My father’s speech in December 1964 in the death penalty debate

I see that in the 1993 talk  I included in my last blog I said something about the storm that hit my father (and namesake) when he was Home Secretary (1962-64) from those who were impatient for change and very critical of what they thought to be inflexible attitudes rooted in the past.  I described him, controversially,  as ” a conspicuously honest and hard-working Home Secretary”.

This speech he made in the House of Commons on 21st December 1964, two months after he left office, reflects the enormous care he always took to get on top of all the arguments on a very difficult issue and his willingness to change his mind if and when he believed the evidence demanded it.  At the end I have added three tributes that were paid to him by political opponents later in the debate.  This speech was mentioned with approval by the writer of The Guardian obituary notice following his death 20 years later.

 

§ Mr. Henry Brooke (Hampstead) The one thing so far quite certain in this controversial debate is that the whole House will wish to join with me in congratulating the hon. and learned Member for Dulwich (Mr. S. C. Silkin) on his maiden speech. It will have been observed that he spoke without a note; yet he developed a continuous and logical argument. Above all, he spoke from the heart, which is the key to the heart of this House. I am sure that all hon. Members who heard him will feel that he has it in him to add further distinction to the distinguished Parliamentary name which he bears.

I am reluctant to take time in this debate when I know that there are other maiden speakers waiting and so many hon. Members who wish to speak; yet I think that the House probably would wish me, as the last Home Secretary, to express my views with all possible honesty and to give it the benefit, such as it is, of my experience in that capacity. [HON. MEMBERS: “Hear, hear.”] I should say that 10 years ago I firmly opposed the abolition of capital punishment. I did not like the Homicide Act. I was a junior Minister at the time. I did not take part in the debates, but I have recently come across copies of letters that I wrote to my constituents at that time, and I can see from them that I thought then that it was not a case for half measures. I started at the beginning of those discussions here with the firm belief that the death penalty should be retained for all murders, for much the same reasons as my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) has expressed this afternoon.

I went to the Home Office in 1962 and immediately asked for a report on the working of the Homicide Act, because one was aware of criticism; one was aware of anomalies in its working, and I was anxious to know whether it would be possible to improve the Act by any form of amendment that might be generally acceptable. The Act, as has been said, was designed to protect society by a special deterrent against carrying of lethal weapons or compounding theft with murder, and to protect public servants such as police officers and prison officers in carrying out their dangerous duties.

It produces anomalies at the sentencing stage. There can be no doubt of that. However sound the principles of the Act when they are tested against the criterion of motive, nevertheless it results in most heinous murders not being capable of attracting the death sentence whereas the law requires that the death sentence should be passed on others who have committed what is defined as capital murder, even though it would be almost universally felt that they had, in fact, been offences of a less grave kind.

I realised very soon in my study of the matter that any amendment, while it might remove some anomalies, would be virtually certain to create others, and I must advise the House that we can find no escape from our problem this afternoon by that road. It has not been suggested in the debate that the right solution might be to alter the demarcation line between capital and non-capital murder, nevertheless there are some outside who think that that is the right solution. I must say with such authority as I can command that it is useless to study further the possibility of improving the law of murder by retaining the distinction between capital and non-capital murder but drawing a different demarcation line.

I came to that conclusion, yet I found it difficult to believe that the 1957 Act would endure for ever. I could not help thinking that judges who have to pass sentence were bound to be aware of its anomalous results in a number of cases at that stage. I was aware of it from my experience in considering death-sentence cases that came to me. I gave all of them very long thought, yet every now and again it used to come over me that while I was having to determine whether persons sentenced to death for capital murder should be hanged or not, other murderers whose crimes were indeed worse than the one which I had under consideration at that moment were not liable to the death penalty. It did not even come to the Home Secretary in those cases to consider whether or not a reprieve should be recommended.

