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Legal aspects of judicial birching in 1972
Isle of Man Courier, Ramsey, 17 March 1972
Birching ... The Facts
The recent birchings on the Island have raised a storm of controversy in the United Kingdom Press and on television. Most people in the U.K. and very many on the Island do not know the legal position as regards birching and caning in the Isle of Man, and some of the statements made have been incorrect.
Last week, Mr Edwyn Garside, advocate, of Garside and Teare, Ramsey and Douglas, explained the legal and court procedure to the South Lancashire Magistrates Association in a talk at Bolton.
The following are extracts from his speech.
The regulations laid down on the Isle of Man for the instruments used in the administering of corporal punishment are:
CANE: Not to exceed 4 ft. in length or ½ in. in diameter.
BIRCH: Weight not to exceed 9 oz. Length 40 in. Handle length 15 in. Circumference at centre 6 in. Circumference at butt of handle 3½ in. Circumference 6 in. from end 3-1/4 in.
Corporal punishment is defined in the Manx Acts as whipping. In relation to a child of 10 to 14 it is the cane, in relation to a young person 14 to 17 or adult it is the birch.
The Courts which have the power to order the birch are: Juvenile Courts, Magistrates Courts, High Bailiff — Stipendiary — and the Court of General Gaol Delivery. In addition, the Prison Visiting Committee and the Superintendent of the Remand Home have the power to award corporal punishment in certain circumstances.
In relation to a child, the Court may order up to six strokes of the cane in relation to any indictable offence which has to be dealt with summarily, namely: larceny. housebreaking, wounding or inflicting bodily harm, with or without a reason, assault occasioning actual bodily harm, robbery, etc., and in addition the summary offences of assault or provoking behaviour.
In relation to a young person, the Court may order up to 12 strokes of the birch in relation to indictable offences which are dealt with summarily -- these offences being similar to those just mentioned -- and, in addition, the summary offences of assault and provoking behaviour.
If a child or young person is charged jointly with a person who has attained the age of 17 the charge is then heard by a Magistrates Court or the High Bailiff, who have the powers to deal with the child or juvenile in the same manner as the Juvenile Court.
The Court of General Gaol Delivery has power to order caning or birching in relation to any child or young person who is convicted before that Court in addition to any other power of punishment. In relation to adults, this Court can order birching in respect of offences such as robbery. For a child, this Court can award up to six strokes of the cane. For a young person, the birch can be awarded up to 12 strokes, and for an adult the birch can be awarded up to 20 strokes.
The cases which draw attention when corporal punishment is awarded are those usually under the Summary Jurisdiction Act 1960. By this Act, any person who (a) unlawfully beats or assaults another person or (b) makes use of provoking language or behaviour tending to a breach of the peace, if the offender is a child or a young person, in addition or instead of a maximum fine of £30 or not exceeding six months imprisonment, he may be caned or birched.
Another important section in this Act states that, where a male person who has attained the age of 17 and is under 21 is convicted by a Court of Summary Jurisdiction of an offence, the commission of which in the opinion of the Court involved an assault by such person occasioning actual bodily harm to the person assaulted, the Court may order the person so convicted, in addition to any other punishment to which he may by law be liable, to be sentenced to 12 strokes or the birch. The same power is given to the Court of General Gaol Delivery, but there the maximum is 20 strokes.
Bodily harm includes any harm or anything calculated to interfere with the health or comfort of the person. It need not be permanent, but must be more than transient or trifling.
Before the Court makes its sentence it has certain information available. In relation to juveniles, this will be probation and school reports and any previous history including findings of guilt. If a medical report is necessary, there would be an adjournment for that report or for any other information the Court required.
When I was Clerk to the Court, the Court always had a copy of each summons on which was written all the possible decisions the Court could consider. For example, if a young person was charged with larceny, they would be absolute discharge, conditional discharge, probation, a fine, remand home, approved school (as it was), Borstal (if over 16), restitution and/or compensation and the birch. The young person's name may be published if the Court is satisfied that it is in the interest of justice to do so.
As a result, the Court could consider each possible order, and every avenue as to what was best for the individual would be discussed. Coming to a decision of punishment in a Juvenile Court can take some considerable time, and I can say that in all cases where the birch or cane has been ordered, it has been only after a lengthy retirement by the Court. I can never remember a quick decision.
