Crime and the punishment of crime the role Of the legal profession

CRIME AND THE PUNISHMENT OF CRIME﷓THE ROLE CRIME AND THE PUNISHMENT OF CRIME‑THE ROLE OF THE LEGAL PROFESSION A PAPER READ BY PROFESSOR K. O. SHATWELL, M.A., B.C.L. (,Oxford) Dean, Faculty of Law, University of Sydney AT THE THIRD COMMONWEALTH AND EMPIRE LAW CONFERENCE, SYDNEY‑AUSTRALIA ON 27TH AUGUST 1965 One of the distinguishing marks of a learned profession consists in the fact that its members actively_ interest themselves in social problems falling within the ambit of professional activity to an extent which goes beyond the mechanical discharge of their routine functions, and an important contemporary illustration of this is found in the increased attention now being given to the complex problems of crime and punishment in all sections of the legal profession. In their leisure hours, lawyers and doctors combine to form medico‑legal societies, and members of the judiciary concern themselves with the after‑care of criminals. As might be expected, this wider interest in the problems of the criminal law is reflected in the university law schools by the inclusion ‑ of criminology in the curriculum and by the establishment of institutes of criminology either within, or in close association with, the faculties of law. Within recent years there has been set up within the Sydney Law School an Institute of Criminology which broadly follows the pattern established by Professor Radzinowicz at Cambridge. On its permanent staff are people with training in law, philosophy, psychiatry and statistics, including one with extensive experience in the English prison service. From the beginning it has been assisted by an advisory body, which is under the chairmanship of the Honourable the Chief Justice of New South Wales, and which includes, in addition to representatives of other university disciplines, members of the judiciary, the Attorney‑General for New South Wales, the Minister of Justice, the Commissioner of Police, the Comptroller‑General of Prisons and a representative of the Child Welfare Department. The work of the group has been greatly fostered by the active co‑operation of the Police Department and the Department of Prisons. In teaching ‑ and research the aim has been to supplement the traditional pattern of instruction in criminal law by undergraduate and graduate courses directed to the study of the problems of crime, including a detailed appraisal of the police function, the judicial function, penal policy, and current theories about the causation of crime, and in addition, to extend the study of the problems involved in the enforcement of the criminal law by work in extension courses and seminars which bring together people professionally concerned in very different aspects of law enforcement. One positive result of these exercises has been an increased awareness by all who have participated that the various stages in the process of law enforcement are interdependent links in a single chain. In this paper I shall discuss two main problems arising from this mutual interdependence: (a) the concept of the rule of law in relation to the criminal law in a changing society, and (b) the need for a critical reappraisal of present penal sanctions. 1. The Concept of the rule of law in relation to the criminal law in a changing society The concept of a crime is defined by reference ' to the concept of a punishment administered in a legally prescribed form. In every branch of the law, however, the legal rules are the product of legal skills applied in response to social demands. Many of these demands come from sections of the community which are politically or economically powerful, or especially vocal, but some at least reflect deep‑rooted needs and beliefs which arise from human association. In the case of the criminal law the response of legal skills to social demands presents particularly complex features, because there is no legal field which has been more strongly dominated by non‑legal influences of a profoundly emotional character. Generally speaking, these last have been predominant in determining the content of the substantive criminal law, including the nature of the sanctions annexed thereto, while professional skill has been directed to the important, but subsidiary, task of ensuring that the sanctions, are imposed in accordance with professional concepts of justice, traditionally summarized in the concept of the rule of law. As a matter of history, however, the major issues in the vindication of the rule of law arose over the whole field of the legal relations between the subject and the Crown, and the protection of the subject against the misuse of criminal process was merely one aspect of the struggle to limit and define arbitrary executive power. It will be remembered that in the course of this struggle the Star Chamber jurisdiction was abolished, and with this, the only legal means of controlling wrongdoers too, powerful for the process of the common law. It must also be observed that the battle was fought over the body of the man of property, who was assumed prima facie to be unlikely to resort to crime, and much of the protection now enjoyed by the known vagrant or reputed rogue is a characteristic of modern egalitarian society. The consequences of the assertion of the rule of law in the criminal field may be summarised as follows: (a) both judge and jury discharge an arbitral function in a dispute between the Crown and the subject; (b) the substantive criminal law consists of a number of detailed rules formulated in precise terms and containing, inter alia, precise definitions of a number. of