CRIMINAL JUSTICE
AV VISCOUNT TEMPLEWOOD
My love of history and reverence for tradition were once again stimulated when, as Home Secretary, I became the senior of the seven Secretaries of State. I came at the end of a long line that had started under the rule of the Normans. Not being men of letters, the early kings had needed a confidant to carry out their purposes. At first, they had found their man of trust in the Chancellor, but as he tended to live in London, they had kept with them a clerk known as the Secretary, the keeper of the King's secrets. The clerk, who was always at hand, steadily increased his influence until, under the Tudors, a Thomas Cromwell or a Robert Cecil, now called Secretary of State, became inpractice the Prime Minister of the country. When the work was too great for one man, it was divided between two and sometimes three secretaries, and eventually, in 1782, was formally delimited between a Secretary of State who was responsible for Home Affairs, and a Secretary of State who was responsible for Foreign Affairs. Shelburne, the first Home Secretary, being a peer, took precedence of Fox, the first Foreign Secretary, and ever since, the Home Secretary has always retained his precedence in the Government hierarchy. The family of twins has now grown to a
family of seven, but the office is still in theory one and indivisible. Each Secretary of State is competent to carry out the duties of every other Secretary of State. I myself, for example, twice acted for the Home Secretary when he was abroad and I was Secretary of State for Air, the most junior of the Secretaries of State.
These details provided me with a series of coloured illustrations for the great volume of British history. They showed me in miniature the gradual change from personal to parliamentary government, the steady increase, usually expedited by war, in the Government's responsibilities, and the growing need to reallocate departmental duties in a modern state.
The first batch of papers that I found in my tray was typical of these developments — a veritable treasury of historic relicsand modern needs — warrants for my signature authorising the Lord Chancellor to issue patents under the Great Seal, approval of the pay of the bedesmen of Ely Cathedral, the appointment of a Recorder, a circular for magistrates, a question of prison discipline, the rules of an industrial school, the report of a factory inspector, the draft of a royal speech, the homage of a Bishop, the privileges of a County Borough. When I looked at a collection that would have done credit to Sir Thomas Browne's cabinet of curiosities, I could well understand why the Home Secretary had been described as the residuary legatee of the Government. Nor were my first files in any way exceptional. Day after day the same kind of miscellany would arrive — great documents on superb paper, swelling with monumental English, humbler sheets from the Stationery Office filled with the jargon of Whitehall, the old and the new, the picturesque and the prosaic, and when from time to time there was included the red file of a capital case, the solemn and the grim. There was certainly no monotony aboutan office of this kind.
The Secretary of State's room filled me with gloom. Why am I so susceptible to my cabinet de travail? Some of my friends can work equally well anywhere in any conditions. I looked with admiration at the officers in the two wars who could produce superb reports in noisy barrack rooms. I could not follow their example. Like Buffon, who could only write his books in a classical summer-house amidst flowers and avenues, and Glück, who could only compose music in the open air with a bottle of champagne at his side, I needed congenial surroundings for any good work. Such sensibility has often been a nuisance not only to myself, but
also to my wife, my friends and secretaries. Good or bad habit, I have never been able to rid myself of it; and the room in the Home Office had all the sombre heaviness left by Palmerston'sattempt to graft Italian Renaissance on Victorian convention. It was essentially the bureau of the Minister, who on the Continent, is euphemistically called the Minister of the Interior, but who inactual practice is the Minister of the Police. The Home Office, although there have been disturbed periods when the maintenance of internal order has become almost the sole pre-occupation of the Secretary of State, was much more than a department of coercion. Even though several of its social services had in recent years been transferred to new offices, it had already been expanded into one of the great departments of the future Welfare State. The Secretary of State's room took no account of the change. In particular, the most prominent feature in it was a vast Victorian writing-table upon which was placed a card with the line from Juvenal: Nulla unquam de morte hominis cunctatio longa est — »No delay is ever long when it is a question of death.» — and a calendar in which certain days were marked with