The Criminal & the Community

by James Devon

When a person is arrested on any criminal charge he is first taken to the local police station, where the charge is entered. He is searched and placed in a cell, and if there is anything special in the charge against him, or in his appearance and behaviour, his treatment may be modified accordingly. In the great majority of cases the person arrested is only a petty offender at most. If he has money sufficient, he may hand it over as bail and be released with a notice that if he does not appear at a time and place specified his money will be forfeited and he may again be taken into custody. If he or his friends cannot leave a pledge for his appearance he makes acquaintance with the routine of administration. He becomes the tenant of a cell where he remains till the sitting of the court next morning. If the cell accommodation is fully taken up he may have company; and while every effort is made to prevent old offenders being placed in the same cell with those who are in for the first time, the best that can be done is bad.

Although prisoners are presumed to be innocent till they are found guilty, they are in many respects worse treated while waiting to be sent to prison than after they arrive there. This is not the fault of the police so much as that of the authorities who are responsible for the accommodation or the want of it. A drunk man may be a very helpless or a very intractable person, and little can be done for him till he is sober. His condition is such that it is quite clearly not the best practice to put him in a cell and leave him there. It is no uncommon thing to find that the drunkenness has masked some more serious condition; but even although there should be nothing behind his intoxication, the man is more liable to contract illness than a sober person. In less enlightened countries than ours such prisoners are not left alone, but are kept warm and placed under observation till they are sober. In our country they are less carefully treated. Drunk or sober the prisoner is in an uncomfortable position.

The police have difficulties to contend with that are not present in the prisons. The prisoners they arrest are not appreciably more dirty than when they arrive at the prison, but in the police cells there are not the same facilities for making and keeping things clean. There is no supply of free labour and not a generous provision of paid cleaners, and the cells in some cases seem to be constructed more with a view to saving the expense of cleaning than to providing for the reasonable custody of prisoners. Wooden floors are less easily cleaned than asphalt or cement, and both in the prisons and the police cells this seems to determine their construction. It is a piece of senseless cruelty in a climate such as ours, as anyone can easily find out for himself if he cares to try. In such a place even in warm weather it is difficult to keep the feet warm, and cold feet do not improve a man’s temper.

The newer cells are lined with glazed brick in deference to some sanitary notions. It is a great pity that the apostles of sanitation cannot be compelled to live in the places they design. No doubt the glazed walls are more easily cleaned than whitewashed brick would be, but they strike a chill into the occupants of the place, and moisture condenses on them in a way that it does not elsewhere. Cleanliness let us have by all reasonable means, but to be clean it is not necessary to be uncomfortable; and such methods are enough to disgust with cleanliness those who have to submit to their results. Another objectionable feature of the cell is the presence of a water-closet in it. Surely the sanitary expert has been napping when this was arranged; but here again the matter seems to be one of expense. The reasonable way would be to escort prisoners to a place when necessary, but that would mean the provision of a proper staff of warders. The cell is otherwise unfurnished save for a raised slab of wood which takes the place of a bed. There is no bedding provided. It is a barbarous provision for the man who is presumed to be innocent. As for his diet, there is none prescribed. He may have food sent in or he may have money to purchase it. If not, he will have to get along on bread and water, not having been proved guilty. In the morning he will be brought before the court, and if he asks for it he may have water to wash himself before appearing there. Cleanliness is not enforced, though it may be encouraged; but judging by their appearance when admitted to prison, not many have sought the water-basin during their stay in the police cell.

By the Summary Jurisdiction Act, 1908, it was provided that persons should not be kept in police cells for more than one night, and all persons remanded were sent to prison, to their distinct advantage; for there the staff and conditions are arranged for the custody of prisoners, and they are free for the time being from the noises incidental to the arrest and confinement of drunken persons, while they have a better chance of having their needs attended to. This procedure entailed more work on the officials, a difficulty that could easily have been overcome by a small increase in the staff. It meant not more trouble than is necessitated in the case of persons remitted to higher courts, and if the interests of the prisoners who are presumed to be innocent had been considered the Act would have remained in force; but their convenience was not represented so powerfully as that of the officials, and reversion to the old, bad plan of retaining prisoners in the custody of the police has taken place. They may be kept in the police cells for forty-eight hours.

