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The Criminal and the Community
Part III - Chapter VII - The Prevention of Crime Act (1908)

SOME few years ago the English Prison Commissioners began a modified system of treating certain offenders. Borstal Prison was set apart for the purpose, a staff was specially chosen, and young offenders were selected for experiment. It was a notable departure, and the authorities seem to have been satisfied with the results. Either they had power to undertake the experiment or they had not. In the former case there was no need for an Act of Parliament to give authority; in the latter case they must have been breaking the law. If they were within their powers there was nothing to hinder them from extending their beneficent work. That work would necessarily depend for its success on the experience and special ability of those who performed it. If the men in office in other prisons do not possess similar qualifications for the work no statute will confer them; but it may cause them to have duties placed upon them which they are not fitted to discharge. So long as the treatment had to be justified by its results, it would be fairly safe to assume that only those who could prove their fitness would direct it; now it needs as little of such justification for its continuance as do the Inebriate Homes.

The Prevention of Crimes Act (1908) deals with the “Reformation of Young Offenders,” and the “Detention of Habitual Criminals.” The young offenders must be not less than sixteen and not more than twenty-one years of age; but the Secretary of State with the concurrence of Parliament may make an order including persons apparently under twenty-one, if they are not really over twenty-three years of age. The young offender must be convicted on indictment of an offence for which he is liable to penal servitude or imprisonment; and it must be apparent to the Court that he is of criminal habits or tendencies, or an associate of bad characters. The Court must consider any report by the Prison Commissioners as to the suitability of the offender for treatment in a Borstal Institution; and may send him there for not less than one and not more than three years. In Scotland the Secretary of State may apply the Act by Order, and may call the institution by any name he chooses.

If a boy in a reformatory commit an offence for which a Court might send him to prison, he may instead be sent to a Borstal Institution, his sentence then superseding that in the reformatory school.

The Secretary of State may transfer persons within the age limit from penal servitude to a Borstal Institution.

The Secretary of State may establish Borstal Institutions, and may authorise the Prison Commissioners to acquire land, with the consent of the Treasury, and to erect or convert buildings for the purpose, the expense to be borne by the Exchequer. He may make regulations for the management of the institution, its visitation, the control of persons sent to it, and for their temporary detention before their removal to it.

Subject to the regulations, the Prison Commissioners, if satisfied that the offender is reformed, may liberate him on licence at any time after he has served six months—in the case of a woman, after three months; and the licence will remain in force till the expiry of the sentence, unless it is revoked or forfeited earlier, in which case the offender may be arrested without warrant and taken back to the institution. Subject to regulations, the Prison Commissioners may revoke the licence at any time. If a licensed person escapes from supervision, or commits any breach of the conditions laid down in the licence, he thereby forfeits it; and the time between his forfeiture and failure to return is not computed in reckoning the time of his detention. The time during which he is on licence, and conforming to the conditions therein, counts as time served in the institution.

Every person sentenced to detention in a Borstal Institution remains under the supervision of the Prison Commissioners for six months after his sentence has expired; but the Secretary of State may cancel this provision where he sees fit. The Prison Commissioners may grant a licence to any person under their supervision, and may recall it and place him in the institution if they think this necessary for his protection; but they may not detain him for more than three months, and they cannot detain him at all when six months have passed since his sentence expired.

Young offenders detained in Borstal Institutions, if reported as incorrigible or as exercising a bad influence on the other inmates, may be removed to a prison to serve the remainder of their term, with or without hard labour, as the Secretary of State may decide.

The person under licence must be placed under the supervision of some person or society willing to take charge of him, and named in the licence. Where a society has undertaken the assistance or supervision of persons discharged from the institution, the expenses incurred may be paid from public funds; but, curiously enough, the statute makes no reference to payment of persons willing to act as guardians.

A person may be moved from one Borstal Institution to another, and from one part of the United Kingdom to another. He is to be “under such instruction and discipline as appears most conducive to his reformation and the repression of crime”— which is sufficiently vague. The only thing of any importance in this part of the Act is the provision for letting the offender out on licence. If it is used to board him out, some progress may be made; but if it is merely used to provide funds for some society of philanthropists to play with, there is little ground for the hope that it will do much for the offender.