red. The quotation was a sententious reminder of the three weeks of life that a murderer was allowed before his execution. The second was a notification of the date for which the execution had been fixed. These mementoes of the scaffold repelled me. I was well aware of my responsibility for the exercise of the prerogative of life and death and I did not need to be reminded of it. I knew also that my excellent advisers would keep me informed of the proper processes of the law without my having to follow them hour by hour. The Latin quotation seemed to me altogether objectionable. Hangings are grim enough in themselves, and any Home Secretary is bound to think about them. They do not, however, need moralising quotations to underline their blackness and to keep them morbidly in his mind. I remembered Madame de Staël's protest against her friends who applied their wit to the grim events of the French Revolution. The guillotine was bad enough »Mais montrer l'esprit faire des phrases, quelle persistence de la vanité dans une telle scène!» At all events, I couldn ot bring myself to sit at a writing-table with these dismal souvenirs, and I had them at once removed. So far as I was concerned, I thought the more and not the less of my duties when they had gone, and started upon two years of hard labour in which I set myself to humanize and rationalize rather than to sentimentalize our penal methods. Philip Sassoon, ready as always to give his
advice, agreed with my view of the room, and together we gave it a new look that obliterated the hindrances to my daily work.
Before I had time to leave Admiralty House, I already found myself plunged in the deep waters of the Home Office pool. The Prison vote was on the Order Paper of the House of Commons for the Friday after I became Home Secretary, and the report stage of a new Factory Act of three hundred clauses, for which I was now responsible, was already under consideration by a Standing Committee that was meeting twice a week.
With the Prison vote, I had an unexpected gift of good luck. My advisers had ready an excellent story for me to tell, and the time had just arrived for it to be told. The penal reformers in the Howard League and the Prison Commissioners in the Home Office had for some time past been insisting on the need of a fundamental change in prison methods. The old idea was to think only of prison treatment as a deterrent and to make it as severe and terrifying as possible. The gulf between prison and ordinary life was deep and almost unbridgeable. As soon as the gates closed on an offender, the full rigours of prison discipline were inflicted upon him, and only slowly and precariously could he gain the small privileges that brought him nearer to normal life. The reformers claimed that the treatment was based on a misconception of human nature. If a man starts at the bottom and knows that only after a long and uncertain period of trial he will be able to better his condition, he will have only the slightest possible incentive for improving his behaviour, and feel that he has nothing to lose and little to gain. The better course, the reformer surged, was to let him start in possession of certain privileges, with the knowledge that he would lose them if he behaved badly. They illustrated their argument by the effect that the chance of earning wages would have on a prisoner's conduct. If a prisoner could earn, even though it was only a few cigarrettes a week, he would have something to lose, and would not wish to lose it, and besides the good effect on his self-respect, would be less likely to become unmanageable and desperate. The experiment was tried on a very limited scale, but with such undeniably good results on individual prisoners and prison discipline, that the time hadc ome to extend it. The speech, therefore, that the officials wished me to make, took the form of a description of the excellent results that had already been obtained, and an announcement that the system was to be considerably extended.
I could not have had a brief better suited to stir my hereditary
interest in prison questions. It may be that I spoke all the better for being fresh to the post and free from over-preparation. In any case, I made what I believe to have been my most successful speech in the House of Commons. Although it was a Friday afternoon and a small House, I was able to feel from the debate the strength of the public interest in penal questions. Then and there, I was given unmistakable encouragement to proceed with a plan that I had hitherto only sketched in my imagination for gathering together into a single Act the lessons of a generation of experience and experiment that were ready to hand, and were only waiting to be used for bringing up to date our methods of penal treatment.
My first flush of enthusiasm gained warmth and colour from my surroundings. My advisers, seeing my interest in penal questions, entered heart and soul into the project of a comprehensive Criminal Justice Bill that was long overdue.
