Retention of whipping as a judicial penalty and for prison offences
Incidence of corporal punishment since 1922
Lessons to be learned from the abolition of corporal punishment in England

Retention of whipping as a judicial penalty and for prison offences

There appears to be no immediate likelihood of Northern Ireland following the example set by the rest of the United Kingdom which, under the Criminal Justice Act, 1948, s.2, abolished whipping as a form of judicial sentence. A limited measure of reform was instituted in Northern Ireland under the Children and Young Persons Act (N.I.), 1950, s.54(6), which prohibits resort to whipping as a discretionary penalty for any person under seventeen years of age, but although Stormont [Northern Ireland local parliament -- C.F.], when enacting the Criminal Justice Act (N.I.), 1953, chose to follow the lead set a few years earlier by the Westminster Parliament by introducing new forms of prison treatment such as corrective training and preventive detention, it failed to make any provision for the complete abolition of whipping.

Power to order corporal punishment for prison offences follows much the same lines as in England and Scotland, being subject to the approval of the Ministry of Home Affairs,[1] and the offences punishable by whipping are those covered in the English Act of 1948, viz., mutiny, incitement to mutiny and gross personal violence to a prison officer.[2]

It is revealing, however, to note a striking difference in the maximum punishment awardable in the respective countries for such prison offences. Thus, whereas in England under the Prison Act, 1952, s.18 which replaces the Criminal Justice Act, 1948, s.54, the maximum number of strokes which may be imposed is:

in Northern Ireland, under the Prison Act (N.I.), 1953, s.14, the maximum punishment is:

Northern Ireland, it may be noticed, has elected to retain power to inflict corporal punishment for disciplinary offences in its one male Borstal institution, whereas no such power has ever existed in Scotland, and England dispensed with it under the Criminal Justice Act, 1948, s.54. There is no need to stress the severity of the potential amount of whipping which a prisoner in Northern Ireland may incur, but this is all the more difficult to explain in view of the remarkable fact that Belfast Prison, which is the only prison in the Province for every class of male prisoner, has not known a single case during the years 1922 to 1955 involving the exercise of corporal punishment for one of the recognised prison offences.

There was one instance in 1924 of threatened gross violence to a prison officer by a convict serving three years� penal servitude, but the sentence of ten strokes of the birch, awarded by the Visiting Justices, was suspended on condition of good behaviour.

Despite the traditional belief in the natural fiery temperament of the Irishman, the experience of H.M. Prison, Belfast, has been singularly free of the type of assaults which are given so much notoriety in the English newspapers, and reliance has been placed, with seemingly satisfactory results, on close confinement, loss of privileges and dietary punishment as the means of dealing with any prisoner bent on violently assaulting a prison officer.

To revert to whipping as a judicial penalty, the present position in Northern Ireland is that it is retained for all those crimes which in England, prior to the passing of the 1948 Act, carried a possible sentence of corporal punishment. It is not proposed to enumerate the motley collection of offences which fell into this category, but when considering later the incidence of whipping in Northern Ireland it is worth recalling the opinion of the English King�s Bench judges in 1938 as expressed to the Departmental Committee on Corporal Punishment.

In that (the Cadogan) Committee�s Report (Cmd. 5684 of 1938, para. 60) the judges are quoted as advocating the retention of the then existing powers for the crimes of garrotting (Garrotters Act, 1863, s.1), armed robbery, robbery with violence and robbery in company with another (Larceny Act, 1916, s.23(1)), procuring, and unlawful carnal knowledge of a girl under thirteen years by a boy under sixteen (Criminal Law Amendment Act, 1885, ss.2, 4), and living on immoral earnings and importuning by male persons (Criminal Law Amendment Act, 1912, s.7(5)).

Furthermore, the judges recommended that whipping as a penalty should be extended to male persons of any age convicted of rape or carnal knowledge of a girl under thirteen years. Consideration to the same problem of extending the ambit of whipping in respect of sexual offences was given by a Northern Ireland Departmental Committee in 1943. This arose out of a particularly bad case of rape upon a thirteen-year-old girl by a gang of six youths which was tried before Lord Chief Justice Andrews at the Belfast City Commission in January, 1943.

