this matter. I have found in my time in Parliament that colleagues have changed their views as new circumstances have arisen. I have tried to set out various considerations that provide grounds for hon. Members to re-examine their views.

We all agree that murder is the worst of all crimes, because it takes away that most precious gift, the life of another human being. But we should remember that murder accounts for just one tenth of 1 per cent. of violent crimes, and less than one hundredth of 1 per cent. of all recorded crimes. One of the critical issues in the debate is whether capital punishment is a deterrent, and I have shown that the evidence on this is far from conclusive. It does not point clearly one way. The most important deterrent for most criminals is the likelihood of detection and arrest, and the knowledge that, for a serious crime, a long spell of imprisonment is not just a possibility but a certainty.

I fully understand that, in the aftermath of a particularly shocking murder, society is angry and demands revenge, but as Francis Bacon said :

"Revenge is a kind of wild justice".

Justice is not weakened by the absence of the capital sentence. Justice is strengthened if the public have confidence in the ability of the police and of the judicial system to detect, to arrest, to secure the conviction, and to see the imprisonment for long periods of criminals who are dangerous to society. That is the positive and necessary alternative to capital punishment.

Public confidence also depends upon a judicial system that is capable of recognising and making good errors that may appear from time to time. The restoration of capital punishment would preclude the making of such amends, and would therefore contribute to a lessening of public confidence in our judicial system. That is another reason why I shall vote against the amendments.

The right of all citizens to live their lives free from the fear of crime and peaceably to go about their business is one of the oldest rights that any Government must uphold. Let us concentrate all our efforts on a relentless and unremitting fight against crime and do all that we can to adopt policies that will aid the forces of law and order in that task.

Mr. Hattersley : I have already had the privilege of congratulating the Home Secretary on his assumption of such high office. It is now my pleasure to congratulate him on what I am sure the Committee will agree was an excellent speech. The one qualification in my congratulations is the clause to be moved by my right hon. and learned Friend the Member for Warley, West (Mr. Archer). However, that does not detract from the quality of the Home Secretary's speech. He held the Committee's attention for almost an hour and his speech was a cliffhanger in that none of us knew whether at the end of his judicial analysis of the pros and cons of the argument the right hon. Gentleman would be for or against. I hope that I can match his persuasiveness and lucidity in what the Committee will be pleased to know will be a rather shorter speech.

Our debates about capital punishment, especially general debates on the subject which in a sense we now undertake because of the new clause tabled by the hon. and learned Member for Burton (Mr. Lawrence), usually have two ingredients. The first ingredient is what I shall


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call the argument in principle : on the one hand the belief that the state does not possess the right to kill its citizens under any circumstances ; and on the other the conviction that some crimes are so intrinsically wicked that they must be punished by nothing less than death.

The second ingredient is more pragmatic : it is the effect of the death penalty on the community. Opponents argue that its existence debases and literally demoralises society while its supporters insist that it is a deterrent to murderers, prevents murders and by stiffening the criminal code reduces the number of offences. I think that most hon. Members made up their minds on those issues before they entered the Chamber for the debate and I suspect that most will agree that there is little new to be said about either ingredient. Our recent debates on the subject all cover the same well-trodden ground. Because of that, some of us were somewhat surprised that the Government thought it right to devote another full day this year to this subject. I understand that it is the result of an assurance by the previous Home Secretary which the present Home Secretary felt obliged to honour.

Perhaps the subject can never be fully put to rest, but I hope that in future we can at least avoid debating it twice in the lifetime of a Parliament. The Committee's judgment on the significance of this occasion is already clear. During previous debates on the subject, the Benches were packed and today's absence of participants in the debate, although not when we come to vote, demonstrates the clear view in all parts of the Committee that the subject has been dealt with, finished with, and cleared up. I hope that we can accept the Government's assurance that, however long this Parliament lasts, we will not have another debate of this sort before the general election.

