CHAPTER IX.
THE HANDMAIDS OF THE PRISON SYSTEM:--
(1) THE CHILDREN ACT, 1908:
(2) THE PROBATION ACT, 1907.
(1) THE CHILDREN ACT, 1908.
The passing of the Children Act, 1908, which practically forbids imprisonment before sixteen years of age, marks the last stage in that slow and tedious journey which had to be undertaken by many devoted men and women who were conscious of the grave evils resulting from imprisonment, before it was generally realized that it was not by throwing children and young persons automatically and indiscriminately into gaol, that the grave problem of juvenile delinquency was going to be solved.
The Children Act, 1908, known as the "Children's Charter", revolutionized the penal law of this country, so far as the imprisonment of young persons under the age of sixteen was concerned, in the English law there is a conclusive presumption that children under seven years of age cannot have _mens rea_, and so cannot be made liable to be punished by criminal law. Between seven and fourteen years that presumption is no longer conclusive. Guilty knowledge may be shown by the fact of the offender having been previously convicted of some earlier offence, or even by the circumstances of the present offence. Full criminal responsibility is presumed at the age of fourteen. The Children Act, without reference to the question of criminal responsibility, prescribed a clear distinction between offences committed by _children_, _i.e._, persons under the age of fourteen, and _young persons_, _i.e._, between fourteen and sixteen. Neither "children" nor "young persons" _i.e._, no person under the age of sixteen, can now be sent to penal servitude or to imprisonment unless the Court certifies in the case of a young person, 14-16, that he is of so unruly a character that an alternative form of punishment is not desirable. Offenders under sixteen cannot be sentenced to death, but may be detained during His Majesty's Pleasure. Those guilty of grave crime, such as attempt to murder, manslaughter, &c., can be detained in such places, and under such conditions, as the Secretary of State may direct. The effect of this Act is, therefore, to withdraw all persons under sixteen entirely, or almost entirely, from the control of the Prison Authority. In lieu of detention in Prison, the Act creates "Places of Detention", to be established by the Police Authority of the district, the expense of maintenance being divided between the Police Authority and the Treasury. Young offenders may be committed to such Places of Detention for any period not exceeding one month, or on remand or committal for trial. Such establishments are subject to regulations and inspection by the Secretary of State. The Children Act, 1908, consolidated the law as to Reformatory and Industrial Schools, and, at the same time, introduced other amendments, _e.g._, that no child under twelve should be sent to a Reformatory School: children under that age may be sent to Industrial Schools, notwithstanding any previous conviction recorded against them: power is given to the Secretary of State to transfer from a Reformatory to an Industrial School, and _vice versâ_: power of control and supervision of cases up to the age of 19 is given to managers of Reformatory Schools where the term of detention expires earlier: earlier licensing in the case of Industrial Schools is permitted: and statutory reference is also made for providing special Reformatory and Industrial Schools for physically and mentally defective cases.
For some years prior to the passing of the Children Act, 1908, those interested in the welfare of the young had been trying to secure the hearing of charges against juvenile delinquents in Courts of Justice apart from those of adults. In 1905, several large towns had taken this step. At Birmingham, the first separate Court for children's cases was established in April, 1905, to which was attached the first Probation Officer for children.
In the same year, the Secretary of State issued a circular to Magistrates pointing out the evil resulting from contact with the more depraved and criminal adults, and asking them to consider what steps could be taken to prevent such contamination by securing their protection at Police Courts during the hearing of their cases.
One of the recommendations of the Inter-Departmental Committee on Physical Deterioration, 1904, was that, whenever possible, in cases touching the young, where the assistance of a Magistrate was invoked, he should be a person specially selected, sitting for the purpose. In a Circular to Justices in 1909, explanatory of the provisions of the Children Act relating to the establishment of Children's Courts, the Secretary of State expressed the opinion that it was desirable, where possible, that the formation of Juvenile Courts should be assigned to a separate rota of Magistrates who possess, or who would soon acquire, a special knowledge of the methods of dealing with juvenile crime and of institutions for juvenile offenders.