The second part of the Act is more peculiar than the first. It is designed to deal with the case of the habitual offender, and as originally drafted it provided for retaining him in custody, if the officials thought proper, for the rest of his life. This would have been nearly as certain a preventive as hanging him, and would have been much more costly.

A consequence that might be expected to spring from the prevention of crime would be a diminution in the numbers of the police. It is their duty to arrest criminals, and if the criminals are shut up their occupation is gone. It is a striking fact that during all the discussions which took place on the measure, nobody suggested that as a result of its operation there would be any smaller number of policemen required. There was no likelihood of it; for crime will not be prevented to any great extent by the institution of “reformatories”—experience has shown that very clearly—but it will be diminished to some extent while the professionals are incarcerated. This has been tried and found insufficient and unsatisfactory. The new Act makes provision for the care of people who have been liberated from Borstal Institutions, and for the reformatory treatment of those who have become habituals after graduation in crime and in prison experience—neither of which qualifications makes it easier to deal with them.

The “habitual criminal” of the statute is one who, between his attaining the age of sixteen years and his conviction of the crime charged against him, has had three previous convictions and is leading persistently a dishonest or criminal life. Such a person, after being sentenced to penal servitude, may be ordered to be detained on the expiration of that sentence for a period of not less than five and not more than ten years, at the discretion of the Court. The charge of being a habitual offender can only be tried after he pleads or has been found guilty of the crime for which he has been indicted, and seven days’ notice must be given the offender of the intention to make such a charge. The Court has a right to admit evidence of character and repute on the question as to whether the accused is or is not leading persistently a dishonest or criminal life. The person sentenced to preventive detention may appeal against the sentence to a Court consisting of not less than three Judges of the High Court of Justiciary, in Scotland. The Secretary of State may, in the case of persons appearing to be habitual criminals and undergoing sentence of five years’ penal servitude or upwards, transfer them, after three years of the term of penal servitude have expired, to preventive detention for the remainder of their sentence.

Prisoners undergoing preventive detention shall be confined in any prison which the Secretary of State may set apart for the purpose, and shall be subject to the law in force with respect to penal servitude; provided that the rules applicable to convicts shall apply to them, subject to such modifications in the direction of a less rigorous treatment as the Secretary of State may prescribe. This means that the person convicted has to be dealt with by the same officers who have been dealing with him when he was called a convict prisoner. There is no reason to assume that their ability to make him better than he was will be increased because an Act of Parliament has been passed. A change of labels, however dexterous, does not alter the character nor will it change the atmosphere of the prison.

“Prisoners undergoing preventive detention shall be subjected to such disciplinary and reformative influences, and shall be employed on such work as may be best fit to make them able and willing to earn an honest livelihood on discharge.”

This subsection is wide enough to include all reform. It implies that prisoners are not subjected to such disciplinary and reformative influence, and are employed on such work as may be best fitted to make them able and willing to make an honest livelihood on discharge; but if this implication is justified, why should they not be placed under helpful conditions from the first day of their imprisonment? To one who is not a legislator it appears foolish to insist that offenders should be placed under conditions which do not fit them to live honestly outside prison, and that this process should be repeated until they have become habitual criminals, before it is ordered that steps shall be taken for their reform. What are the influences ordered by Parliament, and what is the work they have to be taught which will make them able and willing to earn an honest livelihood? Surely no Member of Parliament is credulous enough to believe that the influences and the work that will tend to make one man better will be suitable to all men. Even Members of Parliament do not all conform to the same rules, and there are as many differences among criminals as among legislators.

“The Secretary of State shall appoint for every such prison or part of a prison so set apart a board of visitors, of whom not less than two shall be justices of the peace, with such powers and duties as he may prescribe by such prison rules as aforesaid.”

“The Secretary of State shall, once at least in every three years during which a person is detained in custody under a sentence of preventive detention, take into consideration the condition, history, and circumstances of that person, with a view to determining whether he should be placed out on licence, and if so on what conditions.”

