A person may be moved from one Borstal Institution to another, and from one part of the United Kingdom to another. He is to be “under such instruction and discipline as appears most conducive to his reformation and the repression of crime”—which is sufficiently vague. The only thing of any importance in this part of the Act is the provision for letting the offender out on licence. If it is used to board him out, some progress may be made; but if it is merely used to provide funds for some society of philanthropists to play with, there is little ground for the hope that it will do much for the offender.
The second part of the Act is more peculiar than the first. It is designed to deal with the case of the habitual offender, and as originally drafted it provided for retaining him in custody, if the officials thought proper, for the rest of his life. This would have been nearly as certain a preventive as hanging him, and would have been much more costly.
A consequence that might be expected to spring from the prevention of crime would be a diminution in the numbers of the police. It is their duty to arrest criminals, and if the criminals are shut up their occupation is gone. It is a striking fact that during all the discussions which took place on the measure, nobody suggested that as a result of its operation there would be any smaller number of policemen required. There was no likelihood of it; for crime will not be prevented to any great extent by the institution of “reformatories”—experience has shown that very clearly—but it will be diminished to some extent while the professionals are incarcerated. This has been tried and found insufficient and unsatisfactory. The new Act makes provision for the care of people who have been liberated from Borstal Institutions, and for the reformatory treatment of those who have become habituals after graduation in crime and in prison experience—neither of which qualifications makes it easier to deal with them.
The “habitual criminal” of the statute is one who, between his attaining the age of sixteen years and his conviction of the crime charged against him, has had three previous convictions and is leading persistently a dishonest or criminal life. Such a person, after being sentenced to penal servitude, may be ordered to be detained on the expiration of that sentence for a period of not less than five and not more than ten years, at the discretion of the Court. The charge of being a habitual offender can only be tried after he pleads or has been found guilty of the crime for which he has been indicted, and seven days’ notice must be given the offender of the intention to make such a charge. The Court has a right to admit evidence of character and repute on the question as to whether the accused is or is not leading persistently a dishonest or criminal life. The person sentenced to preventive detention may appeal against the sentence to a Court consisting of not less than three Judges of the High Court of Justiciary, in Scotland. The Secretary of State may, in the case of persons appearing to be habitual criminals and undergoing sentence of five years’ penal servitude or upwards, transfer them, after three years of the term of penal servitude have expired, to preventive detention for the remainder of their sentence.
Prisoners undergoing preventive detention shall be confined in any prison which the Secretary of State may set apart for the purpose, and shall be subject to the law in force with respect to penal servitude; provided that the rules applicable to convicts shall apply to them, subject to such modifications in the direction of a less rigorous treatment as the Secretary of State may prescribe. This means that the person convicted has to be dealt with by the same officers who have been dealing with him when he was called a convict prisoner. There is no reason to assume that their ability to make him better than he was will be increased because an Act of Parliament has been passed. A change of labels, however dexterous, does not alter the character nor will it change the atmosphere of the prison.
“Prisoners undergoing preventive detention shall be subjected to such disciplinary and reformative influences, and shall be employed on such work as may be best fit to make them able and willing to earn an honest livelihood on discharge.”
This subsection is wide enough to include all reform. It implies that prisoners are not subjected to such disciplinary and reformative influence, and are not employed on such work as may be best fitted to make them able and willing to make an honest livelihood on discharge; but if this implication is justified, why should they not be placed under helpful conditions from the first day of their imprisonment? To one who is not a legislator it appears foolish to insist that offenders should be placed under conditions which do not fit them to live honestly outside prison, and that this process should be repeated until they have become habitual criminals, before it is ordered that steps shall be taken for their reform. What are the influences ordered by Parliament, and what is the work they have to be taught which will make them able and willing to earn an honest livelihood? Surely no Member of Parliament is credulous enough to believe that the influences and the work that will tend to make one man better will be suitable to all men. Even Members of Parliament do not all conform to the same rules, and there are as many differences among criminals as among legislators.
“The Secretary of State shall appoint for every such prison or part of a prison so set apart a board of visitors, of whom not less than two shall be justices of the peace, with such powers and duties as he may prescribe by such prison rules as aforesaid.”
“The Secretary of State shall, once at least in every three years during which a person is detained in custody under a sentence of preventive detention, take into consideration the condition, history, and circumstances of that person, with a view to determining whether he should be placed out on licence, and if so on what conditions.”
“The Secretary of State may at any time discharge on licence a person undergoing preventive detention if satisfied that there is a reasonable probability that he will abstain from crime and lead a useful and industrious life, or that he is no longer capable of engaging in crime, or that for any other reason it is desirable to release him from confinement in prison.