1. Whipping has been used as a form of punishment in this country from the earliest times, and payments for whipping figure largely in municipal and parish accounts from an early date. When death was the penalty appointed by the common law for felonies, whipping was one of the punishments so appointed for misdemeanours at common law and for those statutory misdemeanours for which no punishment was specifically provided by statute. The punishment was usually administered in public -- either at the cart's tail or, later, at a public whipping-post. Women were liable to whipping equally with men -- until in 1820 the power to order female offenders to be whipped, either publicly or privately, was abolished by the Act I Geo. IV. c. 57.
In 1827, when benefit of clergy was finally abolished by the Act 7 & 8 Geo. IV. c. 28, the general penalty of death for felony was also abolished and it was provided that any person convicted of a felony should in future be punished in the manner prescribed by the statute specially relating to that particular felony. The same general Act provided that any person convicted of a felony for which no punishment was specially provided by statute should in future be liable to transportation or imprisonment and, if a male, "to be once, twice or thrice publicly or privately whipped" in addition to imprisonment. Many of the special statutes dealing with particular felonies also made similar provisions for whipping. Thus in the early part of the nineteenth century corporal punishment, which was already a common law penalty for misdemeanours, became also a statutory penalty for many felonies. By this time the whipping of female offenders had already been prohibited by statute, and as a statutory punishment for felonies whipping was limited to males. The law still contemplated that the punishment might be administered in public.
The distinction between felony and misdemeanour is unknown to Scottish law, and in Scotland the common law had from the earliest times authorised whipping as a penalty for a wide range of offences under the common law.
2. The movement for penal reform, which had led to the curtailment of capital punishment, was maintained throughout the first half of the nineteenth century and operated in other directions to mitigate the asperities of the old criminal law. In 1824 Parliament curtailed the powers of Justices to deal with vagrancy offences by means of corporal punishment. Up to that time a single Justice had power to order any vagrant to be publicly whipped: but by the Vagrancy Act, 1924, whipping was reserved mainly for second or subsequent offences under the Act, and the power to order it was removed from the summary jurisdiction of Justices and vested in Quarter Sessions. During the next twenty years the whole of the criminal law was under continuous review by a series of Commissions and Parliamentary Committees, and in 1843 the Commissioners on the Criminal Law submitted their Seventh Report containing recommendations for a comprehensive codification of the criminal law. The Commissioners did not favour the retention of whipping as a general penalty for adult offenders, and their reasons are given in the following extract from their Seventh Report:
"We have already had occasion to observe that the punishment of whipping is occasionally inflicted, and, in some instances, without regard to any peculiarity in the crime which seems to warrant such a distinction. We see no reason for confining this species of punishment to the limits within which it is now applicable, if resort to it be advantageous either in respect of deterring or correcting offenders. If, however, the efficacy be not established by experience, we should certainly be inclined to reject it altogether, except in the instance in which it has lately been imposed by the Legislature, as constituting a signal mark of ignominy. We think that, so far from extending this species of punishment, it would be better to reject it, except in the instance to which we have alluded, and a few, if any others, which it may be proper to mark with signal reprobation. It is a punishment which is uncertain in point of severity, which inflicts an ignominious and indelible disgrace on the offender, and tends, we believe, to render him callous, and greatly to obstruct his return to any honest course of life."
The Act which the Commissioners specifically excluded from their recommendation was the Treason Act, 1842, which made it an offence to discharge or aim any firearm at the Sovereign and provided that any person convicted of such an offence might be ordered to be whipped not more than three times, either publicly or privately, in addition to a sentence of imprisonment. This Act was the result of the great public indignation aroused by the incidents in which the life of Queen Victoria had appeared to be threatened in May, 1842, and the Act had been passed only a few months before the Report of the Commissioners was presented.
3. The recommendations made by the Commissioners on the Criminal Law formed the basis for the great criminal statutes of 1861, which amended and consolidated the English law regarding coining, forgery, larceny, malicious damage, and offences against the person. None of these statutes made any provision for whipping as a penalty for persons over 16 years of age: and, as whipping under the common law for misdemeanours was already falling into disuse, the effect of these Acts was that, with four exceptions, whipping was abolished as a penalty for adult offenders against the criminal law in England. The exceptions were contained in the Vagrancy Act, 1824, the Treason Act, 1842, and certain provisions in (a) the Diplomatic Privileges Act, 1708, and (b) the Knackers Act, 1786, which prescribed whipping as a penalty for (a) instituting, or assisting in the institution of, certain actions against an Ambassador or his servants and (b) the irregular slaughtering of horses and cattle.