“The Secretary of State may at any time discharge on licence a person undergoing preventive detention if satisfied that there is a reasonable probability that he will abstain from crime and lead a useful and industrious life, or that he is no longer capable of engaging in crime, or that for any other reason it is desirable to release him from confinement in prison.

A person so discharged on licence may be discharged on probation, and on condition that he be placed under the supervision or authority of any society or person named in the licence who may be willing to take charge of the case, or of such other conditions as may be specified in the licence.

The Directors of Convict Prisons shall report periodically to the Secretary of State on the conduct and industry of persons undergoing preventive detention, and their prospects and probable behaviour on release, and for this purpose shall be assisted by a committee at each prison in which such persons are detained, consisting of such members of the board of visitors and such other persons of either sex as the Secretary of State may from time to time appoint.

Every such committee shall hold meetings at such intervals of not more than six months as may be prescribed, for the purpose of personally interviewing persons undergoing preventive detention in the prison, and preparing reports embodying such information respecting them as may be necessary for the assistance of the Directors, and may at any other time hold such other meetings and make such special reports respecting particular cases, as they may think necessary.”

A licence may be in such form, and may contain such conditions as may be prescribed by the Secretary of State.

The Secretary of State is the figure who has all power over the person sentenced to preventive detention; but the Act does not give him any power that he did not before possess. The Secretary of State has always held and used a dispensing power regarding the sentences passed on prisoners. He has not only remitted sentences, but he has imposed conditions while granting a remission. The Act does not even limit his power, for as the representative of the King he may liberate anybody if he sees fit. What the Act does is to set up machinery whereby the Secretary of State may be moved. Hitherto some personal interest must have been taken by him in a case before the exercise of the Royal prerogative would be recommended by him, for he would require to be prepared to justify his action if questioned in Parliament. The Act alters all that in so far as it applies and makes matter of routine what was exceptional.

The Secretary for Scotland is the head of all the departments of administration, and being the head of all, is not likely to know, intimately, much about any of them. He has his parliamentary duties to attend to, and the more they press on him the more administrative work must he leave to the permanent heads of the departments. One Secretary of State may obtain, and may deserve, a better reputation for administrative capacity than another; but it is absolutely impossible to expect any one man to know intimately the details of the work of all the departments. He is responsible for education, for instance, but what can he know personally of the educational needs of a boy in the east end of Glasgow ? Yet he prescribes for the education of all boys, as though it were easier to know about thousands than about one. As head of the Local Government Board, he has to state what amount of relief should be given to poor people in different parts of Scotland, what amount in grant should be given to distress committees, and what kind of work the unemployed should do. He never is a man who has had any experimental acquaintance with poverty, or who knows by experience what distress is entailed in a working-class family by dull trade; and manual labour has not been his occupation. Yet it is not the representatives of these people who instruct him. It is the Board of which he is the head, and whose members, however able they may be, are less in contact with those for whom they prescribe than he is. He is head of the prisons department, and he may now and then visit a prison; but even a Secretary of State, one might go further and say, especially a Secretary of State, cannot gain much intimate knowledge of prisons and prisoners from a casual visit. He has too many things to do, and the man who has too many things to do seldom does anything. He leaves that to his assistants. If Solomon undertook and tried to do as many things as a Secretary of State is supposed to do, he would lose his reputation for wisdom in a week; but he wouldn’t be Solomon if he tried; and so the Secretary of State, on the advice he receives, has to determine the fate of the prisoner who is under sentence of preventive detention. Once in three years every such person has to come under his notice. This can only be done through reports.

These reports have to be made by the committee set up under the Act, which committee is appointed by the Secretary for Scotland. It would be too much to expect that he should know the local circumstances in every case, and the men appointed may only be those recommended to him by his officials. That these will be men of good repute there need be no doubt, but there is no reason to suppose that they will be the men best fitted to represent the public, or most likely to have an intimate acquaintance with the conditions under which the prisoners have lived. If the officials had themselves shown any aptitude for dealing with prisoners in a reformatory way, there might be some reason for assuming that their nominees would be persons whose experience of life and the character of whose abilities would be of such a nature as to fit them for the work they are supposed to undertake. Men of ideas, especially if the ideas are not officially approved, are not at all likely to find themselves nominated for such work. They would cause trouble, and it is better that things should not be done than that Israel should be disturbed.