On the passing of the Children Act, 1908, special Courts, called Juvenile Courts, were created for dealing with charges against children or young persons. Such Court may be either in a separate building, or in a room of an ordinary Court House. No person, other than members or officers of the Court or parties to the case, their counsel or solicitors, or persons otherwise directly concerned in the case, may be allowed to attend, and means must be taken for preventing young persons while in attendance at the Court, or being conveyed to or from Court, from associating with adults. The chief methods for dealing with children and young persons charged with offences enumerated in Section 107 of the Act, are:--
(_a_) by dismissing the charge; or
(_b_) by discharging the offender on his entering into a recognizance; or
(_c_) by so discharging the offender and placing him under the supervision of a probation officer; or
(_d_) by committing the offender to the care of a relative or other fit person; or
(_e_) by sending the offender to an industrial school; or
(_f_) by sending the offender to a reformatory school; or
(_g_) by ordering the offender to be whipped; or
(_h_) by ordering the offender to pay a fine, damages, or costs; or
(_i_) by ordering the parent or guardian of the offender to pay a fine, damages, or costs; or
(_j_) by ordering the parent or guardian of the offender to give security for his good behaviour; or
(_k_) by committing the offender to custody in a place of detention provided under the Act; or
(_l_) by dealing with the case in any other manner in which it may be legally dealt with.
Since 1910, the number of cases dealt with in Juvenile Courts has risen from 33,598 to 49,915 in 1918, the increase having taken place chiefly since the outbreak of war. Included in the latter total were 28,843 boys and 1,364 girls under the age of 14. Statistics show that a conviction is recorded in about 50 per cent. of the number dealt with annually, the majority of which are disposed of by fine, whipping, or committal to a Reformatory School. Of those cases in which the charge is proved, though no order made for _conviction_ (about 35 per cent.) the bulk of the cases are disposed of by Probation, Recognizances, Dismissal, or committal to an Industrial School. Only in the number who were placed on Probation, and in the number whipped, is there any great variation since 1910 in statistics as to the manner in which cases were dealt with, as shown above. In the case of probation, in 1910 3,568 cases or 10·6 per cent. of the total dealt with, were so disposed of: in 1918, the number had risen to 5,868, or 11·8 per cent. of the total. A large rise is shown in the number who were whipped, _viz_:--1,562 in the former year, and 3,593 in the latter, or 11·9 and 13·1 per cent, respectively, of the total _convicted_. In 1913 (the latest figures available), 6,972 children and young persons, dealt with in Juvenile Courts, were committed to Places of Detention, 4,073 of whom were on remand, 1,910 to await removal to Industrial Schools, 11 to await trial, and 147 under sentence. Nearly sixty per cent. of the total cases were committed from the Metropolitan Police District and Liverpool.
Public concern is not, however, only with the delinquent child. It is also with the many thousands of children who are the subject of physical or mental defect, or of insufficient care and supervision during the age of adolescence. During that period, after having left the public elementary schools, boys and girls are thrown into the outer world to earn what wages they can without regard either to the special aptitude they may possess, or to any security that the occupation they choose is one in which they have any chance of remaining permanently employed. It has become manifest to those dealing with young offenders on discharge from Prison, or other Institutions, that one of the principal causes leading to the commission of criminal acts is to be found in what is generally known as "blind-alley" employment, _i.e._, employment obtained casually and thoughtlessly by young persons on leaving school in which they cannot be maintained on attaining maturity.
It was not till 1893, or more than twenty years after the principle of compulsory elementary education had been established, that Blind and Deaf children were made the special concern of the legislation. It was later still than this that the case of the Defective and Epileptic child engaged the attention of Parliament; but the Elementary Education (Defective and Epileptic Children) Act, 1899, did not go beyond prescribing that it should be the duty of the Local Education Authority to ascertain the existence of such children. It was left to the option of the Local Authorities whether or not the provisions of the Act for their special treatment should be adopted, and a large number of Education Authorities failed to respond.
The Mental Deficiency Act, 1913, however, makes it the duty of every Local Education Authority
(1) to ascertain the existence of mental defect of such kind or degree as to justify the diagnosis of feeble-mindedness, imbecility, or idiocy;
(2) to determine whether a child diagnosed as feeble-minded is or is not capable of benefiting from education in a Special School, and;
(3) to notify to the Local Authority under the Act, all defective children over the age of seven (_a_) who are incapable of education in Special Schools; (_b_) who, though educable, are detrimental to other children; (_c_) who require supervision or guardianship under the Mental Deficiency Act, or (_d_) who after leaving a Special School need institutional treatment or guardianship.
