CHAPTER V.

PREVENTIVE DETENTION.

Preventive Detention is the name given to a form of custody, provided by the Prevention of Crime Act, 1908, for the protection of the public from the Habitual Criminal. The Judge has the power of passing a sentence of penal servitude for the particular crime charged in the indictment, and to pass a _further_ sentence ordering, from the determination of the sentence of penal servitude, that the prisoner shall be detained for a period not exceeding ten years in Preventive Detention. Such a sentence cannot be passed unless the jury finds on evidence that the offender is an "Habitual Criminal", that is to say, that since the age of 16 he has been at least three times previously convicted of crime, and that he is persistently leading a dishonest or criminal life. During the public inquiry into Prison administration of 1894 the question had been raised whether a new form of sentence should not be placed at the disposal of the judges for dealing with persons convicted of "professional" crime. The word "professional" is used in a technical sense to denote men whose Penal Records show that they have lived systematically by thieving and robbery, and that their acquisitive instincts have not been controlled by the fear and example of punishment. It appears from a census of the convict population of 1901 that of the total convict population of 2,879, no less than 1,342 had been previously sentenced to penal servitude or to three or more terms for serious crime involving sentences of six months and over. Of these, no less than 1,213 were convicted of offences against property, and it is interesting to observe that as we descend from the best to the worst, there is a proportionate increase of crime against property, until it can be almost said that the "professional" criminal as defined constitutes a separate and peculiar class which demands a special and peculiar treatment. As stated in the volume of Judicial Statistics for 1897, "It is a fact that has to be faced that neither penal servitude nor imprisonment serves to deter this class of offender from returning to crime. His crime is not due to special causes such as sudden passion, drunkenness, or temporary distress, but to a settled intention to gain a living by dishonesty." It was proposed in 1903 to set up in Convict Prisons a "Habitual Offenders" Division, and that Courts, when satisfied that a person convicted on indictment of an offence punishable by penal servitude after more than two previous convictions on indictment, was leading a persistently dishonest or criminal life, and that it was expedient for the protection of the public that he should be kept in detention for a term of years, should have power, after passing a sentence of penal servitude for not less than seven years, to order that he should pass a certain period of his sentence in the Habitual Offenders' Division.

The object of the Bill was to make better provision for dealing with persons who habitually lead a life of crime. In a Memorandum explaining the Bill it was stated that "in the case of such persons, a sentence of imprisonment has neither a deterrent nor a reformatory effect, and in the interest of society, the only thing to be done with them is to segregate them from society for a long period of time. It may not be necessary, during that period of time, that their punishment should be a severe one. All that is wanted is that they should be under discipline and compulsorily segregated from the outside world. In the case of a conviction for a small offence, _e.g._, stealing a pair of boots, both judges and public opinion would be averse to the passing of a long sentence of penal servitude, such as would be appropriate to a grave crime, however notorious an evil liver the offender may be. The new prison rules have created a new Division of long term convicts, for whom the ordinary convict discipline will be greatly mitigated, and this Bill authorizes judges to relegate habitual offenders, after a brief period of punishment, to that Division, and thereby seeks to encourage in appropriate cases the passing of long, as opposed to severe, sentences." The project, however, did not pass into law, and it was not till five years later, in 1908, that Parliament enacted the very important Statute establishing a system of what is known as "Preventive Detention," it being deemed expedient for the protection of the public that where an offender is found by the Court to be a habitual criminal, the Court should have power to pass a special sentence ordering that, on the determination of sentence of penal servitude, he may be detained for a period not exceeding ten nor less than five years, under a system known as that of "Preventive Detention."

