CRIME AND THE CRIMINAL LAW, - University Of Exeter
THE HAMLYN LECTURESCRIME AND THECRIMINAL LAW,Reflections of a Magistrate and Social ScientistSecond EditionBarbara WoottonSTEVENS
THE HAMLYN LECTURESFIFTEENTH SERIESCRIME AND THECRIMINAL LAW
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CRIME AND THECRIMINAL LAW:Reflections of a Magistrateand Social ScientistBYBARBARA WOOTTONSECOND EDITIONPublished under the auspices ofTHE HAMLYN TRUSTLONDONSTEVEN & SONS1981
First Published —1963Second Edition —1981Published in 1981 byStevens & Sons Limited of11 New Fetter Lane, LondonPrinted in Great Britain byThomson Litho LimitedEast Kilbride, ScotlandBritish Library Cataloguing in Publication DataWootton, BarbaraCrime and the criminal law. — 2nd ed. — (TheHamlyn lectures)1. Crime and criminals — England — Sociological aspects2. Punishment — England — Sociological aspectsI. TitleII. Series364'.942HV6947ISBN 0-420-46170-1ISBN 0-420-46180-9 Pbk.All rights reserved. No part of this publication may bereproduced or transmitted in any form or by any means,electronic, mechanical, photocopying, recording orotherwise, or stored in any retrieval system of any naturewithout written permission of the copyright holder andthe publisher, application for which shall be made to thepublisher. Baroness Wootton of Abinger1981
CONTENTSThe Hamlyn LecturesThe Hamlyn TrustIntroductionviiixxi1. A Magistrate in Search of the Causes of CrimesPostscript to Chapter 11262. The Function of the Courts: Penal or Preventive?Postscript to Chapter 2313. The Problem of the Mentally Abnormal Offender .Postscript to Chapter 34. Sentencing Policy in a Preventive SystemPostscript to Chapter 452668794117
THE HAMLYN LECTURES1949 Freedom under the Lawby The Rt. Hon. Lord Denning1950 The Inheritance of the Common Lawby Richard O'Sullivan, Esq.1951 The Rational Strength of English Lawby Professor F. H. Lawson1952 English Law and the Moral Lawby Dr. A. L. Goodhart1953 The Queen's Peaceby Sir Carleton Kemp Allen1954 Executive Discretion and Judicial Controlby Professor C. J. Hamson1955 The Proof of Guiltby Dr. Glanville Williams1956 Trial by Juryby The Rt. Hon. Lord Devlin1957 Protection from Power under English Lawby The Rt. Hon. Lord MacDermott1958 The Sanctity of Contracts in English Lawby Sir David Hughes Parry1959 Judge and Jurist in the Reign of Victoriaby C. H. S. Fifoot, Esq.1960 The Common Law in Indiab y M . C . Setalvad, Esq.1961 British Justice: The Scottish Contributionby Professor T. B. Smith1962 Lawyer and Litigant in Englandby The Hon. Mr. Justice Megarry1963 Crime and the Criminal Lawby The Baroness Wootton of Abinger1964 Law and Lawyers in the United Statesby Dean Erwin N. Griswoldvn
viiiThe Hamlyn Lectures1965 New Law for a New World?by The Rt. Hon. Lord Tangley1966 Other People's Lawby The Hon. Lord Kilbrandon1967 The Contribution of English Law to South African Law;and the Rule of Law in South Africaby The Hon. O. D. Schreiner1968 Justice in the Welfare Stateby Professor H. Street1969 The British Tradition in Canadian Lawby The Hon. Bora Laskin1970 The English Judgeby Henry Cecil1971Punishment, Prison and the Publicby Professor Sir Rupert Cross1972 Labour and the Lawby Dr. Otto Kahn-Freund1973 Maladministration and its Remediesby K. C. Wheare1974English Law—The New Dimensionby Sir Leslie Scarman1975 The Land and the Development; or, The Turmoil andthe Tormentby Sir Desmond Heap1976 The National Insurance Commissionersby Sir Robert Micklethwait1977The European Communities and the Rule of Lawby Lord MacKenzie Stuart1978 Liberty, Law and Justiceby Professor Sir Norman Anderson1979 Social History and Law Reformby 0 . R. McGregor1980Constitutional Fundamentalsby Professor H. W. R. Wade1981 Intolerable Inquisition? Reflections on the Law of Taxbv Hubert Monroe
THE HAMLYN TRUSTTHE Hamlyn Trust came into existence under the will of thelate Miss Emma Warburton Hamlyn, of Torquay, who died in1941 at the age of eighty. She came of an old and well-knownDevon family. Her father, William Bussell Hamlyn, practisedin Torquay as a solicitor for many years. She was a woman ofstrong character, intelligent and cultured, well versed inliterature, music and art, and a lover of her country. Sheinherited a taste for law and studied the subject. She alsotravelled frequently to the Continent and about theMediterranean, and gathered impressions of comparativejurisprudence and ethnology.Miss Hamlyn bequeathed the residue of her estate in termswhich were thought vague. The matter was taken to theChancery Division of the High Court, which on November 29,1948, approved a Scheme for the administration of the Trust.Paragraph 3 of the Scheme is as follows:"The object of the charity is the furtherance bylectures otherwise among the Common People of theUnited Kingdom of Great Britain and Northern Irelandof the knowledge of the Comparative Jurisprudence andthe Ethnology of the chief European countries includingthe United Kingdom, and the circumstances of thegrowth of such jurisprudence to the intent that the Common People of the United Kingdom may realise theprivileges which in law and custom they enjoy in comparison with other European Peoples and realising andappreciating such privileges may recognise theresponsibilities and obligations attaching to them."The Trustees are to include the Vice-Chancellor of theUniversity of Exeter and representatives of the Universities ofLondon, Leeds, Glasgow, Belfast and Wales. So far as practicable one of the Trustees is to be a person who was under theage of 40 at the time of appointment.ix