Alexander Maxwell in particular helped me with wise and stimulating advice. How lucky I was to have him! His predecessor, Russell Scott, a former Treasury official, was on the point of retiring as Permanent Secretary, and within a few hours of my entering my new office, I had to recommend a successor to the Prime Minister. Knowing the strength of the esprit de corps of a great department, I felt sure that it would be most unwise to select someone from outside the Home Office. Fortunately, in the Deputy Secretary, Maxwell, there were to be found the various qualities that the post required. Unruffled amidst all the alarms and excursions that periodically shake a Ministry of public order, he possessed the imperturbable assurance essential to a department of historic traditions. He had also a sensitive sympathy with many new ideas that made itself felt in his attitude towards crime and punishment. As a former Chairman of the Prison Commission, he had carried on the good work of Ruggles Brise, and had seen the need for many further changes in our system of criminal justice. This personal contact with men and women of all sorts turned his minutes into human documents, and his advice into practical proposals. The Prime Minister, by agreeing to his appointment, opened the way for him to become one of the leading figures in Whitehall.
Other members of the staff transmitted to me much of their crusading fervour. For instance, Alexander Paterson, nervous, assertive, transparently sincere, essentially the new man with the new ideas of prison treatment; and Lilian Barker, short haired and short skirted, usually in a tweed suit that, when she was sitting
beside me, made her look like a prosperous farmer, but none the less, an alert woman of the new world whose opinion on lipstick and cigarettes in women's prisons was as up to date as it was sensible. For instance also, several of the Prison Governors whom I visited in their prisons. Visits to prisons, particularly visits by a Secretary of State, were at that time uncommon. I did my best to start a new precedent. I had unearthed in the archives of the Home Office a correspondence between Addington, most complacent of Home Secretaries, and, my great-great-aunt, most persistent of penal reformers. Elizabeth Fry was determined that the Home Secretary should see for himself the horrors of Newgate. Addington was equally determined not to see them, and politely but very definitely refused the invitation. To have visited Newgate or any prison would have shocked his sensitive susceptibilities and might have shaken his rooted convictions as to the advantages of severe punishment. Elizabeth Fry, whose faith removed many mountains, had on this occasion to admit defeat at the hands of an agreeable but elusive Home Secretary. I now had the chance of a toning formy predecessor's sin of omission. I needed no pressing, and at once arranged a programme of personal visits to prisons all over the country.
One of my first journeys was to Dartmoor. I went there from Norfolk on a very stormy day in a small fighter aeroplane. The pilot was frequently driven off his course by the bad weather. When I eventually arrived, after one of the most bumpy flights that I have ever had, I told the excellent Governor, Captain Pannell, the hero who quelled the Dartmoor mutiny, that what I chiefly wanted was a long talk with him and a good look at the prisoners' records, rather than any formal inspection of the prison. The talk let me into the secrets of managing a great prison, and the records showed me how the worst offenders had often begun their careers of crime with some silly childish offence that had led to an equally stupid sentence of short imprisonment, and had ended with Dartmoor and penal servitude. One of the pages of the book set out the eigtheen sentences of a man offifty-four for offences involving thirty-four years of prison and penal servitude, that rose in a steep crescendo from a boy's mischief to attempted murder. Here, indeed, in the records kept in the porter's lodge was the human evidence against short sentences of imprisonment, particularly for the young. Here was the case for probation, approved schools and long periods of corrective training. Here, also, was the proof that repeated sentences
of penal servitude were no deterrent to the comparatively small number of desperate criminals, and that only by longer terms of preventive detention could the community be protected from their ravages. The visit to Dartmoor was one of many that I made to penal institutions of all kinds; in every case it was the talks with the men and women on the spot that influenced my line of thought.
