MUCH, PERHAPS TOO much, for the sake of preserving any sensible restriction on information overload, saturated the public zone of instinctive attitudes towards retaining the death penalty for murder, which was finally abolished in 1965.
(At that time it was estimated that probably 80 per cent of the electorate favoured the ultimate penalty for murder. Today (2014) there are probably 65 per cent in favour.) A great deal of the debate in the modern movement towards abolition focused on the morals of hanging the guilty murderer; some feared the uncertainty of the conviction, and miscarriages of justice.
But overall there remained the rival claims of revenge, rehabilitation, the facility for remorse and the argument of the penalty’s deterrent effect. Matters of life and death were argued out in contemporary literature, the most significant of which was the completion of the script in October 1955 of Reflections on Hanging by Arthur Koestler, enhanced by the author’s personal experience of undergoing the threat of execution. The book was seen initially by the publisher Victor Gollancz, and a fellow campaigner of Gerald Gardiner, an outstanding Queen’s Counsel (and Lord Chancellor in the Labour administration that won the election of October 1964). Gardiner had written to Koestler: ‘I thought that I knew pretty well anything there was to be known on the subject, but I find that I have learned a lot from it.’ Gardiner worried that Koestler’s uninhibited attack on, among others, Her Majesty’s judges (notably the previous Lord Chief Justice, Lord Goddard) were too libellous for print, and pointed to passages that needed to be toned down. The ultimate publication pitchforked Koestler into the public campaign, but in November 1955 it was followed by the first mass rally of the National Campaign for the Abolition of Capital Punishment, which took place in Central Hall, Westminster. Koestler was on the platform but did not speak. He explained to his colleagues on the committee that ‘a foreign accent and a foreign name would be an added liability in a campaign basically directed at irrational, emotional prejudice’. Nevertheless, he was publicly acknowledged as the principal initiator of the campaign.Koestler’s book was serialised in five lengthy instalments in the Observer, ‘scoring a huge success with readers’, according to his biographer, Michael Scammell.1 That journalistic venture was only the first step towards Koestler’s undoubted entitlement to be acknowledged, by his authorship and subsequent purveying of the evidence on homicide, as the most influential proponent of abolition. That entitlement needs to be expounded by the events of the late 1950s until the General Election of October 1964, when public opinion for the first time became aware of the evidence of the relationship, in many cases, between the killer and victim of murder. The extent of the true relation between the parties to homicide had never been authoritatively assessed; it could only be conjectured. The evidence, imputed by Koestler and others, points strongly to some influence, even if only to retract some of the retentionists’ claims and to reduce the incidence of retentionism. The publicity of the campaign to abolish the death penalty in the early 1960s led to the revelation of some empirical evidence of the nature of homicidal events; hitherto, the debate had all been about moral issues.
Prior to the publication of Reflections on Hanging, the public had responded to individual murderers who suffered the death penalty, but suspicions of miscarriages of justice were episodic and infrequent (some of them were only acknowledged as such much later). A trilogy of cases in the 1950s - Timothy Evans (1950), Derek Bentley (1952) and Ruth Ellis (1953) aroused hostility to the criminal justice system that was accompanied by initial success in Parliament in the course of an amendment to the Criminal Justice Bill of 1947; that had led to the establishment of a Royal Commission on Capital Punishment to determine the means (if any) of limiting the incidence of the death penalty for murder. It reported in 1953 that it was chimerical for any system to differentiate between unlawful killings, implying that the only way forward was abolition.
The movement towards such a reform was interrupted by the loss of governmental power by Labour, and the passing of the much- disliked Homicide Act 1957.[50] [51] The legislation quelled any further parliamentary action; the campaign continued to lobby without immediate success from the persistent activities of penal reformers. The outstanding evidence stemmed directly from Arthur Koestler’s authorship demonstrating existing patterns of murder.To revert to the events post-November 1955, the rift between Gollancz and Koestler - two hugely energetic figures with oversized egos that dominated any relationship - was complete. Effectively, it drove Koestler to approach David Astor (a totally different, emollient man and a brilliant editor) with a view to perpetuating the idea of painting a vivid picture of the homicidal event, the relationship of the sufferings of victims, often instigated by the victim’s killer, to any provocative and other controversial behaviour. The tone of the article was set in a preface that recalled Koestler’s memories of prisoners executed in Seville. He wrote:
These three months left me with a vested interest in capital punishment - rather like ‘half-hanged Smith’, who was cut down after fifteen minutes and lived on. Each time a man’s or a woman’s neck is broken in this peaceful country, memory starts to fester like a badly healed wound.
The temporary victory in the Criminal Justice Bill in favour of abolition in 1947 nearly dissolved the campaign, but with the inevitable opposition to the Commons debate in the House of Lords, and the impending general election, it was rescued by Koestler resigning, with the footnote that he would continue to ‘write and work for abolition’ but would not attend meetings. Koestler only wrote the occasional article under the name of ‘Vigil’; his last column was published as a pamphlet entitled Patterns of Murder. Until then, the National Campaign continued to meet under the auspices of Cannon John Collins, then the Dean of St Paul’s Cathedral, together with his organisation called Christian Action, which was actively engaged in opposition to the apartheid regime in South Africa. The committee met at the Dean’s official residence at Amen Court.
