The Royal Commission on Capital Punishment 1949 - 1953.


In April 1948, the House of Commons voted in favour of a Bill introduced by Sidney Silverman to suspend the death penalty for five years.  The Labour Home Secretary, James Chuter Ede, announced that he would reprieve all murderers until the future of the Bill was resolved.  This resulted in 26 reprieves and no executions between March and October 1948, giving a total for the year of just eight hangings in England and Wales and one in Scotland.  The House of Lords rejected the Bill, so in November 1948 the Home Secretary promised to set up a Royal Commission to examine the subject instead, much to the chagrin of Labour MP’s .  Thus on 20 January 1949, the Prime Minister, Clement Atlee announced to parliament that “The King has been pleased to approve the setting up of a Royal Commission on Capital Punishment with the following terms of reference: To consider and report whether liability under the criminal law in Great Britain to suffer capital punishment for murder should be limited or modified, and if so, to what extent and by what means, for how long and under what conditions persons who would otherwise have been liable to suffer capital punishment should be detained, and what changes in the existing law and the prison system would be required; and to inquire into and take account of the position in those countries whose experience and practice may throw light on these questions. I am glad to be able to announce that Sir Ernest Gowers (a senior civil servant) will act as chairman of the Royal Commission.”  It should be noted the Commission was not asked to decide whether the death penalty should be abolished but rather whether “capital punishment for murder should be limited or modified”.  This was not what many on the Labour benches wanted, but it was felt that abolition was a matter for parliament not a Royal Commission.


The Commission, comprising ten men and two women had 63 meetings over the next four years at Carlton House Terrace in London and took evidence from a wide range of people with expertise in the field, including judges, prison governors and chaplains, medical officers and staff and also hangman, Albert Pierrepoint.  It also visited ten British prisons, plus Broadmoor and prisons in various European countries and the USA to examine their practices.


The Commission spent a great deal of time looking at the law on murder both in England and Wales and also in Scotland where it was somewhat different.  Among the areas examined in depth was the legal concept of constructive malice.  Simply put this is the concept that if a person is killed during the commission of another felony, e.g. a robbery or resisting lawful arrest, the killer can be guilty of murder although he or she may not have actually set out to kill (with malice aforethought), in other words the killing was not premeditated.  The Commission recommended the abolition of constructive malice and indeed this recommendation was introduced by the Homicide Act of 1957.  (See the case of Derek Bentley where the concept of constructive malice is clearly demonstrated along with the concept of common purpose.)


There was considerable discussion on the exercise of the Royal Prerogative (i.e. reprieve process).  The reprieve rate was just over 45% which was clearly unsatisfactory.  533 death sentences out of 1210 were commuted in the first half of the 20th century.  The Commission took evidence from the Home Office as to their practices in recommending reprieves. There was concern expressed over the constitutional aspects of non elected officials circumventing the law through the reprieve process. Additionally there was concern about the passing of the death sentence in situations where a reprieve was the almost certain outcome.


The law relating to killing due to provocation was also examined and the conclusion reached that the definition of provocation should be widened to include verbal provocation as well as physical provocation and that it should be for the jury to decide if such provocation had been proved and if so to be permitted to bring in a verdict of guilty of manslaughter rather than murder. 


Mercy killings, suicide pacts and infanticide were other areas looked into.  There were no recommendations to change the law in the first two instances.  Infanticide was quite a prevalent crime with 602 women tried for it between 1923 and 1948 of whom 512 were found guilty.  The Infanticide Act of 1922 had in effect reduced the crime to manslaughter and women convicted of it generally were treated very leniently upon conviction.  Even where women killed their child of over one year of age they were reprieved.  The last woman to hang for killing her own child was Louisa Massett who was condemned in 1899 and became the first person executed in 1900.


The Commission was not of the view that women should be exempted from the death penalty per se.  It acknowledged that women committed fewer and typically less heinous murders which was why such a high proportion (90%) were reprieved in the 20th century but felt that the death penalty should be retained for the most serious female offenders.


