A for prostitution. This is such a startling proportion that we feel bound to consider the state of the law and that of the police administration which gives rise to it.

B

C

Scottish Law as to Prostitution.-At common law in Scotland 'loitering or importun'ing,' the offence with which prostitutes are charged, is not a crime, and it is not punishable outside burghs which come under the provisions of the Burgh Police (Scotland) Act or of Local Police Acts. To constitute the offence under the Burgh Police Act the person must be (1) a common prostitute or street-walker, and (2) must either 'loiter about,' or 'importune passengers for the purpose of prostitution,' and the maximum penalty prescribed is 40s. fine or one month's imprisonment. In most of the special Police Acts the offence and penalty are the same, but in Edinburgh the penalty ranges to £5, or in the discretion of the Magistrate, imprisonment not exceeding 60 days.

6

In police administration and magisterial treatment the greatest diversity prevails in this class of cases. In Glasgow we were informed that women arrested for the first time, when brought to the police station, are dismissed by the Lieutenant with a caution. If again arrested they are brought before the magistrate; the evidence adduced against them being that of two constables, who swear that they have known them for so long as common street-walkers, and that on the previous night between such and such an hour, and in such and such a street, they saw them accost a certain number of

2

33

Q. 10,807.

LXXIV.

The evidence of the persons importuned is never forthcoming, and that of the constables is described as almost invariably identical.' Of the 2421 cases arrested Temple, in 1893, 2214 were dealt with by admonition, fine, or imprisonment, pledges not being accepted in these cases, and the maximum penalty of 40s. or 30 days being imposed in a very large number of instances. In 1894, 1831 of these women went to prison, 778 of them for 30 days or a month." In Glasgow the average sentence of these Appendix women was 21 days, and the cost of their maintenance to the country, over £2180. In Edinburgh, on the other hand, although the maximum penalty is fixed at 60 days without the option of a fine, the administration of the law on the subject is much more lenient. In that city Sheriff Rutherfurd shares the jurisdiction of the Bailies in cases of the sort, and he refuses to inflict more than 5s. or 24 hours for the offence, even in the case of repeated convictions. He holds that many of the sentences passed under Police Acts would, if challenged in the Court of Session, be quashed as oppressive, and his views have influenced certain of his colleagues on the Bench. In that city, too, according to the Chief Constable, the police are instructed not to arrest women for loitering, and only to arrest them for solicitation when they persist in it after a warning given on the same night. The result is that the ratio of arrests for 'loitering or importuning' in Edinburgh in 1893 was only 13 per 10,000 against 36 in Glasgow. Sutherland, Of the 351 women arrested in 1893, 337 were convicted and dealt with by admonition, Appendix 1. fine, or imprisonment. In 1894, 370 were committed to the prison or police cells. * Appendix X. Their average term of imprisonment (including 33 sentences of four weeks or a month, one of 40, and another of 60 days), was 7 days." Respectable witnesses, familiar with Appendix the aspect of both cities by night, described the condition of the Edinburgh streets in point of decency as quite equal to that of Glasgow. In Dundee, where the law on the subject is the same as that under the Burgh Police Act, the ratio of arrests for loitering and importuning' to population is 20 per 10,000; the number of women up on the charge being 335, of whom every one was in 1893 accounted for by fine. or imprisonment, admonition, or forfeited pledge. In 1894, 252 women went to prison, 74 of them for a month, and the average sentence was 19 days. In point of decency the streets of Dundee did not compare so favourably with what was observed in Edinburgh and Glasgow. In Aberdeen, where the law is the same, the ratio of arrests for 'loitering and importuning' was but 10 per 10,000, or 120 in all, of which all but five were, in 1893, accounted for by fine, imprisonment, admonition, or forfeited pledges; in 1894, 100 women were sent to prison, their average sentence being 113 days, and the highest sentence 14 days. Notwithstanding the exceptionally small ratio of arrests, and the shortness of the sentences, the streets of Aberdeen in point of decency seem to compare favourably with those of any other Scottish city.