Some of those who are arrested may be suffering from injuries or disease. To attend these a casualty surgeon is employed. When he is asked to do so, it is his duty to call and see prisoners who complain or who are obviously ill. His pay is small; and from it, until lately, he had to provide any dressings and medicines that were required. It is not part of his duty to see every prisoner before the court begins. Occasionally people are sent to prison who should never have been brought before the courts at all. Both police and surgeon are placed in a very difficult position by the system. The police may err in their judgment as to the condition of a prisoner and may fail to direct the attention of the medical man to him. On the other hand, if they call in the surgeon too frequently to see persons who are not in need of his services he may reasonably complain, and dissensions may arise on this account which will make the working of the system irritating to all parties. In order to their comfort, surgeon and police have to make allowances for each other and to stand by one another in a way that is not likely to make for such efficiency of service to the public on the part of either as is desirable. When some extraordinary case attracts attention blame is lavishly showered upon the police; and it is generally undeserved, at least in the form it takes. They are not to blame because of their failure to do things for which they are unfitted. They may be to blame for not protesting against duties being thrust upon them which should be performed by others. It is misdirected economy to underpay medical men, and until this is recognised accidents may be looked for and incidents will occur to shock the public because of the injury which some person has inadvertently sustained.

In the Court the Burgh Procurator-Fiscal may prosecute, or his depute may act for him. In Glasgow with all its police courts there is only one trained lawyer who prosecutes. The great mass of the charges are conducted by his deputes, who are invariably police officers. The only witnesses in many cases are constables and the prosecutor is one of their superior officers. It is a state of affairs that does not impress an outsider by its wisdom, and it is not regarded by those who come within its scope as being fair. The police have too many duties thrust upon them.

On the bench, in the great majority of cases, there is an untrained judge. In Glasgow there is only one stipendiary magistrate, who is a trained lawyer. The others are magistrates of the city, who have to discharge a multitude of duties, among which is that of sitting in judgment on their fellow-citizens. They have been elected to the Town Council to serve their constituents as members of that body, and in due course they are made Bailies. Nobody pretends that they are thereby endowed with a knowledge of the law, experience in weighing evidence, or the judicial mind; but they are invested with judicial powers, and in certain cases can send men to prison for twelve months. They are usually men of excellent character and intentions, but unfortunately both of these qualities may exist with utter incompetence from a judicial standpoint. The draper would not admit that a grocer could exchange businesses with him and the concern go on as well as ever. Each man knows that to learn his own trade requires time, to speak of nothing else; but they appear to believe that all that is required to enable them to execute what in law stands for justice is the possession of a chain of office. Were there any foundation in fact for such an idea many weary years of study would be saved; for it is easier to get a chain than a licence to practise. That they are usually quite satisfied of their own fitness for the work goes without saying; and it would be a piece of vanity as harmless as it is foolish if the liberty of so many were not placed in jeopardy by it. It has been urged as an argument against the appointment of trained lawyers that there were fewer appeals from the decisions of the Bailies than from those of the professional man. This is meant as a testimony to their superior fitness, presumably; for the only relevant inference from the statement is that the Bailie is better qualified to act as a judge than the man who has had a training in the work. It is a startling testimony to the superiority of inspiration to reason. There are no testimonials from those who had appeared before the courts either as prisoners or agents, however; and the plea is not convincing. That it should ever have been made is a striking commentary on the fitness of those who made it; or on their modesty.

Appeals from police-court decisions can only be made on a case stated by the magistrate whose judgment is appealed against. Trained men are not free from liability to error, and they recognise the fact. If a case is stated in such a way that the issue is obscured there is no use in attempting an appeal; so that freedom from appeals may as readily be a testimony to the inefficiency of a judge as to his efficiency. It may afford a presumption that he is not only unfit to try a case, but not to be trusted in stating one. To suggest that it affords evidence of the superior ability of the draper and the grocer to the lawyer in law matters, is to presume too much on the credulity of the public. If they are really so splendidly endowed it is surprising that they should not place their services at the disposal of one another when a question of trade causes dispute. In that they might be expected to have knowledge at least; but though Bailies have power to send men to prison they are not empowered to try civil causes involving the property of their fellow-citizens. That is to say, they have power over the lives, but not over the property of the lieges. This is surely a grave injustice; either to them or to the prisoners.

In every court where a bailie presides he is aided and advised by an assessor, whose duty it is to keep him within the law. It is a somewhat farcical situation. The prisoner is there because he is charged with breaking the law; the bailie is there to try him on the charge; and behind him is a legal gentleman to see that the judge does not himself break the law in the process! He may either take the advice of the assessor or disregard it, but he is the responsible magistrate. If he follows the assessor’s advice, that official is in the exercise of power without responsibility, which is not a position in which anybody should be placed; if he follows the inner light, the “safeguard” which the assessor is supposed to be is useless.