23 JUNE 1961, Page 3


Tuft: Court of Criminal Appeal on Monday dismissed. George Blake's application for leave to appeal, against the sentence of forty-two years' imprisonment passed on him for spying; and on the same day at the Central Criminal Court Arthur Jones, found guilty of murder, was sentenced to life imprisonment, to run con- secutively with the sentence of fourteen years passed on him in the same court three months ago. Although the lengths of the sentences im- posed are exceptional, they reflect a trend which has already aroused concern : towards the im- position of longer prison terms not by enactment, but because they are considered desirable by some judges. Where there is flexibility in the range of sentences that -a judge may impose, the lightness or heaviness of sentences naturally reflects the state of judicial opinion. Because indictable crime has been increasing, and because there is a widespread belief that things have been made too soft for criminals, the tendency has been for sentences to become longer; less as a consequence of deliberate State policy than as a symptom of judicial feelings about what State policy ought to be.

Yet at the same time criminologists and sociologists are casting doubts upon the deterrent value of long sentences—or harsh sentences; the committee which the Home Office asked to in- quire into the possibility of restoring corporal punishment contained members who on their past records could not be considered squeamish in, such matters, yet unanimously they rejected the idea. And over long sentences, common sense alone should dispel any illusion that a man thinking of going out to commit a crime will be swayed by whether the sentence is going to be live years or ten. In the case of a criminal such as a spy—at least, a dedicated spy—the length of the sentence will ordinarily be irrele- vant; and as most ordinary criminals proceed on the heady assumption that they are not going to be caught, the exact sentence which they will receive if they are caught does not influence them.

That criminals are rarely affected by deterrents is something the law-abiding citizen finds hard to understand. He assumes that criminals think as he does, and balance the number of thousands of pounds they will get from a bank robbery against the number of years they will get if they are caught. Nothing could be farther from reality. Criminals commonly behave as small children do, taking what attracts them with- out stopping to think how they will be punished if detected, because they have never learned to control their impulses.

Where they are involved in more elaborate crimes, it is usually because they have become the associates of some criminal of a more organised kind who plans the robberies which they help greedily to carry out.

Supplementing the case against heavier punish- ment on the ground it is an ineffective deterrent, there is also a minority belief that it is unjust, because it punishes individuals for what are really the sins or failings of society. As Victor Gollancz puts it in his moving plea for mercy for Adolf Eichmann, however fervently we may believe in the idea of free will we must concede that in all sorts of ways the human will is not free. Apart from those forms of mental illness which demonstrably deprive them of self-control, there are hereditary and constitutional forces, not easily diagnosed, which make some indi- viduals more irresponsible, more violent and more dangerous than others; and some people are conditioned by their environment to reject moral standards shared by the rest of the com- munity. 'No human being,' he insists, 'can ad- judicate as to the degree, if any, of respon- sibility (which is to say guilt) imputable to his neighbour, or perhaps even to himself, for a sin or a series of sins or a whole lifetime of sinning.'

It is often argued, of course, that the law cannot concern itself with personal responsi- bility on this level; its job is to protect the com- munity, not the criminal. But this is an argument that society should not accept—and indeed has long rejected. Lunatics have never been held fully

responsible for their actions; and the develop- ment of the doctrine of diminished responsibility reflects the growing impression that overt mental illness should not be the only excuse. Many criminals have been conditioned from childhood to anti-social activity; the way to handle them is not to send them to prisons, from which they will probably emerge hardened recidivists, but to find some way to restore them as useful mem- bers of the community.

Clearly it is useless, as a number of speakers (including a surprise 'maiden,' Lord Montgomery) suggested in the Lords on Tuesday, to sentence young men to gaol—which in present circum- stances often means introducing them to a thieves' kitchen--and then release them and ex- pect them to go straight, with only the most rudi- mentary after-care organisation to help them. Society is merely endangering the property and even the lives of its own citizens, if it pretends that a prison sentence is a deterrent; in many cases the only friends they have to turn to on their release are their old associates in crime, or the new criminal acquaintances they formed in prison.

The time has come when we must begin to think more carefully about whether the tradi- tional concept of 'criminal responsibility' has any validity in the light of recent advances of knowledge about criminal minds and motives. In his The Idea of Punishment Lord Longford pro- tests that 'you cannot by-pass criminal respon- sibility while retaining anything like our exist- ing legal system. The very notion of "guilty" or "not guilty" and the connected notion of "guilty but insane" depend on the assumption that criminal responsibility exists.' But does it? The courts could perfectly well continue to do what they now do: ascertain whether an offence against the law has been committed. The only change would be that instead of awarding specific punishments, a court would turn over offenders to specialist boards set up to decide what should be done with them. For some, the treatment might be tough; for others, prolonged—there is no reason to believe that a man who breaks the law will be let off too lightly; indeed, he may have reason to fear that he will be worse off, if the length of his detachment from society de- pends on his progress, rather than on some arbitrary court sentence. This is, admittedly, a long-term project; but as the limitations of the belief that crime can be fought by increasing punishment become relentlessly exposed, it is worth bearing in mind as a subject for research, and eventually for legislation.