Under the Elementary Education (Defective and Epileptic) Children Act, 1914, every Local Education Authority is compelled to notify all mentally defective children; and to provide for the education of those who are capable of profiting by instruction, the number of whom (excluding idiots, imbeciles, and the lowest grade of the feeble-minded) is estimated at over 30,000.
As a security against "blind-alley" employment, and its consequent dangers, a well-organized movement is now in progress throughout the country by the establishment of Juvenile Employment bureaux and Labour Exchanges, and by the setting-up of Advisory Committees in connection with Education Authorities to secure advice, and guidance, and control during the perilous age of adolescence. The Education Act, 1918, made provision for raising the compulsory age for 'full-time' attendance at a Public Elementary School from 12 to 14, and also for compulsory attendance at continuation schools between the ages of 14 and 18. The Act also contains drastic provisions restricting child labour during such hours as interfere with efficient instruction. The determination that the youth of this country should not only be saved from a criminal career, but should have opportunities, suited to the age, for the development of character, is found in the widely spread organizations of Boy Scouts, Boys' Brigades, and other kindred associations.
It is in this movement of voluntary personal service, on the part of the earnest men and women, engaged in all these works and acting in the highest sense of patriotism and public duty, that the hope of the solution of the criminal problem lies in the future; and it is for this reason that I have adverted shortly to a movement that is proceeding in this country at the present time for the better nurture and education, and control of all that enormous number of boys and girls who, though they must profit to a certain extent under a system of free compulsory education, will not be transformed by education alone into useful and honest citizenship. Side by side with the machinery of the public elementary school system, there must be agencies at work of which the high purpose is not only to secure that the defective child shall be treated in accordance with scientific method, and that the pauper child shall not have less favourable opportunity than his fellows, but that all classes of children after satisfying the standard of literacy ordained by the school authority, shall, during the period of adolescence, be subject to such influences as shall secure them, when they attain maturity, a fair chance in the competition of life. Therein lies the prophylactic of crime. No Prison Authority can be indifferent to the great social effort now being made, the effect of which is perhaps already visible in the diminishing number of young persons convicted of crime. In future years, it is hoped that it will not be a commonplace, as it is now, for many old offenders to attribute their downfall, and their persistence in a criminal career, to neglect during infancy and early youth, and to the absence of any controlling influence to save them during the initial years preceding maturity from acts of mischief, or of fraud, until Prison, as the automatic and unvarying penalty, destroyed in them the germs of hope and confidence, and self-respect, without which a foothold in honest life could with difficulty be regained.
(2) THE PROBATION ACT, 1907:--
Former International Prison Congresses pronounced in favour of the provisional sentence ("_sentence provisoire_"). By this is meant in foreign codes what is generally known as a "conditional conviction," _i.e._, a conviction takes place, but is not carried into effect, conditionally on the good conduct of the offender during a term of years (generally five) prescribed by the law. This respite is known technically as "_sursis à l'exécution de la peine_." The principle of conditional conviction is common to most penal codes, but operates in different ways, _e.g._, it may take the form simply of judicial reprimand, or of being bound over to be of good behaviour, or of probation, as in England and America, or of respite in the execution of the sentence, as in France, Belgium, and Switzerland. The Continental law of "_sursis_" or "_respite_" differs from the English law of Probation in that in the former case there is always a conviction. In England, except in serious cases tried on indictment, there is no conviction. The English law gives power if the court, "having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, thinks fit so to act, to discharge the offender conditionally on his entering into a recognisance, with or without sureties, to be of good behaviour and to appear for conviction" (if before a court of summary jurisdiction) "and sentence when called on at any time during such period, not exceeding three years, as may be specified in the order." Such a recognisance may contain the condition that the offender shall be under the supervision of a probation officer. The court may add further conditions with respect to residence, abstention from intoxicating liquor, and any other matter which, having regard to the particular circumstances of the case, it may consider necessary for the prevention of the same offence, or the commission of other offences.