David Astor was a member of the committee, and when Koestler discontinued his articles for the Observer, Terence Morris, an outstanding criminologist at the London School of Economics, and I (then the Observers legal correspondent) were asked to take on the function of ‘Vigil’. We did so, producing in 1961 a pamphlet called Murder in Microcosm, much in the same vein as Koestler’s earlier work. That led inevitably to a fuller, updated version of every case of aabout extensively elsewhere. See Morris and Blom-Cooper, The Penalty for murder: a Myth Exploded (1996) Crim LR 707. defendant who stood indicted with murder from March 1957 (the start of the Homicide Act 1957) until 1962, some 762 cases.
Each entry gave a pen-portrait of the victim and his accused killer, and gave information of the judicial proceedings. The hard detail revealed, unsurprisingly but unexpectedly to a thoughtless public, that in about 70 per cent of all homicides the parties had been related to each other before the homicidal event, and in an overwhelming number of cases the killing was the product of domestic violence. Rarely was the victim a total stranger to the killer; the main exception was the result of the abuse of children in the early days after their birth. The public was made aware that murder was anything but the result of the violence of young robbers on elderly women in post offices. Killer and victim were often related, sometimes closely.
The volume of 762 cases was published as A Calendar of Murder in 1964, and was prominently referred to in the course of the debates on the Murder (Abolition of Death Penalty) Bill during 1964/65. To demonstrate the kind of information, gleaned from court records and newspaper cuttings, studied at the British Library’s store at Colindale, I produce an extract from A Calendar of Murder:[52]
Accused Victim
Joseph Martin Pamela Masterson
Martin (27), unemployed, visited the house where his mistress (22) lived, but, finding her to be not at home, went to bed with her friend who lived in the same house.
In the morning, while showing her the working of a Luger pistol which he was carrying with him (because ‘there was someone looking for him with a gun’), the gun went off and Mrs Masterson was killed instantly.Martin was acquitted at the Old Bailey, 24.5.1960, of capital murder but convicted of manslaughter (i.e. accident with gross negligence). He was sentenced to 6 years’ imprisonment.
* * *
Lilian Medd Denise Kay Medd (4)
Michael Medd (1)
Mrs Medd (28), a widow, who was in part-time employment, became very depressed and worried about her financial prospects and about the prospects for the children, so she turned on the gas tap in the room in which they were all sleeping. Mrs Medd was found unconscious but survived.
Defence pleaded diminished responsibility on account of acute melancholia and Mrs Medd was convicted of manslaughter under Section 2 at York Assizes, 12.2.1960. Sentencing her to 2 years' imprisonment, Mr Justice Salmon said: ‘This is one of the most terribly sad cases which I have ever had to deal with.'
* * *
Philip Morris Matilda Morris
Morris (59), an unemployed sheet metal worker, was found guilty, on grounds of diminished responsibility, of the manslaughter of his invalid wife (72) - a ‘mercy killing'; he was sentenced to life imprisonment by Mr Justice Austin Jones at Glamorgan Assizes, 6.12.1960. During the trial two doctors gave evidence that Morris was suffering from depression superimposed on a chronic anxiety state. Mr Justice Austin Jones refused to allow the prosecution to raise the issue of insanity although the prosecution's medical evidence showed an even greater degree of mental abnormality than the defence doctors (cf. Price 1962). The Court of Criminal Appeal, [1961] 2 QB 237 at pp 240-1, had this point argued but declined to rule on the question as not being directly in issue. It upheld the life sentence because the provisions of the Mental Health Act gave a wide discretion to the judge. But it laid down that, normally where punishment is not intended, it was better to make a hospital order and not leave it to the Secretary of State to transfer the person from prison to a mental institution (see Duke (1961)).
* * *
James Lawrence Nash, steeplejack Selwyn Keith Cooney
James Alexander Read, unemployed
Joseph Henry Pyle, street trader
Nash (28), Read (28) and Pyle (25) were accused of murdering Soho clubowner Selwyn Cooney (31) in the Pen Club in Stepney. Cooney was shot as an act of revenge during a gang feud, and all three faced charges of capital murder, though it was alleged that it was Nash who had carried and used the revolver.
At their trial at the Old Bailey, there was evidence that witnesses were being intimidated and others were remaining in hiding, and that jurors were being tampered with. Mr Justice Gorman stopped the trial and dismissed the jury.
At the re-trial before Mr Justice Diplock, objections were made by counsel to 9 of the 12 people called for the jury before the prosecution announced that it was offering no evidence against Read and Pyle on the capital murder charge; they were formally found not guilty. During Nash's trial, there were further intimations of false evidence and witnesses disappearing before Nash was acquitted of capital murder, 4.5.1960, owing to lack of sufficient evidence, the principal prosecution witness having deliberately failed to attend the trial. All three were then tried on charges of causing actual bodily harm to Cooney. Nash was sentenced to 5 years' imprisonment, and Read and Pyle to lesser terms.
[Authors' note: The events surrounding this trial suggest there may be times when the power of the criminal underworld defeats the ends of justice. It might be argued that where Crown witnesses, themselves embroiled in associated criminal activities, are likely to be intimidated, there is a case for key witnesses also being placed under automatic police protection or house arrest pending the trial.]