specific crimes; (c) save 'for some , specified exceptional cases, the Crown must affirmatively prove the facts alleged against the accused beyond reasonable doubt; (d) there is no legal means by which a person suspected of a crime can be compelled to incriminate himself; (e) civil, and in some cases criminal, liability is incurred by any officer of the law who interferes either with the personal liberty or with the property of the subject except on clearly defined legal grounds, and the urgency of investigation or strong grounds of suspicion are not in themselves a legal justification for any such interference. While recognizing that the practical realization of the concept of the rule of law is one of the great achievements of Anglo‑American culture, legitimate pride may nevertheless lead to complacency and a failure to assess social changes. When, institutions are deeply rooted in the life of a community it is usually because they continue to serve important social needs and no reasonable commentator would suggest either their abandonment or drastic revision in the absence of clear evidence that they have ceased to serve the needs which brought them into existence. Nevertheless, their historical strength may clothe them with an emotional aura which has the negative effect of precluding critical appraisal and modification in light of changing needs, and the positive effect of encouraging glosses of doubtful value upon the original institutions. In light of these observations, I would now offer some comments upon the various aspects of the rule of law listed above in terms of mid‑twentieth century social needs. In the eighteenth century English criminal procedure was, in the opinion of contemporary observers, undoubtedly superior to any system then in force in any other European State, and it seems clear that this was largely due to the arbitral roles of judge and jury which were finally established after the violent constitutional struggles of the seventeenth century. Whether the English system is still superior to those of the present liberal regimes of West Germany, France and Italy is a question which could be usefully discussed only after protracted, comparative study, and in any event British and American opinion would rightly be reluctant to experiment with a traditional practice which commands great public confidence. In passing, it may be observed that the modern law of evidence came into existence as a concomitant to the English arbitral procedure. Although this seems to have become a sort of holy cow amongst the various branches of the law, I would tentatively suggest that its supposedly logical structure and the notion that it is a science of proof merely conceal some practical rules based upon the need to protect the time of purely arbitral tribunals against the intrusion of otherwise unlimited material by counsel and a widespread belief that they provide an additional protection to the accused in criminal cases. While some 'observers suspect that an arbitral tribunal bound by the rules of evidence is not the most perfect means of ascertaining the truth, the bulk of modern Anglo‑American opinion would accept this as a price justified by this second consideration. It is, however, debatable whether the protection given to the defendant is really as effective as is popularly supposed, and in this context, arguments can be mustered from a number of other capital cases in addition to the much discussed cases of Evans and Hanratty. It is, of course impossible to give firm answers to these questions without comprehensive comparative studies of English criminal procedure with that of other modern Western European systems, but I would suggest the need for such studies as a means of replacing haphazard speculations upon the possible shortcomings of the British system by a proper critical appraisal. The second aspect of the rule of law, the requirement that the criminal law shall be formulated with certainty and precision, would seem to be an essential requirement of law itself as we traditionally understand it. Again, no English or American lawyer who subscribes to modern democratic ideals would question .the soundness of the principles governing liability of officers of the law for illegal acts. In our legal culture the primary function .of the criminal law is the protection of bodily security, property and the social order. The realization of these aims through law as we understand it involves five distinct phases. These are : (a) the exercise of legislative powers directed to the pre?determination of the kinds of acts which appear to require suppression by the direct application of state power, and to the pre‑determination of the sanctions to be attached to such acts; (b) the exercise of a purely administrative function in the detection of individuals who appear to fall within the ambit of the rules so established; (c) the exercise of a purely judicial function to determine whether such individuals in fact fall within the ambit of these rules; (d) the exercise of a further function (which may be classed either as judicial or administrative) in the form of an order that some prescribed sanction shall be imposed upon persons 'found to be within its legal ambit; (e) a purely administrative function in the actual application of the sanction to such persons. The average lawyer who is little concerned with criminal practice may argue that the proper function of the legal profession is exhausted by the important roles played by individual lawyers in the judicial phases and by the constant exercise of vigilance and skill by the profession as a whole to see that