THE POLITICS OF ABOLITION

History is likely to record that the abolition of the death penalty for murder in 1965 was brought about, not so much as a result of any perceived inefficiency in the ultimate penal sanction as a means of keeping down the homicide rate, but by a growing moral revulsion at the practice of hanging a human being by the deliberate act of Government.

While the degrading influence of the trappings of the gallows was met with fierce crusading from the nineteenth-century penal reform­ers, few countenanced abandoning the ultimate sanction for the ultimate crime. Not until a young Quaker, E Roy Calvert, wrote the first really dispassionate and scientific 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 atmosphere of par­liamentary corridors, over coffee cups in clubs and in public halls before largely converted audiences.

Accompanied by such moralistic instincts of a civilised society committed to a welfare state not to put its murderers to death, a tril­ogy of murder convictions and executions in Britain in the 1950s heralded the nascent desire to rid the justice system of miscarriages and a failure to take account of strong mitigating circumstances, both of which had enhanced moral revulsion.

Timothy Evans (March 1950) was the first of the three suspicious cases of wrongful conviction, recognised 50 years later as perhaps the most notorious miscarriage of justice in contemporary legal his­tory. His neighbour at the infamous house in Rillington Place (a street now appropriately demolished from the area of West London) was former part-time policeman John Christie, a serial killer who was the main prosecution witness against Evans. Three years later he confessed to having killed a number of women, including Evans’ wife (but not their child). The notion that an innocent man may have been obliterated by the hangman percolated the public con­science.

Derek Bentley’s conviction in 1953 for murdering a police officer created its own dubiety. At the time of his co-accused fatally shoot­ing a police officer, Bentley was in the physical custody of another policeman. If there was a query about his criminal responsibility, there was little quarrel at the time that the Home Secretary acted wrongly in ‘allowing the law to take its course’. Bentley’s convic­tion was later shown to be demonstrably flawed when, in a refer­ence in 1997 from the Criminal Cases Review Commission, the Court of Appeal (Criminal Division), under the presidency of Lord Bingham of Cornhill (then Lord Chief Justice) comprehensively and convincingly quashed the conviction as an unfair trial in an impres­sive judgment that enforced today’s standards of criminal justice on the lower standards of the past.

Ruth Ellis’s conviction in 1955 touched the emotional aspects of public opinion. Her crime passionelle of a former lover went virtu­ally undefended at her trial. Her supposed wish to die did not detract from the public’s hearty dislike that a woman should suffer the hangman’s noose. The British public in the 1950s was thus beginning to accept that the death penalty by hanging (or any less inhumane method of execution) was at most ‘a cruel necessity’.^[106]

These cases undoubtedly emboldened the abolitionists in the national campaign for the abolition of the death penalty that had been formed in the 1930s, and revitalised after the Second World War when the House of Commons had voted in favour of abolition during the passage of the Criminal Justice Bill in 1947, only to be severely defeated in the House of Lords.^[107] Undoubtedly, the three miscarriages of justice in the 1950s also aroused public opinion. The publication of the Royal Commission’s report in 1953 impliedly favouring the ending of capital punishment as well as the composi­tion of MPs after the 1951 General Election combined to produce the necessary impetus to reform.

If these various factors presented political imponderables, what precisely were the grounds upon which the political and legislative process ran its course up to 1965? Had the Labour Party not lost power in 1951, it is very likely that abolition would have come a decade earlier than it did. Although the parliamentary Labour Party had not committed itself electorally to abolition, the Commons vote in 1948 in favour of suspending capital punishment for a period of five years indicated ultimate acceptance of the inevitable, although it would have meant a tussle with the House of Lords, which was at that time obdurately hostile to change, to a large extent influenced by the pronouncement from the Lord Chief Justice, Lord Goddard, that all the High Court judges wished to keep the ultimate deterrent for murder. (Subsequently it turned out that a sizeable minority was beginning to favour abolition, a fact to which Lord Goddard had to admit.

By long convention, Members of Parliament have invariably been entitled to vote on any issue involving the death penalty according to their individual conscience. Unwhipped, the membership of the House of Commons in the post-war period favoured abolition, to some extent stimulated by the report of the Royal Commission on Capital Punishment (the Gowers Commission) in 1953. It is inter­esting to observe that the convention has always been adhered to. When the Council of Europe passed the Sixth Protocol to the European Convention on Human Rights in 1986, the UK declined to ratify the Convention, on the ground that the question was not for Her Majesty’s Government but could be enacted only by the indi­vidual votes of MPs. Again, in 1998 when the Government was ‘bringing human rights home’ in the form of the Human Rights Act 1998, the Sixth Protocol was originally omitted from the Schedule to the Act on the same ground. But individual members ultimately persuaded the Foreign Secretary, Jack Straw, to yield to the demands of Labour MPs who were devoted abolitionists. With individual voting the order of the day, final, complete abolition was bound to arrive. In accordance with the convention on the free vote of MPs, the Bill in 1965 to abolish capital punishment for murder, as well as that abolishing it for all remaining crimes in 1998, were strictly pri­vate members’ Bills or Amendments, although (certainly in the case of the 1965 Act) orchestrated by the Labour administration.