xThe Hamlyn TrustThe Trustees under the Scheme number eight:Professor J. A. Andrews, M.A.,B.C.L.,J.P.Professor A. L. Diamond, LL.M. (Chairman)The Rt. Hon. Lord Edmund-DaviesProfessorD. S. Greer, B.C.L.LL.B.Professor B. Hogan, LL.B.Doctor Harry Kay, PH.D.Professor A. I. Ogus, M.A.B.C.L.Professor D. M. Walker, Q.C, M.A., PH.D., LL.D., F.B.A.From the first the Trustees decided to organise courses oflectures of outstanding interest and quality by persons ofeminence, under the auspices of co-operating Universities orother bodies, with a view to the lectures being made availablein book form to a wide public.The fifteenth series of Hamlyn Lectures was originallydelivered in November 1963 by the Baroness Wootton ofAbinger, M.A, (HON.) LL.D., at Sheffield University.AUBREY L. DIAMOND,Chairman of the Trustees.March 1981
INTRODUCTIONIt is not an easy task, in an area where change is as rapid asin criminal law and practice, to update discourses whichare already 17 years old. I can but hope that the procedurewhich I have adopted will be acceptable to readers. I havemade as few changes as possible in the original text, but,after consultation with the publishers, have generallymodernised terminology, for example, substituting "TheCrown Court" for "Quarter Sessions," "Court of Appeal"for "Court of Criminal Appeal" and "theft" for "larceny."Most of the statistics, for example those relating to thevolume of crime, remain as printed in the originallectures; but corresponding figures for more recent datesare included in the Postscripts to each chapter, which alsorecord relevant new developments in crime and criminallaw, together with some after-thoughts of my own. Aftermuch reflection, it seemed to me that it would be moreappropriate to attach such new material in each case to thechapter to which it related, rather than to write whatwould amount to a single additional chapter, covering thewhole ground, which would only be intelligible in the lightof constant reference back to the relevant lecture.Apart from these technical details, my task would havebeen incomparably more burdensome had it not been forthe generosity of Messrs. George Allen & Unwin who gaveme permission to incorporate verbatim in this revision ofmy Hamlyn lectures sundry passages from my book onCrime and Penal Policy which they published in 1978.Incidentally, readers may like to know that they will findin that book (now paperbacked) much fuller treatment ofmany of the topics discussed in this new edition of thelectures. For my part I am most happy to use this introduction as an opportunity to express to Messrs. Allen &Unwin my deeply felt appreciation of an exceptionallyxi
xiiIntroductionhelpful concession which greatly exceeded anything forwhich I had hoped.Barbara WoottonHouse of LordsJanuary 1981
Chapter 1A MAGISTRATE IN SEARCH OF THE CAUSESOF CRIMESAs the only layman who has yet given the Hamlyn lectures,I cannot but be both dazzled by the eminence of thedistinguished lawyers who have preceded me and deeplysensible of the honour paid to me by the Trustees. I canonly hope that the occasional choice of a layman, andparticularly of a specimen of that peculiarly English genus,the lay magistrate, might have appealed to the Founderof this Trust. For Emma Hamlyn's objective, you mayremember, was that the common people of this countryshould realise the privileges which they enjoy in law andcustom, and should recognise the responsibilities andobligations attaching to them; and these are certainlymatters which are constantly brought to the notice ofmagistrates and of the common people with whom theyhave to deal. At all events let me say at once that thereflections on crime and the criminal law which I proposeto offer to you are the product of a dual experienceextending over more than 30 years—experience, that is tosay, on the one hand as a magistrate, and on the otherhand as a professional social scientist.The social scientist who finds himself on the Bench canhardly fail to be sadly impressed by the scale and persistenceof criminal behaviour; and by the gross failure of oursociety to eradicate this. Year by year the criminal statisticsrecord a persistent upward trend in the number of personsconvicted of offences in England and Wales, up to a totalof 1,152,000 in 1961. In the past ten years such convictions,though actually fewer in 1951 than before the war, have