In laying before Parliament the Rules for carrying out the Act, the Secretary of State, Mr. Churchill, stated:--

"Only the great need of society to be secured from professional or dangerous criminals can justify the prolongation of the ordinary sentences of penal servitude by the addition of such Preventive Detention. It appears a matter of much importance that this should be clearly understood, and that the idea should not grow up that Preventive Detention affords a pleasant and easy asylum for persons whose moral weakness or defective education has rendered them merely a nuisance to society. The Secretary of State is satisfied that no case has been established, either from the statistics of crime or otherwise, for an increase in the general severity of the criminal code, and certainly no increase of general severity was within the intention of Lord Gladstone in proposing, or the House of Commons in passing, the Prevention of Crime Act. On the contrary, it was intended to introduce such mitigation into the conditions of convict life as would allow the longer detention of those persons only who are professional criminals engaged in the more serious forms of crime. This is indicated in the Act by the fact that Preventive Detention cannot be imposed except for a crime of such a character that it has justified the passing of a sentence of penal servitude. It was, moreover, repeatedly stated by Lord Gladstone in the course of the debates that the Bill was devised for 'the advanced dangerous criminal,' for 'the persistent dangerous criminal,' for 'the most hardened criminals': its object was 'to give the State effective control over dangerous offenders': it was not to be applied to persons who were 'a nuisance rather than a danger to society,' or to the 'much larger class of those who were partly vagrants, partly criminals, and who were to a large extent mentally deficient.' On the 12th June 1908, he explained to the House of Commons that the intention was to deal not with mere habituals but with professionals: 'For sixty per cent the present system was sufficiently deterrent, but for the professional class it was inadequate. There was a distinction well known to criminologists between habituals and professionals. Habituals were men who drop into crime from their surroundings or physical disability, or mental deficiency, rather than from any active intention to plunder their fellow creatures or from being criminals for the sake of crime. The professionals were the men with an object, sound in mind--so far as a criminal could be sound in mind--and in body, competent, often highly skilled, and who deliberately, with their eyes open, preferred a life of crime, and knew all the tricks and turns and manœuvres necessary for that life. It was with that class that the Bill would deal.' Although, therefore, the term 'habitual' is used, it is clear that not all habituals but only the professional class is aimed at by the Act, which not only restricts the use of Preventive Detention to those already found deserving of three years' penal servitude, but provides many safeguards against the too easy use of the new form of punishment."

A new Prison for the reception of these cases has been constructed at Camp Hill in the Isle of Wight, where it has been possible to secure not only an admirable site, with sufficient ground for cultivation, and for additional buildings, if necessary, but a locality which, from the point of view of climate and salubrity, and opportunity for agricultural work of a severe nature, is well adapted for the custody and treatment of a new class of prisoner, for whom, in conformity with the words of the Act, it has been necessary to devise a treatment which, while subject generally to the law of penal servitude, shall admit of such modification in the direction of a less rigorous treatment as may be prescribed; while, at the same time, they shall be subjected to such disciplinary and reformative influences, and shall be employed on such work as may be best fitted to make them able and willing to earn an honest livelihood on discharge. The rules made, attempt to follow, with as much precision as possible, the prescription of the Act, which, it will be recognized, does not admit of a simple or easy solution. They have been framed generally with a view that, consistently with discipline and safe custody, there should be a considerable modification of the severer aspects of a sentence of penal servitude. Promotion from the ordinary to the special grade is earned by good conduct and industry, as in penal servitude, but certain privileges, such as association at meals, and in the evenings, smoking, newspapers and magazines, &c., can be earned, as well as a small wage, not exceeding threepence a day, part of which can be expended on the purchase of articles of comfort from the canteen. Special provision has recently been made for the location in what are called "Parole lines," of such men as are, in the opinion of the authorities, qualifying for conditional discharge. The rules permit a considerable relaxation of discipline and supervision, so that each man may be tested as to his fitness for re-entry into free life.

It would, perhaps, in any case, have been impossible to have given a definite opinion on the value of the system until a longer period of time had elapsed. Such a judgment is rendered more difficult by the fact that the operation and effect of the System has been, of course, greatly affected by the intervention of the Great War. However, reports of the Central Association, to whose care these men are entrusted after release on conditional licence, and the reports of the Advisory Committee (an unpaid body unconnected with official administration appointed by the Secretary of State, under the Act, to advise him when, in their opinion, conditional liberation may be opportune without danger to the community, and _with reasonable possibility of good behaviour_), furnish material on which an estimate may be formed, both as to the future working and the success of the system.

