Reprieves, the curse of the system?

Background.
The concept of the Royal Prerogative of Mercy, i.e. reprieving people who had been sentenced to death, dates back a very long way in English law. We are all subjects of the reigning monarch and only he or she had the power of life or death over us prior to 1837. The monarch sat with the Privy Council and disposed of capital cases up to then. In London, the Recorder of the Old Bailey would submit his report in person to the monarch and Privy Council with his recommendations for each prisoner. Outside London, the judges would send their report and recommendations to the Secretary of State after each Assize held in the county towns. In March 1782, the Home Office came into being and the Home Secretary, as he now became known, formed part of the King’s “Hanging Cabinet” which decided the fate of each person sentenced to death.  After 1837, the Home Secretary exercised the Royal Prerogative on behalf of the monarch, Queen Victoria who was a young girl at the time. In 1823 parliament passed the Judgement of Death which gave judges the power to reprieve in capital felony cases, other than murder, where the judge would have previously recommended a reprieve in his written report.  The death sentence was formally recorded and then commuted in open court.
In the years up to 1838, there were many crimes which carried a mandatory death sentence and because of that, there had to be a means of stopping the wholesale judicial slaughter of minor criminals, if only to prevent a revolution. (Excessive and cruel punishments were a major cause of the French Revolution)
An amazing 11,305 death sentences were passed in the decade 1826-1835 alone, interestingly only 154 of these being for murder. Just 514 (4.54%) were carried out. The next decade saw a sharp decline in both death sentences and executions.

The table below shows the situation as it progresses through the 19th century.

 

1800 - 1834

1835 - 1864

1865 - 1899

Sentenced to death

29808

851.66 p/a

3014

100.47 p/a

898

25.66 p/a

Hanged for Murder

523

14.9 p/a

336

57.9% of sentenced

485

54% of sentenced

For other crimes

2153

61.5 p/a

27

1.1% of sentenced

0

0

Total hanged

2676

-

363

-

485

0

Reprieved

27132

91.03%

2651

90.54%

413

46%

You will see that after 1835 the execution rate remained fairly stable and averaged 11.2 per annum for the rest of the century, as the number of capital crimes had been dramatically reduced between 1812 and 1834. In practice, only murderers were sentenced to death after 1861. During the 19th century, the population had risen from 9 million to 24 million.

Could one really justify the public hanging of a young mother who had stolen food (shoplifted) to feed her starving children? But it was the law, she had to be sentenced to death. Thus the monarch, sitting with the Privy Council and in some cases judges themselves, could commute the death sentences of those who they didn't feel deserved them. From 1861, only four crimes continued to attract the death sentence, but hanging remained the mandatory sentence for those convicted of murder. Murder is generally seen as the most heinous crime a person can commit, but many of those sentenced to hang for it were reprieved where the murder was considered to be less heinous or where there were mitigating circumstances.

The 20th century.
In the first 58 years of the 20th century, everyone convicted of murder was still automatically sentenced to death. This situation was slightly modified by The Homicide Act of 1957 (see later). In the 66 years in England and Wales, where the death sentence could still be passed, 1,485 people were sentenced to be hanged by civil courts for murder and 755 were actually executed. The remainder, effectively half of all these, were reprieved (49.2% in total). 1,340 men were to hear the dread words of the death sentence and 741 of them were subsequently hanged, equating to 55.3%. In the case of women, 145 were sentenced to death but only 14 hanged, a reprieve rate of just over 90%. (Louisa Masset was hanged in 1900 but sentenced to death in 1899 and is excluded from these statistics.) Click here to see a graph showing the trends.

