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Lord Thomas of Gresford: I support the amendment on the principal grounds so eloquently moved by the noble and learned Lord, Lord Archer. Perhaps I may adopt his phrase. It is a test of our civilisation to ensure that the death penalty is wiped off the statute book of this country. I suppose that I must be one of the few Members of your Lordships' House who has actually heard the death sentence passed on a client, although not in this jurisdiction. While I have the greatest confidence in the criminal justice system, it is certainly not completely foolproof. It is a very chilling thing to hear a death sentence being passed.

Another way of approaching this argument is to point out how hopelessly out of date the legislation is. The time to amend or repeal the treason Acts is not in times of national emergency. The noble and learned Lord, Lord Archer, referred to the Joyce case. He will remember that William Joyce was convicted of treason although he was an alien--an American citizen--who had left British territory prior to the war on the

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presumed continued existence of a British passport. The only reason that he had a British passport was that he lied about his birth. He said that he was born in Galway and had obtained a passport as a result. In fact, he had no right to the protection of the Crown and was not a subject of the Crown. But in the times of national emergency of those days he was duly executed, as the noble and learned Lord has said.

So whatever may be the result of this amendment, surely the time to rationalise the law relating to treason has come. As the noble and learned Lord said, we go back to 1351 for the Treason Act. It is defined in terms which are wide and completely incomprehensible in today's world. He referred to some of the anomalies. Not only is it treason to violate the King's consort or Queen, but also the King's companion. It is not only treason to slay the Lord Chancellor--maybe some people think that hanging is too good for him, but not in this House, of course--but it is also treason to slay a High Court judge who may be conducting a court.

As regards the piracy provisions, the issue of Section 2 of the Piracy Act 1837 came before this House on consideration of the Statute Law (Repeals) Bill 1993. My noble friend Lord Wigoder then suggested that the proposal should not be debated because the House was dealing with a repeals Bill. He suggested that the section should be allowed "to go back to sleep". He was warmly supported by the noble Lord, Lord Williams of Mostyn, who, in his more radical days, was a little bit more robust and said that he thought we would welcome a little more than that--possibly euthanasia. Consistent as he always is, I have no doubt that the noble Lord has not changed his mind on that matter.

The Piracy Act 1698 did not apply to Scotland because it was before the Act of Union. It was designed to protect or to permit commissioners in the American plantations and other colonies to try cases of piracy summarily and to execute those convicted rather than have them sent back to this country to be tried at the Old Bailey or elsewhere. Captain Kidd was one of those who turned pirate after having been given a roving commission with a King's ship to destroy pirates preying on ships of the East India Company. As the noble and learned Lord said, further piracy Acts followed.

Section 3 of the Piracy Act 1837--we are debating Section 2--permitted the substitution of a sentence of life imprisonment or any shorter period for offences under the earlier Act. But Section 3 was effectively repealed by the 1993 Act, which repealed the earlier Piracy Act. So Section 2 of the 1837 Act, to which the noble and learned Lord's amendment is addressed, stands completely alone and unwanted. Indeed, the last conviction under the old Piracy Act was in 1870 in Wales. It concerned the crew of a ship called the "Vicksburg". It sailed out of Newport. The crew refused to work and effectively went on strike. The master was locked in his cabin. The ship sailed back into Cardiff where the crew duly appeared at Cardiff assizes and were sentenced to imprisonment.

The last known case of piracy in the United Kingdom, however, was in 1971 when the crew of a trawler out of Aberdeen revolted against the skipper, took possession

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of the ship by force and were convicted of piracy under Scottish common law. But Scotland abolished capital punishment for piracy as long ago as 1887. It is my submission to the Committee that it is time England and Wales caught up.

Indeed the Aviation and Maritime Security Act 1990, which was passed following the seizure of the "Achille Lauro" off Port Said in 1985, created the specific offences, punishable with life imprisonment, relating to the hijacking of ships, destroying them or endangering their safety. It covers anything that might come within the compass of piracy.