In the following year a similar change was made in the law of Scotland by section 2 of the Whipping Act, 1862, which provided that in Scotland no person over 16 years of age shall be whipped for theft or for crime committed against person or property. Legal authorities are of opinion that this restriction would not apply to offences of treason and that whipping would still be a competent penalty, in Scotland as in England, for an offence under the Treason Act, 1842. As regards the three other exceptions made in England no question arises, since neither the Diplomatic Privileges Act, 1708, nor the Knackers Act, 1786, nor the Vagrancy Act, 1824, applied to Scotland.
4. While the whipping of adults was thus curtailed, it was recognised by Parliament that corporal punishment was often more suitable than imprisonment as a penalty for young offenders. In 1847 the Act 10 & 11 Vic. c. 82 empowered Justices to deal summarily with offences of simple larceny committed by persons under 14 years of age, and provided that boys so dealt with might be ordered to be once privately whipped, either instead of or in addition to imprisonment. This Act laid the foundations for the present powers under section 10 of the Summary Jurisdiction Act, 1879, by which summary courts may punish by whipping boys under 14 who are convicted summarily of any indictable offence.
In Scotland similar powers were conferred by section 6 of the Prisons (Scotland) Act, 1851, which provided that any Judge or Magistrate might punish by private whipping any boy under 14 convicted of any offence punishable by imprisonment or by fine with the alternative of imprisonment. This provision was re-enacted in section 74 of the Prisons (Scotland) Act, 1860, and a similar provision was later enacted in section 514 of the Burgh Police (Scotland) Act, 1891. Apart from these statutory powers, which applied only to boys under 14 years of age, the powers of ordering whipping under the common law of Scotland were preserved by section 2 of the Whipping Act, 1862, in relation to boys up to the age of 16 years.
In addition to these general powers, specific provisions were included in the English statutes of 1861 enabling courts of Assize or Quarter Sessions to order boys under 16 to be once privately whipped if convicted on indictment of certain offences against the person and certain offences of larceny and malicious damage to property.
5. The general principle was thus adopted in England in 1861, and extended to Scotland in 1862, that whipping is an unsuitable penalty for adults who offend against the criminal law but might be retained as a penalty for young offenders under 16 years of age. By this time Parliament had also adopted the two further principles that no offender should be whipped more than once for the same offence (section 2 of the Whipping Act, 1862); and (so far as concerned the new powers conferred by the various statutes after 1842) that the practice of administering whippings in public should discontinued.
It was not long before a breach was made in these genera1 principles. In the latter part of 1862 there was an outbreak of robbery with violence in London, and in a number of cases the violence took the form of "garrotting", i.e. attempting to choke or strangle the victim. This outbreak caused great public alarm -- probably much greater than was warranted by the facts -- and when it finally culminated in an attack on a Member of Parliament, a Bill was introduced by a Private Member proposing to add whipping to the penalties already available for garrotting (under section 21 of the Offences against the Person Act, 1861) and for robbery with violence (under section 43 of the Larceny Act, 1861). The Bill proposed that offenders should be liable to be "once, twice or thrice privately whipped", and this provision for repeated whippings was a further infringement of the principles adopted in 1861. As will be shown later (see paragraph 56), the wave of crime with which it was designed to deal had already passed before the Bill was introduced: but it passed into law as the Garrotters Act, 1863 -- against the advice of the Home Secretary of the day, by whom it was described as "panic legislation after the panic had subsided". This Act did not apply to Scotland.
In 1885 a further power of whipping was added to the statute book by section 4 of the Criminal Law Amendment Act, which provided that a boy under 16 years of age may be ordered to be whipped, in lieu of imprisonment, on conviction of unlawful carnal knowledge of a girl under 13 years of age. Being limited to boys under 16, this involved no breach of the principles adopted in 1861. The Act applied to Scotland.
In 1898 a Bill was introduced to extend the Vagrancy Act, 1824, by providing that any male person living on the earnings of prostitution or soliciting for immoral purposes should be deemed a rogue and vagabond within the meaning of that Act. When the Bill was in the House of Commons it was pointed out that, in view of the provisions of the Act of 1824 regarding incorrigible rogues, this would have the effect of rendering such persons liable to whipping on a second or subsequent conviction of the offence. The Government at first accepted an amendment repea1ing entirely that part of the Act of 1824 which authorised the punishment of whipping: but later, in the House of Lords, they deleted that amendment and the Bill was passed in its original form, so that persons convicted more than once of these offences were rendered liable to be whipped by order of Quarter Sessions as incorrigible rogues. The reason given by the Government for this decision was, not that whipping was a suitable penalty for these offences, but that it was inappropriate to repeal all the powers of whipping under the Act of 1824 in a Bill designed only to extend the categories of persons to whom that Act applied. The new Act did not apply to Scotland.
