BRITAIN AND THE DEATH PENALTY. A. L. HARGROVE.

The issue, in December, 1930, of the Report of the Select Committee of the House of Commons on Capital Punishment,l will, no doubt, be regarded in days to come as one of the final stages in Britain’s belated journey towards the abolition of the death penalty. Had the late Home Secretary been more willing to act upon his declared convictions and the policy of his party, this reform would probably by now be an accomplished fact.

In the last issue of The Ho~mrd Jotlmal, the evidence of most of the witnesses before the Committee was briefly summarised and reference made to the serious inaccuracies contained in the Home Oflice Memorandum. Now that the Select Committee has reported, it is possible to give a brief survey of the work of the Committee and to comment without breach of parliamentary privilege, upon the evidence.

Rtxders of this Journal will recall the appointment of the Select Com- mittee in December, 1929, following a debate on Capital Punishment in the House of Commons. Its terms of reference were:-

‘‘ To consider the question of Capital Punishment in cases tried by civil courts in time of peace and to report whether another penalty and, if so, of what nature, would be substituted for the sentence of death in such cases where that sentence is now prescribed by law.” The Committee heard evidence in public session from the end of

January, 1930, to the end of July, during which time, 27 public sessions were held, and 33 witnesses interrogated ; the question was exhaustively dealt with i n all its aspects and at the conclusion of the investigation there mil hardly have been much ground left uncovered.

To appreciate fully the nature of the enquiry and the evidence of individual witnesses, the volume of evidence itself should be studied.2 [ t s goo pages convey, far better than any review or analysis can do, the real issues before the Committee.

The first Lw public sessions were devoted to taking the evidence of otficial witnesses-Home O&ce officials and officials in the prison service. All these witnesses, to a greater or lesser extent, upheld the present system and none of them displayed-or so it seemed to at least one of “ the public ” present-an appreciation of fundamental ethical principles. Sir J o h n Anderson and Sir Ernley Blackwell, the two principal Home Office witnesses, revealed the working of the official mind, to which it is a matter of supreme iiiiportance that as things were in the beginning, so shall they ever be ! Some of their evidence also, as will be remembered, shewed striking or typical obtuseness, and the errors contained in the I lome Office Memorandum with regard to the position in other countries3

H.M. Stationery Office, 1/6. 2 Report from the Select Committee on Capital PuniJhment with Evidence (H.M.

See also The Deutb l’eealg E~quiry : The Evidence reviewed. Stationery Office), 2216. Roy Calvert (Gollancz), 216 and 316. Howard Jotmul, 1930, pp. 2-4.

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were so grave that any speaker making them on a public platform would forfeit his right to be considered as a competent authority.

All the official witnesses who appeared during this early stage of the cnquiry-even those who admitted the desirability of some modification of the present system-were troubled by fears as to the possible effects of abolition and especially by the prospect that burglars would take to carrying arms. Dark hints of lynch law and increases in wife murder were freely expressed. Considerable press publicity was given to these fore- bodings, and the supporters of abolition were becoming a little appre- hensive of the effect that this evidence appeared to be having on the Committee and on the public. Then, on March 26th, Lord Buckmaster gave evidence, and the atmosphere changed. For the first time the Com- mittee had before it a man whose testimony was based not on personal prejudice, not even chiefly on actual experience, but on the rockbed of 13 rinciple.

Lord Buckmaster told the Committee that his faith in the sanctity of human life ruled out the Death Penalty as inadmissible in a Christian community, and at the same time he challenged the supporters of Capital Punishment to point to the experience of countries which had abolished it and show whether murders had increased. It was obvious that a deep impression was made on the Committee and the enquiry thence- forward was pursued in a wholly different atmosphere.

Mr. Roy Calvert, who appeared on behalf of the National Council for the Aboiition of the Death Penalty, was the next witness. He was examined on the Memorandum submitted by that body, and his examination occupied three sessions. Mr. Calvert was not lightly treated and was subjected to a volley of questions, but his exhaustive knowledge of the subject (greater perhaps than that of any other witness), his frank facing of difiicult points, his integrity of purpose and his balanced judgment, carried him through triumphantly, and if ever a propagandist body found its case vindicated at every point, it was the National Council for the Abolition of the Death Penalty on these three memorable days. The fact that the Select Committee was prepared to give so much time to Mr. Calvert’s evidence, is sufficient commentary on the impression which it made upon the members.

The Select Committee then entered upon an all-important phase of irs work-the examination of foreign witnesses. I t will .be remembered that one of the main reasons given for the appointment of the Com- mittee was that it should investigate the experience of the various abolition countries. As Sir Herbert Samuel said in the parliamentary debate which I d to its appointment :

We have not got experience in this country. There has, however, been an erperience of twenty or thirty years in many other countries very like our own in the character of their population. . . . I should like to see all the facts with regard to this matter most carefully investigated.”

The Select Committee gave these words the attention they deserved, and we have to thank them for the wealth of precious information which their labours have given us. In response to invitations through the Foreign Office to the various Governments concerned, some of the most

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distinguished jurists and prison administrators in Europe appeared before the Committee to speak of the experience of their own countries, and their authoritative testimony in regard to Belgium, Holland, Norway, Sweden, Denmark, Switzerland and Italy makes most instructive reading in the Evidence.