In the condemned cell.
One can imagine the emotional torture of being sentenced to death and transferred to the Condemned Cell. The light is on 24/7 and you are guarded round the clock by teams of two or three warders.
You are weighed regularly and will probably realise why - so that they can calculate the correct length of drop for you when the time comes. Your date with the hangman has been set - normally for a Tuesday, Wednesday or Thursday, three weeks hence. Until the Governor comes to you and tells you that you have either been reprieved or not, you live in a constant state of anxiety and fear. Not knowing one's fate can be harder to cope with than actually knowing and being able to prepare oneself for it.
I have no doubt too that a lot of those sentenced to death thought that being hanged would still be death by slow strangulation. That it wasn't is almost irrelevant - if that was how they perceived it. When prisoners were reprieved, they had often to be transferred to the prison hospital for a time to recover from their emotional problems and shock before they could be put into the normal prison population.

An oft overlooked fact is the stress on the warders of having to take part in the death watch process. Typically a total of 8 to 10 men (or women, if the prisoner was female) would have worked eight hour shifts in the condemned cell. They had to try and occupy their prisoner and to the extent they were allowed to, comfort them and prevent them committing suicide. It was also their duty to record everything the prisoner said, in case of a confession or partial admission of guilt or the emergence of some new piece of evidence. Even where they may have personally strongly expected a reprieve, they could not let the prisoner know this and had to act at all times on the basis that their charge would be hanged. Once the Home Secretary's decision was known, it was these warders who had to deal with the prisoner's emotions - particularly when they had just been told by the Governor that there was to be no reprieve and that they were to be hanged in a few days time. Where there was a reprieve, it often came only a day or two before the set execution date.

The public perception.
Now look at the situation from the point of view of the ordinary member of the public who read a newspaper every day or listened carefully to the news on the wireless (as radio was known then). They would know of a trial for murder (they were much shorter then and much more fully reported) and hear of the guilty verdict and the death sentence. And yet time and time again they would hear of a reprieve. What message did this send? A system in chaos, or that couldn't make its mind up? Or a situation in which the penalty for murder probably wouldn't really be death? The public's perception is, in reality, far more important than the actual and often well hidden facts. If the death penalty is supposed to deter, it must be seen to be carried out in all those instances where the crime warrants it, save in the most exceptional circumstances. Where there were genuine reasons for a reprieve, these should have been clearly stated by the Home Office so that the ordinary person could have understood them. This was not the case and the reasons for reprieving or not reprieving were Official Secrets.

We do know that people were hanged despite widespread public concern over their level of guilt, e.g. Edith Thompson and Derek Bentley. In Edith Thompson's case, it is rumoured that the Home Office felt that she had tried to murder her husband previously and this was one of the reasons that she was not reprieved. If the Home Office had such information, why was it not made public? Based upon the information in the public domain at the time, her execution seemed unjust to most people. It is hard to justify Derek Bentley's hanging by any way of looking at it. Have a look at the full stories of these cases and see what you think (Edith Thompson & Derek Bentley).

Most people have a strong and innate sense of justice. They have little sympathy for child killers and multiple murderers and, certainly in the early part of the 20th century, supported the execution of "worst" murderers. But they strongly opposed the hanging of people they saw as being guilty of far less dreadful crimes. I think that this is still true today. There is often discussion of capital punishment in the media and by the public following particularly horrific murders. The Home Office never seemed capable of understanding public opinion and allowed executions, such as Derek Bentley's on purely technical grounds, while reprieving other people for apparently the flimsiest of reasons.

I am sure you will agree that there is a huge difference between being hanged by the neck until you are dead and serving 10 years in prison which was the average for those who were reprieved between 1900 and 1964. This difference seemed to be totally lost on the Home Office however. Few of those reprieved served more than 15 years of their "life sentences" actually in prison. It is thought that no one served more than 20 years. Elizabeth Maude Jones, who with her boyfriend was convicted of a very nasty robbery/murder, served just nine years of hers and that is not atypical. Even Donald Thomas, who shot dead a police officer in London in 1948, served only 14 years. The length of time served was a particularly relevant factor where, as was often the case, the condemned person was quite young and had a great deal of potential life in front of them. The average age of all of those sentenced to death in the 20th century was 33 years. It could be argued that death is less cruel than spending the rest of one's life in prison which the term "life" sentence would imply and as happens in America, which has life without parole, as an option to the death penalty in most states. This is also the punishment for those who have death sentences commuted there.

