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Rhodesia (now Zimbabwe): Judicial caning 1964

Aspects of Punishment

By G. Lloyd Roberts

Rhodesian Law Journal, Vol. 4-6, 1964



A former magistrate whose present duties in the Department of Justice include responsibility for prisons, Mr. Lloyd Roberts is in a good position to report back to magistrates on the merits of different types of punishment. He suggests the setting up of a body to study the whole question, but in the absence of any such body he has obtained the views of six senior prison officers and a medical officer, to which he adds his own comments.

The minimum number of cuts should be four, but the generally held view that the maximum should be six is not borne out by experience. The side-effects of cuts should be remembered. Cuts are not recommended for non-violent crimes such as theft. Repeat doses have proved effective. Cuts should not be ordered in cases of possible psychiatric disorder.

Spare diet is less effective than solitary confinement and reduced diet, which should normally be kept in reserve for prison offences.

The suggestion of weekend imprisonment raises administrative problems, but Mr. Lloyd Roberts puts forward the alternative suggestion of overnight imprisonment.

[...]

I will get down to the brief given me by Mr. Jackson. The Chief Magistrate gave me a list of matters to discuss, and they dealt, quite obviously, with the position that arises when the magistrate gets around to sentencing. He is given certain powers, these are his tools and they fall broadly in the two groups "Punishment" and "Treatment".

Treatment is really the affair, I think, of something between the courts and social welfare, the probation officers, that sort of thing, and the punishment side, I think, is what I am chiefly meant to speak on today. I think it is right and proper that we should always consider this very carefully. I think that as judicial officers, you want to make a point of knowing the effects and limitations of the sentences that you can impose and you also have to devise new types of punishment that you wish you could use in order to keep up to date, and I think the brief given me by Mr. Jackson does cover both aspects of this. The Chief Magistrate gave me a list of questions a few days back, and chiefly, I think, Mr. Jackson was wanting to know what the people in the prison service felt about a number of these punishments. We got six of the most senior officers that I could muster and the medical officer, and put these questions to them, and I give you what their replies are. You, of course, will compare them with the reports of various Commissions that have been set up in the past, and I think we must, at the outset, accept that these Commissions probably had access to very much more high powered witnesses, and it is likely they went into things very much more thoroughly. However, it may be of interest for you to know what our prison officers think about these questions.

The main field raised by the chief magistrate was this business of cuts. He asked, first of all, what was the minimum number of cuts that should be imposed if, in fact, there was a minimum. Well, my little group say quite firmly "No less than four". They say at the stage of four you are getting to the point where by their observations the man is definitely dreading the next one, and they say up to that point he is doing quite well, and they say you are almost playing with him, you are just warming him up, but at four you are getting down to business. This question of the minimum number of cuts, I think is something that we should consider, because quite often I recollect seeing lists of previous convictions and the first brush with the law was three and sometimes two cuts. He might have been a very small boy at that time, but it makes one think of the remark which I have heard attributed to Lord Goddard once when he looked at similar types of convictions and he said to the man "I see you are a victim of early lenient treatment". I think it is something one might bear in mind, that if you are too lenient with a fellow in the matter of cuts when he first appears, you might have him back on your hands, where this might have been avoided by a sharper punishment.

The next point that was raised was the question of the maximum, and there we run into the view which has been widely held by the judges for a long time. They gave a round figure, six or seven, and they said beyond that point it was needless brutality, and was ineffective. I hesitate to quarrel with the judges, and more particularly I hesitate to quarrel with the same statement which appears in reports of the Lansdown Commission and so on. The judges, after all, probably have not much practical experience of this, but the Commission, I have no doubt, made very thorough investigations; but the evidence I have is definitely that this is wrong.

First of all we had a situation in Khami prison a short time back, two years back, when we had a lot of Nationalists there, and some of these fellows -- whether you agree with their politics or not is another matter -- had considerable courage and they were definitely dedicated to making trouble. It got to the stage where they were just walking up to warders and punching them in broad daylight, in front of everybody else, and we had to try and get the situation under control, so twelve cuts became the order of the day. There were some of them, two of them, I think, came back for three doses and, half a dozen came back for two doses. This did bring it to an end but, of course, the judges might say "Well, if you had given them six, that would equally well have brought it to an end", but I went and consulted the doctor who had been present at these punishments. I don't know how many of you know Max Lewis, quite a humorous character. He said "I can't tell you whether something is hurting a man or not. All I can tell you is that they were giving a bloody good imitation". I have also consulted Dr. Baker-Jones, who is our doctor here, and although he is primarily a dietician, I gather, he has been attempting to make careful observations of this. He says that it is not true that those cuts after six are ineffective; and finally, every single prison officer that I have ever spoken to who has seen more than six, says that this is not true. So I feel it is very difficult to accept that the judges are right on this particular point, and if we ask ourselves how we change the views of the High Court, the only answer I can see is this body which I mentioned before.

