Lords Amendment: In page 3, line 4, at end, insert:
with a cat o'nine tails.
§ Mr. Ede
I beg to move, "That this House doth disagree with the Lords in the said Amendment."
It is true that we have had two three-line Whips today, and, therefore, perhaps it is somewhat refreshing to find that someone can think of an even worse punishment than that. I am bound to say that I am surprised to find that this Amendment has been made by another place. The history associated with this Clause in this House is very interesting. On the occasion of the Bill of 1938 Sir Samuel Hoare, as he then was, included a Clause abolishing whipping in the English judicial system.
§ Mr. Ede
Really the hon. and gallant Gentleman might allow me to proceed. I try to be as courteous as I can to hon. Members in all parts of the House and to give way where it is necessary.
When the matter was discussed in Committee upstairs in 1938 the Clause was retained in the Bill. Curiously enough, although a majority of Conservative Members voted against it, a solid vote of Labour Members secured its retention in the Bill on the Committee stage. The matter never came before the House on Report stage because the Bill had to be dropped owing to the outbreak of the war. On this occasion upstairs an Amendment was moved by the hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller) and was discussed at some length. A speech was made by the noble Lord the Member for Horsham (Earl Winterton) in which he supported the Clause as drafted, and, in fact, as a Member of the Government in 1938 he had voted on that occasion in favour of the abolition of corporal punishment. The hon. and learned Gentleman the Member for Daventry withdrew his Amendment and the Clause was added to the Bill without a Division. No Amendment on the subject was called on the Report stage down here so that the Clause abolishing 1547 whipping went to another place without a vote having been recorded against it by any Member of this House.
The Government feel that this is a matter which has twice been before a Committee upstairs—first it was carried by a majority, and on this occasion it was carried unanimously. The Departmental Committee on Flogging made a report which was the basis of the 1938 Clause and is the basis of the Clause that we inserted in the Bill. They found, after the most careful investigation, that there was no ground for believing that flogging, whether by the cat o'nine tails or by birching, was a deterrent. There is plenty of evidence that it has certainly no reformative effect.
In these circumstances, the Government included the Clause in the Bill and they believe it should remain in the Bill.
§ Sir T. Moore
As the Home Secretary has referred to it, you, Sir, may recall that on the Report stage of the Bill there was an Amendment on the Paper in my name supported by the hon. and gallant Member for Chertsey (Captain Marsden). You, unfortunately, felt unable to call it as we had not carried the matter to a Division on the Committee stage. Failing the opportunity of dealing with the matter on the Report stage, I, and some other hon. Members did refer to it on the Third Reading, and in the concluding sentence of my speech I expressed the hope that the more intelligent House to which the Bill was then proceeding, would rectify our error. I hope that has been fully justified since the other House, on the advice of the Lord Chief Justice, passed a series of Amendments which have excluded flogging from the scope of the Bill, but which have retained birching.
Now I come to the irreconcilable attitude of the Government, which is contrary to both justice and common sense, in refusing to accept the experienced advice of this most distinguished Judge. Therefore, I feel, as many of my hon. Friends do, that we must try to put a few more arguments and not repeat the same arguments in favour of the Lords' Amendments being retained.
I am not whole-heartedly in agreement even with the abolition of flogging since, unhappily, as the House knows, and we have been reminded on many occasions, there are still many people—estimated 1548 at about 50,000—who are undeterred apparently by any other form of punishment. But, I, personally, am happy to accept their Lordships' Amendments for two reasons. One is because they are a compromise, and we as a race are supposed to be geniuses for compromise. Secondly, I was influenced by the argument of Lord Goddard that the ridicule with which he associated whipping could be, in his great experience, even more effective than the pain of flogging.
I ask this question—why have the Government been so stubborn on this question of corporal punishment? I am saying "Government" advisedly, and not hon. Members opposite who are supporting the Government; I will deal with them in a minute. If we judge by the speeches and the arguments of Government spokesmen, and if we again follow the argument used by the Home Secretary tonight, their decision is based on the findings of the Departmental Committee which, so far as my memory serves me, sat in 1931. Many changes have taken place in the last 17 years. At that time we had largely overcome the chaotic moral conditions which were the result of the first world war. Happily, we had not yet got to the second world war.
This second great convulsion has again upset the moral standards, the moral conduct, the moral outlook and the hopes of all the peoples engaged in it. But in that year, 1931, the situation was all in favour of an over-tolerant attitude towards crime. Yet despite this favourable atmosphere the Committee, contrary I think to what the right hon. Gentleman has said, made some admissions. For instance, they were satisfied that the fear of corporal punishment has a strong deterrent influence upon prisoners who might otherwise commit serious attacks on prison officers. That was one admission. Again, they admitted that:We do not, of course, deny that it …that is corporal punishment—… has some deterrent effect.What did this Committee do? They recommended that flogging should be retained for attacks by prisoners on prison wardens; but for that one offence only. I, like everyone else, have a great respect for the distinguished and honourable men who formed that Committee, but to my mind their recommendations just do not make sense. A gangster, a thug, a sadistic brute, of whom there are known 1549 to be nearly 20,000 at large today who are homeless, lawless and possibly hopeless, can attack and rape an innocent young girl or even a child. They can bash in the head of an innocent old lady for the sake of a few shillings; they can mutilate an already helpless cripple, all for the sake of a little gain. What did that Committee recommend to deal with these brutes? They recommended a longer sentence of penal servitude which is precisely that form of punishment which is so disliked and condemned by practically all our most experienced judges. But, again—and I come to my opinion of this one nonsensical exception—we put the criminal into prison, we subject him to a certain amount of supervision, discipline and restraint. In those circumstances, let him lay a hand on a prison warden, who is presumably a tough, lusty and capable man, and then this deterrent, which is not a deterrent against attacks on the weak and helpless outside prison, is suddenly applied in the form of flogging. I ask hon. Members to believe that I do not say anything against these wardens. They perform a most difficult and distasteful task with patience, sympathy and courage, but let the prisoner put one hand on one of them and then a deterrent is applied in the form of flogging. Apparently that is the only time when these brutes are allowed to feel the pain that they so wantonly inflicted outside on those unable to resist. To my mind, this is illogical nonsense.