I had about a dozen cases of capital murder to consider in my time. I feel bound to say to my right hon. and learned Friend the Member for Epsom, whose speech I listened to with great interest and great respect, that by no means all of those murderers whose cases came to me because death sentences had been passed upon them were from the criminal classes. In six of them, I regret to say I could find no compassionate consideration that appeared to me to justify a recommendation for the Royal Prerogative of mercy. Taking the law as it is, I do not remember any of my decisions on capital murder cases which afterwards came under Parliamentary or public criticism.

An immense amount of care is taken in all these cases. In case I am the only ex-Home Secretary taking part in the debate, I wish to say that an immense amount of care is taken both departmentally in the Home Office and by the Home Secretary himself. My own practice was to read every word of the judge’s summing up and the proceedings on appeal, to study carefully a resumé of the whole case prepared for me in the Home Office, dealing also of course with any further information, medical or otherwise, that had become available since the trial, to ask questions on anything about which I was not completely satisfied, and also to consult the trial judge in case there was anything in mitigation to which he might wish to draw my attention.

As the House may know, there is in the Home Secretary’s room a frame containing a list of all the current death sentences. On the frame is written the Latin line:

“Nulla unquam de morte hominis cunctatio longa est.”

“No pause for thought is too long where the death of a man is concerned.”

My mind went to that when I had an experience which must have been given to few. As the House knows, I made it my business to visit personally as many prisons and Borstals as I could, and I managed in my time to visit nearly half of them. I shall never forget when one prison governor pointed out to me a man walking round in the exercise yard and I realised that that man would have suffered death a few days earlier had I not come to the conclusion that on balance there was sufficient justification to recommend a reprieve.

At the end of my time at the Home Office, I had become convinced that the case for retaining the death penalty was no longer strong enough to justify retention and that we were coming to the time when we ought to make trial of abolition. I am bound to say in all fairness to the hon. Member for Nelson and Colne (Mr. Sydney Silverman) that I do not think that I should have been led to that conclusion by his speech this afternoon. I had come to that firm conclusion before I left the Home Office as a result of two years’ experience, and I will try to explain to the House how it came about.

I hope that I shall carry the House with me in saying that the taking of life is so grave a matter that the onus of proof must be on those who very sincerely believe that the death penalty should be retained. I do not share the view that the taking of life by the State is contrary to moral principle. I think that if it can be shown that by retaining the death penalty for some or for all types of murder one is materially lessening the likelihood of innocent people suffering death by murder, then there is no ground of moral principle on which one should dismiss the death penalty as utterly out of date in the present age. But I believe that retention of the death penalty can be justified only on the ground that it is a unique deterrent. If it is a unique deterrent, there is justification for it. If it is not, I do not think that the case for it can be upheld.

Reference has been made, particularly by my right hon. and learned Friend the Member for Epsom, to the different types of murder which can be deterred by the death penalty. I have some difficulty in following this argument. I fully recognise that if causing death by shooting is capital murder, those who are going about a robbery may be less inclined to carry guns, but it seems to me that those who kill or think to kill by strangling or by stabbing or by poisoning may well give some thought to the maximum penalty that they will incur. I find it hard to believe that if the death sentence is not needed in all those forms which have been statutorily defined as non-capital murder, those forms which are defined as capital murder are in a quite distinctive category so far as the deterrent of the risk of death is concerned.

I am greatly influenced, and I was before I left the Home Office, because I called for the figures while I was there, by the figures set out in Table 6 at columns 247–8 of HANSARD of 11th December. In that table, all murders from January, 1952 to March, 1957, are analysed. Those were the years before the Homicide Act. It is ascertained that 14.4 per cent. of all those pre-Homicide Act murders would have been capital murder had the Homicide Act definition then been in effect.

