3
184 THE MODERN LAW REVIEW VOL. 29 the roll-over provisions. The last category enables the con- sideration derived from the disposal of business assets used for trade purposes (other than dealing in land or land development) to be used to replace those assets, postponing any charge to tax to the final disposal, but only with regard to land or buildings, fixed plant or machinery, ships, aircraft and goodwill. These provisions apply to the destruction of an asset within the latter categories. The real complications of the new tax exist in the computation of chargeable gains. For instance, the cost of acquisition including the various costs of permanent enhancement, interim expenditure and ultimate disposal have to be ascertained; the pool provisions relating to the purchase and sale of blocks of quoted securities and unquoted shares whose market value must be arrived at, are dificult to interpret. The basic rule is that only the gain which has accrued since April 7, 1985, is charged as at the disposal. The problems involved affect the accountant rather than the taxpayer’s lawyer. The task of giving specsc advice to a client with capital assets is likely to be onerous. LEONARD LAZAR. MURDER (ABOLITION OF DEATH PENALTY) ACT 1985 THE successful campaign to abolish the death penalty for murder in Britain has been achieved in a comparatively short period of time by no more than a handful of ardent penal reformers, pytinncious in their lobbying and propaganda, in the face of majority opinion favouring retention of an admittedly barbaric but, to that majority, necessary penal instrument. If the final debates were protracted- Mr. Silverman’s private members’ Bill (with invaluable legislative time given by the Government) was introduced on December 4, 1904, and reached the Statute Book only on November 2,1985-the history of the campaign is a remarkable testament to British demo- cracy svhich can convert convinced minority opinion into progressive legislative action. The lcgislature which caters for such minority views deserves some commendation in the face of almost.continuous opprobrium for the clogging it generally undergoes nowadays from the political machine. While the degrading influence of the trappings of the gallows met with fierce crusading from the nineteenth-century penal reformers, none countenanced abandoning the ultimate sanction for the ultimate crime. Not until a young Quaker, E. Roy Calvert, wrote the first really dispassionate and scientiftc argument for total abolition in 1925 (Capital Punishment in the 20th Century) was the modern campaign brought on to the stage of public discussion. And even then the debate rarely touched the grass-roots of public opinion. The debate in fact was conducted in the rarefied atmo- sphere of parliamentary corridors, over coffee cups in the clubs and in the public halls before largely converted audiences. At no

Murder (Abolition of Death Penalty) Act 1965

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Page 1: Murder (Abolition of Death Penalty) Act 1965

184 THE MODERN LAW REVIEW VOL. 29

the “ roll-over ” provisions. The last category enables the con- sideration derived from the disposal of business assets used for trade purposes (other than dealing in land or land development) to be used to replace those assets, postponing any charge to tax to the final disposal, but only with regard to land or buildings, fixed plant or machinery, ships, aircraft and goodwill. These provisions apply to the destruction of an asset within the latter categories.

The real complications of the new tax exist in the computation of chargeable gains. For instance, the cost of acquisition including the various costs of permanent enhancement, interim expenditure and ultimate disposal have to be ascertained; the pool provisions relating to the purchase and sale of blocks of quoted securities and unquoted shares whose market value must be arrived at, are dificult to interpret. The basic rule is that only the gain which has accrued since April 7, 1985, is charged as a t the disposal. The problems involved affect the accountant rather than the taxpayer’s lawyer. The task of giving specsc advice to a client with capital assets is likely to be onerous.

LEONARD LAZAR.

MURDER (ABOLITION OF DEATH PENALTY) ACT 1985

THE successful campaign to abolish the death penalty for murder in Britain has been achieved in a comparatively short period of time by no more than a handful of ardent penal reformers, pytinncious in their lobbying and propaganda, in the face of majority opinion favouring retention of an admittedly barbaric but, to that majority, necessary penal instrument. If the final debates were protracted- Mr. Silverman’s private members’ Bill (with invaluable legislative time given by the Government) was introduced on December 4, 1904, and reached the Statute Book only on November 2,1985-the history of the campaign is a remarkable testament to British demo- cracy svhich can convert convinced minority opinion into progressive legislative action. The lcgislature which caters for such minority views deserves some commendation in the face of almost.continuous opprobrium for the clogging it generally undergoes nowadays from the political machine.

While the degrading influence of the trappings of the gallows met with fierce crusading from the nineteenth-century penal reformers, none countenanced abandoning the ultimate sanction for the ultimate crime. Not until a young Quaker, E. Roy Calvert, wrote the first really dispassionate and scientiftc argument for total abolition in 1925 (Capital Punishment in the 20th Century) was the modern campaign brought on to the stage of public discussion. And even then the debate rarely touched the grass-roots of public opinion. The debate in fact was conducted in the rarefied atmo- sphere of parliamentary corridors, over coffee cups in the clubs and in the public halls before largely converted audiences. At no

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MAR. 1966 STATUTE8 AND REPORTS OF COMMI’iTEES 185

time was a referendum advocated; had the public’s view been taken, many parliamentarians would have been most gravely embarrassed in fling through the abolitionist lobby.