I come to those hon. Gentlemen opposite, those well meaning sentimentalists, who support their Government in this monstrous policy. Why do they support the abolition? They support it for no apparent reason except that their sensitive feelings are aggrieved or even outraged at the thought of suffering. But, oddly enough, this sensitivity is retained only for the criminal—
§ Sir T. Moore
Read the Bill. There is not one mention in the whole of this Criminal Justice Bill of the word "victim."
§ Mr. George Porter (Leeds, Central)
Did not the hon. Gentleman move an Amendment to the Animals Bill because he disagreed with pain being inflicted upon animals?
§ Sir T. Moore
If the hon. Gentleman had a little more experience in this House, he would know that I moved an Amendment in 1938 to the original Criminal Justice Bill seeking to impose flogging on those guilty of cruelty to animals. I am afraid that his interruption means very little. However, this Criminal Justice Bill is indeed well-termed: justice and more for the criminal, but no mention throughout of the word "victim." Indeed, it is a cynical commentary on the use of the word "justice."
§ 11.0 p.m.
§ Sir T. Moore
The victim has already suffered from the thugs whom I would seek to flog. Well-meaning and quite honourable sentimentalists believe that the whip applied to a young person creates some sort of psychological condition which hampers or distorts moral and spiritual growth. I give every credit to the integrity of those who hold such views, but I believe with complete conviction and some experience that it is entirely fallacious. Indeed, in my opinion, it is the cruel and sarcastic tongue of the parent that pierces the iron of the child's conscience to a greater degree than the cane or birch, and is more likely to sear the character of that young person than any form of physical punishment.
After all, physical punishment is a temporary business. The result passes and no impression is left behind at all except the determination not to risk it again. Therefore, I would ask the House to be careful and avoid concentrating on these purely hypothetical cases which are presented by so many well-meaning reformers and muddled-minded psychiatrists. I am certain that it is generally held that it is the tongue that leaves the deepest wound and not the cane or birch. This is going to be my last word. [Interruption.] I seem to have got under the sensitive skins of the sentimentalists.
§ Mr. Deputy-Speaker (Mr. Hubert Beaumont)
Persistent interruptions and noise make it difficult to hear and determine if the hon. and gallant Member is in Order.
§ Sir T. Moore
May I prove I am still in Order? I was going to mention that during 1551 the last war the world suffered a lot. Cities were reduced to ashes, bodies tortured and mutilated, and in many cases some of us thought that only one thing survived and that was the spirit. There emerged too, something else out of this war, and that was the psychiatrist. Now we have got to the stage that the psychiatrist, in regard to crime, has really more power than the judge.
§ Mr. Shurmer (Birmingham, Sparkbrook)
I should call and see one if I were the hon. and gallant Member.
§ Sir T. Moore
That explains a lot. It clears up a lot of ideas I had in my mind. Psychiatrists are responsible for more than I attributed to them. Unfortunately, the psychiatrists have gained too much authority. Undoubtedly they did relieve, and still do relieve, a great deal of mental suffering, and they undoubtedly adjust spiritual disruption. As I have already said, however, they have too much authority. My view is that this is wrong, because it leads to misdirection of our whole attitude towards crime.
As a final word I would say: let us trust the judges; let us trust the courts; let us, as Lord Goddard pleaded in another place, allow the judges to retain this weapon in reserve if only for one purpose—to show the criminal that lust and greed and brutality do not pay.
§ Brigadier Rayner (Totnes)
I hope the House realises that if the Home Secretary has his way tonight, physical pain will disappear entirely from the category of legal punishments. Henceforward the criminal who brutally robs an old man or woman will merely be relegated to the most complete form of social security—a not overcrowded house, with a bedroom to himself, a doctor to look after him, and fair opportunities for adult education. Henceforward the young hooligan who tortures dogs and cats and his weaker brethren, and who cuts about and destroys public property will merely be sent off to some fairly comfortable clinic where some of the psychiatrists referred to by my hon. and gallant Friend the Member for Aye Burghs (Sir T. Moore) will try to find out where his sensitive little soul went wrong in his cradle days.
1552 I agree with the Lord Chief Justice, and most of his colleagues, that at a time like this, when brutal crime is very prevalent, it is utterly wrong to do away with a punishment which might deter the brutal criminal. I agree with that great Scottish lawyer, Lord Salvesen, who died not long ago and who, in one of his last speeches, said he believed that the only two really effective punishments were either corporal or capital. I agree with those parents, teachers and magistrates who are very worried about the rising figures of juvenile delinquency, and who think that this is the wrong time to do away with the power to birch young boys under 15.
I do not believe that the public is behind the Home Secretary in this matter. On the only other occasion when I spoke on corporal punishment in this House, I think in 1938, I suggested that I had been well beaten in my time and that I rather hoped that my children would go through the same useful discipline. I had a very big fan mail. I received a letter from some Labour women's association suggesting that I had absorbed the habit of flagellation at some public school, and that my taste for sadism was nourished on my own experience, but generally speaking the letters I received, from every sort of person, were in favour of the views I had expressed. So it is today. If any hon. Member will tackle a railway carriage full of people and ask them if they are in favour of doing away with the birch at the present time, he will find there are three to one against. If any hon. Member mingles with the crowd coming out of an assize court where some man has been tried for a brutal offence against some young girl or old woman, the sort of remark he will hear will be, "Three years! I would give him 20, and take the skin off his back as well." I warn the House that it will be just as wrongly interpreting public opinion if it lets the Home Secretary have his way over this matter as it was on the first Vote on capital punishment—just as wrong.
As my hon. and gallant Friend the Member for Ayr Burghs has referred to psychiatrists, I should like to say a word about them, too, because they are people about whom I feel rather strongly. I consider that this Clause is the sort of soft legislation of which we have far too much. I consider that just as psychiatrists, when they were brought into the Army during the War, were pain and grief to the 1553 commanding officer, to the M.O. and every decent chap in a unit, and a blessing in disguise to all the "lead-swingers," so also this Clause, if carried, will be pain and grief to all ordinary citizens, and a blessed relief to the malefactor. I consider this is soft legislation, and that there is much too much soft legislation today. It is the duty of this Government in these times, when there is every sort of danger waiting round the corner, to try to harden the country and not to soften it. In the years between now and the year 2000 it will be the tough countries that will get through. I do hope that many hon. Members on both sides of the House, particularly in view of what the public feel about this question, will go into the Lobby in favour of this Lords Amendment.
