The Official History of Criminal Justice in England and Wales

Volume III: The Rise and Fall of Penal Hope

David Downes

• Editore: Routledge
• Anno: 2021
• ISBN:
  9781000373653
• Edizione: 1
• Argomento: Histoire
• Categoria: Histoire moderne de la Grande-Bretagne

Volume III of The Official History of Criminal Justice in England and Wales draws on archival sources and individual accounts to offer a history of penal policymaking in England and Wales between 1959 and 1997.

The book studies the changes underlying penal policymaking in the period, from a belief in the rehabilitative potential of imprisonment to a reaffirmation in 1993 that 'Prison Works' as a deterrent to crime. A need to curb the rising prison population initially focussed on developing alternatives to prison and a new system of parole; however, their relative ineffectiveness led to sentencing becoming the key to penal reform. A slackening of faith in rehabilitation led to pressure for greater emphasis on humane containment and the rebalancing of security, order and justice in prison regimes. Thus, 1991 was the climactic year for what became largely unfulfilled hopes for lasting penal reform. Escapes, riots and prison occupations were prime catalysts for changes, often highly contentious, in penal policymaking. Notably, there was no simple equation between political party, minister and policy choice. Both Labour and Conservative governments had distinctly liberal Home Secretaries and, after 1992, both parties took a more punitive approach.

This book will be of much interest to students of criminology and British history, politics and law.

1 The Rise of Penal Hope (1895—1967)

The first half of the 20th century was to prove an era of penal hope and liberal optimism about crime and punishment. Despite the logic of such contrasting theorists as Marx and Durkheim about inevitable rises in the crime rate in the late 19th century, assumptions echoed a century later by virtually all criminologists, the reality was, as also in the two decades 1995-2015, the reverse.¹ The late 19th and early 20th centuries also saw, though in this regard unlike the present day, a steady fall in the size of the prison population. From a rate per 100,000 of 108 in 1881, the daily average prison population fell more or less steadily to 60 in 1891, 55 in 1911, 32 in 1921, 29 in 1931, to a low point of 23 in 1940. It then commenced an upward trend during the Second World War, in contrast to the First, during which it had fallen quite steeply, to 50 in 1951, 63 in 1961, 81 in 1971, and 88 in 1981. It rose to the 1881 rate of 108 only in the late 1990s.² This long view of trends in imprisonment belies the belief that its increasing use is both inevitable and irreversible.

The falling rates of both crime and imprisonment no doubt assisted, consciously or not, the cause of penal reform. Not all of this presaged benign consequences for offenders. Eugenicist ideas combined with positivist theories of crime to envisage the selective breeding-out of inborn criminal tendencies.³ While such ideas were not translated into actual programmes in Britain, they infused the debate with notions of moral defect and genetic inferiority.⁴ Nevertheless, as Hood and Radzinowicz convincingly argue, such tendencies were substantially eclipsed by the 'widespread belief that, in the final analysis, far less could be achieved through penal repression than through advances in economic, political, social and moral spheres. It is for this last reason especially that these far-reaching changes in the weight of punishment, and more particularly in the deployment of incarceration, were not a transitory phenomenon . . . This set the pattern for the very optimistic approach towards crime and its control which flourished in the period between the two World Wars. The penal policy of England seemed at that time to be entering on a phase of new hopes and large expectations.'⁵

As a result, most reformism aimed to extend the philanthropy and welfare schemes which had begun to flourish in the earlier Victorian era. '. . . the official rhetoric and representations from the Gladstone Report⁶ onwards cited "reform" as the central and organising aim of modern penal practice. This aim of reform or social readjustment was clearly the designated principle of the new institutions of Borstal, probation and state-funded after-care, but even the prison was now characterised more and more as a complex machinery of reform.'⁷ For example, the Prisons Act of 1898, among a swathe of measures to implement the Gladstone Report, abolished the unproductive prison labour which had been so notorious a feature of penal servitude. The crank and the treadmill had been designed to calibrate hard labour, 'thereby promoting the goal of uniformity in this aspect of the prison regime as in all others.'⁸ By contrast, the Gladstone Report gave primacy to the individualisation of the treatment of the prisoner and offenders in general.

This change of direction was to have profound repercussions for the prison service. 'The Report introduced confusion with its definition of "reformative" as a "manifest" task. The situation was made worse by its advocacy of two primary tasks, in the most frequently quoted statements in prison literature:

'We start from the principle that prison treatment should have as its primary and concurrent objects deterrence, and reformation.'

These proposals meant that somehow the prison service had to cope with two mutually exclusive tasks.⁹ Reformation implies putting the needs of the prisoner first, with deterrence and security accorded lower priority. 'This was the crucial conflict which was to haunt the prison system until the post-Mountbatten developments established that the wishes of the community were to be paramount.'¹⁰ However, reversing the priorities did not eliminate the conflict; attempts still had to be made to reconcile these seemingly incompatible tasks.

