8th March, 1982
Dear Mr. Hawksley,
I have read with interest your New Clause to the Criminal Justice Bill about judicial corporal punishment. Having made a study of this subject, I would like to offer some observations which you may find helpful.
1. I hope you, and your colleagues who are supporting you, will not rest your case too heavily on the deterrence theory. All past attempts to reintroduce judicial corporal punishment have foundered, it seems to me, on this point: the opposition will no doubt quote the Cadogan Report and similar documents which demonstrate that corporal punishment had no special deterrent effect (though they should not be allowed to get away with any claim that it had no deterrent effect at all). You need to shift the terms of the debate away from the deterrence question.
The main case for corporal punishment, in my view, is not that it has any unique power as a deterrent -- nor does any other kind of penalty, unfortunately -- but that it inexpensively satisfies society's desire for retribution, a desire which should be met if social disorder, and disaffection with the political process, are not to grow.
Therefore, I suggest you ought to argue along the following lines:
"Corporal punishment may not be a special deterrent. But neither, as Labour members never tire of pointing out, are other punishments such as detention centre or Borstal, with their very high recidivism rates. At the time the Cadogan Report was written, it was still possible to believe that custodial sentences could be reformative; we now see that this was naive. And such punishments are phenomenally expensive. Since we now know that their only value is in the element of pure punishment which they provide, thus satisfying the public's need for retribution, why not do so much more cheaply and quickly by applying corporal punishment?
"This would, apart from anything else, enable the offender to pay his debt to society quickly and, having got the purely punitive aspect over with, to return immediately to his community and perhaps start on the programme of reformative treatment in the community which all of us now agree is the best hope for rehabilitation."
2. Another major problem I think you have to face up to is the question of delay, which arises when there is an appeal against sentence. This is what put an end to birching in the Channel Isles, and largely brought it to a halt in the Isle of Man long before the European Court ruling. As long ago as 1938 the Cadogan Report raised the point that corporal punishment delayed is ineffective and unfair: no boy should have it hanging over him for weeks or months while the appeal hearing is awaited. The punishment needs to follow quickly on the offence if possible, and certainly immediately on the finding of guilt. In last year's Isle of Man case, the Appeal Judge said the delay would have caused him to overturn the sentence even if there had not been other reasons for doing so.
Frankly I think the only solution is to accept that any boy could escape being caned or birched by appealing. This means in effect that the sentence is an optional one, and the offender is offered the choice of either corporal punishment or some other penalty. I would think many young offenders would rather take the birching or caning and get it over with than face a period in custody.
3. A third obstacle is the European Court ruling that corporal punishment contravenes the Convention on Human Rights. This really makes things very awkward. The only solution seems to me to be to build up so much public support that the Government is forced to defy the ruling. It is hard to imagine that, at the end of the day, the Council of Europe could really expel Britain over such an issue. Have you looked into the question whether the UK could derogate from this part of the Convention, particularly as the same article is being used to end corporal punishment in schools? It is a pity the Isle of Man has allowed itself to be diverted from its course by the ruling, but the UK ought to be less easily intimidated.
4. Coming down to details, I am rather surprised that you have fixed the age limits at 10 to 17 inclusive. 10 is perhaps rather young. My impression is that it is the thugs in the middle to late teens that the public particularly wants to see given a good thrashing. The spectacle of 10-year-old boys being beaten by a burly policeman is surely too easy for the opposition to make emotional capital out of; I should have thought that 12 would be quite low enough as a minimum age.
At the other end of the scale, why under 18 rather than under 21 as in the Isle of Man? Or indeed even higher -- in South Africa the courts can apply the cane to males up to age 30, which many people would support here.
5. I'm afraid I think you were unwise to specify the birch for boys of 14 and over. The birch is altogether an anachronism, taken originally I believe from the great public schools in the early 19th century. No schools use it nowadays, whereas the idea of a caning is still entirely current in people's minds because it remains a common punishment in some schools. Countries in Africa and elsewhere which retain corporal punishment as a court penalty, I understand, nowadays employ the cane irrespective of age group, and I believe that is the proper course.