§ Colonel Gomme-Duncan (Perth and Kinross, Perth)
On a point of Order. May I ask your guidance, Mr. Deputy-Speaker? The Amendment with which we are dealing is the one relating to the cat o' nine tails, but I wonder if it would be in Order to discuss the subsequent Lords Amendments in page 3 down to the one in line 6, which mentions the Larceny Act?
§ Mr. Deputy-Speaker
If the House agrees, I think it is competent to discuss them all together, for they all seem to hang together!
§ Colonel Gomme-Duncan
I think that this is a much more serious matter than the House, perhaps, seems to think. I should like very briefly to say what I feel about it, in particular in connection with whipping, rather than in connection with the cat o' nine tails. I want to speak from my experience as inspector of prisons for Scotland, which was the post I held for a short time before the war. It gave me a very good insight into the outlook of the men of all ages in the prisons of Scotland—and I have no doubt that that outlook is precisely the same in England and Wales—with regard to this matter of corporal punishment. I spoke with a very large number of prisoners. It was part of my job to do so, and, anyway, I was interested in them as human beings, and I wanted to know what their reactions were to corporal punishment. In every case I found a very definite dislike of—not a physical dislike of, but a sort of grudge against—the cat o' nine tails. 1554 That was general. As to the question of whipping with a cane or birch—whatever hon. Members like to call it: the one does not hurt more than the other, and I have tried both—there was a feeling amongst those people, who are, unfortunately, rather what one might call the dregs of society, a feeling of very definite dread of corporal punishment. I have no doubt in my own mind—and I have wrestled in my own mind with the subject—that corporal punishment is a very definite deterrent amongst a certain class of persons. Surely, the object of all criminal justice should be to act as a deterrent, so that society as a whole may be protected, without leaving out the reformatory attitude one should always take up. If whipping is accepted by the criminal class as a deterrent, that is a fact we cannot lightly overlook.
§ 11.15 p.m.
§ The Lord Advocate (Mr. John Wheatley)
The hon. and gallant Member will excuse my intervention. Is he aware that the last punishment by whipping of an adult in Scotland was in 1932, that the last whipping in prison under the prison rules was in 1934 and that the one prior to that was in 1926?
§ Colonel Gomme-Duncan
I am very grateful to the right hon. and learned Gentleman. I was aware of that. I am only saying what criminals in Scottish gaols thought about whipping.
§ Mr. Benson
The hon. and gallant Member referred to Scottish prisons. There is only one prison in Scotland in which whipping can be imposed for prison offences, and that is Peterhead.
§ Colonel Gomme-Duncan
I do wish the hon. Gentleman would bear with me. Perhaps I have not put it correctly. I am saying what criminals think about whipping. I am not saying where they have been whipped or when they were last whipped. I am talking about their attitude to whipping.
§ Colonel Gomme-Duncan
I will give way to the hon. Member for Nelson and Colne (Mr. S. Silverman) if he has a contribution to make.
§ Mr. S. Silverman
If the hon. and gallant Gentleman's argument has no reference to places where whipping happened 1555 or whether it had happened at all, it can only be of academic interest.
§ Colonel Gomme-Duncan
In the Criminal Justice Bill we are endeavouring to put the whole thing on the best possible basis in the interest of society as a whole. Surely, it is more than academic interest to know what these criminals with whom we are concerned think about whipping. I would think it more than academic, because it is the desire of all Members of this House to do the very best we can, not only for society, which we have to protect, but for the criminals who are concerned.
§ Colonel Gomme-Duncan
The job of the Inspector of Prisons for Scotland, and I feel sure, for England, is to find out everything concerned with criminals so that he can do the best he can for them. Obviously, when flogging is under discussion—it was before the war and it is now—one wants to find out what the criminal's reactions are if one is to do the best for the criminals and for society. I cannot say that too emphatically. I beg the Home Secretary to say whether he will not consider that another place has not done wisely in leaving out the cat o'nine tails and retaining the punishment of whipping in certain specified cases. I hope I have made it clear from the point of view of one who is interested. I hope the House will consider this very seriously and not let the discussion degenerate into a matter of mere laughter.
§ Mr. Benson
I should not have intervened in this Debate had not the hon. and gallant Member quoted the Scottish view as evidence for the use of corporal punishment. It so happens that there is no more conclusive argument for the abolition of corporal punishment than the experience of Scotland. It lies in this. In England, there is practically only one crime for which an adult is flogged, and that is, robbery with violence. We have here two countries, one in which the "cat" has been used for 75 years for robbery, and one where it has not been used because it is illegal to use it. The "cat" is not a legal punishment there. What has been the course of the decline 1556 in the figures for robbery during the last 75 years? There has been a decline in Scotland to about one-third of the decline in the English figures. In the country where there is no flogging, robbery has declined more rapidly than it has in England, where there is flogging, and where flogging has been consistently used. In view of this, what is the use of bringing in Scotland as evidence in favour of flogging?
§ Colonel Gomme-Duncan
I was not giving it as evidence of what Scotland does or ought to do, but of the reaction of criminals to the possibility of their being flogged.
§ Mr. Benson
Obviously, no criminal wants to be flogged. On the other hand, no criminal wants to be imprisoned. The question with which the Departmental Committee was faced was, which is the more effective deterrent, or is there any evidence to show that corporal punishment is more effective than imprisonment? The Committee analysed the statistics covering the last 75 years, and it came to the conclusion that it could not find one shred of evidence that corporal punishment is more effective than imprisonment as a deterrent.
§ Brigadier Rayner
Is it not a well known fact that the tawse is used in Scottish schools far more often than the cane is used in English schools? They catch them young and deter them early.
§ Mr. Maude (Exeter)
I do not think it would be right, as I am able to be here tonight, to allow this Debate to go by without giving my personal knowledge of these matters. I do not pretend to any more knowledge on this subject than anyone else who has had the same amount of experience; but I claim that it would be quite wrong not to give my views. My experience is that the criminal—I am not talking about the man who is not in the true sense of the word a criminal, but of the man who has taken to the criminal way of life—is frightened of a beating. There is no doubt about that. I remember that when I was only 19, and I was Mr. Justice Avory's marshal, he told me that he thought it was a very cruel thing to send a man to long terms of penal servitude if, in fact, the same result could be obtained by way of deterrent through a beating and a short term of imprisonment. I believe that to be true.
