§ 3.50 p.m.
§ Debate resumed.
§ LORD GODDARDMy Lords, the fact that this Motion has come before your Lordships' House so soon after the Motion which was made a year ago by my noble friend Lord Lloyd, shows the public disquiet that exists on this subject. I can assure your Lordships I need no evidence of that. My postbag is sufficient reminder. Hardly a day goes by in which I do not get three or four letters from people all over the country wanting to know, with that charming ignorance so many people have of a judge's powers, what I am going to do about it, when I am going to restore flogging, or what I can do to prevent the reign of terror which exists in some places—I do not say in all, of course. None the less, it is true, from the evidence I have in this correspondence, that not only in country districts but in places as near here even as South Kensington many old people are terrified to answer a knock on the door at night.
That is my excuse for asking your Lordships to allow me for one moment to deal with the general situation and not merely with violence. I think the whole thing is largely one problem. It is time it is realised that crime—and serious crime—has increased in this country to an alarming extent, so much so that the amount of criminal work which has to be done at Assizes bids fair to put the whole legal machine out of gear. I am not speaking in the language of exaggeration; I assure your Lordships I am not. When the noble and learned Earl, Lord Jowitt, as Lord Chancellor, procured an increase in the judiciary, it was hoped that that would relieve the state of affairs in London. London has always been the Cinderella and had to put up with the number of judges left in London when the circuits were on. But because of the grew increase in crime, to most of the one-judge places—that is to say, circuits where one judge used to visit—we have now to send two judges; and to three places at least we have to send three judges instead of two. The Autumn Assizes have now been on since October 1, and not a week goes by but that I get a letter from a colleague on circuit asking if I can send help.
850 Let me say at once that no Chief Justice could ever look for more help than I have received from the noble and learned Lord who now sits on the Woolsack and his predecessor, Lord Jowitt. They have never failed to give as much help as they possibly can. These letters tell me that the Assize judges cannot get through the work. The consequence is that civil litigation is left and is piling up in arrears. At this moment London is short of three judges. I had to ask two judges to go off to Lancashire three weeks before the ordinary Assizes and begin to try to deal with the arrears which have been piling up, simply because all the judges were occupied during the Winter and Summer Assizes in trying crime. This is becoming a serious state of affairs and we are so short of judges in London that civil work is getting into such a state of arrear as has not before existed since I first became Chief Justice.
There is one form of pernicious crime which is not unrelated to some of the matters which the noble Earl, Lord Howe, brought to your Lordships' notice. Many of these crimes of violence are committed for the sake of theft, in which case the criminals have to find receivers. I do not want to take up your Lordships' time by giving a large number of figures, but it might interest your Lordships to see how the offence of receiving stolen goods has increased in recent years. I am not dealing with juveniles; nothing I am going to say to-day deals with juveniles, but with persons of twenty-one years and over. In 1938, receivers of stolen goods numbered 1,840; in 1950, there were 3,569, and in 1951 there were 4,541. That is a serious state of affairs.
But this Motion deals with crimes of violence. In 1948, when the Criminal Justice Bill was then before this House, I moved an Amendment which your Lordships accepted, the effect of which was to give the courts power to administer the birch but which eliminated the "cat." I moved that Amendment, not because I thought that the "cat" was a terrible instrument—the noble Viscount, Lord Templewood, from his experience at the Home Office, stated in the course of the debate that it was not now a terrible instrument—but because the fact remained that if a man was given the "cat" he was too often looked upon among his fellows as a hero or a martyr, 851 and that was a bad thing, whereas the birch, laid on by a chief warder who knew his job, gave a certain amount of pain while certainly leaving no marks—and I suppose a chief warder can lay it on as well as Dr. Busby at Westminster and Dr. Keates at Eton. It gave criminals a taste of something very unpleasant, and very often led to considerable ridicule when they came out. And nothing kills quicker than ridicule. Although your Lordships accepted that Amendment, it fell to the ground in another place and we did not insist upon it.
I said then that I was afraid that once the penalty was removed altogether—in a moment I am going to deal with the limited number of cases in which it could be given—that would have a bad effect in regard to violence generally, because it would lead young men to think that whippings had gone, violence was not going to be treated as it was and there was so much the less reason for curbing their violent instincts. In 1950 my noble friend Lord Lloyd brought this matter before the House again, and then I said—and I humbly believe I was right—that I thought it was too early to re-impose a penalty which had been deliberately taken off only two years before. Because I think it is a bad thing to be continually interfering with the penalties prescribed by the criminal law. But at that time I did say that I thought it might come, and might come soon, when the reimposition of some form of corporal punishment should be considered.
Let us see whether that time has come. I know that we shall be told in the course of this debate—and I willingly accept it—that robbery with violence is less now than it was two or three years ago. The figures taken from the criminal statistics certainly bear that out to some extent. Unfortunately, the statistics do not distinguish between simple robbery and robbery with violence, and the whip could be given only for robbery with violence. The figures for robbery are these. In 1938, there were sixty-six convictions of people of twenty-one years and over; in 1949, when the Criminal Justice Act had already been in force for a year—rather more than a year, because flogging was abolished from August 1, 1948—there were 253 convictions. That does not 852 look very much like a decrease. Curiously enough, the figure in 1950 was exactly the same, that is, 253. Last year, I agree, the offences grouped under robbery have shown a gratifying decrease, and during 1951 there were only 158 convictions.
§ LORD GODDARDThey are figures taken from the criminal statistics, which I have here. I have taken the figures from the first part of those statistics which show the different ages of the people who have been convicted. For people of twenty-one years and over, the figures are 253 in 1949, 253 in 1950 and 158 in 1951. The noble and learned Lord may be looking at "Offences known to the police." There were 800 cases of robbery known to the police, and I regret to say that only 424 of those concerned were brought to justice.
Let us assume—and I am dealing with the matter on this assumption—that the offence of robbery with violence has decreased. But offences of violence have greatly increased, and increased to what I shall ask your Lordships to regard as an alarming extent. Convictions for the offence of violence to the person, committed by people of twenty-one years and over, numbered 1,304 in 1938, 2,682 in 1949, 3,056 in 1950, and 3,088 in 1951. Those were, of course, offences of varying degree of violence. But, as the noble Earl who moved this Motion said, it seems now that new and most horrible forms of violence are being used. I do not remember twenty years ago these cases of the use of one of the most horrible weapons one can think of—namely, a bicycle chain. The injuries that can be inflicted by the bicycle chain are perfectly dreadful. Unfortunately, razor slashing has always been known in disgraced parts of Glasgow, and it has now come down to this country in an increasing amount. The facility with which a safety razor blade can be concealed in the hand, and then used with the most horrible effect, has only to be seen to be believed. The cosh was not a weapon so much in use years ago as it is now. And if you hear the sound when somebody lets a cosh fall on a bench in court for a jury to see the sort of instrument it is, it makes one shudder 853 to think of its effect upon a human being's head. Those are the offences of violence.
I want now to take what I believe are the main objections that are urged against any form of corporal punishment. The first was brought to my attention by a man whose experience could never be doubted, because he was Permanent Under-Secretary of State at the Home Office for so many years—namely, the noble Viscount, Lord Waverley. He pointed out to me that one objection was that when these sentences of corporal punishment were given the judges so frequently passed only short sentences of imprisonment. No doubt it is desirable to lock up these ruffians for a long time. I think that objection is one which is easily cured by having it brought to the attention of the judges that these are people who should not only have a whipping, which may serve to discourage others from taking this course—and that is what is required—but that they should also be kept safe for some time from criminal activities in the future. In spite of anything that may have been said before the Cadogan Committee, it is, I believe, very rare—though not unknown, I agree—for a man who has once been whipped, or at any rate, flogged for robbery with violence, to repeat that offence. What we do know, and what every judge on the bench knew, was that up till 1948 nobody would ever plead guilty to robbery with violence. They would often offer to plead guilty to robbery, and would instruct their counsel to try to get such a plea accepted; but they would never plead guilty to robbery with violence, because they were afraid of the consequences that would follow—that is, that they might receive corporal punishment.
As I say, if it be an objection that the judges pass too short sentences of imprisonment when they order whipping, that can be remedied. But there are always the cases of the young prisoners. It is a dreadful thing to have to send young men of twenty-one or twenty-two to long terms of imprisonment. I once had before me at the Old Bailey two young boys, one of seventeen and one of fifteen—and I regret to say that the boy of fifteen was worse than the boy of seventeen. One armed with a cosh and the other with a heavy air pistol, they jumped into a train at a suburban station 854 where a lady was sitting alone. They attacked her, beat her about the head, and hit her with the cosh while she was lying on the floor, and escaped through the station. But fortunately they were caught. They did that for the few shillings which she had in her handbag. It was a distasteful thing to have to do (I could not order them a whipping for an offence of that sort; and heaven forbid that one should send these sort of boys to Borstal; moreover, if they went to Borstal they would stay there only for a short time) but I gave the boy of seventeen seven years, and I ordered the boy of fifteen, under, I think it is, a provision in the Children and Young Persons Act, to be detained for five years in a place to be selected by the Home Secretary. No judge likes doing that.
Mr. Justice Oliver, in that horrible case in Lancashire which the noble Earl, Lord Howe, read out, said how absolutely distasteful it was to him to have to send those boys for long terms of imprisonment. I was talking to that most humane of judges, who has, I suppose, more of these cases before him than most, the learned Recorder of London, and he told me that time and again he is faced with difficulty because he cannot order prisoners to a dozen or fifteen strokes with the birch, but has to send them to prison, where, unfortunately, they may very likely get into worse habits than they had before.
But what are we to do? It has always been said by the advocates of the total abolition of any form of corporal punishment: "Give long sentences." Well, long sentences judges must give. I dislike very much giving long sentences to young men of this age, but if they commit these horrible offences you must punish them, and you must punish them severely: and if the only punishment you can give them is imprisonment, you must give a long term. In some cases with young people I should very much prefer to be able to give them something which would make them remember it for a considerable time, and a short sentence of imprisonment. I did that once at Cambridge Assizes, where an excellent farm labourer, whose master was very sorry to think that he might lose his services, went into a jeweller's shop, knocked the jeweller down with a hammer, and then, after giving him another one while he was on the ground to make 855 sure he did not get up, walked off with a handful of watches. Fortunately, in that case I felt able to order him a whipping and a short sentence of imprisonment, so that he could get back to being a good farm labourer, as I hoped, and help with the forthcoming harvest. I think that was a much better way of dealing with him than sentencing him to five or six years' imprisonment.
The objection to corporal punishment which I think has much more in it is that its application was, if I may use the expression, too fortuitous. In effect, it was only given, and could only be given, except for one or two quite exceptional cases, for robbery with violence. Therefore, you might have a case in which a man had brutally ill-treated an old person or, for that matter, a young person; he might commit the most brutal assault, but if he did not steal something from the girl's bag or from the man's person or property in his room at the time there would be no robbery; and so you could not give a sentence of whipping. That was an objection. It would mean that you could have two cases at the same Assizes, in one of which you could give a whipping because a shilling or a fountain pen or something had been stolen, and in the other, in which perhaps far greater injury had been done to the person, you could not give it because the violence was not accompanied by any theft.
What I venture to submit to your Lordships is that, with this great increase of violent crime, the superior courts should be given power, in their discretion, to inflict corporal punishment for all forms of felonious violence. I should never give it, of course, for the misdemeanour of what is called unlawful wounding, because that means that it is done without real criminal intent. But for felonious wounding, wounding of police with intent to evade arrest and for attempted murder, I believe that the time has come when Parliament should seriously consider whether the time has not come to re-impose some of these penalties. I hope that nothing I have said will make your Lordships think that I am a believer in the indiscriminate use of the birch—which I should still like to see the only instrument used, except the cane, and not the "cat." I do not believe that it would do away with crime, but I think 856 it might very substantially reduce it, because I believe that once these young men know that they will run the risk of corporal punishment if they are caught, they will be far less likely to take the risk, which they are apparently ready to take at the present time, of imprisonment.
On these occasions we are always told by the opponents of corporal punishment that corporal punishment does not deter. If it does not deter, why, as the noble Earl, Lord Howe, asked, has it been kept for prison offences? It is said that you cannot give a prisoner any other punishment. He is already in prison, but you could increase his sentence. That was done after the Dartmoor mutiny, when a special assize was held to deal with those offences and the prisoners all received very long sentences for the part they took in the mutiny. I venture to say that the reason why corporal punishment has to remain for the offence of assaulting prison officers is because the prison officers would not stand for its removal. I am told that it is difficult enough to get prison officers at the present time, and if you took away that protection from them I believe there would be wholesale resignations.
I believe there is some confusion of thought on this subject of deterrents. It may be that my mind is confused about it, and if it is I should like to be corrected. If the objection to imposing corporal punishment is that it is not a deterrent, that means, I suppose, that you should not impose any punishment which cannot be shown to be a deterrent. What then, are we to do about imprisonment. Is imprisonment shown to be a deterrent, with this enormous increase of crime? Do your Lordships know the statistics with regard to offences of breaking and entry? In 1938 there were 3,990 convictions of person over seventeen. In 1951 there were 9,378 convictions. Imprisonment was not much of a deterrent there, was it? That is the same with all these crimes which have increased in number. If you say that we should impose only a punishment which can be proved to be a deterrent, I do not know what punishment we could give. Of course, the truth is that all punishment is a deterrent, to this extent—that if the criminal law were abolished tomorrow, whose property or whose life or what woman would be 857 safe? Of course it is a deterrent. The question is whether corporal punishment would not have a deterrent effect at least as much as imprisonment. Imprisonment certainly does not stop people committing crimes, and although we shall never get to that Utopian situation when crime will be wiped cut by punishment, there is no question about it that severe sentences, properly applied in suitable cases, do have a marked influence or particular forms of crime.
