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It would be natural to describe the Queen's procedure as the rejection of the basic individual right of fair trial; indeed had Alice lived in the present decade, one might with reason have drawn the matter to the attention of the International Commission of Jurists. And yet there is a respectable body of current opinion which makes demands which are not really very different in their essentials from those of the Queen, demands made by penal reformers for treatment first and no trial at all. Psychiatric care may now be substituted for execution in some cases, but this reflects only a difference of opinion on the relative efficacy of the two methods of treatment. And the Queen could at least claim for her proposal the absolute certainty of preventing further crimes by the same offender.
The point of making this comparison between the Queen and the reformers is to raise again the question of punishment and responsibility, to claim that the very notions of crime, trial and punishment are in themselves such an important factor in the treatment of antisocial behaviour that we cannot afford to let them wither away. Some social and penal reformers may be aghast at such a claim, fearing that any such wilful deviation from the prevailing trend would lead eventually to the reintroduction of a purely retributive system; and in their eyes retribution conjures up, somewhat irrationally, pictures of pointless, brutal and in human punishments. Such fears are unfounded. It is not the efficacy of the various particular types of punishment which is at issue, but the efficacy of the whole conceptual scheme which some reformers seek to abolish.
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References
1 Carroll, Lewis, Alice's Adventures in Wonderland, Chap. 12.Google Scholar
2 Social Science and Social Pathology (1959), Part IIGoogle Scholar and Crime and the Criminal Law (1963).Google Scholar
3 Grant, C. K., Proceedings of the Aristotelian Society. 1955–66, pp. 83–108.Google Scholar
4 Crime and the Criminal Law, p. 95.
5 Ibid. p. 97.
6 I am indebted to Mr. Sparks for drawing my attention to this distinction.
7 The possibility of using completely new methods, such as the conditioning techniques advocated by Professor Eysenck in Crime and Personality (1964)Google Scholar, to build up a moral sense in certain types of offender does not affect the argument. Feelings of responsibility and guilt are an integral part of a well developed moral sense, and punishment, which is of course a form of conditioning, is the traditional and simplest means of reinforcement.
8 Quinton, A.On PunishmentGoogle Scholar, reprinted in Philosophy, Politics and Society, First Series, pp. 83–91, makes this point to rather different effect, that is to show that it is linguistically impossible to “punish” someone who is not “guilty”; “only the guilty can be punished because unless a person is guilty, unless a rule applies to him, no infliction of suffering on him is properly called punishment, since punishment is infliction of suffering as laid down by such a rule” (p. 90).
9 See Brett, An Inquiry into Criminal Guilt (1963), p. 70: “Criminal laws prohibit activities which are believed for some reason to be harmful to the community and accordingly wrong.” This analysis if correct brings out clearly the inherent value judgment.
10 Brett, Ibid. p. 77, stresses the importance of this formulation from the point of view of a jury considering questions of criminal guilt: “they must endeavour to put themselves in the defendant's place and ask whether they can truly say ‘I understand why he did this, but he ought not to have done it; if I had been in his place, I would not—or I hope I would not—have done it myself.’ If they cannot say this they should absolve him from guilt.”
11 Brett, Ibid. p. 68.
12 This is the outcome of some modern philosophical work on determinism: if it is impossible to predict others' actions in advance in such a way that they might falsify that prediction if the world were not deterministic, the fact that everything might be determined by the total state of the world immediately before does not destroy the power or importance of rational choice.
13 Brett, Ibid. pp. 207–213, suggests that the law should give up the attempt to lay down rules which are too specific: rather they should retain as the basic criterion for criminal guilt the idea of moral blameworthiness. While it is agreed that some of the current tests have gone astray, Professor Brett's suggestion would seem to leave the field open for an unwelcome vagueness.
14 Crime and the Criminal Law, p. 40.
15 See Prolegomenon to the Principles of Punishment, Proceedings of the Aristotelian Society 1959–60, reprinted in Philosophy, Politics and Society, Second Series, pp. 158–182, where Professor Hart makes a sharp distinction between the ideals of punishment and of reform: “Reform… now embraces any strengthening of the offender's disposition and capacity to keep within the law which is intentionally brought about by human effort otherwise than through fear of punishment. Reforming methods include the inducement of states of repentance or recognition of moral guilt or greater awareness of the character and demands of society, the provision of education in a broad sense, vocational training and psychological treatment” (p. 180). The point made above is that punishment is perhaps the most important method of achieving the reform of the normal offender, in that it helps to induce more than anything else such a recognition of moral guilt.
16 Hart, Prolegomenon to the Principles of Punishment, pp. 179–182.
17 Hart, Punishment and the Elimination of Responsibility (1962), p. 27.
18 Ibid. pp. 31–32.
19 Durkheim, writing on the normality of crime, Rules of Sociological Method, translated by Solvay and Mueller, Glenco Free Press (1950), pp. 65–73, suggests that a crime-free society is if not impossible at least undesirable: “there is no cause for self-congratulation when the crime rate drops noticeably below the average level, for we may be certain that this apparent progress is associated with some social disorder.”
20 Social Science and Social Pathology, Chap. VII
21 “Diminished Responsibility, A Layman's View” (1960) 76 L.Q.R. 224.Google Scholar
22 See McCord and McCord, Psychopathy and Delinquency (1956).Google Scholar
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24 Ibid. p. 60.
25 Social Science and Social Pathology, p. 245.
26 Crime and the Criminal Law, pp. 79–80.
27 Sparks, Richard P., “Diminished Responsibility in Theory and Practice” (1964) 27 M.L.R. 9.Google Scholar
28 5 & 6 Eliz. 2, c. 11 (1957).
29 (1964) 27 M.L.R. 9 at pp. 15–16.
30 Ibid. at p. 15.
31 Lady Wootton'a refusal is strange in that she bases her whole system on the extension of the concepts relevant to the abnormal into the field of the normal. Why the one-way traffic?
32 Psychiatry Today, 2nd ed., Pelican (1963), pp. 94–95.Google Scholar
33 Ibid. p. 110.
34 “Sin, Crime and the Psychopath” (1964) 27 M.L.R. 190.Google Scholar
35 Ibid. at pp. 192 and 195.
36 See above, p. 118, on polar generalisation.
37 Cmnd. 1191.
38 Ibid. para. 81.
39 Cmnd. 2306.
40 Ibid. para. 54.
41 Ibid. para. 73: the consensus of opinion among the witnesses before the Committee was that in about 95 per cent, of the cases there is no dispute as to the facts alleged, those concerned pleading guilty.
42 Ibid. para. 61.
43 Brett, op. tit., Chap. IV, argues forcibly for the abolition of all forms of strict liability: theoretically he is right, but in practice some of the reasons which he sets out for allowing convictions in such cases are perhaps of more weight than he allows.
44 This aspect of the problem has been dealt with effectively by Morris and Howard in their recent book Studies in Criminal Law (1964), pp. 147–196.Google Scholar They conclude that “power over a criminal's life should not be taken in excess of that which would be taken were his reform not considered as one of our purposes” (p. 175).