1557 I believe that this House often does not understand that this business of being locked up for years and years is very likely, as we are going now, to get worse. I can see quite clearly what will happen. It will be found that judges will say that they are no longer able to tell the public every now and then that they have the power to order whippings. Judges tell the public by way of warning that they have the power to order whippings to be imposed on any person who attempts to choke, suffocate, or strangle any other person or who, by any means calculated to choke, suffocate, or strangle, attempts to render any other person insensible, unconscious, or incapable of resistance, by way of committing a grave crime. We are no longer to be able to tell the public that we can order that persons be whipped by way of warning, and that people who rob not only old ladies, but children, and even men, both young and old will be subject to whipping. Nor shall we be able to tell the public that where two or more persons join together for the purpose of robbing, these persons may be whipped.
Surely, the argument so far must be abundantly clear. If the criminal is afraid of pain, then His Majesty's judges in the High Court are bound, as a result, to say, "You have taken away one of the powers we had, of which criminals are afraid." They will say that, and I give it to the House, as my experience, that these criminals are afraid of flogging. I do beg right hon. and hon. Gentlemen to believe me when I say that where a man is indicted for a crime which carries penal servitude or flogging as the penalty, counsel have it impressed on the court again and again that the one thing the man does not wish to have is a flogging. What the House will be doing if it removes this power, is not to remove the incidence in past years of many floggings. It will be taking away the power of flogging and that is a reasonable power to have at one's elbow. Indeed I would say that for the three classes of offences I have mentioned, there is no hon. Member here tonight who would say that the man who received such punishment did not richly deserve it. There is no question of injustice about this. It has to be remembered that if a judge is thought to have been really harsh, and has "overdone it a bit," the Home Secretary has the 1558 power to prevent such a sentence taking place. We are coming to a position where persons of a certain type are thinking of prisons, not as places to which they are afraid to go, but as places where the hardened criminal knows he will be well fed, well housed, given lectures, and will live in a room with another man so that the solitary confinement, as in the prison at Exeter, has gone. These are the facts. I am not saying that we want to put people into dungeons with rats, but those who have to try to apply the law which this House give to the judges think it would be wise if the prisons to which persons are sent were thought to be unpleasant.
I say, quite sincerely—just as sincerely as the Attorney-General made an assertion earlier in today's Debate—that those persons who come before me and go to Exeter gaol no longer fear as they should. That is a very grave matter indeed; it is the position which we have reached. The culminating point of absurdity was reached yesterday when two men who were sent to me for sentence were driven to the court in a Rolls Royce car. It is really fantastic. In those offences where the person is under 16, one knows perfectly well, if one attends in the juvenile courts, that the thing has become farcical. The old idea appears to be going. I do not know to what extent it goes, because we are living on a dying tradition of a particular form of morality. Nor do I know what are the multiple reasons for the increase in crime, but the thing I believe to be wrong is to vote away something of which the criminal is afraid.
§ 11.30 p.m.
§ Captain Marsden (Chertsey)
I support the Lords Amendment in this matter. I think that the hon. and learned Member for Exeter (Mr. Maude) has tried to put flogging before the House in serious perspective, for it has previously been treated with some levity. We have just heard the hon. and learned Gentleman, with his great experience as the Recorder of Plymouth. I am sure no one could think otherwise than that here was evidence which we must really consider sensibly before voting on this issue tonight. I am afraid that only too many have come here with preconceived ideas. Perhaps they have changed them. There are many on the benches opposite who, three months ago, voted for abolition, and voted tonight for its retention, so I am afraid 1559 their views are not as solid as they might be. On this question the Lord Chief Justice, Lord Goddard, gave his own evidence in another place. He wants to abolish the "cat." That is not under consideration. We are all agreed about that, although the hon. Member for Chesterfield (Mr. Benson) says he would sooner have the "cat" than the birch.
§ Mr. Benson
I must ask the hon. and gallant Gentleman to withdraw that. I said nothing of the kind.
§ Captain Marsden
From my own recollection the hon. Member said something very like that. His chief objection to the birch was not the pain it inflicted, but its indignity.
§ Mr. Benson
I must again ask the hon. and gallant Member to withdraw. When a similar Clause was moved in Committee I pointed out that the Departmental Committee itself had considered this matter and had, after considerable investigation, come to the conclusion that so far as the pain involved was concerned, there was very little or no difference between the "cat" or the birch. That was my only point.
§ Captain Marsden
It is certainly within my recollection that the hon. Gentleman preferred, on the whole, the "cat" to the birch. Apparently he did not mind which it was to be. We have also heard from the Home Secretary the whole history of the progress of this Bill. Naturally, it was correct, but he might have been a little more complete. In the 1938 Bill the Home Secretary, then Sir Samuel Hoare, was overwhelmed with advice from the back benches as to what the Opposition proposed to do, and he was about to leave it to a free vote.
§ Captain Marsden
They certainly do. However, the war intervened, and it was not put to the vote of the whole House, but what influenced the House and the public at the time was the incident of the "Mayfair boys" assault and robbery case. Now the Home Secretary has told us that some of those boys, or young men, came back on further charges—but not charges of violence. That is the point. Some of those who got the "cat" certainly 1560 came back on further charges, but not robbery and violence, which really proves the point that flogging of that description is a deterrent to violent crimes. I think it is the wish of the people generally that for certain crimes some form of corporal punishment should be retained.
May I put it in another way? It is the magistrates and judges who should have the power to convict. Take the case of the Navy. No "cat o'nine-tails" sentence has been imposed for over 70 years, but that is not a matter of Act of Parliament; it is merely provided for by the laws of the Admiralty, and they can reimpose it at any time. In the meantime birchings are still inflicted on boys of 18 and under by sentence of court-martial. The power is retained to inflict it. If I understood the hon. and learned Member for Exeter, that was his chief plea—that the power to inflict these punishments should be retained for certain offences.