A few years ago every assize court had three or four cases every circuit, and very often more, of that particularly mean form of offence of obtaining £3 on demand from the Post Office on a forged order. So common did that offence become that the Court of Criminal Appeal laid down that the minimum sentence for that offence, unless there was something wholly exceptional, should be three years' penal servitude. With the kind assistance of the Sunday papers, that became known by the classes who were apt to commit that sort of offence. While the offence has not been wiped out, we very seldom get a case now. Instead of having numerous cases every circuit, the judges tell me that perhaps they have one, but more often none. I believe it is entirely because people began to understand that that offence would meet with real severity.
I regret to say that there has also been—and this is closely connected to violent crime—a great increase in sexual crime. For the four years 1935 to 1939 convictions for rape averaged sixty-one a year, which was bad enough in all conscience. Your Lordships may be shocked to hear that in 1951 there were 119 convictions for rape—for the full offence. The prewar average for indecent assaults on females was 149. As will be shown in the criminal statistics, there has been a progressive increase of that offence, and in 1951 the number had gone up from 149 to 399. That is also a somewhat disturbing thought. What is to be done about it? The long-term remedies, which are no doubt most desirable—the reform of the prisoner and the provision of more police—we all know about, but I am afraid we may have to wait a very long time for them. It is a very difficult thing to reform many of these people, and it is not only the reformation that you want, but surely to have punishments which, 858 to use the rather stately language of the old indictments would "check the evil example of others in like case offending." You want to stop the new offenders from coming along—not only those who are already in prison or in a Borstal institution, with whom you can deal. You want to discourage those people who are not yet in prison, those who have not yet been convicted or who have not yet committed these offences, from committing them. That is where I believe the knowledge that corporal punishment might be given would be very useful.
May I remind your Lordships that in 1948 Parliament was asked to agree to a provision that after the passing of the Criminal Justice Act sentences of imprisonment only should be imposed—that is to say, there was only one class of imprisonment. Sentences of imprisonment with hard labour or of penal servitude were done away with. We were asked to pass this provision because we were told that at that time, by administrative action, I suppose, all prisoners were to be treated in the same way. That always impressed me as a striking instance of what f may call administrative legislation. There were on the Statute Book many offences for which provision was made for imprisonment without hard labour and many offences for which there was imprisonment with hard labour. And there were offences for which penal servitude could be given. Then, by administrative action, everything was made the same. Hard labour was abolished, and so for every prison sentence now you give simply imprisonment. Therefore you are giving the same class of sentence—I am not saying the same length—to these ruffians who beat up women and children, to the ruffian who violates little girls, as to the man who is picked up drunk and incapable or the greengrocer who persists in selling cabbages at over the maximum price. That is a serious matter—that there should be no different form of treatment, and that everybody should be sentenced simply to imprisonment. Hard labour has gone, and the effect of the judge's saying to a man, "The sentence is hard labour for seven years," or "You will go to penal servitude for ten years," which used to strike terror into the hearts of the prisoners' friends, has gone. The judge now simply says to the man, "You are going to prison."
859 My Lords, I have taken up a long time but may I just say this? The other day I received from the Home Office a copy of the Report of the Council of the Central After-Care Association. This is an Association which must commend itself to your Lordships; it has charge of young prisoners discharged from Borstal and so forth, and has certain duties regarding persons released under an Order made under Section 22 of the Criminal Justice Act. I find this very illuminating passage under the heading "General Observations:
The trouble with many of our men is that they seem to be devoid of all moral sense. Their judgment of what is right or wrong only appears to become quickened when some other person does to them precisely the same kind of action they themselves have been doing to others for years.…That is exactly what those who think as I do want to read. I do not want to take this passage out of its context, but it is a fact that the passage is illustrated by the case of a young thief who had been brought to his senses only because another prisoner had, as he put it, "pinched" his last cigarette. That really did open his eyes, the Council say, to the seriousness of stealing. The Council's observation, that with some men the sense of right and wrong appears to become quickened only when some other person does to them precisely the same kind of action they themselves have been doing to others for years, is, I submit, as apposite to crimes of violence as it is to crimes against property.There is one further observation that I should like to make. Formerly The Times was never a friend to corporal punishment. I remember that when the Motion of the noble Lord, Lord Lloyd, was before the House, as recently as March, 1950, there was a leading article in The Times still strongly against it. But the great mail-bag robbery, when Post Office servants were left battered and bleeding in the road, caused, I think, a change of mind. In a leading article on that robbery opinions were expressed in The Times which because they are put in so much better words than I can use, I will venture to read to your Lordships:
For a year or two after the war it was possible to minimise what was happening by putting the blame on tough ex-Service men and on youngsters, no less tough, who had grown up without parental control. Now the 860 war is too far off to be held responsible for what, so far as can reasonably be foreseen, is a chronic state of lawlessness. Full employment has not, as some optimists believed it would, improved matters.Now listen to this, my Lords:The larger measures of sympathy extended to convicted persons have not led to any noticeable change of heart in the criminal classes.… The considerable number of recent cases of brutal violence shows that the existing penalties do not deter.… The prisoner's friend who says that for these offenders physical punishment is useless has been given a fair hearing. The turn of the innocent victim to have a friend at court is overdue.…
§ 4.27 p.m.
§ VISCOUNT TEMPLEWOODMy Lords, I have taken part in many debates on this question and they have usually run the same course. I have been held up as the sentimentalist who does not possess any common sense and does not think of the victim, but thinks only of making it soft for the offender. Now to-day let me take up shortly the points that have been made so effectively by the noble Earl, Lord Howe, and the noble and learned Lord the Lord Chief Justice, and attempt to show that I am not a sentimentalist, that I am not a theorist, and that I judge this question as I judge every penal question—simply and only upon the evidence that is available.
Let me deflect for a moment from my argument to carry on the argument that has just been left by the Lord Chief Justice. He ended his speech by a quotation from a leading article in The Times. I wonder whether the noble and learned Lord has read the leading article of to-day. This leading article comes out quite definitely against the restoration of corporal punishment, on the ground that it is an antiquated and ineffective method. The conclusion, therefore, that the noble and learned Lord made has been entirely vitiated by the article which has appeared to-day.
But let me not delay with a question of this kind but come to my main argument. I am horrified, as much as Lord Goddard and Earl Howe, at these horrible crimes, examples of which we have heard described to-day. But I do say that, whilst we are all agreed upon their terrible character and upon the need to deal with them as effectively as we can, the question that we ought to consider is not: "Are they horrible or 861 are they not horrible?" We are all agreed that they are horrible. It may well be that they are becoming more horrible. The only question that I can see, or ask the House to consider to-day is: What is the most effective method of dealing with them?
The longer I study these questions of crime, the more convinced I become that they are very complicated questions. All sorts of considerations enter into them. No panacea is possible. Indeed, no quick remedy is possible for them. They cover so wide a field of die whole national life that one cannot isolate a particular point and say that this or that is going to lead to a quick improvement. This seems to me to be particularly the case with corporal punishment. When I was at the Home Office, I studied carefully the evidence for and against corporal punishment. I had no sentiment at all about the question. I studied it simply and only upon the evidence that was available to the Home Secretary. And what did I find? I found that, taking the last three quarters of the nineteenth century, it had never proved, so far as I could judge, an effective deterrent. In all the many cases that have been quoted so often—the case of the garrotters, the case of the "High Rip" gang and so on—an analysis of the evidence showed that the application of corporal punishment made no substantial difference or, if it did show anything, it showed that the situation was rather worse after it had been applied than it was before. The evidence also showed me that in Scotland, where there has never been any corporal punishment for crimes of violence, crimes of violence have been less, relatively, than they have been in England. It showed me, further, when I studied the records of the prisoners who had been flogged, that, judged by the evidence, it did not do them any good and, on the whole, it tended to make them more dangerous than they were before.
It was this evidence that made me propose in 1938, and made the Labour Government put the proposals into the final form in 1948, an attempt to approach he problem of crime—as I have said, a very complicated problem—upon a much broader front. That was the history of all the many proposals in the Criminal Justice Act, every one of which was based either upon an expert 862 inquiry or upon the actual experience of men engaged upon penal work. There was no sentiment about it, there was no theory about it. We took the results of these inquiries and we put the recommendations into our proposals.
To-day, I am not going to delay the House by going through these various alternatives, but let me summarise them. They were concentrated upon two objects: first, to deal more effectively with the young delinquent and to make it less likely that he would drift into a life of crime; and, secondly, to give the community better protection against the hardened offender. This latter was a particularly important part of the proposals: the proposal that empowered the judge to pass a much longer sentence than formerly upon the hardened offender and to keep him in prison under corrective training or preventive detention for a sufficiently long time to make some impression upon him, and also for a sufficiently long time to protect the community from his further raids upon it. Those were the bases of the two proposals of the 1948 Act. We came to the conclusion that, by means of proposals of this kind—the new institutions for dealing with the young, and the long-term imprisonment for the hardened offender—we should give the community better protection than the community had ever had before when corporal punishment was in operation.
It has been said this afternoon that since these proposals were first made in 1938 and 1948, crime has so greatly increased that what might have applied in the pre-war conditions does not apply in the post-war conditions of to-day. Let me look for a minute or two at the crime figures. I would not for a moment underrate their gravity. I would, however, say that it is important to keep a sense of proportion in examining them. I admit that they have risen formidably since 1938. I am prepared to admit that in the Metropolitan area there was a rise of something like 16 per cent. in indictable crimes last year, as compared with the year before. I would, however, say, as a word of caution, that in the previous year the figures had fallen. The fact that the figures rise in one year and fall in another seems to show the danger of sweeping generalisations. Anyhow, I am prepared to take the figures as they are to-day, rising over the figures of 863 1950. But the significant fact—and it is a fact that really has not been met in the arguments of the noble Earl, Lord Howe, or of the noble and learned Lord, Lord Goddard—is that the crimes that were liable to corporal punishment have actually fallen. The Lord Chancellor gave the figures. He gave the figures of the two years before the 1948 Act came into operation, and the two years afterwards. The figures are as follows: 1946–804; 1947–842; 1950–1,812; 1951–633.
If I take the case of London, and the figures for 1951, it is a significant fact that these particular crimes are actually fewer than they were in 1950. The Commissioner of Metropolitan Police points out that in 1951 there were only ten armed robberies in the Metropolitan area; in 1950, there were nineteen. That seems to show, not that the situation is not serious—I admit that it is— but that it is not a situation in which we ought to take panic action. The figures are bad, but I claim that they do not justify a sudden reversal of policy. Particularly do they not justify a sudden reversal of policy when, so far, there has been no adequate opportunity to test the new methods. The new institutions under the 1948 Act have scarcely been brought into operation at all—one detention centre, a number of attendance centres that you can count upon one hand, no remand centres. Those institutions that were an essential part of the 1948 plan still have to be tried out. Particularly also is that true in the case of corrective training and preventive detention for the hardened criminal. The basis of corrective training was that the habitual criminal should be given a long sentence in a prison adapted for the purpose, where he would be made to work very hard. As things are now, with the shortage of prison accommodation, there has been none of the necessary segregation.
§ VISCOUNT TEMPLEWOODI am coming to that. With the shortage of staff it has been impossible to have what was in practice at the time when I was Home Secretary—namely, three shifts in prison, whereby the prisoners could do a good day's work, a considerable number of hours in the week. I am informed 864 that, owing to the shortage of staff in the prisons of preventive detention and corrective training, the average working hours are only about twenty-two a week. That must surely show that we are not making full use of the opportunities that we deliberately took under the 1948 Act. The noble Earl, Lord Howe, and afterwards Lord Goddard, suggested that any improvements on this line would take a very long time. I do not think so. I believe that it is possible to do quite a lot in the near future. Indeed, the Home Secretary is already taking a number of very important steps. He has a programme of six new prisons; he has already authorised the recruitment of a hundred new prison officers, and I am quite sure that he is convinced that upon these lines an improvement can be made in the comparatively near future.
So also with the police. I have spoken so often upon the police in this House that I think every noble Lord knows my views upon this subject. I have always said that the wave of crime is to a very considerable extent due to the shortage of police, and time after time in past years I have urged upon the Government the need for bringing the police forces of the country up to their establishments. Lord Howe suggested that here again, improvement will take a very long time. He quoted the Commissioner of the Metropolitan Police, to the effect that at the present rate it will be ten years before he gets his police force up to establishment. But why should it be at the present rate? I myself am convinced that with a campaign in London and over the whole country, with more housing for the police, more humane conditions, a better career (I attach great importance to this) for the young man who goes into the force, the police forces of the country could be brought up to their full establishment in the comparatively near future. At present the shortage in London is something in the nature of 20 per cent. If any noble Lord will read the Report of the Metropolitan Commissioner he will see that the Commissioner regards this shortage as the chief cause of the wave of crime in the Metropolitan Area. In view of these facts, I say that the time has not come to reverse the policy that we deliberately adopted in 1948, with the general approval of both Houses, as the result of years of experience and inquiry; 865 but that the time is overdue for making much fuller use of the 1948 provisions than has hitherto been the case. In view of these facts, I hope that when the Lord Chancellor conies to reply he will say definitely that the time since the 1948 Act has been much too short to justify any reversal of policy, but that the time has come to make fuller use of the provisions that already exist.