One point which the doctor at Salisbury prison has emphasised and the prison officers also emphasised, is something I never heard of and never considered before, and I don't know if it would apply to the rest of you. They say, whilst the actual infliction is painful, there is a post-infliction effect which occurs twelve hours after infliction and prevents movement or lying down on the back and fades away after 24 to 36 hours. This period of discomfort is very much dreaded by the people that have had cuts before. It does present an argument in favour of repeat doses, which is a subject I will come on to later.

Also emerging from the consultation with the prison officers, it seems to me that there were certain things which I might almost refer to as fringe benefits, a punishment that may or may not arise and which the courts certainly did not have in mind. This arises where there is a group of prisoners. First, the old hands frighten the new boys that have never had cuts before, and the prison officers say that this is quite an ordeal for the chap who is awaiting cuts and they think it is a fact to be taken into account. Particularly, the old hands use this matter of the post-infliction pain, they keep saying to the chap -- they are pretty pushed for diversion in the prison -- they work on this fellow and they say "And when you have had your cuts, don't you think that is the end of it, you have got something more coming to you", and they lay it on thick, I have no doubt.

Then there is the matter of ridicule. You probably recollect the rather ponderous section in Gardiner and Lansdown which says that the man who has received cuts in the portion of his anatomy normally reserved for pedagogic discipline becomes an object of ridicule and so on. I always thought this was rather ponderous and based on a little bit of speculation rather than fact. Well, from what the prison officers volunteered -- I didn't put this to them -- it seems that I have done the learned authors a grave injustice. They say that this is quite a factor in their view, that if the chap goes in amongst these fellows, he gets baited something terrible, particularly whilst he is still suffering, and then, of course, if there is a whole group being dealt with at the same time, they tell me it is a bit rough on the fellow who is last in line, because every fellow that runs out exhibits his bruised and battered backside and it is very hard on the man who is last down the line.

All these things are, I think, features that one has to take into account when one is thinking of imposing cuts, and they are rather worrying to me, because they are beyond your control as judicial officers and difficult to eliminate on the prison side. There is a lack of accommodation, it is convenient to keep all the people together that are awaiting these cuts and so on, but it does introduce a rather worrying thought that here is a bit of pressure or additional punishment being imposed which the court did not have in mind.

I pass on now to juveniles, and the question whether cuts are favoured in respect of juveniles. The prison officers say that they think that cuts are a good form of punishment for juveniles and their impression is that these youngsters don't often return. When I said "Where did you get this impression? What figures have you got to back it up?" and so on, they had nothing. So I feel this is not verified. I have got personal doubts, and I am sure your experience is the same as mine; how many lists of previous convictions have you seen where the chap starts off with juvenile cuts and then he graduates all the way down to the indeterminate sentence? I have seen dozens of them. I have reservations about what the prison officers say about that one. It only emphasises again our weakness of study and our lack of statistical information on these points. I think it is most important to people like yourselves that there should be some group making a study of this.

Next, the Chief Magistrate asked me for some effects on the adults. There was a question "Is corporal punishment a suitable form of punishment for the potential habitual housebreaker or thief, or should it be reserved only for people who have committed crimes of violence?" He also quoted from a Mrs. Grosse's book Who Hangs the Hangman?, which says "The question still to be scientifically resolved is, is whipping likely to reform and serve to deter an offender from future crimes?" Well, I got hold of the prison officers and, once again, sought their views. I will read from their reply: "For adults" -- this was whether it was suitable for thieves and so on or should it be reserved for crimes of violence, this statement was for adults -- "views differed for crimes of violence, rape and previous convictions, a majority view is yes, it is suitable, and the minority say no". So far, I think that is a fair enough answer, but they then go on "the yeses and the noes both agree that corporal punishment has no lasting effect and has little, if any, influence as a deterrent for potential wrongdoers from the commission of similar or worse crimes and they say it can be considered as a physical instrument of social revenge". Well, once again, it is for you to decide, but I am not very impressed with this "social revenge" argument, and the previous sentence I think leaves one with the feeling that it is so inconclusive that one might consider abandoning corporal punishment. I felt that the reply was very inconclusive and I venture to put before you my personal views, well realising that you are equally well capable of forming your views.