In the Isle of Man there is a Statutory Rule that whenever any Magistrates' or Juvenile Court retires at any time to consider a matter, that before they return to the Court, the Clerk must always be called to them. Usually it is to inform the Clerk of their decision for him to approve. Or it may be for any question for the Clerk. Even if the Court do not want any assistance, the Clerk must be called before they return to the Court.
RIGHT OF APPEAL
Once the Court has reached its decision and has ordered either caning or birching, the Court informs the defendant and his parent or guardian of the right of appeal. This must be lodged within 28 days of sentence.
If the right of appeal is not requested and the defendant wishes to receive his punishment, he signs a document which states that he is aware of his right of appeal and that he does not wish to exercise it, and that he wishes the order of the Court to be carried out forthwith.
An order of the Court for caning or birching has to be inflicted privately as soon as practicable after sentence, and in any case shall not take place after six months from the passing of the sentence. The caning or birching does not take place until the person has been seen by a Medical Officer who is satisfied that the person is mentally and physically fit to undergo the sentence.
It is inflicted by a constable who has been in no way whatsoever involved with the prosecution of the offence. This is done in the presence of a sergeant or higher officer and also the medical officer. In the case of a child or young person, the parent or guardian may be present if he desires.
At any stage during the caning or birching the Medical Officer may order that no further punishment be inflicted whereupon the punishment is stopped. This fact is reported by the Chief Constable to the Lieutenant Governor.
As mentioned earlier, the Prison Visiting Committee have the power to order corporal punishment. The Prison Committee consists of the High Bailiff as chairman and eight Justices of the Peace. These J.Ps. are elected at the annual meeting of the Island J.Ps., and hold office for one year.
Corporal punishment may be ordered by the Committee for mutiny, incitement to mutiny, or gross personal violence to an officer of the prison staff committed by a male prisoner.
This order may be made by the Committee at which not more than five or less than three members of the Committee are present. No order is made except after an enquiry in which evidence is given on oath.
When the Committee have made an order for corporal punishment, a copy of the notes of evidence, a copy or the order, and a statement of the grounds on which it is made have to be sent forthwith to the Lieutenant Governor. The Lieutenant Governor has the power to confirm such order with or without modification. A refusal to confirm such an order does not prejudice any power to impose another punishment for which the order was made.
When a corporal punishment order has been confirmed by the Lieutenant Governor, the Medical Officer examines the prisoner and must satisfy himself that the prisoner is both mentally and physically fit to undergo the punishment. The Medical Officer and the Gaoler have to be present when the punishment is administered, and the Medical Officer has the power to stop the punishment at any time.
The punishment which may be ordered by the Visiting Committee is: (a) a male person over 21 — 18 strokes. (b) a male person under 21 — 12 strokes. If corporal punishment is ordered, no further punishment by way of confinement to cells or restricted diet can be imposed.
Birching can be ordered by a Court of Summary Jurisdiction in addition to a maximum fine of £30 or imprisonment up to six months, for persons between 17 and 21, when the Court is of the opinion that the assault occasioned actual bodily harm. It must be pointed out that this is a summary offence in the Isle of Man and there is no right to claim trial by jury. In the Isle of Man the right to claim trial by jury applies in respect of offences for which the maximum period of imprisonment exceeds six months whilst in the U.K. the period is three months. With the result that, as a matter of interest, a person charged with driving under the influence of drink, or dangerous driving, has no right to ask for trial by jury in the Isle of Man.
When a child or young person is committed to the remand home, every effort has to be made to enforce discipline without resorting to corporal punishment. Where it is found necessary, it shall be inflicted by the superintendent or his deputy.
A maximum of three strokes of the cane may be administered to each hand or six strokes on the posterior -- over the boy's ordinary cloth trousers. Such punishment has to be recorded in a register and a return made to the Government Secretary.
Caning is not used on girls.
In an address to the Justices of the Peace, the late Deemster Sir Percy Cowley said: "All punishment has one or more of four objects in view. It may be sought to exact retribution for the offence or to mark disapproval of it. It may be hoped that punishment may deter the offender and others from further crime. It may have the object of preventing the offender from further offences or by treatment to reform him, so that he will refrain from offending again."
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Copyright © Colin Farrell
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