D

taken

Wide-Spread Desire to Reform.-Your Committee interviewed a number of these unfortunate women in gaols and refuges, and the story which they reiterated with striking uniformity was that once they were known to the police as prostitutes they 'had no chance,' but were 'run in' whenever they appeared; that it was no use pleading not guilty, as two constables were ready on oath to justify their arrest. Many

B

4

5

LXXIV.

I

XX.

of their cases were very sad, one prisoner, for example, telling us that she had taken to A the streets because she was beaten by her husband for refusing to prostitute herself for his gain in a brothel kept by his mother. The sacrifices to which many of these women submit in their effort to escape from their wretched existence are convincing Appendix proof of the earnestness of their purpose. In the Magdalene asylums in which so many of them find refuge, they voluntarily undergo close confinement for periods of 12 to 24 months, labouring hard at laundry or other work, and in many cases supporting the institutions in which they are immured by their toil, their monetary remuneration, postponed to the end of the term of voluntary confinement, amounting to about £3 a year, including the value of their outfit. This they do in the hope of being restored to the paths of honest labour. Of those whom we interviewed many were young, the victims of one false step or of unfortunate domestic circumstances, and when spoken to kindly they were easily moved to tears. It does seem a pity that so many girls and women should in our gaols be submitted to a treatment which appears with each committal but to render them more reckless and abandoned. In their case, according to the evidence of those most active in their reclamation, drink is not usually the primary cause of their fall, but it is resorted to in order to sustain them in their repulsive life, and, reacting, confirms them in their degradation.

INEFFICACY OF PRESENT SYSTEM OF DEALING WITH HABITUAL OFFENDERS.

One result of the diversity of the law regarding petty offences in Scotland, and B the still greater diversity in the method of police administration, is that it affords an exceptional opportunity of judging as to the comparative efficacy of a number of different systems for the repression of the class of offences with which we are called on to deal. It was therefore most significant that, with one accord, the witnesses connected with the administration of the law and police throughout Scotland testified to the utter inefficacy of any of the systems adopted to cope with the evil of the habitual offender. They told us that the short sentences of imprisonment imposed, practically only allowed prisoners time to recruit their health, impaired by previous dissipation, and sent them back to the world ready and eager for another bout. Not only so, but we received from representatives of all classes, magistrates, clergy, as well as parochial and police authorities, the strongest assurance that public opinion in Scotland was ripe for action being taken by the Legislature to inaugurate a better system of dealing with habitual offenders.

The Question of Longer Sentences.-Many witnesses advocated increased powers of C imprisonment. Now this proposal raises several questions. In the first place, would the police and the magistrates, if entrusted with extended powers, generally avail themselves of them? When your committee came to the case of towns where the punitive powers of the magistrates had been greatly extended by the provisions of the Burgh Police Act of 1892, we found that in many instances, as in that of Paisley already referred to, little or no use had been made of these new powers in the ordinary run of cases, and that they had only been taken advantage of in one or two very exceptional instances; again, Aberdeen, although like other towns empowered to adopt the provisions of the Burgh Police Act on the subject of drunkenness, has not thought proper to do so. As a matter of fact, in all but a small percentage of cases, penalties much under the maximum are inflicted, and when heavy penalties are awarded, it is generally either in consequence of some peculiar sensitiveness of local feeling (as in the case of the 30-day sentences on women for solicitation in Glasgow), or in consequence of some individual crotchet of the sentencing magistrate or some seasonal coincidence, as in the case of known offenders, who in the latter part of December are often sent to prison for a fortnight instead of the customary five or seven days, with the avowed object of withdrawing them from the temptation of the New Year's festivities. On the whole, however, the punishment meted out to petty offenders, even where they may have been repeatedly in the hands of the police, is in the vast majority of cases very much less than that authorised by law at present, and the fact that a new power of imprisonment without the option of a fine, authorised by the Burgh Police Act in the case of repeated convictions for drunkenness has, so far as your Committee could learn, during three years remained a dead letterleaves it open to doubt whether, if heavier penalties were authorised, they would be imposed except in very rare instances.

General Adequacy of Present Sentences.-As to the deterrent effect of the present D sentences it seems clear that in the great majority of cases they are sufficient for their

1

IX.

