What’s the point of criminal justice history?

What’s the point of criminal justice history?


Good evening everyone and thank you for joining
us at this the 10th lecture in our special 50th Anniversary Inaugural Lecture series
and what an anniversary year it’s turning out to be. My name is Professor Kevin Hetherington,
I am the Pro-Vice-Chancellor for Research, Enterprise and Scholarship here at The Open
University. I am proud and privileged to be hosting one of the University’s 50th anniversary
celebration events which showcase our research, our teaching, and our knowledge exchange.
Now each year the Vice-Chancellor invites newly appointed and promoted Professors to
give an Inaugural Lecture. Over the course of a year our Inaugural Lecture series provides
an opportunity to celebrate our academic excellence. With each lecture representing a significant
milestone in an academic’s career. This evening we will hear from Paul Lawrence who
is the Asa Briggs Professor of History. He will explore with us how an historical perspective
on crime and its control can contribute to contemporary understandings of criminal justice.
Its apt for him to be delivering a lecture on this theme in the same year that the OU
is celebrating its 50 years during a time perhaps of reflection on the past and the
present. And now some background on Paul Lawrence.
Professor Paul Lawrence has taught and researched in the History department at The Open University
since 1998. He is currently the Head of History and holds the Asa Briggs Chair in History,
a post that is named in honour of the noted social historian and former Chancellor of
The Open University, Asa Briggs. Professor Lawrence’s research interests include all
aspects of criminal justice history from circa 1750 to the present. His current research
and recent publications have focussed on the Vagrancy Act of 1824 and the development and
impact of Photofit as a technology of police identification, and he has also done work
around theoretical reflection on the ways in which historical research can illuminate
contemporary, social and political issues. He is the current Editor of the bilingual
journal Crime, History and Societies. So it now gives me great pleasure to introduce Professor
Paul Lawrence. Hello everyone in the room and hello everyone
who is watching online, whether it’s both of you or all 10,000 of you, it could be either.
Thank you for coming to my lecture and thank you Kevin for that very generous introduction.
It’s quite unusual in academic life to be given what’s called an ‘open brief’,
to be asked to talk about essentially whatever you want. So preparing this lecture has been
really fun actually. A colleague of mine who can’t attend this evening because he is
poorly, emailed me to say that he said he would be watching on the LiveStream and his
daughter asked him ‘will it like watching the film Frozen’. So I can’t promise that
it will be quite that entertaining, but I will do my best. I’ve decided to focus my
lecture around quite a broad and I guess fairly provocative question, what’s the point of
criminal justice history? This might seem a bit odd at this point. Kevin has just said,
you might be thinking ‘wait a minute, he’s just been doing this for 21 years and he’s
only now asking what’s the point’. Well obviously I have thought about this before.
I have for a number of years been thinking about this very question, because it struck
me, and I’m probably not the only one that this has struck, that there’s quite a lot
of criminological work which is very focussed on the present and doesn’t really address
even the recent past very much. There is also quite a lot of historical work on crime and
criminal justice that just sticks firmly in the past and doesn’t really ever attempt
to reach out to the present. So for a number of years now I have been trying to think through
some different ways in which we could have more of an informed dialogue between the past
and the present. Sorry you might get slight motion sickness in the front row, but just
roll with it, you know, exit by the gift shop. So before I start I thought I would say a
few words just to frame this question a little bit more clearly. So when I tell people I
am the Head of History at The Open University, I would say at least three-quarters of people
say exactly the same thing. It happened just last week with my barber. What they say is
‘oh I hated history when I was at school’ but then they pause a bit and then they go
‘which is weird because now I think it’s really interesting’ and I think you would
probably find quite a lot of historians which would agree with that. I certainly didn’t
like history very much at school myself but now I find it really interesting. It’s not
always really interesting. I was at The National Archives a couple of weeks ago and I held
in my hand the report of the Home Office Working Party on the Electric Blanket Safety Regulations
1971. I did leaf through it but it wasn’t the funnest day at the archives. But in general
I suppose the point I am making is, I think history is fascinating. We are talking essentially
about the record of everything that has happened in the world ever. So if you can’t find
something interesting in there you are probably not looking.
But let’s unpack that question a bit more. In what way is history then more than just
interesting. So I’ve called this slide, I started to call it The Problem of Historical
Utility, which is basically just a fancy academic way of asking ‘that’s interesting, but
so what’. So that’s the kind of big question that I am trying to address here. That’s
interesting, but so what. So to start to think about that I would like to consider first
a particular crime which took place in 1849. So billed at the time by some as the trial
of the century. So on the 9th August 1849 Maria Manning and her husband Frederick planned
and excecated the murder of Patrick O’Connor who was a money lender. So they did him in
and they buried his body under their kitchen floor. They then split up and fled, not very
successfully because Maria was caught in Edinburgh and Frederick was later caught in Jersey.