The committee have to meet at intervals for the purpose of personally interviewing those who are under their care ; and the value of their reports will depend on the intimacy of the knowledge they gain regarding the persons interviewed and on its accuracy. Apparently they need not meet more frequently than once in six months. Such a provision is too nakedly absurd to deserve discussion. Apparently they have to report to the Prison Commissioners, who report to the Secretary of State. The position is therefore something like this—that prisoners after they have served prolonged periods in prison may be transferred to another part of the establishment in order to be reformed. In their new quarters the treatment they receive is to be less rigorous than it has been. The influences under which they have to be brought are described but not defined. The officers may be the same as those who were called warders in the other part of the prison, but they may have a new name—perhaps a new uniform. If the person satisfies the Secretary of State, whom he will never see and who knows nothing about him personally, that he is a reformed character, he may be liberated on licence; and he may seek election to the ranks of the licensed once in three years. His conduct and record will then be considered. What will determine the character of the record obviously is the impression he makes on those who come into contact with him. That is to say, he will mainly depend on the report of the warder, for after all, does he not know most about the man? He certainly sees more of him than does any other body. A form will be devised which he will regularly fill in. Government institutions are notable for forms. It will provide for a record of the prisoner’s conduct, behaviour, intelligence, and all sorts of things, and will no doubt be as ingenious a production as any of the numerous specimens which result from our practice of government by clerk. The warder will report to the head warder, who will report to the Governor. The Medical Officer mil report as to the health of the person, and all the reports will go on to the Prison Commissioners, and from them to some clerk in the Scottish Office, who has satisfactorily passed a Civil Service examination on the Boundaries of the Russian Empire, the death of Rizzio, or some such important educational subject, and who has never had any opportunity to know anything about prisoners save what can be learned from books, reports, and an occasional visit to prison. The reports will be carefully checked, weighed, and summarised, and the Secretary of State will sign the order made for him.

It is perfectly obvious that the higher up in the official scale one goes, the less intimate knowledge of the fives of prisoners, of the social conditions under which they lived outside, and of their needs, can you reasonably expect to find as things are at present arranged. The man who has the best chance to get a licence under the Act is the man who can dodge best.

All our experience points to the fact; and it is not uncommon for the most objectionable character, by subservience and sycophancy, to impress favourably those who have the dispensing of privileges, and this is not confined to prisons or prisoners.

When a prisoner is liberated on licence from a place of preventive detention and placed under the supervision or authority of a society or person, the society or person has to report in accordance with regulations to be made to the Secretary of State, on the conduct and circumstances of the licensee. The licence may be revoked at any time by the Secretary of State, when the person licensed must return to prison. If the person under licence escapes from the supervision of those under whom he has been placed, or if he breaks any conditions of the licence, he forfeits it altogether, and may be brought before a court of summary jurisdiction and charged with breach of licence, and on proof be sent back to the place of preventive detention. The time during which a person is out on licence is treated as a part of the term of detention to which he has been sentenced; unless he has failed to return after his licence has been revoked, in which case the time during which he may have been said to have escaped does not count as reducing the term of his sentence. The conditions of licence may be withdrawn at any time by the Secretary of State, and the person licensed be set absolutely free ; but in any case, after he has been out on licence for five years the power to detain him lapses, provided he has observed the conditions of his licence during that time.

In both the Borstal and the Preventive Detention Institution it is intended to teach the inmates habits and pursuits that will be useful to them in the world outside. What these are will altogether depend on what is to happen to them on liberation. No institution has yet been devised that even remotely resembles anything like the life that its inmates have to anticipate.

A great deal has been written about the advisability of teaching trades to persons in institutions, but the writers are never themselves artisans, and if they had any practical knowledge of the subject they would not write; there would be nothing to write about. More goes to the learning of a trade than the handling of the tools. Men have not merely to learn how to do a thing, but how to do it in association with other workers. They learn the trade not from the lectures of a teacher or the instructions of a foreman, but from watching the work of others, and imitating or avoiding their methods, as seems most suitable. Take the two best tradesmen in almost any workshop, and you will find that they set about their work each in a different way—each in the way he has found best suited to himself. The apprentices learn from them ; and the lad or man who wants to learn a trade, is ill-advised indeed if he goes to a workshop where there are as many apprentices as journeymen.