Following the realisation in that case of the absence of any legal power to impose a sentence of whipping for sexual offences by boys under sixteen years, the Murphy Committee of 1943, by a majority, recommended that the power of whipping conferred by the Criminal Law Amendment Act, 1885, s.4 (supra), should be extended to similar offences against girls under sixteen years and to cases of rape by boys under sixteen.

Suffice it to add that the Committee�s recommendation has never been translated into law in Northern Ireland. Other additions, however, exist to the pre-1948 list of "whipping" crimes in England. As already mentioned in an earlier article ([1956] Crim. L.R. 15) corporal punishment is authorised under the Civil Authorities (Special Powers) Act (N.I.), 1922, s.5, for arson; any offences punishable on indictment under the Malicious Damage Act, 1861; demanding with menaces with intent to steal (Larceny Act, 1916, s.30); any offence against the Firearms Act, 1920, in relation to the possession of firearms; and any offence against the Special Powers Regulations in relation to the possession of firearms, military arms, ammunition or explosive substances.

Incidence of corporal punishment since 1922

Justification for the continued retention of corporal punishment in Northern Ireland is not solely a question of statistics. Certainly Parliament at Stormont is likely to be actuated far more by the belief that whipping as a form of punishment is analogous to the death penalty in its efficacy as a deterrent to members of the I.R.A. and other illegal organisations. The scope of its operation is extremely wide and the unwillingness of Parliament to introduce even the limited reform of reducing the list of offences for which corporal punishment exists as a judicial penalty might be construed as indicating either unawareness or disbelief in the conclusions of the Cadogan Committee in 1938.

Before proceeding, therefore, to analyse the incidence of corporal punishment in Northern Ireland, and to attempt to draw any lessons from such analysis, it may be well to recall the principal findings stated in that Committee�s oft-forgotten but invaluable Report with its wealth of evidence, statistical and otherwise.

Three main conclusions were advanced: (1) there were, said the Committee, no offences for which long sentences of imprisonment were so ineffective as a deterrent that it is necessary, for the protection of society, to provide whatever additional element of deterrence may be afforded by the further penalty of whipping (para. 62); (2) all the available evidence failed to show that the introduction of a power of flogging has produced a decrease in the number of the offences for which it may be imposed, or that offences for which flogging may be ordered have tended to increase when little use was made of the power to order flogging, or to decrease when the power was exercised more frequently (para. 59); (3) the fear of corporal punishment does exercise a strong deterrent influence in restraining violent prisoners who would otherwise commit serious assaults on prison officers and that no other penalty would operate as an equal or sufficient deterrent (para. 75).

What then is the available evidence in Northern Ireland[3] whereby to judge the soundness of the Committee�s findings? Of the wide range of multifarious crimes punishable by whipping under Northern Ireland law, the records since 1922 show three offences only in respect of which a sentence of whipping has been imposed. As the following table shows, judges in the troubled years of 1922 and 1923 used their statutory powers in a concerted attempt to stamp out political terrorists and to a degree which has not been repeated in recent years. It is, moreover, not insignificant that no present member of the Supreme Court judiciary has ever imposed a sentence of flogging.

By far the largest proportion of these whipping cases (fifty-six out of the total number of sixty-nine) were combined with sentences ranging between three years� and twelve years� penal servitude, the remainder being associated with comparatively short sentences of hard labour. As in England before 1948, it will be noticed that armed robbery and robbery with violence are the crimes for which flogging has most often been incurred, but even in respect of these particular crimes no record exists of such a sentence having been given since 1942.

Indeed, the last occasion when corporal punishment was awarded in Northern Ireland dates back to 1943 in a case in which four men, discovered illegally drilling, were convicted of being in possession of explosive substances. Three of the prisoners, aged eighteen, nineteen and twenty years respectively, were sentenced to ten years� penal servitude and twelve strokes of the "cat", the youngest member of the group, aged sixteen years, receiving the astonishing sentence of twelve years� penal servitude and twelve strokes of a birch rod.