So the trial of a husband and wife attracted very considerable interest. So you can see
here, maybe you can’t read it, but that news report flags how crowded the court was
from the very outset and particularly how many women were attending the trial. Maria
and Frederick were both sentenced to death. So their execution in November 1849 attracted
huge public interest. It took place outside Horsemonger Lane Gaol which is in what is
now Southwark in London. A crowd estimated to be up to 30,000 waited through the night
to watch the double execution in the morning. Maria and Frederick were executed, as the
kind of rough wood cut, by William Calcraft who was at the time the official executioner
of the City of London who was midway through a career which would see him execute in excess
of 450 people. Newspapers, and you can see a little quote that I have typed out there,
were a bit outraged that “many apparently respectable persons had booked rooms to watch
the double execution”. Among them was this man who rented a room with some friends to
watch the execution and was so horrified by what he saw that he wrote a letter to The
Times the next morning. In his letter he claimed that he had attended the execution merely
to observe the crowd for journalistic reasons. I was like yeah I’m sure that’s what you
were doing. You see there he talks about the wickedness and levity of the immense crowd,
the atrocious bearing, looks and language of the assembled spectators. So he is outraged.
So the letter writer, who some of you might have recognised, is Charles Dickens. So Charles
Dickens, who is a noted writer even at the time, has booked a room with some friends
to watch a double execution at dawn. So on one level when I was reading about this I
was thinking that’s just really interesting right. Public outcry, the crowd, it is really
interesting but is it more than that? What can this lead us to in the present? I was
reminded at that point by a quote that I quite liked, so this is Frederick Maitland, there’s
a picture of him there, looks like he’s reading a paper actually, but he said, he’s
an early legal historian, who wrote “If some fairy gave me the power of seeing a scene
of one of the same kind in every age of history I would choose a trial for murder because
it would give me so many hints to a multitude of matters of first importance.” So I think
the device of contrasting the past with the present can be in some ways useful. So, for
example, what I just related, the example of the execution of the Mannings, reminds
us I think that punishment used to be a very social activity. If you go far enough back
punishments were carried out and delivered and executed by the community collectively,
but even once the state starts to assume control of the function of punishment by the mid-19th
century, there’s still a social or communal aspect to the delivery of punishment. So I
think these days we are very wedded to the idea still of justice being done in public
in terms of court attendance. Courts are usually public places, but punishment has gradually
slipped from view, from public view at least, behind the walls of a prison. In fact prisons
themselves are no longer built in central, imposing urban locations like Horsemonger
Lane Gaol, they are usually tucked away in the countryside or on the edge of an industrial
estate. So I think thinking about that, it might us
reflect a little bit about whether this once social collective activity is now being administered
in the right way. So that’s an example maybe of something which is interesting and it maybe
makes us think about the present a little bit. As Maitland says it maybe hints at matters
of the first importance. But for me, I don’t know about you, that’s a bit vague. In the
example I have just given you the past it kind of problematises the present, it makes
you think differently about the present a bit. Don’t get me wrong that’s a good
thing. I think perspective from the past is good, but in the example I have just given
you the past doesn’t really explain anything about the present, it just causes you to reflect
a little bit. So in my lecture what I am hoping to do is to move out from that and to decide
whether thinking about crime and its control in the past, can tell us anything more specific,
anything more useful, in the present. So what I am planning to do in the remaining time
of the lecture is to give you two different examples of that question, drawing on some
recent research. Looking round the room there is probably maybe three or four colleagues
who have probably heard all this before. So apologies for that but you can brief me afterwards
on what I got wrong this time. So I’ll give you two examples. So I’ll
give you a very specific example based around Photofit which is a technology of police identification.
I will argue there that there are some very specific things about the way in which the
criminal justice system functions today that you can’t really understand unless you take
a longer view. Equally I will give you what I have called a systemic example. So as well
as understanding particular things in the present, I’ll argue that it’s only really
via historical research that we can fully appreciate and understand how the criminal
justice system, the law, the police, the courts, the mechanisms of punishment, how it functions
as a system, and the example I am going to use there is the Vagrancy Act of 1824 which
believe me is much more interesting than it sounds.
So first of all Photofit. You may well be familiar with Photofit. So these here are
Photofits. This one is a Photofit I tried to make of myself when I had a slightly different
haircut, which is, I am not going to say anything about that laughter. OK so the Photofits are
composite kind of photographic seaming images of faces built up from different facial features.
But where does that technology come from? So I am going to run through some of these
images to give you a brief overview of the story of police identification techniques.