It seems to me that, if the unique deterrent argument were valid, there should have been a substantial fall in that percentage after the Homicide Act. Until then, the deterrent for murders which were to be non-capital and murders which were capital was the same. From March, 1957 onwards, the special deterrent of the risk of death remained only for capital murders and it was removed for non-capital murders. Yet, although one would on grounds of logic, if the unique deterrent argument were sound, expect the percentage to fall materially, one finds, on examining the figures since 1957, that it has fallen hardly perceptibly. Before the Homicide Act, the percentages were 14.4 per cent. capital and 85.6 per cent. non-capital. Since the Homicide Act, the percentages have been 13.5 capital and 86.5 non-capital. I do not see in those figures support, still less proof, of the argument that the death penalty is a uniquely powerful deterrent.

To my mind, this is the best test which we can apply. The number of murders, both capital and non-capital, has increased since 1957, but it has increased in both categories rather less than the general increase in crimes of violence of all kinds.

I make no claim that these figures afford final proof. They do not. But they throw doubt on the proposition that potential murderers are so much more afraid of hanging than of very long terms of imprisonment that, in making their plans, they carefully distinguish between the different statutory types of murder. Because death is awful and final, many people tend to underrate the deterrent power of what one might call the self-destructive prospect of ten years’ loss of freedom, ten years’ separation from the free world to which we all wake up each morning.

 

  • Sir Rolf Dudley Williams (Exeter) I have been listening most carefully to what my right hon. Friend has said about the percentages. Is it not a fact that the number of non-capital murders has substantially increased while the number of capital murders has remained the same?
  • Mr. Brooke No. With respect, that is not the case. The figures are printed in HANSARD. The numbers of both have increased, but in both categories they have increased rather less than the increase in crimes of violence of all sorts. I pointed out, with reference to the percentage figures which I quoted, that there had been a slight but not very substantial difference in the trend as between capital and non-capital murder.

I know that these figures do not disprove the belief which is strongly held by many people that abolition would lead to more thieves carrying guns. There are many people, many friends of mine in the police service in this country, who hold that view, and I respect it. But I do not myself consider that a contingent uncertainty of this kind is enough justification by itself for retaining the death penalty when the figures which I have quoted undermine the case that it is a unique deterrent. It seems to me that the right course is to make clear beyond all doubt that murder will add materially to the term of imprisonment to be served for other crimes: in other words, that no one who is about the job of committing crime can commit murder in addition with impunity.

This brings us to the second problem which is near the heart of our debate today. What is to be the policy as regards exceptionally long terms of imprisonment and how are exceptionally long terms to be served? I remind the House that that last question is coming on us already, quite apart from the issue in this debate.

There is a common but mistaken idea that successive Home Secretaries have regarded nine years as the right term of imprisonment for a murderer to serve. But it must be borne in mind that no murderer sentenced under the 1957 Act to life imprisonment can yet have served as many as nine years. Those who, up to now, have been released on licence after nine years have been murderers who were originally sentenced to death before 1957 and have been reprieved by a Home Secretary normally because he detected some compassionate element in their case. My own view—I think it is right to add that this was also the view of my advisers while I was at the Home Office—has been that where there was no compassionate consideration in a murder case, and where the murderer was immune from the death penalty because of the provisions of the Homicide Act, a substantially longer sentence than nine years should be served. I hold this view strongly, and I believe that my predecessor, my right hon. Friend the Member for Saffron Walden (Mr. R. A. Butler), thought the same. I should certainly expect for some non-capital murders a term of imprisonment substantially longer than nine years.

Here we come up against the fact that our prison arrangements are generally geared to maximum terms of 9, 10 or 11 years. A 14-year sentence imposed by the court may be reduced, with full one-third remission, to 9⅓ years. It is believed, and I have no reason to doubt it, that few people have enough resolution to endure more than ten years’ confinement in normal prison conditions. The longer a man is kept in after that the less fit may he be ever to be released.

Unless we are to contemplate keeping some people in for the rest of their natural lives—we may have to do so, but it is a most terrible thing to contemplate in the case of a young man sentenced, perhaps, in his twenties—we must bear in mind that there comes a time beyond which most people will become less and less fit for return to the free world. Such a man may lose all his self-reliance and all the strength of will which will be needed for supporting himself as a free man in the free world outside.

