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PROFITS OR GAINS FROM FOREIGN POSSESSIONS —NO PROFIT IN YEAR OF ASSESSMENT-INCOME TAX ACT, 1918 (8 & 9 GEO. V. CAP. 40) SCHEDULE D, CASE V., RULE 1.-H, who lived in the United Kingdom, held shares in a tea company incorporated in Ceylon. He was not a director of the said company. The dividends declared on his holding had all been transmitted to this country, and up to 5th April 1920 he had been assessed on a three years' average, under Schedule D, Case V., Rule 1. The company declared no dividend for the year 1920, and consequently H received no income from these shares during the tax year 6th April 1920 to 5th April 1921. An assessment based upon the average for the three preceding years was made on him for that year, against which he appealed. Held that the liability to assessment depended on the existence, not of sources apart from profits, but of actual profits, and that the assessment in question fell to be discharged.-K.B. Div. (Rowlatt J.).-2nd July 1924.
The Hague Rules Explained: being the Carriage
impossible; and the first comment of the lawyer will be on the drastic interference with freedom of contract. In these circumstances it is needless to say that everyone, lawyer and layman, concerned with charter-parties and bills of lading is under the necessity of making himself acquainted with the substance and effect of these rules. All such persons will be grateful to Mr Cole for the prompt publication of his full and clear commentary on the rules and the statute which gives to them the force of law.
The Factory, Truck, and Shop Acts.
The war left its mark on our factory legis-
Law and Practice of Libel and Slander in a Civil Action, with Precedents of Pleadings, etc., and Canadian, Australasian, and American Cases on the Subject. By Clement Gatley, LL.D., B.C.L., Barrister-at-Law. 1924. London: Sweet & Maxwell Ltd. Price £2, 10s. net.
The outstanding feature of this bulky and All lawyers interested in shipping have long exhaustive treatise on the law of defamation been familiar with the controversies and the is the full citation of Colonial and American negotiations which resulted in the assembling authorities, wherever these throw light on of an international conference at the Hague to novel or doubtful points of the law. Scottish adjust the mutual rights and liabilities of cases are also cited, though these are often shippers and shipowners. The Hague Rules referred to as illustrating differences in the there adopted in 1921 have been the subject law. The reader will thus find in Mr Gatley's of much exposition and criticism. The inten- pages an exceptionally full treatment of this tion of the conference was that these rules branch of law, and he will, moreover, find the should be incorporated by agreement in future whole expounded with commendable clearness contracts of affreightment. In this country, and lucidity. The first half of the volume however, the Legislature has gone much explains the doctrines of the substantive law; further. By the Carriage of Goods by Sea Act, while the second half is concerned with matters 1924, Parliament has given to these rules the of procedure in which, of course, the English force of law. "Every bill of lading shall law is alone looked to. We welcome the book contain an express statement that it is to have as an important contribution to a branch of effect subject to the provisions of the said law which, though much written on in recent Rules.. Contracting out" is made | years, does not lose its interest or its importance.
THE HABITUAL CRIMINAL.
By The Hon. LORD SANDS, LL.D.
There are at least three ideas which may underlie the treatment by the law of serious crime. There is first of all the idea of retribution. This is doubtless the primitive idea, which law came to supersede private vengeance, and although it has fallen somewhat into the background, it cannot be said that it has altogether ceased to operate. In cases of violent outrage, savage cruelty, or heartless fraud, it still affects the popular and even the judicial mind and influences to a certain extent the administration of punishment. But, broadly speaking, it can hardly now be recognised as a working principle of criminal jurisprudence. We have come to realise more fully than was possible in the days when the words were written: "Vengeance is mine; I will repay, saith the Lord."
The second theory of punishment is that of deterrence. Offenders are punished in order that the prospect of like punishment may deter persons from committing the like offence. According to the old form of indictment, the accused person was, if convicted, to be punished in order to deter all others from the like offence. Mark all others." Not the criminal himself. So many crimes were capital in the old days that it would have savoured of the cynical to have indicated the deterrence of the accused himself from a repetition of the offence as one of the objects of the punishment; but undoubtedly in the present day deterrence of the accused himself from a repetition of his crime as well as the deterrence of other people from a like offence is part of the working theory of deterrent punishment. "Take that, and don't do it again or you'll get the same and more of it.' That punishment has a deterrent influence can hardly be disputed. Doubts have indeed been expressed by some as to whether, in so far as the deterrence is governed by the degree of punishment, this applies to capital sentences. It is pointed out that certain crimes, which in former times were capital offences, were more common in these days than they are now. am disposed, however, to think that this argument does not take sufficient account of the changes in social and material conditions. In the old days cattle-stealing was a capital offence. It may be that this crime was more prevalent in those days than it is now; but fences, telegrams and telephones, and motor cars have rendered it a far more difficult crime successfully to carry out. The thief must take
his cattle by the road, and twenty miles' start by road is nothing nowadays. Take, however, the theft of motor cars, which is now somewhat prevalent. Does anyone doubt that if the theft of a motor car were a capital offence very few cars indeed would be stolen ?