So for most of the 19th century when police officers gathered descriptions of suspects
from witnesses they would be written, so you know ‘looked a bit shady, had a tattoo on
his arm’, that kind of thing, and circulate those. Then from the later 19th century a
succession of different technologies were used. So towards the end of the 19th century
the first artists impressions started to appear. So this here is one of the first ones which
was printed in The Daily Telegraph in June 1881. So the criminal depicted there is a
chap called Percy Lefroy Mapleton who was arrested and convicted for the murder of Issac
Gold on the London to Brighton train in June 1881. So Mapleton and Gold, just really briefly,
entered a 1st class carriage. You have to remember the carriages at the time were not
interconnecting. So there is no way on or off the carriage except at a station. Mapleton
emerged at Brighton looking a bit dishevelled with some splatters of blood and a gold chain
sticking out of his shoe. There was no one else in the carriage so the police who question
him initially think maybe he has been trying to commit suicide, but he convinces that he
wasn’t so he disappears. They then find the body of Gold who he had been thrown out
the train in the Haywards Heath tunnel and then need to find him. So this image is produced,
it’s printed in the newspapers and Mapleton is eventually recognised by his landlady and
arrested and charged, as you can see. That’s quite a profile so you would probably recognise
him. This kind of ad hoc use of police artists persists into the 20th century. But obviously
not many police officers are skilled artists and it’s quite expensive and time-consuming
to get artists in to work for the police. So the hunt was on for a new form of technology.
So what you see here in this image is what’s called an Identikit. So Identikit is a system
developed in America in the 1940s and it consists of a series of transparencies which are built
up. Transparencies with line drawings of features and you build them up to make a composite
face. Identikit was first used in Britain in 1961 to identify the murderer of Elsie
May Batten who was stabbed to death in the antique shop where she worked in Charing Cross.
So this is the Identikit which was released. It was circulated internally within police
forces and also externally in newspapers with the result that a police officer on the beat
recognises Edwin Bush, who was the guy that was convicted for it, and arrested him. So
that’s what an Identikit looks like. You can see here the different transparencies.
If I show you now, so if you look at the Identikit here and I can show you what Edwin Bush looked
like, and actually that’s quite good. I mean, that’s unusually good. So Identikit
then becomes the technology of choice which police forces are using. But despite successes
like this many forces aren’t really happy with this. It takes quite a long time to produce
a decent Identikit image and because the kit is made in the US and has to be imported they
have a lot of problems with features in the kit. So the police forces make repeated requests
for hats. They want British hats, a bowler hat, they want a beret, they ask for I think
it is called a Robin Hood hat which if anyone knows what a Robin Hood hat is other than
a, that would be good to know. They want teddy boy and other UK specific hairstyles which
don’t come with the kit. They also make requests for buck teeth and warts. So Identikit
isn’t particularly successful. Lots of forces don’t like it and the Home Office and British
police forces are trying to find a new thing. Step forward, in the late 1960s, a man called
Jacques Penry whose real name is Bill Ryan, but we will come to that later. So he produces
a new system, in the late 1960s, almost coincidental with when the OU is being set up, around that
time of innovation, and he has an idea for a new system with photographic replicas of
facial features. So his system has 5 component features, eyes, nose, mouth, ears, and hairline
and jawline and a Photofit kit. I can show you one there, no that’s wrong, there we
go, a Photofit kit and you can see one on display in the foyer. If you haven’t had
a look yet do have a look. So a Photofit kit has about 500 different variants of these
features. So Penry then with Home Office approval developed a prototype of this Photofit kit
and as an indicator of how amateur the process was, and we will come back to this later,
he makes it in his dining room in Tunbridge Wells on the dining room table by cutting
all the photos out and sticking them on pieces of cardboard and as he later recounts the
central heating played merry hell with all the things which curled up at the edges. He
convinces the Home Office, the Home Office commissions it and rolls it out. OK. So I
won’t say much about it now, but the point I would like to make is Photofit becomes the
bedrock for a succession of successor technologies. So it is developed into a computerised version
which just works on a computer and then which is called EFIT, and then there’s a video
version which is later produced EFIT-V. So EFIT-V and some of these technologies are
still in use and in fact Photofit itself was still in use until the 1990s. So it’s an
important technology that the police use. But here’s the thing.
There’s the Photofit kit, here is the man himself, Jacques Penry. They launch Photofit
at the Savoy in 1970. Times were different then. It’s being produced by Waddington
the board game manufacture who make Monopoly. So they are the ones who lay on the champagne
reception, all the camera crews are invited. It’s a big deal. The Home Office minister
who is present, big spiel, valuable innovation. By 1974 everyone in the UK is using it, 24
countries around the world. So it’s quite a big deal. Here’s the thing though. They
evaluate the prototype and it doesn’t really work. It doesn’t really work any better
than the other things that they have got. But they think let’s commission it anyway
because we’ll probably improve it. Then they test it afterwards and it still doesn’t
really work. So my question then, when I came to this was, why does something that doesn’t
really work, why is it commissioned and rolled out. To answer that question you have to know
a little bit more about this man. So this is Jacques Penry whose real name was in fact
Bill Ryan. Penry was variously described in his lifetime as a facial typographer, a psychologist,
a journalist, an illustrator, a television personality, an inventor and a boffin. I would
probably call him an entrepreneur. One thing he isn’t is a scientist. This has been so
much fun putting together. When I first found him in a historical record, which is in about
1935, Penry is working as a quick sketch artist at the big private parties. So you book him
for your party. He’ll sit down at your table and sketch you. While he does that he will
give you a character reading saying ‘well with your features, I think you are probably
this kind of person’. So he’s doing a gig at the Grosvenor House Hotel and he happens
to do this sketch and give a character reading for a feature writer at the Daily Express.