I live in the country and one of the gravest fears, especially among women and old people in isolated areas, is that they should be the subject of savage attack. The last time I spoke on this matter in the House I quoted a case. We cannot pick up a paper without finding these cases. I picked up one yesterday. This was a case where the Recorder of London, Sir Gerald Dodson, sentenced three boys, one of whom was 15. The charges were rather bad. After escaping from an approved school they entered the house of an elderly gentleman in the middle of the night, and attacked him in his bedroom. They also entered the flat of an old lady and attacked her, causing her severe injuries. This is what the Recorder said to this boy of 15, and his two companions, who were a year or two older:What you three lads are really afraid of is your own skins. People say that birching or flogging does not deter, but I notice that you lads are quite willing to plead guilty to an offence so long as it does not carry with it birching or flogging, so brave are you. You were willing to inflict injury upon a helpless woman, but were mighty careful of your own skins. What you deserve of all things is to be birched, and that I would order without any hesitation were it not that I have accepted the plea of robbery, not with violence.Cases like this are coming up every day, in all parts of the country, and I can only say that in my view, as a layman, and with my experience, the only 1561 way to stop them is by flogging and birching.
§ Mr. Hogg
I must apologise for detaining the House at this late hour upon this subject, but it is a subject upon which I find it impossible to pass a silent vote, as I should like to have done. May I say in my defence that this is a subject upon which I have tried to catch your eye, Sir, ever since 1938, and that this is the first occasion on which I have been successful, so I think I have some right to express my view.
I should like to begin by saying that this is a very difficult subject to talk sensibly about on either side. It is very easy to talk nonsense about corporal punishment, and also very easy to range very widely over a large number of subjects. My hon. Friend below the Gangway talked lightly about parents spanking their children, and of birchings and beatings in school, but quite different considerations apply to corporal punishment of that kind and to the corporal punishment we are talking about this evening.
In general, I agree with the view which is held by the hon. Member for Chesterfield (Mr. Benson), though I disagree with his conclusion. I agree that in the main flogging is not a very good deterrent. I think that is established by the facts and is in accordance with my experience. It is, of course, true that criminals are afraid of flogging, but it does not follow from that that it is a deterrent. Therefore, I start from the proposition that I do not like flogging. I do not think that, in general, it ought to be applied. The only question for me is whether it ought to be retained as an occasional power to be inflicted cautiously in a few cases by trained judges. My own view is that it should be retained—and in precisely those cases which the Lords have suggested. It is very easy to be over-dogmatic in either direction. I want to explain why I am convinced that the other place was right, with the exception that I was convinced by the Report of the Committee which reported against judicial birching of young persons. I think that is an undesirable practice, and that the reasons which were advanced against it were, on the whole, cogent.
The question we must consider is whether the use of the birch in a certain limited number of cases can ever be in the public interest? I myself should 1562 agree that, despite the public revulsion with which such crimes are visited, it is quite inappropriate to whip either the ponce or the pimp. I have always thought that either of those unpleasant gentlemen should not, in fact, be subjected to corporal punishment. I consider that imprisonment for both is a more effective deterrent, and that there is no need for whipping in such cases. I regard corporal punishment as a necessary expedient only where other deterrents are likely to fail, and then it is not a very good expedient. I regard it as necessary because it is, in certain cases, the only expedient which it is open to us to inflict.
In particular, I have in mind the case of robbery with violence. Quite clearly, a man who sets out to rob has already overcome his reluctance to undergo the risk of prison, or has already overcome any deterrent effect which imprisonment or penal servitude can possibly have—
§ Mr. Hogg
I will come to flogging in a moment. It is clear that such a person has overcome that reluctance. The next question is whether it is desirable—some people think not, but I think it is—to have, in addition to the normal deterrent of imprisonment, an additional deterrent in cases where violence is contemplated? My own conviction is that it is desirable to have that extra power to use in appropriate cases. The person who contem plates the use of violence is a person who can be deterred, although he is not always deterred by the fear of physical pain. It is worth while telling the thief, in plain language, that so long as he resorts to dishonesty alone the only thing he has to fear is imprisonment, but if he goes a step further and uses violence either to overcome his victim, or to effect his escape or to secure his prize, then the courts have it in their power to inflict an additional punishment.
I think it is impossible to say that some innocent people are not occasionally prevented from suffering severe physical injury by the knowledge in the mind of the criminal that such is the case. I believe that the House can rest assured that these punishments are not inflicted, by courts either with any relish or with any absence of consideration. The hon. and gallant Member for Chertsey (Captain. Marsden) spoke, rightly, in terms of great abhorrence of certain crimes which, he 1563 said, deserved severe physical punishment. I do not think that the deserts of the crime come into the matter one way or the other. This is a question of whether we can save innocent people pain by inflicting this punishment.
I should like to tell the House of a very serious case within my own experience, where corporal punishment was not inflicted, to indicate the view that the courts take—that it is not absolutely necessary to inflict it in some cases or, rather, that it would be more beneficial if the courts did not in spite of the revulsion that they feel. This is the case of a man who, in the early hours of the morning, went into a house in which lived a widow of 45 years of age, who was in bed. He half strangled her with a stocking, under the threat of a loaded revolver. Having trussed her like a chicken he raped her twice, stole £500 worth of clothes and jewellery and then went downstairs, the woman still being trussed up, and cooked himself a meal. He came back upstairs and raped her again. Finally, he drove off in her late husband's motor. That was obviously robbery with violence—
§ Mr. Hogg
No he was not, nor was he insane. He was a small arms instructor in His Majesty's Forces. I mention the circumstances of that case, because it would be difficult to find a more brutal, savage or violent crime. He had a previous conviction, and in my innocence I thought he was a certainty for being flogged for more than one reason, because he had incurred the penalty in more than one provision, but the judge—and how wise he was—did not, in fact, inflict that penalty, because he came to the conclusion that whatever the sentence he had to impose it would be a long one and the deterrent effect of flogging would have passed long before the man was released. Indeed, the man had been flogged before, and flogging had not been a deterrent.
I believe that is a very good example of the way in which a judge of the High Court—whom many hon. Members opposite would consider to hold reactionary views, but whom I consider to be a humane judge—dealt with an appallingly difficult case, 1564 which would certainly have made me lose my temper in my younger and more youthful, headstrong way. I cite it to show how cautious the courts are before they inflict this particular punishment. I am perfectly certain that if the Lords Amendment is defeated—as I expect it will be by the Government majority—a few, not many, but a few, innocent people will suffer savage attacks which would otherwise not take place.
§ Mr. Hale (Oldham)
I do not want to interrupt the hon. Gentleman to score a point, because I respect his views in this matter, for I have sufficient experience of them to know that they are sincerely held. But I put it to him seriously that the case quoted by him could more likely and more properly be quoted as an example of the fact that flogging can make a man so vicious against society that he becomes incurable because of the effects of flogging.