These personal contacts I supplemented with a careful study oft he reports of the many committees that had investigated practically every aspect of crime. I have always been a quick reader, sometimes, in fact, too quick, for I have often exceeded any reasonable speed limit in rushing through books and reports. Inreading the penal textbooks, however, I did not need to put on the brake. I was working against time if the Criminal Justice Bill, as I contemplated it, was to be passed during my time at the Home Office. Beginning, therefore, with the most remarkable Reports of Sir James Mackintosh's Committee on the State of the Criminal Law in 1819, continuing with the equally remarkable Report of the Duke of Richmond's Royal Commission on Capital Punishment in 1864, and ending with the more recent inquiriesinto probation, approved schools, Borstal treatment, preventive detention, corporal punishment and mental responsibility, I did my best to absorb the countless recommendations that had emerged from scores of official inquiries. As at the India Office, so now in the Home Office, I was a gatherer rather than a sower. The harvest was ready, drilled and cultivated by skilled men and women, and needing only to be cut and winnowed in a combine machine.
I very soon had to make an important decision upon the best way of dealing with it. There were two ways of carrying out the recommendations of the experts and their committees. The first was to proceed with several small bilis, each dealing with a limited aspect to penal reform; the second, to collect all the proposals into a comprehensive Criminal Justice Bill. It was urged in favour of the first that as the small bills could be handed over to private members, there would be little or no demand on the Government's timetable. The objection against it was the loss of an impressive picture that would strike the imagination of the general public. I chose the second method, and began to work at the preparation of a Bill that would cover the whole field of criminal justice.
By November I was able to circulate to the Cabinet a memorandum containing an outline of my proposals. The Cabinet approved
the general lines, and gave me authority to draft a Bill. The following sex months were fully occupied with the drafting of the complicated clauses, and with what was perhaps even more important, the checking of the plan by many practical penal workers. I can imagine that few Ministers have ever had more interviews about a single measure than I had in connection with the Criminal Justice Bill. The notes that I have kept of these talks are amongst the most vivid and interesting of my papers. When I read them again after several years, I see once more the great company of devoted men and women with a vocation, socialworkers with their feet firmly on the ground, and students teaching the lessons of history, whom I met and consulted.
When I needed further inspiration, I found it in the lives of the great penal reformers that for human interest were second only to the lives of the Admirals that I had read when I was First Lord, the life for instance of John Howard, making the Grand Tour of Europe not to collect pictures and statues, but details about the misgovernment of prisons, of Elizabeth Fry, the first woman to enter British public life, of Jeremy Bentham, doctrinaire like many Liberals, and like Beccaria in Italy, helping to create a philosophy of penal treatment, and most of all, Robert Peel, greatest of Home Secretaries, whose career in the Home Office established once and for all the wisdom of attacking crime on the widest possible front and with a combined operation ofthe Statute law, efficient administration and a well-organised police. History, experience, experiment, each had its essential place in the background of the Bill. Theory only entered into itso long as it was supported by practice; sentiment, only so far as human sympathy was needed for dealing with human troubles.
Aided by Maxwell and this excellent staff, I had the Bill ready for the new session, and was able to obtain a Second Reading for iton November 29, 1938, eighteen months after my going to the Home Office. The speed, however, with which the first stage had been passed did not blind me to the length and difficulty of the road to be traversed before it could reach the Statute Book. The Bill, with its 83 clauses and 10 schedules, covered a very wide field. Even the non-controversial parts involved long discussions. There was, for instance, the question of alternative punishments, if the imprisonment of the young and corporal punishment were abolished. Everyone liked the idea of alternative punishments in theory, but any that were actually proposed were immediately attacked from one quarter or another. The proposal, for instance of com-
pulsory centres for naughty children who would lose a few half holidays by their attendance at first excited ridicule. The Detention Centres, intended to give an unpleasant lesson to older and more serious offenders, were criticised as little prisons for the young. Until the final passage of the Bill ten years later, the secriticisms persisted. None the less, the Bill as it was originally drafted, remained substantially intact, and subsequent experience has so far justified the experiments that we introduced in it.