The guy from the Daily Express is so impressed he writes this up in the paper the next day
and asks readers to send in pictures of their profile showing their nose and Penry will
then give them a character reading. So lots of readers do this, there’s a headline in
the Mirror that says ‘The Noses Come Rolling In’. So that’s how he starts off but he
realises quite quickly there’s money in this. So he writes a book. This is the cover
of his first book, Character from the Face. The subtitle of this is A complete explanation
of character as it is shown by the size, proportion and texture of each feature. So most of the
book is pictures of eyes and noses and mouths and it kind of says well this type of ear
in conjunction with this type of mouth will portably be this type of person. So what Penry
is essentially peddling at this point is physiognomy. A kind of long-standing 19th century idea
that inward character traits are evident in the outward body. He then develops from this
a long and very varied career but essentially saying the same thing. It took me a little
while to piece it together but I have to be fairly brisk. So after he published the first
book he then gets a whole set of media engagements. So this one here is he was employed by Cow
& Gate, the baby food manufacturer, who have a special offer where you cut the coupon out
and send it back with a picture of your child and he will tell you what your child will
be like when it grows up. He also does a little line, once we get into the war period, he
has a little line where you can send your own picture and he will tell you what form
of war work you will be best suited to. Second, he then has a whole range of different newspaper
gigs, both for adults and children. He is featured then on Pathe news. I think I’ve
probably just got time to show you just a little bit.
Film: “Imminent psychologist Jacques Penry. It’s my business to detect and analyse facial
characteristics. Every year I make my observations on approximately 20,000 people and the majority
of these are boys and girls. I would like you to observe for yourselves the vast difference
between two young girls of opposite type. I shall illustrate these on the board.”
So I can’t show you it all but yeah maybe I will show it later. So he is on TV a bit,
he patents then in the later 30s a board game called Physogs. You will see here how much
this looks like a Photofit kit. I also have a copy of that in the foyer so do go and have
a look at that if you haven’t seen it. It’s quite hard to outbid boardgame collectors
on eBay. They are fierce. There’s one of those in the Museum of Modern Art in New York
but it was cheaper to buy it on eBay. Anyway so he does that, he writes another book after
the 2nd World War, the Face of Man. He has his own mini TV series on the BBC in the 1950s
called Lets Make Faces. It has celebrity guests, he will sketch them. He is still peddling
the same, if I draw you like this, it means you are this type of person. So don’t forget
in the 1950s there’s not that many channels and he’s getting a large share of the viewing
audience. However, by the time we get to the 1960s this media career has all dried up.
So he is writing to his usual contacts and he’s not getting anywhere. He has lost all
of any money he ever had, he had lost, of all the things to have done, he opened a Canadian
themed boutique in Tunbridge Wells in 1966 which unsurprisingly, I don’t know, maybe
there wasn’t a big demand for beaver coats. So he is bankrupt and in the last roll of
the dice he writes to the Home Office and says ‘hey I’ve got a great idea that the
police might be interested in’. As I have said, there wasn’t really any science. I
hope I have kind of indicated there, it was quite brisk, but I hope I’ve indicated there’s
not a lot of science behind the development of Photofit. Early tests indicate that it
doesn’t really work. Later tests at the end of the 1970s indicate fewer than 5% of
cases that have a Photofit is it of any use and in most cases not at all. So why on earth
then is it kind of adopted and widely used. And what does this albeit interesting bit
of history tell us that might be of use now? Well I think there’s three maybe things
we can pull out of this. I think beware the law of pseudo-science. So Penry cloaked himself
quite convincingly as someone with an aura of science. He presented himself as a psychologist,
as a facial recognition expert. We are often tempted I think to imbue artefacts which appear
scientific or technological with an authority that their efficacy doesn’t really warrant.
Now I am not going to talk about it now, but if you think about some of the recent investigations
into forensics companies who have been doing work for the police or for the uses being
made of facial recognition software, or for the police use of so-called super recognisers.
I think there are parallels we can draw from the implementation and rollout of Photofit
which are worth thinking about in relation to contemporary commissioning decisions. I
think the second thing, I am not the first person obviously to say that technology is
socially constructed, but if we want to think about why on earth this technology was adopted,
it is the social context. So the police had a series of scandals in the 1960s, partly
around identification processes, partly around a whole range of other techniques and things
that they were doing. A new scientific research branch had been set up focussed on the police.
It was really looking for new things to commission. The police were really unhappy with Identikit.
