Punishment in United Kingdom

History in relation to Criminal Law

An essential part of the criminal law is the punishment or sanction by which the state seeks to prevent or avenge offences. See also under Criminology. Here it is enough to say that during the 19th century great changes have been made throughout the world in the modes of punishing crime.

In England until early in the 19th century, punishments for crime were ferocious. The severity of the law was tempered by the rule as to benefit of clergy and by the rigid adherence of the judges (in favorem vitae) to the rules of correct pleading and proof, whereby the slightest error on the part of the prosecution led to an acquittal. Bentham pointed out that certainty of punishment was more effective than severity, that severe punishments induced juries to acquit criminals, and that thus the certainty of punishment was diminished. But his arguments and the eloquence of Sir Samuel Romilly produced no effect until after the reform of parliament in 1832, shortly after which statutes were passed abolishing the death sentence for all felonies where benefit of clergy existed. The severity of capital sentences had already been modified by the pardoning power of the crown, 458 which pardoned convicts under sentence of death on their consenting to be transported to convict settlements in the colonies. (See Deportation.) For some years this was only done by the consent of the convict, who agreed to be transported if his death sentence was remitted, but in 1824, when a convict refused to give this consent, parliament authorized the crown to substitute transportation for a death sentence, and the same course was adopted in Ireland in 1851 when some treason-felony prisoners refused commutation of their sentence to transportation.

The punishments now in use under the English law for indictable offences are:

1. Death, inflicted by hanging, with a provision that other modes of execution may be authorized by royal warrant in cases of high treason.

2. Penal servitude, which in 1853 was substituted for transportation to penal settlements outside the United Kingdom. The minimum term of penal servitude is three years (Penal Servitude Act 1891), and the sentence is carried out in a convict prison, in the United Kingdom, but there is still power to send the convicts out of the United Kingdom.

3. Imprisonment in a local prison, which must be without hard labour unless a statute specially authorizes a sentence of hard labour. At common law there is no limit to a term of imprisonment for misdemeanour; but for many offences (both felonies and misdemeanours) the term is limited by statute to two years, and in practice this limit is not exceeded for any offence. The treatment of prisoners is regulated by the prison acts and rules.

4. Police supervision, on conviction or indictment of felony and certain misdemeanours after a previous conviction of such offences. Prevention of Crimes Act, c. 112, §§ 8, 20.

5. Pecuniary fine, a punishment appropriate only to misdemeanours and never imposed for a felony except under statutory authority, e.g. manslaughter (Offences against the Person Act, § 5). The amount of the fine is in the discretion of the judge, subject to the directions of Magna Carta and the Bill of Rights and of any statute limiting the maximum for a particular offence.

6. Whipping was a common law punishment for misdemeanants of either sex. Under the present law the whipping of females is prohibited, and the punishment is not inflicted on males except under statutory authority, which is given in the case of certain assaults on the sovereign, of certain forms of robbery with violence or assaults with intent to commit felony (Garrotters Act 1863), of incorrigible rogues, larceny and malicious damage, and certain other offences by youthful offenders.

7. Recognizances (caution) to keep peace and be of good behaviour, i.e. a bond with or without sureties creating a debt to the crown not enforceable unless the conditions as to conduct therein made are broken. This bond may be taken from any misdemeanant, and, under statutory authority, from persons convicted of any felony (except murder) falling within the Criminal Law Consolidation Acts of 1861.

8. In the case of any offence which is not capital the court, if it is a first offence or if any other grounds for mercy appear, may simply bind the offender over to come up for judgment when required, intimating to him that if his conduct is good no further steps will be taken to punish him.

Except in the case of the death penalty, the court of trial has a discretion as to the quantum of a particular punishment, no minimum being fixed. In the case of offences punishable on summary conviction the maximum punishment is always fixed by statute. It consists of imprisonment with or without hard labour, or a fine of a limited amount, or both. The imprisonment in very few cases may exceed six months. If the maximum exceeds three months the accused must be informed that he has a right, if he so elects, to be tried by a jury.

Where power is given to deal summarily with offences which under ordinary circumstances would be tried on indictment, the punishments are as follows (Summary Jurisdiction Act 1879):

In the case of adults pleading guilty, imprisonment not exceeding six months without the option of a fine.
In the case of adults (consenting to be summarily tried), where the offence affects property not worth over forty shillings, imprisonment not over three months, or fine not exceeding £20.
In the case of young persons, between twelve and sixteen years, imprisonment not over three months, or fine not exceeding £10.
In the case of children under twelve, imprisonment not over one month, or fine not exceeding forty shillings.

If the offence is trifling, the accused may be discharged without punishment, and under the First Offenders Act (1887) the justices have a discretionary power to forgo punishment. The justices have also the power, under the Prevention of Crime Act 1908, in lieu of passing a sentence of penal servitude or imprisonment, to commit persons between the ages of sixteen and twenty-one to a Borstal institution, for a period of detention ranging from one to three years (see Juvenile Offenders).

