HL Deb 20 July 1948 vol 157 cc1073-87

Clause 3, page 3, line 4, at end, insert ("with a cat o' nine tails")

Clause 3, page 3, line 5, at end, insert ("such")

Clause 3, page 3, line 6, leave out ("of whipping")

Clause 3, page 3, line 6, at end, insert—

("(2) No person shall be sentenced by a court to whipping unless he is a male person and—

  1. (a) is under the age of sixteen, or
  2. (b) has been convicted of an offence under one of the following enactments, that is to say, the Garrotters Act, 1863, section three or section seven of the Criminal Law Amendment Act, 1912, or section twenty-three of the Larceny Act, 1916.")

Tenth Schedule, page 94, leave out lines 51 and 52.

Tenth Schedule, page 96, leave out lines 41 to 44.

The Commons disagreed to the above Amendments for the following Reason: Because the said Amendments would preserve the powers of courts in certain cases to order offenders to be whipped with a birch, which the Commons considered undesirable


My Lords, I beg to move that this House do not insist on the Amendments to which the Commons have disagreed. The next group of Amendments, as your Lordships are aware, deal with the question of corporal punishment. When the matter was before your Lordships on the Committee stage we had a very good discussion, in which I think that the points on both sides in the controversy were fairly and adequately made. In the other place, when the matter went back there, perhaps it was not threshed out so thoroughly as it was by your Lordships, but I think a significant point was that only sixty-two of the Members of the other place could be found to support corporal punishment. In the arguments which were put forward some of those who had obviously given the most thought to the subject drew a distinction between the question of corporal punishment for youthful offenders and for the rather limited class of cases which the Amendment put into the Bill in this House provided for the adults, I think it was a significant thing—although I know it docs not in any way bind your Lordships—that among the Members of the Opposition Front Bench in another place no one, I think, was found to go into the Division Lobby. I think that, taken as a whole, is a very fair reflection of the opinion in the country and in Parliament on this particular matter, because I suggest, with respect, that the case against corporal punishment is overwhelming. Certainly it is a clearer one than that of the death sentence, which we were discussing earlier this evening.

As your Lordships are aware, the matter was thoroughly investigated by the Departmental Committee which was appointed in 1938; a ad when the matter was discussed in your Lordships' House the main arguments which were put forward by that Committee were canvassed a great deal and were carefully put before your Lordships by the noble Viscount, Lord Samuel, by the noble Viscount, Lord Templewood, and also in a very powerful speech by the noble and learned Lord, Lord du Parcq. It was there pointed out that with one or two exceptions in our own Commonwealth, and in one or two States of America, every civilised country in the world, including Scotland, has long abolished this punishment of a corporal character. Moreover, as one noble Lord pointed out, there has been no movement at all in that highly civilised country of Scotland to restore this relic of barbarism.

Members of the Departmental Committee did not take the view that corporal punishment is in no sense a deterrent, but considered that the brutalising effect which it was found to lave on the culprits who were subjected to it, whether they were juveniles or adult offenders, more than outweighed its value as a deterrent. It seems to me significant that, in the moving speech which was addressed to your Lordships' House by the noble Lord, Lord du Parcq, he pointed out that on a number of occasions where criminals had been brought before him and convicted of very serious offences—I think even so far as the offence of murder—their careers had frequently started with a punishment by the "cat" or by birching. It was significant that, in the debate upon this very topic in another place only the other day, in an illustration given by the Member for Oxford, although he was not giving it against corporal punishment, the culprit whose career he instanced had, in fact, started with the punishment of the "cat." So we do find that the deterrent effect is slight, and that very frequently in this type of case the effect of corporal punishment at the outset of the man's criminal career seems to have had the result of hardening him, whereas if he had had a prison sentence, in which reformative influences could be brought to bear upon him, it might well be that he would have turned over a new leaf.