It is the duty of the probation officer, subject to the directions of the court--
"(_a_) to visit or receive reports from the person under supervision at such reasonable intervals as may be specified in the probation order, or subject thereto as the probation officer may think fit;
"(_b_) to see that he observes the conditions of his recognisance;
"(_c_) to report to the court as to his behaviour;
"(_d_) to advise, assist, and befriend him, and, when necessary, to endeavour to find him suitable employment."
Should the probationer commit fresh offences, or evade the supervision of the probation officer, or otherwise break any of the conditions of his recognisance, he is to be brought again before the court and sentenced for his original offence.
The Probation Act, therefore, provides a method by which a person who has offended against the law, instead of being punished by imprisonment or fine, or, in the case of a child, being sent for a prolonged period to a reformatory or an industrial school, may be brought under the direct personal influence of a man or woman chosen for excellence of character and for strength of personal influence; and, lending authority to that supervision, and securing that it shall not be treated as a thing of little account, the Act keeps suspended over the offender the penalties of the law, to be inflicted or to be withdrawn according as his conduct during the specified period is bad or good.
The new procedure, under the Act of 1907, marks a great advance. The formality of the Probation Order, regular visits and reports, and the knowledge that the supervision is that of a duly appointed officer of the Court,--all these things combine to secure a much stronger hold over the offender than the simple recognizance, which was previously the rule. Again, the Act provides for the appointment of officers at a number of Courts which had not previously been provided with the means of securing supervision in cases where the Courts desired not to resort to the penalty of imprisonment. The appointment of at least one paid Probation Officer at every Court may now be regarded as indispensable for the proper administration of justice. Their appointment, however, is not compulsory, and it is only in the Metropolis that they are appointed by the Secretary of State. It is within the discretion of other Courts whether or not they shall avail themselves of the services of a Probation Officer. In fact, many Courts of Summary Jurisdiction throughout the Country are still unprovided for.
The extent to which Probation Orders are applied varies to a great extent in different parts of the country. In the Metropolis, not more than one in seventy-eight out of the total number of persons proceeded against summarily was so dealt with in 1913. At Liverpool and Manchester, it is less than this, while in Hull and Birmingham, it is greater. Though many years have elapsed since the passing of the Act, there is still a comparative inactivity on the part of many of the Courts to give effect to its provisions, and many do not yet appear to have fully realized that the Act may be applied to all classes of offenders, and not only to first offenders, as was formerly the case. Moreover, the fact that the Probation System has been actively advocated by those specially interested in the treatment of Juvenile Offenders has led to a general opinion that the measure is to be used only in the case of the young. But in fact there are a great number of cases in which the offender is neither a first offender nor a child, but in which a Probation Order could very properly be made. Time will, no doubt, remove this misunderstanding, and when the Courts realize what assistance can be rendered to the administration of justice by judicious use of the Probation System, it is nearly certain that Probation Officers--male and female--for the younger as for the older prisoners, will become an established part of the machinery of every Court. The Probation Act, 1907, repealed Section 16 of the Summary Jurisdiction Act, 1879, and the Probation of First Offenders Act, 1887. The Summary Jurisdiction Act, 1879, provided by Sec. 16 (1) that where the charge, though proved, was of a trifling nature, the Court, _without proceeding to conviction_, might dismiss it, and _might_ order the defendant to pay damage not exceeding 40/- and costs; by Sec. 16 (2) that _on conviction_ the Court might order the defendant to give security with or without sureties, and with or without payment of damage or costs.
The Act of 1887 provided that the Court, before whom a person, not previously convicted, was brought, and who was convicted of larceny or false pretences, might, having regard to the youth, character and antecedents &c. of the offender, or to the trivial nature of the offence, direct that he be released on entering into recognizances, &c. to come up for judgment when called upon, and to be of good behaviour. If he failed to observe any of the conditions of his recognizance he was liable to be brought up to answer as to his conduct, and to receive judgment.