The reprieve process.
Although the trial judge had, by law, to pass the death sentence if the jury found the prisoner guilty, he was able to make a recommendation to the Home Secretary as to whether it should be carried out. Where a trial judge recommended mercy, it was rarely ignored by the Home Office. In evidence to the Royal Commission on Capital Punishment (1949-1953), it was stated that there were only six occasions between 1900 and 1949 when the judge's recommendation to mercy was overruled.
It was not at all unusual for the jury to add a recommendation to mercy to their guilty verdict but this was, in reality, often irrelevant to the final outcome.  According to the Royal Commission on Capital Punishment, Table 1 for England & Wales (1900-1949) 1,210 death sentences were passed, with the jury recommending mercy in 460 of them. 112 (of the 460) were hanged. In only five cases was there a "compromise".

From 1907 prisoners had the right of appeal against their conviction for murder, but not against their death sentence. This appeal process ran in parallel to the Home Office process outlined below. If they won their appeal, their murder conviction was quashed. They were either freed or had their conviction reduced to a lesser offence.

The Home Office received the case papers after the trial, together with the recommendation of the judge. Its officials began to prepare a report for consideration by the Permanent Secretary and the Home Secretary. It was normal for the prisoner to be examined by a panel of three Home Office psychiatrists to determine if they were legally sane and competent to be hanged. This psychiatric report was also sent to the Permanent Secretary and considered along with the rest of the case papers. We can only surmise how decisions were reached in individual cases and what advice was given to the Home Secretary, as the reasons for reprieving or not reprieving a prisoner were always kept secret. We can again only surmise as to the criteria Home Office officials used in making their decisions. It would seem that murder by poisoning or the use of a gun were seen as aggravating factors, as were loose sexual morals in the case of female prisoners. Age could be a mitigating factor, especially in the case of females. Physical injury or disability were also mitigating factors where they might lead to problems with the execution. Any sign of mental illness after sentence had been passed was usually a reason for reprieve. However, obvious mental problems could not save the likes of John Christie who murdered seven women in the face of overwhelming public opinion. I am not trying to impugn the actions of individual civil servants in individual cases - I am sure that they acted in good faith and in accordance with the guidelines set down for them. But taken in the round, the system was clearly unsatisfactory.
If there was to be no reprieve, the Home Secretary would write "the law must take its course" on the file and the execution would then proceed, otherwise the Home Secretary would exercise the Royal Prerogative of Mercy on behalf of the monarch. This total lack of transparency in the system was always a cause of problems and laid the Home Office wide open to accusations of injustice.

Women and the death penalty.
Between 1829 and 1899, 231 women were sentenced to hang in the British Isles including Ireland. 101 of these women were executed, 97 for murder, one for attempted murder, one for conspiracy to murder (in Ireland) and two for arson. Three women were found insane and respited to Bedlam or Broadmoor. One was given a free pardon and one committed suicide in the condemned cell. Over the period, the reprieve rate was 56.3%. From 1861 to 1899, there were to be 119 women given the death sentence of which 28 were to be hanged (all for murder) giving a reprieve rate of 73.5%.

As stated earlier, 145 women were sentenced to death for murder in England and Wales in the 20th century (two others were sentenced to death for espionage and both were reprieved).
Of these 145, no fewer than 131 were reprieved (90.3%) and only 14 hanged. This raises the obvious question - why were so many women sentenced to death if there was no intention of carrying out their sentences. One can, to a point, understand the unwillingness of a male dominated judicial system to execute women, except for the most dreadful crimes, but this was not what happened in practice.