I think it was pointed out, very cogently, that in the Report of the Departmental Committee, the question of the difference between the use of the "cat" and the use of the birch was regarded as of little moment. In the face of that, it seemed rather illogical that we should have persisted in making the division between the two types of instrument which are used. I do not think I need do more than make one further point. Considerable argument was made, both here and in another place, of what was called the "illogicality" of the fact that the Departmental Committee suggested that corporal punishment should be retained in connection with assaults upon warders by convicts in prisons. It was suggested that that could not be justified, but I do not think that that is so. As I said, the Departmental Committee did not say that corporal punishment is not a deterrent. They thought that other forms of deterrent were more valuable but, when you come to the case of a man who is already a convict and who has, very frequently at any rate, given up the idea of earning remission of his sentence, if you are to punish him at all, there is very little other alternative but to punish him in this way. Therefore, although the deterrent effect may not be of a very substantial character, in my submission it is not illogical to punish him by means of corporal punishment, by the "cat" or by the birch. Therefore, I think your Lordships will agree that in the present Year of Grace the argument substantially is that we should bring our- selves into line with civilised countries all over the world and remove this stigma from our penal code by abolishing corporal punishment. I beg to move.

Moved, That this House do not insist on the Amendments to which the Commons have disagreed.—(Lord Chorley.)

8.54 p.m.


My Lords, on this occasion I find that I am in an impartial position because, when this matter was discussed here before, although I was present in the House, I did not vote on either side. I was quite convinced myself that we did not want to keep the cat-o'-nine-tails. And that, of course, we removed. I was equally quite convinced that we did not want to keep even whipping with the birch for a great number of out-of-date kinds of Statutes, such as the Diplomatic Privileges Act, under which it could still be administered. However, I thought that a strong case was I made out for the use of the birch for certain types of crimes: first, robbery with violence; and secondly, cases of procuring and that type of thing. I was against continuing it for young persons. I think that in a few cases it might be an appropriate penalty for a young person, but in the vast majority of cases it would probably work the other way—I know that from my being in touch with many people who deal with these young persons and who know that if one of them is ordered to be whipped by a policeman he is often dared by his fellows and called a coward if he does not proceed still to enter with them into their nefarious undertakings. He is encouraged to do it rather than to show a sort of white feather. Therefore on that occasion, still thinking it would be a good thing to impose it on older men for certain crimes, but not on boys, I abstained from voting. I think we were right to send the matter back to the House of Commons to see whether they would take a different line with regard to whipping with the birch than they had previously taken to whipping with the cat-o'-nine-tails, which is, of course, a very different kind of instrument. That matter has been considered by the House of Commons. The noble Lord said that there were no Members from the Front Bench—I think he meant the Conservative Front Bench—who voted on that occasion, but I know of one, namely, Captain Osbert Peake. If the noble Lord had looked up those who voted in the "Ayes" as well as those who voted in the " Noes," he would have found his name amongst the "Ayes."


I beg his pardon.


And I know that from his experience at the Home Office, which was quite considerable, he was convinced that the time had come to get rid of whipping of any sort as a form of punishment. This matter has now come back to us from the other place. They have considered the Amendment that we made. It is my personal view now that we should not insist on the Amendment which we made last time. I would myself like to see this measure go back from this House after to-night with the single point of disagreement over which we have had a long debate—namely, that of capital punishment. An opportunity will then be given to His Majesty's Government to delete that clause from the Bill—it was never in it originally—and otherwise they can go ahead with substantially the whole measure they introduced, improved in the way that it has been improved during its passage through both Houses. I think we should unnecessarily complicate the issue and unnecessarily complicate the simple proposition which some of us have seen fit to put to His Majesty's Government if we were now to insist on our Amendment for corporal punishment. Therefore I very much hope it will not be insisted upon to-night.

9.0 p.m.


My Lords, it is obviously very embarrassing and difficult for anyone who holds the views which I hold to address your Lordships after the speech to which we have just listened, and in this very thin House. It is embarrassing for many reasons. The noble Lord, Lord Chorley, did not make it any easier by talking about "stigmas" and "relics of barbarism," when we are trying to discuss to the best of our ability, without prejudice and without passion, the subject of the application of the criminal law. It certainly does not assist in the calm discussion of the question. It is embarrassing also for another and obvious reason. We do not want to risk the loss of this Bill by sending back to the House of Commons more than one matter of dispute. It may be—we cannot tell—that the House of Commons, when they nave to deal with the murder clause, may accept the view of this House, and, in that event, the Bill will be saved. I do not want your Lordships to think that I, personally, or some of those with whom I act most closely, regard the Bill as in all respects completely satisfactory. It has, I think, many faults of omission and some faults of commission. But, at any rate, it is a better Bill than when it reached this House. The objects at which it aims, and which we all welcome—greater classification of criminals, greater facilities for dealing with young criminals, and so forth—are things which most of us, particularly those associated with courts of summary jurisdiction and Courts of Quarter Sessions, have long desired. It, therefore, would be very agreeable if, in spite of the provocations of Lord Chorley, I were able to say that we would submit gracefully and accept the House, of Commons Amendments.