By the mid-1950s there was evident support from an actual major­ity in the House of Commons for total abolition. For a century before that there had been successive Parliamentary assaults on the death penalty. As far back as 1866, only four years after the abolition of the death penalty for a wide range of criminal offences in 1861, a Select Committee of 12 MPs considered its abolition for the offence of murder; five members of the Committee voted for abolition.

In 1930 a Select Committee of the House of Commons reported in favour of suspension of the death penalty for murder in cases tried by civil courts for an experimental period of five years. (Six mem­bers of the Committee of 15 withdrew from the Committee; the rec­ommendations were those of the majority of nine: seven Labour and two Liberal.) The report was never debated in Parliament. In the immediate aftermath of the Second World War there were no fewer than three attempts to provide for suspension. In 1948 the House of Commons did vote for a five-year suspension, but (as mentioned previously) this provision was defeated in the Lords. In 1955 a similar motion was defeated in the Commons by 245 votes to 214. In February 1956 the House of Commons under a Conservative administration passed a resolution calling for the abolition or sus­pension of the death penalty by a vote of 292 to 246.

This resolution marked a watershed in the history of the English treatment of the crime of murder and its single penalty. Convinced that public opinion did not support abolition (a Gallup poll of 1953 disclosed 73 per cent in favour of the death penalty), the Tory Government was content to rely upon a hostile House of Lords to curb the reformist zeal of opposition MPs and others. Yet it sensed that there was public disquiet about the inequality of treatment as between those convicted murderers who were reprieved and those who did not escape the hangman’s noose. The search for categories of murder had long since occupied the legal profession and politi­cians.

Our examination of the law and procedure of other countries lends no support to the view that the objections to degrees of murder... are only theoretical and academic and may be disproved by the practical experi­ence of those countries where such a system is in force. We began our inquiry with the determination to make every effort to see whether we could succeed where so many have failed, and discover some effective method of classifying murders so as to confine the death penalty to the more heinous. Where degrees of murder have been introduced, they have undoubtedly resulted in the limiting of the application of capital punishment and for this reason they have commended themselves to public opinion, but in our view their advantages are far outweighed by the theoretical and practical objections which we have described. We conclude with regret that the object of our quest is chimerical and must be abandoned.^[108]

The Government’s response was to enact the Homicide Act 1957, which followed the Scottish experience by introducing the new partial defence of diminished responsibility, but directly rejected the view of the Gowers Commission as regards creating a category of ‘capital murder’. The 1957 Act eliminated the death penalty except for five categories of murder. Capital murder was retained for murder committed in the course or furtherance of theft; murders by shooting or causing an explosion; murder of a police officer act­ing in the course of his duties; murder in the course of or for the purpose of preventing lawful arrest or of effecting or assisting in an escape from legal custody; and murder of a prison officer by a pris­oner. Double (or repeated) murders were added as a sixth form of capital murder. All other kinds of murder became non-capital, auto­matically attracting the sentence of life imprisonment.

The effect of the Homicide Act 1957 was instantly counter­productive and proved to be a potent reason for many parliamentar­ians becoming, even reluctantly, abolitionist. But I venture to think that the Act was misunderstood in its governmental and hence legislative purpose. It was widely stated that the Act in defiance of the Gowers Commission was a failed attempt to distinguish between ‘heinous’ killing and ‘less serious’ (mostly domestic violence) kill­ing. For example, murder by poisoning was always thought to be the most premeditated and quintessentially wicked (and as such, traditionally prosecuted in court by the Attorney-General in per­son). Yet in 1957 it became a case of non-capital murder. But the raison d'etre of the five categories in fact was not to single out the most serious of murders. The particular classes chosen were not an attempt to distinguish between murders according to heinousness and horrendous nature, or even their moral depravity. The five cat­egories were designed to opt for the death penalty for those ‘rational’ types of murder for which its deterrent effect was thought to be the more powerful. As is now tolerably clear, however, it was impossi­ble to determine whether capital punishment was a unique deter­rent.