At present, we seek, rightly I think, to combine deterrence in the sentence of the court with efforts to develop a prison régime which will produce in a man, at the end of his term of imprisonment, fitness to live free. This has been possible hitherto because of the scarcity of very long terms of imprisonment. Last year, when I read that an American had been released from prison after serving 45 years’ continuous sentence, I inquired in the Home Office how many prisoners we had in prison who had actually been serving for more than ten years on end. The answer was that, apart from mental cases in Broadmoor, who are in a category by themselves, there were only six, and one or two of those were there because they were on the mental borderline and it seemed that they could hardly safely be let out.

The number will now increase. Since the Homicide Act, between 30 and 40 murderers have been sentenced to life imprisonment each year. None of those will have served nine years before 1966, but many of them will surely be detained beyond ten years, so that, from 1967 onwards, the number of those in prison for more than ten years can be expected rapidly to increase, quite apart from anything we do by this Bill; and in any event, as has been mentioned, we have the cases of Blake. Vassall and the train robbers, all serving exceptionally long sentences.

The number serving these very long sentences will be little altered by whether we pass this Bill or not, but I am sure that, whichever side we take on the Bill, it is intensely important that whether the extra numbers are few or many, we give thought to the question what term and form of imprisonment they are to suffer.

I hope that the Government, if they do not take sides on this Bill, will at least express their views on the kind of matters which I have been mentioning. I hope that the Home Secretary will endorse the view that I have expressed, that should the Bill become law those who are rendered no longer liable to the death penalty will be expected to serve a substantially longer period of imprisonment than nine years, and that that will apply not only to any who may be saved from hanging by the Bill, but also to all others who were saved from it by the Homicide Act and in whose cases there have been no compassionate considerations such as would justify release on licence after nine years.

 

  • Mr. Joseph Hiley (Pudsey) Is my right hon. Friend aware that at Leeds Assizes the other day a man was sentenced for a second murder, actually committed in gaol? How would one consider a case like that when considering the term of imprisonment for a convicted murderer?

 

  • Mr. Brooke That is exactly the type of problem to which we have to address ourselves. Fortunately, the second murder is so rare that it is almost unknown. Though I would not for a moment dismiss the importance of my hon. Friend’s question, it is a strange and perhaps hopeful fact that in the whole of this century, I believe, there have been only two people convicted of murder who have served a long sentence of imprisonment and been released on licence and then have committed another murder. But what my hon. Friend has said reinforces my argument about the importance of hearing from the Home Secretary what is to be done about these people who, if the Bill goes through, will be freed from the risk of the death penalty.

Secondly, I hope the Government will make clear the arrangements that they propose for reviewing cases of men in prison for very long terms, so that there may be no clash or mutual suspicion between the Executive and the Judiciary. I know that this is a matter within the terms of the Royal Commission. I hope that the Home Secretary will be prepared at least to say that the Royal Commission’s recommendations, whatever they may be, on this will receive sympathetic consideration from the Government.

I do not believe that it would be right to encourage a judge to fix an unalterable term of imprisonment at the time of conviction for murder, because from my experience of examining these cases I have become so well aware of the contrast between the determined criminal whose prison sentence seems to have had no ameliorative effect upon him at all, so that one is anxious if he is ever to return to the free world, and the man who, quite clearly, has become utterly repentant of the crime he has committed. I have dealt with both of these types, and in the latter case I have felt in certain instances that I could release a man on licence without the slightest fear that he was ever going to commit a serious offence again. I would therefore stress that it is after a period of years in prison that the man’s future must be very carefully reconsidered.