But I would like your Lordships to look at the other side of the matter. We believe that in all circumstances whipping is a deterrent, and that in some circumstances it is the best deterrent. Now, even at the risk of detaining the House at this late hour of the evening, I want to say something upon the word "deterrent," about which we have heard so much this afternoon. With great respect to those who hold another view, I cannot let the discussion go by without saying that I do not accept for a moment this perfectly modern notion that the only object of punishment is deterrence. It certainly is a very strong element in the idea of punishment. Punishment is the expression of the mind of the community with respect to the crime which has been committed. Furthermore, when the Lord Chancellor, to whom, again, I wish to express my respect, tells us that we cannot look in regard to these matters at the moral obliquity of the crime, in the first place it seems to me that that disregards that which every court of criminal jurisdiction does every day of its life, and must continue to do, and which every civilised society, every body of law that ever was created, must needs look to. Unless the enforcement of the criminal law is closely linked with the moral ideas of the community, it cannot stand. I cannot accept for a moment that we must look to deterrents and deterrents only.

These observations, I agree, may appear irrelevant to the smaller subject of which I am now talking. But they are not irrelevant at all. It occurs continually—I am quite sure it occurs in the experience, I do not say of the great Courts over which my noble and learned friend presides, but in the kind of courts in which I have been accustomed to sit and have on occasion presided—that young men appear who must be punished. Many matters which come before a criminal court for trial are easy enough to try. It is easy enough to make up your mind whether the facts alleged were truly alleged and truly proved. It is not so very difficult, with due assistance from the Bar, to put to the jury at Quarter Sessions and to your colleagues on the Bench at petty sessions the points which may arise. The real difficulty is determination of sentence. Especially does that difficulty arise when the convicted prisoner is a young one. I do not know how many times, but many times it must have occurred to every Chairman of Quarter Sessions, and to those who are associated with him, that the best course to adopt would be to restore a boy as quickly as possible to the life from which he came, not sending him to prison or to an approved school, but inflicting on him that sharp punishment which the moral sense of the community expects. He should be associated not with prison life, but with all the surroundings of stringent discipline which are necessary. It would be with the utmost reluctance that those who think with me and I would accept the advice which the noble Lord has given us. The House is thin. I do not for a moment shrink from the heavy responsibility which rests upon even so humble an individual as myself and which necessarily rests on the whole House in this matter. I do not feel at this stage we can withdraw our desire to maintain that which I believe to be a proper instrument of criminal law, proper to the sense of the community and most desirable for the convicted criminal.

9.6 p.m.


My Lords, I rather regret that the noble Marquess the Leader of the Opposition does not wish to speak before me because the embarrassment in which (like the noble Lord, Lord Schuster) I find myself would be relieved if I heard his advice in addition to the advice we have already received from the noble Lord, Lord Llewellin. I say so for this reason. Your Lordships heard the noble and learned Lord, Lord Simonds, explain earlier why he, as a Law Lord, did not take any sides in Party controversies. I entirely agree with him. I myself followed the same rule when I was a Lord of Appeal in Ordinary, but I have ceased to be that. Certainly I am a Law Lord and from time to time sit as such. In these circumstances I am not restricted as to political affiliation or activity, and I am happy and proud to acknowledge the noble Marquess as my Leader, because his wisdom and humanity are both unsurpassed.

