Back to the asylum

‘Revolutions have taken place over less’ stated the UK Guardian on 27 December 2001, in response to proposals made by the Lord Chief Justice Lord Woolf to lock up paedophiles before they had committed any crime (1).

Lord Woolf’s proposals are certainly preposterous. They not only reverse the principle of innocent until proven guilty – they seem to turn the whole criminal justice process on its head, by eschewing the notion that you even need to commit a crime before being locked up as a criminal. But in the UK today, even such far-reaching suggestions, made by one of Britain’s supposedly most liberal judges, is unlikely to spark anything approaching a revolution.

As many have already pointed out, these proposals are unworkable. The paedophiles we are supposed to think of are those like Roy Whiting – the recently convicted killer of eight-year-old Sarah Payne, who had a previous conviction for similar offences. But when Lord Woolf talks about suspected sex offenders, who does he mean, really?

When it comes to defining paedophiles, today’s society already has enough problems. The UK Sex Offenders Register lumps together everybody from the child-abusing Whiting types to 12-year-old girls as sex offenders – and there are a whole lot of more borderline cases in between. How are Lord Woolf and co planning to draw the line about who should be imprisoned ‘just in case’ they commit a terrible crime?

Locking up child sex offenders before they have committed any offence is made doubly tricky by the fact that, in some cases, there is doubt over whether even those convicted of paedophilia actually did the deed. As the UK Independent points out on 28 December, ‘dozens of convicted paedophiles’ (mainly former care workers in children’s homes) are to have their cases reheard by the Court of Appeal ‘amid concerns that the methods used by the police to investigate child abuse have led to serious miscarriages of justice’ (2).

UK home secretary David Blunkett seems to have rejected Lord Woolf’s suggestions on the basis that they would not work in practice. But the practicality of the proposals is not the point. Like many of New Labour’s new legal proposals, their weight lies in their spirit. Lord Woolf is making gestures in the direction of what he believes is the public consciousness – the commitment to safety, at whatever the cost to liberty. And in the current climate, where all discussions of criminal justice measures are dominated by a broader sense of fear and suspicion, such gestures are as dangerous as the implementation of draconian new laws.

The proposal to lock up suspected paedophiles before they have committed a crime has a precedent. Following the murder of Lin Russell and her daughter Megan in 1996, and the subsequent conviction of Michael Stone for the offence, the UK government produced a White Paper arguing the need to detain ‘dangerous’ people suffering from personality disorders to prevent them from committing such a crime.

This argument is based on exactly the same prejudice – that to protect the safety of the public, it is legitimate effectively to convict somebody without them ever having broken the law. Both proposals use the language of mental health to serve the broader, political purposes of law and order.

As the UK Guardian points out, existing mental health legislation allows for compulsory detention only for treatable mental illnesses (3). The White Paper’s plans to lock up dangerous people with personality disorders – which are widely regarded as untreatable – would extend this legislation to allow, effectively, for lifelong incarceration of supposedly dangerous people from society.

Lord Woolf’s paedophile proposals follow a similar vein. His arguments for ‘protective custody’ do not rest on the notion that paedophilia is a treatable condition: as he told BBC Radio 4’s Today programme, society cannot send paedophiles for treatment because ‘the condition is not treatable’. Rather, he makes no bones that this move would be ‘a huge infringement on the individual’s rights’, but argues that this is legitimate because ‘we have got to think of the rights of those who would be offended against as well’.

The implication of all of this is that we now live in a society that should target certain people as somehow ‘sick’, in the sense that they may be paedophiles or just dangerous people, yet expel them from mainstream society without any hope of treating them. And to what end?

Lord Woolf’s proposals have some resonance, because the actions of murderers like Michael Stone and Roy Whiting are an understandable source of fear for the UK public, and they deserve no sympathy. But however wide-ranging such proposals may be, they could never keep children absolutely safe from paedophiles. As Mick Hume has argued, all they can do is fuel the culture of fear surrounding potential threats to our lives and our children (See Sarah’s Law can’t protect us from fear).

We are encouraged to look upon everybody who seems a bit funny as a potential murderer or sex abuser, and to look upon their liberty as something that should be overridden on a whim or a suspicion. And while we might not care less what happens to Whiting and his ilk, this paranoid climate damages all of us.

The time has passed when society used to lock away its undesirables to rot in the asylum. Do we really want to go back there?

Read on:

Sarah’s Law can’t protect us from fear, by Mick Hume

Are you the one in four?, by Sandy Starr

TV as judge and executioner, by James Heartfield

(1) Guardian, 27 December 2001

(2) Independent, 28 December 2001

(3) Guardian, 27 December 2001