The first chink in the retentionists’ armour came with the reference in 1949 to the Royal Commission on Capital Punishment with a remit to examine all aspects of the death penalty short of considering complete abolition. The retentionists, always sincere and mindful of the need to humanise the penal system, echoed the sentiments of Horace Greely who wrote in The New Yorker in 1886: ‘‘ And now, having fully expressed our conviction that the punish- ment of death is one which should sometimes be infiicted, we may add that we would have it resorted to as infrequently as possible. Nothing in our view, but cold-blooded, premeditated, unpalliated murder, can fully justify it. Let this continue to be visited with the sternest penalty.” But with unerringly logical argument Sir Ernest Gowers and his fellow-Commissioners said that any satisfactory division of murders into two or more degrees was chimerical. Their only alternative suggestion-to givc the jury the discretion to decide in each individual case whether there were extenuating circum- stances to warrant a lesser penalty than death-was rejected out of hand by the lawyers, who regarded such an innovatian not only as a usurpation of the judicial function, but also as a destruction of the dichotomy of the dual functions of judge and jury.

The defiance by the Conservative Government and the legislature in 1967 of the Royal Commission’s warning against attempts a t distinguishing between classes of murderers was accompanied by a crucial shift in the retentionists’ argument. Retribution, now regarded as smacking of an inhumane attitude to crime and its perpetrators, was abandoned in favour of the sole argument of deterrence. It was on this level of argument that the battle for and against the death penalty was lost and won. Whereas retribu- tion was a philosophical argument for the ultimate sanction-and unassailable on any other plane of argument-deterrence relied upon empirical data which, while hard to come by, was inexorably pointing to the irrelevance of the punishment in terms of the incidence of homicide. I n a quite remarkable maiden speech, reliving the tedium of hours of hoary argument on the subject- remarkable both for its lambent humanity and its fierce insistence on riveting attention to the known facts-Lord Reay had this to say on deterrence during the second reading of the Bill in the House of Lords on July 19, 1065,l

‘( . . . these postulates of deterrence made about those who are imagined to need it, by those who patently do not, are, as they have always been proved to be, a fiction-I suggest that the language in which lawyers and legislators still discuss

. human motivation is disproved and discredited; that the com- plexities behind human choice and impulse and decision-and

1 268 H.L. Deb., col. 607. VOL. 29 7

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186 THE MODERN LAW REVIEW VOL. 29

our ignotance about them-are quite insufficiently recognised in legislative debate.”

The duration of the life of the Act for five years “ unless Parliament by aflirmative resolutions of both Houses otherwise determines ” (8. 4) will a t least provide an opportunity for dissipat- ing some of our ignorance about the nature of homicide. Already three well-known figures in the field of criminology have announced a detailed research project, backed by access to official Ales, into the sociology and psychopathology of homicide, 1057-1967. Perhaps when Parliament comes to reconsider the topic in 1970 there will be a more enlightened discussion, and the opinions will be better informed.

In the meantime the public will watch anxiously for any perceptible shifts in the murder rate. Already some ugly homicides have led to petitions to constituency M.P.8 for the return of the death penalty. Some of the agitation might be reflected in a provision, written into the Act a t the instance of the Lord Chief Justice, which expressly permits the trial judge at the time of passing the mandatory life sentence to ‘‘ declarc the period which it [the Court] recommends to the Secretary of State as the minimum period which in its view should elapse before . . . the release of that person on licence . . .” (8. 1 (1)). On one or two occasions since the Act trial judges have recommended minimum periods of a teen years in prison. If such recommendations-which inciden- tally could have been made even before the 1905 Act gave its legislative blessing to the practice-satisfy public anxiety at too early release of murderers, the demand for the return of the hangman may to that extent be assuaged.

Given the hypothesis that the death penalty is an irrelevance to the rate of murder in society, few feeling persons will mourn the passing of the hangman’s noose, consigned finally to the museum along with the rack, the thumbscrew, and scold’s bridle. The dismantling of the gallows from our prisons may at least mark an historic event in penal reform, even i f the social significance of hanging was far outweighed by the moral heat that it engendered in public and private debate these last forty years.

L. J. BLOM-COOPER.

BACKING OF WARRANT8 (REPUBLIC OF IRELAND) ACT 1065

WITHIN a few months of each other the House of Lords, for highly technical reasons, and the Irish Supreme Court, for deep constitu- tional reasons, held that the regime established in the nineteenth century for the backing of English and Irish warrants had not survived the establishment of the independent Republic of Ireland.’

1 R . v. Melropolitan Polioe Commissioner, ex p . Hammond [1004] 2 All E.R. 772, noted (1004) 27 M.L.R. 721; The Stale (Quinn) v. Rgan and Otlrcrs, Irish Times, Augunt 1, 1904.