§ Mr. Hogg
I do not want to go into the long history of that particular case, but he was difficult to cure before any flogging had taken place. I was seeking to say that I think it is absurd to pretend that if we delete this Lords Amendment we are going down the road that leads to degeneracy, as was said by one of my hon. Friends. It is absurd to proclaim that the results will be very spectacular either way. I seriously and sincerely believe that a small number of innocent people will suffer if we abolish flogging altogether, and that a very small number of guilty people will suffer if we do not. As between those two alternatives, without any real passion such as some hon. Members have shown, I shall, with a perfectly good conscience, go into the Lobby against the Government.
§ The Under-Secretary of State for the Home Department (Mr. Younger)
I want to make only a few observations, because this ground has been gone over so many times, and I am rather surprised to find tonight that the controversy is not as I had thought it to be, absolutely dead. There is a great body of past authority for the proposition that this type of penalty should go, but I do not want to go into any detail on that. I think sociological problems of this kind should be dealt with afresh on each occasion. Nevertheless, it is striking what a great consensus of opinion there has been on this issue. The hon. and gallant Member 1565 for Ayr Burghs (Sir T. Moore) referred to the Report of the Departmental Committee. He spoke of it as in 1931, but it was only appointed in 1937 by, among others the right hon. and gallant Member for the Scottish Universities (Lieut.-Colonel Elliot), and reported in 1938. The Report was accepted by the Home Secretary when he put forward his Bill in 1938, and again by my right hon. Friend in 1948. Therefore, I think there is a strong presumption in favour of giving great weight to those opinions at this time.
The hon. and gallant Member for Ayr Burghs, and also the hon. and gallant Member for Totnes (Brigadier Rayner), both seem to think that the abolition of corporal punishment was the idea of what they called "woolly-minded psychiatrists." The hon. and gallant Member has clearly read the Report, and he will have found a most impressive quotation from the Report of the Commissioners on the Criminal Law over 100 years ago, and that was the first of many occasions on which an expert opinion was given that corporal punishment was not a useful form of penalty.
§ Brigadier Rayner
My hon. and gallant Friend tried to show that the Report was made completely unreal by the fact that corporal punishment was recommended as a deterrent in prisons. If it was a deterrent in prisons, surely it would be a deterrent anywhere else.
§ Mr. Younger
That is one of the points I am going to deal with. It is one of the potential points of attack on my argument; I am going to deal with it faithfully, but I do not want to take up the time of the House unduly. The Amendments we are dealing with now do make some attempt to rationalise the existing law on this subject, which is in a very anomalous state. It is proposed to abolish the "cat" while retaining the birch, to leave the law unchanged in respect of young offenders, and to limit the offences for which adults may be whipped—garrotting, living on immoral earnings, and robbery with violence. Admittedly that would make the present law a little tidier, but it does not in any way shift the weight of the argument against the imposition of this type of penalty in these as well as in other offences.
Garrotting is a very rare offence in this country, the imposition of whipping for 1566 the offence of living on immoral earnings is practically obsolete, and there really only remains the problem of robbery with violence. We know that in Scotland, where conditions are not so very different, that is not an offence for which flogging can be imposed, and nobody in Scotland has recently suggested there is any need for it; nor is there any reason to suppose that the absence of the penalty puts Scotland at any disadvantage by comparison with England. In any case it is wrong to pick out offences for this penalty—and I think that is a mistake made by the hon. Member below the Gangway—on the ground of the moral indignation that is caused. That appeared to be the only reason why he was anxious that particular types of offences should be punished in this way. Even if that were the criterion, I certainly do not think the particular offences picked out in the Amendments now before us are an exhaustive list of the types of offence which might well come in under that type of argument.
I want to deal very shortly with the two problems, one the whipping of adults and the other the whipping of young offenders. So far as the adults are concerned I shall, I admit, take very much of my argument from the Report of 1938, which is, so far as I know, much the most comprehensive collection of facts and argument which is available to anybody on this problem. The authors of the Report tated that they regarded the whipping of adults as purely punitive; that not only was it not reformative, but that it would normally run contrary to other reformative influences under the penal system.
I would mention, in passing, that in this Bill we are trying to increase the reformative element in the penal system of this country, so that the provision to retain flogging might run even more contrary to the provisions of this Bill than it did to the previously existing penal system. On the crucial question of the deterrent influence, the Committee came down quite clearly on the side of those who say, not that it does not deter, but that as it is not much more of a deterrent than the other alternative penalties it should not be kept. The authors said there were no facts or figures which could prove deterrence, and even if there were admitted to be some element of deterrence—and most of us would agree that for certain 1567 types of person, rather than certain types of offence, there may be some deterrent element—neverthless, that was very much outweighed by the brutalising effect, and that it turned many people into much more anti-social characters than they were before.
The hon. Member for Oxford (Mr. Hogg) suggested that this penalty ought to be retained if even a single crime—I am not using his exact words—might be prevented by the retention of the penalty. I do not think that that is the criterion on which we should seek to regulate our criminal code. I have no doubt that there may be some persons who might not be deterred by flogging or the death penalty, but would be deterred by some old-fashioned method of torture, or by disembowelling, hanging, drawing and quartering. But the effect in those few isolated cases is not suggested by anybody to be the criterion we should adopt in the formulation of the criminal code.
Even if there is some deterrent effect, the penalty is highly capricious in its operation as between one criminal and another. I think we should realise that, great as is the trouble which the courts take in trying to find out about the offenders before them, they have not, and cannot have, all that sort of detailed knowledge about a man's background, and his personality, and his likely reactions to the sentence, such as is acquired by those who really know him. I do not think it is practicable that the courts, when sentencing a man, should have the knowledge to enable them to distinguish between the large number of persons for whom flogging would be inappropriate and the very small number for whom it might be appropriate.
That point of the capricious effect is brought out in the Report. A prison governor had two people who had been flogged for rather similar offences. He asked one his reaction. He said, "The next time I shall not carry a gun." The other, asked his reaction, said, "Next time I shall use my gun." That shows, to say the very least, that the effect from the point of view of a deterrent is very varied and capricious.
