The law must never be a laughing matter

By Frederick Lawton


WHEN a convicted criminal leaves court laughing and calling justice a soft touch, we should admit frankly: something is terribly wrong.

Declan Rooney, 20, was yesterday found guilty of causing tens of thousands of pounds worth of damage with his spray can. And the graffiti gang leader clearly has no respect for the law, nor for the judge, nor for society. Above all, he is not afraid of punishment.

When, as a Queen’s Bench judge between 1961 and 1972, I had to pass long sentences on villains, I never deluded myself that at the end of their sentences they would leave prison better men than when they went in. Nor did I think that they would be deterred from committing further crimes.

What a custodial sentence would do, I thought, was to show that society, in the only way it could, would not tolerate gross breaches of the law.

When sentencing those under 21 to either borstal training or three months in a detention centre, I thought that they would benefit from the discipline they would get there.

However, my successors on the bench may be wondering whether, when imposing custodial sentences, they are performing any useful social function. Prison sentences now lack even the appearance of retribution.


The modern prison is the product of 19th-century thinking. Before then, and for centuries dating back to Roman times, a prison was thought of as a place where those suspected of crime were confined until trial, and, if convicted, until they were put out of the community either by execution or banishment.

Imprisonment for short spells was sometimes used as a punishment for minor offences. More usually offenders suffered corporal punishment such as whipping, the pillory and the stocks.

In England in the second half of the 17th century, banishment meant transportation to the West Indies, in the 18th to the American colonies, and, after the American War of Independence, to Australia.

By the beginning of the 1840s, there were doubts about the justice of transportation […]

The solution seemed to be the adoption of a penal system which had been started in Philadelphia in 1807. This entailed building a new kind of prison, in which each prisoner was confined in a separate cell and not allowed to come into contact with others.

In 1842 a prison of this kind was built in London […] By the late 1850s, though, it had become clear that this system was causing breakdowns in the physical and mental health of prisoners.


In 1895 the Gladstone Committee advised another change: the object of a penal system should be rehabilitation. This was made the statutory policy by the Prisons Act 1898. It still is the policy — and it has failed.

Finding some kind of punishment other than custody would be a task for a new Royal Commission. There could be an extension of community service. It could be made more rigorous, in particular by making offenders join labour camps for longish periods to undertake work such as land drainage, coast protection and clearing industrial debris.


Then there is the problem of dealing with adolescents. Treating them in modified versions of public schools, as the borstal system set out to do, was a failure. Detention centres, too, are said to have been failures.

It has always mystified me why the Home Office has been so unsuccessful with detention centres. Perhaps an experience I had in the early Sixties when I visited one at Goudhurst, Kent, provides an explanation.

On going round, I noticed deficiencies in horticultural and agricultural equipment. I asked the warden whether I could help by supporting any request he might like to make for improvements. He said: “I would like a swimming pool for the boys.” I did not support that suggestion.

During my 26 years as a judge, many changes were made to the penal system. Presumably the Home Office thought they would be effective in reducing the crime rate. When new statutory powers were required to implement them, Parliament must have thought so, too.

I tried loyally to follow the new policies when sentencing. But there has been more and more crime.

But what if no new solution is forthcoming? May it not be necessary to reconsider the recommendations of the Cadogan Committee, made over 50 years ago and embodied in the Criminal Justice Act 1948, to the effect that corporal punishment should no longer be a judicial sentence?

Many nowadays would regard the restoration of corporal punishment as inhumane (a word used in the European Convention on Human Rights) and morally wrong. The use of the cat o’ nine tails, introduced in the latter part of the 18th century, probably is. Before then a whip was used.

But what morally is the difference between sentencing a young man who has been convicted of a bad case of violent robbery to 12 strokes of the birch and a year in jail, which was the old sentencing practice, and the modern one of putting the same kind of offender in prison for five years?

If a Royal Commission, after considering in depth all aspects of corporal punishment and weighing the historical evidence, concluded that it would curb violent crime to a substantial extent, ought it not to be brought back?

Sir Frederick Lawton is a former Lord Justice of Appeal. He retired in 1986.