2A Magistrate in Search of the Causes of Crimesincreased by nearly 60 per cent.1 If, moreover, attention isconfined to indictable offences (which are generally,though not in every instance correctly, regarded as themore serious crimes), the increase is more dramatic still.Indictable offences known to the police had reached by1961 a figure of between two and a half and three timeswhat they were in 1938, and nearly 54 per cent, abovewhat they were ten years earlier. True, there have beenmoments of hope. A slight drop in the total between 1945and 1946 was followed immediately by a rise and then bya substantial fall which left the 1949 figure lower than anysince 1944. After another slight rise in 1950 and a largerone in 1951 a continuous fall was recorded for the nextthree years, the figure for 1954 being the lowest for tenyears; but the effect of this improvement has, alas! beenwholly obliterated by the steady and substantial increasewhich has continued in an unbroken series year by yearsince 1954.This increase, moreover, has not been evenly spread overdifferent categories of crime. Known offences of violenceagainst the person have increased to nearly six and a halftimes the 1938 total, cases of receiving and sex offences toabout four times, burglary to between three and fourtimes, and theft and frauds to between two and threetimes. It almost looks as if the nastiest offences weresetting the fastest pace. Among non-indictable offencesconvictions for drunkenness have risen by nearly 42 percent, since 1938, the increase having raced ahead in thepast 10 years; whilst the increase in traffic offences in thesame period, perhaps surprisingly, amounts to only about50 per cent.; but it is a sobering thought that these lastnow account for no less than 61.8 per cent, of all the convictions recorded in the criminal courts. In the course ofthese lectures I shall frequently have occasion to include1All the figures in this chapter relate to 1961 or before. Most ofthem are updated to 1978 in the postscript which follows thischapter (see p. 26).
A Magistrate in Search of the Causes of Crimestraffic offences along with other crimes; and for this Imake no apology, since not only do these offences occupya large proportion of the time of the courts, but much ofmore general application is also to be learned from them.It is a depressing story. Admittedly the picture presentedby the criminal statistics, the whole range and compilationof which are now under review by a DepartmentalCommittee, may be somewhat distorted. But there is verylittle reason to suppose that the distortion is in the directionof underestimation. And the gloom is not dispelled by thediscovery that the harder we try, the less apparently do wesucceed. Penal treatments could be described as cumulativefailures. The more anyone experiences them, the greaterthe probability that he will require further treatment still.In their recent study of persistent offenders Hammond andChayen2 found that the greater the number of previouscourt appearances, the greater the risk of reconviction; andthis trend was present alike amongst those who had beensentenced to preventive detention and amongst those who,though liable to this sentence, had actually been otherwisedealt with. Out of a group of 318 in the latter class 58 percent, of those with less than 10 previous court appearances,71 per cent, of those with 10 to 19 previous appearancesand 81 per cent, of those with 20 to 29 previous appearanceswere reconvicted within a two- to three-year period.Amongst those released from preventive detention3 thecorresponding figures were 55 per cent., 66 per cent., and63 per cent.—the trend being less marked because thenumber in the group (108) was not so large.Of course there is nothing unexpected in this. In theworld as it is, the longer one's criminal record, the less thechance of living in any way that does not lengthen it stillfurther. But the trend is worth recording if only because it2Hammond, W. H. and Chayen, E., Persistent Criminals (H.M.S.O.,1963), p. 102.3Preventive detention has since been abolished: see Postscript toChapter 2, p. 55.3
4A Magistrate in Search of the Causes of Crimesis open to more than one interpretation. No doubt it islikewise true that the risk of requiring an operation forcancer is greater in someone who has already undergoneone operation for this disease than in one in whom it hasnot made itself apparent. The nature of the disease is notunderstood, and the treatment therefore palliative ratherthan curative: and the same could be true of criminality.At the same time a more sinister interpretation in thecase of criminality is also possible—namely, that the treatment itself aggravates the disease.Meanwhile the sociologically-minded magistrate (andindeed any judicial personage in whom curiosity has notbeen wholly stilled) will certainly hunger for explanationsof the persistence of these ugly blemishes upon an otherwise tolerably civilised society. He will ask himself, first:why do people commit crimes? and secondly, perhaps,why do people refrain from committing them?To the first of these questions, he will still get but adusty answer; for aetiological research in criminologytends to be as inconclusive as its volume begins to lookimpressive. From the crude criminal statistics, the moststriking and consistent answers that suggest themselves arethat crime is the product of youth and masculinity. Atleast detected indictable crime is clearly and consistentlythe