There are at least 55 instances of women who murdered their infant children being sentenced to death and then reprieved. I am willing to accept that these women actually killed their children and so were, in that sense guilty, but few people felt that these, often desperate, young women deserved to die for their crime and indeed no woman was to hang for murdering her own infant in the 20th century. The last execution for this crime took place in 1849. Yet it wasn't until 1938, with an amendment to the Infanticide Act of 1922, that the law finally caught up with practice and public opinion and understood post-natal depression and the stigmatisation caused to a young woman of having a baby outside marriage that was prevalent at the time. A further 33 women were sentenced to death and reprieved for murdering their children. In at least two cases, these murders could be described as mercy killings. Many of the remaining cases concerned the murders of husbands and boyfriends. One woman had her conviction for murdering her infant child quashed on appeal and one woman who murdered her boyfriend, his father and one of his employees, was found insane after sentencing and committed to Broadmoor (the secure hospital for the criminally insane).

Sentenced to death, reprieved and yet killed again.
Yes, it did happen! There was at least one case where a man was reprieved to commit murder again after his release on parole. Christopher Simcox was convicted of his first murder on the 7th of July 1948 but was reprieved due to the temporary suspension of the death penalty while the Royal Commission were examining it. He was convicted of a second murder and again received the death sentence in February 1964. Again he was reprieved. Another case is that of Donald Forbes who was sentenced to death in 1958 for the murder of Allan Fisher, an Edinburgh night watchman, during a robbery at a fish factory.  He was reprieved, but stabbed a man to death in a pub brawl in 1970, just weeks after release on licence. He was again jailed for life, but managed to escape.

Perhaps the most extraordinary case is that of John Thomas Straffen, however. Twenty two year old Straffen had had a troubled childhood and was in a mental institution from 1947 to February 1951 after assaulting a child. In August 1951, he strangled two little girls but was found insane and sent to Broadmoor. In April 1952, he escaped and strangled Linda Bowyer before being recaptured the following day. He was sentenced to hang for this murder and reprieved after his appeal. Fortunately, he has not been released and is Britain's longest serving prisoner. According to Home Office figures, at least 71 people have committed a second murder after being released on licence from their first life sentence in the last 35 years.

The Homicide Act of 1957.
This Act became law in March of 1957 and re-classified some forms of murder as non capital which did reduce both the number of death sentences and reprieves. It introduced the notion of diminished responsibility into English law. The changes in the categorisation of homicides came about as a result of the report of the 1949-1953 Royal Commission on Capital Punishment. From March 1948 to October 1948, 26 people were reprieved while this Royal Commission was being set up. Between August 1955 and July 1957, everyone sentenced to death was reprieved, amounting to 49 cases, while the government tried to frame the 1957 Homicide Act. This Act was considered an unworkable shambles by almost everyone, however, including the then prime minister.

Under the Homicide Act of 1957 the 5 categories of murder for which the death sentence was still to be mandatory were :

  • Murder committed in the course or furtherance of theft.
  • Murder by shooting or explosion.
  • Murder whilst resisting arrest or during an escape.
  • Murder of a police or prison officer.
  • Two murders committed on different occasions.

64 men and one woman were sentenced to death after March 1957 and of these, 29 men were hanged - a reprieve rate of 44.6%. Surely the whole point of the Act was to eliminate unfair and unnecessary death sentences and yet reprieves continued at only a slightly reduced rate after it. If 36 of these people didn't deserve to die, why were they sentenced to death in the first place? Age was not typically a bar to execution of males in most cases, 18 of those hanged were under 25, two being still teenagers. On the 9th of November 1965, the Murder (Abolition of Death Penalty) Act suspended the death penalty for murder in the United Kingdom for a period of 5 years, leading to the reprieve of the last 19 men sentenced to death in 1965.
The first man to be sentenced under the 1957 Act was Ronald Patrick Dunbar for a murder committed during the course of a robbery in 1957, and the last was David Stephen Chapman on the 1st of November 1965 for a similar offence, both were reprieved.
Only one woman was sentenced to death after the passing of this act. Mary Wilson was dubbed by the Press as the "Widow of Windy Nook."  She was reprieved in 1958, probably because of her age, she was 66 years old, even though she had poisoned two husbands. Under the provisions of the Act, she should have been executed, as the two murders were committed on different occasions. Twenty one year old Maureen Hanrahan, who with 23 year old Patrick Doran, was convicted of a robbery/murder in early March of 1957 before the Act took effect. They were both reprieved however. Similarly three men, Kenneth Smith, Vincent McTair and Peter Hurst, although convicted after March 21st, were indicted for murder under the old law and were thus reprieved.

