Crime and Punishment in Britain

The Penal System in Theory, Law, and Practice

Russell Smith

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9781138521483
• eBook ISBN:
  9781351525091
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book, first published in 1965, describes the British penal system as it existed in the 1960s. It describes how the system defined, accounted for, and disposed of offenders. As an early work in criminology, it focuses on differences between, and changes in, the views held by legislators, lawyers, philosophers, and the man in the street on the topic of crime and punishment. Walker is interested in the extent to which their views reflect the facts established and the theories propounded by psychologists, anthropologists, and sociologists.

The confusion between criminologists and penal reformers was initially encouraged by criminologists themselves, many of whom were penal reformers. Strictly speaking, penal reform, according to Walker, was a spare-time occupation for criminologists, just as canvassing for votes is an ancillary task for political scientists. The difference is that the criminologist's spare-time occupation is more likely to take a ""moral"" form, and when it does so it is more likely to interfere with what should be purely criminological thoughts.

The machinery of justice involves the interaction of human beings in their roles of victim, offender, policeman, judge, supervisor, or custodian, and there must be a place for human sympathy in the understanding, and still more in the treatment, of individual offenders. This book is concerned with the efficiency of the system as a means to these ends. One of the main reasons why penal institutions have continued to develop more slowly than other social services is that they are a constant battlefield between emotions and prejudices. This is a great empirical study; against which the policy-maker and criminologist can measure progress or regression in British criminals and punishments.

Part One
*
Introduction

[1]
The Scope
and Accuracy
of The
Penal System

Those who attempt to describe the essentials of any system for dealing with offenders must make up their minds at the outset what questions they are trying to answer. Some are of a kind which can be answered only by making moral judgements: for example, 'Is the system of trial a fair one?' or 'Are inhumane punishments awarded?' The answers to these are bound to be to some extent emotional, and to beg other questions, if not whole philosophies, of morals and politics. There are, however, questions which are less ambitious, and to which the answers can be more factual. The most important of these seem to be:

1. 'What forms of conduct are dealt with by penal measures?': in more popular language, 'What is criminal?'
2. 'How accurate is the system in identifying those who indulge in prohibited conduct?': in popular language, 'How many of the guilty escape conviction, and how many of the innocent are wrongly punished?'

In this chapter I shall try to give answers to these questions in relation to the British penal system; or at least to show the lines on which they could be answered.

What is Criminal?

Penal measures are not of course the only way — merely the most formal and drastic — of dealing with types of behaviour which people find objectionable. An enormous sector of our actions is regulated simply by what we believe to be the expectations of our fellow citizens and by our occasional experience of their disapproval when we fail to fulfil these expectations.

Codified Rules. When it is necessary that these expectations should be observed with precision, they become rules, which are sooner or later systematised and promulgated; the 'unwritten convention' becomes the published code. For example, when sport becomes competitive it requires precise rules, although when it is non-competitive conventions seem to be sufficient. Thus in rock-climbing there is simply a convention that one may cut footholds in ice but not in rock, whereas in golf there is a published code of some complexity, which even limits the designs of clubs, and in chess the permissible moves are similarly defined.

Rules with sanctions. Most uncodified conventions are enforced simply by the ordinary man's dislike of being regarded as abnormal by his neighbours or acquaintances, or, worse still, of being treated as abnormal. He fears ridicule, criticism and in the last resort ostracism. Many written codes are enforced by similarly informal sanctions. Just as one does not go rock-climbing with someone who cuts holds in rock, so one does not play golf against someone who lifts his ball out of bunkers.

Independent sanctions. But violations of some written codes are discouraged by more formal sanctions, that is, sanctions which are themselves imposed according to rule. This is common in groups of people which have a formal organisation. Associations of doctors and other professional workers, trade unions and similar organisations expel, suspend and otherwise punish members for infringement of their rules.

Civil Law. In all societies, however, some forms of behaviour are so frequent and at the same time so objectionable that they are prohibited under a code which both provides for certain sanctions and is universal in its application to members of the society. In its elementary forms this code allows a person aggrieved by certain actions of another to retaliate. What distinguishes this system from mere spontaneous vengeance is that it is approved by the other members of the community; and indeed in some primitive societies there does not seem to be any other authority to which the aggrieved person can apply. Perhaps this might be called the stage of 'approved retaliation'. Something of the sort was observed by Rasmussen among Eskimo communities. Probably because this leads to vendettas, it is replaced by an approved system of compensation with approved retaliation to fall back on if the compensation is not paid. At some later stage of development it becomes possible to raise the matter before a formal meeting of the older men, and eventually some sort of 'court' is evolved. The result is control of behaviour by civil law, of which the essential features seem to be an impartial authority, administering and interpreting a code¹ accepted as binding upon all members of the society, acting only at the application of the aggrieved party, and pronouncing decisions designed to compensate the aggrieved or put an end to whatever harm is being done.