The third theory of punishment is that of reformation of the offender. Not, however, reformation in the old theological sense, in which chastisement itself, though for the present not joyous but grievous, yet worketh afterwards the peaceable fruits of righteousness in those that are exercised thereby. No doubt there is a theory that suffering following upon sin has a salutary or redeeming influence apart altogether from any question of deterrence. should be sorry to cast any doubt upon that. But this doctrine has a very limited application as regards the ordinary prisoner, and it is not the working idea of the reformatory element in criminal administration. No. The theory is that the nature and the conditions of the punishment are to be such as to allow reformatory influences to exercise themselves upon the mind and habits of the criminal. The reformatory idea, however, will not stand quite by itself. Divorced from any idea either of retribution or of deterrence it will not work. According to prevalent ideas, a man must have earned criminal pains before society can undertake his attempted reformation under any system or compulsion. However much a man may stand in need of reformation, however cruel, immoral, or depraved he may be, his reformation under any form of restraint or compulsion cannot be undertaken unless he has been guilty of some offence entailing punishment under the criminal law, apart altogether from any idea of reformation.
My subject, however, is not punishment of crime in general, but the treatment of the habitual offender in particular. In considering this matter, the subject to which I have just referred-reformation-has an important bearing. In the case of the habitual offender the reformative influences of our primitive systemthe reformatory school, the borstal institution, withdrawal by seclusion in prison from all temptations to drink, regular work, wise counsel, education, spiritual ministrations, outside agencies to help after discharge-these influences have all been tried with, on the whole, save in the case of a certain proportion of young offenders, disappointing results. As regards the habitual old offender, there is but slender hope that perseverance in these efforts will lead to any great result. God forbid that one should suggest that any soul is past redemption; but, humanly speaking, the chance of redemption of any man who has earned two long sentences is small, and in the interest of society we must
try to shape our policy upon the aggregate and not on the off-chance of the individual.
This was the line of reasoning adopted by the late Sir Robert Anderson, a criminologist of very wide experience, but also a man of most tender and humane disposition and of deep religious convictions. His idea was simple. There is a limited number of professional or habitual criminals in the country. More than half of these are in confinement at any given time. If they were all at large the volume of serious crimes of dishonesty would be doubled; if they were all in confinement the volume of such crime would be reduced to very small proportions. Moreover, the training of new habitual criminals would be greatly checked by the absence of trainers. Accordingly, he proposed that when a person is convicted of serious crime and, after full and careful enquiry, his previous record shews that he is a habitual criminal of an obstinate and professional type, he should not be released upon the expiry of his punitive sentence, but should be detained in confinement, not as continued punishment for his offence, but for the protection of the community, as one might detain a person affected with infectious disease. Like the inmate of a lunatic asylum, he should be made as comfortable as was compatible with restraint. Further, as his detention was not to be regarded as punitive, neither was it to be regarded as primarily reformatory with a view to release. He had been tried and found wanting as a free member of society, and, except under very special circumstances, he was not to be released, at all events until it was deemed that old age had rendered him harmless.
When this plan was submitted to Parliament the members of the Legislature were staggered by the idea of perpetual detention, the creation of a place of confinement, over the portals of which, as over the doors of Dante's Inferno, should be inscribed " All hope abandon ye who enter here." Accordingly, the plan was greatly modified, and, under the Act which became law in 1908, preventive detention was limited to a maximum of ten years, with a minimum of five. This limitation was associated with the reformatory idea which, in any sanguine aspect, was not part of the original scheme. If, according to the conception of that scheme, it is necessary that men should be detained, not for punishment, but for the protection of the public, it is illogical to limit the term to anything short of the arrival of the time when there is reason to believe in their harmlessness. The Act carried the reformatory idea still further than merely limiting the term and seeking to make provision for reformation by the time of the expiry of the sentence, for it contains provisions for the release on probation of the
person detained within the limits of the term of sentence.
