Bring back the cat! How judicial flogging was still being used in Britain up to the 1960s

It is sometimes forgotten that flogging was still being ordered by British courts within living memory

Throughout the 1960s in Britain, one would hear the claim from older people, who were not fans of the so-called ‘permissive society’, that the only way to sort out society was to bring back flogging and hanging. ‘Bring back the cat!’ was something of a battle-cry for such folk. The last flogging to take place in a British prison was in 1962 and, until the passing of the Criminal Justice Act in 1948, five difference offences could still be punished by the courts by ordering the offender to be whipped with the cat o’ nine tails. These were the Treason Act, 1842; aggravated robbery, under the Security Against Violence Act 1863, the so-called Garrotters’ Act; loitering with intent to commit a felony, contrary to the Vagrancy Act, 1824; Procuration and living on the earnings of prostitutes, Criminal Law Amendment Act, 1912; and slaughtering horses without a license, Knacker’s Act, 1786. Just think; within living memory, one could have been flogged for just hanging around a street at night, looking as though one were up to no good!

     In reality of course, beggars and tramps were not being whipped for vagrancy as they sometimes were in the seventeenth and eighteenth centuries. Very occasionally, a suspected person loitering with intent might receive the ‘cat’, but such cases were vanishingly rare in the twentieth century. That such offences as slaughtering horses without a licence and loitering with intent remained punishable by flogging well into the twentieth century was an anachronism; it was just that nobody ever got around to altering these statutes. The same applied to treason and, by and large, living off immoral earnings. In the 22 year period between 1913 and 1935, just 25 men were flogged for this; roughly one a year. The only crime for which flogging was really ordered by courts in the twentieth century was robbery with violence. In the first 35 years of the twentieth century, a total of 466 men were awarded the ‘cat’ for robbery with violence. The situation was different in prisons, where flogging could be given for various infringements of discipline, but we shall look at that later in this chapter.

     During the nineteenth century flogging, as a punishment for crimes committed outside the prison system, fell into disuse. It was revived during the ‘Garrotting’ panic of the 1860s and from then on carried out almost exclusively against those convicted of robbery with violence. This state of affairs continued until 1948, with only those guilty of this offence facing the prospect of the ‘cat’.

     It was widely believed that the threat of the ‘cat’ kept violent crime in check during the Edwardian period and the years between the two world wars. In 1954, after both the ‘cat’ and birch had been abandoned, other than for offences against discipline committed by those serving a prison sentence, a well-known detective wrote an article for the Daily Mirror. ‘Fabian of the Yard’, as he was known, had no doubt at all about the benefit to society of retaining the ability to flog violent criminals. In his article he explained, quite correctly, that once a man had been flogged with a cat o’ nine tails, he took great care not to run the risk of ending up being whipped a second time. Fabian thought that this fear of pain was a healthy one, that could protect society from hooligans and dangerous men. He was keen to see that its use in prisons was not removed, as he felt that it was the only thing which kept prison warders safe from attack.  Fabian wrote:

       Prison doesn't worry such men. And how can we judge by normal human

      standards a man who is not worried by prison? Gaol is a rotten place. It is a

      hell-hole, don't mistake me. Yet these men don't fear it. What then do they

      fear? Only that one thing. The ‘cat.’

           Yes, I know this kind of talk is out of date. And I realise that prison

     floggings will also one day be out of date, just as prisons will be. I shall be glad

     to see that day when in some distant tomorrow we understand criminals well

     enough to cure them.

          But right now we have not reached such a stage. We still have prisons and in

      them we keep dangerous men. While these men exist the ‘cat’ must stay. And

      it must be used. It is the only protection prison officers have.

     Fabian went on to tell an anecdote of his time at a London police station, which he claimed indicated clearly the deterrent power of the ‘cat’;

      I remember one day while I was an inspector at the old Vine-street police

      station. It was a Sunday afternoon and a man was brought in charged with

      jumping out at an elderly woman and trying to steal her handbag in Berkeley-

      square.

           I looked at the thief, who was a real old lag. And then at the woman, who

      hardly reached up to his elbow, and who looked as frail as a plucked sparrow.

     ‘When he grabbed her handbag, sir,’ said the police constable, ‘she wouldn't

     let go. She took hold of his jacket lapels and held on to him until I arrived on

     the scene, sir. He made some efforts to escape, but was apparently unable to

     do so.’

          I asked the old lady: ‘He didn't try to hit you, then, madam?’ The thief

     broke in. ‘Hit her, guv? Not me, guv! I don't want my back scratched!’