I begin in this debate as I began in previous debates by asserting my belief that the death penalty is wrong in principle. The state has no right to take the life of one of its citizens. Even if there were evidence to demonstrate that the State's possession of that power was a deterrent to murder, I would still hold to that principle. I accept that that fundamental belief, like all such beliefs, is difficult to justify in hard logic. However, I can offer some supplementary justification for my position. There is the obvious example of the belief that a society which sanctions the taking of life is more likely to encourage violence than to discourage it, and that by killing murderers we become too like murderers ourselves. The whole community is reduced to at least part acceptance of the view that in some circumstances violence is justified. That is only the second--the subsidiary--part of my case against capital punishment. In my view, it is simply morally unjustifiable.

Anyone who doubts the debasement that society would suffer were hanging to return need only read the features page article in The Sunday Telegraph yesterday, which refers to a statement made in the House in 1988 by the then Home Secretary. He offered as one of his objections to capital punishment the way in which it would be treated by the newspapers. He said that a circus would be created and that the circus, which would revolve round every judicial hanging, would soon come to sicken society. I have no doubt that would happen, but equally I have no doubt that the blame would rest with society as much as with newspapers.


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Some of the so-called deep thinkers on this issue demonstrate their views on how they believe that society should react to such a situation. Yesterday in The Sunday Telegraph, a Mr. Robin Harris, commenting on the previous Home Secretary's fears about media treatment, said that he would welcome the creation of a media circus round the judicial hanging. He said :

"The full horror of capital punishment, the practical preparations, the awfulness of the drama which unfolds and the cold finality of the execution itself are the only response which society can ever make to taking of human life."

I cannot see how the circumstances that he described could be anything other than debase society and, by debasing society, make it more violent, and by making it more violent, make crimes of every sort, including murder, more likely.

Mr. Maclennan : Has the right hon. Gentleman noticed that the abolition of public executions in 1869 followed a point in our history when homicide was at its highest level, but that, after the abolition of the circus associated with public executions, the offending rate fell noticeably in the next two decades?

Mr. Hattersley : It is important on these occasions not to carry any of the arguments to their logical or even illogical conclusions. The argument that we have to make a great show of the execution so that we demonstrate it in all its brutality and show in formal horror what executions are like is an argument for making the whole affair more public. Those of us who believe that the existence of judicial death debases society would take the opposite view and the fact that we are allowed by the fiat of society to kill people is more, not less, likely to create the violence that, in its turn, produces murder.

More important even than that in the article by Mr. Harris yesterday was his view that execution is the only possible response. I do not understand what justification is ever possible for the assertion, usually unsubstantiated, that judicial killing is the only possible response to murder.

Two years ago, the right hon. Member for Finchley (Mrs. Thatcher) made on television what can loosely be described as the ethical case for capital punishment, and did so, as the House would expect, with extraordinary passion. I quote her today simply because of the clarity with which she argued her case. She said that it was "only right" that some murderers should die. She did not go on to say why it was "only right", or indeed what "only right" means. The only possible interpretation is that she meant that one violent unnecessary death should be matched by an act of parallel violence sanctioned and carried out by the state in conditions of grotesque formality. In effect, that is the doctrine of an eye for an eye and a tooth for a tooth--a moral judgment that was subsequently qualified out of existence by the highest authority.

On the same television programme, the right hon. Member for Finchley then insisted that some murderers have

"forfeited the right to live".

Mr. Geoffrey Dickens (Littleborough and Saddleworth) : Hear, hear.

Mr. Hattersley : My notes say that I am sure that that opinion will be repeated here today and I might even have put in brackets that it would be likely that the hon.


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Gentleman would say, "Hear, hear". Talk of the right to live and deserving to die is no more than the belief in retribution and revenge. There is no other way to justify it.

Mr. Dicks : Will the right hon. Gentleman give way?

Mr. Hattersley : If the hon. Gentleman will give me a philosophical explanation of what is meant by

"forfeited the right to live",

I will gladly give way.

