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Criminal Law and Decency

Dick Hamilton reviews two books on justice and decency.

“The first time I sent someone to prison,” said Derek Spencer QC, the new Solicitor-General, in a recent interview, “It was rather like shooting him dead. I had the impression of looking down a gun barrel at him. Taking someone’s liberty away – even though I’ve sent people to prison since, doesn’t come easy to me; quite frankly. I have to summon up all my nerve to do it.”

He sounds a decent chap, and would probably endorse much of a recent paperback, Andrew Rutherford’s Criminal Justice and the Pursuit of Decency. The author, a former prison officer, is now Chairman of the Howard League for Penal Reform, which makes his opinion worth reading. His book lapses only rarely into the sociological jargon which makes lawyers despair, such as “The centre of the social space of a magistrate, therefore, is seen as his concept of self, expressed in his attitudes.” He prefers to quote direct personal experience.

One prison governor wrote:

“My background was very low-level working class, born and brought up in an Irish working-class ghetto in Liverpool. My dad worked as a stoker in a factory, and my immediate family had no aspirations towards doing anything at all in this line. To this day, my mother is ashamed of the work I do. It is the only job she knows that is worse than being a policeman.”

Another prison governor of a woman’s prison not so long ago, found that some of the staff made naked women jump up and down on the spot, as a punishment.

“I was absolutely appalled at some of it, and asked the Chief [Warder] ‘Where did you do your training?’ and she replied, ‘What do you mean?’ I said, ‘Well, was it Auschwitz or Belsen?’”

The author divides penal attitudes into three Credos which are slightly askew: the Punishment Credo, “the punitive degradation of offenders.” (But what about proper punishment short of degradation?)

The Efficiency Credo, “to dispose of the tasks at hand as smoothly and efficiently as possible.” (No bad thing in itself. But nobody, surely, has an eye to it alone.)

Finally, the Caring Credo, based on “liberal and humanitarian values” involving “empathy with suspects, offenders, and the victims of crime.” Easily said; but the more one sympathises with victims, the more sternly one is tempted to punish offenders, and vice versa. The author understandably condemns the “Flog ’em and hang ’em” school of penology, exemplified by James Fitzjames Stephen a century ago:

“I think it highly desirable that criminals should be hated, that the punishment inflicted on them should be so contrived as to give expression to that hatred.”

But he ignores the dangers of excessive leniency. When people deem the law incapable of punishing crime properly, they are tempted to take the law into their own hands. In one wellknown case the parents of a sexually-abused child poured boiling water over the offender’s genitals. And after some acquittals, ugly men have set upon Defendants with ugly weapons.

The author quotes many people of liberal views, but splits up their experiences across the book, so that they never emerge as a whole. This is a pity.

A chief probation officer wrote:

“I applied to join the probation service in Liverpool. They had about 30 vacancies, because nobody would go and work there, and I was the only applicant. There were about 25 magistrates on the committee, and on my application form I had put a line through where it said religion. During the interview every question, apart from one, was: Why had I put a line through that? Did I not know that the probation service started with the police court missionaries?”

He was turned down. It would be fascinating to know what happened to him next.

Decency sometimes emerges when least expected – even in the modern Russian police. Richard Lourie’s Hunting the Devil tells the story of the recent detection of a serial killer who committed 53 murders for sexual motives, savaging and tearing his victims like a wild animal. But he reckoned without a highly determined Inspector with a love of justice.

This Inspector, born of an ethnic minority, spoke Russian as well as his own language, and was brought into court one day to act as an interpreter. He was so fascinated by the legal process that he resolved to be a lawyer. Unfortunately, he got involved in a brawl, which debarred him from becoming an advocate. So he entered the police.

He found that his superior was sexually abusing a girl in custody – and he reported it. That took integrity and courage. Then he was asked to check on the validity of a conviction for murder. It was an open and shut case; the obvious suspect had been convicted. But the Inspector had doubts, and persisted until the real culprit was discovered. Then he was asked to deal with a minor corruption charge. He pursued all the ramifications until corruption was exposed right the way through the system.

Finally, he was assigned to the serial murders. He went through every file himself, and visited the scenes of the crimes again and again. Various suspects confessed everything at the drop of a hat. But the Inspector refused to take them at face value, and checked so carefully that their lies were brought to light, and they were released. His search for the criminal actually lasted longer than World War II – but he persisted, and the authorities backed him in doing so. The real murderer was finally convicted.

Even in our cruel modern world, decency and justice are always waiting for somewhere to happen.

Lord Cockburn wrote of the harsh penal measures which prevailed in Scotland at the beginning of the nineteenth century, “It has been said, in defence of the Court, that the times were dangerous. So they were. But these are the very times in which the torch of justice should burn most purely.”

Criminal Justice and the Pursuit of Decency by Andrew Rutherford is published by Oxford University Press at £7.99. (ISBN 019 285 2752)
Hunting the Devil by Richard Lourie is a Grafton Paperback costing £4.99 (ISBN 058 621 8467)

© R.G. Hamilton 1994

Dick Hamilton is a Circuit Judge in Liverpool and has written several books


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