Allowing for the inherent defects of statistics based solely on the subsequent records of persons sentenced to corporal punishment, namely, their failure, first, to show what the man�s subsequent career might have been if he had not been flogged and, secondly, how far his subsequent career was influenced by the flogging and imprisonment respectively, since 1922 of the sixty-nine prisoners in Northern Ireland who have been flogged, five have subsequently been again convicted of offences carrying a penalty of flogging and another nine have committed other indictable offences.

With such a comparatively small number of cases to investigate it is dangerous to over-generalise, but the experience of Northern Ireland would seem to refute the Cadogan Committee�s conclusion (para. 55) that men who receive corporal punishment are more likely to commit other offences than those dealt with by imprisonment alone.

Lessons to be learned from the abolition of corporal punishment in England

One of the principal tenets of those who, in England, advocate the restoration of flogging is its likely efficacy in checking the present increase in crimes of personal violence. Other methods having been tried and found ineffective, so it is argued, the time has come to have resort once again to corporal punishment. Cases of gross and brutal violence against the person naturally excite special indignation, and in calling for the reintroduction of whipping the prime motive would really appear to be adherence to the principle of retribution, that violence must be met with violence.

With the continued existence of whipping as a judicial sentence in Northern Ireland it might be hoped that some useful information could be gleaned from the incidence of such crimes of personal violence in the Province. Unfortunately, the criminal statistics for Northern Ireland -- normally comprising about six pages only of the Annual Report on the Administration of Home Office Services -- are only a pale shadow of the criminal statistics for England and Wales compiled by the Home Office in London, or those of Scotland which are compiled quite separately by the Scottish Home Department in Edinburgh,[4] and consequently are not very helpful when endeavouring to obtain an accurate and detailed picture of the trends of individual crimes in the six counties [ = Northern Ireland -- C.F.]. No analysis, for example, is given of the indictable offences known to the police, and although this is done according to the number of persons found guilty the analysis is not sufficiently particular to compare, say, the number of cases of rape, indecent assault or carnal knowledge or, more important for our present purposes, the respective number of cases of aggravated robbery, felonious and malicious wounding.

In fact, of course, one of the main fallacies of the case presented for the restoration of flogging is the inability, or it may be unwillingness, to distinguish between, on the one hand, those crimes of personal violence which formerly carried a discretionary sentence of whipping, viz., armed robbery, robbery with violence and robbery in company (Larceny Act, 1916, s.23(1)), and, on the other hand, crimes of personal violence for which whipping has never been a possible sentence, viz., principally felonious and malicious wounding or causing grievous bodily harm (Offences against the Person Act, 1861, ss. 18 and 20).

Nowhere is the importance of maintaining this distinction revealed more than in the following comparative table which shows the crime rate in England and Wales for the respective crimes during the past ten years.[5]

Northern Ireland legislators examining these figures may, it is suggested, derive two principal lessons concerning the problem of corporal punishment. First, the steady increase in England in the number of felonious and malicious wounding cases -- "non-whipping" crimes -- is in no way related to the major reform instituted by the Criminal Justice Act, 1948. Secondly, and more important in that it tends to provide striking confirmation of the 1938 Committee�s findings, although there are fluctuations from year to year, the general trend of cases of aggravated robbery under the Larceny Act, 1916, s.123(1) -- the main whipping offences before 1948 -- has been on the downward side since whipping was abolished as a judicial penalty.

If reform of the law of Northern Ireland in regard to corporal punishment is ever envisaged there appear to be telling arguments from the English records in favour of its complete abolition as a court sentence, but it is feared that a negative attitude of leaving well alone is more likely, based on the absence for many years of any resort to the existing statutory powers by the judiciary.

Footnote by C.F.: It is believed that judicial CP in Northern Ireland was finally abolished in about 1968.