     It was the ‘cat’ he meant. The ‘cat’ he feared. And undoubtedly, although the

     shock and pain must be markedly severe, yet I do not think it is the physical

     agony that makes judicial corporal punishment so dreaded by these men. It is

     the disgrace.

     Chief Inspector Fabian has been quoted at length, not only to give a flavour of the views of some people at the time on the subject of flogging, but also because he was closely involved with one of the most famous cases during the inter-war years where a criminal trial ended in those convicted being sentenced to the ‘cat’. This was the affair of the so-called ‘Mayfair Boys’; well-to-do young men who had turned to crime after their families had failed to supply them with as much money as they thought they needed.

     In 1937, debates were taking place about the usefulness, or otherwise, of the birch and ‘cat’ as punishment. Many people thought that both implements were horribly outdated and the sooner that they were done away with, the better. Not everybody agreed. The judiciary and police were, by and large, strongly in favour of their retention. Into the midst of this public debate came a shocking case, which involved not young tearaways or hardened criminals, but rather four young men from good families; all of whom had attended public schools.

     A week before Christmas 1937, four men in their mid-twenties planned a robbery which would free them from their financial difficulties. They had all grown up with plenty of money, been expensively educated and generally been raised with the feeling that they were superior to the ordinary men and women in the street. They had little inclination to work and their families had gradually withdrawn financial support, until all four of them were short of money. They were typical ‘men-about-town’ of the period and frequented Mayfair clubs and hotels; chiefly on credit, which was only forthcoming because of their class. However, by the end of 1937, this was wearing a little thin and it was essential that they should have some ready cash. The men concerned were Robert Harley, David Wilmer, Peter Jenkins and Christopher Lonsdale and they ranged in age from 22 to 26.

     The scheme which the four men who became popularly known as ‘The Mayfair Boys’ devised was simplicity itself. This was a time when class and accent meant everything. One of them rang up Cartier, the jewellers, and spoke to Mr Etienne Bellenger, one of the directors. He was told that the caller wished to buy an expensive engagement ring and asked him to bring a selection of nine rings to the Hyde Park Hotel, where he was staying. The hapless Mr Bellenger, doubtless impressed both by the young man’s beautiful voice and the fact that he was staying in such an exclusive hotel, duly turned up with nine rings; worth in total over £13,000. Once he was in the hotel room, Bellenger was knocked to the floor by David Wilmer and then savagely beaten by Robert Harley. As a result of the attack, he spent several weeks in hospital. It was later said that he was lucky not to have been killed, so violent was the attack.

      It did not take the police very long to track down those responsible for the robbery. Wilmer’s fingerprints were found on a bottle and glass in the room where the rings had been stolen. Robert Harley had been working as an informer for the police for several months and tried to turn in his fellow robbers for the reward. The attack on the man from Cartier had made the headlines of all the newspapers and Harley thought that he might make more from the reward than he could get from selling on the stolen jewellery. All four men were arrested and within two months appeared at the Old Bailey before Lord Hewart; the Lord Chief Justice. They were charged with conspiracy and robbery with violence.

     As is so often the case, the four defendants relied on what is known in legal circles as a ‘cut-throat’ defence, in which they all admitted being concerned in the crime, but each tried to lay the blame for the worst aspects on the others. As is usually the end-result in such cases, the jury were unimpressed and convicted them all of conspiracy and three of robbery with violence. Pleas of mitigation were made, which centred around the fact that the men had attended good schools and universities and came from very respectable families. The Lord Chief Justice was scathing about this when passing sentence on 18 February 1938. He said:

     The word ‘education’ has been used about each of you. If I believed that you

     really were educated men it would be necessary for me to be, on that account,

      more severe. Probably all that is meant is that somebody has spent money in

     providing you with certain conventional opportunities of education. The

      results are not impressive.

     The men in the dock can have had little doubt that they would end up being sent to prison for years for their crime and so it proved. Harley received seven years, Wilmer five, Jenkins three years and Lonsdale, the least culpable of them, was sent to prison for 18 months. All this was as expected. What came as a shock both to the prisoners and everybody else was that Lord Hewart also ordered that two of the men, those who had actually taken part in the attack on Etienne Bellenger, should also be flogged. Robert Harley was to receive 20 strokes of the ‘cat’ and David Wilmer 15.

     There was some disquiet about the idea of these young men from respectable families being flogged; not least because the Cadagon Commission on corporal punishment had been deliberating about the future of flogging and was still to deliver its report. Some people thought that it would be wrong to flog these men, when that type of punishment might soon be abolished. The MP for Kirkaldy raised the matter in the House of Commons, asking the Home Secretary if he would consider remitting that part of the sentence relating to the flogging. He also asked when the commission on corporal punishment would issue their report. Other MPs asked similar questions.