When the legislation to abolish first emerged in the form of a Bill, it aimed exclusively at ridding the country of the death penalty. The instinctive and appropriate substitute was life imprisonment - a kind of civil death - as understood within the Home Office regime for lifers. Apart from the significant change from ‘death’ to ‘life’, which was definitive and symbolic, the 1965 Act was implicitly unconcerned with the question, how long is life? The prime instiga­tors of the Act - led notably by the Lord Chancellor, Lord Gardiner (a lifelong protagonist among the abolitionists) - were intent at all costs to get rid of the death penalty. They were more than content to let the sentence of life imprisonment follow the established pattern of executive release from prison. The Bill made no reference or allu­sion to the process of discharge, recall or parole, the latter becoming a feature of the penal system only in the Criminal Justice Act 1967. And then it was only an afterthought; there had been no intention within the Home Office to give up its power of granting release and alter the established practice. The Home Secretary of the day, Roy Jenkins, acceded, however, to a powerful lobby of penal reformers who were keen to regularise the early release of all prisoners, both ‘lifers’ and those serving determinate terms of imprisonment for all crimes. As a footnote, Roy Jenkins was insistent that the chairman­ship of the Parole Board should not be given to someone with a judicial qualification. Lord Hunt of Everest fame was an outstand­ing first (lay) chairman. Only in 2009 with the part-time appoint­ment of Sir David Latham (a retired Lord Justice of Appeal) was the tradition from 1967 finally broken. A review of the Parole Board is overdue.

There was not even an inclination generally to tamper with the existing process of a mandatory sentence, reflecting a uniform sentence for all convicted murderers. The refusal to contemplate perpetuating degrees of murder, especially after the debacle of the 1957 Act, was accompanied by an even greater reluctance to confer a discretion on the court as to the penalty in murder cases and, above all, the insistent opinion that such a discretion should not be imparted to a jury. Mr Justice Frankfurter of the US Supreme Court had given authoritative evidence to the Gowers Commission of the various American states, which presented then, as now, a crazy quilt pattern of sentencing which combined degrees of murder and the device of reposing in juries a discretion as to the penalty to be inflicted, except for certain cases where the death penalty was then (and until 1976) mandatory for first degree murder. The complexi­ties of that system are reflected in the exasperating array of case law from the Supreme Court of the United States in application of that country’s death penalty system.

The Gowers Commission had felt that the removal of the main evil of the law (a grotesque continuation of a solemn sentence of death, passed at the court of trial by a judge donning a black cap and intoning the death sentence, followed in at least half of the cases - by the 1950s it was even higher - by a reprieve via the Prerogative of Mercy) was needed to achieve a morally acceptable result. This clumsy process led the Gowers Commission to suggest tentatively that, if capital punishment were to continue for certain types of murder, the only solution might be to entrust the decision to the jury to determine the appropriate penalty. But that suggestion never attracted any real support in Britain, and the American expe­rience was happily rejected. Discretion to juries has never been considered expedient for determining punishment. In a debate in the House of Lords in 1954 on the scheme for ‘jury discretion’, all the legal members present condemned it as ‘completely unworka­ble’ and the Lord Chief Justice, Lord Goddard, said, ‘rather than take part in such a performance as that, I would resign the offices I hold, for I think it would be destructive of everything in British [sic] law’. If the language was predictable, it was still somewhat hyperbolic, affirming that sentencing was a judicial function of a discretionary nature - except, of course, for murder. ‘Jury discre­tion’ could never be a viable option. Indeed, the Bill in 1965 did not consider any option to the immediate alternative - another manda­tory penalty, a life sentence rather than death. Unlike the debate being vigorously undertaken in respect of those countries that still retain the death penalty, where the viable alternative penalty is fully aired, no such debate took place in 1965. The current debate internationally about capital punishment is increasingly focused on whether the sentence should be indeterminate or determinate and, if the former, whether it should be a parolable or - for some cases at least - a non-parolable life sentence (some countries have not accepted indeterminate sentences at all).

Thus, in abolishing the death penalty for murder, Parliament in 1965 left a piece of business unfinished. To transpose life for death made no significant difference to what constituted, in practice, the sentence of life imprisonment for the individual murderer.

Contrary to a popular and sedulously much-fostered myth over the last five decades, there never was a bargain, express or implied, that the retentionists would concede the ending of the death pen­alty as a quid pro quo for much longer periods of custody for ‘lifers’. Together with Professor Terence Morris, I have described elsewhere how this myth originated in the minds of contemporary Home Secretaries from Howard, through Straw and Blunkett to Charles Clarke and beyond. There is every indication that, far from any such political deal between the rival parties on the penalty for murder, there was a strong desire to transfer the executive power of sentenc­ing to a judicial function. Most significant (because the judges had to carry out the sentencing) was the change in judicial attitudes. At that time the judges were publicly silent outside the courtroom. Their private opinions were discoverable only much later.