So into this little social context popped Henry’s letter and it’s that context I
think which accounts for why the pseudo-science was so alluring. The other thing I think this
flags up is that once commissioned new technologies very rapidly have a vested interest wrapped
around them. But that’s not necessarily a bad thing. So that’s almost the most interesting
bit of this story is, as soon as Photofit is rolled out, police forces start appointing
Photofit operators and they start having networks and training conferences. So when the Home
Office says ‘this Photofit how’s it working out?’. There’s a group of people in whose
interest it is to say ‘oh its working pretty well. We could probably improve it if we had
some more money’. But the really interesting thing is that the psychologist, the group
of psychologists that the Home Office employs to test Photofit who initially say it doesn’t
really work, go on to develop a whole sub-field of facial recognition psychology which is
still flourishing today. I have colleagues at The Open University who are the kind of
beneficiaries of that early work and obviously the systems that there are today do work in
large part much better than Photofit did. So it’s not a bad ending, but I think the
loop of what happens to a new technology is kind of an interesting one and we, thanks
to a colleague Chris, we gave a version of a little bit of this research to some civil
servants at the Home Office and the bit about commissioning decisions taking on a life of
their own, got the most nods, they clearly had recognised that.
So a historical approach I think can tell us some interesting things about specific
bits of contemporary criminal justice practice. And a last little plug there. So my colleague
Graham Pike has produced on OpenLearn, which is our freely available platform, this great
little bit of learning material and an app called Photofit Me. So if you are interested
in it afterwards just have a look. You can go through this bit of the science of it or
you can also just have a play around and see how good you are at making a Photofit. It
is harder than you think. OK what’s next. So that’s a specific thing, that’s a specific
example of something I think you can only really understand if you look backwards. But
what about something systemic. So my second type of example is focussed more on the workings
of the criminal justice system as a system, and I think by understanding the long development
of different aspects of the system, the police, the courts, the mechanism of punishment, how
that all interreacts with politics and the public, we are able much better I think to
comprehend and effect change in the present. An example I will use there is some work I
have done on the Vagrancy Act of 1824. So the Vagrancy Act was passed as the culmination
of several decades or more of quite rapid social change and a fear really about a growing
mobile and unruly population. So obviously the Act is in part focused on begging and
rough sleeping and those bits of the Act are still in force today. If you get arrested
in Westminster for begging it’s under the Vagrancy Act of 1824. It also has in it the
prohibition of a huge range of other behaviour and I’ve listed just some of them there,
indecent exposure, soliciting, fortune telling, obscene publications, street betting, there’s
a whole range of different things that are stuffed into this quite short Act.
The bit I am going to talk about though just briefly is Section 4 which was intent to commit
a felony. So what’s interesting about that is, we are quite used to people being arrested
and charged and convicted for things they have done, but this is more about the history
of people begin arrested and charged and convicted for things they were suspected of being about
to do. Which is a much less well-known story. So you don’t necessarily need to read of
all this arcane language, that’s just a little section of Section 4. What it says
is basically two things. The first clause is about what came to be known as ‘going
equipped’. So if you are found somewhere with say a crowbar, or something that could
be suspicious like maybe you are going to do something with it, you can be arrested
and convicted under that. The second bit is almost more startling. It says that every
suspected person who is essentially anywhere, with intent to commit a felony could be subject
to the terms of the Act. If you are convicted under the Act you can have up to 3 months
of hard labour for the suspicion that you were about to do something. Even at the time
that was quite significant. The commentator Adolphus says that ‘people have noticed
this whereas heretofore no man could be apprehended but for the commission of an offence, being
suspected by a magistrate now draws down all the penalties of the substantive offence absolutely
committed’. So this Act is used almost immediately, so a few days later after the Act is passed,
in a single session at Bow Street Magistrates Court something like fifteen people are convicted
under the Act, including, its on there somewhere, two lads were charged with ‘lurking about
the avenues of the English Opera House with intent to commit a felony’ and both of them
were sentenced to two months hard labour for that intent to commit a felony. Elsewhere
in the country this is from the Exeter Flying Post, this is someone who was found near a
foundry. So even though it says ‘nothing was found on him, nor was anything that night
missing, of his bad intentions there could be no doubt’. So as you can see here I think,
these are cases proceeded against under the Act. So the dotted line is the average, so
it’s about 4¼ thousand cases just on this Section 4. This stretches from 1857 to 1970
so it goes up and down a fair bit but the Act is used quite substantially I suppose
is the point that I am saying. So we jump forward now to say the 1930s. You can see
there’s a noticeable spike in usage again. It has gone down a bit below our average and
then it comes right up again in the 1930s. Partly that is coincident with the struggle
between fascist and anti-fascist demonstrators because part of that is this Act is very handy
for just taking people off the streets. But it’s not just about that. What becomes apparent
in the 1930s is a really interesting dynamic where essentially the police slightly overstep
the mark in the zealous use of the Act. There’s a bit of a public outcry in the press. Questions
are asked in Parliament but then the powers are reaffirmed by the Home Secretary and the
government. So I’ve got a couple of cases there. So you get things like this. In 1933
Flying Officer Fitzpatrick. He turns out to be a decorated Flying Officer. He is dropped
off outside of town somewhere in London. He is walking home late at night. Two men approach
him and say ‘who are you, we are plain clothes officers’. He says ‘I don’t believe
you, I am not showing you what’s in my suitcase’. He gets arrested and then obviously it is
all over the papers the next day. You know ‘Decorated Flying Officer Arrested’. Ronald
Roberts 1934 arrested while posting a letter at night. These things happen quite frequently.
