Recommendation to end prior imprisonment

The recommendation to end prior imprisonment was, as already noted, significant. The subject of prior imprisonment as a requirement for admission to reformatories had been a source of controversy right from the outset of the statutory system. While those inspired by true humanitarian motives, such as William Watson in Scotland and Mary Carpenter in England, had always strongly disapproved of the use of prior imprisonment, many others had been staunch advocates of its use, particularly the managers of English reformatory schools. Sydney Turner too had thought it was an indispensable feature of the system, needed both to administer punishment and to deter others from crime.⁴⁵ It was the main feature which distinguished the reformatory schools from industrial schools, apart from the age differential between the categories of children admitted to the two types of schools. The fact that a period in prison was required before a child could enter a reformatory was also widely thought to be the reason that the reformatory system failed to expand at the same exponential rate of the network of industrial schools: as we have seen, to avoid sending a child offender to prison a sympathetic magistrate might decide not to convict a child and instead impose an order committing him to an industrial school, a practice especially common in Scotland. ⁴⁶ This trend was demonstrated in some of the cases referred to later in the chapter.

44 1896 Report, page 138.

45 See Section 3.3.

46 1896 Report, page 138. The Scottish ‘repugnance’ with child imprisonment was given as the reason for the reformatory system in having failed to develop there at the same rate as the industrial school network. (This argument was also applicable to England but to a lesser degree. See Radzinowicz and Hood, Vol V, page 205.) For the UK as a whole the 1896 Report gives the 1894 figures under detention in the 50 reformatories nationwide as 5587 (generally between 13 and 18 years old) while the number under detention in 141 industrial

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In 1893 there was an important statute which gave magistrates discretionary power to send children to a reformatory without imposing a period of preliminary imprisonment. This Act also raised the minimum age of reformatory admission from ten to twelve except in the case of previous offenders.⁴⁷ The 1896 Report recorded that this statute had been ‘very widely acted upon’⁴⁸: out of 1,487 children sent to reformatories in Britain in 1894, 1,107 were sent without prior imprisonment. It also noted that ‘the Act has helped the reformatories to fill, especially in Scotland.’ Clearly the previous requirement to impose a period of imprisonment had acted as a disincentive for Scottish magistrates to send children to reformatories. The 1896 Committee was not impressed with the traditional arguments put forward to support prior imprisonment, dismissing the idea that this was needed to provide an element of punishment. The main argument against prior imprisonment, according to the Report, was that it added to the ‘reformatory stigma.’ The Committee also disapproved of the ‘inequality’ between Scotland and England in the greater tendency for Scottish magistrates to dispense with prior imprisonment under the 1893 Act. For these reasons the Report recommended the abolition of prior imprisonment. Three years later, in 1899, prior imprisonment was finally abolished altogether,⁴⁹ removing the primary distinction between industrial schools and reformatories.

The Report was remarkable for its empathy with the circumstances of the institutionalised child. It adopted a noticeably psychological approach in its references to the detrimental effect on the ‘inner life’⁵⁰ of the child: it contrasted the situation of poor, but nonetheless free, children attending ordinary schools with the isolation and confinement experienced by children detained in institutions: cut off from their families and not allowed to go home, even for a day in some cases, despite being under detention for a number of years. There was also the penal atmosphere of the schools to contend with, a continuing legacy which the schools had never shaken off. This owed its origins to the type of prison regime which schools was between 17000 and 18000 children aged 6 to 16(page 8). In Scotland the same year there were 765 children who were inmates in 9 reformatories and 4711 children who were inmates in 34 industrial schools.

979 children were admitted to Scottish industrial schools in 1894(page 132). It should be noted the Scottish figures giving the number of inmates did not include those out on licence. Later in the Report one of the dissenting memoranda (A) refers to the ‘rapid’ expansion of the numbers in industrial schools over the years from the relatively low figure of 2500 in 1866 (page 157). The 1906 Inspector’s Report states that the numbers in industrial schools (including truant schools in England) doubled from 8788 in 1870 to 16446 in 1880. In 1906 there were 20534 in industrial schools in the UK (pages 6 & 7).

47 Reformatory Schools Act 1893 56 757 Vict.,c.48. This was also known as Lord Leigh’s Act. Under this Act the period of detention was to be not less than three and not more than five years, and the child was not to be detained beyond the age of nineteen.

48 1896 Report at page 100. All the quotes in this paragraph are from this page of the Report.

49 Reformatory Schools Act 1899.

50 1896 Report at page 20.