The law mandated the passing of the death sentence on those over 18 years old at the time they committed murder and consideration was given as to whether this age should be raised to 21 (the then age to be allowed to vote).  In the 50 year period 1900 – 1949, 83 men and 13 women between the ages of 18 and 21 had received the death sentence. 30 of these men were subsequently executed.  There had been four Bills introduced in Parliament during the same period to increase the minimum age to 21 and the Commission was of the same view and recommended his change.  It was not incorporated into the 1957 Act however and an 18 year old was executed in England and a 19 year old in Scotland post 1957.


One area of concern was the treatment of mentally ill prisoners facing capital charges.  The background to this was a landmark case in 1843 that was to shape the future of the legal definition of insanity for well over a century. This was that of Daniel M’Naughten who killed Edward Drummond, then prime minister, Sir Robert Peel’s private secretary, on 20 January 1843.  The intended victim being Peel himself.  At his trial the jury found M’Naughten insane and acquitted him.  The verdict caused considerable public concern, so the Lord Chancellor, Lord Lyndhurst opened a debate on the subject of criminal responsibility in the House of Lords in March 1843 which led to the formulation of the famous “M’Naughten Rules”.  These state that : "To establish a defence on the ground of insanity, it must clearly be proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing was wrong".  What these rules did not take into account was insanity due to will and emotions.


The M’Naughten Rules survived more or less intact for more than a century but their application gave rise to increasing problems.  A Commission on Insanity and Crime was set up in 1923 under the chairmanship of Lord Justice Atkin which examined the issues and reported on 1 November 1923.  It recommend that it should be recognised that a person charged with an offence is irresponsible for his act when the act is committed under an impulse which the prisoner was, by mental disease, in substance deprived of any power to resist.  The report pointed to the verdicts of insanity in the cases of young mothers who murdered their infant children, something that they knew to be wrong but something they were driven to do by an irresistible impulse.  Under M’Naughten if they could be shown to have known their action was wrong then they would have been responsible for it.  Two other recommendations were that accused persons should not be found on arraignment unfit to plead except on the evidence of at least two doctors, save in very clear cases, and that provision should be made under Home Office regulations for examination of an accused person by an expert medical adviser at the request of the prosecution, the defence, or the committing magistrate.

The 1930 Select Commission on Capital Punishment also examined the issue of sanity, but their recommendations were rejected.  The judiciary were unhappy with defences of partial insanity and irresistible impulses and it was argued that such concepts would lead to “total abandonment of criminal responsibility”.

As of 1947 there were stages at which the sanity or otherwise of a person charged with murder could be considered.  These were :


Prior to trial, whereby the person could be certified insane and committed to Broadmoor.

At trial, if in accordance with Section 2 of the Criminal Lunatics Act of 1800 the accused appears to the jury to be insane.  49 instances of this had occurred between 1900 and 1949.


Under the Trial of Lunatics Act of 1883 where evidence existed of insanity at the time of the crime was committed, the accused was to be committed to Broadmoor at Her Majesty’s Pleasure.  Typically an accused was examined by a prison medical officer, whilst on remand, who would reach the conclusion that they were insane.  428 people were found to be insane out of 3,130 people who were committed for trial for murder between 1900 and 1949.


The Criminal Lunatics Act of 1884 provided for the Home Secretary to appoint two or more medical professionals to examine a condemned prisoner if there was reason to believe that he or she may be insane.


Having taken a great deal of evidence the Commission came up with three recommendations.

These were that the test of responsibility laid down in the M’Naughten Rules was so defective that the law on the subject ought to be changed.

That an addition to the Rules proposed by the  British Medical Association to enlarge the scope of the M’Naughten Rules is the best that can be devised and this would improve their effectiveness.

The law should be changed to abrogate the Rules and let the jury decide on the prisoner’s sanity at the time of the crime.

In any event the Commission felt that mental deficiency as well as mental disease could be a factor in excusing responsibility.


Alternatives to the death penalty were another area of interest and the treatment of certain types of murderer in other countries was looked into. 