Thirdly, I would ask the Government whether they are going to plan new custodial arrangements for the men who must serve exceptionally long terms of imprisonment. Here, too, the Royal Commission may advise. However, when I said that our prison system was geared to a period of perhaps nine or ten years’ imprisonment, what I had in mind was that one should give every prisoner some hope by offering him privileges if he behaves himself properly in prison and if he is seeking to fit himself to be a free man again. At the moment one reaches the top stage of privileges, I believe I am right in saying, after serving four years. Four years is a large section of a nine-year term, but it is nothing in a 20-year term. I am convinced from my Home Office experience that we have got to give a great deal of fresh thought to the custodial handling in prison of men who are almost certain to be in prison for 10, 15 or maybe 20 years.

If the Government are prepared to think along the lines which I have indicated, I shall be prepared to vote for the Second Reading of this Bill tonight, but, if so, I shall press strongly in Committee for the Bill to be amended on the lines suggested by my hon. Friend the Member for Scarborough and Whitby (Sir A. Spearman)—that is, that after a period of, say, five years, it should be incumbent on the Government, whatever Government may be in power, to have to bring forward an affirmative Resolution for a further continuance of the operation of the Act.

In my view, this is not something which can be decided in 1964 or 1965 on a priori arguments for all time. If we make this experiment, the working of it must be very carefully watched. I do not think it would be enough simply to argue that anybody can introduce a new Bill in Parliament at any time. I think that this is a case so serious, so difficult and so important that any legislation which Parliament passes now should be of a character that requires, if it is to continue more than, say, five years, an affirmative Resolution to be passed by both Houses of Parliament.

I greatly hope that on the lines I have indicated it may be possible to eliminate some of the controversy from this matter. I believe that bold experiment subject to a time limit is the right course to take.

 

 

  • Mr. William Wilson (Coventry, South) I have been in the House just over 40 days, and I say with the greatest respect that if always, when I speak, I follow such a courageous speech as that by the right hon. Member for Hampstead (Mr. Brooke) to which we have just listened I shall be very happy indeed.
  • The Secretary of State for the Home Department (Sir Frank Soskice) …There was one speech which was exactly the opposite of a maiden speech. It was a speech from one of the most experienced Members of the House, who is, incidentally, my own Member of Parliament, the right hon. Gentleman the Member for Hampstead (Mr. Brooke). As a former Home Secretary, he made a speech with which all of us listening to it had great sympathy and which we heard with deep admiration. He spoke from the experience he derived from holding the office which I now hold. I find myself so close in thought to him on this topic that I must say that I would be only repeating much of what he said if I deployed the thoughts with which I approached the debate.

 

 

 

 

  • Mr. R.T.Paget (Northampton) … We have also had one of the most distinguished and most important speeches which I have ever heard in the many years I have been in the House—a speech which probably was more effective in moving opinion and affecting votes than any speech we have heard. It was the speech, wise, humane and liberal, of the right hon. Member for Hampstead (Mr. Brooke), and it certainly convinced me that no human being is past redemption! I have said some very hard things about the right hon. Gentleman in my time. I hope that he will feel that they were addressed to the Minister rather than to the man, for I certainly feel that this evening.

2 thoughts on “My father’s speech in December 1964 in the death penalty debate

  1. Phil

    At this distance I’m struck less by the force & cogency of your father’s arguments against the death penalty than by the farsightedness of his comments on the challenges of very long prison sentences, for the prison establishment as well as for the offender. It’s a shame that this part of his comments has received so little attention in the intervening half-century.

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    1. I remember that the long sentences on the Great Train Robbers came as a considerable shock – more so, perhaps, than the 42-year sentence on George Blake, the master spy. I certainly remember my father telling me about the dangers of institutionalisation if offenders were imprisoned for more than about ten years. On the other hand he recognised that society would demand longer sentences for murderers who would not have been pardoned under the old regime. He visited a lot of prisons during his time as Home Secretary and was convinced that many of the old Victorian prisons were no longer fit for purpose. They are still in use 50 years later, with disastrous consequences for those subjected to sub-standard prison conditions.

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