It used to be said that the first year of a joiner’s apprenticeship was served in sweeping the shavings and in boiling men’s “cans”; and there was a good deal of truth in the statement. The best tradesmen I have known spent the first part of their apprenticeship knocking about the workshop, fetching and carrying for others, and unconsciously receiving impressions and gaining knowledge. The worst I have ever known were one or two whom the foreman thought, when they entered on their apprenticeship, to be too old for him to put to such work, and who were chained to the bench right away.

In an institution where it is undertaken to teach lads or men trades, not only are the conditions less favourable than those outside, but they are actually opposed to them. In fact, you have a company composed almost entirely of apprentices. There are no journeymen. There is only a foreman in the shape of the instructor; and as the longer he is there the more out of touch he is with the changes in method that have taken place amongst his fellow-tradesmen outside, he is only capable of telling his apprentices how he would do the thing, which in a workshop they might do better by following a plan more suitable to them. If he has to overlook their work they cannot be overlooking his; and while he is criticising their efforts and keeping them in order he cannot be showing them an example.

Every tradesman and every employer knows that it is an important question, not only whether a man has served his apprenticeship, but where he has served it. Of course, under the most favourable conditions some men do not become good tradesmen ; they may have gone to the wrong occupation for them ; but there are conditions that are generally more favourable than others for the production of capable workmen, and these conditions cannot possibly exist in an institution. Exceptions trained there may turn out passable workmen and may find work outside, but the result of trying to teach trades in an institution will be that at considerable expense you will increase the number of bad tradesmen ; and there are plenty.

I do not say that nothing can be taught in an institution. Many things are learned there. The whole point is that they are not the things that make for efficiency outside.

It is easily seen how a man who has not himself been trained in a handicraft may believe that it can be taught as well in one place as another, although if you consider his own occupation and suggest that his profession too might be taught anywhere, he will readily see objections. The people who are notably interested in prison reform are largely drawn from the professional classes and from the well-to-do. It may be quite possible to teach a prisoner or the inmate of a reformatory to acquire the habits and the manners of an independent gentleman. Of the feasibility of the proposal, were it ever made, I am not qualified to speak; but, as an observer, one cannot help seeing that many of them have already acquired the habit of doing as little useful work for themselves as possible, and of expending a good deal of energy in directions that are not socially productive. The clergyman would reject as impracticable any proposal to train the reformed in an institution for entry into his profession; and yet abundance of quiet and of time for study could be obtained there, and there does not seem to be anything to hinder the teaching of theology, of literature, or of philosophy, from taking place within its walls.

There is, of course, the question of brains. It is a great mistake to assume that brains are the monopoly of any class, or that they play a more prominent part in the work of professional men than in that of others. So far as the training is concerned, there is no ground for assuming that selected inmates of reformatory institutions could not be had who are as well qualified by natural endowments to receive instruction of an academic character, in as large numbers, as others who would be fitted to receive instruction in the working of wood or of metal. Of course there are other reasons why ministers should not be trained in prison. There is the question of moral character; and though reformed desperadoes have become noble beings before now, I do not think that even the most enthusiastic evangelist would consider it safe to assume that a man who has failed to conform to the laws of the community is a safe person to train for the ministry.

This question of character would not be so generally admitted against any proposal to train the inmates of a reformatory institution as lawyers ; but although a man might acquire all the useful information and general knowledge that are required for examination as a preliminary to admit him to the study of the laws of his country; although he might master the text-books and become learned in the records of legal decisions quite as well in a prison as in a lodging outside ; no lawyer would admit that thereby he could qualify to practise his profession. He would insist that there is something more required in his experience than the mere knowledge of the laws and of case-books. Being a lawyer, he could set out at length what that something is.