Source: Encyclopedia Britannica (1911)

Definition of Community Punishment Order

In accordance with the work A Dictionary of Law, this is a description of Community Punishment Order : An order that requires an offender (who must consent and be aged at least 16) to perform unpaid work for between 40 and 240 hours under the supervision of a probation officer. Formerly known as a community service order, it has been renamed under the Criminal Justice and Court Services Act 2000. Such an order replaces any other form of punishment (e.g. imprisonment); it is usually based on a probation officer’s report and is carried out within 12 months (unless extended). Breach of the order may be dealt with by fine or by revocation of the order and the imposition of any punishment that could originally have been imposed for the offence.

Justice, Law and Punishment

Justice is the means to create and maintain equality. According to Horner and Westacott, “Justice is fairness, equal opportunities for all to make something of their lives, and a way back from the deaths for those who fail.” In order to create equality, justice must be an integral part of everyone in society, Plato believed that all the elements of society should work together for the health of the whole, and that justice is the expression of that health. It is therefore easy for the justice system to incorporate Kant’s deontological ethics as it is based on universalizability, where justice is applied to everyone equally. Charles Colson reinforces this view by stating that the law gains its moral authority by encompassing an objective standard of justice applicable to all humanity. However where Kant would state that the justice system should come from laws based on rationality and the categorical imperative, Colson would argue that laws should be based on religious commands, or divine commands, from the highest authority, God. Either way it is the objective moral theories like Kant’s Categorical Imperative or Aquinas’ Natural Moral Law that dominates most justice systems.

In reality however, justice is hard to achieve because life is full of inequalities. David Hume believed that a system of “justice of equality” could not be created as people are born unequal; some are clever, some are beautiful, some are talented, therefore they will prosper more than others that are not. Justice is therefore difficult to achieve as it limits people’s freedom by helping those who are born with advantages. For example those who are born into rich families will get finer education and receive greater opportunities in life compared to those that are poor. However the system of justice tries to balance this out, in this case the system in the UK offers benefits to the families that are not earning enough money to cater for their children’s needs.

Justice can only be maintained universally with rules and regulations, or in other words laws. Laws have existed for over a millennium, it has been highly influenced and strengthened by religious ideology. For example Christianity’s 10 commandments had been integrated as part of the law for many hundreds of years, these ideas coincide with the moral system of Natural Moral law. Created by St. Thomas Aquinas, it is an objective principle designed to assist decision making and maintain order in society through divine revelation and naturalistic ideals.

However many people argue with these views. Over the years the sources of justice have long been debated, who decides what justice is? After the period of enlightenment religious laws were amended, removed or changed, for example “Do not commit adultery”. If you commit adultery you will not be stoned to death in the UK. Furthermore, autocratic rule had come to an end by the 20th century in most countries, Britain, France and the US boasted democracy as their apparatus for justice, instead of a higher being or a king. This was fuelled by certain theories like Utilitarianism and Kant’s Categorical Imperatives. Utilitarianism focused on bringing equality and justice to the majority, whilst Kant focused on universal laws being created out of rationality and a sense of good will.

Although laws are created and influenced through objective moral theories, it is also relative to time and place. There are different law systems in different parts of the world; there is the Sharia in the Middle East, which differs from the laws of Britain. Euthanasia is allowed in Belgium but is illegal in the UK.

Punishments exist to ensure that the law is being followed. Without punishment there would be anarchy and conflict. Punishment is an essential part of the system that takes seriously the notions of justice, authority and law. Charles Colson wrote, “The primary purpose of criminal justice is to preserve order with the minimum infraction of individual liberties.” This is reinforced by the views of J.S.Mills who states that the only purpose of passing laws is to stop one person doing significant harm to another against the person’s will, punishment ensures this. Both Mills and Colson agree that punishment should be proportional, humane and respectful to the equality and dignity of all human beings.

There are many forms of punishment; deterrence is about preventing or discouraging a person from doing a particular action. One person being punished could prevent others committing the same crime.Reform is concerned with changing the offender’s viewpoint or circumstances so that they will not reoffend. Prisons offer educational programmes.Protection is another type of punishment, to lock up someone in prison in order to protect the rest of society from their actions. Another form is to vindicate the law in order for the system to maintain the respect and order of the people. The final form of punishment is retribution, those who do wrong must be punished, retribution is said to reinforce the values of the community, making individuals responsible for their actions and give society a feeling of revenge, for example the hanging of Saddam Hussain.

The first four forms of punishment can be justified on utilitarian grounds. Punishment is a means of minimising suffering for society. The fifth form of punishment is based on defending the grounds of natural justice.

Punishment is also relative from place to place. In some places capital punishment is not allowed, like Britain, but it is legal in certain states in the US. Some argue that there is an absolute right to life and the taking of one cannot be justified, this is a categorical imperative, it is not based on the nature of the crime or the needs of society, but on the overriding principle of the value of human life. Others take the utilitarian view, the decision for the death penalty should come after balancing the loss of one criminal’s life against the cost to society for having him alive.

Author: Annonym

Punishment and Medieval Law

Punishment and Legal History

Resources

Bibliographies of English Law History

Maxwell, William H. A Legal Bibliography of the British Commonwealth of Nations. Volume 1: English Law to 1800. London: Sweet and Maxwell, 1955-
Beale, Joseph H. A Bibliography of Early English Law Books. Cambridge: Harvard University Press, 1926.
Winfield, Percy H. The Chief Sources of English Legal History. Cambridge: Harvard University Press, 1925.

Punishment