Mr. Dicks : With every right goes responsibility. With the right to life goes the responsibility to act reasonably. If one decides not to act reasonably, then one's right to live is in question. Most people would not share the right hon. Gentleman's concern if the perpetrators of the murder of Ian Gow had to suffer execution. There would be a mass welcome if such people were found and executed. 5.15 pm

Mr. Hattersley : I shall come on to the point of terrorism and terrorist murders later--the Home Secretary also dealt with them--but if the hon. Member thinks that that is a philosophical explanation of what is meant by the right to live, he misunderstands the principles that we are debating. In my view, and I believe in that of most hon. Members, the right to live is an inalienable right that the state does not have the power to withdraw from any of its citizens. The moral judgment inherent in taking the opposite view is an eye for an eye and a tooth for a tooth. I do not believe that the Committee is about to pass that principle into English law.

In the opening speech, the hon. Member for Ryedale (Mr. Greenway) talked about the punishment fitting the crime. I have not the faintest idea what that means in this context. If a man brutally and wantonly kills a child, if a man committing a robbery kills a policeman, if a drunken driver kills an innocent pedestrian, what is meant by the concept of the punishment fitting the crime? One of the features of debates on capital punishment is the reckless abandonment of logic that characterises so many speeches in a way that it would not characterise speeches on any other subject.

In other parts of the debate, the logic is more acceptable, although the evidence on which it is based is questionable. People have argued, will continue to argue and will argue today, that capital punishment can have a positively beneficial effect on society in that it deters murder. The statistics of crime give no support to that view. Certainly, in the recent past, the murder rate has increased, although it is nothing like it was, by coincidence, exactly 100 years ago and slightly less than it was 120, 130 and 150 years ago, but the increase in murder has been nothing like the increase in other crimes of violence over the past 20 or 25 years. In debate after debate, successive Home Secretaries have made the same speech about the conclusions that it is reasonable to draw from the statistics.

Mr. Teddy Taylor : Will the right hon. Gentleman give way?

Mr. Hattersley : I shall give way, but I shall first give the Home Secretaries' conclusions and then the hon. Gentleman can argue with me and them simultaneously.

In 1988, the Home Secretary said :

"The statistics can and no doubt will be used both ways."--[ Official Report, 7 June 1988 ; Vol. 134, c. 748.]


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In 1983, the Home Secretary said :

"We should be making a great mistake if we expected them to give us an unequivocal answer."--[ Official Report, 13 July 1983 ; Vol. 45, c. 886.]

In 1979, the Home Secretary said :

"The only sensible conclusion to reach is that their evidence is inconclusive"--[ Official Report, 19 July 1979 ; Vol. 970, c. 2047.] The Royal Commission on capital punishment said very much the same in 1963.

Mr. Teddy Taylor : In view of the right hon. Gentleman's strong feelings and his opinion that the evidence is clear, will he explain why he thinks that, over the 20 years from 1946 to 1964, in which general crime has more than doubled, the number of killings fell? In addition, why does he think that, whenever capital punishment is abolished, the situation changes dramatically? What does he think was the important factor around 1965 that led a static and declining rate to become a rising one?

Mr. Hattersley : The hon. Gentleman is wrong to say that when capital punishment is abolished the murder rate increases. The Home Secretary told us, and the hon. Gentleman can check for himself, that in many other countries where capital punishment has been abolished, the murder rate has not increased. In some places, it has gone down. Comparison between the retentionist and abolitionist states in the United States does not give any credence to the hon. Gentleman's view.

I cannot say why the figures for the brief period that the hon. Gentleman chose moved in the way that they did, but I can tell him the nature of his error. It is called post hoc ergo propter hoc. He is assuming that, because two things happen simultaneously, or one follows the other, the two are connected. There is no reason to assume that that is so. I repeat that that has been the judgment of successive Home Secretaries. It was the judgment of the Royal Commission on capital punishment in 1983. All international comparisons come to the same conclusion. Crime statistics confirm the judgment that the case for capital punishment as a deterrent is--at best, I speak from the point of view of those who want it returned--entirely unproven.

I recall what my right hon. and learned Friend the Member for Warley, West said when I made the same point in 1988. He asked me to agree that once it was established that the statistics leave the matter open, it does not leave the argument neutral. He said that, if capital punishment were a deterrent, and given all the research that has been carried out, the case for its being a deterrent would have been clearly established by now. In my view, the logic of my right hon. and learned Friend's assertion is irrefutable.