A purpose. In Glasgow, for instance, in the year 1893, the number of persons arrested or cited for various petty offences was over 34,000, while the number of those who were re-arrested within the year was 4328.1 In the case of over 29,000 the fact of their arrest Appendix and the loss of the pledge forfeited, or the disgrace of their appearance in Court and the fine or punishment to which they were subjected was apparently a sufficient caution. Of the remainder the great proportion owe their second arrest to drunken habits, and among them were about 500 men and women who were apprehended five times or upwards Appendix during 1893, and doubtless many more who should be classed as habitual offenders in respect of previous convictions within twelve months. To deal with these habitual offenders the present system is admittedly inadequate, but for casual offenders, who constitute nearly 90 per cent. of the whole, it seems to require no strengthening.

B

C

2

35

XI.

LXIII.

Do heavy Penalties repress repeated Offences?-As to the third question, whether the simple increase of penalties tends to lessen the number of habitual offenders, some most instructive figures will be found in an Appendix which continues down to date statistics as to recommittals drawn up thirty years ago, and for which we were indebted to Mr. David M'Laren3. From these it appears that of 32,017 persons committed to Appendix Edinburgh, Glasgow, and Dundee prisons during the years 1861, 1862, and 1863, -David 10,135, or 316 per cent., were recommittals within the same year. While of 106,367 M'Laren. committed to the same prisons in the years 1891, 1892, and 1893, 33,666, or again 316 per cent., were recommittals within the same year. The percentage of recommittals was the same, therefore, in the two series of years, but in the former series the average imprisonment was over 30 days, while in the latter it was under 15. These figures prove that the shortening of imprisonments by one-half has not increased the number of recommittals, and would seem conversely to show that to double the present sentences would not diminish it.

This conclusion is emphasized by another set of statistics prepared by the Secretary to the Prison Commissioners, and given in our Appendix. These figures show that Appendix whereas in all the prisons in Scotland the percentages of recommitments within a year for the decennial periods ending 1873, 1883, and 1893, were 31, 30, and 29 respectively;

the

average imprisonment had in the interval progressively decreased from an average of 30 days in the decade ending 1873, to 20 days in that ending 1883, and 15 days in that ending 1893. These figures are the more suggestive when it is remembered that the shorter average imprisonment in the latest decade rendered it possible for a man to be twice as often recommitted during a year as he could have been under the longer imprisonments of the first decade. We have also had testimony from a large number of experienced witnesses supporting the view that long sentences of imprisonment effect no good result.

D We may summarise our conclusions on this branch of the subject, thus :—
(1) That penalties, much smaller than the maximum of those competent under
existing laws, are sufficient in the great majority of cases to deter from re-
petition of the offence, and that therefore any general increase in the severity of
penalties is uncalled for and to be deprecated;

E

(2) That although the number of confirmed petty offenders appears to have increased, the number of recommitments to prison has decreased coincidently with the shortening of the average term of imprisonment.

LV.

With reference to the first of the above conclusions we have one single exception to make. As we have said, in Counties and in one or two Burghs, 24 hours' imprisonment is the highest penalty competent for the offence of being drunk and incapable. We consider it very undesirable that any person should be sent to gaol except with a view to a substantial punishment. A 24 hours' confinement in all probability enables him to realise that his night in prison has passed more comfortably than the previous one in a police cell, and that, with a recovered appetite, prison fare is not unpalatable if somewhat frugal. In many cases, moreover, a sentence of four-and-twenty hours' imprisonment does not involve a night's detention." The Governor of Aberdeen prison, for example, told us that he Q.7766 et seq. received a good many prisoners on short sentences for 24, for 6, and for 4 hours,' and that those sentenced on Saturdays to 24 hours are sent to prison and liberated on the same evening between six and seven o'clock. This involves considerable trouble, and so little of punishment, that we think increased powers to be called for in this particular While believing that penalties considerably less than those contained in the Burgh Police (Scotland) Act would sufficiently meet the case--we suggest later on a modification

case.

