Prisoners' rights*
| Author | Gordon Hawkins |
| Published date | 01 December 1985 |
| Date | 01 December 1985 |
| DOI | http://doi.org/10.1177/000486588501800402 |
196
PRISONERS' RIGHTS*
Gordon Hawkinst
(1985) 18 ANZJ Crim
By some of his contemporaries Sir John Barry was regarded as an extremist, a
dangerous radical. Even Baroness Wootton, who regarded him with admiration and
affection, described him in her obituary notice as a "maverick judge". There were
others who saw him as a sentimental "bleeding heart", overly concerned about the
rights of the criminal and indifferent to the punitive functions of the criminal law.
In fact, as both Geoffrey Sawer and Zelman Cowen pointed out in their
contributions to
Law
and Crime, the memorial volume of essays in Sir John's
honour published in 1972, he was, in many respects, a conservative. Sawer describes
him as a "judicial craftsman of the traditional sort". And Cowen says that he was
"an imaginative judge" but "not amaverick" (Morris and Perlman, 1972: 20 and
240). Anyone who met him or anyone who is familiar with his judgments or has read
his last, posthumously published, book, The Courts and Criminal Punishments
would probably agree with these estimates.
He certainly did not believe, as some radicals appear to, that before you can
change anything you must change everything: society as a whole will have to be
changed. Nor did he see all criminals as the victims of an unjust society. He agreed
with Sir James Fitzjames Stephen that "there are in the world a considerable
number of extremely wicked people". "They have chosen", he wrote, "to disregard
the bonds of social union; they have displayed the violent and predatory
characteristics of primitive creatures insensitive to the obligations of
neighbourliness and compassion upon which civilised society ultimately rests. They
are in literal truth, enemies of society and we are driven in self-defence to use upon
them methods of force and compulsion
...
" (Barry, 1969: 29-30).
". .
..
It is only common sense" he said "to recognize that prison inmates are not
heroes or citizens of merit, but are by definition wrongdoers, and often atrocious
and despicable wrongdoers, too". And
he"
saw the punishments of the criminal law
as existing for the protection of society. "The courts", he wrote, "are constantly
confronted with crimes for which, in our present state of knowledge, deprivation of
liberty for long periods under penal conditions is the only course that can be
followed" (Barry, 1969: 29 and 86).
It is possible that the fact that he included in the class of offences "which the
community can deal with only by the weapon of substantial terms of imprisonment"
such crimes as "frauds by company directors and persons in fiduciary positions [such
as solicitors]involving widespread losses to trusting citizens" (Barry, 1969: 28) may
have seemed radical in the State of Victoria at that time. But there is nothing that
can be called radical about his view that in regard to many criminals, "the only
response that society can make in self-defence is to ensure that when they are caught
and convicted the punishments shall be of a kind that will incapacitate them from
similar enterprises for a long period of time, and, hopefully, that it may deter
others, too
...
"(Barry, 1969: 28).
*John Barry Memorial Lecture, delivered at University of Melbourne, 28 August 1985.
tBA, LLM. Formerly Associate Professor and Director, Institute of Criminology, University of
Sydney.
To continue reading
Request your trial