Here we had Facts-indisputable facts. Witness after witness testified out of his country's own experience, that abolition did not result in an increase of murder, that burglars did not take to carrying arms, that lynch law had n o t been substituted for the gallows. Such testimony was given inde- pendently, officially, and yet with one voice. The legal adviser to the Italian Embassy stated that the Death Penalty was shortly to be restored, and i t might have seemed that in Italy, at least, abolition had been tried and found wanting. But in answer to a question, he asserted cate- gorically that there had been no increase but a decrease in murder during the 40 years of abolition. The reason for restoration was that it appeared anomalous to execute political ofTenders under the Fascist regime and to leave alive persons who had committed civil murders. Hence the restoration of the penalty for both types of offence.

As one who attended the public sessions of the Enquiry, the present writer has little doubt that the official evidence from abolitionist countries definitely clinched the matter, as it was bound to do, as far as the majority on the Select Committee was concerned. Lord Buckmaster and Mr. Calvert had challenged the whole position of the supporters of the Death Penalty, and the foreign witnesses confirmed in every particular, from the experience of their own countries, the abolitionist case which these two witnesses had advanced.

There can be no doubt that Mr. Pritt, K.C., for the Howard League, greatly impressed the Select Coninlittee in regard to the danger of miscarriages of justice.

I see every day, in civil cases, decisions arrived at sometimes in favour of my clients and sometimes against my clients, and so far as I can exercise any judgment about them, perhaps one-third are wrong. 1 have seen a certain number of criminal cases tried, and 1 think some of those decisions have been wrong. We maintain very large and expensive appellate tribunals, because its decisions are wrong ; they go to the Appellate Court, and the Appellate Court sometimes upsets them, sometimes wrongly and sometimes rightly, and some- times affirms them, sometimes rightly and sometimes wrongly, and I regard it as impossible to believe that the only court that never makes a mistake is the court where a dozen men are placed together in a box, who have never seen each other before, presided over by a Judge who may never have tried criminal cases before sitting down there, and, to the best of their ability, trying to sort out the evidence on one side and the other, and trying to arrive at the truth of a very difficult story about which, ex bpothesi, someone is not telling the truth.

" It would be very painful, perhaps, to repeat names, but 1 know of two or three cases about which I felt the very gravest anxiety, and those men are now dead." The Archbishop of York's evidence naturally lent great weight

to the case for abolition, and the quiet dignity and outspokenness of the

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Here again the case for abolition stood foursquare.

Other witnesses also gave valuable evidence.

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Rev. S. R. Glanville Murray, a retired Prison Chaplain, made his examination one of the most inspiring parts of the whole enquiry. Mr. Alexander Paterson (Prison Commissioner for England and Wales) impressed the Committee with his suggestion that six out of seven, instead of three out of seven, convicted murderers should in future be reprieved, and General Dudgeon, Governor of Edinburgh Prison, though not an abolitionist, helped the cause considerably by his outspoken comments on the horror of the execution shed.

After the abolition case had been put forward, the supporters of the Death Penalty were clearly on the defensive. Any witness, whatever his views on the main question, who had suggestions to make was welcomed by the Committee, but the officials or others who merely wanted to bless the .r tcl t t /s p o and who failed to recognise that there was a real problem to be faced or a challenge to be met, certainly did not receive such attention as the earlier supporters of Capital Punishment who gave evidence.

11 word should be said about the Committee’s chairman, the Rev. ]allies Barr, upon whom devolved much of the labour connected with it. Throughout the public sessions, his wise and kindly guidance, his genial humour and his impartiality (despite strong personal conviction), were of inestimable help in setting witnesses at ease and in arriving at a true con- ception of the respective merits of “ pros ” and “ cons.” In view of the LI nfair comments which have been made on account of subsequent events, we are glad of this opportunity of acknowledging the debt which we believe the Committee owes to Mr. Barr. During the many hours we spent at the enquiry we never once detected the slightest departure from a position of strict impartiality in his examination of any witness, and Mr. Barr had s o obviously mastered the subject that he was frequently of service in clarifying and drawing out the exact meaning of the witness.

The Select Committee finished taking evidence in July, 1730, and its report was presented on the I > th of the following December. The Report is one of the most readable and attractive Blue Books which have been placed before the public for a long time. So, free, indeed, is it from ponderous phrases and the cast of thought so dear to the official mind, that i t at once produced a howl of derision from the less responsible press. ‘‘ A hundred pages of sentimental rhetoric on the horror of taking human life,” said one journalistic critic. “ Mr. Barr and his colleagues have given way to sentiment, and even worse, to poetry. They quote Shakespeare,” said another (carried away by the virtuous indignation of the “ practical ” man to whom “poetry ” and “ Shakespeare ” are but moonshine and niidsunitner madness. Incidentally the only quotation from Shakespeare we have been able to find in the report was a short passage in support of Capital Punishment !). On the other hand the support which the Com- mittee’s recommendations received in the more responsible organs of the press was widespread.