Lastly, let me draw the noble and learned Lord's attention to a debate that took place last week at a meeting of the Magistrates' Association on this subject of corporal punishment—the noble Earl, Lord Howe, has already alluded to it. He suggested that it was a vote of only three hundred or four hundred magistrates, and that the membership of the Association is much greater than that. I agree with him. But that does not make me think that the vote was not representative of the whole Association. Nor does it make me think that, supposing the vole had gone the other way, my noble friend would have said, "Look at the small number of votes that have been taken." Anyhow, it is my firm conviction that that vote showed effectively the general view of the magistrates of the country who, after all, have before them something like 90 per cent. of the cases of crime and delinquency that come into the courts. I do not deny that there is a strong divergence of opinion in the Association. At the same time, it is significant that these men and women, who day after day are brought into close contact with crime and delinquency in their own neighbourhood, have voted quite definitely against the change that has been proposed to-day. These considerations make me hope that when the Lord Chancellor replies he will tell us clearly that there is no intention to chop and change, to push aside the methods that we have adopted after all this careful inquiry, but that these methods are definitely better than what I consider to be the "quack" remedies that have been proposed to-day.
§ 4.49 p.m.
§ LORD MACDONALD OF GWAENYSGORMy Lords, I was in no way surprised when I saw this Motion of the noble Earl, Lord Howe, on the Order Paper some few weeks ago. When I heard the Lord Chancellor reply to his question of June 10, and saw the noble 866 Earl's attitude towards that reply, I felt then that he would seek an early opportunity to re-open this case. I understand that he is well known throughout the country as a man of speed, that he rather likes speed—the speedier the better, Were it not for the fact that we know him to be an opponent of the 1948 Act, and in particular of that section dealing with corporal punishment, we might have been more impressed by his intentions, both by Motion and by speech to-day. I take strong exception to the noble Earl's suggestion that those who are opposed to his Motion might have more sympathy with the gangster than they have with his victim. He has no right to make a suggestion of that kind. But it is the type of suggestion he makes from time to time on different questions which are brought before your Lordships' House.
§ EARL HOWEI am sure the noble Lord would not wish to misrepresent me. That is not what I said. What I did say was that it often seemed to me that there was more sympathy with the gangster than with the victim. That was put in as an aside. It was not intended to be conveyed as part of the argument.
§ LORD MACDONALD OF GWAENYSGORIf the noble Earl desires to change the form of words, that is "all right by me." But I repeat that he has no right to male suggestions that those, either in this House or outside, who are opposed to his Motion are in any way more sympathetic to the gangster than they are to the victim. The noble Earl talked about theorists and realists. He claims that he and Lord Goddard are realists. Lord Goddard himself said that he was a realist. What is Lord Templewood—a theorist? In what way is either Lord Howe or Lord Goddard more of a realist than Lord Templewood? These suggestions, which seem to be based on the idea that those of us who do not agree with him are sloppy sentimentalists, are not fair suggestions. We who are opposed to the noble Earl on this matter, so the noble Earl says, do not realise the position, while he and his friends do. That is the suggestion which has been made so far in the debate on this Motion. I take strong exception to the attitude adopted by the noble Earl and the noble and learned Lord, Lord Goddard. No one 867 deplores more than we do this so called crime wave. No one is more anxious to find some method of dealing effectively with it. All we say is that we are not too sure whether four years of operation of the 1948 Act have given sufficient evidence of whether or not there is good ground for repealing it.
I have been looking at the 1948 Act. It is rather a formidable document. It deals with quite a number of questions which, it is true, are related to this one of corporal punishment. As Lord Templewood has mentioned, it deals with other matters which are expected to reinforce the removal of corporal punishment. I notice that the Preamble sets out that it is an Act to
abolish penal servitude, hard labour, prison divisions and sentences of whipping; … to regulate the management of prisons and other institutions and the treatment of offenders and other persons committed to custody; to re-enact certain enactments. …And so on. That Act has to work in its entirety for any part of it to be truly effective. You cannot just take out a part of it and say: "We like the remainder, but we do not like this particular section which refers to corporal punishment."When the Act was considered as a Bill it was intended that in addition to ensuring the removal of corporal punishment provision should be made to make its removal less dangerous than some of the then opponents of removal thought it might prove to be. I agree with that. But the direct question we get nearly every time when the noble Earl intervenes is this. He asks: "Suppose it was your wife or your daughter who was a victim of the gangster's attack"? Does he call that good argument? Does he want us to say in reply: "Oh, if it was my wife or my daughter who was a victim of the criminal I should then support corporal punishment. But because neither my wife nor my daughter has been a victim I do not support it"? Is that the noble Earl's idea? Surely we in this House are either in favour of something because we think it is for the good of the country, or we are against it because we think it is bad for the country. Why try to put these personal questions as if it was thought they would place us in a difficulty? Frankly, I tell the noble Earl that if some criminal were to enter my house and attack my wife in a brutal 868 manner, and I happened to be on the premises in an adjoining room, I should use all the physical power I possessed to prevent the crime and to restrain the criminal. Is the noble Earl, therefore, going to say: "Because you would take this action in your own house to protect your own wife, you ought to support corporal punishment"? Is that the argument? Surely not. You do not make up your minds on a national question simply because of the line which you would take if an abnormal situation arose in your own house. I suggest that that is not the way to make laws. I do not think that that type of argument gets us very far.
And I was rather disappointed with what the noble Lord had to say concerning the Magistrates' Association. He asked who were the people at the meeting in question, what were their numbers, and what proportion of the whole did they amount to. I am sure that he would never have put that argument forward if matters had been the other way round. That kind of specious argument does not get us anywhere on questions of this kind. I was both disturbed and alarmed by the speech of the noble and learned Lord the Lord Chief Justice. I cannot understand why he should think it necessary to build up this big background of general crime upon which to superimpose his specific arguments on this Motion. I thought we were dealing with the Motion on the Order Paper. It relates to a specific question, but the noble and learned Lord, for some reason better known to himself than to me, has seen fit to build up this big background of crime in general. He tells us that serious crime is on the increase and I agree. We thought from what he said that he would like to introduce corporal punishment as a penalty for crimes which were not formerly held to merit it.
§ LORD GODDARDI spoke of crimes of felonious violence.
§ LORD MACDONALD OF GWAENYSGORWhen I read the Motion on the Order Paper I certainly thought that if the Lord Chief Justice spoke he would have regard to its specific terms. I felt that the crimes of violence referred to were crimes of a specific kind—those covered in the 1948 Act—and that the suggestion was that to restrain such crimes it was necessary to 869 reintroduce corporal punishment for them. Lord Goddard apparently thinks that it should be administered in some cases in which it could not be administered before the 1948 Act. He has asked us why there should be this fear regarding the deterrent effects. What is the purpose of imposing a penalty at all? We laymen have not had the great experience which the noble and learned Lord has had. We sit in magistrates' courts; that is all we can do. But we have to have regard to the penalties which we impose from time to time. And for what purpose do we impose those penalties?
§ LORD GODDARDTo deter.
§ LORD MACDONALD OF GWAENYSGORSurely, the purpose of imposing a penalty is, first of all, to try and prevent the guilty person repeating the crime, and the penalty is imposed also in the hope that others will learn their lesson and not follow in the steps of the criminal. To me that is the sole purpose and the sole test. Are we not all theorising in this matter? When I am asked if I am sure that now that corporal punishment has been abolished there will be less crime, I reply: "No: who could be quite sure?" And I ask in my turn: "Are you sure that if you reintroduce corporal punishment there will be less crime?" Who can answer that? We ire told that we do not want to use figures, and I agree that statistics do not help very much in these cases. But a new element was introduced by the noble Earl and the noble and learned Lord, Lord Goddard. They say they agree that crimes of the kind referred to have decreased in number, but they say further: "Oh, but the degree of violence in the crimes has increased."
§ LORD GODDARDNo, the number of crimes.
§ LORD MACDONALD OF GWAENYSGORThat is changing the ground altogether. We are told that it is true that since the 1948 Act there has been a decrease in the number of the crimes, but that there is an increase in the degree of violence in the crimes. Let me say that I am not one of those who would object to the reintroduction of corporal punishment if I could be satisfied that it would bring about a decrease in crime, both as regards numbers and as regards the degree of brutality in 870 those crimes. If I could be satisfied on that point I should welcome the reintroduction of corporal punishment. But I do not think it would. I do not think now is the time to brush aside this 1938 Report of the Departmental Committee on Corporal Punishment, which I remember the noble and learned Viscount, Lord Simon, referred to in the last debate. We cannot brush it aside. This was a very cool, carefully planned investigation. We have never had a more thorough investigation. The Committee went into every point raised today by the Lord Chief Justice and replied effectively to every one; and it is not for the Lord Chief Justice to say that that was 1938 and this is 1952. They dealt with all the possibilities that would follow the removal of corporal punishment. Tribute has previously been paid to their services, and I think we might place it on record again.
The Lord Chief Justice, I was inclined to feel, laid rather too much stress on the severity of sentences. There is included in the Report of 1938 a sentence from the Report of the Committee on Persistent Offenders, published in 1932:
As the long history of the penal system shows, severity is a double-edged weapon and if the offender leaves prison a worse man and a more embittered enemy of society than he was when he came in, society is injured equally with the offender.Therefore, because the Lord Chief Justice's words carry a great deal of weight throughout the country, in every type of magisterial court, I hope he will not emphasise overmuch the severity of sentences.
§ LORD GODDARDI hope the noble Lord will forgive my interrupting, but I thought that what I was saying was this. One of the difficulties with young offenders was that one was obliged to give a severe sentence as punishment because corporal punishment had been removed; and I deplored that. With regard to hardened offenders, that is quite another matter.
§ LORD MACDONALD OF GWAENYSGORI shall deal with the point in a moment, but I was referring to the noble Lord's emphasis on the need for severe sentences. They might not work in the way he has in mind, and it behoves him to be careful in lending his great weight to severity of sentences.
871 I like one reference in the Motion—that to women, where Lord Howe says,
To call attention to the continuation of crimes of violence towards women and other defenceless persons.To me that is the type of crime that shows the heinousness of the offence and the callousness of the criminal. Here is a criminal before one of our judges, and the judge feels, "What I should like to do here is to give a short prison sentence, plus a number of strokes of the birch." I think the Lord Chief Justice said, "I should prefer doing that" (and I should like the Lord Chief Justice to follow me here) "not because I think it would be a deterrent but because it would be giving the prisoner some of his own medicine." He rather underlined and emphasised that aspect. I agree that corporal punishment may have a deterrent effect on some men. But it depends on the individual. If I could bring myself to believe that the use of corporal punishment would be a bigger deterrent in this type of crime than long terms of imprisonment, I should unhesitatingly support the use of corporal punishment, but I do not think it does have that effect. It has, I think, a brutalising effect. I do not think the man is as good a citizen after it. After all, we have to have some regard to the type of man he is going to be afterwards.
§ EARL HOWEMay I ask the noble Lord this. He said it would have a brutalising effect on the criminal. What about the victim?
§ LORD MACDONALD OF GWAENYSGORI do not understand an intervention like that at this moment. I have already said that we agree the victim is entitled to the sympathy of all of us. The only difference between myself and the noble Earl is in regard to the best way, the victim having suffered, of seeing that the criminal is dealt with properly. It is suggested that the best way is to reintroduce corporal punishment. All we say is that in our view it is not the best way. We say that you can do the best for the country, and for the criminal and the victim, by other methods.
In my view, the reformative effect of punishment ought to be considered by us all. There were references in the last debate to parents dealing with children. Of all the people in the world who 872 believe in administering discipline for the purpose of reforming, parents do. Is it too much to expect our courts to do the same thing, to administer discipline for the purpose of reforming? Who would suggest that corporal punishment is an active agent of reform? Who would suggest that? I refer to the Cadogan Committee's Report, which says:
Not only does the corporal punishment itself contain no reformative element, but it may also run counter to the reformative influences which the sentence of detention is designed to bring to bear on the offender.
§ LORD MACDONALD OF GWAENYSGORPage 58; the bottom paragraph. I admit that there is a difficulty here, and a real difficulty. I am very anxious to see the reign of terror (that, I thought, was a very descriptive term) which the Lord Chief Justice said existed in some parts of the country, ended; and my only reason for supporting the plea made by the noble Viscount, Lord Templewood, that the Government should allow a little longer time, is that I think we may get better evidence. I want to see the other sections of the 1948 Act have a fair chance. I want to see the reformative sections of that Act have a fair chance in dealing with the problem in the absence of corporal punishment. The Labour Government in 1948 knew they were running a risk. The Home Secretary said so many times. They knew that there was an element of risk in what they were doing. To try to cover up the risk they provided other sections to deal with the problem.
LORD SALTOUNI am sorry to interrupt the noble Lord, but I understood him to ask whether anybody would say there was any reformative element in corporal punishment. I certainly say so. I had experience of it when I was young, and I found it very much quicker and more effective, when one is young, in introducing a change of thoughts.