The confusion of the two ideas of prevention and reformation occasioned misunderstanding, not only in Parliament, but also in administration. I had something to do with prison administration when the Act came into force. As it seemed to me prison authorities did not appreciate the preventive (as distinguished from the punitive or the reformatory) idea even in its mitigated form. They seemed disposed to regard the period of preventive detention as a period of somewhat milder imprisonment with certain facilities for reformation. There was, on the one hand, a reluctance to sanction luxuries, unusual in a prison, which might very well be accorded to a man who had by his punishment expiated his offence and who was detained solely for the public protection. On the other hand, the dominant tendency was not to detain the man in detention as long as on any reasonable construction of the statute he might be detained, but to let him out as soon as possible, preferring the slender evidence of his professions to the strong evidence of his past record. The man 18 liberated before the expiration of his term, not because there is any well-founded assurance that society no longer needs protection by his detention, but because his conduct under detention and his professions of repentance seem to warrant at least a faint hope that he may not again relapse.
Attention has been concentrated upon the reformatory idea. No doubt if a man is reformed this may be preventive of future crime. But that was not the idea underlying the word "preventive" in Sir Robert Anderson's scheme. The man was to be detained because so long as he was detained he would be prevented from committing crime. Reformation was a side issue, not because reformation is unimportant, but because it is so improbable. Between Parliament and administration, however, the preventive idea has been lost sight of and the reformatory idea is dominant. The place of preventive detention is regarded, not as a place where men are to be kept in comfort as long as possible in order to keep them out of mischief and to protect society, but as a reformatory from which a man is to be released so soon as his professions and his conduct seem to suggest a chance, however faint, that, contrary to the general experience of his type, he may not relapse into crime. Release before the expiry of the term so far from being reserved for an exceptional case is made the general rule. One cannot but regard with some distrust a system which is worked upon lines absolutely contrary to the theory in which that system had its origin. There can be no
doubt that the attitude of mind which has prevailed is due partly to the consideration that preventive detention is preceded by a long period of penal confinement as the punishment of the crime. There is a certain repugnance against the idea of detaining a man who has already expiated his crime by punishment. For society to do so for its own protection-well, that seems selfish; to do so for the man's own reformation-well, there is a moral flavour about that.
Sir Robert Anderson's idea may have been too drastic. It might be necessary to temper it with some recognition of the truth :
As long as life its term extends
But however this may be, the idea of Sir Robert Anderson has not simply been tempered, but, in my view, between legislative and administrative action it has been lost sight of altogether. In effect the result has been to divide the sentence of a habitual criminal into two parts, one determinate, the other indeterminate but within a certain limit.
I recall that the judge remarked to me:
When the emasculated measure became law Mr Justice Wills, a judge of long criminal experience and by no means unmerciful head who, though not so well known to the temperament, wrote to Sir Robert Anderson as follows:
"I can only now thank you heartily for your manly and courageous support of true principles and your plain speaking upon matters with respect to which hesitation, cowardice, and mealy-mouthedness have already done such infinite harm.
"I agree that we must not lose heart. The 'humanitarians,' as they audaciously call themselves, have scored this time, and I suppose they will till a set of statesmen arise, if they ever do, who have views of their own and will stick to them regardless of consequence when a great principle is at stake."
public as "Scotch Jimmy," are just as well known to the authorities as men of inveterate criminal tendencies. Nevertheless all these men, with one or two possible exceptions, will be unloosed upon the public within the present decade.
But what else can we do with these men ? I do not plead for the adoption of Sir Robert Anderson's plan of permanent detention; but that plan at all events holds the field as the only plan which professes to afford any solution of the problem.
We are apt to regard imprisonment as the normal form of punishment for all offences except the few which are so heinous as to be I am not to be understood as here advocating capital, or the many which are so trivial as to the adoption of Sir Robert Anderson's scheme be adequately dealt with by a pecuniary fine. in its most drastic form. I confess that the But the idea was not always so. It is a modern ideas which he advanced appeared to me to be idea. Speaking generally, the prison in old attractive when I first examined them. But days was not a place for the detention of conI recognise the difficulties which surround the victed criminals; it was a place of detention question and the danger of dogmatism, and I for accused persons to await trial in due course merely suggest that the matter requires re- or for an indefinite period under the exercise consideration. Our present system is unsatis- of arbitrary authority. Punishments, where factory. I recall the case of an elderly man the death sentence was not inflicted, were, tried long ago before Lord Adam at Glasgow according to the expression once familiar in our Circuit Court for a crime of dishonesty-criminal law, arbitrary." They might be housebreaking, I think. That man, according and often were corporal, as by whipping, or to my recollection, had served two terms of branding, or maiming. They might be derisory, five, one of seven, and two of ten years. He such as the stocks, the cutty stool, the offensive was again sentenced to ten years' penal servitude. placard, ducking in water, etc. Finally, there
was banishment, it might be banishment from a town or from a county or from the country, and it might be either simple banishment or banishment to a penal settlement.
