By Susan Easton and Christine Piper
In July 2012, two prisoners lost their application for judicial review of two Prison Service Instructions that implement the Prisoners’ Earnings Act 1996. This Act demands that a deduction of up to 40% from the wages of prisoners in open prisons is imposed. In response to the prisoners’ argument for discretion to be applied to each individual’s circumstances, Mr Justice Sales said that deductions are justified:
“They have been promulgated in order to promote a legitimate public policy objective (that prisoners should make a contribution to support victims of crime) and they are formulated in a way which is proportionate to that objective. There is a strong interest in keeping the rules simple and clear, so as to keep the costs of administering them within reasonable bounds.”
This case — which in effect upholds the policy of the Coalition Government to use opportunities for (more) work in prisons as both rehabilitation and reparation — may seem a far cry from the cover image of the third edition of Sentencing and Punishment: The Quest for Justice. However, we chose this cover, which reproduces a painting of a prison hulk and prisoners at work moving timber in Woolwich in 1777, to highlight the current issue of provision of constructive activities for prisoners. It also reflects upon the problem, critical at the end of the eighteenth century and now, of dealing with overcrowding.
Further, the jacket image has a personal resonance. A Woolwich hulk ‘housed’ a convict named Isaac from 1800 to 1804 and we’ve discovered that he was probably married to one of our great-great-great-great grandmothers. Isaac was sentenced to transportation by Derby Quarter Sessions for ‘obtaining money etc, at the head of a mob’ (Derby Mercury, 1800).
So why were convicts in hulks on the Thames in 1777 and 1800? Prison hulks have a long history in Britain, being used to deal with prison overcrowding. The 1718 Transportation Act enabled courts to order transportation as punishment. However, the outbreak of the war with America in 1776 meant that convicts could no longer be transported to North America. In that year, their punishment was to be hard labour — not rehabilitative work — on a hulk. While a new destination for transportees was considered (eventually Australia), pressure for reform and the building of new prisons intensified, especially after the Gordon Riots in 1780 led to the destruction of several London prisons. The Penitentiary Act was passed in 1779 and a new Transportation Act in 1784 was enacted after the end of the American War.
The first prison ship in England was moored at Woolwich and the ship depicted on the book cover is probably the Justitia. It was followed by a long line of ships including the Censor, the Ganymede and decommissioned naval ships including HMS Warrior and HMS Temeraire. Hulks were also used in Portsmouth and Plymouth. The Act of Parliament in 1776, which authorised their use, intended them as a temporary measure to be adopted for two years, but in fact they remained in use until 1857, and then reappeared 140 years later in 1997. HMP Weare was moored off Portland but closed in 2005.
Private companies ran the original hulks, were paid a fee by the state for their services, and fell under the purview of the justices of the peace. They provide an early illustration of the operation of the penal system as a commercial enterprise. The Justitia was owned and run by Duncan Campbell, a leading penal entrepreneur, also involved in the penal transportation industry, and an uncle-in-law of Captain Bligh. The inmates included young boys as well as elderly inhabitants, and occasionally women were also held on the hulks. Many of the inmates were sentenced for very minor thefts.
Conditions on board the hulks were harsh and squalid. Some prisoners were held for the duration of their sentence or while awaiting transportation, but others didn’t survive their incarceration or the outbreaks of disease on board. However, in some respects they were more humane than subsequent early Victorian prisons. As the picture illustrates, prisoners benefited from working with others, in the open air, in contrast to the psychological deprivation of the silent prisons of the early nineteenth century, or indeed the conditions found in modern supermax prisons in the United States and elsewhere. The Thames was a favoured site for prison labour as it provided work opportunities such as dredging the river and driving in posts to prevent erosion of the riverbank. Prison labour was also used to develop Woolwich Arsenal and to maintain the hulks themselves.
While prisoners suffered the stigmatisation of carrying out their work under the scrutiny of the public, the visibility of the hulk and its inmates highlighted to the public the problems of imprisonment, with the conditions on board attracting criticism and accelerating demands for reform and the resumption of transportation. Critics also highlighted the high running costs of the hulks and the fact that their use appeared to have no noticeable effect on crime rates.
To return to Isaac (the convict sentenced in 1800), he was also sent to a hulk at Woolwich because he could not be shipped straight away to a foreign land. The reason didn’t lie in Australia or North America but, rather, in the lack of available sea-worthy ships in England. The ships were all away blockading ports and fighting Napoleon’s navy. Isaac started his ‘imprisonment’ on Stanislaus and was moved to Retribution in 1803 before he was pardoned in May 1804 to serve in the army. Whether Isaac survived to fight Napoleon — certainly not a soft option — and what happened to him next is as yet unknown.
Susan Easton and Christine Piper are the authors of Sentencing and Punishment: The Quest for Justice. Susan Easton is Reader in Law at Brunel Law School. She has a particular research interest in prisoners’ rights and the experience of imprisonment. Christine Piper is Professor of Law at Brunel Law School. Her current research interests include issues in youth justice and the impact of punishment on families.
Image: cover of Sentencing and Punishment: The Quest for Justice: Third Edition, Oxford University Press (2012)