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Turner found in some schools when he first began making his reports on these ‘juvenile houses of correction’ and ‘houses of detention for the young vagabond and petty misdemeanant.’⁵¹ Turner had described the discipline in some reformatories where ‘a routine scheme of regulations was enforced and the building fenced with walls, the windows grated and the inmates clothed, confined and watched as they would have been in prison.’⁵² The 1896 Committee reported that ‘relics’ of this type of discipline remained ‘either as rules savouring of repression or, more often, as general traditions without a name which insensibly affect the spirit of the management and the life of the school.’⁵³ The main point the Report emphasised here was that the knowledge that they were detained under court warrant gave the children in these schools a sense of being disgraced and imprisoned, creating a depressed atmosphere which might have long term implications for their future success and happiness.⁵⁴

While the Report adopted the language of psychology in its talk of inner life and depression it was not prepared to accept the new scientific discourse which suggested that the children detained in the institutions were different from other children or in need of specialised treatment.⁵⁵ The vehemence with which ideas about the depravity of child offenders was rejected by the Report indicates that such notions were far from being universally accepted.

As discussed earlier in the thesis, the late nineteenth century saw the advent of new scientific notions about the young offender.⁵⁶ In relation to this it has been argued that a late nineteenth century scientific, positivist focus on understanding the child, together with a new recognition of the psychology of adolescence, altered responses to the young offender.⁵⁷ The impact of new knowledges has been emphasised by Garland.⁵⁸ In his view they had a significant role in an altered penal landscape where professional expertise in areas such as psychology and psychiatry was an important factor. He argues that psychology was especially influential in relation to juveniles;⁵⁹ and professional advice was sought on this area of scientific knowledge and other matters with courts being provided with ‘social

51 1896 Report p.23. By ‘juvenile houses of correction’ Turner meant reformatories, while his reference to

‘houses of detention for young vagabond and petty misdemeanant’ applied to industrial schools.

52 ibid. quoting from Turner’s final Report in 1876 when he was reviewing the system from its early days.

53 ibid. page 23.

54 ibid at page 21.

55 ibid.

56 Garland (1985); Wiener (1990); Gillis (1974); Blanch (2007). See Introduction to thesis, and Section 1.5.2.

57 See Section 1.5.2.

58 Garland (1985).

59 ibid., p.26.

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background reports, character judgements or the certification of experts.’⁶⁰ In this context, he argues, judicial decision-making was framed in accordance with ‘extra-legal’ criteria⁶¹ rather than classical concepts about criminal responsibility and this provided the basis for extensive intervention into the lives of offenders.

However, there is evidence which undermines Garland’s argument. As we have seen, the 1896 Report was very robust in rejecting the concept of the inherent deviance of young offenders, dismissing as completely unfounded the notion that these children were anything other than ‘ordinary.’ Instead, the Report referred again to the words of Turner:

‘Nothing has been more certainly demonstrated in the practical development of the reformatory system than that juvenile crime has comparatively little to do with any special depravity of the offender, and very much to do with parental neglect and bad example.’⁶²

In refuting the idea of ‘depravity’ the Report emphasised that the children in these schools were victims of neglect who needed kindness and attention to bring about their

‘reclamation.’⁶³ It was clearly absurd to label as depraved reformatory children often committed for ‘venial’ offences or young industrial school children detained because of poverty, ‘petty delinquencies,’ or the faults of parents.⁶⁴ The Report added that the sheer numbers of children in these schools also meant that it was very unlikely that they were different from other children.

This commonsense approach to the question of the criminality of children was similar in tone to the attitude adopted by the Report of the Gladstone Departmental Committee on Prisons in 1895 in its assessment of ideas of criminal anthropology as an ‘embryo’ science and its cautious approach towards scientific investigation which it considered valuable but far from conclusive and beset by ‘conflicting theories.’⁶⁵ The Gladstone Report stated that,

‘the great majority of prisoners are ordinary men and women amenable, more or less, to all those influences which affect persons outside.’⁶⁶ These sources indicate that there was a strong current of resistance to the new scientific discourses on criminality. The foreign

60 ibid.

61 ibid.

62 1896 Report, page 22. The Report referred to the 17000 children in industrial schools.

63 ibid.

64 ibid.

65 Report from the Departmental Committee on Prisons, 1895, page 8.

66 ibid.

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origin of much this type of theory probably did little to assist its acceptance.⁶⁷ There is also evidence that the judiciary was unimpressed by the new ideas and disinclined to have regard to them in their sentencing of offenders.⁶⁸ Certainly the 1896 Report had little time for theories of this kind. It gave no credence at all to the results of a system brought to its attention by witnesses, explaining an elaborate and extensively tested method that had been tried out to examine children for evidence of ‘abnormality.’⁶⁹ The Report defiantly declared that the Committee was ‘not at all prepared to admit the theory’ that the children were physically and mentally different from others.⁷⁰

This suggests that the influence of scientific discourse in Britain in the late nineteenth century has been overstated. It indicates that new scientific theories about criminality were treated with scepticism and, ultimately, pragmatic commonsense was far more influential in practice.