Another part of the Bill that was certain to lead to long debates concerned the treatment of persistent offenders. Here again, while there was general agreement that the existing Prevention of Crimes Act was ineffective, there were differences of opinion as to any alternative. On the one hand, there was a widespread feeling against the indeterminate sentences of other countries; on the other, the obvious fact that short sentences did not protect the community from hardened criminals. The proposals in the Bill were a compromise. Whilst the sentence was to depend on the offender's whole record rather than the last offence, the period of detention was fixed within certain limits. A general agreement on the reasonableness of the clauses dealing with the question did not save me from a long discussion on a question that, though it was urgent, had been ignored for many years.
Of the really controversial parts of the Bill, the most troublesome was the clause that prohibited judicial flogging. The question of flogging had never failed to raise furious passions. Sensible men and women became almost demented when they talked about it. Any newspaper that started a campaign about it could be sure of a hysterical response. I must have annoyed both sides in the controversy. I could not regard corporal punishment as morally wrong, but neither could I find any evidence to show that it was an effective deterrent as a judicial punishment. I treated the question as I treated the other questions dealt with in the Bill, and as the available evidence was all against this particular kind of punishment, I came down in favour of abolishing it. Why did I ask for trouble in putting it into the Bill at all? asked many of my Conservative friends. »Leave it out and you will get your Bill trough with little or no opposition.» My answer was the same that I gave to many other criticisms of the Bill. »The Bill is not based on theory or sentiment, but upon the considered opinions of social workers, penal administrators and impartial investigators. One of the many inquiries that has produced it is the Cadogan Committee on Corporal Punishment. Nine completely im-
partial men and women of wide experience have unanimously recommended the abolition of judicial corporal punishment, on the ground that it is a survival of a discredited penal system and ineffective as a deterrent. How can I make a single exception of this recommendation when I am drafting my Bill on the findings of half a dozen similar inquiries?»
The clause at first excited less opposition than I had expected.I t was, however, only the quiet before the storm. By the time that the Bill had reached the Committee Stage, a raging agitation against abolition had been started by my old die hard opponents of Indian days, and by large sections of the Press. The front-linetroops of the Party passed many resolutions in favour of flogging in the meetings of the National Union of Conservative Associations. The chief Whip told me that nine-tenths of the Conservative members were against me in the House of Commons. None the less I persisted and carried the abolition clause in the Standing Committee by a substantial majority.
When war came in September, 1939, the Bill was almost on the Statute Book. All that was then needed was a week or two for the report stage and its passage through the House of Lords. There then followed two new developments that made the last lap take nine years instead of nine days. Chamberlain asked me to join the War Cabinet on the understanding that I freed myself from the departmental work of the Home Office and became Lord Privy Seal, and Maxwell, on behalf of the staff of the Home Office and the Government draftsmen who were working on the amendments to the Bill, told me that duties connected with the war would occupy all their time, and that, this being so, it was impossible either to complete the last stages of the Bill or to bring it into operation when it had been passed. Knowing this to be the view of my most sympathetic advisers, I sadly and very reluctantly accepted the inevitable, and left the Bill in cold storage in the Home Office when I crossed the road to the office of the Lord Privy Seal.
Would it have made a difference if I had deleted the controversial flogging clause? I do not think so. The insuperable obstacle created by the war would have remained. In the new conditions there was no chance for the kind of social reform contained in the Bill. Air Raid Precautions, and all that went with them, made acomplete black-out of the brighter world to which I had been groping. If, therefore, I had broken the solid front of the Bill by asurrender at one point, I should have gained nothing. By holding
to it, I made as sure as I could that when the Bill was eventually introduced by another Home Secretary, the prohibition would stand, and an antiquated anomaly be finally removed from the Statute Book. The important point was to keep intact a comprehensive and coherent scheme and begin a new and up-to-date chapter in our penal methods. Whilst I deeply regretted the delay of nine years, I at least had the satisfaction in the House of Lords of eventually helping another Home Secretary to pass an almost identical Bill, and to succeed where I had been checked.