All the evidence shows that it is impossible to demonstrate that capital punishment is a deterrent to any form of murder. Therefore, it is only reasonable to assume that it is not. Yet the proponents of capital punishment refuse to accept that. The right hon. Member for Castle Point (Sir B. Braine), who is no longer in his place, interrupted my right hon. and learned Friend the Member for Warley, West to ask him whether he had noticed that many horrible crimes are being committed day by day. He assumed that, by having our attention drawn to those crimes, we would accept a connection between their existence and the deterrent effect of capital punishment.


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Mr. Kenneth Hind (Lancashire, West) : The right hon. Gentleman is on an important point. Does he agree that there is a widespread belief in our society that reintroducing the death penalty will be a panacea for many forms of crime that are entirely unconnected with capital offences? In fact, that is untrue. Capital punishment is a deterrent for only one type of offence, not for the entire range of offences that come before the courts.

Mr. Hattersley : I am sure that it is my fault, but I am not sure whether the hon. Gentleman is refuting my case or supporting it. In my doubt, I shall comment on what he said. One of the detriments of the capital punishment argument for society as a whole is the emphasis that it places on deterrence rather than prevention. It encourages the belief that, as long as penalties are sufficiently severe, crime will be reduced. There is hardly any evidence to support that. One of the problems of our society is that we spend too much time thinking about punishment and not enough about prevention. The capital punishment debate has concentrated too much attention on retribution, which is part of punishment, as compared with, and distinct from, prevention.

Mr. Archer : I fully accept what my right hon. Friend has just said. Does he agree with the hon. Member for Lancashire, West (Mr. Hind) that, in addition there appears to be an argument that if capital punishment is restored for murder, it will somehow reduce the incidence of grievous bodily harm? That is clearly a fallacy.

Mr. Hattersley : I agree with my right hon. and learned Friend. I shall come to that in a moment. It is a fallacy that is associated with the idea that crimes which take place now, especially burglaries, involve firearms whereas in the past they did not. The evidence is on the side of my right hon. and learned Friend.

Is capital punishment a general deterrent to crime? That is what we would have to believe if we were to find sympathy with new clause 3, to which the hon. and learned Member for Burton (Mr. Lawrence) will speak. The fact that capital punishment is not a deterrent in most instances becomes obvious when we consider the background to murder in the United Kingdom. More than half the murders that are committed here are the result of sudden impulse or loss of temper. Three quarters are committed within the family or a close circle of friends.

It appears that 15 per cent. are committed by individuals who are defined clinically as mentally disturbed. Perhaps as many as 50 per cent. more are committed by men and women who could claim diminished responsibility before the courts. It is clear that for them capital punishment cannot be a deterrent. They would believe that they would be acquitted of the capital offence, and perhaps it is more likely that they would not even think about that when committing the offence.

Notwithstanding that consideration, I know that some hon. Members will argue that statistics and logic may show one thing but hard evidence, self- evident principles--common sense, as it has been described--demonstrate something quite different. The hon. Member for Bury St. Edmunds (Sir E. Griffiths) used to refer to the hypothetical burglar in these debates. He would argue that, before the days of abolition, that burglar forbade his partner to carry a gun. I believe that the hon. Member for Lancaster (Dame


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E. Kellett-Bowman) quoted that example today. I have no doubt that we shall hear more of that burglar as the debate continues. I have no doubt, either, that we shall be asked some hypothetical questions--for example, what now prevents a man serving a life sentence from killing a prison officer in the hope of making good his escape? We shall be asked how, except by capital punishment, the criminal who is already facing a long prison sentence can be deterred from killing a policeman to escape arrest. I think that it was the hon. Member for Lancaster who raised these questions during the previous debate on capital punishment. The then Home Secretary answered her by saying that in all the hypothetical cases--the burglar with a gun, the criminal attempting to avoid arrest and the prisoner trying to effect his escape--the length of the additional sentence was in itself a potent deterrent. That was said in 1988.

