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Crime and Punishment


When Pantagruel arrived at Myrelingues he found that Judge Bridoye, after carefully considering all the circumstances of a case, was accustomed to decide it by the dice. The results produced by the application of this singular method of administering justice, although, doubtless, sufficiently remarkable, could hardly be more contradictory and perplexing than the sentences which at the present day are inflicted upon criminals in England. “Day by day,” says Mr. Justice Hawkins (who, in conjunction with Mr. Poland and Mr. Hopwood, discusses the question of “Crime and Punishment” in the current number of the New Review), “attention is called to some inequality of sentence so glaring that one falls to wondering how such things can be. For a cruel and violent injury inflicted on the person, perhaps, of a woman or child, a comparatively nominal punishment is awarded, while a trifling act of dishonesty is visited with extreme and merciless severity. Nor are sentences,” the learned judge proceeds to observe, “imposed by different Courts for offences of the same kind congruous among themselves. For a trifling act of theft one Court will assign a few weeks' imprisonment as sufficient expiation, another under similar circumstances will assign a term of penal servitude.” In spite of the complacency with which Pantagruel regarded the combined humility, piety, and impartiality of the “Bridoye” judicial method, we agree with Sir Henry Hawkins that the continued working of its English analogy is highly detrimental to the interests of justice. It is by no means a simple matter, however, to find a satisfactory remedy for the evil. The Council of Judges recommended the establishment of a Court of Criminal Appeal, and a considerable section of legal and public opinion declared itself in favour of this recommendation; but the time of Parliament is too fully occupied with contentious party measures to permit a Bill for the constitution of a Court of Criminal Review to come at present within the range of practical legislation, and the opinions of the minority of lawyers and laymen who dissent from the proposal are both too pronounced and too forcible in themselves to render its speedy enactment probable, even if the Legislature had been in a position to entertain it. It becomes necessary, therefore, to cast about for some remedy capable of immediate application, and to the discovery of such a specific each member of the legal triumvirate to which we have referred devotes himself. Mr. Hopwood's contribution to the inquiry is of little value. We have the old statistics to show the marvellous efficiency of the short-sentence system as administered by the present Recorder of Liverpool, the old hardy and unproved assertions as to the failure of any rival mode of dealing with crime, and the old farrago of fallacies and washy sentimentalism with which students of Mr. Hopwood's dialectical methods have long been familiar. Mr. Poland, whose eminence as a criminal lawyer qualifies him in a peculiar degree for expressing an opinion upon the subject in question, raises the argument to a far higher level; he concludes that the present system cannot be altered with advantage, except, perhaps, by a return to the practice which prevailed at the Central Criminal Court till about 1860 of deputing all the Queen's judges on the rota—generally three, sometimes only two—to sit together on the trial of important cases. This suggestion is an excellent one if the existing staff of common law judges and the exigencies of common law litigious business will permit of its adoption. Its merits are admirably summarized by Mr. Poland in the following terms: “If the case was a capital one the Home Secretary then had two or three advisers instead of one to consult as to carrying out the sentence. Moreover, the judges, by sitting together from time to time, and consulting as to the sentences to be passed session after session at that Court, were enabled when acting separately on circuit to pass sentences which were much of the same character.” To the decision of the Home Secretary, informed and fortified by the advice of such a body of judges, Mr. Poland says that he would far rather trust than to the judgment of a Court of Criminal Appeal, and there is not a little to be urged in favour of this declaration. But if the domestic forum of the Home Office is to be retained, it ought, like other tribunals, to be made subject to the law of publicity, and not merely the fact and the terms of the Home Secretary's decision, but the reasons for it, and, if need be, the expert reports on which it is based, might be disclosed. It is desirable that there should be no repetition in England of the incident which occurred in the case of Laurie, the Arran murderer, who, after having been solemnly convicted and sentenced to death, had his punishment commuted by the Secretary for Scotland on the private report of three distinguished experts giving effect to a plea of insanity which had not been brought forward at the trial. That the Scottish Secretary in that celebrated case, whose dénouement gave rise to so much murmuring north of the Tweed, acted with perfect propriety under the circumstances, and that his professional advisers—Dr. Gairdner, Dr. Yellowlees, and, if we remember aright, Sir Arthur Mitchell—came to a correct conclusion as to Laurie's insanity, there is no ground for doubting. But if the Home Office is to discharge regularly and permanently the functions of a Court of Criminal Appeal, and if verdicts and sentences are to be submitted to its revision, the public are entitled to know the grounds on which its judgment proceeds. It is, however, in the paper of Mr. Justice Hawkins that the most original and noteworthy contribution to the settlement of the long or short sentence problem is to be found. Grasping with all his wonted clearness the fact that the inequality of criminal sentences is largely due to the varying conceptions that judges entertain of the objects of punishment, his lordship observes: “One would think that a Commission composed of competent persons (not all lawyers) having knowledge and aptitude for dealing with the subject, would experience no insuperable difficulty in framing such a code (of guiding principles) as would render substantial assistance to those upon whom the duty of inflicting punishment devolves.” Whether a Court of Criminal Appeal is or is not to be ultimately established, the appointment of such a Commission as Mr. Justice Hawkins suggests could be productive of nothing but good, and we trust that the learned judge's recommendation will receive the attention which it deserves. Perhaps the scope of the Commissioners' duties might probably be so enlarged as to include an inquiry into the doctrine that all criminal sentences should be of indefinite duration.

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Crime and Punishment

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