CHAPTER VII.

THE INQUIRY OF 1894: THE PRISON ACT, 1898: AND THE CRIMINAL JUSTICE ADMINISTRATION ACT, 1914.

Criticism, however, was not silent. There was an uneasy feeling in the public mind that too much importance had been attached to the principle of "uniformity," which was held to be responsible for the alleged evils of the system then in force, _i.e._, the want of "individualisation" of the prisoner, and the stifling of local control. This feeling found an echo in the Press; not only were the principles of prison treatment, as prescribed by the Prison Acts, criticised, but the prison authority itself, and the constitution of that authority, were held to be responsible for many grave evils. It was contended that centralization only fostered bureaucracy, and that the Prison System of the Country was at the mercy of a single bureaucrat, the Chairman of the Prison Board. It was impossible for the Government of the day to ignore this fierce indictment. A Committee of Inquiry was appointed, under the Chairmanship of Mr. H. Gladstone, M.P., then Parliamentary Under Secretary for Home Affairs. The Report was published in April, 1895, just at the time that Sir E. Du Cane was retiring from the Service, he having attained the age of sixty-five, the age for retirement under the Superannuation Acts. The Report, resulting from a keen and exhaustive inquiry into every branch of prison administration, marks a distinct epoch in the Prison history of this country. It paid a high tribute of praise to the Prison Commissioners and their late Chairman, by its formal declaration that the centralization of authority had been a complete success in the direction of uniformity, discipline, and economy. But while admitting this, and the attention that had been given to organization, finance, order, sanitation, and statistics, it gave some justification for the popular belief that centralization had been carried too far, and that local interest and authority had been unduly suppressed; and to use the words of the Report (which constitute the real gravamen of charge against the prison authority) "that prisoners have been treated too much as a hopeless or worthless element of the community, and that the moral as well as the legal responsibility of the prison authorities has been held to cease when they pass outside the prison gates." These words may be said to mark the passage from the old to the new methods of punishment, and from those which rested upon severity and repression to those which looked more hopefully towards the possible reformation of persons committed to prison.

The decrease of crime, _i.e._, as judged from the reduced daily average population of persons in prison, which had been habitually quoted and regarded as the correct test of a successful prison system, was shown on examination to be due almost entirely to a diminution in the average length of sentences. This fact, _i.e._, a greater leniency on the part of Magistrates and Judges, taken in conjunction with the remarkable outburst of public sentiment, to which I have referred, undoubtedly connote a gradual rise and growth throughout the community of a tendency towards a larger humanity in the treatment of crime, and a more rational execution of the sentences of the law. Hope of rehabilitation, which had perhaps been made too subordinate to the desire for a firm and exact repression, began to lift its head, and, from this time, the responsibility of the official authority, as a reclaiming agency, became greatly accentuated.

The new spirit which breathes in this Report, and which has largely influenced subsequent legislation and practice, is to be found, so far as Local Prisons are concerned, principally in reforms having for their purpose:--

(1) the concentration of effort on the young or incipient criminal, 16-21.

(2) improved classification, and the separation of first from other offenders in Local Prisons.

(3) the abolition of the old forms of "hard labour"--

cranks, treadwheels &c. The rules provide that the labour of all prisoners shall, if possible, be productive, and the only difference, so far as labour is concerned, between a sentence with, and without, hard labour, is that in the former case a prisoner works in cellular separation for the first twenty-eight days of his sentence, after which period he may work with the rest in association in workrooms, or other open spaces. So long as the Statute preserves the distinction between imprisonment with, or without, hard labour, it is necessary that the system should give effect to the distinction, but the meaning which has been so long associated with the phrase "hard labour" still lingers in the public mind, which even now is apt to imagine that a sentence of hard labour implies a long period of solitary confinement with employment throughout the sentence on hard monotonous forms of labour, such as cranks and treadwheels. Associated labour on productive work is now the rule of Local Prisons, subject to the exception above stated.