§ LORD MACDONALD OF GWAENYSGORI do not object to the noble Lord informing the House that he has improved himself because of corporal punishment. This is a different thing from the type of punishment which the noble Lord has had. Here we are 873 putting into legislation a provision that a judge shall, or shall not, be allowed to inflict corporal punishment. What I feel is this: the change made in 1948 was a change which needed to be made then. If I thought our experience indicated that we had made a mistake I should be the first to try to correct that mistake, but I think it inadvisable at this stage to say that it was a mistake. The Act was passed in 1948. How can we say, in 1952, that it has failed? Those who opposed the abolition of corporal punishment in 1948, and were defeated, have made up their minds that until they can get it reintroduced they will continue to create this kind of debate. That is not going to help us. I suggest that the case has not been made out. I agree that it is difficult to say whether five years and twelve strokes will be a bigger deterrent or a more reformative agent than twelve years' imprisonment. Who in the world can say? Those who have been sentenced to five, seven or eight years' imprisonment since 1948 are still in prison. How can you say now that a long sentence, in the absence of corporal punishment, will not prove to be a good thing?
The Government have stated that they will repeal many of the laws passed by the Labour Government. We may find on November 4 that a few more of the Acts which we passed are to be repealed by the present Government, but I hope the Lord Chancellor will find it possible to say they have decided that it is far too early to come to a final judgment on the 1943 Criminal Justice Act. It should continue, say, for five or ten more years; we should allow the whole Act to operate during that time, and then judge by the results. If then the results show that we made a mistake in 1948, I shall be on the side of those who wish to repeal the Act.
§ 5.11 p.m.
§ LORD ASQUITH OF BISHOPSTONEMy Lords, as this is the first time I have had the honour to address your Lordships, I hope that indulgence which you so generously accord the newcomer may be extended to me in full measure. Not that I wish to make any heavy draft on your Lordships' patience and time; I rise only in order in two or three sentences to give expression to my agreement with the proposal put forward by my noble and learned friend the Lord Chief Justice—that is to say, the proposal 874 for the qualified reintroduction of corporal punishment, the "cat" remaining in abeyance. I cannot pretend to a tithe of the experience or authority of my noble and learned friend, but I am not entirely without knowledge of the working of our penal system. I was for eight years a judge in the King's Bench Division, and during those years I must have tried between 2,000 and 3,000 people, including dozens of people to whom at that time one could have awarded the "cat." I hasten to forestall the vituperative epithets which are apt to be hurled at anyone who says he is in favour of corporal punishment by saying that there was only one case out of those dozens in which I awarded the "cat," and I did that solely because the prisoner himself violently besought me to do so: it seemed that he could not square matters with his own conscience on any other terms.
If I am opposed to the revival of the "cat," as I am, it is not because I regard it as ineffective as a deterrent, but on totally different grounds. The "cat" seems to me to be open to objection because it is apt to leave indelible scars, and that has one of two effects upon the victim, according to his temperament, but both of them bad. If he is a sensitive man, it is apt to undermine his self-respect by reminding him day after day. until his death, of his failure as a human being. If he is a different kind of man, far from undermining his self-respect, it inflates him with self-complacency and excites a certain amount of hero-worship from misguided friends and companions. But I do not think that corporal punishment is at all an ineffective deterrent. I know that figures which have been produced tend to show that since 1948 crimes for which flogging used to be awardable have remained stable, or slightly declined, while other crimes of violence have increased The Lord Chief Justice has dealt with part of that argument. Such statistics must necessarily be inconclusive, because one cannot tell whether the number might not have declined much more steeply if corporal punishment had been retained. The argument the other way is put temperately enough in official circles, but when I talk with some of my private friends who are "hot-gospellers" in favour of the abolition of corporal punishment, the argument becomes almost 875 farcical. I am invited to contemplate the criminal who up until 1948 used to commit robbery with violence saying to himself after the Act repealed corporal punishment, "Well, if I cannot get flogged for this crime, it is hardly worth committing. It has lost all its kick and in future I will go straight." That does not seem to me a very plausible suggestion.
Several noble Lords have mentioned the retention of corporal punishment for attacks on warders and offences against prison discipline. One is apt to ask: if it is not an efficient deterrent, why is it retained? We all know the stock answer to that—that the alternative of imprisonment is not open because the man is already in prison. But that really will not do. There are all kinds of alternatives. First of all, he may forfeit his remission marks. If he behaves himself and does not attack warders, he may save one-third of his sentence. One can increase a sentence very considerably by docking his remission marks. If length of imprisonment is the supreme sanction, that is perhaps the most important sanction on which we can rely, a stronger one than this "ineffective" deterrent of flogging. One can put the man on a diet of what used to be bread and water—and is now probably some unpalatable compound of vitamins. One can forbid his smoking. One can revive sleeping on a plank bed, which I think is not now the practice. There are a whole number of other things to be done to make a prisoner's life extremely unpleasant. I feel that common-sense criteria are worth a great many blue books on this matter. If I were confronted with the choice—I hope that I shall not be—of being imprisoned for three years or for two years plus twenty strokes of the "cat," I should politely but firmly accept the first alternative. No doubt some of your Lordships are made of sterner stuff, but I should be rather surprised if many of you chose the second alternative. Then, how can one say it is not an effective deterrent?
I hope that if corporal punishment is revived in the form in which the Lord Chief Justice has suggested, it will be awardable a little less capriciously than was the "cat" The "cat" was awardable for the most extraordinary assortment of offences. One could get it, of 876 course, for robbery with violence. One also could get it for living on the immoral earnings of women; and also, I rather think, for sleeping out at night more than twice under the vagrancy Acts; for insulting the Russian Ambassador or, by subsequent legislation, for insulting any Ambassador; and for trying to kill a person by suffocation—though if you tried to kill a person any other way you were not liable to get it. It is to be hoped that the awarding of a qualified form of corporal punishment, if it is reintroduced, will be a little less capricious than was the case before 1948.
In conclusion, I would add this. Of course it is a platitude—but a true platitude, because there are untrue platitudes—that certainty of apprehension is a better sanction than severity of punishment. But at the moment that seems almost past praying for. It means doubling the police force, increasing its pay to an extent which no Chancellor of the Exchequer could possibly face, and possibly arming it. But meanwhile I feel that the birch and the cane should not be neglected. It cannot really be said that the birch brutalises its victims. If it did, we should have to say that practically the whole of the governing classes of this country in the first half of the nineteenth century had been brutalised because they had all been birched by Dr. Keates.
§ 5.20 p.m.
§ LORD MANCROFTMy Lords, before I enter the arena of righteous indignation and confusing statistics, I know you would wish me to offer our very sincere congratulations to the noble and learned Lord, Lord Asquith, on the most delightful and, if I may say so, most impressive maiden speech which he has just delivered to us. He has been for such a long time a familiar occupant of those Cross Benches that I had to confirm, through the usual channels, that this was indeed his maiden speech. My father used to tell me that unless you had heard Herbert Asquith speak you did not know what a persuasive orator really could do. I never had the good fortune to hear H. H. Asquith, but I am beginning to suspect that I have now heard the next best thing. Very persuasive indeed was the noble Lord, Lord Asquith, but unfortunately not quite persuasive enough, if I may say so with the greatest respect, to wean me away from the support which 877 I propose to give to the views put forward by the noble Viscount, Lord Templewood. I do so with great trepidation in the presence of such distinguished lawyers, the leaders of my own profession.
In order to satisfy the noble Lord, Lord Macdonald of Gwaenysgor, who has been waxing indignant about those who are criticising the 1948 Act. may I explain my own posit ion to him? It was, I think, out of the Question which I put to the noble and learned Lord on the Woolsack on June 10 last that this debate has arisen. I was opposed to the abolition of corporal punishment when it was before the House in 1948. But I am equally opposed to the re-introduction of it now; and so I was when the noble Lord, Lord Lloyd, moved his Motion some months ago. I agree with those who say that some time must elapse before we can see how this Act is working. I agree with those who say that it is wrong to chop and change the penalties of our criminal law. It is one thing to abolish corporal punishment: I think it is quite a different process, with quite different consequences, to re-introduce it.
It seems to me that the whole argument raised by the Motion of the noble Earl, Lord Howe, must centre round that Question put to the noble and learned Lord on the Woolsack. Leaving out the figures, the question was roughly this: Have the figures of crimes of violence since the abolition of corporal punishment moved up or down in such a way as to suggest that the abolition of corporal punishment has had any serious effect? Of course, you cannot pin statistics down too closely. You can make figures prove almost anything, and I grant that the answer given by the Lord Chancellor could be twisted by an ingenious statistician to prove almost any argument. But to me, at least, it proved that since the abolition of corporal punishment the crimes for which it could be awarded have not seriously increased. That may be a coincidence; it may be clue to all sorts of things of which we are not informed. But it is, in my submission, evidence sufficiently strong to make us pause before we should countenance the re-introduction of corporal punishment.
Of course there is public indignation at the moment at the particularly sordid nature of some of these crimes; and of course we all share that indignation. But personally I feel that indignation, how- 878 ever righteous, is not the best reason for changing legislation of such a far-reaching nature. I do not believe—and here I agree with the noble Viscount, Lord Templewood—that the re-introduction of corporal punishment would have much, if any, effect upon the wave of violence from which we are at present suffering. I do not believe it would do anything except perhaps gratify the very natural indignation of the public. I am no theologian, and I do not share the views of those who say that desire for retribution or revenge is a wicked thing. It strikes me as a quite normal thing to say: "That man has bashed that old woman with a cosh. It will gratify the public conscience if he gets a taste of his own medicine." The theologian would say that that is a wicked thing, but I do not think it is. However, that is not the argument which has yet been adduced in any quarter of your Lordships' House this evening. I believe that until we have much more conclusive evidence over a longer time that the abolition of the "cat" really has had a marked effect upon crimes of violence we should continue the period for as long as we safely can.
In the meantime, what are we to do? An improvement in our prison conditions and recruiting of more prison officers has been mentioned. But that, of course, is a long-term proposal. There is the proposal in the correspondence columns of the Daily Telegraph this morning that there should be a much stricter supervision of the sale and purchase of weapons of violence—ammunition, guns of all sorts, coshes, and so on. But that unfortunately still leaves the seemingly harmless articles which you can easily purchase—the razor blade, the bicycle chain and the three pennies held in the hand with a pencil to support them through the knuckles, the familiar, readily-acquired weapons of the gangster. There is, however, one point where we might make some possible improvement. The noble Viscount, Lord Templewood, mentioned more than once the question of recruiting for the police. Yesterday I found myself—let me emphasise at once that it was in the course of my professional duty—in Feltham and Spelthorne Police Court. Waiting for my case to come on, I counted no fewer than twenty-two policemen hanging round that court, waiting to give evidence about rear 879 lights that had been extinguished, cars parked on the wrong side of the road, road traffic licences that were out of date, and a large number of other minor offences. I know that these offences must be prosecuted—that is the law of the land. I know that policemen must give evidence—that is also the law of the land. But when old women are being knocked about in their shops, or bashed in railway trains, and four young thugs are holding down elderly ladies, it does seem to me a very odd reflection on our intention to put first things first that twenty-two policemen should be hanging around the whole of the morning in Feltham and Spelthorne Police Court.
I have one last point to make which I am afraid will not be popular. I have recently been reading one of the nastiest books ever written, Aldous Huxley's new novel called Devils of Loudun—I put it down half way through. He goes through sadistic details of the punishments awarded in the Middle Ages in France and in this country, but he mentions in parenthesis how we have slowly moved away from the torture and barbarism which was wrapped up in punishment in those days—punishment accepted in England by lawyers and judges of the highest calibre, the founders of our common law, the fathers of our judge-made law. We have moved away from that. In 1948, whether some people liked it or not, whether some people thought it was sloppy sentimentalism or a practical legislative advance, we took another step forward from brutality and sadism. I think, purely on the grounds of our own moral conscience, that we must be completely satisfied by the evidence before we take what I believe to be a step backwards. So far, with the greatest respect to those learned Lords who have advanced different views to your Lordships' House this evening, I, for one, am not yet wholly convinced.
§ 5.30 p.m.
§ LORD OAKSEYMy Lords, it is perhaps material to refer to the actual words of the Motion of the noble Earl, Lord Howe. That Motion is:
To call attention to the continuation of crimes of violence towards women and other defenceless persons, and to ask whether the existing penalties which the Courts have power to inflict in such cases are adequate to protect the public.880 There is no mention in that Motion of corporal punishment. It is a Motion to discuss whether or not the penalties which were imposed by the Act of 1948 are adequate to meet the situation. I am not going into statistics, because I have not any here, but we have heard from the noble Earl, Lord Howe, and from the Lord Chief Justice something of the statistics which seem to show that there is no retrogression at all in crimes of violence.It seems to me that it is important to get clear in one's mind what is the object of punishment. Of course it would be desirable that punishment should not be given at all; that the Divine maxim, "Vengeance is mine; I will repay" should be observed. But I do not think that any politician or statesman for one moment considers that that maxim could be adopted in the government of a State. I submit to your Lordships that the object of punishment is the protection of the public. That is the primary, the principal and the immediate object of punishment. The reform of the criminal is a mere incident and, except in so far as he may be reformed and will, therefore, not commit any further crimes—which is again the protection of the public—his reform is merely an incidental matter. The primary and immediate object is the protection of the public. I think that is the reason for the Motion which has been brought forward to-day.