the rule of law is maintained throughout all phases. .I shall attempt to show, however, that all phases are inter‑related, and that the efficient working of the machine requires that they should not be treated in isolation. If we look at the two questions raised in the first phase of the criminal process (namely, what forms of conduct shall attract criminal sanctions, and what is to be the nature of these sanctions), it seems clear that the answers come partly from sections of society which are either politically dominant or politically influential, partly from long social usage, and partly from the biological instincts upon which society ultimately rests. Against complexities of this sort it becomes tempting to take a deterministic view which assumes that the human herd necessarily reacts against individual deviants from herd patterns with a degree of violence roughly proportionate to the dislocation they cause. On this assumption the function of the lawyer then becomes limited to projecting and channelling community reaction to anti‑social behaviour into legal rules which define socially recognized forms of punishable conduct with precision. and provide for the orderly and just imposition of socially pre‑determined sanctions. An examination of the other phases of the total criminal process, namely, the investigative and the punitive phases, shows, however, two cogent reasons why professional interest must be extended to include a constant critical appraisal of the nature both of criminal acts and of criminal sanctions in a democratic society. Firstly, lawyers have directly imposed and actively encouraged the imposition of legal restrictions upon the investigative process, and these, I would suggest, must be justified on a balance of interests between the individual suspect and the need to protect the community. Secondly, no criminal sanctions have as yet been devised of a kind which can be imposed without harm to. one or more persons and without economic cost to the community, and there is no area of legal activity in which public opinion is more confused. Since all legal sanctions carry with them a professional imprimatur, i.e., a warranty by professional opinion of their fitness for the purpose for which they are employed, the whole problem of criminal punishment falls properly within the field of professional appraisal. Dealing first with the legal restrictions imposed upon modern police officers in the investigation of crime in common law systems, attention is drawn to some historical factors which are highly relevant to the problem (a) The basic legal principles bad taken on their definitive form before the end of the eighteenth century. The pattern of society in England, with the exception of London, was still predominantly rural, and law enforcement was still regarded as the responsibility of private individuals, local communities, and the justices of the peace. More important still, the paramount objective of the constitutional and legal struggles which established the supremacy of the rule of law was the protection of the individual against the misuse of political power by the executive, and no thought was given to the criminal sub‑cultures which exist in any society. In the social and legal history of England these last were identified generically by such various terms as "strong rogues", "masterless men", "sturdy beggars" and "vagabonds", and it is abundantly clear that they were hated and feared from the sixteenth century onwards. Repressive legislation subjected them as an identifiable class, to punishment by way of whipping, imprisonment and public humiliation, and the Poor Law statutes sought to prevent their increase by providing workhouses for persons unable to work and houses of correction for those unwilling to do so. It is to be observed, however, that throughout social history the repression of crime has always been comparatively simple in rural areas except where special political or economic factors have fostered the existence either of secret societies or bands of outlaws, and that in densely populated urban areas the task of law enforcement agencies has always been difficult. In this respect, London already presented special problems in the sixteenth century, and in the years between 1,600 and 1,800 its population increased from appoximately 2,00,000 to 9,00,000. Then, against the background of nineteenth and twentieth century industrial and technical development, the population of metropolitan London grew to more than eight millions, and there were corresponding increases in other urban areas in England. I draw attention to these figures to point out that the basic legal framework which still governs criminal investigation was already established at a time when the problems of urban crime were appreciated only by a handful of enlightened London magistrates, and in a society which was eager to clothe its principal law enforcement officers with effective powers to coerce and punish sections of society deemed likely to resort to habitual crime. (b) From the time of the Fieldings to the introduction of Peel's Metoropolis Police Improvement Bill in 1829 the proposals of the enlightened few for the establishment of a properly organized, trained, and disciplined police force met with intense and widespread opposition, based on the assumption that such a step would lead to the destruction of traditional liberties and the introduction into England of the political tyranny, espionage and false accusation characteristic of continental systems. While such fears have not been realized, they have nevertheless provided a firm original basis for a