(4) the reorganization of "_Patronage_" or Aid-on-discharge.

(5) improved methods for the education and moral betterment of prisoners.

(6) the establishment of Training Schools for all ranks of the Prison Staff.

(7) improved Prison Dietary.

(8) improved medical treatment with special regard to weakminded and tuberculous cases.

(9) the reconstruction of prisons, with a view to better sanitation, and provision of workshops for associated labour.

It was at this time that the present writer succeeded Sir E. Du Cane as Chairman of the Prison Commission, and the Secretary of State (Mr. Asquith) in conferring this appointment upon him, expressed the strong desire of the Government that the views of the Committee should, as far as practicable, be carried into execution. Since that date, accordingly, the reform and reorganization of the Prison System has been proceeding in every Department. The steps taken will be found in detail in the Annual Reports of the Commissioners since that date. It is not necessary to recapitulate here all the Departmental changes that have taken place, although they are very extensive and far-reaching.

So far as legislation is concerned, three Acts of great importance have been passed--the Prison Act, 1898, the Prevention of Crime Act, 1908, and the Criminal Justice Administration Act, 1914.

The principal changes effected by the Prison Act, 1898, were, firstly the power given to the Secretary of State to make Rules for the Government of Convict and Local Prisons. The Rules embodied in the Schedule to the Prison Act, 1865, and enforced by Statute, were repealed, and what was, in effect, a new Prison Code was established, regulating every detail of administration in Local and Convict Prisons, subject only to the sanction of Parliament, and liable to alteration, from time to time, by Parliamentary Rules. Until now, the Rules of Prisons had been in a confused and chaotic state; some were fixed rigidly by Statute, others were framed without Parliamentary authority by the Secretary of State, others were enacted only by Standing Order,--all these were consolidated and embraced in a single Code, and their execution regulated by a new set of Standing Orders. Rules, with the Standing Orders which interpret them, are now the authority and foundation for the Government of Local and Convict Prisons. Not only has a greater simplicity of administration been attained, but, at the same time, a greater elasticity has been given to the System, which was sadly in need of it. It is not likely that it will again be necessary to resort to legislation in order to effect any change in the details of the System, the Secretary of State now having power, by Parliamentary Rule, to introduce such alterations as time and experience may dictate.

Secondly,--The Prison Act, 1898, created a Triple Division of offenders, power being given to the Courts to direct the treatment in one or other of the Divisions, having regard to the nature of the offence, and the character and antecedents of the offender. It will be remembered that the Act of 1877 had not gone further in the way of Classification than the establishment of the Division known as First Class Misdemeanants. This provision was repealed, and under the new law Courts have, generally speaking, an absolute discretion as to the Division in which any convicted prisoner shall be placed. The Rules regulating the treatment of each Division are, of course, subject to Parliamentary sanction. It was hoped, at the time, that the Courts would gladly and readily avail themselves of these new and enlarged powers, although it is recognized that a great responsibility is thus imposed upon the Courts, whose duty, if strictly fulfilled, would be to discriminate in each case brought before it, and to order treatment according to character and antecedents. In this way, it was hoped to secure that "_individualisation de la peine_", which modern penitentiary science declares to be the ideal at which a good penal system should aim. Courts have not, however, shown a keen desire to exercise this fresh power to the extent contemplated by the Act, the number committed to the Second Division representing not much more than an average of about three per cent of the total eligible committals. The traditional methods of commitment to ordinary imprisonment, with, or without Hard Labour, have so deeply affected the criminal administration of Summary Courts that it has proved difficult to escape from their influence, in spite of the great power of discrimination which the Act affords.