The Commission examined the various methods of execution as an alternative to hanging, including the guillotine, shooting, electrocution, gassing and lethal injection.  The last was opposed by the British Medical Association on the grounds that its members would have to be involved in carrying out executions, rather than in just certifying death and was considered as impractical and not necessarily humane by the Commission.  Shooting was rejected it on the grounds that "it does not possess even the first requisite of an efficient method, the certainty of causing immediate death."  This was interesting in the light of the then recent firing squad execution of Josef Jakobs in 1941.  The guillotine was dismissed on the grounds of the unacceptable mutilation of the criminal’s body.

The Commission visited prisons in the USA and examined electrocution and lethal gas in depth but did not conclude that these methods offered any significant advantage over hanging.


A change was recommended where a double hanging was to take place – that there should be an executioner and assistant for each prisoner instead of one executioner having to deal with each in turn with inevitable delay.  In reality the last double hanging took place in 1954 and after that where required the two prisoners were executed at the same time in different prisons.


Cremation after execution was recommended in place of burial within the prison grounds.


Those giving evidence to the Commission frequently emphasised their belief that execution should be rapid, clean and dignified.  It was concluded that hanging as described and demonstrated by Albert Pierrepoint to the Commission members on a visit to Pentonville in November 1950 came closest to this model.  They determined that British style hanging was still the best available method of execution but thought that it had no particular unique effect as a deterrent to murder.


Their 506 page report was published in September 1953 and led to some slight modifications to various aspects of the system.  Some of these concerned improvements to the condemned cell and the prisoner’s regime in it.  One major recommendation was the compulsory psychiatric examination and the taking of an electro-encephalograph of the brain of all persons convicted of murder.  The Report also recommended improvements to the actual execution process.  Prisoners were to be removed from the rope once certified dead and no longer left hanging for an hour. Strangely the rather gruesome and irrelevant practice of measuring how much their neck had stretched was not ended.


The Commission recommended retention of capital punishment unless there was overwhelming public support for abolition, which there wasn’t. Most of the Commissions other recommendations were not taken up by the now Conservative government under Winston Churchill, e.g. that capital punishment should be abolished for a trial period of five years and the doctrine of constructive malice be removed (The Homicide Act of 1957 did so).  The Commission recommended that juries might be given the power to recommend life sentences instead of death sentences.  This was rejected by the government and modern US experience shows how right they were to do so.


In reality there was little significant change as a result of the Commission’s painstaking and highly detailed analysis of the system of capital punishment in Britain and abroad.


Murder statistics 1900 – 1949.
The Commission published highly detailed statistics on murder as appendices to their report.  From 1900 to the end of 1949, 1178 death sentences had been handed down in England and Wales, including 123 passed on women.  Of these 617 had been carried out, including 14 female ones.  The overall reprieve rate was thus 47.6%, with 89.5% for women.  Part of the Commission’s brief was to look at whether so many death sentences should be passed where there was a serious probability of a reprieve.  It noted that out of 129 people who had been reprieved and served a “life sentence” only one had been convicted of another murder.  It identified only those prisoners who might be termed abnormal as posing a significant risk if they were to be subsequently released.  When one examines the crimes for which people were hanged at this time, with the large preponderance of domestic murders which has been highlighted in previous chapters this does seem reasonable.


7454 murders were known to the police forces of England and Wales during this 50 year period, an average of 149 per annum.  A surprising number of potential suspects had committed suicide before apprehension, some 1674.  4173 people were charged with murder and of those 3129 were sent for trial at county assizes. 

These cases were disposed of as follows:

658 were acquitted or not tried.

428 were found to be unfit to plead (insane at arraignment).

798 were found guilty but insane.

35 were found guilty and sentenced to be detained at Her Majesty’s pleasure (juveniles)

1210 received the mandatory death sentence of whom 23 had their convictions quashed on appeal.

47 of the 1210 were found to be insane whilst in the condemned cell and therefore reprieved.

506 were reprieved through the exercise of the Royal Prerogative.

631 men and 11 women were hanged. (Average 12.7 per annum)

These last numbers represent one hanging for approximately every 12 murders known to the police.


It is interesting to note the proportion of those found to be insane (428 + 798 + 47) was 30.5% of the total those arrested and that suicide of the supposed perpetrator was the outcome in almost 22.5% of known murder cases.


With special thanks to Gary Ewart for providing me with a copy of this report.


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