continuing distrust of the police which now stems largely from a psychological resentment against a form of authority with which the ordinary citizen is in daily contact. In such circumstances, the individual cases of serious misconduct by police officers, inevitable amongst the members of any large organization, are more than sufficient to keep Olive public fears. (c) In light of all these factors, the powers of the police in relation to such matters as questioning, arrest and charge, search and entry, have been narrowly defined against the background of the principle that every police officer is civilly, and in some cases criminally, responsible for any interference with person or property subsequently held to be unjustified by legal standards, which generally depend upon an ex post facto value judgment by a Court as to what was reasonable at the time. In addition, the restrictive effect of the legal controls upon the investigative process has been greatly increased by informal restrictions such as the Judges' Rules and some very strong and clearly formulated canons of public opinion about the unfairness of certain methods of investigation themselves unlawful. All this, of course, is justifiable on the assumption that the need to protect the individual against possible misuses of police power outweighs the need to protect individuals and society against criminal activities. I would suggest that the works with the aid of good deal of social hypocrisy, that it as extremely unfair to conscientious police officers, and that it gives a legal immunity to certain types of criminals. It is an unfortunate fact that at the present day criminal sub‑cultures invariably exist in densely populated areas, irrespective of the general level of community prosperity. The problems they create tend to become dramatically worse when town populations pass the million mark, and they become frighteningly so in the case of modern cities of the size of metropolitan New York and metropolitan London‑. Here I can only advert briefly to two salient features: (i) The number of socially inadequate personalities who exist within these criminal sub‑cultures still continues to increase with uses in population density in spite of general material prosperity, improved social security and social welfare measures, and the elimination of slums of the old type. Many of these persons are regularly convicted of offences carrying short and medium terms of imprisonment, and in present rather a pathetic picture, which sometimes obscures the fact that in freedom they create very serious threats to the safety and the property of the law‑abiding sections of the community: (ii) These criminal sub‑cultures contain a hard core of tough and skilful criminals who cannot be classed as personalities in view of their success in criminal enterprises. Groups criminals of this kind are found in various localities in every big city. become known to each other in the same way as do more reputable business men, and this leads inevitably to co‑operation in individual enterprises. Equally invariably, a process of natural selection brings to the for individuals with natural talents of leadership and organizational and executive skill, and then, in the bigger cities of the world, and in ways and to degrees which vary in different places at different times, more permanent forms of organization appear. If these patterns of organization are not effectively checked in the early stages, they pass largely beyond the control of the instruments of law enforcement in societies which subscribe to the rule of law, firstly, `cause the leaders are increasingly able to avoid direct participation in the execution of criminal schemes, and secondly, because they become very wealthy, and with this they acquire the power to influence and to corrupt, and all the other advantages which inevitably accompany wealth, irrespective of its source, in the shape of friends in political, social, legal, and press circles. At point I would emphasize that the picture drawn here is not inspired by? or fictional delineations of American crime. The social enormities of organized criminal activity in that country in the areas of prostitution, narcotics, trade unions, and legitimate business act far worse than their portrayal for entertainment purposes reveals. They should not, however, be dismissed as a peculiarity of the American way of life. The fact is that not only in London, but in other great cities of the Common wealth, the patterns of criminal organization are already much more advance than is commonly realized, and the situation can only be controlled by vigorous police action constantly directed to the apprehension and conviction of offenders. I draw attention to these problems in order to suggest that while there is a considerable judicial awareness of them, the corporate thinking of the profession ignores their existence in a consistent adherence to the view that the legal rules governing the investigative process should be restrictively construed and an equally uncritical reaction against judicial decisions which occasionally reflect a different view. Since the profession as a whole enjoys considerable prestige and in its public image is regarded as expert in all branches of the law, the effect of the professional attitude is to confer expert approval upon a general public sentiment containing threads of hostility and prejudice against the police stemming from causes which have little to do with the investigation of serious crime. A detailed investigation into the nature of these threads is beyond the limits of this paper, and here it is only necessary to