Thirdly,--Another very important provision of the Act was the power given to enable a prisoner sentenced to imprisonment in default of fine to obtain his release on part-payment of the fine. Thus, in the case of a prisoner sentenced to pay a fine--say of ten shillings or two weeks' imprisonment in default--imprisonment could be reduced by a number of days bearing the same proportion to the length of his sentence as the sum paid by him bears to the total fine imposed. The object of this provision was, of course, to modify, though it could not abolish, the admitted evil of the system under which about half the population of Local Prisons is composed of persons not directly committed without the option of a fine for the graver offences, but sentenced to pay perhaps small fines for trivial offences. These, on their inability to pay, became subject to the ordinary pains and penalties of imprisonment as in the case of ordinary criminal prisoners. Although the principle established under the Act was largely made use of, and thus a considerable reduction has taken place in the number of days for which persons sentenced in default of fine remained in Prison, the system of imprisonment in default continued in vogue, and was responsible for some fifty per cent. of the Prison population until action was taken by Parliament in the Session of 1914, since when a great change has taken place in this respect. The Criminal Justice Administration Act, 1914, to which I refer later, in addition to many other valuable provisions regulating the treatment of crime, is specially directed to meet this evil.

The Prison Act, 1898, has also been of historical interest as being the last deliberate decision of the legislature on the vexed question of Corporal Punishment in Prisons. Previously to the Act, a sentence of Corporal Punishment could be awarded in Convict Prisons by one of the Directors, and in Local Prisons by the Visiting Magistrates for any serious offence against prison discipline, and subject to no confirming authority. It is now strictly limited as a penalty for gross personal violence to prison officers, and for mutiny, or incitement to mutiny, and then only in the case of prisoners convicted of felony or sentenced to hard labour. A sentence can only be imposed by a tribunal consisting of not less than three persons, two of whom must be Justices of the Peace, and the order for corporal punishment from such tribunal cannot be carried into effect until confirmed by the Secretary of State, to whom a copy of the notes of evidence and a report of the sentence, and of the grounds on which it was passed, must be furnished. Experience has justified the wisdom of this enactment, which affords a sufficient guarantee against excessive, or unnecessary, exercise of the powers of corporal punishment. It has not been found that the discipline of prisons has suffered, while a due security exists for the protection of prison officers from violence. Public sentiment, which had previously been uneasy on the question of flogging in Prisons, has accepted the present limitation of power as a just and reasonable solution for what has always been a very vexed and difficult question of prison administration.

Again, a change of far-reaching importance in its effect on the discipline and management of Local Prisons was introduced, _viz_:--the power given to short-term prisoners to earn remission of their sentence by special industry and good conduct. Prisoners whose sentence is for over one month are now able to earn remission of a portion of their imprisonment not exceeding one-sixth of the whole sentence. The power to earn remission has always existed in the case of persons sentenced to penal servitude, where the minimum sentence is three years, and its great value, both as an incentive to industry and good conduct, and as furnishing an element of hope and encouragement under long sentences, has always been recognized. The expectation that the translation of this privilege to the Local Prison System would operate in the same way has been justified by experience.

Hitherto, the stimulus to industry and good conduct in Local Prisons had consisted only of the privileges that could be earned under the Progressive Stage System, in the shape of more letters and visits, and more library books, and larger gratuity. Gratuity, however, did not exceed the sum of ten shillings, whatever the length of sentence. It was, therefore, only prisoners under the longer sentences, presumably those guilty of grave offences, that could benefit to any extent under the Gratuity System--some twenty per cent. of the whole. Moreover, the risk or fear of losing remission marks operates as a powerful deterrent against idleness or misconduct, and it has been found, generally, that under the influence of this salutary provision there has been a marked improvement in the tone and demeanour of the prisoners, while, at the same time, an aid has been furnished to those responsible for maintaining order and discipline.

Such, broadly, were the changes introduced by the Prison Act, 1898. Though a short Act of a few Sections, it has profoundly affected the whole of the Prison administration. It seems to have been accepted by public opinion as a reasonable solution of many difficult questions which had been the subject of criticism, and which led to the outcry against the policy of the administration which had followed the Prison Act, 1877.