Apart from anything we might decide to do when we have heard that advice, I think it right to assert what in our opinion ought to be done and why we think it should be done. I wholly agree with the noble Lord, Lord Schuster, and with what I expect we shall hear from the noble and learned Lord the Lord Chief Justice. In my opinion we are right, and the House of Commons wrong, about this clause. I say so for these reasons. I will leave the adult criminal to the Lord Chief Justice, who in his day-by-day administration knows more about them. I say only that when I was a Judge I certainly had cases in which, in order to represent the sense of the community on the gravity and wickedness of the crime, a flogging was the right and the only right remedy. In one case I sentenced a boy who had committed a gross assault on a girl to a flogging with the cat o' nine tails as opposed to the birch, on the direct advice of Sir Alexander Paterson. When taken down from the triangle, that boy said: "I shall never do that sort of thing again." I have never been convinced that it is not a remedy, that it does not lead to repentance and the resolution not to do the like again.

I will leave that, to deal with what, from a long experience of work among boys' clubs, I believe to be necessary for their good and for their salvation. I confess I find it a little irritating when I hear the noble Lord, Lord Chorley, in introducing this Motion, parading the Report of this Committee. I desire to speak with the greatest respect for members of the Committee, several of whom are my acquaintances, and even my friends. But it really is a most illogical and unconvincing Report. The noble Lord, Lord Chorley, glossed it over, as regards its inconsistencies, by saying that the Committee represented that with regard to people in prison corporal punishment was some deterrent, though perhaps not a very great one. What they say about it is this: The fear of corporal punishment has a strong deterrent influence upon prisoners who might otherwise commit serious attacks upon prison officers. The noble Viscount, Lord Templewood, does not like corporal punishment. He is quite frank about it. So far as I can see, the record of events is that when the prison visitors recommended this strong deterrent, he reversed the decisions in most cases. That is my reading of the Blue Book. However that may be, this Committee said it was a strong deterrent. Outside—though why people differ so much outside from those inside I have never been able to follow—they said it was some deterrent, though not very much. Instead of it, they wanted long sentences of imprisonment. That might be the very worst thing in the world for the prisoners in question.

The Committee go on to say this, which seems to me to be almost the most precious jewel in the Report: We are prepared to admit that a man may take good care to avoid doing anything which might earn him a second flogging, but there seems a great risk that instead he may be more apt to commit other offences for which flogging is not a penalty. One would have thought, if you reduce violence to non-violence, that that was some argument for maintaining the penalty, if not for adding to the number of offences for which it can be imposed. I am unable to treat this Report seriously, and I do not know why it should be so treated. It is said by the noble Viscount, Lord Templewood, that the Report is so valuable because it shows that flogging, or whipping, has so declined that it has become of negligible proportions.


I do not wish to interrupt the noble Lord unnecessarily, but I have never said anything of the kind. I have never associated the two together. I stated the fact—which is a fact that nobody can deny—that in 99 out of 100 courts of petty sessions it has become obsolete.


I do not want to enter into controversy with the noble Viscount, but did I say anything to the contrary?


I may not have heard the noble Lord accurately, but I understood him to say that I quoted it from the Report.


No, I did not. I understood the noble Viscount said that the Report showed it, and that he said it of his own knowledge also. However that may be, I am going to give your Lordships some figures to show that that is by no means a matter for congratulation. I know that this Report has been sedulously commended in many quarters, and it has had great effect. I am sorry that it has. What are the figures in regard to juvenile delinquency? If anybody can contemplate these with equanimity, I am at a loss to know why. I gave the figures to your Lordships on the Committee stage, but I will give them again, briefly, in order to combat the view which has been put forward in many quarters that this juvenile delinquency is all due to the war. It is not so. Between 1921 and 1933 juvenile delinquency had risen by 40 per cent. It started by being under one-quarter of 1 per cent. of the juvenile population in question; and it had risen to one-half of 1 per cent. in those eleven years. Between 1934 and 1938 it had a more rapid rise, until it hid risen to nearly 1 per cent.

If the gradual diminution of flogging or whipping was a good thing, you would expect that process to be reversed. Or, to put it another way, I should expect the statement that the abolition of whipping was a good thing, to be accompanied by an assertion that there had been other remedial measures adopted which had diminished the flow of juvenile delinquency. Of course, the war came, and the floodgates were opened. I think the causes of this are the decay of moral teaching, the decay of parental control, and the great laxity of the administration of the law in juvenile courts. They are very good for the mischievous boy. But we are not talking about the mischievous boy. These figures all relate to boys pleading guilty, or boys convicted of indictable offences, breaches of the law of the land—most of them dishonesty. When the war came, the floodgates were opened; and the opportunities of the blackout were great. And what has the proportion risen to? It has risen to 3,000 out of every 100,000 of the juvenile population of that age group—that is, 3 per cent. If anyone can view that with equanimity, or regard that as a sign of the remedial effect of the abolition of whipping, I for one am amazed, and not prepared to agree.