So there is something that marks off the man who has been trained under the artificial conditions which exist in an institution from the man who has been trained outside. I knew of a blacksmith who was a very useful tradesman while he remained in the institution where he had learned that trade. He obtained work outside on several occasions, but he lost it always, not through any misconduct on his part, but through sheer inefficiency. Some things he could do, but most things he could not do; and his employers found him an unprofitable servant, partly because of his limitations and partly because his methods impaired the efficiency of those with whom he worked. In my day I have served an apprenticeship both to a handicraft and to medicine, and I have no doubt whatever that it would have been as easy for me to train for my medical qualification in prison as to have qualified myself as an artisan in an institution.

It is assumed that what the offender needs is above all to be trained in habits of obedience, as though that were not what he has always been taught when in any prison; and much good our training has done him.

I know as little about military affairs as the military men who are appointed to manage prisons and prisoners know about the duties they undertake when they are appointed, but I do know something about the worship of discipline. Discipline means not knowing more than the man above you, no matter how difficult it may be to know less. There must always be twice as much wisdom and truth in anything the superior officer does or says as there is in the actions or words of his inferiors ; and it is insubordination to behave in ignorance or in contempt of this great principle.

At school we were taught a story about a man named William Tell, regarding which the later critics dispute the accuracy. It seems that a high military personage called Gessler set his cap upon the top of a pole in the market-place and commanded the people to bow down to it. Tell refused to do so, and was seized and compelled to enter on a test of his skill in archery; and so on. Whether the story about Tell is true or not, there can be no doubt about the cap; in one form or other it is still a symbol of authority, to be saluted with respect by the common people. In Scotland we had a song about Rab Roryson’s Bonnet, but “It wasna the bonnet, but the heid that was in it,” that was the real subject of the ditty. Discipline pays no regard to the head that is in the cap. The cap is the thing, though it may be placed on a pole.

Everybody knows that the old cap of knowledge in fairy tales has no longer an existence, and that absence of what is called brains will not be compensated for by any covering of the skull, whatever pretence may be made to the contrary.

Of the virtue of obedience we hear a good deal, and if we look around us we will see evidences that it may be no virtue at all, but a vice. In one of the best known of his poems Tennyson describes the soldiers: “Theirs not to reason why: Theirs not to make reply”; and there are many who think it a noble thing to teach a man not to use the brains he has, and to die rather than show disrespect to his superior by questioning his competence. This may be a military virtue, but it is a civil vice. If it did not work outside so badly in practice, it might be allowed to pass unquestioned; but one has only to look around to see the result of its application. The men who come under its operation are not rendered more efficient citizens thereby, but are hindered by the training they have undergone from obtaining employment in industrial life.

Subordination there must be before there can be combined action on the part of men for any purposes, but there need not be senseless subordination. In any iron-work, for instance, where men work together, they each take their own and other men’s lives in their hands daily. When they are acting in concert a false step, a careless act, on the part of anyone, may bring injury or death on himself and others; and they know this and behave accordingly, or no work would be possible. For the inefficient person there is no room, and when serious work has to be done Gessler’s cap has no place; there is only room for William Tell.

Men discharged from the army find difficulty in obtaining employment. It is not that they are worse men than their neighbours. It is because they have received the wrong kind of training. Employers do not prefer others to them from any absence of patriotism, but from a desire for efficiency. They cannot afford in industrial occupations to have people about them who have learned that it is “theirs not to reason why.” They prefer those who have been taught to use all the sense they have in dealing with their work. In short, the person who during the most formative years of his life has been employed industrially, makes a better workman than the man who during these years has been taught to wait for the word of command before he does anything. Yet we have people going all over the country trying to convince their fellow-citizens that there is no salvation for us unless all young men are subjected to a period of military training, apparently in ignorance of the fact that those who have had that training have difficulty in competing industrially with those who have none. It may be true for other reasons, for purposes of defence, that we ought to learn to shoot, though for my part I believe that most men are more likely to be sick sometime in their lives than to be engaged in fighting with people of whom they know nothing. That would seem to be an argument for their being taught how to preserve and care for their own rather than how to destroy somebody else’s health; but Gessler’s cap is still in the market-place, and it is rude to say anything about it. Yet it is not the bonnet, but the head that is in it, that matters in the long run.

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