severe punishment, and I am not adverse to the idea of making the conditions of long-term confinements fairly comfortable. In the cruel old days even men under sentence of death were scourged or tortured, and even in milder times, as the form of our death sentence shews, were fed on bread and water only prior to
Nowadays capital offences have been reduced to practically one; derisory punishments have entirely disappeared; corporal punishment is restricted within very narrow limits; banish-execution. Such treatment is quite repugnant ment too has disappeared, the only trace of it being the deportation of criminal aliens. In some ways the loss of this form of punishment, though inevitable in the present condition of the world, is to be regretted. You got rid of the criminal yourself. The criminal himself had probably more of a chance in his entirely new surroundings. If he did not avail himself of that chance his new surroundings had short and sharp methods of getting rid of him.
Through force of circumstances then we have come to be shut in to imprisonment as the only available form of punishment for serious crime. The punitive essence of imprisonment is deprivation of liberty. This is much more the case nowadays than in former times. In the bread-and-water, tread-mill days the idea was to detain the prisoner under conditions of discomfort as severe as was compatible with the maintenance of life. By and by the maintenance of health came to be recognised. But in recent times amelioration has gone beyond even this requirement. I remember that once in addressing the Scots Law Society Lord Guthrie rather deprecated the idea that prisons can be made too comfortable, the deprivation of liberty being by itself sufficiently irksome for all deterrent purposes. I confess that I did not altogether agree with him. There is undoubtedly a class of offenders, well known to the prison authorities, who have come to recognise that there are worse places than prison, particularly in the cold weather. No doubt they are glad to be let out for a season, but they are not sorry to find themselves back for another turn, always provided it is not so long as to grow irksome. Lord Guthrie's test was Open the door and the prisoners will walk out.' Yes, and open the door or enclosure for domestic animals and they will all walk out; yet many of them will soon return and be glad to do so. The parrot in the cage may fret against its restraint, but the parrot in the cold wood will not look back with horror on the cage or shudder at the prospect of a return to it.
My doubts in regard to this matter, however, apply only to shorter terms of imprisonment. The case is different when one comes to long terms. Here we have not merely the present irksomeness of deprivation of liberty and monotony of life and surroundings, but the appalling prospect that these are to continue for a term of years. In most cases that is
to modern ideas. If men are sentenced to terms so long as to operate as deterrent by their mere endurance and as a protection of the public by their removal from its midst, I see no good reason why they should be made uncomfortable in their inevitably monotonous surroundings. This brings me back, however, to preventive detention, from which I have wandered. I venture to think that the weak spot in preventive detention and the cause of misunderstanding and failure is the double sentence or the splitting up of the sentence. is to get so many years penal servitude, to be followed by preventive detention. The theory is that he must be adequately punished for his crime first of all, and thereafter he is to be detained, not as punishment for his crime, but for the protection of society. But when a man has suffered what is deemed to be adequate punishment for his crime, the idea of detaining him further for the protection of society is, whether rightly or wrongly, repugnant to many minds. Unless the man is suffering like a lunatic or a person with infectious disease for something for which he is irresponsible, what, it is said, is the warrant, as between society and him, for compulsorily detaining him after he has been duly punished? He committed a serious crime. True. He deserved punishment, but he has suffered punishment and completed the punitive term which was deemed appropriate for his offence.
If preventive detention is to be continued, I venture to suggest that, in order to give the system and the preventive idea underlying it a fair trial, there should be no splitting of the sentence, that the person convicted of a serious crime and of being a habitual criminal should be sentenced simply to preventive detention without any limiting term or for a very long term. The conditions of such detention would be less drastic than those of ordinary penal confinement, but this would be compensated, from the punitive point of view, by the length of its endurance; and this detention should be regarded and treated as being, whilst protective of society, the punishment of the man's crime and not, as under Sir Robert Anderson's scheme, something supplementary thereto, solely for the protection of society, or, as under the present system, as something supplementary thereto for the man's reformation, with a view to his early enlargement upon the public.