I have rather favoured cuts for crimes of violence. I felt that if you find that a man has committed a violent act upon another, he comes from a tough environment and that is the sort of thing he does impulsively. I don't think it is a bad thing to give him a taste of his own medicine. If he is the kind of man that has inflicted pain on another person in the belief that by those means he will affect the other person, it seems to me to indicate that he himself believes that it would affect his own conduct, and on those grounds I feel that where there is a crime of violence there is an argument in favour of using corporal punishment.

For non-violent crimes I was against the use of it. First of all we might deter a lot of people from going into the field of violence if we hold this constantly before them. Suppose it became a practice in the courts for a housebreaker found carrying any sort of weapon to be given, say, six months for his housebreaking and a standard two years for carrying a weapon -- well, I am pretty sure that there are a lot of housebreakers who would make a point of never carrying a weapon of any sort when they went in and that, I think, would be a step forward. It is true he is still a housebreaker, but at least he is not a possible murderer. My other reasons for being opposed to cuts for non-violent crimes is that we have got 319 habitual criminals. Nearly all of them are there for theft and nearly all of them have two lots of cuts somewhere in their record. To my mind this is pretty conclusive, the thief is not deterred by cuts, or let us say some of them might be deterred -- we don't know how many times we are successful -- but we have certainly got a pretty large score of failures.

The question of repeat doses was put to me. As you know, the judges are very reluctant to confirm a second lot of cuts. They say this has been tried once before, you must abandon it now. Well, I feel quite strongly on this point, that if you have cuts at all you must have repeat doses, otherwise if you don't, the word will very soon get round that once you have had cuts you are inoculated, you are salted, you are fireproof, they can't touch you again, and the chap will say "Well, thank goodness I have got that off my chest" -- or backside, whichever way he thinks of it -- "This won't come my way again".

We had a practical example of that in Bulawayo with Mr. Barry Hunt. He once said to a youngster "I am going to sentence you to eight cuts", and this fellow bounced out of his seat and he said "You can't do that, I have had them before". He was obviously very distressed at the possibility of getting cuts again and he did not seem to draw much comfort from the remark "You wait and see". Then we have the repeated doses of twelve that we issued at Khami. We found out later through the prison grapevine that one man who had had three lots of cuts had been the leader of the group; this was probably what was pushing him and driving him to it. He was the leader of the group in this particular Nationalist bunch and they removed him from office because they reckoned that having had these three lots of cuts his spirit had gone. So there is some evidence to support these repeat doses of cuts.

Finally, there is a retired native commissioner friend of mine, who tells me that he made a number of enquiries amongst tribal Africans as to what was the most dreaded punishment. His head messengers, he tells me, were all of one view, and that is that cuts were preferred by the criminal to spare diet and solitary confinement, largely on the basis that it was over and done with. I think that this is unreliable myself. I just put it forward to you for what it is worth, but the tribal African is often living very close to the breadline out in the reserves, and in fact he is much better off in prison doing this so-called hard labour than he is back at his kraal in times of drought. I feel that so long as we have this great gap in standard of living, which we have got in this country, there is a difference between the urban African and the rural African. I personally think it would be very unwise to rely on this statement which related only to tribal Africans in the reserves. However, I give it to you for what it is worth.

If I can conclude this section on cuts then, the theory about the numbness after five or six is not supported by the prison officers. The prison officers do suggest that you should observe a minimum. Repeat doses: I think there is an argument in favour of the proposition that, if we are going to have cuts at all, we must provide for repeat doses. In respect of juveniles, we think it serves a good purpose. In respect of crimes of violence, my personal opinion is that I think there is a place for this. For theft and non-violent crimes, my personal opinion is I don't favour it and I think it should be dropped.

There is one point I would like to mention, because I don't know how often this is taken into account, but the Lansdown Commission did say that cuts should never be inflicted where there was any possibility of a psycho-neurotic condition in the accused. Now, I think that that is something the courts have to watch out for, because it could be a completely unsuitable form of punishment. I think this arises with unnatural sexual offences, or another indication of where this might arise is where you find a man repeatedly stealing from close relatives. That might also indicate that his theft is due to some psychiatrical trouble and that he is really a case for the psychiatrist rather than for cuts.

[...]




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