The Report devotes considerable space to a full and interesting survey of the history of the subject, particularly of the position in England a century ago, and a third of the Report consists of a careful statement of the exact position in the various abolition countries. The difficult question of the gradation of murder is examined at length, and there is an informative section on insanity. We could have wished that on some aspects of the Capital Punishment question, the Committee had been more decisive.

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They took a good deal of evidence about the effect of executions upon the prison staff and upon other prisoners and about the demoralising effect of press publicity, yet on none of these points does the Committee express any definite opinion though the evidence certainly justified them in doing so. The Report also summarises the conflicting evidence as to whether juries acquit more easily because of capital punishment, but again expresses no conclusion. O n the main question of deterrence, however, in all its various aspects, the Select Committee is quite definite. It dis- misses the alarmist statements made by supporters of capital punishment, by reference to past history and to the experience of abolition countries.

The actual recommendations of the Committee are by this time probably familiar to most readers of The Howard Jozlmal, but for the sake of completeness it may be well to recall them.

First there are fou; '' Conditional Recommendations " evidently intended to provide a half-way house between abolition and the maintenance of thc .r/a&s quo. The most interesting is the fourth recommendation, which rcgisters a definite rejection of the idea of legal grading in favour of an increase in the exercise of the Prerogative.

( I ) That the McNaughton rules on the subject of Insanity should be revised, so as to give fuller scope to general considerations, and to extend the area of criminal irresponsibility in the case of the mentally defective, and of those who labour under some distinct form of Insanity.

( 2 ) That the Death Penalty should still, in law apply to women on the same terms on which it applies to men; and that in this respect the Secretary of State for Home Affairs and the Secretary for Scotland, in tendering advice as to the exercise of the Royal Prerogative of Mercy, should continue to take each case on its merits.

( 3 ) That inasmuch as 2 1 is the age when full civil responsibility is assumed, it should also be the age below which no one should be sentenced to death.

(4) That there might be a still larger exercise of the Royal Prerogative and a raising of the line that has come through precedent to inark the limit of its application; and that such a raising of the line could be effected through a Resolution of the House of Commons.

'The Committee would, however, go much further than this, and the following are the " Definite Recommendations " which they ask the House of Commons to accept :-

( I ) That a Bill be introduced and passed into law during the present Session, providing for the abolition of the death penal0 for an experimental period of jive yearJ. in cases tried by Civil Courts in time of peace.

(2) That meantime and forthwith, a Resolution be passed by the House of Commons declaring that the Secretary of State for Home Affairs, and the Secretary of State for Scotland, in tendering advice as to the exercise of the Royal Prerogative of Mercy, should recommend in each case that the Death Penalty should be commuted.

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( 3 ) Ln regard to the penalty that should be substituted for the Sentence of Death in the cases referred, we recommend that it be the Penalty now attached to reprieved murderers, interpreted and administered in the same way as at present.

hluch could be said about the precise form of these recommendations and the constitutional problem which they raise. If we do not enter into such a discussion it is not only because we have no fault to find with the recommendations but also because in our view the precise methods adopted by Parliament in abolishing the Death Penalty must necessarily be left to the House of Commons. The important thing is to break the bad habit of putting people to death in the name of the law. If Parliament prefers to abolish the Death Penalty by a course other than that suggested by the Committee we frankly do not mind. We are only concerned that Parliament should carry out the spirit of the Select Committee’s recommendations without delay.

It is a matter for deep regret that the issue of the Select Committee’s report was accompanied by one of those Parliamentary “ scenes ” which may appear important to the newspaper reading public, but to those who know something of the political game are realised to be merely childish. The Report of the Committee was not unanimous, and of its fifteen members, the six who could not accept it, instead of taking the obvious and common-sense step of preparing a statement of their views for in- clusion in the proceedings, neglected to do so until it was too late and then said they had not had the opportunity and walked out. Whether the incident arose from party zeal or lost opportunity we do not quitc know. But we are certain that much more of the blame for it rests upon the minority than upon the rest of the Committee, and we are much more concerned with the facts elicited by the enquiry, which proved the abolition case, than with any personal difficulties among the Committee themselves. i l s for the Report not being unanimous, we hardly expected it to be. The Criminal Law has never waited for unanimity for its reform.

So ends one of the most important battles in the fight for abolition. The next must be in Parliament, and whatever Parliament decides to do, the position with regard to the whole question has undergone a complete change. Capital Punishment is now on the defensive and its abolition only a question of time, and not in our view, a long time either.

“ There will come,” says the Report, “ through the carrying into law of the proposals we are about to make, an ever-increasing security and an ever-increasing respect for human life. Humanity and security, indeed, will walk hand in hand. And as it is the more humane spirit in our people that makes a more humane penal code now possible, so, on the other hand, i n humanising our punishments, we will yet further humanise our people. O n the one side, and on the other, humanity will beget humanity, as nobleness enkindleth nobleness.

‘‘ Year by year, the death penalty has been withdrawing itselt from the public gaze. The death bell is no longer tolled ; the black flag is no longer raised. If we take away the scaffold as well, i t is because we feel that it is not needed in this new day of social re-building.”