Since the Act came into operation on the 1st August 1909, 577 persons have been sentenced to Preventive Detention. Of 389 cases released, no fewer than 325, or 84 per cent., were considered sufficiently promising to be released on licence, while of the remaining 64 who served their whole sentence of Preventive Detention, many were mentally or physically deficient. Of the 389 cases, the Central Association has recently reported that no unsatisfactory report has been received in the case of 210, or 54 per cent.

The singular success of the Central Association in dealing with these cases on discharge, representing, as they do, the worst and most dangerous class in the community, naturally suggests reflection as to the comparative merits of the systems of licensing on discharge from Penal Servitude and Preventive Detention, respectively. Under the Penal Servitude system, a convict can, by industry and good conduct, reduce his sentence by as much as one-fourth. On discharge he remains, during the unexpired portion of his sentence, under a licence which compels him to report his place of residence to the Police of the district, and to notify them of his intention to remove, and of his arrival in a new district, and to report to the Police once a month. A prisoner under Preventive Detention remains in custody only until the Advisory Committee are able to report that, if licensed, there is a reasonable probability of his abstaining from crime; but he is licensed, not to the Police Authorities, but to the Central Association--a voluntary Association subsidized by the Government for the after-care of convicts. The form of licence is quite different from that used on discharge from Penal Servitude, and compels a man to proceed to an approved place, not to move from that place without permission, to be punctual and regular in attendance at work, and to lead a sober and industrious life to the satisfaction of the Association. The Police licence may be described as negative in character, _viz_:--it only prescribes that a man shall abstain from crime. The licence to the Central Association is positive, as prescribing that, under careful and kindly shepherding and supervision, a man shall actually work where work is found for him, and shall remain at work under the penalty of report for failing to observe the conditions of licence. The difference between the negative and positive forms of licence has been the subject of much discussion in the United States of America, where the English methods, as prescribed by the Penal Servitude Acts of last century, have been ruled out of court by a strong public opinion, which insists that for many of the crimes for which men are sentenced to Penal Servitude, it is neither necessary nor reasonable to inflict a long period of segregation under severe penal conditions. It is felt there, as it is by many people in this country, that a comparatively short period, followed by discharge on _positive_ licence, with liability to forfeiture on relapse, would restore many men to normal conditions of life before the habit of hard work had been blunted by imprisonment, and family and other ties broken, and would save large sums of public money now spent on imprisonment.

The application of the principle of Preventive Detention to our Penal Servitude System would, of course, involve the question of the Indeterminate Sentence. That opinion is hardening in the direction of some such system in lieu of Penal Servitude is demonstrated by the fact that at the last International Congress in Washington in 1910, a resolution in favour of the Indeterminate Sentence, as a punishment for grave crime, was carried unanimously by delegates representing most of the countries of Europe and of the civilised world.

The successful working depends almost entirely on the capacity and discretion of the Advisory Committee, appointed under Section 14(4) of the Act of 1908, and what success has been attained is due to the care taken by the Committee in the investigation of each individual case, and in the suggestions offered to guide the Secretary of State in deciding the question of conditional release. By the death of Sir Edward Clayton, Chairman of this Committee since 1914, a great public loss has been sustained. He devoted himself during the latter years of his life with untiring energy to the duties of this office, for which he was pre-eminently qualified by his long experience in prison administration, as well as by largeness of view and understanding of the criminal problem. From the elaborate Memorandum which he wrote shortly before his death, it appears that his experience at Camp Hill made him a strong advocate of the Indeterminate Sentence, and he feared that the fixing of a definite limit, irrespective of a man's reformation, may defeat eventually the intention of the Act. The intention of the Act was, it will be remembered, primarily that there should be no fixed limit of detention, but Parliament thought otherwise, and the present limit of ten years, with a minimum of five, was decided upon.