special province of the young male. In 1961 87.1 percent, of all those convicted of indictable offences weremales: 10 years earlier the figure was 88.1 per cent.; and in1938 it stood at 87.7 per cent. If allowance is made fordifferences in the population at risk, male criminality at allages (as measured by indictable offences) in 1961 wasbetween seven and eight times as great as that of females,the ratio ranging from 10 to one in the under 14 age groupdown to rather more than four to one among the overthirties. Ten years earlier the corresponding figures wereeight to one at all ages taken together, rather more than 12to one amongst the under fourteens and nearly five-and-ahalf to one for those over 30; whilst in 1938 the ratiosstood at more than seven-and-a-half to one at all ages
A Magistrate in Search of the Causes of Crimes5together, at 17 to one in the youngest and at nearly fourand-a-half to one in the oldest age group. Thus it wouldseem that the overwhelming dominance of the male in this,as in many other fields, although clearly subject to challenge,cannot yet be said to be seriously threatened. Indeed, whilefor many years now overcrowding in men's prisons has beena persistent nightmare, a not infrequent problem in Holloway Gaol has been the lack of sufficient inmates to keep theplace clean.It is perhaps rather curious that no serious attempt hasyet been made to explain the remarkable facts of the sexratio in detected criminality; for the scale of the sexdifferential far outranks all the other traits (except that ofage in the case of indictable offences) which have beensupposed to distinguish the delinquent from the nondeliquent population. I have referred to this before 4 andnow do so again because it appears to me that so remarkable a phenomenon has never received the attention that itdeserves. It seems to be one of those facts which escapesnotice by virtue of its very conspicuousness. It is surely, tosay the least, very odd that half the population should beapparently immune to the criminogenic factors which leadto the downfall of so significant a proportion of the otherhalf. Equally odd is it, too, that although the criminologicalexperience of different countries varies considerably,nevertheless the sex differential remains, at least in themore sophisticated areas of the world, everywhere a conspicuous feature. Whether there are exceptions among theunderdeveloped communities I would be interested tolearn. Yet at least in the world that we know, girls as oftenas boys may come from broken homes, and stupid,neglectful or indifferent parents have daughters as well assons; while girls are as likely as boys to be born and brought4Wootton, Barbara, Social Science and Social Pathology (Allen andUnwin, 1959), pp. 30, 31.
6A Magistrate in Search of the Causes of Crimesup in slum sub-cultures. Yet by comparison with theirbrothers, only rarely are girls found guilty of crimes.It seems improbable that this difference is of biologicalorigin. If it was, we might as well forget it, as there wouldbe nothing to be done about it short of biologicalengineering. The scale of the contrast alone renders a biological interpretation unlikely; for the known personalitydifferences between the sexes are not of this order. Forexample: the range of masculine capacity to performintelligence tests overlaps that of females at both ends, anexcess of males being found both in the highest grades, andamong the morons. But overall differences of the order of17 to one or even of 10 to one are unknown in respect ofintelligence or other attributes which are physically andculturally within the reach of both sexes. Clearly someprocess of cultural conditioning must be at work in theone sex, from which the other is everywhere exempt. Toidentify this would make possible a larger reduction incriminality than is offered by any other line of inquiry.This prospect is so alluring that it is worth giving a gooddeal of thought to methods by which light might bethrown on the question why the sexes behave so differently.Such investigations are not easy to devise. Any differencesbetween the childhood exper
Second Edition —1981 Published in 1981 by Stevens & Sons Limited of 11 New Fetter Lane, London Printed in Great Britain by Thomson Litho Limited East Kilbride, Scotland British Library Cataloguing in Publication Data Wootton, Barbara Crime and the criminal law —. 2nd ed. — (The Hamlyn lectures) 1. Crime and criminal —s England .
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DRESSLER CRIMINAL LAW OUTLINE I. INTRODUCTORY POINTS A. Sources of Criminal Law. 1. Common Law. 2. Statutes Derived from Common Law. 3. Model Penal Code. 4. (Bill of Rights) B. Criminal Law v. Civil Law 1. Criminal a. Defendant is punished (incarcerated) b. The criminal conviction itself say
Criminal Law and Procedure 4-1 Criminal Law 4-2 Criminal Procedure. . Chapter 4 SLIDE 2 4-1 Criminal Law GOALS Understand the three elements that make up a criminal act Classify crimes according to the severity of their potential sentences Identify the types of crimes that affect business. LAW for Business and Personal Use