What happens is, again questions are asked in the House of Commons. The Home Secretary
comes under some pressure. He then turns to usually the Commissioner of the Metropolitan
Police and says ‘what’s going on here?’. The Metropolitan Police says ‘This is really
handy we really must hold on to these powers’ and then they are reaffirmed. So I think in
this period in the 30s there’s an intriguingly secret memorandum, Stops and Searches. So
the Commissioner there is saying ‘The energetic deployment of the power of arrest is a most
valuable means of checking crime. Without that power the police would frequently not
be able to act. But then in view of recent press hesitation and given how the house can
work itself into a frenzy about an isolated case, it might be wise to tighten the arrest
guidelines’. So they do, they focus on it for a little bit and the Home Secretary says
‘yes you can still keep arresting people’. So, this might have carried on for some time
were it not for the fact that by the time we get to the 1970s use of Section 4 has increasingly
become bound up with its use against young men, often young black men in inner city areas.
So I mean that’s what’s one of the interesting things is, in the 1930s it’s mainly people
over the age of 25 being arrested. By the time you get to the 1970s almost everyone
is under 21. Campaign groups such as Scrap SUS get formed in London and after a period
of activism, while the Home Office is still trying right up to the last minute to hang
on to these powers, they are eventually removed from the legislation. You have a quote there
from Lord Avebury as he introduces the bill to the House of Commons it struck me that
he is essentially saying the same as Adolphus was in 1824, that ‘it is outrageous that
a man of unblemished character can be sent to prison for 3 months when he has not committed
any criminal offence, merely because there is evidence that he intends to do so’.
So quite interesting maybe I hope, this kind of long story of challenge and counter-challenge.
But what does that actually offer us now in the present. Well I suppose I would say three
things here again. I do seem to like threes. So there is quite a lot of criminological
work and just a focus generally on what’s been called the rise of the preventive state,
writings about pre-crime. There is this idea that the state has recently stopped worrying
just about post-crime, like what you do when someone has committed a crime but has started
to look pre-crime. I suppose one thing I would say fairly obviously is that I don’t think
that’s as novel as has sometimes been assumed. The second thing I would say is that a broad
conception of deterrents and prevention were part of policing right from the start. So
the Metropolitan Police is set up in 1829 and grows and develops alongside pieces of
legislation like the Vagrancy Act. So I think the Vagrancy Act and similar pieces of legislation
really helped to shape the way in which the police have tended to deal with certain sections
of the public. Because of that the repeal in 1981 isn’t I think the end of more preventive
powers. So similar powers are embodied in a succession of different Acts in the 19th
century and in the 20th century. So because the police have arguably become accustomed
to the deployment of broad discretionary arrest powers, they find their way into other bits
of legislation such as for example Section 5 of the Public Order Act 1986 or Section
44 of the Terrorism Act 2000. So I think what this demonstrates for me is that the historical
routes of police culture and practice have some decidedly modern implications.
We have two there. I have given you two examples and I could give you more, two different answers
if you like to the ‘that’s interesting but so what’ question. I have had to give
those two examples quite briskly because I know there’s a wine reception waiting and
I don’t want to hold you back from that. But I would just make maybe a few concluding
remarks. So in answering my question ‘what’s the point of criminal justice history’ again
I have three things there. I think it does give what Maitland called glimpses of a multitude
of matters of the first importance. So the development of the criminal law, the mechanisms
by which crime is defined and controlled, the ways in which punishments are administered
are hugely significant social decisions. Even when the past doesn’t explain contemporary
practice directly, it does always I think provide points of comparison and reflection
which can prompt us to question and refine criminal justice today. I do think, and I
probably would say this, a historical approach can do more than provide just this kind of
perspective. While perspective is good I really do think there is a role for historical data
in explaining the present and in contributing to contemporary decision-making. That requires
collaboration of course. I am not saying that history is all you need to understand what
is happening now. But I think a historical view should form a greater part of contemporary
thinking about criminal justice than it currently does perhaps.
Finally again, our contemporary criminal justice system has built up over several centuries.
The criminal justice system we have today is by no stretch of the imagination what we
would design if we were to just design one from scratch now. If we want to understand
it as a system then we can only do that by understanding how it has developed. Questions
of crime, its definition, its control, I think are really always questions about power and
its social distribution. It’s only really by understanding the long accretion of power
as embodied in the criminal justice system in the past that we can work towards a fairer
and more efficient system in the future. Thank you Paul. We are now going to go and
take some seats over there and we will take your questions.