I wish to underline and endorse something said by the Home Secretary in a passage of particular eloquence. I share the right hon. Gentleman's view that, for some crimes, a long prison sentence is right, just and inevitable. Anyone who has visited one of Her Majesty's prisons, as I have and as he has, cannot doubt the consequence and severity of a prison sentence, the feeling of hopelessness that ensues and the erosion of personality and character that it involves. The idea that imprisonment for 20 or 30 years is a soft option is patent nonsense. When I visit a prison I always leave it, hearing the door clank, believing that anyone of a normal disposition who has seen a prison would be so concerned never to be incarcerated therein that he would be determined never to commit a crime again. It is enormously important in this debate not to dismiss a long prison sentence as something of no consequence and no punishment.

Dame Elaine Kellett-Bowman : The right hon. Gentleman will have heard my right hon. Friend the Home Secretary say that one of the factors that disturbs criminals is certainty of detection and arrest. Does the right hon. Gentleman agree that one reason for a criminal carrying a firearm is to wipe out witnesses so that he is never arrested and never has to suffer the degradation of 20 years of imprisonment?

Mr. Hattersley : No, I do not agree with that at all. The evidence suggests--this is an indication of the mentality and the morality of many members of the criminal classes--that criminals carry firearms in the real belief that they will never use them. That is a disastrous, reckless and wicked misjudgment of the situations in which they find themselves. The idea that criminals go out with the intention of burgling premises and of killing anyone who sees them is, on the evidence, a fallacy.

The hon. Lady leads me to another consideration

Mr. Sayeed : As carrying a firearm in the commission of an offence attracts a life sentence, why should that deter a criminal from using a firearm to stop himself being caught? He will still get no more than a life sentence.

Mr. Hattersley : As the Home Secretary made clear about an hour ago, a life sentence is a variable term of imprisonment. He said that on some occasions it could be 20 years and in others 30 years. He added that in many other cases there should be imprisonment for the duration of natural life. The man who commits a second crime must know that 20 years is bad enough, that 30 years is 50 per


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cent. worse and that entire life is total. There is an additional punishment. The hon. Gentleman does his case no good by pretending anything else.

Mr. Gale : May I press the right hon. Gentleman further?

Mr. Hattersley : I shall mention the hon. Gentleman in a moment. He should wait until I refer to an amendment which he tabled in a previous debate.

I emphasise that I believe that the Home Secretary was right that an additional prison sentence is in itself a deterrent to all the hypothetical cases of which we shall hear as the debate continues. If we are once or twice a year to hang a human being from his or her neck until he or she is dead, we must justify doing that by something more than vague suspicion, ancient anecdotes, long-held prejudices and bits of evidence that are dredged up from heaven know where. The problems of dealing with the subject ad hominem were demonstrated by the hon. Member for Rydale. With respect to him, I am not sure that the description of killings witnessed is the best background against which to make a general decision on the reintroduction of capital punishment. By dealing with it in that way, it is easy to fall into the sort of errors which the hon. Gentleman made. He spoke of the 1,500 unlawful killings since we last debated the issue. That is a large and awful number, but he must know that the number is irrelevant to the debate, because most of those unlawful killings could not conceivably be covered by any of the new clauses.

Equally, there is the irrelevance of mentioning Lockerbie. It was a hideous crime, for which there has been no charge, let alone conviction. The likelihood is that the crime was perpetrated by a terrorist of foreign origin. The idea that the return of capital punishment might have prevented Lockerbie is the sort of fantasy that we hear only in this sort of debate. Having referred to Lockerbie and to terrorist crimes, and in talking about the deaths of policemen and prison officers--

5.30 pm

Mr. John Greenway : I wish to make it clear that in no part of my speech did I suggest that. I said that the number of unlawful killings justified the House debating the matter again tonight. It was in that context that I used those arguments.

Mr. Hattersley : I do not want to take passionate issue with the hon. Gentleman, because the subject must be debated calmly. If he did not think that quoting a figure of 1,500 was relevant to the debate, I am not sure that it was right for him to try to plant that figure in our minds and in the public's mind. If he did not think that Lockerbie was relevant, I am not sure that he was right to treat it in the same way.