I think that for boys who at present regard themselves as being let off when they are merely talked to and bound over, and for boys of obstinate and unconquerable tendencies, whipping is a perfectly sound and well-proven remedy. I do not believe in whipping every boy who comes into court. In the old days, no doubt there was too ready resort to the rod. I believe that in that class of case, and another class, that of cruelty to animals, it is a very appropriate and useful remedy. I read the other day in a local paper of boys who stoned a duck to death upon a village pond, and who were bound over. Such boys go away saying that they "got away with it." If those boys had been well whipped, I think it would have done them a great deal of good, and would have tended to prevent that sort of thing happening again. For those reasons, I believe that the vote in this House was perfectly right, and that on principle we ought to adhere to it. It is possible that, on grounds of expediency, we should allow this Bill to pass as it is, even with this defect. But I will wait and listen to the noble Marquess, before deciding upon the course that I shall adopt to-day.


My Lords, if I might intervene for only one moment—I feel that it is somewhat bold of me to do so, after the speeches to which we have been listening—I should like to say what I know is in the minds of many noble Lords in this House who do not sit upon Front Benches or occupy important positions, as do some noble Lords who have spoken. There are a great many people in this House who, like myself, have had, in a minor degree, a certain amount of experience over a good many years of the subject which is being discussed this evening. Many of us have been impressed very much indeed by the speeches made by the Lord Chief Justice, and the various practical experiences which have been placed at our disposal, as it were, upon which to form a judgment in this matter. I am bound to say, speaking not only for myself but for others, that a good many of us on the Back Benches thoroughly endorse, and feel encouraged to agreeing with, the view that in the very exceptional cases—and of course they must be very exceptional cases—the punishment of whipping is one which it is not for us at this moment, given present conditions, to abolish.

I feel emboldened to make these few remarks because I have been asked to do so, and because I believe that it is not accurate to say that the overwhelming majority of people in this country have come to the conclusion that the deterrent effect of this punishment is not sufficient to justify its retention. Like the noble and learned Lord, Lord Roche, I am anxious to hear what the noble Marquess advises us to do. At the same time, I do not think it would be fair to allow the impression to get abroad that the line taken by the Lord Chief Justice of England, and by others of great experience who have spoken on this matter, does not command a great deal of support both in your Lordships' House and in the country.

9.22 p.m.


My Lords, the noble and learned Lord, Lord Roche, was good enough to say that he would pay some attention to advice that I might give on this very difficult point. Perhaps I may be allowed to say how greatly I appreciate that remark of his, especially coming from a man for whom I, like all other noble Lords in this House, have an immense personal respect. I am afraid I do not attach quite the same value to my own advice as Lord Roche has been good enough to say that he attaches to it; but, as he has asked for it, and as his request has been repeated by the noble Lord, Lord O'Hagan, I will certainly give it for what it is worth.

Like other noble Lords who have spoken this evening, I find myself in some difficulty, because I have great and real sympathy with what has been said by the noble Lord, Lord Schuster, and the noble and learned Lord, Lord Roche. On the last occasion on which this subject was discussed in your Lordships' House, I both voted and spoke in favour of the retention of beating in our penal code—though not for the retention of the cat-o'-nine-tails. I do not say that I am in favour of whipping being used freely; I think it should be used as seldom as possible; but I should have thought that it was clearly a penalty, probably the only penalty, which would appeal to a certain type of young "tough" of whom we must confess there are more than there should be in this country at the present time. Your Lordships may have read of a case in point only last week, where a boy of sixteen was charged with robbery and violence on two occasions. The Recorder who was trying him sentenced him to a term of imprisonment and proceeded to say that, in consequence of a gap in the law, he was unable to sentence the boy to be beaten, although he felt that that would have been the proper penalty in that case. That is a view which is widely held by men of great experience and authority in the law I could not agree with what the noble Lord, Lord Chorley, said, that to send such a boy to prison for a long term with what the noble Lord called "reformative influences" would be more likely to save him from becoming an habitual criminal.