It is thought that the penalties which are now imposed are not sufficient for the protection of the public. It is practically admitted on all hands that the public is inadequately protected. What are the penalties which the Act imposes? So far as reform of the prisoner is concerned, surely the provisions of the Act as to young people are adequate. First of all, there is the provision as to probation. That provision has been in force certainly as long as I have been on the Bench—that is to say, for twenty years—and when I first went on the Bench I found that it was continually enforced, so often that you frequently had young men placed on probation not only once, but twice and three times running. There are scores of probation officers all over the country, with hundreds of cases on their books; therefore very proper provisions are made for the reform of the criminal. Then there are the approved schools, and then Borstal. That is the 881 ordinary course through which young criminals go. First, they are bound over once or twice and are brought up for a year or two years under the care of probation officers; then they are sent to an approved school where they may be for several years; then they go to Borstal, if they are not too old by that time, and there again they go through, I presume, a slightly more severe form of discipline.
If they have not then reformed, do your Lordships really think it is likely that those criminals will be reformed by corrective training or by preventive detention? What do "corrective training" and "preventive detention" mean? Does anybody know? There is nothing in the Act of 1948 which describes what "corrective training" or "preventive detention means, except so far as the time is concerned. You can give corrective training if a man has been convicted of a certain number of offences, and you can give it from two to four years. But nobody knows, except the prison commissioners—they presumably know—what "corrective training" means. I gathered from what the noble Viscount, Lord Templewood, said that the most that can be done in the way of severity of work is that the men work for twenty-two hours in a week. Twenty-two hours in a week !—it is laughable. The same thing applies in preventive detention. To suffer preventive detention, a man must have committed more crimes, and he can then be sent to preventive detention for up to fourteen years. But is that enough? That is what the Motion is about. Are these penalties sufficient to deter a man who has been through all these forms of probation, approved school and Borstal, and who continues to commit these crimes, when we remember the victims and the horrors which they have had to suffer? To those who think as I and the Lord Chief Justice, and as the noble Earl, Lord Howe, think, it seems that those who think otherwise are thinking too much of the reform of the prisoner—which is surely a very long-term way of protecting the public—and too little of the protection of the public now.
There are one or two other points with which I wish to deal. There is one about which I feel strongly, with reference to this decision of the Magistrates' Association. Surely, if the noble Viscount who is the President or Chairman of the 882 Magistrates' Association really wanted to find out what the magistrates of this country think, he could have the matter put to them by way of referendum. What is the good of having a meeting of the Magistrates' Association when everyone knows that nearly all the people who go to it are people who are convinced followers of the noble Viscount, Lord Temple-wood? I was asked on one occasion to address the Magistrates' Association on the question of criminal offences and punishments. When I got there, I found that they had been asked to pass a resolution against corporal punishment that very morning, so that my arguments fell on deaf ears or, at any rate, on minds that had already expressed themselves. But if they really wanted to know what the magistrates of England—I do not know whether they could ask the magistrates of Scotland, too—think upon the subject, they could find it out by referendum.
There was one other subject about which I spoke on a previous Motion, and again I hold strong views upon it. The judge, who first of all reads the depositions, then hears counsel's arguments and counsel's presentation of the facts, who hears any witness who can be called as to character, and hears all the evidence in the case, whether there is a plea of guilty or whether it is a case that is fought out, hears the whole thing. In my view the judge is the person who knows better than anyone else what the appropriate sentence should be. But now, under this Act, the judge's discretion is taken away absolutely. He has no discretion at all except as to the period of the sentence. He has discretion as to the corrective training, preventive detention, imprisonment, probation, and so forth; but the discretion is entirely limited. Not only that, but when he sends a man to prison for five, seven, or ten years, that man can be let out within a year by the Home Secretary. The whole administration of punishment is committed to the prison officials and the Home Office. I submit to your Lordships that that is altogether wrong: it is putting it into the hands of men who have not seen the prisoner as a criminal but have seen him only as a prisoner when he gets behind bars.
The only other thing I have to say is that I have heard no answer at all to the question of whether corporal punish- 883 ment is a deterrent and, if not, why it has been awarded in cases of attacks upon warders. It is absurd to say that no other punishment can be given; as the noble Lord, Lord Asquith, said, there are hundreds of other punishments which could be given for attacks on warders. The only reason can be that the warders are not otherwise prepared to serve, when they are in such close touch with the criminal—as close touch, in fact, as is the case with the victim of the assault; and it is the victim of the assault who knows what the criminal is really like, and not the prison commissioners, who see the criminal only after he has been sent to prison.
§ 5.43 p.m.
§ LORD SCHUSTERMy Lords, I know that there are other noble Lords who wish to address you on this important subject, and I shall therefore keep my remarks very short. Indeed, I shall say only two things. The first—which probably in another assembly would be out of order—is that I regret that the noble Earl, Lord Howe, has drawn his Motion so narrowly. I am far more interested in the question of corporal punishment for boys than for adults. It is very painful to sit in a court of quarter sessions, or for that matter in an ordinary magistrates' court, and have before one a young offender whom one does not want to send to prison—and indeed whom one cannot, under the recent Act, except for some compelling reason—and with whom one does not know what to do. Magistrates often find young offenders brought before them again and again. Very often, as the noble and learned Lord. Lord Oaksey, said, they are put on probation twice or three times. That is not giving a fair show, to the boy himself, to the probation system, or to the administration of criminal justice. The impression gets abroad that, after all, the magistrate does not care very much what happens; that the boy is merely a naughty boy who acted out of a spirit of adventure, and that if he is put on probation all will be well.
I have nothing but praise for the probation officers with whom I have had to deal. They are excellent advisers when their opinion is asked, and excellent in their care of boys and girls who are put into their charge. But probation cannot 884 succeed if it is misused in the manner I have described. And if probation is not available you cannot—indeed you ought not to—send a boy to prison if it can be avoided. Surely the best thing that can happen to the boy is that he should be beaten and allowed to go free. We had all sorts of stories retailed to us in 1948 from the Committee who sat on the question of corporal punishment. I have a very great respect for many members of that Committee, and I am sure they strove impartially to report the evidence, and their views on it, to the best of their ability. But I do not wholly accept many of the conclusions which they reached. They seemed to me contrary to common sense and contrary to what, as Lord Asquith has already mentioned, one would choose oneself if one had to choose between being beaten and going to prison. I wish, therefore, that the Motion had covered more than it does.
The second thing I wish to do is to take up again a point raised by Lord Oaksey. The object of punishment is the protection of the public; and the chief elements to which you pay attention when you are considering the protection of the public are the reform of the criminal and the deterrence, both of the criminal and of other persons in like case. We never know how far a particular sentence imposed does deter. We do not know how far it deters the actual criminal. How, then, can we know how far it deters the people outside? All we can do is to look from time to time at the general run of crime and watch the effect of the imposition of this or that particular form of punishment. We have been spared to-day an argument which was used, indeed I may say was thrust down our throats, in the past, when we were told that the Garrotters Act was not the cause of the cessation of garrotting in Liverpool, and that the decision of Mr. Justice Day at Liverpool was not the cause of the cessation of the garrotting. I am not old enough to remember the Garrotters Act, but I am old enough to remember the days very close to it, shortly after I became a barrister, when I first visited Liverpool. All I can say from my observation is that every person concerned with the administration of the law in Liverpool, and most of the people whom one met in 885 that city who had hitherto gone in fear of their lives or their throats, were firmly convinced that the garrotting ceased as the result of Mr. Justice Day's decision. They would have laughed if it had been suggested that the cessation of garrotting there was clue to a sudden change of heart on the part of the criminals. They were convinced that it ceased owing to the strokes ordered by Mr. Justice Day.
There is a third element in the protection of the public which it is not fashionable to talk about because most people repudiate it. It is desirable that the public at large should be indignant at crime, and that they should be particularly indignant at violent crime. It is not evil to be thus angry: it is right and proper. And it is right and proper that those who sit and administer justice should take account of that indignation. They must keep their own heads clear and cool; they are not exercising personal vengeance: that is the prerogative of God. But they are interpreting, and ought to be interpreting, the will of the population at large, and they can do that only by expressing it in the sentence—sometimes a violent sentence—which they impose. But if they push that indignation so far as to impose a sentence such as the common sense of the community will not approve, natural consequences will follow. That has happened in the past: sentences have been altered because the common sense and the general feeling of the community—and of juries, which are drawn from the community—felt that they ought not to have been passed. In this matter I am convinced that, for violent crimes of the kind that we have heard described, or for some other violent crimes of which we have read recently in the papers, the public righteous indignation demands that there shall be a righteous and public vindication; and that can be effected only by the administration of corporal punishment.
§ 5.51 p.m.
LORD STRABOLGIMy Lords, I think there is a good deal in what the noble Lord, Lord Schuster, has just said about the public conscience, but what else can one expect? I think it has been blunted. I do not think there is the righteous indignation that there should be at some of these abominable crimes. On the posters outside now we read that a woman was battered to death in London 886 this afternoon, while your Lordships were debating this matter. Of course the public conscience is blunted. First of all, we have had the two greatest and most destructive wars in history, and there is a destructive war going on now. Then there is a general decay in organised religion. No one deplores it more than the bishops and other leaders of religion. There is also a general conditioning of the public by certain types of films concentrating on violence. There are what are known as the "comic strips" in the newspapers. Nearly all those have to do with violent crimes. A good deal of violence is described, and apparently enjoyed by the public, in the radio programmes. Of course there is a blunting of the public-conscience. But I suggest to the noble Earl who introduced this Motion that the fact that there has been a crime wave, and that apparently the public conscience has been somewhat blunted, is no reason why we should so hastily reverse our policy at this time.
We do not need panic legislation. The new system of penal reform and the like has not been properly tried out, for reasons given very clearly by the noble Viscount, Lord Templewood. We are short of prison staff; we are short of warders, and we are short of police. The new regime has not been given a chance, and I suggest that this year 1952 is too early to reverse our policy. I have this suggestion to make which I respectfully lay before the noble and learned Lord on the Woolsack and the members of the Government who adorn the Government Bench at this moment. It is that there are far too many lethal weapons about in this country, far too many firearms in the hands of unauthorised people. There has been a great stiffening up in the granting of permits for householders to own pistols and automatic weapons for their own defence. In other words, the really law-abiding section of the community have to a great extent been disarmed, but the number of pistols and sawn-off shotguns and the like—indeed, even sub-machine guns—that are at large in the country is a serious matter. This fact is well known. There is a black market, in London and the other large cities, in weapons of this kind. The suggestion I make is that a general demand should be made, in the most public possible manner, that all people who possess firearms for which they have not a police permit should sur- 887 render them by a certain date, when no questions will be asked; but that after that date the unauthorised possession of a pistol or other firearm should be very seriously punished.
For instance, there was that case the other day at Knowsley Hall. How did that ex-soldier, who was employed as a footman and who murdered two of his colleagues, come to be in possession of a Sten gun? From the Home Guard days and the war days there are many of these weapons in the hands of unauthorized people. Some are war trophies. Some have been obtained in the black market. I think the time has come when a great stiffening of the punishment for the possession of unauthorised weapons should be applied, and great efforts should be made to round up and demand the surrender, under severe penalties, of these unauthorised firearms. It does not meet the case of the home-made weapons referred to by the noble Earl who introduced this Motion, but I think it would do something, at any rate, to lessen the danger to the public.
At the same time I should be inclined to relax restrictions and give greater freedom, under proper safeguards, to householders, especially those in remote parts of the country, to possess arms in their own homes for their own defence. Most respectfully, I would suggest to the noble and learned Lord on the Woolsack, and to the other great pillars of the law who are present in your Lordships' House this afternoon, that the law is a little vague as to the rights of the householder—and "a little vague" is not, I think, an over-statement—in dealing with somebody breaking into his house in the middle of the night. But that is by the way.
I think we must here take a long view. One can sympathise with the views of the noble Earl, Lord Howe, and those who support him, but the whole history of crime and punishment in this country should be looked at. We have progressively become much more humane in our treatment of wrong-doers. Again taking the long view, and comparing the statistics of a hundred and two hundred years ago, there is a diminution in crime, allowing for the increase in the population; and yet we have progressively done away with corporal punishments of all kinds—the judicial torture, the pillory, 888 the stocks, public executions and public floggings. It is only 150 years ago, I believe, since women were for certain offences publicly flogged in the streets of London, and the public conscience has succeeded in gradually doing away with all these punishments which rest on torture or inflicting pain. Every time there has been a reform there has been an outcry from people who have said that the general public would suffer and that there was no other way of restraining or deterring the criminal. But that has not happened.
The noble Earl, Lord Howe, knows very well the history of the Royal Navy, and other noble Lords know very well the history of Her Majesty's Army and the punishments inflicted there. When it was proposed to do away with flogging in the Royal Navy, nine out of ten of the serving admirals, and I suppose ten out of ten of the retired admirals, declared that they could not possibly maintain discipline unless they had the threat of the "cat." I believe it was the same in the Army, that the old-fashioned officers said they could not keep discipline among the troops unless they could flog them for certain offences. But to-day discipline is better than it ever was, both in the Army and in the Navy, and the history of that coincides with the easing and lessening of the actual punishment. That is a fact and if we take that example of the Army and the Navy it teaches us some lessons here.