      In the event the two ‘Mayfair Boys’ were both given the ‘cat’ before the report on corporal punishment was published in March 1938. As expected, it recommended the complete abolition of both the ‘cat’ and the birch; except as punishments in prisons, for those attacking warders. A bill was prepared with a view to putting these measures into law, but of course there were so many more urgent considerations to be dealt with at that time, the Second World War began the following year, that these measures did not find their way onto the stature book for another 10 years.

     The 1948 Criminal Justice Act ended flogging as a penalty available for the courts’ although there were many people who were sorry to see the end of this ancient, British tradition. The main reason for passing the act which ended centuries of whipping had nothing to do with humanitarian feelings but was simply a question of pragmatism; flogging did not actually deter crime. Violent crime had risen in England in the first 35 years of the twentieth century, as it had also done in Scotland. However, in England, where the ‘cat’ and birch were available to the courts, such crime had risen by 33 per cent, but in Scotland, with no corporal punishment, it had only gone up by 6 per cent.

     It was to be another 15 years before England saw the last of the ‘cat’ and birch. Their use in prisons declined after the 1948 act; most thoughtful and liberal people saw flogging as a barbaric relic of an earlier age and they were used very sparingly through the 1950s. Not that they vanished completely. In December 1952, 22 year-old William McGuire was flogged with the ‘cat’ in Dartmoor Prison, following an attack on a warder. McGuire was given 12 strokes. The following year, a prisoner in Wandsworth was sentenced to 18 strokes of the ‘cat’, but for medical reasons, he was instead birched.

     By 1960, the use of both the birch and ‘cat’ was clearly an anachronism in a modern society. Using pain as a means of punishment was no longer acceptable and it was a question of when the practice fell into abeyance, rather than if. Flogging, like hanging, had had its day. It is in retrospect faintly surprising that both had managed to survive until the 1960s. Every sentence of flogging had to be referred to, and confirmed, by the Home Secretary; who often withheld his permission. The whole business was becoming an embarrassment and the end came suddenly with a change of government in 1964. Before then, there were to be a handful of final cases of the judicial use of corporal punishment.

     The ‘cat’ was hardly ever ordered after 1953. Instead, the birch was the chosen instrument. In 1962 four adult male prisoners were birched for offences against the prison rules; all entailing violence. The last of these floggings took place on 29 May that year. The victim, who was to become famous a few years later, was 33 year-old Frank Mitchell. Mitchell, who had spent some time in Broadmoor, was nicknamed the ‘Mad Axeman’, following his exploits during a prison escape, when he terrorised a woman by brandishing an axe. On 23 April 1962, Mitchell and half a dozen other prisoners managed to get out of their cells and attacked prison officer. Frank Mitchell got hold of a truncheon and smashed it so hard across the warder’s face that the truncheon snapped in two. For this, he was given fifteen strokes on his bare backside with the birch. This was followed by two weeks on a diet of bread and water. A few years later, the Kray brothers helped Frank Mitchell to escape from prison and then, finding him to be a liability, had him murdered.

     Deliberately inflicting pain on men and then starving them by limiting their food and drink to bread and water, was really not how civilised societies deal with misbehaviour. That at least was the view of Home Secretaries from 1962 onwards. Henry Brooke, who was appointed Home Secretary three months after Frank Mitchell was birched, refused to authorise any more flogging of any kind, under any circumstance. In March 1963, two prisoners who had assaulted a prison officer at Dartmoor were ordered to be birched, but the Home Secretary refused to sanction the punishment. Instead, he made arrangements for the men to see a psychiatrist; much to the disgust of the Prison Officers’ Association.

     In October 1964, a general election was held; which was won by Labour. Like Henry Brooke, the new Home Secretary, Frank Soskice, would not allow anybody to birched or flogged with the ‘cat’; the same approach taken by his successor, Roy Jenkins. In November 1966, a prisoner called Roger Maxwell was awarded the birch, but Roy Jenkins refused to allow it to be administered. The following year, judicial corporal punishment was removed forever from the statute book. The wonder of it is that it managed to hang on for so long.

      The debate about flogging continued for some decades after its eventual abolition. Older readers might recall that during the 1960s and 1970s, the cry of ‘Bring back the cat!’ was raised from time to time; frequently in the aftermath of some especially violent crime. The idea of judicial flogging was kept alive in Britain by the fact that it was still being used in parts of the British Isles until 1976. Reactionaries in England could look to these places, praise the law-abiding nature of their societies and attribute it to the wholesome fear of being beaten if one stepped out of line!

