PUNISHMENT, PRISON and the PUBLIC AUSTRALIA the Law Book Company Ltd
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THE HAMLYN LECTURES TWENTY-THIRD SERIES PUNISHMENT, PRISON AND THE PUBLIC AUSTRALIA The Law Book Company Ltd. Sydney : Melbourne : Brisbane CANADA AND U.S.A. The Carswell Company Ltd. Agincourt, Ontario INDIA N. M. Tripathi Private Ltd. Bombay ISRAEL Steimatzky's Agency Ltd. Jerusalem : Tel Aviv : Haifa MALAYSIA : SINGAPORE : BRUNEI Malayan Law Journal (Pte) Ltd. Singapore NEW ZEALAND Sweet & Maxwell (N.Z.) Ltd. Wellington PAKISTAN Pakistan Law House Karachi PUNISHMENT, PRISON AND THE PUBLIC An Assessment of Penal Reform in Twentieth Century England by an Armchair Penologist BY RUPERT CROSS, D.C.L., F.B.A. Vinerian Professor of English Law in the University of Oxford Published under the auspices of THE HAMLYN TRUST LONDON STEVENS & SONS Published in 1971 by Stevens & Sons Limited of 11 New Fetter Lane in the City of London and printed in Great Britain by The Eastern Press Ltd. of London and Reading SBN Hardback 420 43790 8 Paperback 420 43800 9 Professor Cross 1971 CONTENTS The Hamlyn Lectures ....... viii The Hamlyn Trust xi Preface xiii Introduction xv I. BACKGROUND AND DRAMATIS PERSONAE . 1 1. The Gladstone Report .... 1 2. Sir Edmund Du Cane 7 Convict Prisons ..... 7 Local Prisons ...... 9 Hard Labour 10 The Du Cane Regime . .11 Du Cane as a penologist and a person . 13 3. Sir Evelyn Ruggles-Brise . .16 Prison Conditions 17 The avoidance of imprisonment . 19 Individualisation of punishment and indeterminacy of sentence ... 22 Ruggles-Brise as a penologist and a person 27 4. Sir Alexander Paterson .... 29 Career and Personality .... 30 Paterson as a penologist.... 33 5. Sir Lionel Fox ...... 37 6. Subsequent developments and other agencies of penal reform 41 vi Contents II. PENAL REFORM, PUNISHMENT AND PRISON . 43 1. The meaning of penal reform ... 43 2. Ewing's educative theory of punishment . 47 Education of the offender ... 48 Education of the community ... 50 Stephen 52 Hart .54 Priorities 55 3. Capital and corporal punishment . 56 Capital punishment .... 57 Corporal punishment .... 60 4. Prison Conditions 62 A day in a prisoner's life ... 62 Local and open prisons .... 66 Training prisons 68 Contrast with the past .... 68 Grendon Underwood .... 78 After-care 81 The extent to which prison conditions are reformatory 83 III. THE REDUCTION AND AVOIDANCE OF IMPRISON- MENT AND PUNISHMENT .... 87 1. The reduction of imprisonment ... 87 Remission 87 Parole 90 Length of sentences .... 98 2. The avoidance of imprisonment . .108 Probation and the probation officer . 109 Suspended prison sentences . .112 Contents vii 2. The avoidance of imprisonment—continued Offenders under twenty-one . .116 Senior detention centres . .126 Borstal 128 Mentally abnormal offenders . .134 Appendix 137 Essay by a six-month trainee at Whatton Detention Centre—My Detention Centre Sentence 137 Essay by a trainee at Huntercombe Borstal—A day in Borstal . .139 IV. RECIDIVISM AND THE COMMON MAN . 142 1. Recidivism 142 Preventive detention . .145 Extended sentences . .157 Protection of the public . .158 Corrective training 161 Three salutary lessons . .163 2. An assessment of penal reform in twentieth century England 167 3. The common man's questions . 171 Excessive penal reform . .172 Sentence for murder . .175 The victim 176 Responsibility 179 4. Incidental suggestions . .185 5. The Royal Commission on the penal system 1964-66 188 SELECTED BIBLIOGRAPHY 191 THE HAMLYN LECTURES 1949 Freedom under the Law by The Rt. Hon. Lord Denning 1950 The Inheritance of the Common Law by Richard O'Sullivan, Esq. 1951 The Rational Strength of English Law by Professor F. H. Lawson 1952 English Law and the Moral Law by Dr. A. L. Goodhart 1953 The Queen's Peace by Sir Carleton Kemp Allen 1954 Executive Discretion and Judicial Control by Professor C. J. Hamson 1955 The Proof of Guilt by Dr. Glanville Williams 1956 Trial by Jury by The Rt. Hon. Lord Devlin 1957 Protection from Power under English Law by The Rt. Hon. Lord MacDermott 1958 The Sanctity of Contracts in English Law by Sir David Hughes Parry 1959 Judge and Jurist in the Reign of Victoria by C. H. S. Fifbot, Esq. 1960 The Common Law in India by M. C. Setalvad, Esq. 1961 British Justice: The Scottish Contribution by Professor T. B. Smith viii The Hamlyn Lectures ix 1962 Lawyer and Litigant in England by The Hon. Mr. Justice Megarry 1963 Crime and the Criminal Law by The Baroness Wootton of Abinger 1964 Law and Lawyers in the United States by Dean Erwin N. Griswold 1965 New Law for a New World? by The Rt. Hon. Lord Tangley 1966 Other People's Law by The Hon. Lord Kilbrandon 1967 The Contribution of English Law to South African Law; and the Rule of Law in South Africa by The Hon. O. D. Schreiner 1968 Justice in the Welfare State by