PRISON IS NOT ENOUGH
Frederick Lawton argues that
corporal punishment might be the only answer to violent young criminals
IT IS ironic that the Home Secretary should, at last, have reacted to the wave of violent youth crime by proposing a return to the measute of protecting society by locking criminals up. When, between 1961 and 1972, as a Queen's Bench judge, I had to pass long sentences on villains, I never deluded myself that at the end of their sen- tences they would leave prison better men than when they went in. Nor did I think that they would be deterred from commit- ting further crimes because of the sentence I had imposed. What a custodial sentence would do, I thought, was to show that soci- ety, in the only way it could, would not tol- erate gross breaches of the law and would ensure for the period of the sentence that the offender would be unable to commit any more crimes. When sentencing those under 21 to either Borstal training or three months in a detention centre, I thought that they would benefit from the discipline they would get there.
However, my successors on the bench may now be wondering whether when Ah Smith. Now you remember how we guaranteed a job for life?' imposing custodial sentences they are per- forming any useful social function. Prisons have never done much to rehabilitate offenders nor to deter them. Prison sen- tences now lack even the appearance of retribution.
Until liberal reformers got their hands on the prisons in the 1960s and 1970s, there was still an element of retribution. The system had been based on the concept that there could be no prospect of rehabili- tation until prisoners had learned to disci- pline themselves. In order to attain self-discipline, they had to learn to obey the prison rules, to maintain a high stan- dard of cleanliness and tidiness, and to be respectful to those in authority over them. All this, the critics thought, was mere regi- mentation. What was needed was a regime under which the prisoners learnt to make decisions for themselves, which they could only do if they were given opportunities within prison to do so. This meant less supervision, more association with other prisoners and encouragement to maintain contact with their families and friends.
This seemed attractive to the Home Office. Discipline was relaxed. More time was spent out of cells. Visits by relatives and friends became more frequent and shorn of the restrictions which had been imposed in the past. Governors tended to be recruited from those who had been employed in the social services. The old- style uniformed prison officer, who had usually been an NCO or petty officer in the services, began to be replaced in the 1960s by men who had become unemployed as a result of the run-down of heavy industry in the north. Many brought with them the work attitudes then current in the ship- yards and steel mills. The Prison Officers' Association, which in the past had been regarded both by the Home Office and the uniformed staff as a staff association for the discussion of wages and working condi- tions, began to take on the characteristics of a militant trade union. The result in recent years has been frequent disorder.
All this has come about through good intentions getting the better of common sense. The modern prison is the product of 19th-century thinking. Before then, and for centuries dating back to Roman times, a prison was thought of as a place where those suspected of crime were confined until trial, and, if convicted, until they were put out of the community either by execu- tion or banishment. Imprisonment for short periods was sometimes used as a punishment for minor offences. More usu- ally misdemeanants suffered corporal pun- ishments such as whipping, the pillory and the stocks. In England in the second half of the 17th century, banishment meant transportation to the West Indies, in the 18th to the American colonies, and after the American War of Independence to Australia. By the beginning of the 1840s, doubts were arising about the justice of transportation. In 1846 the government in New South Wales decided that it would admit no more convicts. What was to be done with them? For a few more years, ending finally in 1867, a few were trans- ported to Western Australia, Sierra Leone and Gibraltar.
The solution seemed to be the adoption of a penal system which had been started in Philadelphia in 1807. This entailed building a new kind of prison, in which each prisoner was confined in a separate cell and not allowed to come into contact with others. In 1842 a prison of this kind was built in London at Pentonville. Fifty more prisons of the same kind were built in Great Britain between then and 1876. By the late 1850s it had become clear that this system was causing breakdowns in both the physical and mental health of prisoners.
In 1865, by the Prisons Act of that year, Parliament decided that there should be established a new kind of regime based on deterrence. Prisoners were to be allowed to meet each other but only when doing hard labour or alongside cranks and tread- mills. By the last decade of the 19th centu- ry, public opinion had begun to disapprove of this way of dealing with prisoners. Any- way, it was doubtful whether it was deter- ring the kind of criminals who kept on committing crimes. In 1895 the Gladstone Committee advised another change in penal policy. The object of a penal system should be rehabilitation. This was made the statutory policy by the Prisons Act 1898. It still is the policy — and it has failed.
Finding some kind of punishment other than custody would be a task for a new Royal Commission. There could be an extension of the community service con- cept. It could be made more rigorous, in particular by providing that offenders should join labour camps for longish peri- ods to undertake work of environmental importance such as land drainage, coast protection and clearing away industrial debris. Why not deprive offenders for lim- ited periods of some of their rights as citi- zens? They might not be deterred by losing their right to vote; but they might be if they were in danger of losing for a time some of their social security rights other than those to medical care. Then there is the problem of dealing with ado- lescents. Treating them in modified ver- sions of public schools, as the Borstal system set out to do, was a failure. Deten- tion centres too are said to have been fail- ures.
It has always mystified me why the Home Office has been so unsuccessful with detention centres. Perhaps an experi- ence I had in the early 1960s, when as a judge I visited the detention centre at Goudhurst, provides an explanation. On going round, I noticed deficiencies in hor- ticultural and agricultural equipment. On leaving, I asked the warden whether I could help by supporting any requests he might like to make for improvements. He said, 'I would like a swimming pool for the boys.' I did not support that suggestion.
During my 26 years as a judge, many changes were made in the penal system. Presumably the Home Office thought that they would be effective in reducing the crime rate. When new statutory powers were required to implement them, Parlia- ment must have thought so too. As a judge I tried loyally to follow the new policies when sentencing. But there has been more and more crime. Someone may be able to convince the Home Secretary that crime can be curbed by punishments served within the community, and, only those who are a danger to it being committed to prison. But what if no new solution is forth- coming?
May it not be necessary to reconsider the recommendations of the Cadogan Commit- tee made over 50 years ago and embodied in the Criminal Justice Act 1948, to the effect that corporal punishment should no longer be a judicial sentence? Many nowa- days would regard the restoration of corpo- ral punishment as inhumane (a word used in the European Convention on Human Rights) and morally wrong. The use of the cat o' nine tails, introduced in the latter part of the 18th century, probably is. Before then a whip was used. But what morally is the difference between sentenc- ing a young man, who has been convicted of a bad case of violent robbery, to 12 strokes of the birch and a year in gaol, which was the old sentencing practice, and the modern one of putting the same kind of offender in prison for five years ? If a Royal Commission, after considering in depth all aspects of corporal punishment and weighing the historical evidence, con- cluded that it would curb violent crime to a substantial extent, ought it not to be brought back ?
Sir Frederick Lawton is a former Lord Jus- tice of Appeal, who retired in 1986.
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