REVIEWS

DOIhttp://doi.org/10.1111/j.1468-2230.1970.tb01306.x
Publication Date01 Nov 1970
REVIEWS
THE
COURTS
AND
CRIMINAL
PUNISHMENTS.
By
SIR
JOHN
VINCENT
BARRY.
[New
Zealand
THE
GOVERNMENT
PILINTER,
WELLING-
TON~
NEW
ZEALAND.
1969.
91
pp.
$1.50
(N.Z.)]
SHORTLY
before his death on November
8,
1969,
Sir John Barry, judge of
the Supreme Court of Victoria, Australia, prepared these three lectures
for delivery in
New
Zealand. His illness prevented them from being given,
but they have now been published with
a
Foreword from Dr.
J.
L.
Robson,
New Zealand’s indefatigable Secretary for Justice. The three lectures discuss
(1)
The Courts and Criminal Punishments,
(2)
Judicial Sentencing
or
Treat-
ment Tribunals?
(3)
The Abatement of Imprisonment. They represent
a
most valuable postscript to
a
most distinguished career, for Judge Barry
was not only
a
first-class judge but also an author of the standard work on
Alexander Maconochie of Norfolk Island, chairman of the State of Victoria’s
parole board since
its
inception in
1968,
and
a
well-known international figure
in
the
field of criminology.
These ninety
pages
contain much practical wisdom on
a
variety of topics,
While Judge Barry’s views about the reality of the drive for retributive
punihent
will
nat
be
acceptable
to
those criminologists who
deny
its
validity; there is much
to
be said for his view, at least
as
a
starting-point for a
useful discussion, though we might not wish to
go
the whole way with his
argument. While one may be inclined to get bored with all the writing
and public discussion concerning the philosophy of punishment in recent
years, one is bound to admit with Judge Barry that “Theories of punish-
ment are, after all, philosophical attempts to find rational moral
justifi-
cations
for
what we in fact do with criminal wrongdoers, and for the
proper limitations that should be observed in the way we deal with them.”
Judge Barry admires the unemotional pragmatic approach towards sen-
tencing which is practiced
in
British communities, but he thinks that courts
have
a
duty
to
speak out and act to protect society against violence.
He
asserts
vigorously that “it
is
bad science and worse sociology to disregard
social realities and the actualities of
the
criminal process, and that the
improvement of
the
criminal law and its inseparable adjunct, the punitive
process, is not likely to be achieved if we delude ourselves about their
essential characteristics and the factors that bring them about.”
The second lecture concerns itself with an examination of
the
alter-
natives to judicial sentencing. Here we have
in
a
convenient compass an
excellent survey of the alternative schemes for replacing judges
as
sen-
tencers. Treatment tribunals were first suggested, it seems, in
1925
by
Professor Sheldon Glueck. Since then other scholars, including Dr. Hermann
Mannheim, Professor R.
L.
Jackson and Dr. Nigel Walker, have put for-
ward similar ideas. Judge Barry offers several detailed criticisms of such
schemes. The main fallacy is
the
belief that
a
board of experts would be
any more scientific than the courts. At the very least similar considerations
would have to be weighed,
as
the California Adult Authority and the
parole boards show. There might be more room for disparity of sentences
if several boards were operating thsn under the present system of sentencing
by judges subject to review on appeal. The dangers
of
entrusting such
vast powers to an administrative body meeting in private are stressed.
“The tribunal would not be bound to hear witnesses on behalf of the
offender, nor to give reasons for its decisions.”
A
preferable solution in the judge’s view, lies in helping judges
to
705
706
TEE
MODERN
LAW REVIEW
VOL.
83
reach better decisions by furnishing them with the information and
advice they need, and with training in this part of their duties. He
also
has great faith in the potential of the parole system, “because it
goes
some distgnce towards satisfying the views of critics who contend that
the sentencing process should properly be regarded
as
an administrative
matter.
.
. .
It
is
by such methods
. . .
rather than by the abandonment
of traditional social institutions
...
that udvances should be made in
the correctional system.” While he is somewhat critical of
the
parole
system introduced
in
the United Kingdom by the Criminal Justice Act
1967,
which he regards
as
“unduly cautious and cumbersome, and likely
to
function badly because of
its
complexity,” there
is
no
doubt in his
mind about the direction of future developments. This includes the
segregation indefinitely of the dangerous offender and doing our utmost
to rehabilitate the
rest.
This latter task requires the constructive partici-
pation of the community
as
a
whole, and it is in enlisting
the
support
of
the
whole community that the hope for the future lies.
The third lecture, entitled “The Abatement of Imprisonment,” describes
briefly the history of imprisonment in western society, tracing
its
emergence
us
“virtually the only drastic method of criminal punishment
)’
with the
decline of physical penalties and the ending of transportation. There follows
an outliie of the competing schools of thought about prison management in
the nineteenth century (the eeparate and the silent schools). Of these the
author declares: “The fundamental flaw was the belief that reformation
and rehabilitation can
be
achieved by coercion.” The modern view,
so
clearly expressed in England
in
the Gladstone
Cornittee’s
Report of
1896,
is
that
prison
is
not
to
be regarded
as
a
place where prisoners are degraded
and repressed but
as
a
place where an opportunity
is
afforded to bring
constructive and positive influences to bear on
the
prisoner. There
is
agree
ment about the objectives among modern prison administrators.
One interesting suggestion considered by Judge Barry is for
a
form of
judicial supervision of the prison administration
similar
to
that which has
already been introduced in several
Latin
countries, in order
to
safeguard
the basic rights of prisoners. This has been advocated by Professor Helen
Silving, but Judge Barry dismisses
it
as
“highly likely
to
introduce con-
fusion and instability into
a
penal
system” and
“a
strange
medley
of
judicial and administrative concepts.” Instead he believes that
basically
what
is
needed
to
transform
a
penal system
is
a
constructive and
realistic
attitude
of
mind
in
administrators, and in
the
public as well, and
a
sufficiency
of
money.”
The
latter
is the more diflicult
of
these requirements
to
attain.
TMs
little
book
is
a
rare gem and
a
fitting epitaph
to
a
kindly, humane
and
most knowledgeable student of penal affairs. As such it deserves
a
wide
readership among those interested in penal problems.
J.
E.
HALL
WILLIAMS.
THE
FORMATION
luy~
AN”T
OF
MARRIAGE.
By
JOSEPH
JACK-
SON,
M.A.,
LL.B.(Cantab.),
m.M.(Lond.),
of
the Middle and
Inner
Temple, One
of
Her
Majesty’s
Counsel,
and
of
the
South
Eastern Circuit. Second edition. [London
:
Butt=-
worths.
1969.
468
pp.
inc.
index.
24
16s.
or
€4.80.1
“THIS
is really
a
book about people, their splendid foibles and their remark-
able ingenuities” (p. vii).
Joseph Jackson is an eminent family law practitioner and
also,
judging
by this book,
a
considerable legal scholar. From the extremely wide range
of material
it
is evident that this work has gradually matured in
the
library
of
a
patient researcher.
The contents are as follows
:
historical background; the categories and

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