Professor H. Street 1969 The British Tradition in Canadian Law by The Hon. Bora Laskin 1970 The English Judge by Henry Cecil 1971 Punishment, Prison and the Public by Professor Rupert Cross THE HAMLYN TRUST The Hamlyn Trust came into existence under the will of the late Miss Emma Warburton Hamlyn, of Torquay, who died in 1941, at the age of eighty. She came of an old and well- known Devon family. Her father, William Bussell Hamlyn, practised in Torquay as a solicitor for many years. She was a woman of strong character, intelligent and cultured, well versed in literature, music and art, and a lover of her country. She inherited a taste for law, and studied the subject. She also travelled frequently on the Continent and about the Mediterranean, and gathered impressions of comparative jurisprudence and ethnology. Miss Hamlyn bequeathed the residue of her estate in terms which were thought vague. The matter was taken to the Chancery Division of the High Court, which on November 29, 1948, approved a Scheme for the administra- tion of the Trust. Paragraph 3 of the Scheme is as follows: — " The object of the charity is the furtherance by lectures or otherwise among the Common People of the United Kingdom of Great Britain and Northern Ireland of the knowledge of the Comparative Juris- prudence and the Ethnology of the chief European countries including the United Kingdom, and the circumstances of the growth of such jurisprudence to the intent that the Common People of the United Kingdom may realise the privileges which in law and custom they enjoy in comparison with other European Peoples and realising and appreciating such privileges may recognise the responsibilities and obligations attaching to them." xi xii The Hamlyn Trust The Trustees under the Scheme number nine, viz.: Professor J. N. D. Anderson Professor J. A. Andrews The Rt. Hon. Lord Justice Edmund Davies Professor P. S. James Dr. F. J. Llewellyn Professor F. H. Newark Professor D. M. Walker Professor K. W. Wedderburn Sir Kenneth Wheare From the first the Trustees decided to organise courses of lectures of outstanding interest and quality by persons of eminence, under the auspices of co-operating universities or other bodies, with a view to the lectures being made available in book form to a wide public. The Twenty-Third Series of Hamlyn Lectures was delivered in November, 1971, by Professor Rupert Cross at Oxford. J. N. D. ANDERSON, Chairman of the Trustees. November 1971 PREFACE LECTURERS are all too apt to ignore the fact that the powers of endurance of their audiences are strictly limited. Accord- ingly I must stress the point that this book contains a con- siderably elongated version of the Hamlyn Lectures for 1971 as I hope to deliver them in Oxford in late November. The only other matter calling for comment is the sub-title. The reason for it will be found on p. 37. It occurs to me that a critic might say that a mere armchair penologist has no business to be making assessments of penal reform. My reply would be twofold. In the first place, I think that the occasional overall summing up by a non-expert is always helpful; secondly, although I doubt the suitability of a lawyer as such to be a professor of criminology, I have no doubts about the desirability of a professor of law being a student of criminology. A criminal lawyer who confines his attention to the criminal law to the exclusion of the theories of punish- ment and the treatment of offenders is a miserable specimen. I have a number of acknowledgments to make. First and foremost I must thank Miss June Rodgers, M.A.(T.C.D.), B.A. (Oxon.) for assistance with research, some of which was un- fortunately not used owing to last minute changes in the plan of the lectures. I must also thank the Nuffield Foundation for a generous grant rendering it possible for me to employ Miss Rodgers. My thanks are also due to the following to whom I have been an unmitigated nuisance with persistent enquiries and demands for assistance: Adrian Arnold, Governor of the Huntercombe Borstal; D. O'C. Grubb, Governor of Oxford xiii xiv Preface Prison; W. R. Ritson, Warden of the Whatton Detention Centre; Rundle Harris, former Governor of Wakefield Prison; Dr. Nigel Walker, Reader in Criminology in the University of Oxford; and the members and staff of the Oxford Penology Unit. R. C. September 1971. INTRODUCTION THE first lecture is concerned with the background of penal reform in twentieth century England, and special attention is paid to the work of four Prison Commissioners. After defining penal reform in terms of the rehabilitation and humane treatment of the offender, the second lecture deals with some aspects of the theories of punishment, the abolition of capital punishment for murder, the abolition of corporal punishment and the amelioration of prison condi- tions.