Sir Edward Clayton was succeeded by Mr. Arthur Andrews, J.P., as Chairman of this Committee. Mr. Andrews has devoted himself for many years with great zeal to the functions of the Committee over which he now presides. He has lately reported to the effect that, in the opinion of the Advisory Committee, after reviewing the history of the Scheme since its inception in 1912, "it is an unqualified success." They consider the Scheme, as now applied, "is highly satisfactory, and productive of the best results; and that great credit is due to all concerned in its administration. The reformative influence of Camp Hill and the Parole Line System deserve commendation, and the fact that none of the 175 prisoners who have been located in the Parole Line Cabins made any attempt to break parole, and that it has only been necessary to remove three for misconduct, testifies to the success of the plan which provides a stepping-stone from imprisonment to liberty."

"The Committee also desire to make special reference to the work of the Central Association, and to the excellent system of providing employment and keeping in touch with the men under their supervision. The success of the Preventive Detention Scheme is greatly due to the exhaustive efforts of the officials of the Association."

On reviewing and comparing the figures afforded by the Central Association's Reports, there can be little doubt that Preventive Detention, as a supplement to our penal system, has, so far, yielded much more favourable results than could have been originally expected. The Committee recognise that the high proportion of successes is probably, to a considerable extent, attributable to the war, inasmuch as the Army provided a wide field of employment, and the labour market offered almost unlimited work for both skilled and unskilled men. As a result, many habitual criminals have renounced their criminal tendencies in favour of honest work, and those who have joined the Army are there the subjects of a disciplinary organisation which is probably an important factor in their reformation.

There is, of course, an element of doubt as to whether all these men would have abstained from crime in a normal environment, but the manner in which they responded to their country's call indisputably proves that in the worst of criminals there is a latent moral strain which can be brought to the surface under favourable conditions; and, moreover, the splendid example afforded by those who acquitted themselves so well has probably a more far-reaching effect on their late fellow prisoners at Camp Hill than is apparent.

These facts certainly justify the hope that a successful attempt has been inaugurated for dealing with the problem of Habitual Crime and of Recidivism. As an additional security that the great powers vested in the judge may not be appealed to lightly, and without the fullest consideration, the Act provides that the consent of the Director of Public Prosecutions must be obtained before a charge for dealing with a prisoner as an Habitual Criminal can be inserted in the indictment. This is sufficient guarantee that the intention of Parliament, _viz_:-that the somewhat drastic provision, by which the offender guilty of a grave crime can, after expiating a sentence of penal servitude for that offence, be deprived of his liberty for another period of ten years in the general interest, and for the protection of society, shall not be applied to persons who, as stated in Mr. Churchill's Memorandum, are "a nuisance rather than a danger to society, or to the much larger class of those who are partly vagrants, partly criminals, or who are, to a large extent, mentally deficient." In other words, it must be clearly understood that this defensive power is not meant to be used as a protection against Recidivism in petty offences. It does not touch that large army of habitual vagrants, drunkards, or offenders against bye-laws and Police Regulations, who figure so largely in the ordinary prison population. It is a weapon of defence to be used only where there is a danger to the community from a professed doer of anti-social acts being at large, and reverting cynically on discharge from prison to a repetition of predatory action or violent conduct. Used in this way, with caution, it is, I think, an invaluable instrument for social defence. It has remained rusty during the war, only 80 having been sentenced under the Act during the last four years; but it remains ready for application in the event of the recrudescence of grave habitual crime, and it is earnestly to be desired that both Judicial and Police Authority may make use of the great powers conferred upon them by the Act to relieve society, at least for a time, of those who are its professed enemies. The Act also applies to women, but only eleven have been sentenced to Preventive Detention since the Act came into force, and at present there are none in custody.