The need to provide a greater punishment for the older boy is already met in your New Clause by the proposal for a higher maximum number of strokes for those aged 14 and over. Apart from anything else, the specification of the dimensions of the birch gives too easily the impression of a slightly absurd obsession with gory details. In any case, why are these particulars set out in the clause? This sort of detail has always been covered in regulations, not spelt out in the primary legislation.
6. A question closely related to the above point is raised by your subsection 9, whose wording seems to me faulty: it specifies what is to happen in the case of a child (which you have defined as over 10 and under 14) but not in the case of a young person (over 14 and under 18). In the Isle of Man, the cane (which was introduced in their 1960 legislation to replace the birch for boys under 14) was applied over the trousers, whereas the birch was inflicted across the bare buttocks, as was the case in Great Britain until abolition in 1948. Then in 1978 the Manx authorities made a rather fatuous ruling that the trousers would be left on in any future birching -- a political gesture made in an (unsuccessful as it turned out) attempt to ward off the Strasbourg ruling, and one which has never been implemented, as there have been no birchings since. In fact I doubt if anyone has ever been birched anywhere in the world except on the bare flesh; the birch over clothes is a nonsense, since a bundle of thin twigs makes little impact through clothing, unlike a cane.
The argument that the ritual of lowering the trousers and underpants is indecent and has unhealthy overtones is another point in favour of the cane irrespective of age. The Manx compromise which you have imported into your clause if subsection 9 means what it seems to imply, is the worst of all possible worlds and was arrived at by a series of historical accidents only.
On the other hand, there is one argument in favour of applying the punishment -- whether it is the birch or the cane -- to the bare flesh, which seems to me to have been insufficiently noticed: it makes the punishment more nearly equal for all.
Corporal punishment applied over the clothes will vary in its severity according to what those clothes happen to be. The boy wearing thick jeans, with perhaps back patch pockets providing another layer, and maybe deliberately wearing thick underwear, would be at a considerable advantage over the boy in thin trousers. This can be seen to add further unfairness to a form of punishment which is already difficult enough to make uniform in the severity of its application. I don't know whether the Isle of Man had any means of controlling this during the post-1960 period when, in respect of boys under 14, the birch was replaced with the cane over trousers. Their phrase about "ordinary cloth trousers", which you have borrowed, comes originally from the Approved School Rules 1933 and seems to me inappropriate in the quite different context of a court penalty. In an Approved School the authorities were of course already in control of what clothing was being worn (and in 1933 boys did not, I think, wear jeans in this country).
Perhaps the solution is to do what naval training schools used to do, and make the offender change especially for the caning into thin trousers or shorts provided by the authorities and kept by them for the purpose, with no underwear allowed. I believe something similar happens in some of the African countries.
7. To sum up the amendments to your clause implied by my points of detail:
s.1, line 6. "if the offender is a male under 21 (or 30) (or a male over 12 and under 30)...."
s. 2 - delete.
s. 3 - "the instrument shall be a cane of a type approved by the Secretary of State".
s. 7 delete.
s.9 "the whipping shall be inflicted on the posterior over clothing to be provided by the police authority and of a type approved by the Secretary of State" (or "on the posterior over the bare flesh").
Good luck with your efforts!
Yours sincerely,
C. Farrell
POSTSCRIPT: I have resisted the temptation to alter with hindsight what I wrote then. More than four decades on, I don't think I would change all that much -- though the proposal would fall on even stonier ground now that CP in schools has also long been abolished.
Incidentally, Hawksley neither replied to my letter nor took any notice of it: he did focus exclusively on the deterrence argument in moving his amendment, which, predictably enough, was roundly defeated in the House of Commons.
, tried to reintroduce judicial corporal punishment by moving a new clause to the Criminal Justice Bill then being enacted.