Ten years passed before further legislation respecting Prisons was passed. The Prevention of Crime Act, 1908, is of paramount interest as giving effect to the two principal proposals of the Committee of 1894, _viz_:--special treatment of the young, and the habitual criminal, respectively, but it does not affect the Prison régime, as applied to other categories of criminals, and, so far as it relates to these two special categories, is dealt with in separate chapters.

Since this chapter was written, the Criminal Justice Administration Bill, 1914, has become law. The great effect of this valuable measure is shown in my later chapter No. XVII. dealing with statistics of crime. It will there be seen how largely prison statistics have been affected by the obligation now imposed on Courts to allow time for the payment of fines. The offences for which a fine is imposed are presumably of a trivial character, but by long custom and usage, the practice of almost automatic commitment in default had grown to such a large extent that the intervention of Parliament proved necessary. That the principle of Imprisonment, and all that it connotes, both of shame and stigma, should depend upon the accident whether or not a small sum of money could be provided for payment of a fine at the moment of conviction, is obviously contrary both to reason and to justice. It is now laid down that where any prisoner desires to be allowed time for payment, not less than seven clear days shall be allowed, unless, in the opinion of the Court, there is good reason to the contrary. It is also laid down that in all cases where the offender is not less than sixteen nor more than twenty-one years of age, the Court may allow him to be placed under "Supervision" until the sum is paid. This provision is intended to meet the admitted evil of committing young persons under twenty-one to Prison where the offence is only of a trivial nature, due, in many cases, to the rowdy and irrepressible instincts arising rather from animal spirits, and the absence of proper control, than to any deliberate criminal purpose. It is proposed to create a new Society, whose business it will be to provide the necessary supervision, and to act, as it were, as an auxiliary to the Courts in furnishing a guarantee that the offender shall either pay the fine or, if after reasonable means of suasion and influence shall have failed, shall be returned to the jurisdiction of the Court to be dealt with in a severer manner. By this special provision for young persons, 16-21, who have hitherto come to Prison in such large numbers, the Act recognizes and extends the principle of the Borstal System--the principle of which, as I shall explain later, is to concentrate attention on the young offender at this plastic age, when the tendency to criminal habit can be arrested and diverted before it is too late, and before familiarity with Police Courts and Prisons obliterates the fear and terror of the law, thus rendering easy an almost certain descent and further degradation to a life of habitual evil-doing. The Act, moreover, as explained in a subsequent chapter, extends the application of the Borstal System, as prescribed by the Act of 1908.

As a further provision against the admitted evil of short sentences of Imprisonment, it is enacted that no imprisonment shall be for a period of less than five days. Power is given to the Secretary of State, on the application of any Police Authority, to certify any police cells, bridewells, or other similar places provided by the authority, to be suitable places for the detention of persons sentenced to terms not exceeding four days, and may make regulations for the inspection of places so provided.

With the object of further modifying what, under the influence of long custom, has become an almost mechanical use of awarding imprisonment with hard labour, it is provided that any imprisonment in default of payment of a sum of money shall be, in the future, _without_ hard labour, and in other cases, where a commitment is without the option of a fine, the Court has a discretion whether or not hard labour shall be imposed. In order to give a fuller application to the Act of 1898, as before described, _viz_:--that the classification of prisoners should be into three Divisions, according to character and antecedents, power is given to the Visiting Committee of Prisons, on the application of the Governor, to direct that, in any suitable case, the prisoner may be placed in the Second Division, where, in the absence of any instruction of the Court to deal otherwise, he would be located in the Third Division.

It is anticipated that this Act will have far-reaching effects (1) in the avoidance of imprisonment where the offence can be adequately met by money payment: (2) in the saving from the taint of imprisonment in the early years, by placing under responsible supervision and care, any young person under twenty-one, who, under the old system, would become familiar with prison surroundings: (3) by extending and strengthening the provisions of the Borstal Act, 1908, and (4) by making effective the classification of ordinary prisoners, aimed at by the Prison Act, 1898, and by adapting their treatment and segregation during imprisonment according to their antecedents and the character of their offence.