stress their effect in hampering the process of law enforcement. It is not the object of this paper to advocate the abandonment of rules which reflect the experience of the past, but to draw attention to the need for their critical reappraisal in terms of an increased interest in the criminal law at the highest professional level. On the extent of this need I shall limit myself to a few brief comments. Leaving aside the problem of criminal activities which cannot be reached without substantial modifications of of basic principles which make up the rule of law, the majority of the legal rules governing the investigative process seem to be reasonable and adequate but they operate against the background of a public opinion which is often hostile to, and always suspicious of, the police, and this strengthens very considerably position of the criminal and his legal representative in three ways : (i) Methods of investigation not in themselves illegal, and of the overriding interest of the community, are easily characterized as it as such by the community; (ii) Unfounded allegations of se police misconduct win easy credence; (iii) Many crimes can only be solved by questioning a Dumber of people at an early stage in the investigation? when they are, at most, possible suspects. Such a process plays a necessary part in narrowing the field of inquiry, and, contrary to popular belief, it produces a surprisingly large number of genuine confessions of guilt which are the result of no other pressure than skilful and persistent quest over a period not excessively prolonged. The net result of the legal rules, however, is to, exclude any legal basis for questioning, of this kind in the case of a person who at the outset makes it clear that he will neither answer questions nor voluntarily remain in the company of a police officer. The police officer is then placed in the dilemma of having to choose between the risk of an action for false imprisonment and the abandonment of the inquiry in so far as it depends upon the questioning of a particular person. It is, of course, obvious that any offender who possesses the dual resources of a strong nervous system and a legal adviser at his immediate call can always gain a considerable advantage by effectively declining to be questioned and I would suggest that it is extremely fortunate for the law‑abiding that a substantial number of criminals lack one or both of these resources. The dilemma of the police officer is further increased by the fact that the community calls for the apprehension of criminal with the same vociferousness as it criticizes police methods. For all the these reasons I repeat my earlier statement that there is a strong element of social hypocrisy in assuming that crimes can be solved without the persistent questioning not only of suspects but of other people who for various reasons have a. marked reluctance to volunteer information, and a system which rests upon such an assumption is unfair to conscientious police officers and detrimental to their morale. 2. The need for a critical reappraisal of present penal sanctions. The imposition of criminal sanctions raises complex problems about the nature of human behaviour. At first sight it is tempting to the lawyer to take the position that the professional function cannot usefully extend beyond the procedures for establishing legal guilt and the maintenance of the rules of law in all phases of the criminal process, and that the more fundamental problems are best left to the Legislature to determine pragmatically in terms of community mores, with such additional assistance as can usefully be obtained from persons claiming special skills in the mysteries of human conduct. It is, however, socially important that corporate legal thinking should extend beyond this, for the following reasons firstly, the stamp of professional approval is given to the employment of punitive sanctions which involve very serious consequences both to individuals and to society, and for this reason alone the profession as a whole cannot avoid the question of their social utility; secondly, no field lends itself more .to demands for change and experiment coming from an infinite variety of sources, including injured individuals, public men, priests, philosophers, sociologists and psychiatrists. Against this background, an enlightened legal opinion can play a particularly useful part by an objective critical assessment of proposed changes, without impeding progress in respect of problems for which no socially satisfactory solution has as yet been found. At the present day there is a particular need for this in light of the fact that public opinion is in a particularly confused state as a result of the difficulty in reconciling the unpleasant facts of criminal behaviour in modern cities, firstly, with a spate of theories by psychiatrists and sociologists about the causes of crime, and secondly, with a hard core of knowledge about the effects of imprisonment upon 'the individual which has been gathered over the last hundred and fifty years in the course of prison administration. In the present state of knowledge, current theories about the causes of crime consist largely of interesting but unproved hypotheses which suggest the need both for further medical research and for further investigations into social and economic problems such as the relation of crime to modern patterns of urban development and to modern educational systems. The main value of these last kinds of investigation, however, goes to the prevention of crime by means outside the field of the criminal law, although they have some value in the