The noble and learned Lord, Lord Archer, also referred to the situation of the Services. That matter came before this House in a debate on the Armed Forces Bill on 18th June 1996. An amendment was proposed from these Benches by Lord Mayhew to abolish the death penalty in all Service discipline Acts. The Minister, the noble Earl, Lord Howe, justified the retention of the death penalty in military matters by reference to the piracy and treason provisions, which he pointed out were still extant on the statute book of England and Wales. It is a power that has been unused for some 50 years. The noble Lord, Lord Williams of Mostyn, again supported Lord Mayhew in that amendment and said this:

    "it is unwise to have a penalty which has fallen ... into complete disuse after 50 years".

That is in relation to the death penalty in military matters. He went on to put it much more pithily in a way which we have come to know and love in these past few months. He said:

    "a penalty not used becomes a penalty without value".--[Official Report, 18/6/96; CWH 16 & 17.]

When the Minister replies to this amendment, will he say whether any further consideration is to be given to the death penalty in the Armed Services and whether the Government have any views on returning to that? I fully support the amendment of the noble and learned Lord, Lord Archer.

Lord Henley: I rise to give my views on this amendment. I stress that on this occasion I am speaking personally and not for my party as a whole. I imagine that that will be the case for most of those speaking in a debate of this kind.

I should like to begin by stressing that I personally am opposed to capital punishment, for many reasons, many of which were put forward by the noble and learned Lord, Lord Archer of Sandwell. I would add that there are practical reasons for opposing any form of capital punishment, not least the increased difficulty of getting a conviction when so many people are opposed fundamentally to any idea of capital punishment. You need only one person on the jury who refuses to convict for fear that she might then be party to capital punishment taking place to see someone acquitted of an offence of which he should otherwise have been convicted.

As I say, I am personally opposed to capital punishment. The noble Lord, Lord Thomas of Gresford, said he felt the time had now come when we should be

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addressing these matters. I believe that might well be the case, but 9 o'clock on a Thursday evening as a Bill passes through this House is not necessarily the time when such matters should be addressed and the last remaining traces of capital punishment removed from the statute book. This applies particularly to treason. I feel that such matters ought to be addressed before a wider audience at possibly a better time. For that reason I could not support an amendment of this kind. No doubt it is an issue that could be revisited on another occasion.

There are a number of questions I should like to put either to the noble and learned Lord the Minister when he responds or to the noble and learned Lord, Lord Archer, when he decides what he wishes to do about his amendment--on possibly a lighter and more historical note. First, I should be interested to know just a little more about The Sentence of Death (Expectant Mothers) Act 1931. I am not familiar with that Act and, unfortunately, I have not done my research. I should like to know exactly what it was.

I should like to put a second point, which may be a matter for the noble Lord, Lord Williams, when he responds. The noble and learned Lord, Lord Archer, made it quite clear that some of the Acts which he hopes to repeal were Acts that liberalised matters as they went through Parliament: for example, they removed the burning of offenders and substituted the hanging of offenders. Some Members of your Lordships' House may remember that it used to be a privilege of the peerage to be entitled to be hanged, if such an event were to happen, by means of a silken cord rather than the ordinary hempen rope. I should be interested to know whether that privilege still exists.

As far as I am aware, the last Peer who was so hanged by means of a silken cord was a forebear of my noble friend Lord Ferrers. He was hanged, I think, about 1760. I know a little about the case in that the Member sitting on the Woolsack at that time was Lord Keeper Henley, who sat on the Woolsack as a commoner, as it is possible to do, but he had to be noble so as to preside over that trial. He then became the first Lord Henley of a different creation. I am descended from a daughter of that line. The trial was a sorry affair in that Lord Ferrers, who had murdered his manservant, decided to defend himself and he defended himself on the grounds of his insanity. The problem with a defence of that sort is that if you do very well quite obviously you are not insane and you go down, and if you do badly you go down anyway. I have to say that the poor earlier Lord Ferrers did go down and was hanged with a silken cord.

I do not know whether the noble Lord, Lord Williams, is briefed on these matters and can add any further enlightenment, particularly as regards the right which we may still have to be hanged by means of a silken cord. If he could help us I should be very grateful; but for the reasons I gave earlier, although I am deeply sympathetic to the aims of the amendment, I do not think that this evening is the right time to address these matters.

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