In some societies this is the only form of law.² In others — and in all sophisticated societies — a distinct system has grown out of the civil law. The courts by which it is administered may or may not be distinct from civil courts — in Britain the same man often sits as judge in civil and criminal cases in the same week; but there are more important differences:

1. The procedure is initiated by some kind of public prosecutor and not by the private person who has been aggrieved.¹ The private individual may report a breach of the criminal law, but he no longer initiates the legal process, nor can he halt it by withdrawal. This system has the advantages that a public prosecutor is more competent, less open to bribery or intimidation, and more economical in manpower.
2. Practically none of the measures which the criminal court can order are designed to compensate the private person who has suffered from the prohibited behaviour. The aims of modern penal measures will be discussed in Chapter 8, and we shall see that while there are exceptions to this statement they are insignificant. It is most exceptional for a penal measure to confer any material benefit upon anyone: even fines — unless they are very large — do no more than reduce the cost to the state of dealing with the offender.
3. Although many of the types of conduct which can be the subject of a criminal prosecution can also be the subject of civil actions (a fact which illustrates the development of criminal law out of civil law), in practice few types of crime lead to civil actions; the only important exception is careless driving which leads to personal injuries or damage to property. Civil suits for compensation for loss of stolen property or for personal injury caused by criminal violence are rare, though not unheard of. Moreover, not only is criminal prosecution regarded as the natural recourse against virtually all the common offences, but there are some which cannot be the subject of civil proceedings — attempts at crimes, and offences of drunkenness or indecency which do not result in loss or damage to another party. It is very difficult, if not impossible, to state any general principle which will distinguish satisfactorily between actions which are dealt with as crimes and those which are not; as Kenny found, such principles turn out to be either circular or subjective. It may well be that there is no rational principle, merely an historical explanation in terms of the concern caused by the nature or frequency of the behaviour and the ability of the aggrieved parties to afford the cost or trouble of civil proceedings.

Borderline Offences. It is noticeable, however, that the boundary between the criminal and the civil law, and the boundary between the criminal law and mere discouragement by social disapproval, are drawn at slightly different points in different penal systems. All civilised and most primitive codes prohibit homicide, unjustifiable personal violence, rape, theft, and the intentional destruction of another's property. Civilised societies also use criminal procedure to enforce taxation and discourage behaviour which obstructs roads, or endangers life or health. But there are some types of behaviour which in some countries are criminal, and in others merely civil wrongs or simply matters of private morals.

Most of these involve, directly or indirectly, sexual conduct:

1. Extra-marital intercourse. In some American states the crimes created by the Puritans of fornication between unmarried persons, or adultery between a married person and someone other than his or her spouse, are still on the statute book, although seldom prosecuted. Adultery by a wife is a crime which is still prosecuted in France and Italy, and in France a husband who imports his mistress into the marital home can be convicted of concubinage. In Britain adultery by either spouse is not criminal, although it is a ground for a matrimonial suit, and a husband may sometimes seek damages at civil law from a co-respondent.
2. Homosexual acts. In a diminishing number of countries, including Western Germany and most states of the U.S.A., a homosexual act between males but not between females is an offence. This was the position in Britain until recently. The Wolfenden Committee recommended in 1957 that homosexual acts in private between consenting males over the age of 21 should no longer be criminal. Although the recommendation was too controversial for the Government of the day, prosecutions were gradually restricted, and eventually a Private Member's Bill which implemented the recommendation was passed in 1967.¹
3. Abortion. In some countries abortion is criminal only if performed by unauthorised persons. But in most Western countries, including Britain, it is criminal unless there is a special justification for it. In this country the special justifications are that the continuance of pregnancy would involve risk to the woman's life, or injury to her physical or mental health or that of her existing children; or that there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as t...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• PART ONE * INTRODUCTION
• PART TWO * EXPLAINING AND PREDICTING CRIME
• PART THREE * THE SYSTEM OF DISPOSAL
• PART FOUR * SENTENCING
• PART FIVE * SPECIAL CATEGORIES OF OFFENDER
• PART SIX * GENERAL
• BIBLIOGRAPHY
• INDEX