The noble and learned Lord, Lord Oaksey, referred to the retention of the "cat" for crimes of violence against warders in convict prisons. He said no answer had ever been given as to why the "cat" should be retained there. Then, with great respect, he proceeded to give one. If a man is in prison for life, you cannot really add to his sentence. You must have some immediate punishment there. Also, you have in a convict prison a population of violent men who have been sent there for long terms of imprisonment, and they do not represent the general public. I think that is a special case for which no doubt the arguments given are very powerful indeed. I should have liked to see the "cat" done away with even in the prisons—for this reason. In spite of this materialistic age there has been a general tendency towards humanising punishment. That is the result of better education and what we call civilisation. In spite of the horrible things that 889 go on, and in spite of the many shortcomings in car social system, we are more civilised. We and our fellow nations abroad are more civilised, and will not tolerate excessively cruel punishment, as did our fathers; nor do we take as a matter of course public floggings, judicial tortures and executions. Public opinion would not tolerate them to-day. I believe there is a healthy and divine desire to treat our fellow human beings with less cruelty, whatever the provocation. I believe that that has been responsible for the abolition of flogging as part of our judicial system.
The noble Earl, Lord Howe, and others want to set the clock back; they want to reintroduce flogging. They bring forward powerful arguments, based on the present crime wave and the like. Lord Oaksey spoke about protecting the public. Of course these arguments carry great weight, but I believe that to re-introduce flogging as a punishment now would not only set the clock back in that way but would also have a bad effect on the public conscience. Our whole history as a people has been to get away from the brutalising effects of excessive cruelty. Taking the long view, people as a whole are more kindly. I agree that there could be more indignation against some of these recent crimes. But despite the causes of those crimes, upon which I have attempted to touch, I believe, as I say, that, taking the long view, the people are less savage, more humane, and less inclined to tolerate avoidable cruelty in any form. If we reintroduce flogging as a punishment, we do something to set back that progressive improvement in the public mind and conscience. To appreciate the full significance of this progressive improvement you must look back over the centuries. For that reason to reintroduce corporal punishment would be a retrograde step, and I hope that Her Majesty's Government will not accede to this renewed attempt to get it restored.
§ 6.4 p.m.
§ LORD TUCKERMy Lords, I should not think of intervening in this debate, especially at this late hour, were it not that it might be thought that because I had been present during this debate and kept silence, I appeared to lake a different view from or one out of sympathy with that which has been expressed by 890 the Lord Chief Justice, by Lord Asquith of Bishopstone, and by Lord Oaksey.
Like Lord Asquith, I have had eight years' experience in the King's Bench Division, and I am firmly convinced that corporal punishment is a deterrent and that its removal in the year 1948 was a grievous mistake. Whether or not now is the proper time to restore it is a matter about which I do not propose to express any view whatever. That is a matter of policy, for those in charge of these matters. But so long as this punishment is taken away from the judges, on every occasion when the matter is discussed before your Lordships' House, I hope to be able to take the opportunity of rising to emphasise the grievous mistake which was made in 1948, and which will continue to be perpetrated, I have little doubt, for many years yet.
I, for one, am not greatly impressed when I am told what other people think of this particular topic. It is a matter about which most people have convinced and confirmed views, one way or the other. I am sure we all respect the views of those who differ from ourselves, but I am afraid I am not impressed by being told what is contained in a Blue Book, what a Committee decided in 1938, what the Magistrates' Association, or some of them, decided the other day, or even what The Times says in a biding article. To get a proper view of this topic, I think one must have been a judge, a policeman and a person who has served a term of imprisonment. I know of nobody who fulfils all those qualifications, so we have to do the best we can by judging it from the points of view of those who see this problem from different angles. I am conscious of the fact that a judge sees it from only one angle; similarly. I feel convinced that the Home Office and those who are concerned with the management of prisons equally see it from only one angle. I believe the policeman sees it rather from the two angles, and I, for one, should be very interested to know what the best opinion on this matter is in the police forces of this country, as I believe that the policeman knows much better than most other people what goes on in the minds of criminals.
I think that statistics on this matter are very misleading. One reason for that is that I doubt whether many of your Lordships are aware precisely what ingre- 891 dients are necessary to constitute the offence of robbery with violence. If a man goes into a house, knocks down the old lady on the ground floor, ties her up and hits her with a cosh, and then ransacks the rest of the house, provided he takes nothing either from the person of the woman or in the room where she was, that is not robbery with violence. It never was, and no one could ever be flogged for that. On the other hand, if a man gives a woman a push in the street and steals her handbag, that is robbery with violence, and in the old days a man could have got the "cat" for that. That shows how very misleading statistics are in regard to the offences of robbery and robbery with violence.
Whether or not these crimes of violence have increased, or whether or not floging was a deterrent, my view is that the judges should have had, and should now be given, a far wider discretion than they ever had with regard to all punishment. Their hands were always tied by the maximum penalty being in some cases seven years, in others five years, in others three, and in others only two, whilst in some cases, such as the curious ones referred to by my noble friend, Lord Asquith, they could impose whipping and flogging. I support the view of the Lord Chief Justice that judges should be given a discretion to inflict corporal punishment in all cases of felony involving violence. The judges would use the power only sparingly. In the old days, the "cat" and the birch were not imposed as a matter of course in cases of robbery with violence; they were very seldom imposed. Having regard to public opinion at the time, they were becoming more rarely used. But my view is that the judges of the High Court (and I would confine this to judges at Assizes) should be given very wide powers with regard to the punishment which they could inflict. Each case varies greatly from any other.
Your Lordships have had a catalogue of personal experiences from people who have had dealings with these cases, and I would add only one of mine, which occurred at Leeds some years ago. Two young soldiers, deserters from the army, were wandering across a lonely moor in Yorkshire. They were aged, I think, twenty-one and nineteen, or something of 892 that sort. They knocked at the door of a lonely farmhouse and asked the middle-aged farmer's wife if she would give them a cup of tea. She said she would and, as she was preparing the tea, one of the young men knocked her over and held her down while the other one raped her. These two young men were brought up, as I have said. I could not, of course, order them to be whipped—I had no power to do any such thing. I have not the slightest doubt that when I imposed the sentences on them which I did impose it came as a shock to everyone to think that that was the only punishment that I could give those young fellows—to send them to prison. I cannot remember what I did with one of them, but I know I gave the other three years' penal servitude. What was the result? Within a few months he was transferred to a Borstal institution and in nine months he was out. I think the state of the law which permits that kind of result to follow that kind of offence is grievously at fault.
§ 6.11 p.m.
THE MARQUESS OF WILLINGDONMy Lords, with your permission I will quote a few lines from Shakespeare's King Henry V:
…our houses and ourselves and children Have lost, or do not learn for want of time, The sciences that should become our country:But grow, like savages,To swearing and stern looks, diffus'd attire.And everything that seems unnatural.Which to reduce into our former favourYou are assemb'ld.Your Lordships are all familiar with the widespread efforts made by the various youth movements in this country, which, in their different ways and with their different methods of approach to the natural inclination of the boys and girls, are waging unceasing warfare against juvenile delinquency. The youthful malefactor, if his petty wrongdoing is unchecked, will grow into the adult criminal, but he can, at this stage, as we all know, be saved and, I think, be reformed by-punishment and fear of the consequences. If this is not done, only too often he remains a thorn in the flesh of society; he becomes, in fact, the cowardly enemy of society. When young people have been led into crime, for whatever reason 893 —craving for excitement, bad company, bad homes, or some defect in character—then the youth clubs try to co-operate in the work of rehabilitation.But these clubs feel handicapped, not only by the shortage of stall and of voluntary helpers who really understand the work, but also by the curious fact that only rarely are these young delinquents or their parents expected to make any recompense whatsoever for the damage or harm they may have done. I feel that this is an essential step in helping the youngster—or indeed any delinquent—to regain self-respect and to realise his or her responsibility to the oilier members of the community. It is altogether too easy to be dishonest nowadays, and if no repayment is expected it adds to the temptation. The public, as a whole, have a grave responsibility to show young people that "crime does not pay," and also to create conditions in which they can find legitimate enjoyment and adventure. It is not good enough to wait until boys and girls get into trouble and then to expect already overworked police and probation officers to cope. The noble Lord, Lord Schuster, has spoken of this problem a great deal better than I could ever do. But many of us are connected with this youth movement; and I believe it is a matter which does come within the purview of Lord Howe's Motion and that I can therefore properly bring it to your Lordships' notice.
§ 6.15 p.m.
§ LORD CALVERLEYMy Lords, my chief excuse for speaking this afternoon is that I had the doubtful privilege of being elected for sixteen years to the bench of visiting magistrates of one of the biggest prisons in this country. Looking back on my experience in an old lags' prison, after sixteen yean of regular, not casual, attendance, I find that upon only one occasion did we have to adjudicate on the question of whether a prisoner should be flogged for a most violent assault. Some of my colleagues were moved with indignation, but I had before me the report of the prison doctor. So I said to my fellow-magistrates: "Before you start thinking of punishment you should know that, although this assault has been a most violent and brutal one, you cannot flog this man because he is 894 dying of tuberculosis. Will you, therefore, apply your minds to devising some suitable form of punishment?" The form of punishment decided upon was to send the man to hospital.
The point I wish to make is this. Without doubt the old lags know well that corporal punishment for assault in prison was not abolished. From my experience, extending as I have said over sixteen years, I am convinced that that prison regulation, most carefully drawn up and still in operation, is definitely a deterrent to offenders who might otherwise be inclined to resort to violence in the prisons that I know. When you consider the overcrowded state of our prisons, when you reflect that the population of them is double what it ought to be—20,000 instead of 10,000—I think you will all appreciate the difficulty of the task which the prison officials have to carry out in administering the law. And the fact that they carry out that task without a lot of violent eruptions resulting speaks volumes for their ability.
I was interested in Lord Oaksey's suggestion of a referendum. Last Wednesday the bench with which I have been associated for twenty-odd years took a referendum. They had their annual meeting and they voted on whether or no a resolution should be sent to the Magistrates' Association recommending an inquiry by Parliament into these matters. I did not expect the resolution to be passed. However, it was passed by forty-one votes to seven, and a telegram was sent to the Chairman of the Magistrates' Association. So if a referendum were taken of the members of this bench—which has to act at some eighteen to twenty courts every week—your Lordships can easily realise what the result would be. I am sure that ail those men and women (whom I know well) were moved, not by a desire for power to impose corporal punishment in the juvenile court, but by the idea that the High Courts, and the Assize courts, should have extended powers to administer corporal punishment in such cases as were specifically mentioned in the resolution—rape and similar horrible crimes against the persons of women, girls, and even small children. That, my Lords, is my excuse for intervening in this debate.
§ 6.20 p.m.
LORD MERTHYRMy Lords, in this debate much comment has been made about the value, or absence of value, of statistics and figures. The noble and learned Lord, Lord Tucker, said that statistics are misleading. The noble Earl, Lord Howe, said, "Keep off figures." But, my Lords, how can we do this and do justice to this Motion? The very first proposition contained in this Motion is that crimes of violence are continuing. That is the premise of the argument. Surely we have to determine whether that is a fact by the use of statistics, before we can come to any just and reasonable conclusion upon this matter. I cannot help thinking that some of the speakers, finding that the statistics are not convenient to their argument—though I must admit they work both ways—are trying to suggest that therefore the statistics are not reliable. I cannot help the suspicion, also, that the noble Earl has been studying, instead of the somewhat dry, if informative, Home Office publications, those Sunday newspapers to which the Lord Chief Justice referred. But of course the newspapers, however good their reporting, cannot possibly give their readers any sort of reliable basis for estimating whether crimes are increasing or decreasing. They can place emphasis upon a particular crime, but they cannot give a reliable clue as to whether figures for that type of crime are going up or down.
The noble Earl, Lord Howe, also introduced the subject of the opinion of the magistrates as expressed at their recent annual meeting, and sought to cast doubt on the value of that decision. I mention it only because he mentioned it.
§ EARL HOWEI am sure the noble Lord will not misrepresent me, but if he will cast his mind back he will remember that I asked the noble Viscount, Lord Templewood, if he could tell us what was the total membership of the Magistrates' Association. That would give us a better chance to be able to judge the value of the decision. I was not casting doubt on anything.
§ LORD CALVERLEYTwenty thousand.
LORD MERTHYRI know the figure near enough. The total membership of the Association is between 9,000 and 9,500. I do not want to make more out of this matter than it is permissible to do, but the noble Earl, Lord Howe, introduced the subject. It is perfectly true that the total number of those who voted was a very small proportion of the total membership. It is not every magistrate who can come all the way to London on a Friday and give his time to these debates; he has other things to do. I admit straight away that the number who voted was a very small proportion of the whole membership. But it is only fair to assess just what the vote is: it is the considered opinion of the majority of those attending the annual general meeting of the only association which magistrates can join, the only national association. Any magistrate can join, on paying the subscription, and any magistrate who has paid his subscription can come to the meeting and can vote and can speak. I claim that, if any attention at all is to be paid to the result (and the noble Earl broached this subject), the only just conclusion is that the Magistrates' Association is against corporal punishment. I do not want a higher value put on that view than it deserves. May I mention in passing—and no one else has mentioned this point—that this is not the first but the second time within very recent years that the same annual general meeting has come to the same decision. Only a few years ago the same result occurred, the figures of course, being a little different.