In 1912 there was widespread alarm about the White Slave Traffic. This traffic was believed to be assuming large proportions, and it was claimed that the penalties under the existing law were not sufficient to enable it to be suppressed. This alarm led to the passing of the Criminal Law Amendment Act, 1912, which provided (a) that male persons convicted of procuring should be liable to be once privately whipped and (b) that male persons charged with living on the earnings of prostitution or soliciting for immoral purposes might be proceeded against on indictment (instead of as rogues and vagabonds under the Vagrancy Acts) and might, on a second or subsequent conviction, be ordered to be once privately whipped. This Act applied to Scotland.
In 1914 it was provided, by section 36 (1) of the Criminal Justice Administration Act, that no person shall be sentenced to be whipped more than once for the same offence. This finally removed the anomaly that, in spite of the similar provision in section 2 of the Whipping Act, 1862, persons convicted of garrotting or robbery with violence had been liable under the Garrotters Act, 1863, to be sentenced to one, two or three whippings for the same offence.
It was also provided, by section 36(2) of the Criminal Justice Administration Act, 1914, that no person shall be sentenced to be whipped otherwise than under a statutory enactment. The old common law power to order whipping for misdemeanours had not in fact been exercised by the courts for a great many years, but the power still existed in law until it was finally extinguished, in England, by this provision in the Act of 1914.
6. Corporal punishment for offences against prison discipline stands on a different footing from the other categories of corporal punishment considered above; and, when the powers of whipping adults for criminal offences were curtailed in 1861, no question arose of modifying the provisions authorising corporal punishment in prisons. At that time the position in English prisons was governed by section 42 of the Gaol Act, 1823, and by section 1 of the Convict Prisons Act, 1850. In local prisons the Visiting Justices, or one of them, might order a prisoner to be punished by personal correction for any repeated offence against the Prison Rules or for any serious offence with which the Governor was not himself empowered to deal. In convict prisons corporal punishment could be ordered only by the Directors of Convict Prisons and only for a limited number of offences specified in Rules made by the Secretary of State. In later years the position in local prisons was assimilated more nearly to that in convict prisons: and finally in 1898 the offences for which corporal punishment could be imposed in either type of establishment were limited by statute to three -- mutiny,
incitement to mutiny, and gross personal violence to an officer or servant of the prison -- and the power to award this punishment was conferred on the Boards of Visitors and Visiting Committees, subject to confirmation in every case by the Secretary of State (Prison Act, 1898, section 5). When Borstal detention was introduced in 1908, it was provided by section 4(2) of the Prevention of Crime Act, 1908, that the Prison Acts should apply to a Borstal Institution as if it were a prison; and in England persons detained in these Institutions thus became liable to corporal punishment for offences against discipline in the same way as persons detained in prisons.
In Scotland there has never been power to order corporal punishment for any offence against discipline in local prisons or in Borstal Institutions. In Scotland this power exists only in relation to persons serving sentences of penal servitude in Peterhead Prison. It is derived from section 23 of the Peterhead Harbour of Refuge Act, 1886, which empowered the Scottish Prison Commissioners to build a prison for male convicts at Peterhead and conferred on them, in relation to that prison, all the powers then exercisable by the Directors of English Convict Prisons in relation to convict prisons in England. The Prison Act, 1898, did not apply to Scotland, and the restrictions which that Act imposed on the use of corporal punishment in English prisons were not extended to Scotland.
SUMMARY OF THE EXISTING LAW.
7. The following is a summary of all the offences for which corporal punishment may be inflicted under the provisions of the existing law:-
COURTS OF SUMMARY JURISDICTION.
ENGLAND AND WALES.
Summary Jurisdiction Act, 1879, section 10(2). -- Boys under 14 years of age who are convicted summarily of any indictable offence may be ordered to be whipped.
Common law. -- Boys under 16 years of age, convicted summarily, may be ordered to be whipped for a wide range of offences at common law.
ENGLAND AND WALES.
Diplomatic Privileges Act, 1708, section 4. -- Male persons instituting any process which might result in the arrest of, or distraint on the goods of, the Ambassador or Minister of any foreign State; any attorney or solicitor acting in their behalf; and any officer executing any writ or process in connection with the action. On conviction before the Lord Chancellor or the Lord Chief Justice.
Knackers Act, 1786, sections 8 and 9. -- Male persons convicted on indictment of unauthorised or irregular slaughtering of horses or cattle without a licence. This offence is triable at Assizes or Quarter Sessions.
Vagrancy Act, 1824, section 10. -- Male persons convicted as incorrigible rogues and committed to Quarter Sessions for sentence: e.g., persons convicted of a second or subsequent offence of indecent exposure, sleeping out, failure to support family, etc.
Treason Act, 1842, section 2. -- Male persons convicted on indictment of discharging or aiming a firearm at the Sovereign. This offence is not triable at Quarter Sessions.