5

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LXXXVII.

of some of the penalties which it lays down-that Act embodies the general law on the A subject of drunkenness in Scotland, and its provisions are to a large extent identical with those of the Police Acts of the larger Burghs. To extend its provisions would therefore be a step towards the most desirable end of uniformity in the Scottish law as to petty offences, and in the counties, both magistrates and police, would, we are sure, use its powers with moderation.

We therefore recommend that those sections of the Burgh Police (Scotland) Act, B 1892, which relate to drunkenness (modified as afterwards explained) should be extended to the counties, and that in all cases prisoners whose sentences do not involve a night's detention should not be sent to prison but detained in police cells.

OPTION OF FINE OR IMPRISONMENT.

Before passing from the question of punishment we have to call attention to another C matter. In Scotland, in the case of petty offences, the repealed Lindsay Act and the various Local Police Acts and the Burgh Police Act which follow its drafting, prescribe in almost every case a money penalty, and that penalty, under the Scottish Summary Jurisdiction Act and the Burgh Police Act is enforceable by a scale of specified equivalent periods of imprisonment. The result is that, if the prisoner has the money, he, and not the magistrate, exercises the option as to whether he shall go to prison. There are certain exceptions to this rule, as in vagrancy and begging, punishable under the Burgh Police Act by 30 days', and if repeated by 60 days' imprisonment without option; the case of persons thrice previously convicted of being drunk and incapable within twelve months, whom under the same Act a magistrate may sentence to imprisonment for 14 days without the option of a fine, persons six times previously convicted as drunk and incapable, whom under the Greenock Police Act the magistrate may sentence to 60 days' imprisonment, or importuners, who in Edinburgh may be sent to prison for the same term, without the option of a fine. Such provisions, however, are exceptional, and in the majority of cases the magistrate has no authority in dealing with police offences to impose imprisonment without the option of a fine. This, we think, is wrong in principle. It enables the rich offender to get off without imprisonment, however frequent his offence, while his poorer fellow, it may be convicted for the only time in his life, has to go to prison. This inequality we propose to remedy by allowing the magistrate, in dealing with cases aggravated by previous convictions, to impose imprisonment without the option of a fine.

Imprisonment in Default of Fine.-But there remains another anomaly. In our D Appendix will be found details of the sentences imposed on 461 prisoners admitted to Glasgow and Barlinnie Prisons during the week ending March 25th, 1895, and the money Appendices in their possession when admitted. Among the females we find one, with a sentence of LXXXVI. and 15s. or 14 days, who had 8s. in her possession; another, sentenced to 10s. 6d. or 7 days, who had 4s. 5d.; a third to 7s. 6d. or 5 days, who had 2s. 6d., and so on. Among the males was one sentenced to 40s. or 14 days, who had 18s. 114d.; another sentenced to 42s. or 30 days who had 10s. 8d.; a third to 21s. or 14 days who had 10s. 34d., and so on. Some of these prisoners, or their friends, by pawning their effects or borrowing money, may have raised the amount of the fine and obtained their release, but unless that is effected within the first day or two after committal it is almost never done; so much so that the Governor of Greenock Prison informed us that within a year he could only recall one case where it had occurred-that, namely, of a woman committed for 30 days, in default of payment of a fine of 40s., whose husband died during her imprisonment, and his life being insured, her friends borrowed the 40s. on the security of the funeral benefit, and paying the fine, after she had been locked up for 21 days, set her free to attend the funeral. Had that woman, when convicted, possessed 40s. she would not have gone to prison at all, and would possibly have experienced a more improving and reforming influence in ministering to the wants of her dying husband. But being moneyless at the time of her conviction, she had ultimately to expiate her offence by payment of the full fine imposed and three weeks' imprisonment into the bargain. Now the law, in imposing a fine as the penalty for an offence, and prescribing imprisonment only in default of payment, evidently meant to mitigate and not to aggravate the punishment, for it authorises magistrates to give time for the payment of the fine, to require securities for it, or to order its payment by instalments. Owing either to some defect of machinery in the Act. which confers this power, or to intentional or unintentional disregard of its provisions, so

B

A far as Police Courts in Scotland are concerned it is practically a dead letter. The result is that a considerable number of prisoners are sent to prison only to be liberated after a few hours' detention on payment of the fine, and a large number of others, who cannot scrape together its full amount, are kept in prison at the public expense for the full term of the alternative sentence. In order to inform ourselves as to the proportion or prisoners incarcerated in default of payment of fines, we had a return compiled showing the actual numbers of them in the various Scottish prisons at midnight on March 28th, 1895. The result showed that they numbered 678 out of a total of 1951 prisoners, and Appendix that they constituted 24 per cent. of the male, 62 per cent. of the female, and close on 35 per cent. of the total prison population.

