Folk law | Don't spare the rod

The deliberate infliction of physical injury and pain as retribution for an offence has been employed since time immemorial and is still used today in some Middle Eastern jurisdictions and former British territories such as Botswana, Malaysia, Singapore and Tanzania. Here, I look at the significant changes to British corporal punishment from 1706, reflecting a period of liberal punitive reform that reached its zenith in 1948 when revulsion to physical pain in legal punishments led to the abolition of corporal punishment and formulation of a new criminal code focused on the use of prison as a deterrent and reformatory form of penalty.

In 1706, the penal authorities decided that felons convicted for burglary, house-breaking, robbery or stealing of horses, should no longer be 'burnt in the most visible part of the left cheek nearest the nose' as this punishment 'did not deter such offenders from further committing such crime and offences, but on the contrary, such offenders being rendered thereby unfit to be entrusted in any service or employment to get their livelihood in any honest and lawful way, become more desperate' (Preamble to the Statute of Anne 1706 c.56 CAP VI). After the Statute was passed on 14 February 1706, any person convicted of any theft or larceny was burned in the hand and committed to the workhouse for a period of six months to two years in lieu of having his face marked.

Birching, whipping, flogging

The beating of criminals '“ birching, whipping or flogging '“ was more common than branding as a form of corporal punishment and became popular in the 16th century. As whipping was intended as a strong deterrent influence on offenders (reserved mainly for the criminal classes), the punishment usually took place in public and the judgment could be awarded against both genders.

The indignity was greater for the female prisoner as those whipped were stripped to the waist before the skin was taken ?from their backs.

Well meaning and right thinking reformers outraged at the thought of women suffering this humiliating treatment passed an Act of Parliament to abolish the punishment of public whipping on female offenders (57 G.3 c.75). Confinement to hard labour in the common gaol or house of correction replaced the sentence of a woman being publicly whipped. A further Act was passed on 15 July 1820, which immediately put an end to female offenders being whipped in private as well, but 'imprisonment not exceeding six months, not less than one month; or solitary confinement for any space not exceeding the space of seven days at any one time'¦' was given in lieu.

As mentioned above, Parliament traditionally considered whipping a very definite deterrent among the 'criminal classes'. In Tudor times, beggars and vagabonds were whipped or set in the stocks for three days and three nights if caught begging in a certain precinct without the licence of the local magistrates (22. H.8. c.12-14). While the subsequent Vagrancy Act of 1824 imposed a less painful penalty of three months' hard labour, section 10 of that Act did empower the Justices of the Peace to order ''¦that such offender (not being a female) be punished by whipping, at such time during his imprisonment, and at such place within their jurisdiction, as according to the nature of the offence they in their discretion shall deem expedient.'

Corporal punishment was also accepted as a suitable form of correction for young hooligans and juvenile delinquents (See 'What the butler saw', Solicitors Journal 155/16, 26 April 2011) but by the end of the Victorian era the number of offences that actually carried the penalty of whipping (for both adults and young offenders) ?were reduced to three: garrotting (under the Garrotters Act 1863), living off the immoral earnings of prostitutes and robbery ?with violence.

The sentence of whipping was finally abolished by section 2 of the Criminal Justice Act 1948 but many Members of the House of Commons who participated in the parliamentary debate leading to abolition shared the view of Brigadier Rayner (Member for Totnes) who said 'a gangster, thug, sadistic brute, homeless, lawless and possibly hopeless offender who attacks should be allowed to feel the pain that they so wantonly inflicted' and, 64 years later, there are many in society who believe that we should not spare the rod.