I was speaking of adult. A youth, of course, would be dealt with by Borstal treatment or other Home Office approved school treatment.


I do not believe that a long term of imprisonment with "reformative influences"—whatever they may be—would be necessarily more liable to save him from becoming an habitual criminal. I should have thought that where men had gone to prison for a considerable term—and I understood from the noble Viscount, Lord Maugham., that it would be a considerable term—they might well come out with the brand of the criminal more firmly fixed on them than if they had a short, sharp punishment. I do not think that this is anachronistic, barbarous or out of date. I should have thought that it was based upon sound common sense, in spite of the attitude which I understand was adopted by the Opposition Front Bench in another place, to whom the noble Lord, Lord Chorley, paid the high compliment that they were a fair reflection of public opinion. I think that is probably true. I resent the attitude adopted by some noble Lords that this is an uncivilised punishment, and that other countries who have abolished it must necessarily be more civilised. I do not think that our record in this respect goes to show that we are less civilised than other countries. It goes to show that we are more robust than other countries.

Having said all this, which may be regarded as fairly strong argument in favour of retaining the penalty, I must say that I hope noble Lords will not press this matter to a Division. We are always in a difficult position in this House. Very often we disagree with the Government and feel inclined to press our disagreement to extremes and vote against them in the Lobby. But, if we gave way to our natural impulses on every occasion, it would make the conduct of business, as between the two Houses, almost impossible. I gave this advice to the House at the beginning of this Parliament some two or three years ago: that it should be our practice to persist in our insistence only upon issues which we regard as constitutional ones. I conceive capital punishment to come into that category, for it is really a great issue. It is an issue which has aroused public opinion to a degree that I do not remember in the case of any individual issue of that kind for a very long time. Whatever other political considerations we had to take into account, I think we should have been entirely wrong not to abide by our decision in that case, if we felt it was the right one. But, frankly, I cannot put corporal punishment into quite the same category as capital punishment. I should like to see it retained in the penal code for use when necessary, and I believe in individual cases it is the right penalty; but I cannot honestly say that whether we keep it in or turn it out will make a very great difference to the whole structure of law and order in this country. That is what I call the main issue which would be involved by a matter of this character.

Therefore, in the circumstances, I think we should be wiser not to insist upon this particular Amendment. I think that we should, as we have done, stand firm upon the question of capital punishment; but, upon this particular issue, I feel that, we should be wise to compromise. I say this with reluctance. It does not represent my personal view of what I should like the law to be, but I believe that we should be wiser to concentrate our decision upon bigger problems. I think that would be also the view of the British people as a whole. They have expressed their view on the question of capital punishment in no uncertain terms, and everybody knows it. But I do not think their view is nearly so well known on the question of corporal punishment. I should think there is a pretty even division in the country upon this particular issue. Therefore, we cannot say that we, as one of the Houses of Parliament, certainly represent the view which is strongly taken by the electorate as a whole. For all these reasons, I do not think that we are justified, in regard to this particular issue, in taking the same action that we took with regard to the larger decision this afternoon. Therefore, I must advise the noble Lord not to press the matter to the extreme.


My Lords, before the Question is put, as I was responsible for moving the Amendment which retained whipping with the birch, perhaps I ought to say a few words. I feel very much in the same position as the noble Marquess who has just addressed the House. I think it is a profound mistake that I should now have no option with the young man of twenty-one who robs with violence, who cannot now be sent to Borstal, but to send him to prison—and to prison he will go for quite a long time if he has been guilty of robbery with violence. I should much prefer to do as I did ten days ago at Stafford Assizes—to give him a very short sentence and a whipping, so that he could go back a better man. At any rate, he would not be contaminated by a long sentence of imprisonment. However, I recognise the force of the noble Marquess's observation, and therefore I will not press this matter to a Division. It may, however, be of some comfort and some joy to these young "toughs" to think that no longer will they have to suffer any of the pain that they have inflicted on their victims, and that the pimp and the procurer can pursue their ancient and dishonourable trade confident in the thought that while they throw their wretched victims on the streets and live on the proceeds of their shame, and while they may drive them with blows, they themselves are exempt from corporal punishment.

On Question, Motion agreed to.

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