Hello my name is Florin Stima I am from Romania. My question is what is your opinion on why
does crime exist, because there are also like… and… What is your opinion? Why is there
crime in the world? Wow so a nice easy one to start with. Well
I think one of the things that you always focus on as an historian is that what is a
crime is socially constructed. So it sounds a facile point to make but things which weren’t
once a crime now are, things which used to be a crime now aren’t. So in a sense crime
exists because we define certain things as crime, is kind of the short answer. If you
are asking me why do certain types of actions occur, that’s a different question. So if
you look back over the history of violence, there is quite a lot of work done historically
on violence and murder. It tends to leave quite a lot of records. One of the overwhelming
bits of evidence is that lethal violence is in the main predominantly perpetrated by young
men under the age of 25 and there’s a whole set of arguments about why that should be
but partly it’s about impulse, control and the nature of young men. So I think as a broad
answer to your question things are a crime because we say they are, but then beyond that
you have to look at different types of crime to understand what brings that about. Obviously
you get again, the more possessions that you have the more acquisitive crime that you have.
So if you go back 250 years there wasn’t actually a huge amount to steal, we had various
other types of issues. OK thank you, next question. I think we’ve
got one online. Microphone at the front please. This has come in on LiveStream, it’s from
somebody called Sarah Merlin. How significant is an historical approach in a world of dynamic
social and cultural change? Thanks, yeah, I think what I would say to
that is one of the things that history can do really well is tell you what is actually
new and what isn’t. So there’s a strong tendency I think when studying the present
exclusively, to think of what is happening now as somehow novel and that can make it
appear unusual or overwhelming. So in some cases when you take a long view there are
some things which are genuinely new. It does happen. But equally very often you can show
what isn’t new. So it can help to diffuse or take some of the tension out of things
which are happening at present. OK. We’ve got a question at the front in
the middle. I am Chris Williams from History. Paul you
gave us some great examples primarily from the 20th century and also to an extent from
the 19th. Do you think that history becomes more relevant in this kind of study as we
get closer to the present or do you think there’s a point beyond which for example
we are not going to draw a great deal of lessons? That’s a good question. I think there is
a strong tendency to view data and evidence from nearer to our present time as somehow
more compelling and I think to a certain extent that is true but only to a certain extent.
I think once you go back to a time where you don’t have the structures of the state that
you currently have where local justice operates in a much more communal fashion. There is
a point at which direct explanation of the present falls away and for me that would probably
be as I said around, once you go much before 1750 you are finding a lot of the structures
of what we might consider criminal justice are not in place. So the direct evidence that
we might use is lacking. But I would argue that much after that you can find some very
directly relevant evidence. There’s some interesting criminological work about actuarial
justice and risk. So there’s a whole thing more recently about our criminal justice has
moved towards a risk-based approach and there’s some quite interesting work that says that’s
exactly what everyone was doing in about 1810. OK, a question up by the camera this side
of the room. Frances Chetwynd. I should start by admitting
to being a magistrate. I am interested to know whether you think we should have got
rid of all of our intent offences. So apart from going equipped, I mean possession with
intent to supply and possession of a bladed article for example should we have kept those
or not? Yeah I mean I certainly wouldn’t want to
have given the impression that I necessarily feel these powers were never justified. I
think what’s interesting for me is the way in which there is often a temptation to think
of the function of policing as just the application of the law. Whereas actually policing is much
more about discretionary action. So police officers have to decide in any given instance
whether to enforce bits of legislation or not. I think the intent clauses come into
that discretionary space and what’s interesting is, I think where the tensions arise is around
how much discretion there should be. So how much should the police be able to act on these
intent clauses, and I think sometimes, as I’ve said, I didn’t go into it in so much
detail, but in the whole 200 year period there’s this strong tension of police push a bit too
far and then pull back and that actually works quite well until you get to the 70s.
OK question at the front about four rows back. The microphone is coming your way.
Peter Leeson just someone generally interested in continuous learning. There’s someone
who’s name I can’t remember said that those who don’t study history are condemned
to repeat it. Do you feel that the current pressure of politicians in this country and
others to downgrade studies of things like history because these are not jobs of the
future is in any way justified, and does it reflect the fact that the decade following
the 2008 financial crash resembled immensely the decade following the 1927 financial crash,
with the global rise of nationalist isolationist governments?