Now, my Lords, may I pass to the deductions which we are entitled to draw from such statistics as are available? It has been said by several speakers that it is too early to judge. I think there is a great deal to be said for that view. But it is the noble Earl who is introducing this subject too early, I submit, not those who oppose corporal punishment. Those who wish to restore it are those who are introducing the debate; and if it is too early then we cannot be blamed. If it is not too early, I would draw your Lordships' attention to certain deductions which I think follow from the debate this afternoon. I think we are all agreed that, generally speaking, crime has gone up substantially. It may be due to the war, as Lord Strabolgi said. Be that as it may, nearly all forms of crime have gone up substantially. But the 897 striking fact is this: that the type of crime for which corporal punishment was administered before 1948, but is no longer administered, has not only gone down but is almost the only crime that has gone down. I submit that that is a very striking fact. It would not carry us very far, perhaps, if the other figures were not mentioned; but nearly all, if not all, the others have gone up. This one almost, if not entirely, alone has gone down. Surely the noble Earl will permit us to drawn some deductions from that fact. When we had a debate not long ago in your Lordships' House on capital punishment, which is of course an equally debatable subject, I ventured to plead that we should give the abolition of capital punishment a trial. Your Lordships would not do so, but your Lordships have given a trial to the abolition of corporal punishment, and I think I am therefore entitled to draw your attention to the results so far as they are available. In the short period that has elapsed since this trial began—four years, as I have already said—the results show that that particular form of crime, almost alone, has gone down.
I should like to say a word, if I may, to answer another question put by the noble Earl when intervening in another speech. He asked—and I think it is a pertinent question that should be answered—what about the victim? It is a question which deserves an answer. My Lords, I would suggest this reflection. If a woman has been gravely assaulted by a man, does it really help the woman if the man is flogged? I concede that very indirectly it may help other women who are likely to be assaulted in 1he future. But I suggest that; it does not help that particular woman one little bit. We are all agreed upon the malady. We all sympathise equally with the victim, as has been rightly said. We differ only about the remedy. The asking of this question leads me to suggest that part of the case for corporal punishment rests upon the old doctrine of revenge, the old doctrine of "an eye for an eye and a tooth for a tooth." I suggest to your Lordships that never in history has that policy produced any results whatever. It reminds me of vendettas and uncivilised communities.
There are two more points that I wish to make. First, it is not, in my submission—though I do not suppose any- 898 body could prove this—the probability of corporal punishment that deters the wrongdoer; it is rather the certainty or otherwise of conviction; not of the actual punishment but the certainty of being punished. It is that, in my submission, which deters him. Other speakers have expressed the view that it is no use saying that without seeing that there are more police. But there is no reason why we could not strain every nerve to get more police and build new prisons.
Finally, my Lords, I should like to mention one point that has been mentioned earlier this afternoon. That is the comparison of England and Wales, on the one hand, and Scotland, on the other. I think that it is right that we should draw some lessons from that. We divide this island into two parts: on one side of the line we have no corporal punishment, and on the other side, until four years ago, we had. What is the result? In that part of the island where there is no corporal punishment, there has been less crime than in that part where there was. That statement is a generalisation, but I believe it to be true. If anybody can prove it to be different, I will apologise, but I believe that it is true and we are entitled to draw lessons from that. Is it to be said that people in the northern parts are not equally tough? Is it to be said that they are more squeamish? I leave your Lordships to judge. I think that fact, which is not a prophecy, not a conjecture, not a theory, but a historic fact, must be given due weight in this debate.
§ 6.31 p.m.
§ LORD SILKINMy Lords, we are coming to the end of a long, interesting and valuable debate. Conflicting views have been expressed, but I should like the noble Earl, Lord Howe, who introduced the debate, to be assured that those who disagree with him are no less concerned about the crime that exists in this country, and that if they take contending views about the remedy, it is not out of sympathy with the criminals as against those who have been victimised. I feel that the case of noble Lords who sit on this side of the House has been exceedingly well put by the noble Viscount, Lord Templewood, by my noble friend Lord Macdonald of Gwaenysgor, and just now by the noble Lord, Lord 899 Merthyr, and there is not much more that can be said.
I want to pick up just one or two things which have been mentioned during the course of the debate. I should like to refer to the speech of the noble and learned Lord, Lord Tucker, who expressed the view that this was a matter upon which the opinions of committees and of the Home Office were not very important, and said that he would like to have the opinions of the police. He was expressing the views of Her Majesty's judges. Those noble and learned Lords who have spoken have played a big part in this debate, and they were unanimous in their view. The views of the police were actually given in the Report of the Departmental Committee, and although these views, as given by the chief constables, were by no means in complete unanimity, they said that they were prepared to accept the abolition of corporal punishment. A number of them took the very enlightened view that in the long term this matter could be dealt with in other ways.
The views of the judges are interesting. All of them, without exception, have expressed themselves this afternoon in favour of corporal punishment. The noble and learned Lord, Lord Tucker, said he expressed no opinion about whether this was the right time to go back on what had been done in 1948, but his view definitely was that it was a mistake in 1948 to abolish corporal punishment. With all respect, I would say that the views of judges on matters of crime have not always been enlightened or in the result correct. They have more often been wrong than right. I think this House would be in great danger of making a mistake if we accepted entirely the views of the judges who, as the noble and learned Lord, Lord Tucker, said, have a one-sided experience of crime.
LORD HAWKEMy Lords, can the noble Lord tell us how to prove a judge is wrong in his views about crime? That puzzles me. Where is the proof?
§ LORD SILKINThe proof is in the light of subsequent events. Over a very long period of history judges have refused any amendment of the criminal law in the direction of taking a more enlightened view of crime. On every occasion they have forecast that certain events 900 would flow from the alleviation of penalties and they have been wrong every time.
LORD HAWKEHas the increase in crimes of violence since 1938 been contrary to the prophecies of the judges?
§ LORD SILKINI am not speaking of the period from 1938. I suggest that a great many other factors have intervened since 1938 which make it difficult to isolate the one factor of corporal punishment. When we take a long period, let us say the last 100 years, we find that on every occasion when the abolition of capital punishment for minor crimes has become an issue, the judges have been opposed to it. I think there can be no doubt to-day that they have not been right. Therefore, I think we ought not to take the views of Her Majesty's judges on this matter too seriously. We are entitled to check up and form our own judgment.
It is not as if this method has not had an immense amount of consideration. The Departmental Committee which reported in 1938 made exhaustive inquiries and took into account every one of the points raised to-day, including the question of why persons are subject to flogging for attacking warders when the recommendation was that flogging for crimes outside prison should be abolished. This was considered very carefully. I do not wish to read out "chunks" of the Report at this late hour, but the fact is that the Departmental Committee saw a clear distinction between the case of the prisoner in prison, in whose case some special deterrent was necessary, as against the case of those outside. If the noble Lord wishes to pursue this, I would refer him to paragraph 75 of the Report, where this matter is dealt with. The point I am making is that this is not a new thing, and when noble Lords who are in favour of restoring corporal punishment say that this point has not been dealt with, the answer is that it has been considered and dealt with thoroughly by the Departmental Committee, and we accept the Report of that Committee. In their Report the Committee say:
while we agree that corporal punishment should be retained for prison offences, we desire to recommend various modifications of the existing law and practice.They also hope that in due course it will be possible to abolish corporal punishment even in prisons.901 I very much agree with those noble Lords who nave referred to the question of the shortage of police. I think that that is the most important aspect of the whole question. I agree also with the noble Lords who have said that the certainty of being found out and of being convicted is probably the greatest deterrent of all. What is the position at the present time? A criminal who commits a robbery has a fifty-fifty chance of being discovered and convicted. If we take the last three years, we find that in 1949 there were 990 cases of robbery and 466 convictions—less than half; in"1950 there were 1,021 crimes and 550 convictions—just over one-half; and the following year there were 800 crimes and 424 convictions. Where a person contemplates committing a crime, and feels that he has a fifty-fifty chance of getting away with it, I submit that that is some considerable encouragement to him to go ahead with it. If there were certainty of conviction, in my view you would find a considerable reduction in the number of crimes.
Why is there this uncertainty? We have been told that it is due to the shortage of police. The noble Viscount, Lord Templewood, takes the view that it would not take long, given improvement in certain directions, such as housing, the prospect of promotion, and so on, to recruit the requisite number of policemen. I should like to make one other suggestion. I feel that at the present moment the police force is to a considerable extent being wastefully used. Policemen are being used in dealing with motor-cars without lights, or persecuting owners of cars who happen to have business in certain parts of the country and want to remain for a few minutes. Too many of them are engaged on these relatively unimportant duties, and not enough on the important ones. You have only to go to any country town in Great Britain and see the number of police who are engaged in chasing motorcars away, and discouraging their owners from doing their shopping and carrying on their lawful avocations, to realise that there is a wasteful use of police in this country. If, as a first step, we went a little easy on lights on motor-cars, and concentrated more on dealing with criminals, I think we should get a much more effective police force than we have at the present time.
902 I agree with those who say that the time has been too short to draw any particular conclusions from what has happened since 1948. We do not make the case that the reduction in the number of crimes of robbery has justified the withdrawal of corporal punishment. That, of course, is a ridiculous case, as the noble and learned Lord, Lord Asquith, clearly demonstrated. It is not a question of cause and effect. But, sifter all, the onus for making the change that is proposed this afternoon does lie on those who are recommending it. It is for the noble Earl and others who advocate the restoration of corporal punishment to establish their case, and to give conclusive reasons why this change should be made. I would submit no more than this: that the figures that have been produced do not justify the case that they put forward. I do not put it any higher than that. It is the most difficult thing in the world to trace cause and effect in dealing with human beings, and there may be a great many reasons why crimes of a particular kind have gone up or down, regardless of the question of punishment. I also agree with those who regard the restoration of corporal punishment as being not a deterrent, but a form of retribution or revenge. That, in my view, would be a retrograde step. As my noble friend Lord Macdonald said, if it really became necessary, and if it could be demonstrated that it was absolutely necessary, in the interests of the public that corporal punishment should be restored, most noble Lords in this House would be prepared to agree. But the case must be made out, and it has not been made out.
I want to say a final word about long-term considerations. These questions of corporal punishment, terms of imprisonment, and so on, are short-term questions which affect the particular criminals themselves. But are we doing enough to-day to prevent the creation of criminals? Are we giving serious and sufficient thought to why there is this increase in crime? I believe that on Monday of this week, in the opening of ten acres of playing fields in Stepney by the Duke of Edinburgh, we took one of the biggest steps we have taken for a long time towards the reduction of crime of this kind in the future. Stepney, as noble Lords know, has hitherto been an area where there has been hardly an acre of open space, and the chances of young 903 people in Stepney enjoying healthy recreation have been negligible. They have had to go miles to get an opportunity of playing games. To-day we have ten acres of playing fields in Stepney, with a promise that in due course it will be increased to sixty-five acres. I believe that in that step we have done far more towards the reduction of crime among young people in Stepney than by any action that the noble Earl could possibly take by means of restoring corporal punishment.
Then there is the question of clubs. A number of chief constables have made themselves responsible for initiating and setting up clubs in their areas, because they regard that as an important step towards the reduction of crime. I believe that we as a nation could afford to spend a good deal more money than we do in providing young people with alternative methods of spending their time than by going about the streets and indulging in violence. If they were offered these opportunities of healthy, open-air games, and clubs where they could meet in a peaceful manner and engage in their high spirits, if they wanted to, in billiards or indoor games, I have sufficient faith in them to think that they would take advantage of it. I speak with some experience, as chairman for a great many years of a Home Office approved school. I have seen how the treatment of young people in such schools has had a real reformative effect. I would appeal to the Government, first, to give the 1948 Act a fair trial. I believe that they are going to do so. But I hope they will not rest at that, but will realise that they have to do something further to get at the root of crime, and particularly juvenile crime, and that one of the methods of dealing with it is to give young people a better outlet than they have at the present time.
§ 6.49 p.m.
THE LORD CHANCELLORMy Lords, nobody will quarrel with the noble Earl, Lord Howe, for raising this matter once again in your Lordships' House. When the matter was last before your Lordships I remember well that the noble and learned Earl, Lord Jowitt, described the position as a grave one, and the noble Marquess who now leads the House described it as an intoler- 904 able and humiliating one, that there should be so much crime in this country in the middle of the twentieth century. Therefore it can be but for the common good that the matter should be raised in your Lordships' House, where the points of view of those who hold different views can be put forward with all the wealth of experience which so many of your Lordships have—and I may add, perhaps, with a temperateness which is not always seen in other places.