I want to deal with the specific point of the killing of policemen and prison officers, as best I can, item by item. Almost everyone, including the hon. and learned Member for Burton, accepts that capital punishment is appropriate only for a limited number of murders in a limited number of categories-- [Interruption.] I note that the hon. and learned Gentleman does not accept that. He is therefore excluded from the difficult question, for those who want capital punishment for certain categories, of how we categorise the wickedness of murder on the one hand and the deterrent effect of capital punishment on the other.


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I have no idea how those who take a theological view of murder--that it is so wrong as in some cases to justify the death of the murderer--make an evaluation of the moral difference between killing a policeman and killing a child. I do not understand how we can evaluate different degrees of morality, one of which justifies death and the other of which does not. I emphasise that my objection to such a distinction is not that I minimise the horror of either sort of violence, but that I do not want the horror of homicidal violence to be extended to judicial execution.

That being said, I repeat the view that it is difficult to distinguish between one category of murder and another. It has been generally agreed since the 1957 Act, at least among supporters of hanging, that a distinction should be made between one form of murder and another. The application of that principle culminated in 1988 in an amendment moved by the hon. Member for Thanet, North (Mr. Gale) which, incredibly, amounted to the introduction of a local option in these matters.

The attempts to differentiate between one murder and another demonstrate the difficulties of defining some hanging categories and excluding others. Until today, I had hoped that we had ruled out the notion that judges should be asked to make decisions between capital punishment and life imprisonment. We know from the Gower report that judges simply would not make that distinction. Gower was explicit in saying that capital punishment must be a mandatory offence for stipulated classes of murder because judges would not make a decision between life and death.

As I understand it, new clause 3 almost imposes that obligation on the Court of Appeal--three judges deciding whether a man should hang or whether a woman should be reprieved. I have severe doubts whether the judges would accept that obligation. I understand from the Home Secretary that the Lord Chief Justice is explicit on that point--he does not regard it as an appropriate function for judges to perform, especially in the circumstances that the Home Secretary described only in part. If every man or woman convicted of murder is to be sentenced to death, every man or woman so convicted will appeal. The idea that the Appeal Court should go through every murder re-examining the evidence to decide between life or death would be an intolerable burden to place on the judges, and one that they would be right to refuse.

The difficulties of characterising one offence as suitable for the death penalty and another as not suitable are best demonstrated by the proposal in new clause 2--that the death penalty is an appropriate punishment for people convicted of murder as part or in pursuance of an act of terrorism. The objections against selective murder indictments resulting in capital punishment in some cases but not in others are overwhelming, and they are especially overwhelming when they apply to the special category of terrorism. When consulted by the previous Home Secretary--

Mr. Archer : I apologise to my right hon. Friend for intervening again. Reverting to new clause 3, does my right hon. Friend understand the significance of the Court of Appeal being invited to consider what evidence was adduced at a trial? As it will not be open to a jury to make a distinction between capital and non-capital murder, the only significance of the evidence can be whether the conviction was safe.


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Mr. Hattersley : I heard my right hon. and learned Friend make that point during his speech. Although I feel great trepidation in arguing with him, I do not think that that is the intention of the hon. and learned Member for Burton. It is not that the Court of Appeal should examine the appropriateness of the conviction and whether it is safe, but that it should consider such matters as extenuating circumstances. My right hon. and learned Friend's question comes from a logical legal mind. I do not believe that the answer shows such characteristics.

The hon. and learned Member for Burton is saying--I put this in the crudest layman's language--that everyone who is convicted of murder must be condemned to death. The Court of Appeal might then say, "This is a premeditated murder intended to result in vast financial gain. He should die." On the other hand, it might say, "This was a sudden act of passion. He will not die." The Court of Appeal will consider the circumstances of the murder. It is a bizarre proposal, and it is that bizarre quality that has made my right hon. and learned Friend misunderstand it. I believe that that is the bizarre intention of the hon. and learned Member for Burton. By drawing attention to it, my right hon. and learned Friend has demonstrated how impossible it would be to implement such an idea.

