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who will be vocal, and that those who support the death penalty will remain silent unless and until they think that there are signs of the abolitionists getting their way. Public opinion fluctuates according to the nature of the crimes which are in the public eye at the time: the Gallup polls indicate the reaction to the cases of Christie and Mrs. Merrifield on the one hand and Ruth Ellis on the other. There have been cases-for example that of William Joyce-in which it would have been almost impossible to have recommended a reprieve even had some ground for clemency been found. Public opinion is, in my view, an unreliable basis for a policy. It is a factor which we should take into account, but it is decisive only in the negative sense that we ought not to abolish capital punishment unless there is overwhelming public sentiment in favour of the change. The Secretary of State has a duty to keep the Queen's Peace and must have regard to public safety as well as to public opinion.

26. Experience abroad tends to support the view that it is after abolition that public opinion in favour of capital punishment makes itself felt, and that a few brutal crimes can easily persuade the public to press for the re-introduction of capital punishment. For example among the arguments for the re-introduction of the death penalty in New Zealand in 1950 were the number of notorious sexual murders during the period of abolition and the increase in murders by professional criminals. Restoration in some American States has similarly been attributed to public reaction to particular crimes. Abolition at a time of fluctuating crime rates may lead public opinion to ascribe an upward fluctuation in the number of crimes to abolition, even though the fluctuation is equally present in countries that have not abolished capital punishment.

SUSPENSION OF CAPITAL PUNISHMENT FOR A PERIOD

27. It is often argued that since there is no evidence of the deterrent effect of capital punishment we should suspend the death penalty for five or ten years so that we can obtain evidence. I do not think that this would be satisfactory. The criminal statistics are subject to fluctuations for reasons beyond our knowledge and a period of five or ten years would be far too short to provide any reliable evidence of the effect of abolition or to throw light on the problem of keeping men in detention for very long periods. It would be impossible to allow capital punishment to be resumed merely by efflux of time. Either legislation or a resolution of both Houses would be necessary on such an important matter and a decision might have to be taken in a hurry, with public opinion excited and liable to be greatly influenced by current crimes. This would be most unsatisfactory, and I do not think that we ought to adopt this expedient. We should insist that Parliament, and the country, face the issue squarely and do not take refuge in this superficially attractive half-way house.

28. I have considered whether any compromise is possible. The Royal Commission's suggestion that the jury should be empowered to substitute a lesser sentence for the sentence of death had not attracted support, and indeed was severely criticised in the House of Lords. We have rejected for what seemed to me sufficient reasons their recommendations in favour of abrogating the M’Naghten. Rules and raising the age limit to 21. I should see no point and considerable embarrassment in attempting to restrict the scope of murders as suggested by the Royal Commission, by altering the law on constructive malice, provocation by words and suicide pacts. The introduction of degrees of murder has somewhat greater appeal, but it has been attempted on several occasions, the last in 1948, and all attempts have failed. The Royal Commission said "There are strong reasons for believing that it must inevitably be found impracticable to define a class of murders in which alone the infliction of the death penalty is appropriate. The crux of the matter is that any legal definition must be expressed in terms of objective characteristics of the offence, whereas the choice of the appropriate penalty must be based on a much wider range of considerations, which cannot be defined but are essentially a matter for the exercise of discretion (paragraph 498). The Prerogative of Mercy enables discretion to be exercised, and it is sufficiently flexible to take into account not only all mitigating circumstances, but, for example, changes in our views of the degree of responsibility which can be attributed to the mentally abnormal. My experience, like that of my predecessors, is that the Home Office advisers always approach a capital case with the earnest desire to find

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