The Report on Capital Punishment
By SIR CARLETON ALLEN, Q.C.
THE importance of the recent Report of the Royal Commission on Capital Punishment is indicated by the amount of attention which it has immediately attracted. Already the Abolitionists are claiming it as a strong support of their case. Neither of the opposing schools of thought is entitled to make this claim, for the Commission is unable to draw any .reliable inferences, from the statistics usually canvassed, about the deterrence or non- deterrence of the death penalty. So far as England is con- cerned, one would have thought that the almost unanimous opinion of police and prison officers in favour of deterrence (para. 61) was the most impressive evidence. The Abolitionists, however, do seem to derive support from the general conclu- sion of the Commission that unless a new procedure which it Commends, and which is acknowledged to be a bold innova- tion, is adopted, then our law of murder will remain in what it clearly considers an unsatisfactory condition. What are its chief defects ? Three principal ones are here advanced. First, " the outstanding defect of the law of murder is that it provides a single punishment for a crime widely differing in culpability." True, this " rigidity " is in practice mitigated by the exercise of the royal prerogative, but " we cannot but regard it as a reproach to our criminal law that this excessive rigour should be tolerated merely because it is corrected by executive action." There is manifest logic in this, and when an anomaly is apparent, it is never very convincing to fall back on the cliche that " the life of the law has not been logic, but everience." The life of the law has, in fact, been the marriage of these two complementaries. Secondly and consequently, an excessive onus is placed on the discretion of the Home Secretary. The third blemish emphasised is the inadequacy of the present rules about un- soundness of mind and criminal responsibility. To these we may add two other weaknesses which seem important at the Present time. On the one hand (to the advantage of the accused) the adverse verdict of a jury, after full hearing of medical evidence on an insanity plea, is now frequently re- versed, in effect, by the Home Secretary's medical inquiry under the Criminal Lunatics Act, 1884. On the other hand (to the disadvantage of the accused) there is a temptation for juries to say, especially in gruesome cases of homicidal sadists, ' Well, we are not sure whether this creature is legally mad or not, but in any case he is better out of the way." This may be utilitarian, but it is neither scientific nor legal, nor, in the opinion of many, Christian.
Setting aside a number of detailed matters chiefly concerned with the mechanics of execution and with prison arrangements, the positive recommendations are these : (1) Provocation, as a plea in mitigation, to include words as well as blows; (2) the survivor of a suicide-pact, unless he has actually killed the other party, to be liable only for aiding and abetting, with imprisonment for life; (3) an accused person to be found not fit to plead only on the certificates of two doctors; (4) the absurd verdict of " Guilty but insane " to be abandoned; (5) a special institution to be established for psychopathic and abnormal criminals not legally insane; (6) the grim sentence of death to be modified; (7) psychopathic personality " to be at least a strong ground for reprieve; (8) the Judge to have power to raise the issue of insanity even when the accused, wishing to pursue another line of defence, does not raise it himself; (9) mental deficiency to be assimilated to insanity; (10) the doctrine of " constructive malice " to be discarded; (11) the age of exemption from execution to be raised from 18 to 21; either (12) an extension of the McNaghten Rules, or preferably (13) their complete abrogation, leaving the issue of responsibility or non-responsibility to " jury discretion." The last four recommendations are the most controversial and to them these very brief comments are limited.
Nobody will regret the passing of a technical doctrine of " constructive malice " that homicide caused in the commission of another non-homicidal felony is murder, but the new pro- posal does not seem to take sufficient account of the criminal who, without expressly intending violence, takes a deliberate risk of injury to life and limb. is the burglar who brandishes a loaded revolver and fires it fatally through sheer nervousness or clumsiness, to be held no assassin under the new doctrine ? As for the raising of the age-limit, it is difficult to believe that it will receive serious consideration at the very moment when gangs of brutal, celluloid-drunk youths are causing grave danger to the public and anxiety to the police. It is well known that the chief objection to the McNaghten Rules, framed in 1843, is that they refer only to the rational or " cognitive " faculties, and not to mental conditions which are certainly pathological but which may be accompanied by ability to distinguish between right and wrong; indeed, the very wrongness of the action may lend force, because of its morbid fascination, to the " irresistible impulse." The Com- mission, with the bulk of medical opinion behind it, therefore proposes a third limb of the Rules, that the accused " was incapable of preventing himself from committing " the homi- cidal act. Though the formula, as is admitted, will not get rid of all problems of interpretation, it seems to be as good as can be devised to fill the gap, and there is- no reason to suppose that juries could not, under proper direction, grasp the differ- ence between the irresistible and the .unresisted impulse or tendency. But, in the present state of medical science, the central difficulty will remain—what is " disease of the mind " ? There is abundant evidence in this Report of the ambiguity of the term. Medical evidence will never obtain the respect which it claims so long as highly qualified experts, for a fee and being virtually exempt from the law of perjury, go into the box and give precisely opposite but confident opinions about the same case.
The most controversial proposal of all is to abrogate the McNaghten Rules altogether, and to leave the whole issue of criminal responsibility ' at large " to the discretion of the jury, with what amounts to a double trial and with no legal standard to guide them. On principle, the objections urged by the three dissentients in their minority report seem conclusive. As to practice, there is space here only to say that the sug- gested procedure has not been well thought out and that it bristles with difficulties which could lead to nothing but con- fusion. It might work to the advantage of the accused, but would it be in the interests of justice ? This question never seems-to be asked by those who regard any advantage to the accused, whether due or undue, as in itself a merit in the law.
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