On the matter of terrorist crimes, the previous Chief Constable of Northern Ireland told the then Home Secretary that the extension of capital punishment would increase the difficulties in the Province. The present Chief Constable told the present Home Secretary that it would not be helpful. However, despite those pragmatic and practical objections, there are three much more powerful reasons for opposing the idea that terrorism should attract capital punishment. First, as the Home Secretary said--it is right that this should be said from both sides of the House--to single out terrorism in that way would give the IRA something that it has wanted for years--special status. We have always insisted that IRA members are common criminals, and to treat them differently from other murderers would be to differentiate between them and the man or the woman who committed murder for other reasons. To differentiate in that way would be a prescription for creating martyrs.

Secondly, if the rule applied to Northern Ireland, we should be sending to the gallows men and women who had been convicted not by a jury of their peers, but by Diplock courts. Surely that would be intolerable in a democracy. Thirdly, we should be requiring the courts to make absurd distinctions between two classes of crime. If a man killed a postmaster while robbing a post office and gave the money to the IRA, presumably he would be hanged. If he killed the postmaster in the same circumstances but gambled the money at the Curragh or Leopardstown, presumably he would be sent to prison for life. One has only to describe such anomalies to see why the application of the death penalty to limited categories would be absurd.

Mr. Hunter : The right hon. Gentleman again makes the familiar point that one should not differentiate between IRA criminal activity and other ordinary criminal activity. We have done that for many years, starting when the Labour party was in government. We have proscribed organisations and scheduled offences. We have prevention of terrorism Acts. Surely this argument has worn thin over the years.


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Mr. Hattersley : I do not believe that it has. I remember that, in the summer, the previous Prime Minister talked about being "at war" with the IRA. I was asked to comment and I said that occasional slips of the tongue should not be held against us, because that was not the Prime Minister's view of the IRA's status, and that members of the IRA were common criminals who must be treated in the same way as other criminals. I recall the Prime Minister saying in a broadcast that she did not believe that the members of the IRA were special people with special status about whom special laws should be created. That is the proper, necessary position if we are to defeat terrorism. We cannot deviate from it when, temporarily and emotionally, it seems convenient to do so.

Mr. Merlyn Rees (Morley and Leeds, South) : There is another aspect. It is not enough to say that there is a proscribed organisation. In the recent legal history of Northern Ireland, people have tried to prove that a particular person was a member of a proscribed organisation. I was advised that proscription hardly helped in that respect at all. It was almost impossible to prove it. It always ended up being a makeweight. I hope that the argument that there are proscribed organisations will not be called in aid, because the biggest organisation is the UDA, which is not proscribed.

Mr. Hattersley : My right hon. Friend should not provoke me to say what I did not propose to say--that Labour Members are anxious that in no particular should there be special criminal laws governing the conduct of and prosecution of the IRA. I shall not particularise our differences on that point, because I want to be as emollient as I can in this rational--I hope--debate. That may be slightly more difficult as I turn to the proposal by my right hon. and learned Friend the Member for Warley, West that we should no longer have the death penalty for treason and piracy.

Despite the compliments which I paid the Home Secretary, which were genuinely meant, I feel that the passage of his speech dealing with that matter was wholly unconvincing. I do not deny the propriety of inquiring into and examining the need to retain these ancient laws in principle. There is much to be said for examining the reasons why the laws of the 18th century--unused and unloved--have remained on our statute book for so long, but inquiring into them does not in any way justify the notion that we should not here and now abandon their attachment to the capital sentence.

The Home Secretary gave no convincing description why, for instance, the law on piracy, for which the last execution was 160 years ago, should not be modified to remove capital punishment. He gave no convincing explanation why a complete revision of the laws relating to treason would make it inappropriate to remove the capital punishment sentence now. Indeed, the right hon. Gentleman talks about giving the erroneous impression that all we need to do is to change the sentence.

I believe that we could give the opposite impression were we not to remove the capital sentence. I suspect that hon. Members are united in believing that those laws need examining and eventually revision and, in part, abolition, but that is not an argument for retaining capital punishment while they are on the statute book. I shall vote


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