classification of offenders for treatment in progressive penal institutions and they also ,provide a useful reminder to the lawyer that the conviction of individuals offenders is not the only way of dealing with crime. On the other hand, psychological theories as to the causes of crime are a matter of primary concern both to the lawyer and the prison administrator because of the constantly increasing influence they, exercise in determining the destiny of the accused both before and after the facts are established, either through legal formulae about fitness to plead and criminal responsibility or by administrative action after conviction. In this context, I would suggest that there is now no place for such cumbrous legal devices as the McNaghten Rules or the English legal category of diminished responsibility in jurisdiction which have abolished the death penalty, or rendered it non‑obligatory. It is particularly important that the attention of the legal profession should be directed to the hard core . of knowledge about the effect or confinement upon individuals which has been slowly acquired by prison administrators over a period in which imprisonment has been both the normal punishment for most serious crimes and also a common punish?ment for the large number of persons now convicted summarily. I draw attention to the two categories of prisoners in view of the fact that the problem of the fully adult short term offender has received comparatively little attention in comparison with that given to the youthful offender and to the older long term prisoner. Much of the experience gained in the treatment of these last could be applied to the first with a great saving of public expenditure, but obvious practical reasons arising from the weight of numbers have hitherto excluded its application except in a few localities in the United States. The crux of the basic social problem .lies in the fact that nearly all prisoners are entitled to release after a longer or shorter period, coupled with the fact that a substantial percentage of medium and short term prisoners become recidivists. In the earlier decades of the nineteenth century the English penal system was substantially reformed in two important respects by the abolition of the death penalty in the case of a very large number of felonies and by the provision of the new gaols in place of the in sanitary dens which had long been a source of public scandal. It is one of the curiosities of penal history that the more beneficial aspects of transporation seem largely to have been ignored in England, as they have been in Australia, and, with the noteable exception of Alexander Maconochie the best secular and religious thought was in agreement that a pattern of imprisonment based upon a combination of hard physical labour with solitary confinement was the most effective means both of reforming the individual offender and of deterring others. By the end of the nineteenth century, however, experience had conclusively demonstrated that regimes o this kind did not reduce the incidence of recidivism, and that close confinement in institutions specifically designed in terms of this penal theory produced further and serious deteriorations of personality. Although the modern legislative and administrative measures going to the use of probation and the treatment of young offenders reflect some degree of public appreciation of this factor, this unfortunately does not ii general extend to the problem of the fully adult offender sentenced to actual imprisonment. Here the prison administrator has been left to experimer with newer forms of institutional treatment against a background of public opinion often hostile and at best apathetic, and within a legal framework which in the case of long term and medium term offenders reflect to structure of the important criminal statutes of the midnineteenth century, an in the case of short term offenders rests on no considered policy at al The result of the extensive experiments in the treatment of young offender and the more limited experiments in the case of older prisoners, may be summarized as follows: firstly; they establish positively the therapeutic valt of full productive employment in an institutional regime which ‑ active; encourages the greatest possible community life compatible with a sentence of imprisonment ; secondly, the majority of the prison population respond to such regimes satisfactorily under the medium and low security condition practically necessary for their implementation, and maximum security conditions are required for a comparatively small minority. Having regard, however, to the confused state of public opinion, and also to the fact that fuller implementation of penal programmes of this kind depends on some legal changes in sentencing powers, further developments appear to be dependent largely on the increased interest of the legal profession, and especially of the Judges. Within the limits of this paper it is possible only to list briefly some long overdue changes in British sentencing laws along lines suggested by American experience: (i) There is an urgent need for the reclassification of all offences punishable by imprisonment into two categories : (a) offences carrying a maximum sentence of not more than one year, and (b) offences carrying a minimum sentence of not less than one year. Such a step is a necessary preliminary to the institution of work and rehabilitation programmes for short term offenders and would greatly facilitate planning for medium and long term offenders. There would, of course, still remain a third main category of persons imprisoned for