When I came to the terms of the noble Earl's Motion I must say that I was a little puzzled by them. The noble Earl calls attention
to the continuation of crimes of violence towards women and other defenceless persons, and to ask whether the existing penalties which the courts have power to inflict in such cases are adequate to protect the public.This is a matter which came first before the Home Office, and they set to work to try to find out what was the category of "women and other defenceless persons" who were intended. I think probably the noble Earl introduced the word "defenceless" rather to arouse sympathy, and that he intended to cover all crimes of violence towards persons who perhaps were unarmed—to all others than duellists, in fact. He intended to cover all crimes of violence, and although certain statistics have been worked out showing the crimes committed against defenceless persons, in the sense of children under a certain age or old men over a certain age, yet I am not going into those details and I am assuming that he was dealing with all crimes of violence.Then there is another confusion which I think I must clear up. When we have debated the matter in this House, not only in the year 1948 but also recently, on the Motion of Lord Lloyd, the only question was whether flogging should be continued or discontinued in respect of those crimes for which it could, before 1948, have been awarded. Those crimes, as your Lordships well know, are strictly limited—artificially and anomalously if you like, but the crimes for which corporal punishment could be awarded (apart from certain rather exotic Acts of Parliament, with which I am not concerned, such as the Diplomatic Privileges Act and the Knackers Act) were mainly crimes under Section 23 of the Larceny Act. It was to those crimes that our debates referred. 905 If the Motion before your Lordships to-day referred only to those crimes, what would the position be? I do not think that anybody in this House—neither the noble Earl, Lord Howe, nor anybody else—would dare to say, after the experience of the last four years, since the Criminal Justice Act abolished corporal punishment for those crimes, that it should be reimposed for those crimes. Nobody could put forward the argument that, as a result of the abolition of punishment, those crimes had increased. On the contrary, the statistics show quite clearly that, so far from having increased, they have decreased. I agree that you can draw many inferences from figures, but the one inference you cannot draw is that the abolition of corporal punishment in respect of those crimes for which it was formerly awarded has resulted in their increase. It may be that other causes have contributed to the decrease, though it is strange indeed since other crimes have increased. I respectfully challenge the noble Earl whose sincerity in this matter I respect. Would he dare to say that if that were the only matter in issue he would ask for a reimposition of corporal punishment? I am not asking the noble Earl to reply now—my question was, of course, rather rhetorical. He will no doubt deal with it in his reply. That was the subject matter with which on previous occasions we had been dealing—those particular crimes of violence.
As everybody knows, there are many other crimes of violence. Let me remind your Lordships of some of them. This is really very important, because proposals have been made to-day in your Lordships' House which, in my respectful submission, would put the clock back one hundred years and more. Crimes of violence in common parlance would, I suppose, include not only robbery with violence (with which I have been dealing) but would also include murder or attempted murder, felonious wounding, malicious wounding, assault, rape, indecent assault upon females—to name no others. It was noticeable that in some of the examples which noble Lords gave of crimes of violence, one at least—and I think more—were examples of rape. The Lord Chief Justice, for whose opinion I have enormous regard, Lord Oaksey for whose opinion I have an equal regard, and other noble Lords, 906 have appeared to favour the reimposition of the penalty of corporal punishment for those crimes of violence. The Lord Chief Justice said that he would reimpose it for all cases of felonious wounding. If he were here, I do not think he would challenge my suggestion that if he went so far he must go further, and at any rate impose it for rape or for assault upon women, for it is impossible surely to distinguish between those two classes of crimes.
What is it that he is doing? Let me remind your Lordships, if I may for a few moments, of the history of this matter, for I think it is of great importance that we should see where we are going if we really contemplate the reimposition of corporal punishment for all those crimes. Where do we stand? Of course at Common Law, if one goes far enough back, for every felony the penalty was death; for every misdemeanour the penalty, amongst others, was whipping. We have passed far from those days. But it was not until 1827 that the death penalty for felony was generally abolished, and at that date persons convicted of felony were punishable as the Statute in that behalf prescribed. Generally at that time the Statute prescribed, amongst other things, a whipping. That was in 1827. Now the time was short before in 1843 the Commissioners appointed to examine into this matter made their Report. I fear that it is a late hour, but the subject is an intractable and important one, and therefore I should like to remind your Lordships of what was said as long ago as 1843. It is cited in the Report of the Cadogan Committee that what the Commissioners on the Criminal Law said in their Seventh Report in 1843 was this:
We have already had occasion to observe that the punishment of whipping is occasionally inflicted, and, in some instances, without regard to any peculiarity in the crime which seems to warrant such a decision. We see no reason for confining this species of punishment to the limits within which it is now applicable, if resort to it be advantageous either in respect of deterring or correcting offenders. If, however, the efficacy be not established by experience, we should certainly be inclined to reject it altogether, except in the instance in which it has lately been imposed by the Legislature, as constituting a signal mark of ignominy.That was a reference to the Treason Act, passed as the result of a recent attack on 907 Her Majesty Queen Victoria. The Commissioners went on:We think that, so far from extending this species of punishment, it would be better to reject it, except in the instance to which we have alluded and a few, if any others, which it may be proper to mark with signal reprobation. It is a punishment which is uncertain in point of severity, which inflicts an ignominious and indelible disgrace on the offender, and tends, we believe, to render him callous, and greatly to obstruct his return to any honest course of life.That view was substantially adopted in the great Acts of 1861, and although from time to time exceptions have been made by Statute Law—the Garrotters Act, for instance, and the Criminal Law (Amendment) Act, under which, for certain crimes, this penalty could be inflicted—there the law stood until 1948. In the meantime, since the question had again roused great public interest, the Cadogan Committee was set up, and it reported in the year 1938. It recommended the abolition of corporal punishment even where it then existed, except in one special case.Now, it is against that background of opinion and that background of history that it is suggested to-day in your Lordships' House that not only should we reverse the legislation of 1948, but that we should extend the penalty of corporal punishment in a degree which surpasses anything that has been permissible over the last 130 years. Is not that in the nature of panic legislation? I am sure that at this stage this is a matter for the gravest consideration. It is perpetually exercising the minds of my learned friends and my right honourable friend the Home Secretary, and, of course, the Home Office officials. I am not, in answer to this Motion, in a position to say that the Government can now introduce legislation both to reverse the policy of the 1948 Act and to extend the penalty of corporal punishment beyond where it has been for this last 100 years.
This I will promise: that every word that the noble Lord who moved this Motion and of all noble Lords and noble and learned Lords who have spoken on both sides of the case will be carefully considered by my right honourable friend. The matter is continually under consideration. If new facts came before us which appeared to support the case, it might well be that we should have to 908 reintroduce this penalty. But at present it would not be fair to the noble Earl if I were to say that it was the intention at present of the Home Secretary to introduce legislation. Apart from anything else, there are the difficulties of the legislative programme which would make it inevitable that further delay would arise.
But I should not like the matter to rest there. So many points have been taken up in the course of this debate that I cannot hope to answer them all; but there were one or two matters to which I think I ought to refer. I do not wish to say anything more about what noble Lords have said who have spoken of their experiences. Their opinion necessarily weighs—and, indeed, that of many other persons weighs. The opinions which noble Lords have expressed were, I think, expressed also before the Cadogan Committee and were rejected. It is no disrespect to my noble and learned friends if I say that we cannot accept their opinions on this matter as the final word.
There was some talk about the over-crowding of prisons. I think I ought to tell your Lordships that so far as that is concerned, it is true—disastrously true—of prisons in which for minor offences short sentences are being served, but I am informed that it is not generally true of prisons in which longer sentences are being served. In time, no doubt, we can remedy the shortage of prison accommodation. Your Lordships know well what the difficulties are. Yesterday the cry was for more hotels in the interests of the balance of payments. Another day the cry is for more schools in the interests of education; and always those who advocate a particular matter think that that matter should have priority. It is the task of the Government to endeavour to decide as fairly as possible between these several exacting calls. All I can say is that we hope in due course to be able to provide more ample accommodation in prisons.
There is one other point I should like to make. It is suggested that the prisons would not be so crowded if it had been possible to award, in many cases, a penalty of flogging and a snorter term of imprisonment. It is difficult, of course, to get very exact statistics about that, but an endeavour has been made to find out what the result would be, and I am informed that if all sentences under 909 Section 23 (1) of the Larceny Act between 1947 and 1951 had been sentences of flogging instead of imprisonment, to-day's population in the prisons would he fewer by only a little over 300. The calculation was difficult to make; but it would not be right to suggest that the congestion of the prisons is due to the impossibility of awarding a shorter term of imprisonment coupled with a flogging. Then a question was asked, or a point made, in regard to prison staffs. There the position is steadily improving. The three-shift arrangement is now in operation at nine of the central and training prisons. An effort is being made to extend it to two more, and in time I hope that that deficiency will be met in local prisons as well.
A point about which I had prepared a note, but which no speaker has mentioned, was in regard to deserters. It may interest your Lordships to know this. It has been suggested from time to time that the prevalence of crime may be due in part to deserters who are at large and have to pick up their living in what strange ways they may. I thing the best opinion is that there is nothing in that point. There were 10,432 deserters during the war who are not accounted for, and 3,556 who have deserted since August, 1945. It is known that the great majority of those persons have left the country for Ireland or other countries overseas. Some support for that view is lent by the fact that in 1951 there were 28,732 persons charged with indictable offences in the Metropolitan area, and that of that great number only 260—less than 1 per cent.—were charged also with desertion. One may assume that they would have been charged with desertion had they been deserters. A similar proportion applied in 1950.
I want to say only one or two words more. I agree, with great respect, with the noble Viscount, Lord Templewood, and the noble Lord, Lord Macdonald, who pleaded that the system set up by the Criminal Justice Act of 1948 should be given a fair trial. That Act, as your Lordships know, instituted a number of new methods of dealing with criminals. Detention centres, which it was hoped would be a valuable aid, were prescribed by the Act for young persons between fourteen and twenty-one years of age, but so far, again as the result of the many 910 claims made upon materials and labour, it has been possible to establish only one—that is at Kidlington between Banbury and Oxford. There, a detention centre for sixty boys between fourteen and seventeen years of age has been set up, and there are now thirty boys there. It is hoped soon to set up a second centre for boys between seventeen and twenty-one years of age.
The Act also provided for attendance centres for offenders between the ages of twelve and twenty-one. So far, eight such centres, one of which is in London, have been set up for boys between twelve and sixteen. Later, it is hoped to set up centres in most large towns. There were fifty-one boys attending in 1950, 282 in 1951, and in the first six months of 1952, 208—a small beginning, but a beginning. Then it was proposed to set up remand centres, but it has not been possible yet to proceed with that remedy. Then, for persistent offenders, provision was made for corrective training for adults over twenty-one if they had previously been convicted on indictment of an offence punishable by two years' imprisonment or more. There, the period of sentence was from two to four years. On October 14 of this year, there were 1,668 persons in such centres. I think that the noble and learned Lord, Lord Oaksey, asked what was the use of corrective training. It is now very late so perhaps I may send him the particulars. I can only say that we hope and believe that it will be a valuable aid in the correction of criminals. Finally, the Act provided for preventive detention for five or fourteen years for persons of over thirty if the court is satisfied that—I cite the Act:
it is expedient for the protection of the public.On the fourteenth of this month of this year, 868 men and twenty-eight women were held under such preventive detention.Those were some of the methods by which it was hoped the Act of 1948 would assist in the reduction of crime. A great many causes have contributed to crime being increased, rather than decreased. At this hour I do not want to go into all those matters, the relaxing of family discipline, perhaps the lowering of the general moral standard, perhaps the failure of the religious sanction—how large a part they play nobody can say. At any rate, the position is this. The Home Secretary thinks, and with great respect I agree with him, that the Act 911 should be given a longer trial before we take what so many people believe is a retrograde step. I am quite sure of this. It would be a very important and grave matter to take this step before we were well assured, first, that it would be effective, and secondly, that no other method would be equally effective. So I must answer the noble Earl by saying that, if that is what his Motion means, I cannot promise, as matters now stand, that any legislation will be introduced. I am afraid that many questions have been raised and I cannot hope to cover them all. But I have endeavoured as best I could to answer those which appeared to me to be most important.
§ 7.16 p.m.
§ EARL HOWEMy Lords, while thanking the noble and learned Lord the Lord Chancellor for the great care which he has obviously taken in replying to this debate, at the same time I cannot help feeling a great disappointment with certain aspects of the reply which he has made. He has questioned the terms in which I drafted the Motion. I drafted them purposely so as to cover every aspect of violent crime. The noble and learned Lord Chancellor will remember that in my opening remarks I said that I thought in every case of violent crime where a conviction was recorded, and where it was proved that some weapon or other had been used upon the type of people referred to in my Motion, there should in such cases he power to the courts and to the judge to award a sentence of flogging if he considered it necessary. That went far beyond the flogging as it was known in the old days, and which, as has been pointed out by many speakers, could have been awarded only 912 for robbery with violence—or that principally—and one or two other offences. I cannot help feeling that the decision of the Lord Chancellor and the Government, backed up as it has been by numerous speakers whose sincerity I do not for one moment question, will be coldly received. It will be cold comfort to the unfortunate victims.
I have spoken to-day simply as a member of the public. I have tried to put the case as I saw it, without any expert knowledge at all. The noble Lord, Lord Merthyr, thinks I have collected all my information from the Sunday papers. I have collected a certain amount of my information from the Sunday papers, as he does when he reads them, but not all of it. A good many of the things I produced this afternoon came out of The Times, he may be surprised to hear, so perhaps he will forgive me on that score. At this late hour, I do not want to delay the proceedings. I do not want to put your Lordships to the trouble of a Division. For that reason, I propose to withdraw my Motion. I conclude by saying that this question is one of vital importance. We have been urged to give the Act a longer trial, but nobody has told us how long it will be, how long we have to endure the present situation. The public will want to know that. I beg leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn