HL Deb 29 June 1948 vol 157 cc29-36

3.18 p.m.

Amendments reported (according to Order).


My Lords, may I point out to the noble Lord, Lord Saltoun, who is to move the first Amendment on the Marshalled List that it may be convenient to adopt the practice which is usual in Committee, to move to postpone the Title? Obviously, what the Title is, depends upon what happens later on.


My Lords, I am happy to accept the noble and learned Viscount's suggestion and I beg to move that the Title be postponed.

Moved, That the Title of the Bill be postponed.—(Lord Saltoun.)

On Question, Motion agreed to.

Clause 2 [Abolition of power to pass a sentence of whipping with cat o'nine tails]:

LORD SCHUSTER moved to add to the clause: (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 Garroters Act, 1863, section three or section seven of the Criminal Law Amendment Act, 1912, or section twenty-three of the Larceny Act, 1916."
The noble Lord said: My Lords, this is not so formidable an Amendment as, it looks. It is an attempt to tidy up the situation as it was left at the end of the Committee stage. Your Lordships then decided two things: that there should be no more use of the cat-o'-nine-tails, and that whipping should continue with a birch. That ought to have involved our going on to amend the Schedule by taking out those Statutes which allowed whipping, which your Lordships will find on the last page of the Order Paper. But there was also implicit in what your Lordships then decided that those curious Acts, such as the Knackers Act and the Diplomatic Privileges Act, under which whipping is allowed, should, so far as they related to whipping, be repealed. What I have tried to do, therefore, is to put into the Schedule the three Acts which are to be preserved and to mention them in the Amendment which I am now proposing. All that, so far as that goes is mere form and follows on what the House decided last time. I do not propose to say anything further in support of it. It will be noticed, however, that it has been necessary to consider he question of boys under the age of sixteen. I believe that this matter was fully discussed in Committee, and I do not want to take up any more time than is absolutely necessary.

There are only three things which I would like to say, speaking partly on behalf of my noble friend, Lord Roche, who has great experience in these matters, and partly on my own behalf. Cases are constantly coming before inferior courts (of course, my noble friend Lord Goddard is more concerned with sentences of whipping which are inflicted by courts of superior jurisdiction) where the court are in great difficulty in knowing what to do about the boy. In the cases which I have in mind, they feel, and rightly feel, that he must be punished, whichever view is taken of punishment—whether it be reformative, whether it be an expression of the annoyance of the community as to what has been done, or whether it be viewed as a deterrent to other boys. The courts in which I have sat were and are extremely reluctant to send a boy away from his parents to an approved school or to some other place which takes him away from his natural surroundings. The natural, simple, ordinary sort of thing to do in those circumstances—it has always seemed to me and to many other people to be in the boy's interest and in everybody else's interest, including that of society—is to see that he is whipped. That is my first point.

Secondly, I would remark that we, and everybody who considers this question, are necessarily greatly troubled by the growing increase in what is called juvenile delinquency. That increase has been going on for several years and it has coincided with the change of mind towards this particular form of punishment which has also been taking place during those years. Of course, I would not be so foolish as to contend that the abandonment of the use of the birch was the sole cause of the increase in juvenile delinquency. However, I think it is a matter which has at least contributed, both in respect of the attitude of the boys themselves and in respect of the general attitude of the courts towards the treatment of the young offender. I do not want to labour that point. I hope that I have said what I really think about it. If I go on talking about it at length, I do not think I shall improve upon it.

Lastly, I should say this. The Committee which reported in favour of the disuse of all forms of whipping sat a good many years ago. They were not then faced to the same extent as we are now faced, with the increase in deliquency of which I have already spoken. Obviously, in those day I would not have taken the view which they took, and I have no doubt that even to-day they would probably take the view which they then took. I am not quarrelling with that at all, but I think it is a comment upon their recommendation that matters have changed to the extent I have indicated. I must mention one argument which is frequently used—it was actually used during the Committee stage of the Bill. It was said that a boy would sooner be whipped than otherwise and that, when he has been whipped, he exhibits his wounds to his comrades for a sum of money, which I have heard variously stated as 6d. to 2s. 6d., and gains a great deal of prestige from his whipping. That may or may not be so, but I should want a great deal of evidence before I took it as a general and ascertained fact which should influence anybody's judgment upon the question. That is all I want to say. I do not want to argue to-day about this question of whipping boys, because I think we spent quite enough time talking about it on the previous stage. However, I could not draft my tidying-up Amendment without bringing it in, and I could not, in the absence of my noble friend Lord Roche, allow the matter to pass without saying what I have said. I beg to move.

Amendment moved— Page 2, line 18, at end insert the said subsection.—(Lord Schuster)


My Lords, as I was responsible during the Committee stage for the Amendment which preserved birching, I should like to say a few words now. Before I do so, would your Lordships grant me indulgence to correct a statement relating to capital punishment which I made to the House on the Committee stage of the Bill? I ask your Lordships' indulgence because my duties at the Assizes will prevent my being present on Third Reading. I asked my noble friend Lord Schuster to say that the Judges were unanimous in regard to that matter. I knew that they were not unanimous on the question of corporal punishment, but I thought they were unanimous on the subject of capital punishment. Two of the Judges informed me afterwards that I was mistaken. I am sorry that I was mistaken, and I apologise deeply to your Lordships. I am sure that your Lordships will acquit me of having in any way intentionally misled your Lordships. Two of the Judges told me (it shows what tricks memory can play) that they would support a proposal of an experimental period of five years—that is, two judges out of twenty. Immediately before I said what I did, I told your Lordships that I thought that the Judges represented a very good cross-section of opinion in the community. If that proportion of the Judges took that view, a larger proportion took the other view, and that rather reinforces my argument. I hope that no harm has been done by the unfortunate error that I made. I do not think that it would have affected your Lordships' vote had I said that two out of twenty Judges were prepared to support the experimental period. I am glad that I have been able to put the matter right before the Bill goes back to another place, and I hope that these remarks of mine will prevent any misunderstanding on the subject.

With regard to this particular Amendment, I have only this to say. I do not feel strongly one way or the other about the whipping of boys under the age of sixteen. Others much more experienced in these matters than I am addressed your Lordships upon that matter. With regard to the other part of the Amendment moved by my noble friend Lord Schuster, I think that it does all that we require. It preserves whipping for the three classes of offence (that is to say, robbery with violence, garrotting and living upon immoral earnings) which are the only three offences for which I urged upon your Lordships that it was necessary to preserve some form of corporal punishment—namely, whipping by birch—not only for the purpose of the infliction of some pain, or whatever you like to call it, but also because of the ridicule which it evokes.


My Lords, I feel rather tempted to reply to some of the observations made by the noble Lord, Lord Schuster, but, after all, as the noble Lord himself has pointed out, this is a tidying-up Amendment. It seems to us that, your Lordships having taken a certain view about these things which the Government resisted, this tidying-up Amendment is necessary. Therefore, on the basis that we still do not agree with the principle, we accept this Amendment.


My Lords, I would like to make one comment upon what the noble Lord opposite has just said. I may have misunderstood the position. I certainly understood that all the Committee agreed to was the proposition of the Lord Chief Justice—namely, the continuance of birching in the superior courts. The discussion that we had then did not raise the second of the noble Lord's arguments at all. I personally object to judicial whipping of all kinds, and I could make as strong a case as possible against both kinds of judicial whipping. For the time being I am prepared not to ask the House to divide again upon the side of the problem with regard to which we divided upon the Committee stage, but when it comes to Lord Schuster's second proposition—namely, the revival of birching for offenders under sixteen—I would remind the House that that is a question upon which your Lordships never divided.

Without taking up the time of the He use, I would like to make these two or three very short observations. First of all, in actual practice, the judicial whipping of young offenders under sixteen has become almost obsolete. The better or more enlightened Benches of the country—I say this with great deference in the presence of my noble friend Lord Schuster—


I do not know why I am less enlightened than other people.