Click here for a graph showing the post 1957 situation.

A short quiz.
See how good you are at guessing the Home Office's decisions in four actual cases, all from the Spring of 1955, under the stewardship of the same Home Secretary. There was no question of guilt in any of them, by the way.

A 40 year old woman was convicted of murdering her next door neighbour, an 86 year old woman, by battering her to death with a shovel after a long running feud between the two women. The case attracted virtually no publicity and it was really only her husband who made any effort, on her behalf, to save her.

A 33 year old army sergeant was convicted of murdering a colleague, whose wife he was having an affair with at a British Army base in Germany. He had killed his victim with a karate chop to the throat and tried to make the murder look like a suicide by hanging. Afterwards, he married his victim's wife.

A 28 year old man was convicted of the murder of his girlfriend, whom he had stabbed to death in a fit of jealousy. He then cut his own throat and stabbed himself but recovered from his injuries.

A 28 year old woman shot her abusive boyfriend to death, also in a fit of jealousy, after he had refused to see her over the Easter holiday. She had suffered a miscarriage having been punched in the stomach by him.

So what do you think happened to each of them? Were they reprieved or hanged? Answers at the bottom of the page.

Conclusions.
Should people have only been sentenced to death where the murder(s) that they had committed called for the ultimate punishment and that there was every intention to follow through with execution?
Sadly, English law did not allow this. Unlike America, we had no degrees of murder. Up to 1957, the jury were allowed three possible verdicts: guilty of murder, guilty of manslaughter (against tightly defined rules) or not guilty (which also included insanity). In many instances, only the first verdict was possible. It is impossible to say in how many cases the jury may have found the defendant guilty of murder, but in the second degree, had they had the opportunity. I suspect it would have happened quite frequently, as they often made a recommendation to mercy with their guilty verdict.

A reprieve rate of perhaps 3-5% may be acceptable because there will always be special cases and exceptional circumstances in any judicial system. If it is consistently higher than that, then surely the law needs to be changed to suit current thinking rather than just carrying on imposing the death sentence, regardless of public opinion and evolving standards. I am not arguing here that 95-97% of the 1,485 death sentences should have been carried out but rather that 45% of them should never have been passed in the first place.
It is important that the public clearly understands the penalty for specific crimes if they are expected to be deterred by this penalty. In reality, they were faced with a confusing and contradictory system which was often seen as unjust and unfair. Endless reprieves undermined respect for the legal system and the administration of justice. Is it any wonder that the general public in the 1950's and early 60's had no confidence in the administration of capital punishment and, by extension, the judicial system? The abolition movement found that they were increasingly "pushing at an open door" in respect of public opinion.

In conclusion, it could be said that a system of reprieves is no substitute for a fair and just application of the death sentence.

For further background reading, please click here to read my article on the Abolition of Capital Punishment in Britain.

Answers to the quiz.
Their names, in order, were Mrs Sarah Lloyd, (reprieved and served just seven years in prison). Sgt. Emmett Dunne (reprieved, as Germany did not permit capital punishment, even for soldiers from a foreign country. Bear in mind that the crime was committed on a Sovereign military base and therefore, at least in theory, a part of Britain. He served 11 years in prison.)
Alfred John Wayman (reprieved on the grounds that the throat wound might open up if he was hanged and lead to an unpleasant mess, so instead he served 12 years of his life sentence.) and finally Ruth Ellis who was hanged.
Click here for full details of her case.
If you can square the actual punishments to their crimes and see any proportionality in them, you are doing better than me!

Back to Contents page. Timeline of hanging in Britain. History of British judicial hanging.
The abolition of capital punishment.