I think, how to answer that question, I think one of the interesting things that has happened
to the profession of history is that it’s gone from being an extremely confident profession
to having a period when it’s felt very reticent about speaking to the present. So in the early
part of the 20th century historians would feel very confident about becoming involved
in politics, becoming involved in campaigning. I once did a quick tally of the first degrees
of Home Secretary’s, and most of them were historians, history was certainly the most
prevalent degree. You have some historians like George Gooch and Gladstone who move in
and out of academic life and politics. What happens in the later part of the century is
that you have the rise of social sciences, other ways of viewing the world, which have
more of the ear of government. So the Cambridge Criminological Institute and similar kinds
of organizations become the default mechanism for finding out about things like crime and
justice. So I think part of what I am trying to do and what other historians are doing,
is to reinvigorate the confidence of historians to speak to the present. I do think historians
are often quite good at running things. If you look at management positions they tend
to often have historians. So I have some hope that we can redress the balance. I’m feeling
like you gave me quite a complicated question there I maybe didn’t follow, so sorry if
I didn’t really fully answer it. But no, I don’t agree that history should be downgraded
in the curriculum. Indeed historians but geographers too. Any
more questions? Yes we’ve got several hands now so if we take one at the far end there
then we’ll come back. Mas Ali, I am a forensic psychiatrist. I primarily
work in secure mental health services. I’ve travelled down today from Rampton which is
a high secure hospital, people might have heard of. The theme of my question is related
to something you mentioned that is preventative incarceration. I am interested in your thoughts
and observations on where you see the mood currently in this country around related to
the political, social and cultural aspects. In my experience I see this vacillating swing
from one extreme to the other depending on what’s happening or what’s in the media
or whether there’s been a significant incident. So I am just interested in your thoughts and
reflections on that please. Yeah I mean I can’t really speak on that
with any authority. I think it seems to me that criminal justice incarceration is something
that is very difficult for the politicians and the public to come to a consensus on.
If you look back in the 20th century up until mid-century say, there was a strong feeling
in the Home Office that crime and criminal justice policy shouldn’t be something that
was political, that there would be a best way of doing it and it would be best not to
campaign on crime and criminal justice issues and that fell away in the latter part of the
20th century and became highly politicised. From what I know and I am not speaking from
any authority, there is clearly a percentage of the current prison population which needs
to be in prison for safety reasons but it’s probably a fairly small percentage.
OK I think I saw a couple more hands in the middle so maybe if we could take both of those
questions together. Again if we can get a microphone across.
Hello my name is Denise Latner McLaughlin, I am actually a graduate of the OU in Law.
You talked about how we redefine crime. Things that were criminal are now not and vice versa.
But the age of criminal responsibility has stayed the same for a very long time. Do you
think it should change? I’m going to skip that one in the sense
that well I just don’t feel I can speak on it with any authority. Sorry.
We did have an Inaugural Lecture earlier in the year that Jo Phoenix gave that was looking
at those kind of issues. I don’t know if that’s been recorded and we still have it.
It has. So you may want to look at that and I think that might be pertinent to that question.
Hello my name is Denise, I am from Clacton on Sea. I am studying law at the minute, just
literally started. I just wanted to thank you for the talk actually because it’s brilliant
to look at all the history and also just picking up on another question about how the criminal
systems all shaped in that law that’s created is actually done for ourselves so it’s how
we like to see it today. So nuisance and things like that is actually quite beneficial to
ourselves. It’s probably not a question but just thoughts of someone else’s question
beforehand. I’ve certainly found it a really interesting
process because I’ve not often studied the law that much but that Vagrancy Act piece,
as hopefully I demonstrated, over a couple of hundred years you go through and what I
couldn’t talk about was all the multiple cases which come to the courts and then get
challenged and go up to the Court of Appeal about what and what isn’t within the purview
of the Act. So there’s a big thing in the 1930s about these two police officers who
have seen someone trying door handles of cars successively and they nick him. They argue
that once he had tried the first door handle he then became a suspected person so they
could arrest him on the second door handle try. So it’s been really interesting to
me to see the complicated ways in which the law gets developed and refined.
A question at the back and I’ve just seen another hand go up.
Hello, my name is Julio, I came from Israel only for your conference. I want to ask you
if you can explain to me what is the role of the indirect and direct ways in that religion
and criminal justice are related more or less. Maybe you can explain it.
Yes that’s again a nice big question to finish with. I suppose one of the interesting
things is that the further back you go the more religion is involved in the systems of
justice. You will be aware probably that in the middle ages there are religious courts
and the overlap between the state and the religious structures of power is quite significant.
There’s a transitionary period where once you move into the 18th and 19th centuries
where the older religious courts and religious legislation is falling away but the state
courts are assuming certain kinds of bits of legislation which are essentially morality.
So some of the things around prostitution for example are essentially, it’s obviously
a big topic, but is essentially a legacy of a religious world view which is then translated
into a state held court view. I think we’ve got time for one final question
near the back. I’m Chloe and I’m currently studying law
here at the OU so I am just starting my first year. So obviously we have talked about the
history of the criminal justice system, what do you see for the future?
That’s a good one to end on. That is an excellent question. I see challenge
ahead. I can’t just get away with that. I think it depends which aspect of the criminal
justice system. Again I am not really speaking here as a specialist. I think looking historically
the prison system and the issue of what prisons are for, are they there for punishment, are
they there for rehabilitation, is it a mix of both is like a real challenge which is
being faced and worked through as we speak. I would say my colleague Ros has a display
of her prisons project out in the foyer, so on the way to the wine do have a look at that.
OK thank you everyone for your questions. Thank you Paul for a really fascinating and
interesting lecture and for answering the questions.

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