Benefit of Probation

Published date01 November 1938
DOI10.1177/026455053800300304
Date01 November 1938
Subject MatterArticles
37
BENEFIT
OF
PROBATION
By
E.
R.
RAYMOND
BOND
(Clerk
to
the
Hendon
Justices)
In
i ~65,
Lord
Byron
was
accused
of
manslaughter
-he
claimed
Benefi.t
of
Clergy
and
escaped
penalty.
In
those
days
any
person
who
could
read
a
psalm
could
claim
this
benefit
and
so
be
pardoned
for
crimes
committed.
Benefit
of
Clergy
was
abolished
in
1837-one
hun-
dred
years
ago.
It
wasn’t
till
the
same
year
that
a
person
charged
with
felony
was
allowed
a
Counsel.
It
wasn’t
until
forty
years
ago
that
a
person
was
allowed
.to
give
evidence
on
his
own
behalf.
Benefit
of
Clergy
was
abolished
in
1837
and
seventy
years
later
in
1907
the
Benefit
of
Probation
was
established
by
the
Probation
Act.
Before
the
Probation
Act
can
be
called
into
opera-
tion
it
is
necessary
that
a
charge
be
proven
against
a
person
in
a
Court
before
either
a
Judge,
Recorder
or
Justices
and
generally
with
the
Probation
Officer
present.
In
cases
where
an
Order
is
made,
to
be
without
the
Probation
Officer
would
be
like
&dquo;
Hamlet
&dquo; without
the
Prince
of
Denmark.
Let
us
assume
that the
charge
has
been
proved.
Before
the
accused
can
be
given
the
benefit
of
the
Probation
Act,
one
at
least
of
several
reasons
should
obtain-either
age,
character,
health,
mental
con-
dition,
antecedents,
trivial
nature
of
the
offence
or
extenuating
circumstances.
Which
is
it?
I
fear
that
there
is
a
wide
misconception
as
to
when
Probation
may
be
used,
which
is
evidenced
by
the
frequent
use
of
the
word &dquo;
case.&dquo;
We
hear
people
say &dquo;
Oh,
stealing
from
Woolworth’s-a
typical
probation
case.&dquo;
Such
statement
may
be
made
without
knowing
the
facts
or
even
the
sex
or
age
of
the
offender.
How
does
this
misconception-if
such
there
be-
arise ?
May
not
the
legislature
take
some
measure
of
blame ?
In
the
preamble
to
the
Probation
Act
we
find
&dquo;An
Act
to
permit
the
release
on
probation
.of
offenders
in
certain
cases.&dquo;
Would
it
not
have
been
a
little
happier
if
it
had
read:-&dquo;
An
Act
to
permit
the
release
on
probation
of
certain
offenders ?&dquo;
With
one
exception,
we
are
not
required
to
consider
the
case
per
se,
but
the offender.
The
exception
is
when
the
offence
is
of
a
trivial
nature.
A
Justice
should
always
be
able
to
say
under
which
of
the
enabling
words
of
Section
I
he
had
made
use
of
the
Proba-
tion
Act,
and
all
those
enabling
words
except
that
relating
to
&dquo; trivial
nature
of
offence
&dquo;
refer
en-
tirely
to
the
accused
person
and
not
to
the
offence.
If
the
Court’s
decision
is
to
be
governed
by
the
class
of
the
case
and
not
by
the
circumstances
of
the
offence
and
offender
we
are
working
on
a
wrong
basis.
We
must
aim
at
consistency
not
uniformity.
We
could
talk
for
hours
upon
these
two
words.
I
would
refer
you
to
a
work
by
Dr.
W.
A.
Robson
called &dquo;
Justice
and
Administrative
Law.&dquo;
He
deals
with
consistency
in
a
lucid
and
exhaustive
manner.
Under
Section
5
of
the
Criminal
Justice
Adminis-
tration
Act
of
1914,
before
fixing
a
fine
a
Court
is
required
to
enquire
into
the
defendant’s
means
and
to
adjust
the
penalty
to
such
means.
If
fixity
or
predetermination
is
illegal
with
regard
to
a
known
or
ascertainable
quantity
such
as
Income,
it
must
be
more
so
when
dealing
with
the
Mind
or
Soul
of
a
person.
In
all
trials
the
accused
person
has
the
part
of
principal
actor.
Several
hours,
perhaps
days,
are
spent
in
a
Court
listening
to
evidence
to
ascertain
the
guilt
or
innocence
of
the
accused.
That
is
pri-
marily
a
duty
to
the
accused.
Having
ascertained
his
guilt,
the
Court
may
in
as
many
minutes
deter-
mine
what
they
are
going
to
do
with
him.
The
sentence
is
a
grave
and
responsible
duty
of
the
Court
to
the
defendant
and
the
State,
and
is
I
submit
sometimes
passed
without
sufficient
consider-
ation.
What
is
the
remedy ?
Lord
Hewart,
in
one
of
his
addresses
said,
&dquo;
Judge
and
Magistrate
must
be
determined
to
ascertain
the
cause
of
the
default.
He
must
weigh
the
possibilities
of
the
defaulter
and
examine
his
circumstances
and
make
the
best
use
of
these
possibilities.&dquo;
How
can
the
Court
weigh
the
possibilities
of
the
defaulter,
examine
his
circumstances
and
make
the
best
use
of
these
possibilities
under
our
present
sys-
tem ?
Why,
by
remanding
the
defendant
and
allow-
ing
you
to
make
enquiries.
Yes,
but
are
you
going
to
enquire
to-day
or
next
week ?
Perhaps
we
shall
not
have
a
Court
sitting
next
week.
If
it
is
an
out-
lying
district
it
may
be
a
month
before
another
Court
is
sitting.
How
can
it
be
done?
You
should
be
enabled
to
enquire
into
all
such
matters
as
are
relevant
to
Section
I
of
the
Act
of
1907,
and
these
inquiries
should
be
made
after
the
accused
person.
has
been
found
guilty.
Some
Magistrate
are
very
keen
on
having
pre-trial
investigation
by
Probation
Officers,
but
frankly
I
cross
swords
here.
I
think
it
is
contrary
to
the
spirit
of
British
Justice.
I
do
not
think
it
is
fair
to
pry
into
the
private
affairs
of
the
individual
until
he
has
been
found
guilty.
I
do
not

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