     The birch was retained in both the Isle of Man and the Channel Islands long after it had fallen into disuse in mainland Britain. The 1948 law which abolished it in most of Britain, did not apply either to the Isle of Man or the Channel Islands; both of which are Crown Dependencies with their own laws and customs. Not only did the Isle of Man not abandon the birch at the same time as the rest of Britain, in 1960 it actually extended its use; passing the Summary Jurisdiction Act, which made it available to be used against youths up to the age of 21. It proved so effective at stemming the sort of juvenile delinquency seen in mainland Britain, that there was no real opposition to its use. Even the British government did not seem to be too worried about the fact that courts in the British Isles were ordering men to be flogged.

     The birch, although sometimes regarded as being a milder punishment than the ‘cat’ was, by all accounts, at least as painful. One person who was birched described the sensation as being akin to having a red-hot poker pressed against the bottom. It must of course be borne in mind that the beating was invariably carried out on the bare bottom, which increased the pain felt substantially. Up to 12 strokes were delivered. Although the Isle of Man was the place which was associated in many British people’s minds with the use of the birch, it was actually more commonly given to young men living in the Channel Islands of Jersey and Guernsey. Throughout the 1950s and 1960s, courts in the Channel Islands ordered birchings without anybody on the mainland taking much notice. The focus of attention was always upon the Isle of Man.

     A typical example of the kind of offence for which the birch was given on the Isle of Man was seen in 1969. That year, a 16 year-old boy appeared in court at the Manx town of Castletown. He was admitted firing an air pistol at two 15 year-olds; one a boy and the other a girl. For this, he was convicted of two counts of assault. Nor was this all. He was in addition found guilty of 15 other charges, ranging from buying alcohol for children to causing a breach of the peace. If ever, one might think, a short, sharp shock was called for, this young man would be a prime candidate! This was certainly how the case presented itself to local butcher George Costain, who was the Chair of the Magistrates. He sentenced the youth to receive four strokes of the birch. To those living on the Isle of Man, this seemed quite reasonable and was, they believed, one of the reasons that their part of the British Isles was not plagued with vandalism and hooliganism, in the way that England was.

     The specifications for the birch used on the Isle of Man were as follows:

     Weight not to exceed 9 oz. Length 40 in. Handle length 15 in. Circumference at

     centre 6 in. Circumference at butt of handle 3½ in. Circumference 6 in. from

     end 3-1/4 in.

     The last birching took place on the Isle of Man in 1976, although it was not finally abolished for another 17 years. This was a direct consequence of the practice having been ruled, at the European Court of Human Rights, to constitute torture. Specifically, a case was brought on behalf of somebody who had been sentenced to be birched there and the punishment was found by the court of human rights to fall into the category of, ‘torture’ or ‘inhuman and degrading treatment or punishment’. Once the Court of Human Rights had ruled that torture was taking place in the British Isles, the government at Westminster leaned on the Isle of Man and flogging came to an abrupt end there.

      It will be remembered that the United Kingdom entered the Common Market, now the European Union, in 1973. This meant that some of the things which the nation might have tolerated on its fringes now became a serious embarrassment. Birching was one of those things which the rest of Europe viewed with horror and so, one way or another, it had to come to an end. Of course, the Isle of Man and Channel Islands did not just retain flogging long after the rest of Britain abandoned it, capital punishment too lingered on in those places. Although nobody had been sentenced to death in the rest of Britain since 1964, the death sentence continued to be pronounced in Jersey and the Isle of Man for another 30 years; although the invariable practice was to commute it to life imprisonment. The last death sentence in the Channel Islands was pronounced in 1984; the Isle of Man was even later. On 10 July 1992 a man called Tony Teare heard the judge at the Douglas court say:

     I can only pronounce one sentence. You will be taken to the Isle of Man jail and

     thence to a place of legal execution and there hanged by the neck until dead.

The following year, both flogging and hanging were removed from the Isle of Man’s statute book.

     There can be no doubt that joining Europe meant that Britain had to adopt a far stricter position on torture than was previously necessary. This country had a tradition of beating children and this segued seamlessly into the beating of adults and for many people; there was little difference. The principle was the same in both schools and the judicial system; if somebody steps too far out of line, they must be given a painful lesson. It is an ancient idea, that retribution should be the foundation stone of a properly functioning penal system. This might have been the British point of view, but torture, whether by flogging or any other means, was anathema to most people living in post-war Europe.