Fines Paid after Admission to Prison.-As we have said, in a few cases fines are made up and paid within the first day or two of the prisoners' committal. These, in the case of Police Court fines, are handed over to the Local Police Authorities, and in that of Sheriff Court fines, are accounted for to the Treasury. Police Court fines amount to by far the larger portion, and Sheriff Court fines so paid constitute so small an amount, that for the sake of simplifying the reform which we are about to propose, we suggest that both should be dealt with in the same manner, and that instead of being surrendered to the local Police Authorities or the Treasury, as the case may be, all fines paid after a prisoner's admission to prison should be paid to the Governor of the Prison, to be by him. accounted for as we shall hereafter explain. The result of this would be to prompt local magistrates to avail themselves of powers which they possess to recover fines without committing the prisoners on whom they have been imposed, and to discourage the practice which very generally prevails of sending men and women to prison without allowing them reasonable opportunity to raise money.

C Combination of Fine and Imprisonment.-We further propose that prisoners committed in default of payment of a fine should be permitted to work out their sentences by a combination of fine and imprisonment, and that it should not be necessary for them, having worked out half their term of imprisonment, to remain in prison for the full term unless they pay the entire fine, but that they should be liberated on any day of their imprisonment on payment to the Governor of such proportion of their fines as the term of imprisonment still to be undergone bears to the entire sentence. We are informed that this system was at one time prevalent in Scotland, but that it was given up because it was found to be illegal, but so far as the Committee is concerned, it is but fair to give the entire credit of the suggestion to Mr Napier, Governor of Greenock Prison, in whose letters in our Appendix will be found a detailed description of the manner in which his proposal could be best worked out. The fines recovered, and which are at present altogether lost, would, for administrative reasons pointed out by Mr Napier, be paid to the Governors of Prisons, and we propose that they, together with all full fines paid to them, should be accounted for as hereafter explained.

LXXIII.

LXXX.

D The Greenock Experiment.-In order practically to test the effects of Mr Napier's suggestion, your Committee placed £5 at his disposal to be applied in paying the balance of fines in cases where prisoners could raise a part but not the whole. Mr Napier received the £5, and instructions to apply it in illustration of his scheme, on March 20th, 1895. On March 25th he sent in his report, which will be found in the Appendix. W. J. C., 2 Appendix a case of assault, committed for 5 days in default of payment of 7s. 6d., had, after 3 days in prison, succeeded in raising 3s., and the balance of 4s. 6d. being provided out of the fund, he was liberated and 2 days of his imprisonment saved. J. S., a case of assault, committed for 10 days in default of payment of a fine of 20s., after 5 days' imprisonment. raised 10s., and the balance being paid out of the fund, 5 days' imprisonment was remitted. E. M., another case of assault, committed for 20 days in default of payment of a fine of 40s., after 5 days' imprisonment raised 30s., and the balance being paid out of the fund, got 15 days remitted. At a cost, therefore, of 24s. 6d. to the fund, 43s. was collected in the shape of fines paid, which would never otherwise have been got, and the State was saved 22 days' maintenance of a prisoner in jail. During the 5 days that this experiment was being carried on, 42 prisoners were confined in Greenock Prison in default of payments of fines. Mr Napier thought it would be waste of money to continue the experiment, as, to secure it full justice, it would be requisite that the system should be generally known; but he expressed his belief that if it were known that less than the fine imposed would be accepted, a large number of prisoners, probably a half, would take advantage of it.' Even at the rate shown by the actual results of the experiment, the saving in Greenock Prison was at the annual rate of 1606 days' (or 4·4