The Act of 1907, in lieu of the foregoing, provides that when any offender is charged before a Court of Summary Jurisdiction with an offence punishable by such Court, and the Court thinks the charge is proved, it may nevertheless dismiss the charge altogether, or may bind the offender over, with or without sureties, to appear for conviction and sentence when called on at any time during a specified period not exceeding three years, if it "is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment, or that it is expedient to release the offender on probation."
If such an order is made, or if the charge is dismissed under the Act, the Court may further order the offender "to pay such damages for injury or compensation for loss (not exceeding in the case of a Court of Summary Jurisdiction ten pounds, or, if a higher limit is fixed by any enactment relating to the offence, that higher limit), and to pay such costs of the proceedings as the Court thinks reasonable."
The powers granted under the latter Act were thus wider in their scope, and it was hoped that they would be used with greater frequency, and with better guarantee of good results by the appointment of Probation Officers, as prescribed by the Act. But at the present time, statistics do not show that the principle of Probation has been as widely extended in consequence of these provisions, as might have been expected. The numbers so dealt with in 1907 (the year before the Act came into operation) and those for the last recorded year (1918) are as follows:--
1907 Probation of First Offenders Act, 1887 8,097 " Summary Jurisdiction Act, 1879, Sec. 16 (1) 45,195 " " " " " Sec. 16 (2) 8,205 ------- Total 61,497 ------- (or 8.2 per cent of the total number proceeded against).
1918 Probation Act. 1907:-- Tried on indictment (conviction recorded):-- Recognizances, with Probation Order 443} " without " " 652} 1,095 Tried summarily: Order made, without conviction for:-- (_a_) Dismissal 26,231} (_b_) Recognizances 11,284} 48,761 (_c_) Probation Order 11,246} Total 49,856 ------- (or 11·5 per cent of the total number proceeded against).
Owing to differences in the law and of procedure, it is difficult, if not impossible, to make comparison between England and Foreign Countries as to the extent to which Probation in the former, and "_sursis_" in the latter is being used as an alternative to imprisonment. So far as my researches have enabled me to go, I would venture the opinion that "_sursis_" is being used to a considerably larger extent in France, Belgium, and Italy than Probation is being used in England. There are, moreover, I believe, no statistics for comparing the results of the two systems. We know that in England the percentage of revocations is not more than about 6, the actual numbers having been as follows for the five years ended 1913:--
------------------------+------------------------ Probation | Number who appeared Orders made. | for sentence. ------------------------+------------------------ 1909 8,962 624 1910 10,217 584 1911 9,516 593 1912 11,192 655 1913 11,057 603 -------------------------------------------------
The effect of suspended sentence ("_sursis_"), without probationary oversight, was declared at the Washington Congress to be difficult, if not impossible, to ascertain, and the Congress went further in resolving that it was desirable for each State or County to provide a Central Authority to appoint some agency to exercise general supervision over Probation work. This is now the case in the State of New York, where a State Probation Commission has been appointed, and where, since 1910, as the consequence of good organization, there has been a great extension of the operation of the system. My own opinion is that Probation, carefully organized, _i.e._, with a staff of carefully selected Probation Officers, both Male and Female, is, as I have already stated, an indispensable part of the machinery of criminal justice, and, as such, ought to be under the direct control and supervision of the State, not with the idea of hindering or impeding voluntary effort by official interference, but by securing that each Court shall have its proper equipment for this purpose, and that, in every case where there is a transgression of the conditions of Probation, there shall be, without fail, an immediate report to the Court entailing an effective punishment of the offender who has refused to profit by the clemency extended to him under the Probation Act. I do not think, so long as the institution of this valuable machinery is permissive and left to the discretion of the Court, that a full effect will ever be given to the admirable principles of the Probation System, as a handmaid of justice, or that there will be a sufficient guarantee, that where a Court has used its powers in this respect, there shall be a prompt and effective vindication of the law in the event of any breach of conditions. In this way only, can an answer be made to any criticism by the many persons who have attempted, by their experience in individual cases, to suggest that Probation may be merely a mask for impunity. Unless Probation is so organized as to clear itself from this reproach, I am afraid that it will never take its place firmly and progressively as a necessary and indispensable weapon in the armoury of the criminal law.
The Home Secretary has recently appointed a Committee to inquire into the question of the organization of Probation; and it is likely that we are on the eve of an extensive development of the system.