§ Mr. Younger
The question the hon. and learned Member asks me is one about which there can be no positive proof, any more than there is about the death penalty. It is rather striking that the only two cases relevant to this topic quoted tonight—one by the hon. and learned Member for Oxford and the other, on the earlier Amendment by my right hon. and learned Friend the Attorney-General, were cases of persons who had been flogged, where it had no deterrent effect even upon them. While there is no proof that it is a deterrent, we cannot, of course, positively prove the contrary. I was asked about the retention of flogging in prison. I should like to read one sentence from the conclusions of the Cadogan Report. After saying that all forms of punishment have some deterring influence and, therefore, this penalty also had it, they say:This alone would not be a sufficient ground for retaining the existing powers of corporal punishment.Then, missing a sentence:The final test is not whether corporal punishment has any deterrent effect, but whether there are offences or classes of offences for which long sentences of imprisonment or penal servitude are so ineffective as deterrents that it is necessary for the protection of society … to have the additional penalty of corporal punishment.In prison, the deterrent effect of a further prison sentence on a man already serving a long prison sentence is negligible and it is precisely for that reason that the punishment of whipping is retained. That is carried to its logical conclusion in the Bill by the abolition of whipping in the case of persons in Borstal, because on them the additional punishment of a prison sentence can be imposed. It is retained in prison because it is the only other effective deterrent which can be applied.
On the question of the use of the cat o'nine-tails as against the birch, once again, after careful study, the Committee came to the conclusion that there was very little difference between the two instruments in point of the pain they inflict. So far as there is a difference, it is a difference in the melodramatic and morbid associations of one as against the other, and not any substantial difference. I submit that there is really very little gain 1569 indeed by abolishing the cat o'nine-tails and retaining the birch. Finally, we are in an even smaller minority in retaining flogging than we were in retaining the death sentence among the western countries with what we would call civilised traditions. There are no other western countries, save those with laws based on our own law, and only some of them, who retain this penalty at all. In face
§ of the great weight of expert opinion over a number of years, the Government think it is high time this obsolete penalty was abolished.
§ Question put, "That this House doth disagree with the Lords in the said Amendment."
§ The House divided: Ayes, 232; Noes, 62.1571
|Division. No. 264.]||AYES.||[12.5 a.m.|
|Acland, Sir Richard||Fletcher, E. G. M. (Islington, E.)||Moody, A. S.|
|Adams, Richard (Balham)||Foster, J. G. (Northwich)||Morley, R.|
|Adams, W. T. (Hammersmith South)||Fraser, T. (Hamilton)||Morris, P. (Swansea, W.)|
|Alexander, Rt. Hon. A. V.||Freeman, J. (Watford)||Moyle, A.|
|Allen, A. C. (Bosworth)||Gage, C.||Nally, W.|
|Allen, Scholefield (Crewe)||Ganley, Mrs. C. S.||Neal, H. (Clay Cross)|
|Attlee, Rt. Hon. C. R.||George, Lady M. Lloyd (Anglesey)||Nicholls, H. R. (Stratford)|
|Awbery, S. S.||Gibson, C. W.||Noel-Baker, Rt. Hon. P. J. (Derby)|
|Ayrton Gould, Mrs. B.||Gordon-Walker, P. C.||O'Brien, T.|
|Bacon, Miss A.||Granville, E. (Eye)||Oliver, G. H.|
|Baird, J.||Greenwood, A. W. J. (Heywood)||Orbach, M.|
|Barton, C.||Griffiths, D. (Rother Valley)||Paget, R. T.|
|Bechervaise, A. E.||Griffiths, Rt. Hon. J. (Llanelly)||Paling, Rt. Hon. Wilfred (Wentworth)|
|Benson, G.||Guy, W. H.||Paling, Will T. (Dewsbury)|
|Beswick, F.||Haire, John E. (Wycombe)||Palmer, A. M. F.|
|Bing, G. H. C.||Hale, Leslie||Pargiter, G. A.|
|Blackburn, A. R.||Hall, Rt. Hon. Glenvil||Parker, J.|
|Blenkinsop, A.||Hamilton, Lieut.-Col. R.||Paton, Mrs. F. (Rushcliffe)|
|Bottomley, A. G.||Hannan, W. (Maryhill)||Paton, J. (Norwich)|
|Bowles, F. G. (Nuneaton)||Hastings, Dr. Somerville||Peake, Rt. Hon. O.|
|Braddock, T. (Mitcham)||Herbison, Miss M.||Pearson, A.|
|Bramall, E. A.||Hewitson, Capt. M.||Peart, T. F.|
|Brook, D. (Halifax)||Hobson, C. R.||Perrins, W.|
|Brown, George (Belper)||Holman, P.||Popplewell, E.|
|Brown, T. J. (Ince)||Holmes, H. E. (Hemsworth)||Porter, G. (Leeds)|
|Burke, W. A.||Hoy, J.||Pritt, D. N.|
|Butler, H. W. (Hackney, S.)||Hudson, J. H. (Ealing, W.)||Proctor, W. T.|
|Castle, Mrs. B. A.||Hughes, Hector (Aberdeen, N.)||Randall, H. E.|