Garrotters Act, 1863, section 1. -- Male persons convicted on indictment of attempt to choke, suffocate or strangle with a view to facilitating the commission of any indictable offence. This offence is not triable at Quarter Sessions.
Larceny Act, 1916, section 23(1). -- Male persons convicted on indictment of robbery armed, robbery in company with one other person or more, or robbery with personal violence. The penalty of whipping was originally applied to these offences by the Garrotters Act, 1863, and this provision was transferred to the Larceny Act, 1916, on consolidation. These offences are not triable at Quarter Sessions.
Criminal Law Amendment Act, 1912, section 3. -- Male persons convicted on indictment of an offence of procuring under section 2 of the Criminal Law Amendment Act, 1885. This offence is not triable at Quarter Sessions.
Section 7(5). -- Male persons convicted on indictment of a second or subsequent offence of living on the earnings of prostitution under the Vagrancy Act, 1898. This offence is triable at Assizes or Quarter Sessions.
Section 7(5). -- Male persons convicted on indictment of a second or subsequent offence of soliciting for immoral purposes under the Vagrancy Act, 1898. This offence is triable at Assizes or Quarter Sessions.
Boys under Sixteen.
In addition, the following statutes confer special powers to punish by whipping boys under 16 years of age who are convicted on indictment of specified offences. A few of these offences are not triable at Quarter Sessions, but the majority can be tried either at Assizes or at Quarter Sessions.
Larceny Act, 1861. -- Sections 12, 13 and 16: certain offences relating to deer.
Malicious Damage Act, 1861. -- Offences of malicious damage to property under the following sections of the Act: -- 1-1O, 14-23, 26-33, 35, 39, 42-48, 50 and 54.
Offences against the Person Act, 1861. -- Offences under sections 16, 28-30, 32 and 64.
Criminal Law Amendment Act, 1885, section 4. -- Unlawful carnal knowledge of a girl under 13 years of age. In this case whipping is in lieu of imprisonment. This offence is not triable at Quarter Sessions.
Larceny Act, 1916. -- Offences of larceny, receiving, embezzlement, and demanding money with menaces, under the following sections of the Act:-- 2, 8, 10, 16, 17, 29, 33, 34 and 37. The penalty was originally applied to these offences by the Larceny Act, 1861, and the provisions were transferred to the Act of 1916 on consolidation.
Treason Act, 1842, section 2. -- Male persons convicted on indictment of discharging or aiming a firearm at the Sovereign.
Criminal Law Amendment Act, 1912. Section 3. -- Male persons convicted on indictment of an offence of procuring under section 2 of the Criminal Law Amendment Act, 1885.
Section 7(5). -- Male persons convicted on indictment of a second or subsequent offence of living on the earnings of prostitution under the Immoral Traffic (Scotland) Act, 1902.
Section 7(5). -- Male persons convicted on indictment of a second or subsequent offence of soliciting for immoral purposes under the Immoral Traffic (Scotland) Act, 1902.
Boys under Sixteen.
Common Law. -- Boys under 16 convicted on indictment, as well as summarily, may be ordered to be whipped for a wide range of common law offences.
Criminal Law Amendment Act, 1885, section 4. -- A boy under 16 convicted on indictment of unlawful carnal knowledge of a girl under 13 may be ordered to be whipped in lieu of being sentenced to imprisonment.
ENGLAND AND WALES.
Prisoners who have been (i) sentenced to penal servitude or (ii) convicted of felony or (iii) sentenced to imprisonment with hard labour may be ordered corporal punishment for:-
(a) gross personal violence to an officer or servant of the prison;
(c) incitement to mutiny.
Corporal punishment can be ordered only by the Visiting Committee or Board of Visitors of the Prison, and the order is subject to confirmation by the Secretary of State.
The same provisions apply to persons convicted of felony who are detained in Borstal Institutions.
Persons serving sentences of penal servitude in the convict prison at Peterhead are liable to corporal punishment for the following offences against discipline:
(a) mutiny or open incitements to mutiny;
(b) personal violence to an officer or servant of the prison or a fellow prisoner;
(c) grossly abusive or offensive language to an officer or servant of the prison;
(d) wilfully or wantonly breaking prison windows or otherwise destroying prison property;
(e) when under punishment, wilfully making a disturbance tending to interrupt the order and discipline of the prison;
(f) any other act of gross misconduct or insubordination requiring to be suppressed by extraordinary means.
Corporal punishment can be ordered only by the Secretary or Deputy Secretary of the Prisons Department for Scotland, and it is the practice to submit each case to the Secretary of State for Scotland before the corporal punishment is carried out.
There is no power in Scotland to inflict punishment for disciplinary offences in local prisons or Borstal Institutions.