The innovations of probation and borstals came next, in the 1907 Probation of Offenders Act and the Prevention of Crime Act of 1908. Both added greatly to the upsurge of reformative measures, though not all sanctions in the 1908 Act were of that character, as it also introduced preventive detention. Borstals, so named after the village in Kent where the first such institution was located, were designed to provide a more educative and vocational regime for young offenders aged 16-21 than was available in adult prisons. A related aim was to separate the younger age group from more experienced adult offenders. Charles Russell, a leading pioneer of the boys' club movement, asserted:

'The Borstal system is without doubt an immense improvement upon anything that has previously been tried in this country. In many cases the discharged prisoner is hardly recognisable as the same young criminal who received the sentence. The habits of industry acquired in the workshops or on the farm, the improvement in intelligence and physique, are of incalculable advantage.'¹¹

Borstal training involved a sentence of between one and three years for young offenders whose criminality was deemed serious but not irredeemable. The semideterminate sentence allowed for release on licence when the Prison Commissioners judged enough reformative progress had been made. The growth of borstals and their high success rate in reducing reconvictions, at least in the pre-World War II period, prompted international interest. Borstals were introduced in several countries of the former British Empire, especially India.

The mood of questioning the morality of using imprisonment as a sentence for all but offences of the utmost seriousness reached its apogee in the celebrated speech by Winston Churchill on 20 July 1910.¹² In his brief tenure of office as Home Secretary 1910-11, Churchill decided to cut a swathe through what one might call the penal lumpenproletariat of petty, persistent offenders who composed the great bulk of the prison population. 'A principal feature of the English prison system in 1908 was the magnitude of throughput of prisoners, in excess, excluding remand prisoners, of 200,000 persons annually . . . Three out of every four prisoners received were either sentenced for a non-indictable offence or imprisoned as fine defaulters . . . Churchill displayed considerable scepticism as to what might be achieved through the prison system, and he quickly came to believe that imprisonment was greatly overused. He corresponded with John Galsworthy¹³ on the need to reduce solitary confinement, he used his powers of executive clemency more frequently than was customary, and, of most significance, he set about framing legislative proposals to reduce severely the number of persons entering the prison system.

Figure 1.1 Average total prison population, England and Wales, 1900-2016.

Source: Moj, Offender Management Statistics Quarterly, various years

In a memorandum to the prime minister in September 1910, Churchill described the main problem as being 'the immense number of committals of petty offenders to prison on short sentences. He noted that two-thirds of sentenced prisoners were sentenced to two weeks or less . . . a terrible and purposeless waste of public money and human character'. Herbert Asquith, the prime minister, lent Churchill his support. Twelve months later, he was moved to the Admiralty, 'but left behind a momentum for reforming legislation.'¹⁴ The much-quoted passage in his celebrated speech on imprisonment lifted humane penal philosophy to a height it has never surpassed:

'We must not forget that when every material improvement has been effected in prisons, when the temperature has been rightly adjusted, when the proper food to maintain health and strength have been given, when the doctors, chaplains, and prison visitors have been and gone, the convict stands deprived of everything that a free man calls life. We must not forget that all these improvements, which are sometimes salves to our consciences, do not change that position. The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm and dispassionate recognition of the rights of the accused against the State, and even of convicted criminals against the State, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes, and an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man – these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.'

Churchill's strategy for the 'abatement of imprisonment' took both short- and longer-term forms: extra remission was extended to all prisoners on a novel pro rata basis; non-custodial disposals such as probation and the screening-out of imprisonment for mentally defective offenders, which were to be encouraged by the Prison Commissioners, were spelt out; and the extension of time for the payment of fines made substantial inroads on the size of the prison population¹⁵. The judiciary were clearly swayed by the force of the arguments against the overuse of imprisonment, especially excessively short-term measures for fine default, much of which emanated from 'drunk and disorderly' prosecutions. Due to these and other measures, the daily average prison population dropped from 20,291 in 1910 to 9,196 in 1918. It rose to 11,000 by 1920, but remained at or around that level until 1940 and beyond, a quite remarkable stability given that the crime rate doubled over the 20-year period, two decades which saw mass unemployment as a consequence of the Great Crash of 1929-31.¹⁶ As David Wilson argues, in England and Wales the three decades between 1908 and the outbreak of the Second World War saw 'one of the world's longest sustained periods of decarceration in penal history, . . . partly prompted and promoted by the views Churchill expressed . . . In effect, our prison numbers halved, and as a result around twenty prisons had to close down, despite the fact that the crime rate in this period actually increased by around 160 per cent. By 1938 our prison population was among the smallest in Europe, and the reduction of our prison numbers was attracting the attention of American criminologists such as Edwin Sutherland, who wrote – almost in disbelief – that "prisons are being demolished and sold in England because the supply of prisoners is not large enough to fill them".¹⁷ At the outbreak of the Second World War the prison system of England and Wales consisted of 22 prisons and seven borstals (institutions designed on a public-school model to house young people) with a total capacity of 19,600.'¹⁸ The capacity was almost double the number of prisoners, an extraordinary development of under-crowding, the reverse of the situation that came to prevai...