|Chamberlain, R. A.||Hughes, H. D. (W'lverh'pton, W.)||Ranger, J.|
|Champion, A. J.||Hutchinson, H. L. (Rusholme)||Rees-Williams, D. R.|
|Chetwynd, G. R.||Hynd, H. (Hackney, C.)||Reid, T. (Swindon)|
|Coldrick, W.||Irvine, A. J. (Liverpool)||Rhodes, H.|
|Collindridge, F.||Janner, B.||Roberts, Emrys (Merioneth)|
|Collins, V. J.||Jeger, G. (Winchester)||Roberts, Goronwy (Caernarvonshire)|
|Colman, Miss G. M.||Jeger, Dr. S. W. (St. Pancras, S.E.)||Roberts, W. (Cumberland, N.)|
|Comyns, Dr. L.||Jenkins, R. H.||Rogers, G. H. R.|
|Cooper, Wing-Comdr. G.||Johnston, Douglas||Ross, William (Kilmarnock)|
|Corbet, Mrs. F. K. (Camb'well, N.W.)||Jones, D. T. (Hartlepools)||Royle, C.|
|Corlett, Dr. J.||Jones, Elwyn (Plaistow)||Sargood, R.|
|Cove, W. G.||Jones, J. H. (Bolton)||Segal, Dr. S.|
|Crawley, A.||Jones, P. Asterley (Hitchin)||Shackleton, E. A. A.|
|Crossman, R. H. S.||Kenyon, C.||Sharp, Granville|
|Daggar, G.||Key, Rt. Hon. C. W.||Shawcross, C. N. (Widnes)|
|Dalton, Rt. Hon. H.||Kinghorn, Sqn.-Ldr. E.||Shawcross, Rt. Hn. Sir H. (St. Helens)|
|Davies, Edward (Burslem)||Lang, G.||Shurmer, P.|
|Davies, Ernest (Enfield)||Levy, B. W.||Silverman, J. (Erdington)|
|Davies, Harold (Leek)||Lewis, A. W. J. (Upton)||Silverman, S. S. (Nelson)|
|Davies, Haydn (St Pancras S.W.)||Lewis, J. (Bolton)||Simmons, C. J.|
|Davies, S. O. (Merthyr)||Lindgren, G. S.||Skeffington, A. M.|
|Deer, G.||Lipton, Lt.-Col. M.||Skeffington-Lodge, T. C.|
|de Freitas, Geoffrey||Longden, F.||Skinnard, F. W.|
|Delargy, H. J.||Lyne, A. W.||Smith, C. (Colchester)|
|Diamond, J.||McAllister, G.||Smith, H. N. (Nottingham, S.)|
|Dodds, N. N.||McGhee, H. G.||Snow, J. W.|
|Donovan, T.||Mack, J. D.||Solley, L. J.|
|Driberg, T. E. N.||Mackay, R. W. G. (Hull, N.W.)||Sorensen, R. W.|
|Dugdale, J. (W. Bromwich)||McLeavy, F.||Soskice, Rt. Hon. Sir Frank|
|Durbin, E. F. M.||Mallalieu, E. L. (Brigg)||Steele, T.|
|Dye, S.||Mallalieu, J. P. W. (Huddersfield)||Stewart, Michael (Fulham, E.)|
|Ede, Rt. Hon. J. C.||Manning, Mrs. L. (Epping)||Stokes, R. R.|
|Edwards, John (Blackburn)||Marquand, H. A.||Stubbs, A. E.|
|Edwards, W. J. (Whitechapel)||Mellish, R. J.||Swingler, S.|
|Elliot, Lieut.-Col. Rt. Hon. Walter||Messer, F.||Sylvester, G. O.|
|Evans, Albert (Islington, W.)||Middleton, Mrs. L.||Symonds, A. L.|
|Evans, John (Ogmore)||Mikardo, Ian||Taylor, R. J. (Morpeth)|
|Ewart, R.||Millington, Wing-Comdr. E. R.||Thomas, D. E. (Aberdare)|
|Fernyhough, E.||Mitchison, G. R.||Thomas, George (Cardiff)|
|Field, Capt. W. J.||Monslow, W.||Thomas, Ivor (Keighley)|
|Thomas, I. O. (Wrekin)||Wells, W. T. (Walsall)||Williams, W. R. (Heston)|
|Thomas, John R. (Dover)||West, D. G.||Wills, Mrs. E. A.|
|Tiffany, S.||Wheatley, Rt. Hn. John (Edinb'gh, E.)||Wilson, Rt. Hon. J. H.|
|Tomlinson, Rt. Hon. G.||White, H. (Derbyshire, N.E.)||Wise, Major F. J.|
|Usborne, Henry||Whiteley, Rt. Hon. W.||Yates, V. F.|
|Vernon, Maj. W. F.||Wigg, George||Younger, Hon. Kenneth|
|Walker, G. H.||Wilkes, L.|
|Wallace, G. D. (Chislehurst)||Willey, F. T. (Sunderland)||TELLERS FOR THE AYES:|
|Warbey, W. N.||Willey, O. G. (Cleveland)||Mr. Joseph Henderson and|
|Watkins, T. E.||Williams, J. L. (Kelvingrove)||Mr. Wilkins.|
|Weitzman, D.||Williams, R. W. (Wigan)|
|Agnew, Cmdr. P. G.||Fletcher, W. (Bury)||Nicholson, G.|
|Astor, Hon. M.||Fox, Sir G.||Noble, Comdr. A. H. P.|
|Baxter, A. B.||Fraser H. C. P. (Stone)||Orr-Ewing, I. L.|
|Bennett, Sir P.||Fraser, Sir I. (Lonsdale)||Price-White, Lt.-Col D.|
|Boles, Lt.-Col. D. C. (Wells)||Grimston, R. V.||Ramsay, Maj. S.|
|Bossom, A. C.||Hare, Hon. J. H. (Woodbridge)||Rayner, Brig. R.|
|Bowen, R.||Harris, F. W. (Croydon, N.)||Robinson, Roland|
|Boyd-Carpenter, J. A.||Hogg, Hon. Q.||Ropner, Col. L.|
|Braithwaite, Lt.-Comdr. J. G.||Hulbert, Wing-Cdr. N. J.||Sanderson, Sir F.|
|Carson, E.||Hurd, A.||Stoddart-Scott, Col. M.|
|Chanson, H.||Joynson-Hicks, Hon. L. W.||Studholme, H. G.|
|Conant, Maj. R. J. E.||Keeling, E. H.||Thomas, J. P. L. (Hereford)|
|Corbett, Lieut.-Col. U. (Ludlow)||Linstead, H. N.||Vane, W. M. F.|
|Crosthwaite-Eyre, Col. O. E.||Low, A. R. W.||Wakefield, Sir W. W.|
|Darling, Sir W. Y.||Mackeson, Brig. H. R.||Ward, Hon. G. R.|
|Davidson, Viscountess||Maclean, F. H. R. (Lancaster)||Wheatley, Colonel M. J. (Dorset, E.)|
|Digby, S. W.||Maitland, Comdr. J. W.||White, J. B. (Canterbury)|
|Donner, P. W.||Manningham-Buller, R. E.||York, C.|
|Dower, E. L. G. (Caithness)||Marsden, Capt. A.|
|Drayson, G. B.||Marshall, S. H. (Sutton)||TELLERS FOR THE NOES:|
|Drewe, C.||Maude, J. C.||Lieut.-Colonel Sir Thomas Moore|
|Duthie, W. S.||Mellor, Sir J.||and Colonel Gomme-Duncan.|
Question put, and agreed to.
Lords Amendment: In page 3, line 6, at end insert:
(2) No person shall be sentenced by a court to whipping unless he is a male person and—
§ 12.15 a.m.