I am implying that the noble Lord is one of the exceptions to these rather exceptional Benches where this punishment still continues. I believe I am right in saying that last year there were only twenty-five sentences of this kind in the inferior courts, and that those sentences were given almost entirely by two or three Benches where these prejudices still exist. That seems to show that public opinion is against the continuance of this form of punishment. Moreover, public opinion is not ignorant of the matter. We have had the Report of the Cadogan Committee, in which a great body of evidence was collected. I agree that it was more than ten years ago; none the less, I claim that it is just as relevant to the present situation as it was then. That Report proved, at least to me, that this type of punishment was not a necessary deterrent and that, in the cases where it was applied, it did not seem to have had any particularly good effect upon the young offenders concerned. Secondly, we have the fact—and I do not wish in any way to give undue influence to it in your Lordships' House—that in another place, throughout all the protracted proceedings upon this Bill, no Division took place in favour of the continuance of this kind of punishment. That seems to me to show how much public opinion has hardened against it in the years since the Cadogan Committee reported.

I well remember how bitter was the controversy upon this subject when I was in charge of a similar Bill in 1938. Now, public opinion has so far advanced that no one in the other place took the trouble even to seek a Division against the Government proposal. Lastly, the Magistrates' Association (a body representative of many thousands of magistrates) have definitely come to the conclusion that they are opposed to the continuance of this punishment. I will not take up your Lordships' time further, but I hope that I have given sufficient reasons to show that it would be a most dangerous innovation at this moment to add to this Bill a provision such as my noble friend Lord Schuster has just proposed.


My Lords, I think there is some misapprehension here. I do not want the House to get into "heavy weather" about this Amendment. The position stands in this way: the Government proposal was that there should be no judicial whipping at all, and in the committee stage your Lordships inserted the words dealing with the cat-o'-nine-tails. Under the Bill as it now stands, there will in the future be no judicial whipping with the cat-o'-nine-tails; but the cases in which you can whip otherwise than with the cat-o'-nine-tails are not touched by the Bill. That is the position as we have it to-day, and all Lord Schuster is doing is to clarify that position and, incidentally, rather to modify it, because there are one or two rather ridiculous privileges under certain Acts which he eliminates. He merely asserts here what is the existing law. I must make it quite plain to your Lordships that the Government's view has been against all forms of judicial whipping; and that remains the Government's point of view. But as your Lordships did not accept that position, all we are doing now, by what is in effect a consequential Amendment, is to tidy up what this House has already done on the Committee stage. The Government must not be taken as accepting the proposition that there must be whipping either under (a) or (b) of the Amendment. Our point of view is the same—namely that there should be no judicial whipping; but, having passed that Amendment limiting whipping, this is merely a consequential Amendment on that.


My Lords, I do not think I am allowed to speak again on Report without leave of the House. If I may have the leave of the House, I would like to say only a few words because I have been called "unenlightened," "reactionary" and "prejudiced." All I was trying to do by this Amendment—as the Lord Chancellor has already said, in far better terms than I could—was to tidy up the situation. I was not trying to provoke anybody into going into the whipping question at all, and I am very sorry indeed if the words I used produced that effect. That was not my intention.


My Lords, as I was the person who in Committee proposed the Amendment to tidy up this matter, and as the noble and learned Viscount said he would consider the matter between that stage and Report, may I say a word? What I had in mind was that if we sent this clause, as amended in Committee, back to another place, we should not want it said against us, as might be thought to be the case, that we were still in favour of whipping people under the Diplomatic Privileges Act, or under the Knackers Act, or under a number of obsolete Statutes. I still take the view that it would be a good thing to be able to inflict whipping for robbery with violence and under three other Acts—with regard to living on immoral earnings and encouraging prostitution—which are set out in (b) of the Amendment now before the House. On the other hand, I do not think it is any good retaining whipping for boys under (a). At any rate, this is obviously a limiting Amendment on what we did before and, from that point of view, I had hoped it would have the support of the House.

On Question, Amendment agreed to.