disobedience to legal process, but although these obviously demand separate institutional treatment, this can be effectively provided by administrative action. (ii) In the case of offenders of the first kind, the minimum sentence of imprisonment should be three months, and any additional period imposed should be in units of three months up to the maximum period of one year, as the organization of proper work and rehabilitation regimes for short term prisoners is practically impossible upon any other basis. Sentences of imprisonment for less than three months throw a costly and unnecessary burden upon both the prison service and the community, and appear unjustified in systems which resort freely to probation, while sentences for periods intermediate between three, six, nine, and twelve months are unnecessary refinements upon the doctrines of Beccaria. I would also suggest the desirability of legislation analogous to the Huber Law of Wisconsin, where short term prisoners are permitted in appropriate cases to continue their ordinary daily employment, returning in the evening to their place of confinement. It is, however, essential that any such changes be accompanied by the provision of institutions providing for a proper work and rehabilitation programme. In this context, I would point out that a ‑ substantial number of short term offenders are easily confined within low security prisons, that such institutions are much less costly both to establish and to maintain than the older type of prison, and that when community prejudices against productive prison labour are overcome, it is easily organized in Mediterranean type climates. The Santa Rita County Jail in California offers an interesting and successful illustration of such an institution. (iii) With regard to the second category of prisoners, the problem is largely that of facilitating and extending the application of some modern principles of penal treatment upon which there is substantial agreement amongst prison authorities in England, Australia and America. It seems clear that the rehabilitative process is best fostered by the existence of a parole system under sentencing laws which require the Judge to prescribe both the minimum and the maximum limits of the sentence. My own view is that it is desirable to maintain judicial control over the lower limit in order to provide an objective channel for the expression community anxiety or anger against socially dangerous offended and over the upper limit as a safeguard against prolong detentions alleged to be justified not by the gravity of the offence but by arguments on supposed therapeutic grounds. The selection of the institutional regime should then be determined by t: prison authorities by the process known technically as classification in depth, and the date of the individual's release should considered later, either by administrative decision or by the or of an independent parole board in light of his response to b rehabilitative programme. In such a system, the fixing of statute maximum periods for specific crimes within the general category seems unnecessary. I would emphasize, however, that legislation of this pattern should be introduced only if prison administrator are provided with the necessary resources in plant and staff deal separately with dangerous psychotics, so‑called psychopaths intractable offenders, and prisoners determined to escape. The sum total of all these in any given prison population is, however much smaller than is commonly supposed, and when these a segregated for separate institutional treatment the majority prisoners respond favourably to constructive regimes in low security institutions which can be run comparatively cheaply. In conclusion I should like to say that I have refrained from a discussion of the substantive nature of crime and punishment partly because I a unwilling to add my own voice to the spate of unproven theories already existence, but still more because it seems that crime like the ever rolling stream with which we are all familiar is today not only in danger of over flowing its banks but to some extent has already done so. When men ability and skill are increasingly turning their efforts to crime, who scientific advances are rapidly adapted to criminal ends, when surplus criminal funds are diverted into legitimate enterprise or used for the suborning of people in high places, we can no longer afford to regard the familiar stream as tolerantly as in the past. I have therefore attempt instead to examine two major dilemmas with which we are faced today firstly, the problem of balancing the protection of the individual against the misuse of criminal process with the protection of the community again crime, and secondly, the problem presented by a society which preserves the criminal from the older penalties of banishment or. death and returns hi to society with the increased criminal skills and criminal associates, and to deterioration of personality, which are the common effects of imprisonment I have tried to show that the administration of criminal justice has five, distinct phases which, although functionally separate, nevertheless form integrated process of great social importance; that since it is a legal process the responsibility for its effective integration rests upon the legal profession as a whole; that in a changing society all the phases, and their reaction of upon another, need constant reappraisal. Attention has been drawn to two points which appear to need particular attention at the present time, are some changes have been suggested in the hope that they will provoke critic discussion in this arena.